Gatacre LC Pty Ltd v Lane Cove Council - [2023] NSWLEC 35

Land and Environment Court

New South Wales

Medium Neutral Citation: Gatacre LC Pty Ltd v Lane Cove Council [2023] NSWLEC 35
Hearing dates: 16 August, 29 and 30 November, 1 and 2 December 2022 and 10 January 2023
Date of orders: 13 July 2023
Decision date: 13 July 2023
Jurisdiction: Class 1
Before: Moore J
Decision:
See orders at [266]

Catchwords:
DEVELOPMENT APPEAL ‑ proposed residential apartment building in R4 zone at interface with R2 zone ‑ steeply sloping topography ‑ development site at the top of the slope ‑ visual impact on immediately adjacent residences ‑ visual impact on immediately adjacent residences unacceptable ‑ setback from site of adjacent approved boarding house in R4 zone ‑ setback from site of adjacent approved boarding house in R4 zone unacceptable ‑ extent of proposed excavation adjacent to boarding‑house site combined with reduced setback inadequate for proposed landscaping ‑ proposed landscaping adjacent to boarding‑house site combined with extent of excavation results in unacceptable amenity impacts on a number of proposed apartments ‑ multiple separate reasons to refuse development consent ‑ appeal dismissed ‑ development consent refused

Legislation Cited:
Apartment Design Guide
Environmental Planning and Assessment Act 1979, s 4.15(3A)
Land and Environment Court Act 1979, ss 34 and 38(2)
Land and Environment Court Rules 2007, r 3.7
Lane Cove Local Environmental Plan 2009, Land Use Table and cll 4.3 and 4.6
Lane Cove Development Control Plan 2010, Parts C and J
State Environmental Planning Policy 65 ‑ Design Quality of Residential Apartment Development, cll 6A and 30 and Sch 1

Cases Cited:
Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641
Botany Bay City Council v Premier Customs Services PtyLtd (2009) 172 LGERA 338; [2009] NSWCA 226
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Manzie v Willoughby City Council [1996] LEC 26
Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130
Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2018] NSWLEC 191
Stannards Marine Pty Ltd v North Sydney Council [2022] NSWLEC 99
Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321
Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167

Category: Principal judgment
Parties: Gatacre LC Pty Ltd (Applicant)
Lane Cove Council (Respondent)
Representation:
Counsel:
Mr M Staunton/Mr J Farrell (Applicant)
Ms K Gerathy, solicitor (Respondent)
Solicitors:
Minter Ellison (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 273374 of 2021
Publication restriction: No

TABLE OF CONTENTS

Preamble

Introduction to the site and the proposed development

The boarding‑house site to the north

The determination process

The prehearing plan revisions

Representation

The Statements of Facts and Contentions

The Council’s “without prejudice” conditions of consent

The necessity for revised plans

Introduction
Minor matters of detail arising from the Company's amended plans
Amendments because of significant defects in the plans
Deferral of preparation of plans legally capable of approval

The relevant planning controls

Introduction
The EPA Act and the Court Act
SEPP 65
The ADG
The LEP
The DCP
The relevant provisions of the DCP
The role of a development control plan

The issues in dispute

Introduction

The evidence

The documentary evidence
The results of the joint expert conferencing
The supplementary landscape architects’ report
The expert oral evidence

The site inspection

The hearing

Introduction
The hearing on 16 August 2022
The second phase of the hearing
The further inadequacy of the plans

General observations concerning the approach to assessment of the proposal

Relevant fencing arrangements

The cl 4.6 building height dispensation request

Introduction
Consideration

Visual impact

Introduction
Setbacks on the southern side of the proposed building
The setbacks to 2A Gatacre Avenue
The setbacks to 7 Allison Avenue
The Council's visual impact contention
The visual impact assessment evidence
The Company’s position on visual impact
The Council's position on visual impact
Consideration
Introduction
General observation on non‑compliant setbacks to 2A Gatacre Avenue and 7 Allison Avenue
The impact on 2A Gatacre Avenue
The impact on 7 Allison Avenue
The impact on residences further to the south
Closing observation on visual impact

The north‑western corner of the proposed development

Introduction

The town planning evidence concerning the 1 December 2022 plan revisions for the planter bed

Issues for consideration
Fenestration and the urban design agreement/extended planter bed
Soil volume in the planter bed
Tree species selection, numbers and planting locations
Introduction
Species selection
Planting locations for the Narrow Leaf Ash trees
Consideration

Achievable tree height and canopy spread
The competing positions concerning the heights achievable by the Narrow‑Leaved Ash trees

Landscaping maintenance in the north‑western corner
Introduction
Preparation and approval of a landscape maintenance plan.
Access to the planter bed for maintenance purposes

Other landscaping issues in the north‑western corner
Amenity impacts on apartments UG01, UG02 and UG08
Boundary setback width
The justification provided by Ms Horder for the three‑metre setback from the northern boundary with the boarding‑house site

Conclusion on the north‑western element of the proposal

Orders

Annexure A

Annexure B

Annexure C

Annexure D

Annexure E

Annexure F

Judgment

Preamble

When the development applicant (Gatacre LC Pty Ltd ‑ the Company) and the consent authority (Lane Cove Council ‑ the Council) attended before the Registrar to have this Class 1 development appeal for a residential flat building set down for hearing, the parties estimated that the hearing would occupy a maximum of three days (including a site inspection and hearing objector evidence, informally, during the course of that site inspection).
For reasons which it is necessary to explain in some detail and at some length, two major defects in the plans of the proposed development (separately discovered by me during the hearing and not identified by any of the expert advisers to the parties or the legal representatives of the parties) necessitated multiple lengthy adjournments and a protracted set of hearings over six days in court, spread over a period of some five months. When finally concluded, the transcript of the various hearing days ran to a total of 384 pages.
What had been expected to be a comparatively “plain vanilla” Class 1 merit appeal had become significantly protracted. The final version of the contentions raised by the Council in its Further Amended Statement of Facts and Contentions ‑ FASOFAC (filed on 20 October 2022 ‑ roughly at the midpoint of the period over which the hearings spread) advanced a total of thirteen contentions which, together with their supporting particularisation, comprised separate reasons why the Council proposed that the Company’s development should be rejected. In addition, the Council listed a number of contentions that were proposed could be resolved by conditions of consent and, in addition, a number of further contentions where the Council proposed that insufficient information had been provided in support of the application.
It transpires that, in the final analysis, there are three separate and sufficient reasons why the Company's proposed development must be refused development consent. These reasons are:

The unacceptable visual impact on the neighbouring residence at 2A Gatacre Avenue;

The unacceptable visual impact on the neighbouring residence at 7 Allison Avenue; and

The fundamentally flawed and unacceptable design of the lowest elements of the Company's proposed development in its Gatacre Avenue corner adjacent to the site of an approved boarding‑house site, a site which fronts the Pacific Highway (the Highway) upslope.

Although this judgment is lengthier than would ordinarily be the case, this is as a consequence of the necessity to set out in sufficient detail the evolution of the complexity of the proceedings and the relevant evidence and submissions leading to the above three briefly noted reasons for dismissal of the appeal and refusal of development consent to the Company's proposed development. However, those conclusions have meant that a range of further elements of the contentions raised by the Council (or additional concerns raised in the public submissions from objectors ‑ written and oral) do not require to be addressed.

Introduction to the site and the proposed development

The Highway at Lane Cove runs in a generally north‑west/south‑east direction (convenient to be referenced as west and east for the purposes of this judgment ‑ see Transcript 29 November, page 74, lines 28 to 36) just before it crosses an overpass above the Gore Hill Freeway. At this point, the Highway is running along a ridgeline to the east of this overpass. About 140 metres to the east of the overpass, Gatacre Avenue runs from the Highway to the south, falling steeply into the valley to the south of the ridgeline.
About 110 metres to the east of Gatacre Avenue, Allison Avenue similarly falls toward the valley from its intersection with the Highway. Immediately behind the commercial buildings fronting the Highway between Gatacre Avenue and Allison Avenue, at 1 Gatacre Avenue, is the site of a former motel. This motel site has frontages to both streets. The motel site is irregular in shape, having a slightly longer frontage to Gatacre Avenue than to Allison Avenue.
On 3 June 2021, the Company applied to the Council seeking development consent to demolish the motel and the dwelling (at 5 Allison Avenue) which sits on the allotment in the elbow of the motel site at its Allison Avenue frontage and to construct, across these parcels of land (the site), a residential flat building.
An image of the site is reproduced below. This image has been taken from the State Government’s Six Maps website.

The site is zoned R4 High Density Residential pursuant to the Lane Cove Local Environmental Plan 2009 (the LEP). Land to the south of the site is zoned R2 Low Density Residential pursuant to the LEP. The objectives for these zones in the LEP’s Land Use Table are later reproduced.

The boarding‑house site to the north

The parcel of land to the north, at the Gatacre Avenue‑end of the site, has an existing multi‑storey residential development consent for the purpose of constructing a boarding house. Plans for the approved development of the boarding house immediately to the north of the site are in evidence (Exhibit 8, Tab 32). The approved ground floor plan shows, relevantly, a 1.8‑metre‑high lapped and capped fence on the boundary with the site. It also shows that, from approximately 15 metres into the boarding‑house site at its Gatacre Avenue frontage, there is a basement access ramp but, beyond that for the built form on the ground level of the approved boarding house, the setback of that built form is three metres from the boundary with the site. The plans for Levels 1 to 3 of the approved boarding house show that the built form adjacent to the site is set back three metres from the boundary with the site at each of these levels.
As the setback of the approved boarding house from the boundary with the site at its northern end is only three metres, this is a factor of relevance in considering the extent of the setback from this boundary proposed for the Company's development on the site.

The determination process

Because the value of the project exceeded the triggering reference value for referral to the Sydney North Planning Panel (the Planning Panel) to act as the determining authority on behalf of the Council, the Company's development application, in its then form, was considered by the Planning Panel. The Planning Panel refused to grant development consent to the Company’s proposed development.
It is not necessary to describe, in any detail, the nature of the Company's then proposed development as its refused design has been revised on a number of occasions (including several times during the course of my hearing of this appeal ‑ for reasons later described).
On 24 September 2021, the Company commenced a Class 1 appeal against the Planning Panel’s refusal of its proposed development.
As is conventionally the case in Class 1 merit proceedings, the matter was referred to a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (the Court Act). This conciliation conference, held on 11 March 2022, was unsuccessful. As there was no agreement from the parties that the conciliating commissioner should hear and determine the Company’s appeal, the matter was relisted before the Registrar for the allocation of hearing dates.
The matter was initially set down for a three‑day hearing commencing on 16 August 2022 ‑ commencing with a site inspection and the informal hearing of evidence given by seven residents of neighbouring or nearby dwellings who objected to the Company’s proposed development.
The Chief Judge assigned the Company’s appeal to me for hearing and determination.

The pre‑hearing plan revisions

The Company subsequently sought and was granted leave by the Registrar to rely on further revisions to the plans of the proposed development. At a pre‑hearing mention before me on 11 August 2022, the parties agreed with my proposal that, in lieu of the conventional starting time for the site inspection of 9.30 am, the commencement time should be delayed for 30 minutes in order to enable the legal representatives of the Council to explain the new plan changes to those objectors attending the site inspection (particularly, but not exclusively, those giving evidence during the site inspection of their concerns about the proposed development).

