Goldfinch Build Pty Ltd v Liverpool City Council

[2022] NSWLEC 1166

Land and Environment Court

New South Wales

Medium Neutral Citation:

Goldfinch Build Pty Ltd v Liverpool City Council [2022] NSWLEC 1166

Hearing dates:

10 and 11 November 2021

Date of orders:

1 April 2022

Decision date:

01 April 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application no DA-29/2021 seeking development consent for the demolition existing structures, consolidation of the lots and construction of a multi-dwelling development consisting of nine (9) dwellings with basement parking and Strata Subdivision at 6 Goldfinch Street and 5 Gal Crescent Moorebank is determined by granting consent to the application subject to the conditions in Annexure A.

(3) The exhibits are retained.

Catchwords:

DEVELOPMENT APPEAL – multi dwelling housing – residential amenity – acoustic and visual privacy – overshadowing – public interest - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Liverpool Local Environmental Plan 2008, cll 1.2, 2.3

Texts Cited:

Liverpool Development Control Plan 2008

Category:

Principal judgment

Parties:

Goldfinch Build Pty Ltd ACN 643149526 (First Applicant)
CJN Corporation Pty Ltd ACN 643667814 (Second Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicant)
A Pearman (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2021/134630

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an Appeal against the deemed refusal of a development application DA-29/2021 seeking development consent for the demolition of existing structures, consolidation of the lots and construction of a multi-dwelling development consisting of nine (9) dwellings with basement parking and Strata Subdivision (Proposed Development) at 5 Gal Crescent Moorebank, legally described as Lot 22 of DP224165 and 6 Goldfinch Street Moorebank, legally described as Lot 29 of DP224165 (the Site).

2. The parties rely on the Joint Expert Report file 8 November 2021 prepared by Josephine Maejiirs, Town Planner for the Applicant and Emmanuel Torres, Town Planner for the Respondent (JER) (Ex 4).

3. Draft/Proposed Conditions of Consent were filed by the Respondent on 15 November 2021 (Ex 5) and the Applicant tendered an additional condition requiring that prior to the issue of the Construction Certificate, amended plans are to be provided to Council relocating the basement stairs from outside Unit 6 to outside Unit 4, providing for a Stair-Lift in the stairs, and relocating the garden bed from outside Unit 4 to outside Unit 6 (Ex K).

4. Three (3) objectors as listed in the List of Objectors (Ex 6) gave evidence and the Respondent tendered written submissions as part of the Respondent’s Bundle of Documents Volume 2 at Tab 11 (Ex 3). The objector’s concerns will be dealt with under Contention 3 which relates to the public submissions received by the Respondent in relation to the Proposed Development.

5. This case is about whether the multi dwelling proposed development achieves a high level of residential amenity and whether the adjoining neighbours are afforded an appropriate level of privacy.

6. The Respondent contends that the Proposed Development should be refused because a high level of residential amenity is not achieved and therefore the objective of the R3 Medium Density Residential zone is not achieved. The Respondent’s case is that “The Site is simply too narrow for the Proposed Development and there are significant amenity impacts arising from the pedestrian walkway to access units 2 to 6.” (Transcript, 11 Nov 2021, p 168 at 45)

7. The Site is comprised of two adjoining land parcels. The proposed consolidation of two lots north and south is compared with the adjoining property at 8-10 Goldfinch Street, which was a consolidation of lots east and west. The Proposed Development provides basement carpark access and street access to 6 dwellings from Goldfinch Street and at grade garage carpark access and street access to 3 dwellings from Gal Crescent.

8. The Site has a combined total land area of 1,421.73m2. It is rectangular in shape with 18.29m frontages on Goldfinch Street (north) and Gal Crescent of (South). Part 3.6 of the Liverpool Development Control Plan 2008 (LDCP 2008) provides controls for Multi Dwelling Housing (Villas and Townhouses). In the R3 and R4 zones and Section 2 Subdivision, Frontage and Lot Size requires a minimum lot width of 22m and a minimum lot size of 1,000m2 for multi-dwelling housing. Section 4 of Part 3.6 of the LDCP 2008 states that:

“It has been identified within the Liverpool City Council area that there is a shortage of small, affordable townhouse developments. This section is intended to provide controls which will enable townhouse development on lots less than the standard 22 m, providing all controls are followed.”

9. The relevant extract from Section 2 of Part 3.6 of the LDCP 2008 reads as follows:

“Section 2: Lot Size and Width

The minimum lot size for multi dwelling housing is 1,000m2. Where development pursuant to section 4 is proposed, the minimum lot size shall be 650m2.

The minimum lot width for multi dwelling housing is 22m. Where development pursuant to section 4 is proposed, the minimum lot width shall be 18m.

Note: The amalgamation of land parcels into larger development sites is encouraged as this will result in better forms of housing development and design.”

10. An aerial photograph depicting the Site as it currently exists is provided in the Statement of Facts and Contentions (SOFAC) at Figure 1:

^{Figure 1: Aerial photograph of the Site, outlined in white}

11. The Respondent accepts that the combined land total is in excess of the standard 1,000m2 minimum lot size for multi-dwelling housing, however the Respondent says that the Proposed Development “is above it in the wrong configuration or in an undesirable configuration” (Transcript p38 at par 17). The Respondent contends that as a result of the narrow width of the Site, “there are various impacts which flow, and those town planning impacts are as a result of the pedestrian walkway accessing units 2 to 6, and how they impact upon 8 to 10 Goldfinch and also on number 7 Gal Crescent, because of the elevated walkway and the opportunity for “… noise, overlooking, light spill, unacceptable amenity impacts.” (Transcript p 3 at par 35). In opening, the Respondent explained that the LDCP 2008 controls and objectives will be referred to “explain why a larger site, east-west, is preferable to the long, thin, narrow elongated lots north and south” (Transcript p 38 at par 5). The Respondent refers the Court to the aim of the Liverpool Local Environmental Plan 2008 (LLEP) at cl 1.2(m) to ‘enhance the amenity and positive characteristics of established residential areas’.

12. On 20 October 2021, pursuant to a Notice of Motion, the Applicant amended the Proposed Development, and the following orders were made:

“1. Notice of motion filed 15 October 2021 is granted.

2. The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of Liverpool City Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the applicant amending the development application DA-29/2021 filed with the Court on 13 May 2021 by Notice of Motion.

3. The respondent, Liverpool City Council, as the relevant consent authority, is to lodge the amendment of the development application on the NSW planning portal within 7 days of the date of this order and notify the applicant after it has been lodged.”

13. The Court notes that the following documents were uploaded onto the NSW Planning Portal on 11 November 2021:

1. Architectural Drawings Rev G

2. Engineering Plans prepared by MBC Engineering dated 11 October 2021

3. Landscape Plans

4. Waste Management Plan dated 27 October 2021

5. Privacy Screen Plan

6. BASIX Certificate

14. The Court notes further that:

1. Liverpool City Council as the relevant consent authority pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), agrees to the Applicant amending the Proposed Development by the Strata Plan being Plan of Subdivision of Lots 22 and 29 in DP224165 dated 9 November 2021 (Ex E).

2. The Applicant has uploaded the Plan of Subdivision onto the NSW Planning Portal on 11 November 2021 and filed it with the Court on 11 November 2021.

15. The contentions are particularised in the SOFAC filed 8 June 2021 (Ex 1) and the Respondent relies on the inconsistency of the Proposed Development with the LDCP 2008, part 3.6 Multi-dwelling housing (villas and townhouses) in the R3 and R4 zones contained in the Respondent’s Bundle of Documents Volume 1 (Ex 2).

16. The Applicant’s case is that the Proposed Development, a multi-dwelling development on two amalgamated parcels of land which is zoned R3 medium density residential, complies with all development standards of the LLEP and complies with the relevant controls set out in the LDCP 2008, and as such, development consent should be granted for the Proposed Development. The Applicant submits that the Proposed Development has amalgamated the Site and has created a larger development site being more than twice the development site size required for an 18m frontage site, and has resulted in a better form of development and design. As such, the Applicant’s case is that it has “on all fours complied with not only the minimum lot size for an 18 m frontage, but also this esoteric requirement to amalgamate sites to have larger development areas.” (Transcript p 50 at par 20-25)

17. The Applicant submits that the amenity of an R3 Medium Density Residential zone area is different to the level of amenity expected in a low density residential zone, and in opening submits that “despite what the residents have expressed in their objections and verbally and the DCP encouraging us to concentrate on the existing character, the zone objectives for this zone, established as long ago as 2008, have identified this area for medium density housing.” (Transcript p 48 at par 10).