Representation

The Company was represented by Mr M Staunton and Mr J Farrell, barristers, and the Council by Ms K Gerathy, solicitor.

The Statements of Facts and Contentions

On 20 October 2022, the Council filed its Further Amended Statement of Facts and Contentions (the FASOFAC). This document responded to the then version of the plans upon which the Company proposed to rely for the purposes of resolution of this Class 1 proceedings. On 4 November 2022, the legal representatives of the Company filed a Further Amended Statement of Facts and Contentions in Reply in response to the Council’s document.
Many of the contentions raised by the Council in the FASOFAC were resolved through the joint expert conferencing process undertaken in a number of the expert disciplines where joint expert reports arising from the Company's revised proposed development had recorded agreements on matters in dispute. Some of these (for example, agreements between the urban design experts) would necessitate further revisions to the plans.
The Council later tendered a further document that set out those contentions which had been resolved, or narrowed, as a consequence of further amendments to the plans (either ones for which leave had been granted or which would be incorporated in finalised plans if consent was granted) or matters which were capable of being addressed by conditions of consent if that position arose.

The Council’s “without prejudice” conditions of consent

The Council also tendered a set of “without prejudice” conditions of consent which it proposed would apply to the Company's development if approved. Given the stage in the hearing process when these were provided to the legal representatives of the Company and tendered, I deferred any consideration of such disagreements about conditions as might arise until after I had determined the broad merit matters as to whether the Company's proposed development was capable of being granted development consent at all.
As it happened, further matters arose during the course of oral evidence which would have required additional responsive conditions to be incorporated in the draft conditions. I proposed that, if there were conditions which remained in dispute or where further conditions were necessary, those matters relating to conditions should be deferred to a short supplementary hearing after my determination of the primary merit issues in dispute between the parties if the Company’s proposed development was to proceed to such a stage.

The necessity for revised plans

Introduction

A number of minor agreed amendments to the plans had been advanced in the Urban Design Joint Expert Report. Further amendments, as later discussed, were also required to the landscaping plans as a result of my questioning concerning impacts on 2A Gatacre Avenue as a consequence of the nature of the landscaping proposed along the boundary of the site in the immediate vicinity of the existing ~2.5‑metre‑high retaining wall between the site and this downslope residence.

Minor matters of detail arising from the Company's amended plans

During the course of the hearing, I raised with Mr Staunton a number of matters where I felt that, if the Company's proposed development was to be granted development consent, minor amendments would also be necessary to the plans to address inconsistencies ‑ ones which could be addressed in revised plans by making tidying‑up changes without further merit consideration unless the plan revisions were not considered satisfactory by the Council.
I indicated that, in light of matters arising from the agreement between the urban design experts to a number of minor modifications to the plans and the necessity for some further modification of the plans arising out of the landscape architects’ evidence, it was appropriate to require, if the Company was to be granted a development consent, that revised plans be prepared so as to enable them to be uplifted to the NSW Planning Portal.

Amendments because of significant defects in the plans

As will later be explained, two separate and significant defects were discovered by me during the course of the hearing. Each necessitated changes being required to cure those defects. Plan‑change elements were prepared addressing each of them but fully redrafted plan preparation was not undertaken for the reasons noted below.

Deferral of preparation of plans legally capable of approval

I indicated that it was not appropriate to require the Company to go to the cost of preparing revised plans at that time, as such a necessity would only arise if I determined that the proposed development warranted approval after consideration of the major matters in dispute between the Council and the Company.

The relevant planning controls

Introduction

The relevant statutory and planning controls requiring consideration in these proceedings are to be found in a variety of source documents. Those documents are:

Environment Planning and Assessment Act 1979 (the EPA Act);

the Court Act;

State Environmental Planning Policy 65 ‑ Design Quality of Residential Apartment Development (SEPP 65);

the Apartment Design Guide (the ADG);

the LEP; and

the Lane Cove Development Control Plan 2010 (the DCP).

The EPA Act and the Court Act

Although engaged for the purposes of matters arising for consideration in these proceedings, it is not necessary to reproduce any of the provisions of these statutes other than s 4.15(3A) of the EPA Act.
In addition to the guidance given by the Court of Appeal in Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 (Zhang) (as to Zhang ‑ see note below following the relevant DCP provisions), the EPA Act, in s 4.15(3A), is also potentially engaged for the purposes of consideration of whether aspects of the Company’s proposed development is acceptable or not. It is appropriate to set out the terms of this provision:

4.15   Evaluation
(1)‑(3)   …
(3A)   Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a)   if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and
(b)   if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and
(c)   may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

SEPP 65

The SEPP also contains provisions setting out what elements of a council's local controls are not permitted to act as a barrier for a proposed apartment development and how other local controls may be used for this purpose. The first provision is in the following terms:

6A Development control plans cannot be inconsistent with Apartment Design Guide
(1) This clause applies in respect of the objectives, design criteria and design guidance set out in Parts 3 and 4 of the Apartment Design Guide for the following—
(a)   visual privacy,
(b)   solar and daylight access,
(c)   common circulation and spaces,
(d)   apartment size and layout,
(e)   ceiling heights,
(f)   private open space and balconies,
(g)   natural ventilation,
(h)   storage.

(2) If a development control plan contains provisions that specify requirements, standards or controls in relation to a matter to which this clause applies, those provisions are of no effect.
(3) This clause applies regardless of when the development control plan was made.

In addition, cl 30 of SEPP 65 is also relevant:

30   Standards that cannot be used as grounds to refuse development consent or modification of development consent
(1)   …
(2)   Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to—
(a)   the design quality principles, and
(b) the objectives specified in the Apartment Design Guide for the relevant design criteria.

(3) …

SEPP 65 also identifies, in Sch 1, nine design quality principles to be taken into account in the designing of proposed apartment developments. The elements of design quality principles 1, 5 and 6 relevant for these proceedings are set out below:

Schedule 1 Design quality principles
Principle 1: Context and neighbourhood character
Good design responds and contributes to its context. Context is the key natural and built features of an area, their relationship and the character they create when combined. It also includes social, economic, health and environmental conditions.
Responding to context involves identifying the desirable elements of an area’s existing or future character. Well designed buildings respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood.
Consideration of local context is important for all sites, including sites in established areas, those undergoing change or identified for change.
Principle 5: Landscape
Good design recognises that together landscape and buildings operate as an integrated and sustainable system, resulting in attractive developments with good amenity. A positive image and contextual fit of well designed developments is achieved by contributing to the landscape character of the streetscape and neighbourhood.
…
Principle 6: Amenity
Good design positively influences internal and external amenity for residents and neighbours. Achieving good amenity contributes to positive living environments and resident well being.
Good amenity combines appropriate room dimensions and shapes, access to sunlight, natural ventilation, outlook, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas and ease of access for all age groups and degrees of mobility.

The ADG

The ADG provides design criteria and general guidance about how development proposals can achieve the design quality principles identified in SEPP 65.
The ADG describes its relationship to SEPP 65 in the following terms:

Statutory relationship to SEPP 65
There is a close and integrated relationship between this Apartment Design Guide and SEPP 65. SEPP 65 sets a consistent policy direction for residential apartment development in NSW and provides a uniform statewide framework for more detailed planning guidance. It has a statutory effect on development and, as a consequence, may modify or supplement the provisions of state environmental planning policies, local environmental plans (LEP) and development control plans (DCP). Although this document is a guide, SEPP 65 refers to some parts of the Apartment Design Guide that must be applied when assessing development applications. Objectives, design criteria and design guidance in Parts 3 and 4 of this Apartment Design Guide that are referred to in SEPP 65 will prevail over any inconsistent DCP control. Parts 3 and 4 set out objectives, design criteria and design guidance for the siting, design and amenity of residential apartment development. Certain design criteria referred to in SEPP 65 cannot be used as a reason to refuse a development application, if complied with. SEPP 65 establishes nine design quality principles to be applied in the design and assessment of residential apartment development. This Apartment Design Guide provides greater detail on how residential development proposals can meet these principles through good design and planning practice.

The LEP

The first relevant element of the LEP is the extract from the Land Use Table which sets out the objectives of the R4 zone within which the site is located. Those objectives are in the following terms:

Zone R4   High Density Residential
1   Objectives of zone
•   To provide for the housing needs of the community within a high density residential environment.
•   To provide a variety of housing types within a high density residential environment.
•   To enable other land uses that provide facilities or services to meet the day to day needs of residents.
•   To provide for a high concentration of housing with good access to transport, services and facilities.
•   To ensure that the existing amenity of residences in the neighbourhood is respected.
•   To avoid the isolation of sites resulting from site amalgamation.
•   To ensure that landscaping is maintained and enhanced as a major element in the residential environment.

The second element of the LEP is one referenced by the Council. It is the objectives of the R2 Low Density Residential zone. The Land Use Table sets out the objectives of this zone (which is that applying to the land immediately to the south and further downslope from the site). Those objectives are in the following terms:

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 retain, and where appropriate improve, the existing residential amenity of a detached single family dwelling area.
•   To encourage new dwelling houses or extensions of existing dwelling houses that are not highly visible when viewed from the Lane Cove River or Parramatta River.
•   To ensure that landscaping is maintained and enhanced as a major element in the residential environment.

Although Ms Gerathy sought, at least to a limited extent, to invoke the third objective of the R2 zone as a proposition supporting the contention advanced on behalf of the Council concerning the visual impact of the Company's proposed development, as Mr Staunton submitted, such an approach is impermissible. Assessment of development in a zone (here, the R4 zone) must be confined to the objectives set out in the LEP's Land Use Table for that zone and that the objectives of any adjacent zone are not appropriate to be taken into account (Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321, Preston CJ at [30]).
The third relevant provision of the LEP is cl 4.3 Height of Buildings, the provision which provides the basis (through the incorporation by reference of the various relevant maps) for identifying the maximum building height development standards for locations within the Council's local government area. It will later be necessary to refer to the objectives of this provision. The terms of this provision are:

4.3   Height of buildings
(1)   The objectives of this clause are as follows—
(a)   to ensure development allows for reasonable solar access to existing buildings and public areas,
(b)   to ensure that privacy and visual impacts of development on neighbouring properties, particularly where zones meet, are reasonable,
(c)   to seek alternative design solutions in order to maximise the potential sunlight for the public domain,
(d)   to relate development to topography.

(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

The mapped height limit for this site is 15 metres.
Finally, the LEP contains a conventional provision, cl 4.6, permitting a development applicant to seek dispensation from complying with development standards set in another clause of the LEP. This is a beneficial and facultative provision, one which requires to be satisfied before development which would otherwise be in breach of a development standard can be permitted. Strict satisfaction of the various tests posed by cl 4.6 is mandatory (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118; Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130). As the Company's proposed development would exceed the maximum height standard for the site at a number of locations on its proposed uppermost level, a dispensation request pursuant to cl 4.6 has been made seeking approval for those exceedances. This provision, relevantly, is in the following terms:

4.6   Exceptions to development standards
(1)   The objectives of this clause are as follows—
(a)   to provide an appropriate degree of flexibility in applying certain development standards to particular development,
(b)   to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)   Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.
(3)   Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—
(a)   that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
(b)   that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)   Development consent must not be granted for development that contravenes a development standard unless—
(a)   the consent authority is satisfied that—
(i)   the applicant’s written request has adequately addressed the matters required to be demonstrated by subcl (3), and
(ii)   the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) …

The DCP

The relevant provisions of the DCP

Part C of the DCP applies to residential development. The following provisions are potentially relevant to my consideration:

Part C
C.3   Residential Flat Buildings
3.3   Building Depth
Objectives
The objectives for building depth are:
1   To ensure that the bulk of the development is in scale with the existing or desired future context.

…
3.4   Building Width
Objectives
The objectives for building width are:
1   To avoid large contiguous building bulk and massing.
2   To ensure that residential flat building responds to the character of the area.

3.5   Setbacks
Objectives
The objectives for setbacks are:
1   To establish the desired spatial proportions of the street and define the street edge and provide a transition between public and private space.
2   To assist in achieving visual privacy to dwellings from the street.
3   To allow for street landscape character.

Provisions:
3.5.1 Front/Street
a)‑c) …

3.5.2 Side and Rear
a) To the boundary within the R4 zone, the minimum side and rear setback shall be:
6m up to 4 storeys
9m for 5‑8 storeys
12m for 9 storeys and above.

b) To the boundary shared with R2 and R3 zones the minimum set back will be 9m if habitable rooms/balconies orient this side.

…
3.18   Landscaping
Objectives
The objectives for landscaping and deep soil zones are:
1   To provide privacy and amenity.
2   To retain and provide for significant vegetation, particularly large and medium sized trees and to provide continuous vegetation corridors.
3   To conserve significant natural features of the site.
4   To assist with management of the water quality and water table.
5   To conserve and create buildings in a landscaped setting.

Provisions:
a)   A minimum of 40% of the site area is to be planted, comprising 25% landscaped area and a further minimum of 15% planting on structures or landscaped area.
b)   Exceptions may be made in centres for mixed use developments only. In these instances, stormwater treatment measures must be integrated with the design of the residential flat building and sufficient soil depth and volumes to be provided to ensure that mature trees are achievable.
c)   Landscaping to front boundaries shared with bicycle routes should be less than 900mm in height and should not impede pedestrian and bicycle routes or reduce visibility to these pathways.

Part J
J.1   Landscaping
…
1.4   Objectives for landscaping of new development
…
The objectives for landscaping of new development are:
1   For medium/high density residential, commercial and industrial development, all substantial trees and that part of the landscaping scheme visible from the public domain shall comprise indigenous plants.
2‑4   …
5   The proposed landscape treatment should be compatible with the existing environmental character of the area and be planned so as not to affect adjoining properties. The use of native trees and shrubs to provide privacy screening is desirable.
6‑8   …
9   The establishment and ongoing maintenance of new plantings should be considered. Plants with low watering requirements are preferred. The use of plants with high watering requirements should be minimised. Where these are used, details of the proposed irrigation system should be specified. Irrigation should be supplied to plantings over slabs and in planter boxes but not areas that are adjacent to bushland.
10‑12   …

The role of a development control plan

In Zhang, at [75], Spigelman CJ (Meagher and Beazley JJA agreeing) stated that a development control plan “had to be considered as a ‘fundamental element’ in or a ‘focal point’ of the decision‑making process [of the consent authority]”. The Chief Justice also said that a provision of a development control plan that was directly pertinent to a development application “was entitled to significant weight in the decision‑making process but was not, of course, determinative”.
Although Zhang does permit departure from the terms of the DCP in the fashion outlined, nonetheless, serious consideration must be given to the terms of that document’s objectives and controls. It is certainly not open to me to express a conclusion that any controls are, as a general proposition, inappropriate (Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338; [2009] NSWCA 226).

The issues in dispute

Introduction

Although the FASOFAC had pleaded a wide range of contentions, only a limited number of them remained to be addressed after the joint expert conferencing process.
The critical issues potentially requiring to be addressed in my assessment of the Company's proposed development (grouped by topic ‑ as a number of the contentions were interrelated ‑ these being set out in their order of importance in my assessment) are:

Visual impact on immediately adjoining private residences;

The design of the north‑western element of the proposed development adjacent to the boarding‑house site;

Visual impact on private residences further downslope;

Whether the height exceedances could be permitted;

Solar access compliance for apartments in the proposed development;

The east‑west length of the built form.

Given that I am satisfied that the first and second of the above listed topics between them give rise to three separate and distinct reasons why the Company's proposed development should be refused development consent and this appeal dismissed, it is not necessary to address all the remaining issues listed above. However, for completeness, I do consider the fourth of the above listed issues, as my determination that it does not give rise to matters impacting on the adjoining properties at 2A Gatacre Avenue or 7 Allison Avenue is relevant in the context of my conclusion that the visual impacts on those two properties render the proposal unacceptable.
However, the third, fifth and sixth of the above listed topics do not give rise to matters relating to visual impacts on 2A Gatacre Avenue or 7 Allison Avenue and, thus, are not necessary to be addressed (given the complexity and length necessary for this judgment to address the three determinative issues).
The written and oral submissions on behalf of the objectors to the proposed development also raised matters that were not encompassed within the contentions that were set out by the Council and which had remained unresolved at the commencement the two phases of my hearings. Although some of the informal oral evidence of the objectors canvassed those matters and some other bases of objection were set out in the written public submissions, given that I have concluded that the Company's proposed development should be refused development consent for the three set out reasons arising out of the Council's remaining contentions, it is not necessary to consider, further, the additional matters raised by the objectors.

The evidence

The documentary evidence

For the Company, eleven documentary exhibits (including bundles of documents) were tendered ‑ these becoming Exhibits A to L. For the Council, two USB thumb drives were tendered becoming Exhibits 1 and 3. The two USB thumb drives contained electronic versions of a wide range of documentary material, with the first having been tendered at the August 2022 hearing and the other at the second‑phase hearing. In addition, 27 further documents (including several folders of documents) were tendered on behalf of the Council. It is unnecessary to take the space in what is an otherwise lengthy judgment to reproduce a list of the exhibits. It is sufficient to note that, where necessary, exhibit identifiers are included in the text of this judgment.
A range of joint expert reports were tendered addressing contentions raised by the Council, as set out in the Council's FASOFAC concerning the now amended proposal. The evidence concerning the relevant contentions was addressed by the experts in the groupings set out in the table below:

Discipline

Company Expert

Council Expert

Visual Impact

Mr David Moir

Mr Rajiv Shankar

Landscape Architects

Mr Ted Webster

Mr Robert Loughman

Civil Engineering on Contention 18

Ms Celine Montallana

Mr Jesse Wilson

Civil Engineering on Contention 17

Mr Maran Muthiah

Mr Jesse Wilson

Arboricultural Issues

Ms Catriona Mackenzie

Mr Louis Putnam Gray

Town Planning

Ms Julie Horder

Mr Rajiv Shankar

Urban Design

Mr John Stephen (Steve) Kennedy

Dr Michael Zanardo

Discipline	Company Expert	Council Expert
Visual Impact	Mr David Moir	Mr Rajiv Shankar
Landscape Architects	Mr Ted Webster	Mr Robert Loughman
Civil Engineering on Contention 18	Ms Celine Montallana	Mr Jesse Wilson
Civil Engineering on Contention 17	Mr Maran Muthiah	Mr Jesse Wilson
Arboricultural Issues	Ms Catriona Mackenzie	Mr Louis Putnam Gray
Town Planning	Ms Julie Horder	Mr Rajiv Shankar
Urban Design	Mr John Stephen (Steve) Kennedy	Dr Michael Zanardo

It is to be noted that the second joint report of the urban design experts recorded that several aspects which had been referred to them and addressed in that second report were ones which had not been the subject of those experts’ consideration in their first joint report. This was because that first report was based on the earlier version of the plans which had been proposed to be the subject of determination at the first‑phase hearing in August 2022.

The results of the joint expert conferencing

It is to be observed that, in a number of the disciplines listed above, the experts had explained, in the relevant joint expert report, why they had concluded that some elements of the contentions relevant to their discipline that had been raised in the Council's FASOFAC were either:

resolved by the changes which had been incorporated in the final amended version of the plans for which leave had been given in the second phase of the hearing and which were now to be the subject of my determination; or

able to be resolved by condition of consent; or

able to be resolved by further design amendment as set out in the relevant expert report.

It is to be noted that Mr Staunton indicated, on behalf of the Company, that the various conditions and design amendments proposed in these expert reports were accepted by the Company and had been (or would be) incorporated in architectural plans if the proposed development was otherwise approvable.
It is to be observed that, with respect to most of these proposed conditions and design amendments, it is not necessary to pay any further attention to them in this judgment.
However, with respect to one aspect of the design amendments proposed by the urban design experts (and other necessary amendments arising from the discovered defects in the plans as later discussed), the question of the acceptability of the proposed setback of the Company's development from the boarding‑house site on the northern boundary of the site at its western end will need to be considered in the context of the relevant setback requirements embodied in the DCP.

The supplementary landscape architects’ report

On 14 December 2022, a further supplementary landscape architects’ joint expert report (dated 13 December 2022) was also filed. The relevant portion of this joint expert report (after the introductory formalities) was in the following terms:

For the purpose of this joint conferencing, the landscape experts have reviewed the updated Rothe Lowman architectural documentation dated 1.12.22 (drawings TP 01.03 & TP 03 .20) and the Greenview Consulting structural engineering statement pertaining to the northern boundary wall construction methodology, dated 1.12.2022. Following our review of these documents, the landscape experts are satisfied that there is no change to the soil volume calculation of 187m³ previously tendered in evidence and the 8 proposed deciduous trees (Fraxinus angustifolia) proposed in the northern raised planter box.
To ensure the successful establishment of the eight Fraxinus angustifolia proposed along the northern boundary of the development, the landscape experts agree that a judicious maintenance program will need to be implemented. This is to include, but not be limited to, regular watering, fertilising, topping up of mulch and formative pruning for a minimum of three growing seasons to ensure upright growth is promoted and to minimise any likely encroachment on the adjoining building façades.

As this was the agreed position of these experts, neither of them felt the need to provide any individual comment in this document.
The proposed plantings discussed above give rise to some matters of controversy in these proceedings concerning the range of issues involved with the design of the Company's proposed development at its north‑western end adjacent to the site of the approved boarding house fronting the Highway. These issues are later addressed in the section of this judgment that turns to that portion of the Company's proposed development.

The expert oral evidence

All oral evidence given by the experts was given concurrently in their groupings of the areas of expertise. Not all experts were required for cross‑examination as a consequence of the various areas of agreement between experts set out in relevant joint expert reports where issues had:

been settled as a result of the amended plans that were the basis of the second‑phase hearing; or

had resulted in agreement as to additions to, or alterations of, proposed conditions of consent ‑ with these resolving matters which had been put in contention by the Council; or

further information had been provided on behalf of the Company, which information resolved issues in that discipline where the Council had previously indicated inadequacy in the material already provided.

The disciplines where it was necessary for the relevant experts to give oral evidence were:

arboriculture;

landscape architecture;

visual impact assessment; and

town planning.