18. The Respondent confirmed with the Court that contention 4 regarding insufficient information as to engineering issues is resolved following the provision by the Applicant of drainage modelling.

19. The Applicant relies on amended plans and documents listed in par 2 of the Affidavit of C Gough filed 15 October 2021, for which leave was granted in October 2021.

20. The Court notes that:

1. Liverpool City Council as the relevant consent authority has agreed, under cl 55(1) of the EPA Regulation, to the Applicant amending the development application DA-29/2021 by relying on the following:

1. The documents listed in paragraph 2 of the Affidavit of C Gough filed 15 October 2021; namely:

1. Architectural Plans Revision G dated 14 October 2021 prepared by Campbell Hill Group Pty Ltd (Exhibit A);

2. Engineering Plans Revision D dated 11 October 2021 by MBC Engineering (Exhibit B);

3. Landscape Plan Revision G dated 14 October 2021 prepared by Campbell Hill Group Pty Ltd;

4. Survey Plan dated 17 February 2021 prepared by CCC Surveying (Exhibit D)

2. Draft Strata Plan (Exhibit E)

3. Waste Management Plan dated 27 October 2021

4. Privacy Screen Detail (Exhibit E)

5. BASIX Certificate

2. The parties have lodged the amendment of the development application on the NSW Planning Portal on 11 November 2021.

3. The Applicant filed with the Court the amendment to the development application.

Consideration of the contentions

21. The Respondent raises three contentions in the SOFAC, and I will consider these in turn below.

Does the Proposed Development provide a high level of residential amenity? (Contention 1 – R3 Medium Density Residential zone objective)

22. The Respondent contends that a high level of residential amenity for future residents within and on adjoining properties is not achieved nor maintained by the Proposed Development. There are two aspects to this contention. Firstly, the Respondent raises concerns about the amenity of future residents and secondly, is the concern raised about the amenity impacts on adjoining neighbours. An extract from the particulars in the SOFAC reads as follows:

“The Proposed Development is likely to result in adverse amenity impacts to neighbours as a result of the following proposed design departures from the character of the local area:

• Units 2 to 6 have private access at ground level through individual front doors facing the side boundary and may adversely impact the privacy and acoustic amenity of 8 to 10 Goldfinch Street.

• The building configuration makes access for residents of Units 2-6 to and from the basement carparking area to be strenuous for the number of stairway risers to be negotiated and circuitous route to the front door. The natural tendency would be to stand the car to the street frontage to load/unload passengers and groceries which will be unsafe.

The resulting building form with side entrance and a basement driveway is not in keeping with the existing character of the local area. Access for future occupants of Units 2-6 would be more in keeping with the character of the area if it were designed as a single internal, secure point of entry, which provides internal access to units facing the internal driveway similar to the newly completed multi dwelling on 8-10 Goldfinch Street or other multi dwelling developments around the area.”

23. It is agreed that multi-dwelling housing is a permissible use within the R3 Medium Density Residential pursuant to LLEP.

24. The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone (cl 2.3(2) LLEP). It is relevant to note that this clause is subject to other provisions of the LLEP (cl 2.3(4) LLEP).

25. The relevant objective of the R3 Medium Density Residential zone in the Land Use Table of the LLEP, which the Respondent contends that the Proposed Development does not achieve, is the objective “to ensure that a high level of residential amenity is achieved and maintained.”

26. The Respondent is concerned that the building configuration makes access for residents of Units 2-6 to and from the basement carparking area to be strenuous for the number of stairway risers to be negotiated and circuitous route to the front door. The Respondent submits that the natural tendency would be for a future resident of the Proposed Development to stand the car to the street frontage to load/unload passengers and groceries, which will be unsafe. I will refer to amenity impacts for future residents of the Proposed Development as internal amenity.

27. The Respondent is concerned about whether units 2-6 of the Proposed Development having private access at ground level through individual front doors facing the side boundary and may adversely impact the privacy and acoustic amenity of units at the neighbouring land at 8 to 10 Goldfinch Street, Moorebank. I will refer to amenity impact on adjoining properties as external amenity.