On 29 November 2022, the Council tendered a version of the FASOFAC, a document indicating which of the contentions set out in the FASOFAC of 22 October 2022 were no longer pressed. For present purposes, it is to be noted that contention 3 Building Separation remained pressed with this contention being in the following terms:

Building Separation
3. The proposed building separation is unsatisfactory to the northern and southern boundaries, resulting in poor internal amenity and visual privacy for the proposed apartments. The limited separation results in an unsatisfactory transition to the adjoining R2 Low Density Residential zone. See also: Contentions 5, 6, and 7 regarding setbacks, LCDCP 2009, and the Apartment Design Guide.

With respect to the relationship between the Company's proposed development and the boarding‑house site, the FASOFAC sets out two relevant particulars (particulars (k) and (k3)) - particulars being in the following terms:

(k) To the north, the lack of building separation at the lower levels creates a canyoning effect that adversely impacts the amenity of the proposed apartments. The unit layouts along the northern setback (Storey 1-2) have a very poor outlook into the retaining wall beneath the concrete arbour.
…
(k3) At the northern boundary, the building separation between the Proposed Development and the building towards the north, is 3.0m as against the Apartment Design Guide's requirement of 6.0m. This provides poor amenity to the residents of the subject property and the property toward the north in terms of visual and acoustic privacy.

With respect to side setbacks, the FASOFAC sets out, at contention 7, the contention concerning side setbacks and its pleaded particulars. These are in the following terms:

Side Setbacks
7.   The Proposed Development does not comply with the LCDCP 2009 requirements for side setbacks, resulting in an inadequate street landscape character and amenity and privacy impacts to residents of neighbouring properties.
Particulars
(a)   The setbacks objectives extracted in Contention 5 are repeated.
(b)   Clause 3.5.2(a) and (b) in Part C3 of the LCDCP 2009 stipulates a minimum 9m to the southern boundary as it is a boundary shared with R2 zoned land and habitable rooms/balconies orient this side (3.5.2(b)). Clause 3.5.2(a) requires a setback of 6m to the northern boundary up to fourth floor, then 9m to the northern boundary for the fifth and sixth floors.
(c)   The proposal seeks to provide a 6m side setback from the southern side boundary and 3m side setback to the northern boundary.
(d)   The resultant spatial proportions of the building as they relate to the side boundaries are not satisfactory contrary to the objectives of the LCDCP 2009. In particular, objective three in cl 3.5 to "allow for a street landscape character" because adequate space for trees is not provided in these setbacks, and therefore cannot contribute to the street landscape character, and objective one in cl 3.5 “to establish the desired spatial proportions of the street”.
(e) Additionally, the reduced northern side boundary setback of 3.0m is against the requirement in the Apartment Design Guide for 6.0m for buildings of one to four storeys. This provides poor amenity to the residents of the subject property and the property toward the north in terms of visual and acoustic privacy.
(f) The southern side boundary at the ground floor and first floor of the Proposed Development are set back 6.0m as against a requirement of 9.0m in the Apartment Design Guide where there is a zone transition. This provides poor amenity to the residents of the Proposed Development, as well as to the residents in the adjoining R2 Low-Density Residential dwellings towards the south, in terms of visual and acoustic privacy.

Contention 8 addressed visual impact. The contention and its first two particulars (these particulars being presently relevant) are in the following terms:

Visual Impact
8.   The Proposed Development will have unacceptable visual impacts.
Particulars
(a)   As amended, the Proposed Development will be part 5/part 6 storey residential flat building with a total gross floor area of 6,183.9m2, on a prominent ridge location with insufficient setbacks to all boundaries.
(b)   The proportions of the Proposed Development include an unbroken five storey, 80+m southern elevation, which does not positively interface with the adjacent R2 zone and results in a visually dominant structure.
…

It is to be observed that, on 4 November 2022, a Further Amended Statement of Facts and Contentions in Reply (FASOFACR) was filed. This document provided detailed responses to the above set out elements of the FASOFAC elements which remained pressed by the Council.
It is not necessary to set out these responsive elements as they do not, in detail, respond to the matters that are pressed by the Council as relating to visual impact. To the extent that this document addresses matters of privacy in the relationship between the proposed development and the residences at 2 Gatacre Avenue and 7 Allison Avenue, the various measures proposed for the Company appear, prima facie, to be adequate. Certainly, in the context of the visual impact matters on the residences further downslope into the valley to the south, it is not necessary to set out matters from this document.

The site inspection

The site inspection commenced at 10.00 am on 16 August 2022, after the further revised plans had been explained to those objectors in attendance. I heard evidence given informally by seven of the objectors. This evidence was primarily given in the car‑park of the former motel near its driveway entrance from Gatacre Avenue. Evidence given on site in this fashion, to the extent that it is relevant to issues requiring to be determined in the appeal, is given as much weight as would be given had that evidence been heard, under oath or affirmation, in the courtroom. I have considered the objectors’ evidence on that basis. It is to be noted that the legal representatives of the Company and the Council later settled agreed notes of that informal evidence, with those notes being tendered.
As earlier noted, the site is at the interface between the R4 High Density Residential zone and the R2 Low Density Residential zone. The nature of the existing development in the two zones was able to be observed whilst standing in the element of the motel car‑park on the site where the objectors’ informal evidence was heard.
Following the hearing of this evidence, I visited the dwelling of one of the objectors at 2A Gatacre Avenue. This dwelling is located below and immediately to the south of the development site. There is a retaining wall, several metres high, between this residential site and the site. As a consequence of the steep slope of the land falling from the site to the south, the existing motel car‑park, where I had heard the objectors’ evidence, is at a level approximately at the eaves of this dwelling.
From this residence, we walked up Gatacre Avenue to its intersection with the Highway; walked south along the Highway to its intersection with Allison Avenue; and turned west to walk downhill ‑ stopping on the corner of Allison Avenue and Haldane Lane to look back toward the site. I then crossed Allison Avenue and entered 7 Allison Avenue (owned by Dr Leitner), a property also zoned R2 Low Density Residential pursuant to the LEP. During the course of inspecting Dr Leitner’s rear yard, looking toward the development site on his eastern and northern boundaries, I observed the presence of a dry‑stone‑rubble retaining wall between Dr Leitner’s rear yard (on his northern boundary) and the boundary of the development site. This retaining structure was a little over a metre high. Its importance is later explained.
After this element of the site inspection, we walked through the development site, returning to the location from which the objectors’ evidence had been heard. The site inspection then concluded.

The hearing

Introduction

It is appropriate to make an observation about the duration of the hearings in this matter. When the Chief Judge assigned this Class 1 appeal to me, in July 2022, it was the expectation of the parties that the matter would take a maximum of three hearing days.
As was conventional in such proceedings, the hearing commenced with the site inspection discussed above and informal evidence from the objectors to the proposed development. Before the hearing which followed, my examination of the plans revealed that there was a significant defect in the development for which consent was sought ‑ in that the plans proposed the construction of a critical retaining wall at a location which was not on the site and for which no owner’s consent had been obtained (indeed, the relevant owner, Dr Leitner, was one of the objectors who had spoken during the course of the site inspection). This defect necessitated an adjournment of the hearing for several months for preparation of plans which remedied this defect (the delay also being affected by a combination of court and witness availability).
When the hearing recommenced in late November 2022, in circumstances where the acceptability or otherwise of the design in its north‑western corner was a significant matter in contention, I discovered a further major defect in the plans ‑ in that there was no accurate architectural plan depiction of the retaining wall necessary to be installed to support the ~4.5 metres of cut that was proposed on the site at the boundary with the approved boarding‑house site to the north. The necessity to address this required a further significant revision of that element of the plans. The consequence of that meant additional evidence and hearing time was required.
The above two design inadequacies are matters addressed in more detail later.
These two retaining wall design defects in the plans for which the Company sought approval at the commencement of the hearing should not have been present in the plans for which development consent was sought. Put bluntly, the plans proposed were incapable of being constructed for legal and/or technical reasons.
Whilst some might consider that these defects should have been discovered prior to the hearing being undertaken and not have required my examination of the detail of the proposal leading to their discovery, the fault (and the unnecessary cost to the Company ‑ both for its own legal representatives and experts and also for the costs which it was required to pay for the additional expenses of the Council in responding to required amendments) resulted from what can only be considered to be incompetence on behalf of those preparing the design for the Company.
This incompetence not only increased the costs of the proceedings, but also, in the circumstances where there is considerable listings’ pressure on the Court, caused wasted court time in the hearing.

The hearing on 16 August 2022

After the site inspection, the hearing recommenced in court at noon. Shortly after the recommencement, I invited Mr Staunton to tender the plans upon which the Company was now seeking to rely. I did so because I had examined the cross‑section plans after the conclusion of the site inspection in order to see how the wall between Dr Leitner’s rear yard and the development site was accommodated in the plans. I had observed that the plans proposed, because of the slope of the land and the necessity to level the development site at its eastern end, a retaining wall some metres high, on a substantial footing, was shown on the plans. Importantly, this retaining wall was expressly and precisely marked on the relevant elevation as being constructed on Dr Leitner’s property.
There was, at that time, no owner’s consent from Dr Leitner to the construction of this wall on his property. I suggested to Mr Staunton that it was unlikely (to put it mildly) that Dr Leitner would grant owner’s consent for the construction of this structure (as he was an objector to the Company’s proposed development) and that there was no application of which I was aware that an easement for this purpose should be granted to the Company.
As a consequence, I suggested to Mr Staunton that it would be necessary for the Company to revise its plans to ensure that that retaining wall was accommodated entirely on the site.
I also drew to his attention that, on the same boundary between Dr Leitner’s property and the development site, at a point further to the east, there was a vertical element several metres high depicted between the site (on the high side) and Dr Leitner’s property below. On this cross‑section, no retaining wall was shown at all. This, too, in my assessment, also meant that the plans required further revision to address this problem.
The necessity to address these two deficiencies in the plans (one, at least, requiring the setting back of the retaining wall from Dr Leitner’s property to be entirely on the Company's site) had potential impacts for the setback of the proposed basement parking excavation from that boundary; potential narrowing of the landscaping corridor on the development site adjacent to the boundary with Dr Leitner’s property; and, at least potentially, the setback of any built form, above ground, on the development site at that location. A similar position arose with respect to what would be required to be depicted on the plans at the location further to the east on this boundary where no retaining structure had been depicted at all.
After a short adjournment to enable him to take instructions, Mr Staunton accepted that the hearing could not continue on the basis of the plans which had been tendered and that they would need to be revised and some time would be required by the Company and its advisers to address the matters which I had raised.
I therefore listed the matter before the Registrar to permit the Company to discuss future timetabling and potential future hearing dates before a Commissioner (if that course was appropriate) or before me. For present purposes, it is sufficient to note that the further hearing of the matter was timetabled (including the ability for the Company to seek leave to rely on amended plans), with a further hearing set for three days commencing on 29 November 2022.
Although provision was made in the timetabling of that three‑day hearing for a site inspection (if the matter was not to be heard by me), that further site inspection was rendered unnecessary as a consequence of the Chief Judge allocating the further hearing to me.

The second phase of the hearing

The second phase of the hearing commenced on 29 November 2022. Evidence was heard from six of the 55 objectors who had lodged written submissions in response to notification of the revised plans which were now subject to consideration in these proceedings. Five of those objectors gave oral evidence in court and one of them gave evidence via audio‑visual link.

A composite bundle of the objections to the Company's proposed development (including the 55 further of objections to the revised plans) was tendered. Notes of the earlier on‑site oral evidence from objectors were also tendered. For the purposes of preparing this judgment, I have read all the written objections and I have refreshed my memory of what was said to me during the informal oral evidence of the objectors given on site.

The further inadequacy of the plans

Whilst examining the plans during the course of the third day of the second‑phase hearing, I noticed that there was a further location on the plans (the most western of the north‑south cross‑sections) where, at the northern boundary of the site where it adjoins the boarding‑house site to the north, there is proposed to be significant excavation for the car‑park and, above the car‑park, a retaining wall for the void between the boarding‑house site and the proposed apartments on the ground level and the level above. This portion of the cross‑section plan, I noticed, showed no retaining wall at all on that boundary.
Because the functionality of the space between the lowest‑level apartments, whose aspect is into the void (some metres below ground along the northern side of this element of the Company's proposed development), gave rise to a significant contest on the acceptability of this element of the design, it was essential that what was proposed at this location be accurately depicted on the plans. On the boundary where there is proposed to be an exposed wall on the northern side of the void between the boundary and the built form of the proposed development ‑ there is no depiction of any retaining structure whatsoever.
I granted Mr Staunton several short adjournments to permit him to obtain instructions as to how this defect might be cured in a fashion that would permit Ms Gerathy and I to be informed, adequately, as to what was proposed at this location.
Mr Staunton subsequently advised me that a revised (and more detailed) element of a cross‑section plan would be prepared. I indicated that it was appropriate to defer consideration of matters in contest between the parties relating to that location until after that documentation was available and that I would provide time on the following morning, prior to my commitments as the List Judge on that day, for a short additional special fixture of an hour to hear submissions addressing that element of the Company's proposed design as supplemented by whatever further drawings might be proposed.
Prior to the conclusion of the hearing on the third day of the second phase (the time by which it had been expected that the entire hearing would be completed, with me reserving my judgment), Mr Staunton provided two further A3 drawings addressing these matters. The first of them comprised a detailed cross‑section providing detail of the proposed retaining structure that would prevent the boarding‑house site from collapsing into the void between the boundary and the proposed apartments on the ground floor and the level above and also revealed that the planter bed between the retaining wall and the façade of the proposed development would occupy the full width of this separation. The second sheet was a copy of the existing ground floor plan showing, at relevant points in the vicinity of Section G, separation distances between the retaining wall and the face of the proposed built structure.
These plans were handed up shortly prior to the adjournment on the third day of the second phase of the hearing on the basis that they would be (as they were) subject to an application the following morning that leave would be sought to rely on these sheets in supplementation of the plans for which consent was sought and to be regarded as, with respect to the first sheet, amending that element of the already amended plans then being relied upon to the extent that the depiction of the relevant retaining wall was to be as now shown on this revised plan dated 1 December 2022. At the short additional hearing on the morning of 2 December 2022, I granted the necessary leave for this purpose ‑ these plans becoming Exhibit L.
Because I was satisfied that the supplementary hearing on 2 December 2022 was only required because of the inadequacy of the plans in the respect described above, I ordered that the Company pay the Council's costs of the additional hearing. I expressly noted that, although the amendment to the plans should be regarded as minor and thus did not give rise to any mandated costs order as a consequence of costs thrown away as a result of the amendment, I was satisfied that it was fair and reasonable, as provided by r 3.7 of the Land and Environment Court Rules 2007 to order that the Company pay the Council's costs of the short supplementary hearing to address these issues in the area of the Company's proposed development depicted in the revised plans.
It is not necessary to reproduce the revised section plan forming the first sheet of these new plans at this point in the text of my judgment. However, because of the nature of the contest between the parties concerning landscaping and amenity issues arising from this aspect of the design of the Company's proposed development requiring detailed later consideration, a copy of the first sheet of these plans (in portrait format with some the architects’ identifiers omitted to permit its reproduction at the scale tendered) is reproduced as Annexure A to this judgment.

General observations concerning the approach to assessment of the proposal

It is to be observed that, although there is no formal standard of proof applicable in Class 1 merit appeals, an applicant for development consent bears a persuasive burden to establish to the consent authority (here, the Court) that a development proposal warrants being approved (see Preston CJ in Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2]).
This requires the provision of sufficient relevant information, at an appropriate level of detail, addressing matters in contest between the consent authority and the development proponent as to the acceptability or otherwise of relevant aspects of the proponent's development.
It is to be acknowledged that the topography of the site and its relationship with the downslope individual residences in the R2 zone to its south create challenges for any development proponent seeking to redevelop the combined area of the existing motel with the addition of the allotment at 5 Allison Avenue. An additional aspect of this challenge arises from the fact that the boundary of the site, following as it does the interface between the R4 and R2 zones, doglegs around 7 Allison Avenue, the allotment upon which the residence of Dr Leitner is located.
Before turning to the individual aspects of the Company's proposed development, which individually (let alone collectively) render it incapable of being approved, two further general observations are appropriate to be made.
First, as was accepted by Ms Horder during the course of her oral evidence, the maximum development envelope for the site is initially set by the combined operation of the development standards derived from the LEP for the maximum floor space ratio and maximum building height for the site, with such an envelope being a limit and a target rather than an entitlement ‑ a target which is subject to other planning constraints needing to be assessed in the particular circumstances of this site and matters arising from, and with respect to, the interaction between the site and neighbouring development (Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2018] NSWLEC 191 at [53]). Further constraints are imposed, albeit on a less inflexible basis, by the development controls for setbacks from the various boundaries of the site at varying levels of any potential development on the site.
Second, although there is power given by the EPA Act to approve only part of a development, such circumstances do not arise in this instance.
As a consequence, it is not appropriate to do more than explain why the Company's proposed development is unacceptable. It is not appropriate to give gratuitous advice as to how some alternative development proposal for the site might be made acceptable (Manzie v Willoughby City Council [1996] LEC 26). In what form some future development proposal for the site might be advanced is entirely a matter for the Company and its advisers in how it seeks to respond to, and cure the defects identified in, my reasons as to why its present proposed development is incapable of being granted consent.

Relevant fencing arrangements

Two elements of fencing on the site on boundaries with adjacent properties are relevant. Only the second of them requires later consideration. The first is the fence along the southern boundary of the site adjacent to 2A Gatacre Avenue and 7 Allison Avenue. The second is the fence along the northern boundary at its western end, atop the retaining wall with the boarding‑house site to the north.
It was agreed that the fence along the southern boundary could be an open, swimming pool fence type. Such a fence would not impose any sense of enclosure on the properties in the R2 zone immediately adjacent to the site. A fence of this nature would also not contribute to any visual impact of the Company's proposed development, whether viewed from those immediately adjacent properties or further to the south in the R2 zone. Specifying the colour of such a fence (black being appropriate, in my assessment) could have been achieved by condition of consent had the Company's proposed development have otherwise been approvable.
The fence atop the retaining wall between the site and the boarding‑house site to the north is to be a solid lapped‑and‑capped fence, 1.8 metres high (approved boarding house plans ‑ Exhibit 8, Tab 32). The retaining wall is, from the top of the soil in the planter bed adjacent to units UG01, UG02 and UG08, 4.2 metres as shown on the section later reproduced at Annexure A. The impact of this wall, not merely on the units listed, but also on those above them, is later addressed in the context of my general analysis of the acceptability or otherwise of the related topics of the setback of the proposed building from the retaining wall and the fence; the landscaping proposed for the planter bed adjacent to the retaining wall (including the performance of, and potential impacts arising from, that landscaping); and general amenity issues arising along that northern element of the façade of the proposed building.

The cl 4.6 building height dispensation request

Introduction

Two aspects of the height of the Company's proposed development require consideration. The first of these, being the extent to which the height contributes to its visual impact, is later dealt with separately. The second is the extent to which portions of the uppermost level exceed the permitted height set by the operation of cl 4.3 of the LEP and the relevant related map. The objects of that clause and the objects of the R4 zone within which the site is located have earlier been set out.
I have also earlier set out the terms of cl 4.6 of the LEP. This is the provision by which the Company seeks dispensation from compliance with the height of buildings development standard of 15 metres as the maximum permitted height above ground level. Clause 4.6 sets a number of gateway tests, all of which are required to be satisfied before a consent authority (here, the Court) can grant permission to allow the relevant development standard to be breached in the fashion sought. The necessary state of satisfaction must be held by the consent authority with respect to each of the tests set in the clause.
Ms Horder had prepared a request pursuant to cl 4.6 of the LEP seeking dispensation for the Company's proposed development to exceed the 15 metres height limit otherwise applicable to development on site.
There were several exceedances of the 15 metres height limit for which compliance dispensation was sought in this cl 4.6 request. These are proposed to occur at locations spread across the uppermost level of the proposed development. Ms Horder's cl 4.6 request included a plan which showed the Company's proposed development (largely shaded pink), with the areas of exceedances encompassed by the dispensation request being shown in white. It is not necessary to reproduce this plan.

Consideration

The position advanced for the Council is that this dispensation request does not satisfy the mandated tests set out in cl 4.6(3) and (4) of the LEP. In essence, the proposition advanced is that, amongst other things, additional overshadowing of the residence at 7 Allison Avenue would lead to an inappropriate and unacceptable diminution of the solar access for that dwelling and that the request does not adequately explain why this should be permitted.
It is unnecessary to undertake any detailed analysis of the cl 4.6 request prepared by Ms Horder, given the conclusions I have otherwise reached that there are three unrelated separate and substantive grounds, each warranting refusal of the Company's proposed development.
It is sufficient for present purposes to note that the height exceedances impact on the solar amenity of 7 Allison Avenue is not satisfactorily justified by the cl 4.6 request.
However, had it been a question of assessing whether cumulative impacts of the various lesser matters pleaded in the Council’s contentions warranted refusal of the Company's proposed development, this impact on 7 Allison Avenue would have contributed to, but not been determinative in, such a process.
It is to be noted that the height exceedances would not make any contribution of significance to the visual impact matters discussed later.

Visual impact

Introduction

The evidence given by the objectors on site and, in the second‑phase hearing, in court, had a common theme of the adverse visual impact that would be created if the Company’s development was approved. A similar broad common theme ran through the written objections submissions made to the Council concerning the original proposal and in the subsequent objections submitted to the Council in response to the revised proposal. The adverse visual impact was said to arise as a consequence of the combination of the east‑west length of the proposed development, with its prominent location upslope from the R2 zone residences down Gatacre Avenue and Allison Avenue and the steepness of the slope falling away from the site, the site being near but not at the peak of the ridgeline upon which the Highway is located.

Setbacks on the southern side of the proposed building

There are three aspects of the setbacks along the immediate southern side of the proposed building that were pressed by the Council. Those aspects are:

the setback of the western end of the southern façade of the building from the boundary of the site with 2A Gatacre Avenue;

the setback of the eastern facing elements of the southern side of the building, a façade which is oriented to the rear private open space of the property owned by Dr Leitner at 7 Allison Avenue; and

the south‑facing façade of the building, in its eastern portion, where that façade is also oriented toward Dr Leitner's property, facing his dwelling with this element addressing the full length of the common boundary between his property and the site for the full length of his rear private open space.

It is particularly to be noted that what is addressed in this section of my judgment are only matters of visual impact arising from setbacks for the above described three elements of the Company’s proposed development on the R2 residential developments at 2A Gatacre Avenue and 7 Allison Avenue.

The setbacks to 2A Gatacre Avenue

With respect to the discussion in the first Town Planners Joint Expert Report, it is to be observed that the discussion between Mr Shankar and Ms Horder concerning the six‑metre setback from the boundary with 2A Gatacre Avenue concentrated on a discussion of the adequacy of privacy protection for the residents of 2A Gatacre Avenue. In the present context, I am satisfied that this setback is adequate for privacy protection purposes. However, having made that observation, that does not obviate the necessity to consider, as I do below, the visual impact of the Company's proposed development, as a consequence of its presentation across all levels able to be observed from the residence at 2A Gatacre Avenue, both internally and in that residence’s private open space.
The following setbacks are proposed for the development from the boundary of the site with 2A Gatacre Avenue:

at ground level and Level 1, 6.2 metres;

at Level 2, nine metres with a planter box of variable width between the façade of the proposed building and the boundary;

at Level 3, nine metres with no planter box;

at Level 4, 12 metres, also with a planter box within that distance; and

at Level 5, a 12‑metre separation from the boundary with 2A Gatacre Avenue to the balustrading for the various communal open spaces proposed to be provided on the southern side of the uppermost level of this western end of the proposed building.

The setbacks to 7 Allison Avenue

The setbacks from the east‑facing façade of the proposed building oriented toward a significant portion of the rear boundary of Dr Leitner's private open space are set out below:

for the ground level and Levels 1 to 3, the setback from the boundary is nine metres;

at Level 4, the setback is 10.8 metres; and

at Level 5, the setback is marginally further increased beyond that proposed for Level 4.

Finally, it is appropriate to set out the setbacks along the northern boundary of Dr Leitner's property:

for this portion of the proposed building, there is a slightly differential setback at the lowest level with a setback of six metres from the façade of unit UG13 (the easternmost unit at this level) with a uniform setback of seven metres from the façade at this level for the remainder of the length of this ground level of the proposed building;

Levels 1 and 2 are proposed to have a setback of six metres to their façade from the boundary with 7 Allison Avenue; and

at Level 3, the minimum setbacks from the boundary with 7 Allison Avenue along this element of the proposed building is nine metres.

In this context, it is to be observed that, in the Supplementary Urban Design Joint Expert Report filed on 22 November 2022 (Exhibit 14), the urban design experts considered that, from the point of their expertise, matters of visual impact were adequate, but noted, in paragraph 6.3(b) that:

The experts agree that the exercise of undertaking visual impact assessment is more properly the role of a view impact assessment consultant which is our understanding of why contention 8 was not the subject of urban design conferencing previously.

To the extent that it is relevant, in subparagraph (d), the report repeated an element of their earlier Urban Design Joint Expert Report (2 August 2022), a response in the following terms:

With regard to particular 1(b), the experts agree that the proposed southern elevation is not unbroken but an articulated form which steps in both plan and elevation and is comprised of two buildings joined together. The experts consider that the proposal now provides an acceptable interface with the adjacent R2 zone, particularly the immediate neighbours to the south at 2A Gatacre Avenue and 7 Allison Avenue inclusive of a zone of deep soil landscape planting for the extent of the shared boundary. The experts consider that the proposal will not be visually dominant from the street frontages from an urban design perspective.

The Council's visual impact contention

The Council’s contention concerning visual impact was set out in the FASOFAC in the following terms:

Species selection

I have earlier noted that the landscape architects had proposed that the tree species to be used in the planter bed adjacent to the boarding‑house site was to be the Narrow Leaf Ash tree and it can be seen that Mr Putnam Gray agreed with this. I have earlier set out the terms of the evidence in the supplementary joint expert report of the arborists in which Ms McKenzie proposed that a tree species, an ornamental pear known as a Chanticleer, should be used in the alternative.
As I explained to the legal representatives of the parties, I had undertaken my own research (consistent with s 38(2) of the Court Act) in order to understand this difference in opinion. This research had resulted in me providing each of the legal representatives with a set of three photographs which included photographs of the Narrow Leaf Ash tree and of the Chanticleer Ornamental Pear (photographs which Ms Gerathy tendered, becoming Exhibit 29). As a result of my research, I questioned the arborists concerning Ms McKenzie’s proposal that the Chanticleer Ornamental Pear was a more appropriate species to be selected for planting in this planter bed. My questioning and the responses were in the following terms (Transcript 10 January 2023, page 68, line 38 to page 71, line 37):

HIS HONOUR: There is a distinct difference between you, as I understand it, as to whether or not the Chanticleer pear is the preferable species to be planted along the northern setback at the sorry the eastern setback along the northern end of the building. For those purposes, there is in evidence now a copy of each of the trees that are discussed in leaf and there is a copy of the Chanticleer in blue [bloom]. Is it the understanding of each of you that after shedding their leaves for the purposes of their annual deciduous leaf drop, when they re leaf, the narrow leaf ash goes straight to a budded and leafed form, whilst the Chanticleer pear goes through a bloom and then re‑leaf process?
WITNESS MACKENZIE: Yes, your Honour, my understanding of the species is the Chanticleer will flower and bloom and the narrow leafed ash will flower, but they are inconspicuous.
HIS HONOUR: Mr Putnam Gray?
WITNESS PUTNAM GRAY: I would agree with Ms Mackenzie.
HIS HONOUR: In the year since the commencement of the Trees Dispute Between Neighbours Act in 2007, the matters that I've sat with former Commissioner Fakes, there was often reference to Claus Mattheck's Body Language of Trees. Is there any equivalent body of academic work with respect to what I would describe as ornamental trees, such as these two?
WITNESS MACKENZIE: Yes. There's David Lonsdale called Evaluation of Trees and Defects, I believe. Sorry, it's been a while since I've looked at my reference books at home.
WITNESS PUTNAM GRAY: There would be mention of them in the general arboriculture book by Matheny and Clark.
HIS HONOUR: Have either of you consulted if any of those reference works with respect to the trees here involved?
WITNESS MACKENZIE: Not
WITNESS PUTNAM GRAY: I have not, sorry.
WITNESS MACKENZIE: No, your Honour. I've referenced different material. So, not those books.
HIS HONOUR: Mr Putnam Gray?
WITNESS PUTNAM GRAY: I have not, no.
HIS HONOUR: Is it reasonable to assume that with respect to the proposed plantings in the what is now wider proposed planter bed that we're discussing this morning, is your position, Ms Mackenzie, that the Chanticleer pear is sufficiently superior to the narrow leafed ash that it renders the narrow leafed ash inappropriate to be planted in that space?
WITNESS MACKENZIE: Yes, your Honour. The reason is the Pyrus is actually more shade tolerant than the narrow leafed ash species. The Fraxinus, the narrow leafed ash actually has another common name, which is the Desert Ash. So, it gives you an idea of its highlight requirements, whereas the common pear or the Chanticleer pear does actually tolerate part shade.
HIS HONOUR: Mr Putnam Gray, what do you want to say about the comparison between the two?
WITNESS PUTNAM GRAY: I would agree that from a species selection stand point that the Chanticleer would be a more appropriate species than the narrow leafed ash in that location.
HIS HONOUR: What do you say to the proposition that absent considering information from typical reference books, such as those to which you have referred, but neither of you have consulted on this point, that it is appropriate to give some consideration to what commentary might be made about either of those species on what are horticultural websites on the internet?
WITNESS MACKENZIE: Your Honour, I actually refer to landscape management materials when it comes to selection and planting rather than the Mattheck book or the Matheny and Clark arboriculture books. They deal more with managing trees that are there, that are in situ, whereas the landscape management material that I refer to deals with the planning selection management of trees in the landscape and I believe also that, looking at trees and landscapes and working in landscapes, gives you an experience of how trees behave in certain situations within a landscape. So, a lot of this is really based on personal management of trees as well.
HIS HONOUR: Mr Putnam Gray?
WITNESS PUTNAM GRAY: I would agree with my counterpart that a lot of my summation of this has come from personal experience and that, for instance, with the Pyrus, just the general genetics of the leaf of the tree being larger than that of the ash, obviously, it would absorb sunlight than that of the narrow leaf ash and, therefore, would be more appropriate due to the amount of, I guess, available light within that location.
HIS HONOUR: What experience do you both have the physical attributes of these trees?
WITNESS PUTNAM GRAY: From mine, it would just be a management perspective. I've been in the horticultural industry, outside of being an arborist, being a gardener, so, pruning, maintaining these sorts of trees as well.
HIS HONOUR: Ms Mackenzie?
WITNESS MACKENZIE: Your Honour, the particularly the pear is commonly used as a street tree. Unfortunately, it's quite often placed under power lines, but I have managed residential landscapes in the past, sometime ago now, of course, but, for more than ten years, and one particular property had about five of these in their rear garden in Mosman. So, I was quite familiar with managing the species.
HIS HONOUR: Are any of those planted in confined places?
WITNESS MACKENZIE: Well, this garden I managed in Mosman was between a pool and a fence, but, admittedly, beyond the fence, there was some contiguous soil beyond that, but they were quite close to an in ground concrete pool.
HIS HONOUR: Vertically confined places?
WITNESS MACKENZIE: Vertically, not so much.
HIS HONOUR: Mr Putnam Gray?
WITNESS PUTNAM GRAY: In my experience, I haven't dealt with this tree species that would be in an area as such.
HIS HONOUR: How do you respond to comments on a range of horticultural websites that I've found over the last few days that address the odour of Chanticleer pears when in blossom and describe the odour variously as "smelling like rotten fish", "smelling like dry semen", and things of that nature? How do those comments reflect on the appropriateness of planting these trees in the space proposed in this development next to a number of residential apartments in a confined canyon?
…
WITNESS MACKENZIE: I beg your pardon, your Honour. I haven't actually experienced that smell when they've been in flower, but
HIS HONOUR: Do you have any reason to doubt the observations
WITNESS MACKENZIE: No, I don't.
HIS HONOUR: what I conveyed to you?
WITNESS MACKENZIE: No, I don't, your Honour.
HIS HONOUR: Mr Putnam Gray?
WITNESS PUTNAM GRAY: I have no reason to doubt those observations.

All three of the photographs in Exhibit 29 are reproduced as Annexures D, E and F to this judgment. The third of them, that of the Chanticleer Ornamental Pear in full bloom, demonstrates why, given the malodorous nature of that tree during its flowering, it would be entirely inappropriate to have eight of these trees planted in the canyon between the proposed building and the retaining walls of the boarding‑house site as there are windows and terraces or balconies that would be located immediately adjacent to these trees.
Under the circumstances, where it would have been appropriate to have made enquiries about all relevant potential attributes of the tree species she was advocating, and Ms McKenzie had clearly not done so in circumstances where even basic horticultural research would have revealed the inappropriateness of the Chanticleer Ornamental Pear for use in a confined space adjacent to residential apartments (including outdoor terraces of such apartments), this gives me little confidence in the accuracy of her evidence.

Planting locations for the Narrow Leaf Ash trees

Although, early in the proceedings, there was some controversy as to the number of such trees that were proposed to be planted in the planter bed along the northern setback adjoining the boarding‑house site, it was made explicitly clear in Exhibit 17, the joint expert report of the landscape design experts of 22 November 2022, that there were to be eight such trees, rather than six which had been originally depicted on an earlier landscape plan, or 10 trees, as had earlier been the subject of some evidentiary discussion. However, there was no plan which depicted precisely where within the now revised planter bed it was proposed that these eight Narrow Leaf Ash trees would be planted.
The agreed position, as I understood it from the oral evidence of the landscape design experts on 10 January 2023, was that each of these eight trees would be planted in the middle of the planter bed (that is, equidistant from the northern retaining wall and from the planter bed retaining wall adjacent to the façade of the proposed building). There remained the position that there was no evidence, in an east‑west linear alignment along the ~50 metres of the planter bed from its Gatacre Avenue end to the end adjacent to the driveway to the basement car‑park, as to where each of the trees would be planted.
I indicated to the advocates that I intended to undertake my merit assessment on the assumption that the trees would be evenly spaced, this being necessary in order to minimise any potential for significant canopy overlap and conflict if the trees grew to a height in canopy spread as envisaged by Ms McKenzie's written and oral evidence. It is also consistent with Figures 1 and 3 to Exhibit 17. This would require the identification of nine spacing intervals of equal length (approximately five metres) along the planter bed for this purpose. Neither of the advocates raised any objection to me adopting this approach in my merit assessment of the amenity and screening issues arising with respect to these proposed trees.

Consideration

It follows that I am satisfied that the proposed Narrow Leaf Ash trees are an appropriate tree species to be located in this planter bed and that their planting intervals do provide a potential (if limited) basis to permit them to grow adequately in the planter bed. This conclusion, for reasons later explained, is quite separate from the questions of what heights might be achieved by these trees and with what canopy spread; the acceptability of the soil volume in the proposed planter bed; the overall impacts arising from these trees; and the overall acceptability of this design element of the Company's proposed development.

Achievable tree height and canopy spread

The competing positions concerning the heights achievable by the Narrow‑Leaved Ash trees

In their oral evidence, the arborists were questioned as to what they considered was the appropriate expectation of the height to which the eight Narrow Leaf Ash trees could reasonably be expected to achieve and the timeframe within which this might occur. It is to be noted that, for these purposes, the assumption was made that the trees which were planted would be ones in 200‑litre pots (being significantly advanced nursery specimens) with a planting height of three or four metres (Mr Putnam Gray) or four to six metres (Ms Mackenzie). Mr Putnam Gray's evidence was (Transcript 10 January 2023, page 83, lines 43 to 46):

WITNESS PUTNAM‑GRAY: My recent street tree plantings of a eucalyptus which is, you know, it is a different species, they were 400 litres, and they were 6 metres in height. So I would assume that a 200‑litre tree would be closer to that, to that, between that 3 and 4 metres.

Ms Mackenzie's evidence on this point was (Transcript 10 January 2023, page 83, lines 32 to 39):

WITNESS MACKENZIE: Your Honour, it would really depend on the size of the tree when you purchase and plant. I'll just go back to the section. Again, it really depends on the container size of the tree when you plant it. So 5.5 and the fence, presumably about 1800, 6, 7 metres if they were planted, I'm not sure, I'll just have to remind myself, your Honour, the size that was proposed. I don't think it actually gives the size on the landscape. I don’t know if it's another page. So where are we. So 200, they would probably be anywhere between 4 to 6 metres, I would think as a maximum at planting.

I have earlier set out the evidence of the landscape architects concerning the expected height at maturity of the Narrow Leaf Ash trees. This conclusion is entirely consistent with the evidence given by Mr Putnam Gray and Ms McKenzie. The earlier reproduced “artistic impression” from Figure 1 of the Landscape Architects’ Joint Expert Report is, I am satisfied, a consistent and appropriate basis (subject to the earlier noted qualification that it has stripped out the structures on the boundary between the site and the boarding‑house site) for considering and assessing the impacts that the Narrow Leaf Ash trees at maturity would have on the apartments in the lowest level of the Company's proposed development and the two levels immediately above.
It is also to be observed that the arborists’ evidence agreed that the maintenance regime which would be required to be established would require pruning of the branches as the trees grew. This pruning would be to keep the branches of the trees away from the façade of the Company's proposed building. There was no suggestion that there would be any pruning of the evolving canopy of these trees in any other fashion. The clear intention is that, as the trees grow upwards and their canopy spread extends in their unpruned dimensions, given that the gap between the planted location of each of the trees will be ~five metres and their expected canopies are ones which will extend beyond 2.5 metres in a radial fashion from the primary vertical orientation of growth, the canopies can be assumed to attain a near‑interlocking position at the time of full maturity (if not, in fact, an actual interlocking canopy).
At this point, it is to be observed that the first of the photographs in Exhibit 29, being a photograph of a significantly mature (if not completely mature) Narrow Leaf Ash tree shows its likely future appearance. Although in autumnal colours (as this tree is a deciduous one), the overall shape of the expected tree can be observed. A copy of that photograph is reproduced below:

During the course of their oral evidence on 10 January 2023, when the question of understorey planting and wall‑climbing plant treatment for the retaining wall was addressed, neither Mr Putnam Gray nor Ms Mackenzie raised any concern that the above photograph was not generally typical of what might be expected of the performance of these trees. That arose in the context of consideration of the fact that the primary trunk of these trees at maturity would contribute little or nothing to an amenity outlook from the fenestration to the north or north‑west of the lowest level proposed apartments.
It is therefore to be assumed that, except during winter when the trees will be leafless as a consequence of their being deciduous, there will be, at maturity, full‑leafed, near‑interlocking (or interlocking) canopies to a height of up to eight metres or so above the ground (a conclusion drawn from Exhibit L and the “indicative artistic impression of the trees at maturity” earlier reproduced) before the canopies taper toward their crowning points. Those full‑width canopies will, therefore, be close to, but pruned away from, the façade of the proposed building as a continuous, vegetated outlook from all north‑facing windows and balconies of the apartments on the two levels immediately above the lowest residential level (as also shown in the “indicative artistic impression of the trees at maturity” earlier reproduced).
Unless the pruning to be undertaken to keep the trees clear of the façade of the building is to be far more significant (and continue beyond the three years proposed by the landscape architects) than was suggested arising from the arborists’ evidence, the outlook from those north‑facing windows and balconies will be, for some eight or nine months of the year, virtually completely of the close canopy of the trees with, at the most optimistic, potentially limited upward viewing toward what would be only a small strip of sky.

Landscaping maintenance in the north‑western corner

Introduction

From both the oral and written further joint expert evidence of the arborists on 10 January 2023 and the oral and written evidence of the landscape design experts on 10 January 2023, there was agreement that, should the proposed development be approved with the planting of eight Narrow Leaf Ash trees in the planter bed between the northern façade of the proposed building and the retaining wall with the boarding‑house site to the north, there would need to be established a prescribed mandatory maintenance regime for this landscaping (including the trees).
This would be required in order to ensure that, particularly, the trees were appropriately mulched and fertilised to promote growth and, second, pruned so that they did not impact any of the building façade of the Company's proposed development. Four matters arose out of this evidence and the subsequent submissions concerning the location and maintenance of these trees. These issues were separate from, and not related to, issues in contention as to planning and amenity issues concerning these proposed trees. The four matters were:

Establishment of a maintenance regime for this landscaping (including the trees);

How access was to be effected to this area of the common property (along the northern boundary where the trees would be located), it being the agreed position that the planter bed which would incorporate these trees and wrap around the front of the private open space of the unit UG01 would be part of the common property for which the Owners Corporation would bear responsibility (including maintenance responsibility);

Where, within this planter bed between the proposed building and the boarding‑house site, the trees would be planted; and

The absence of detail of understorey plantings and climbing plants on the northern retaining wall

Preparation and approval of a landscape maintenance plan.

During the course of the hearing on 10 January 2023, I made expressly clear to the legal representatives of the parties that, if the Company's proposed development was otherwise acceptable on broad matters of merit assessment, I would require the preparation of a landscape management plan to be the subject of a hearing and submissions before me as to its adequacy. In this regard, I said (Transcript 10 January 2023, page 140, lines 28 to 32):

HIS HONOUR: But I would require the maintenance plan to be an annexure to the conditions of consent if there’s going to be a consent so that I’m satisfied as to the terms of the maintenance plan but you don’t need to address it further now unless it arises in matters that Miss Gerathy wishes to raise. I still don’t have knowledge, at least as I understand it, as to what the floor‑to‑ceiling is.

Access to the planter bed for maintenance purposes

As a consequence of the extension of the width of the planter bed to the façade of the proposed building, what had been originally proposed on the earlier architectural plans but which was no longer possible, on the basis of the second plan in Exhibit L, was an access door to the previously proposed (and now necessarily removed) pathway along the southern side of the planter bed. As a consequence, to obtain access to the planter bed from the corridor leading to the earlier proposed door (a corridor which has two rows of storage spaces ‑ one row of such spaces on each side of the corridor ‑ in order to meet the ADG’s minimum storage requirements for the various apartments), considerable discussion took place in the questioning of the arborists and the landscape design experts during the course of their oral evidence on 10 January 2023 as to the appropriateness of the revised access via a hatch at this location.
Whilst the revised access for maintenance of the landscaping in the planter bed is rendered far from optimal as a consequence of the necessity to bring the edge of the planter bed to the south to abut the wall of the proposed building, I am satisfied that the proposed access at the end of the storage locker corridor can be adequate.
It is unnecessary to address this matter further. As I indicated to the advocates, I was satisfied that I had the power to order the northern end of that corridor to be converted into an external space by the relocation of a full‑height door a little to the south in that corridor and require the construction of a short set of steps to permit access through an opening which would be at least 1.5 metres high into the planter bed at the location where the original door had been located. Such a minor modification could be imposed by condition and would remove any necessity to use a stepladder for such an access purposes. The advocates indicated that they accept that that I had the power to mandate such a change and, as I understood it, Mr Staunton indicated that the Company would embrace such a change if the proceedings are led to that outcome as part of an approval for the Company's proposed development.
As a consequence, there are no landscape maintenance issues arising from this element of the Company's proposed development which could contribute to warranting refusal of the proposal.

Other landscaping issues in the north‑western corner

I have, above, addressed the question as to how tree location is to be presumed for the purposes of my general merit assessment relating to amenity issues and visual screening matters arising from those trees.
Although the landscaping plans showed that there is proposed to be groundcover plantings between the trees in the planter bed and that there is proposed to be climbing planting up the retaining wall, no detail is provided of this in either the landscape plan depictions of this area or in the architectural plans in their revised section form.
I am concerned that, given my conclusions elsewhere explained, the interlocking tree canopies of the Narrow Leaf Ash trees will, for at least more than two‑thirds of the year, effectively block all sunlight and natural light into this area ‑ raising potential issues of viability of any understorey or wall‑climbing plantings.
Although Section C of the original landscaping plans had depicted understorey planting and wall‑climbing plants in the area between the northern façade of the proposed building and the northern retaining wall with the boarding‑house site, Ms Horder accepted, during questioning from Ms Gerathy, that the architectural plans provided the appropriate dominant plans for the purposes of my consideration and that the landscaping plans would be subordinate. In addition, the landscaping plans did not accurately provide a depiction of, and lateral dimension for, the full elements of the now proposed retaining wall structure in Exhibit L upon which the Company now relied in support of its appeal.
It is clear, as Ms Gerathy submitted would be necessary, such additional planting would need to be provided in order to act as a basis for the proposition advanced by Ms Horder for the Company that such plantings, both understorey and up the northern retaining wall, would be necessary to contribute to what was said on behalf of the Company to be adequate amenity of outlook to the bedrooms of the three apartments whose bedrooms at the lowest level looked into the void between the Company's proposed building and the retaining wall to the north with the boarding‑house site.
This lack of any specific landscape evidence that such groundcover and wall‑climbing vegetation could be planted and would survive in this area, when subjected to such extent of shade as would fall on the planter bed and the wall from the canopy of the Narrow Leaf Ash trees (except during the winter period), is a matter of concern. The establishment of, and long‑term survival of, such vegetation would be a critical part of offsetting the visual impact on residents of the lowest level apartments in this vicinity when looking out the windows of the rooms adjacent to the planter bed.
Although not providing a determinative reason as to why this element of the Company's proposed development is unacceptable, the absence of this evidence, nonetheless, provides a modest contribution towards such a conclusion of unacceptability.

Amenity impacts on apartments UG01, UG02 and UG08

The Ballad of Reading Gaol is a lengthy poem written by Oscar Wilde in 1896. It is in six parts with multiple stanzas in each part. The third stanza of the first part is in the following terms:

I never saw a man who looked
With such a wistful eye
Upon that little tent of blue
Which prisoners call the sky,
And at every drifting cloud that went
With sails of silver by.

This sentiment is appropriate to be invoked in my consideration of the amenity (or lack thereof) of the northern elements of the proposed apartments at the lowest residential level, at the western end of the Company's proposed development.
Mr Shankar and Ms Gerathy both used the descriptor “subterranean” to describe apartments UG01, UG02 and UG08 (the sobriquet being applied to the lower level of those two that were split‑level apartments). Ms Gerathy also described the space between the façade of the Company's proposed development and the retaining wall to the boarding‑house site (including, by inference, the 1.8‑metre lapped and capped paling fence required by the boarding house development consent) as a “canyon”. It, too, is an apt description of this space.
The overall impact on those apartment elements at the lowest level in the northern corner of the Company's proposed development have unacceptably impacted amenity for the reasons described above. In addition, on the assumption that the Narrow Leaf Ash trees grow to the height and formation postulated by both the landscape architect experts and by Ms McKenzie, that growth of what amounts to a hedge of substantial canopy trees whose interlocking canopies will extend above the ceiling height of the ground, first and second level apartments with aspects to the canyon will be significantly adversely affected in their spaces (whether rooms or balconies) immediately adjacent to these trees.
Taking the total of all the adverse amenity impacts on these spaces into account, these provide a third, separate basis upon which it is necessary to refuse approval for the Company's proposed development. It is to be observed that the effective separation of the setback‑less vertical façade to the boarding‑house site retaining wall and the fence required on the boundary above exacerbates this. It is simply incapable of countering the claustrophobic canyon created by the proposed space ‑ a space which is, effectively, only three metres wide.
In this context, I have paid no heed (as the reasons from the northern corner of the proposal requiring its refusal are otherwise so overwhelming) to the fact that the Company's proposed development adopts no additional setting‑back at levels above the lowest two. Because of the otherwise engaged reasons founding the necessity to refuse the Company's proposed development, it is not necessary to explain why there has been no adequate reason given for this absence of upper‑level setbacks. Had the conclusion that the north‑western corner as proposed was only marginally deficient in a fashion warranting refusal (self‑evidently, this is not the position), consideration of this lack of setback at higher levels would have reinforced such a marginal conclusion.
Although apartments UG01 and UG02 are dual‑level, dual‑aspect proposed apartments, the impact on the habitable spaces of these two units is significantly compromised by the adverse impacts of the narrowness of the setback from the retaining wall for the boarding‑house site and the fact that the consequent near obliteration of natural light to the rooms facing into the canyon so created for the majority of the year is unacceptable. A similar unacceptable impact arises for those elements of apartment UG08 that face into the canyon.
It is also to be observed that those elements of apartments on Level 1, other than the upper element of apartments UG01 and UG02, would also have the amenity of their rooms and balconies facing into the canyon adversely affected over time as the proposed Narrow Leaf Ash trees grew to maturity.
In this regard, although the landscape architects proposed that pruning away from the façade of the Company's proposed development would only be needed for three years, pruning away from these balconies and windows would likely need to be maintained for longer, given that the canopies of the trees would, when viewed in profile consistent with the artistic impression of the trees’ canopies earlier reproduced and consistent with the photograph of a mature Narrow Leaf Ash tree, otherwise brush the windows of these apartments and intrude into the balconies of them. Although potentially able to be rectified through the maintenance plan elsewhere discussed, it is but a small additional symptom of the inappropriateness of the limited setback proposed on this boundary.
It is also to be expected that, if the Narrow Leaf Ash trees grow to maturity as described in the evidence of the landscape architects, there would also be some (perhaps more limited) impact on the amenity of those rooms and balconies of apartments on Level 2 facing into what will still be the upper reaches of the canyon space at this level, given that the top of the lapped and capped fence required for the boarding‑house site will be above ceiling height for apartments on this level of the proposed development.

Boundary setback width

The justification provided by Ms Horder for the three‑metre setback from the northern boundary with the boarding‑house site

In the first Town Planning Expert Joint Report, Ms Horder said:

In regard to the northern boundary setbacks, I note that Clause 3.5.2(a) requires a setback of 6m to up to fourth floor, then 9m the fifth and sixth floors.
The proposed development provides a setback of 3m for what is effectively non‑habitable portions of the building (due to orientation of windows perpendicular to the boundary high‑level windows wills and balcony screening) and 6m where any habitable windows face the boundary. I am of the opinion that the setbacks will achieve the implicit objective of Clause 3.5.2 due to the treatment of this façade which will assist in achieving visual privacy to adjoining development. Notably, the approved boarding house to the north has a 3 metre setback that has been matched by the proposal.

In her oral evidence, Ms Horder repeated her view that, in light of the three‑metre setback of the approved boarding house development to the north, a three‑metre setback for the Company's proposed development along the north‑western boundary of the site was appropriate.
In the first Town Planning Joint Expert Report, Mr Shankar said, with respect to this northern side boundary setback that:

Proposed northern side boundary building setback is 3m all throughout the 6 storey which is non‑compliant, compromises amenity of the residents within the subject property and the adjoining properties. Habitable rooms towards the north are proposed with blank walls or with high highlight windows with reduced access to light and ventilation.
There is no justification for a reduced northern side boundary setback for southern wing of the proposed building which has an interface with the service station and not the boarding house.
With regard to the DCP side boundary setback objectives, The desired spatial proportions are informed by setbacks, height and other controls. Reduction on side boundary setback does not justify achieving any of the above objectives.
In an attempt to achieve the objective of Clause 3.5 being privacy, the reduced setbacks, compromise the amenity of the proposed development.

The northern façade of the proposed building is one with a generally consistent (but a little variable as a consequence of its sawtooth nature) setback from the northern boundary with the boarding‑house site. As is shown on Sections B and G of the architectural plans, there is no differential setback at any level between the façade of the proposed building and the boundary with the boarding‑house site to the north.
As there is no justification, other than mimicry, for the non‑compliance with the otherwise required six metres’ setback from the boundary with the boarding‑house site for the lowest four residential levels of the proposed building, nor any different reason advanced as to why the otherwise additional setback at the fifth residential level and the one above should not be required, there is no valid planning reason that provides an excuse for this aspect of the Company's proposed development.
In the complete absence of any social housing contribution being provided by the Company's proposed development, the only conclusion available to be drawn is that, with respect to this aspect of the proposed built form and its significant departures from what would otherwise be the reasonably expected dimensions of its permissible and expected building envelope, this simply provides a further aspect demonstrating that this proposed building would be an overdevelopment of the site reflecting an unacceptable desire to maximise development yield in a fashion that ought not be tolerated by granting consent to this proposal.

Conclusion on the north‑western element of the proposal

For the reasons set out above, I am satisfied that the north‑western element of the proposed development is also unsatisfactory and that its deficiencies are such as to warrant refusal of the Company's proposed development on this basis alone.

Orders

The orders of the Court are:

The appeal is dismissed;

Development Application No DA65/2021 for the construction of a residential apartment building at 1 Gatacre Avenue and 1‑5 Allison Avenue, Lane Cove, is determined by the refusal of development consent;

The exhibits, other than Exhibit L, are returned; and

Costs, other than costs already subject of existing costs orders, are reserved.

**********

Annexure A

Annexure B

Annexure C

Annexure D

Annexure E

Annexure F

Decision last updated: 13 July 2023

Medium Neutral Citation:	Gatacre LC Pty Ltd v Lane Cove Council [2023] NSWLEC 35
Hearing dates:	16 August, 29 and 30 November, 1 and 2 December 2022 and 10 January 2023
Date of orders:	13 July 2023
Decision date:	13 July 2023
Jurisdiction:	Class 1
Before:	Moore J
Decision:	See orders at [266]
Catchwords:	DEVELOPMENT APPEAL ‑ proposed residential apartment building in R4 zone at interface with R2 zone ‑ steeply sloping topography ‑ development site at the top of the slope ‑ visual impact on immediately adjacent residences ‑ visual impact on immediately adjacent residences unacceptable ‑ setback from site of adjacent approved boarding house in R4 zone ‑ setback from site of adjacent approved boarding house in R4 zone unacceptable ‑ extent of proposed excavation adjacent to boarding‑house site combined with reduced setback inadequate for proposed landscaping ‑ proposed landscaping adjacent to boarding‑house site combined with extent of excavation results in unacceptable amenity impacts on a number of proposed apartments ‑ multiple separate reasons to refuse development consent ‑ appeal dismissed ‑ development consent refused
Legislation Cited:	Apartment Design Guide Environmental Planning and Assessment Act 1979, s 4.15(3A) Land and Environment Court Act 1979, ss 34 and 38(2) Land and Environment Court Rules 2007, r 3.7 Lane Cove Local Environmental Plan 2009, Land Use Table and cll 4.3 and 4.6 Lane Cove Development Control Plan 2010, Parts C and J State Environmental Planning Policy 65 ‑ Design Quality of Residential Apartment Development, cll 6A and 30 and Sch 1
Cases Cited:	Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 Botany Bay City Council v Premier Customs Services PtyLtd (2009) 172 LGERA 338; [2009] NSWCA 226 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Manzie v Willoughby City Council [1996] LEC 26 Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2018] NSWLEC 191 Stannards Marine Pty Ltd v North Sydney Council [2022] NSWLEC 99 Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167
Category:	Principal judgment
Parties:	Gatacre LC Pty Ltd (Applicant) Lane Cove Council (Respondent)
Representation:	Counsel: Mr M Staunton/Mr J Farrell (Applicant) Ms K Gerathy, solicitor (Respondent) Solicitors: Minter Ellison (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	273374 of 2021
Publication restriction:	No