28. The Applicant submits (Transcript 162) that the level of amenity in an R3 zone is different from the amenity that one would expect in a lower density zone. “With the additional dwellings on a property, with the additional vehicles and additional people, the question of residential amenity must be influenced by these factors.” (Transcript p 163 at par 7)

29. The Applicant submits that the Applicant is entitled to submit to the Court that the development otherwise is consistent with the balance of the relevant objectives of the R3 Medium Density Residential zone (Transcript p 162 at par 39). There is no evidence to the contrary and I accept the Applicant’s submission that the proposed development is otherwise consistent with the balance of the objectives of the R3 Medium Density Residential zone.

30. I will now consider the evidence regarding the R3 Medium Density Residential zone objective “to ensure that a high level of residential amenity is achieved and maintained.”

Evidence of the experts in relation to whether the Proposed Development will provide a high level of residential amenity.

31. The experts agree to disagree that the proposed development will provide a high level of residential amenity. (JER at par 4.1.2, Ex 4).

32. One of the concerns raised by Mr Torres in the JER regarding internal amenity, that is the amenity for future residents, is as follows:

“ET is of the opinion that the proposed layout is likely to result in a sub standard residential quality and amenity for future residents as they are made to travel significant horizontal and vertical distances from the parking area to their livings rooms. In a worst scenario, the occupant of Unit 2 with basement parking allocation of bay 1 will have to negotiate a horizontal distance of 60m and a vertical distance of 4.3m through a series of stairs and ramps. As this may be seen as a healthy activity, it may not be the case for people carrying groceries, with young kids on prams and nonambulant people.”

33. Ms Maejiirs is of the opinion that Contention 1 is addressed, and the site should not be restricted of its potential to achieve medium density housing. Ms Maejirs states that she disagrees with Mr Torres’ opinions listed in the JER regarding Contention 1 because all issues raised in contention 1 have been addressed through the amended architectural plans.

34. In relation to the internal amenity (amenity of future residents), Ms Maejiirs explains in the JER that she is of the opinion that “the resulting building form of a basement parking and side entrances is a product of the medium density urban fabric with many medium density developments have basement carparking or as per next door with a common central driveway. These features are emerging within the urban R3 zone areas with suitable visual transition between medium density to low-density residential areas, where one could not expect a level of amenity of a R2 zone while achieving the desired intent and objective of the medium density locality.” (JER, par 4.1.2)

35. Notwithstanding that it is Ms Maejiirs’ opinion in the JER that the use of stairs to travel from the basement carpark to each of the units of the Proposed Development is a “healthy alternative to walk and use the stairs is encouraged and is appropriate”, the Applicant tendered an additional condition of consent requiring that “prior to the issue of the Construction Certificate, amended plans are to be provided to Council relocating the basement stairs from outside Unit 6 to outside Unit 4, providing for a Stair-Lift in the stairs, relocating the garden bed from outside Unit 4 to outside Unit 6” (Ex K).

36. Accordingly, Mr Torres, in oral evidence, confirms that he agrees that if the stairs are relocated to outside number 4 of the Proposed Development, the concern about amenity for future resident to walk 60 metres is no longer applicable (Transcript p 125 at par 15).

37. Although not particularised in contention 1 in the SOFAC, there was evidence regarding the solar access to Unit 8 which is raised as part of contention 2(g), which I address now as it is relevant to internal amenity for future residents of the Proposed Development.

38. Contention 2(g) in the SOFAC contends that the Proposed Development does not comply with the LDCP 2008, Part 3.6 - Multi Dwelling Housing (Villas and Townhouses) in the R3 and R4 zones (19 February 2014), with the Section 5 - Setbacks wherein it states the following relevant Objective:

“a) To set dwellings back from the street and adjacent properties to provide reasonable space for landscaping, private open space and solar access.”

39. Although objective a) is not expressly referred to in the JER, Mr Torres expresses the opinion that the private open space (POS) of Unit 8 does not receive sufficient solar access (JER, par 4.8.2) whereas, Ms Maejiirs confirms in the JER that “as per the Combined Architectural Drawings, Revision G, dated 14 October 2021 on Drawing 10 of 25, showed Unit 8 receives sufficient solar access on June 21, at 9am and 10am and 3pm.” (JER, par 4.8.2)

39. This was explored during cross examination and the evidence of Ms Maejiirs is that the POS of unit 8 receives the following solar access:

1. 73% at 9 am;

2. 48% at 10 am; and

3. 27% at 11 am.

41. Ms Maejiirs explains that although unit 8 does not receive the three hours solar access to 50% of its POS from the calculation, “in terms of assessing it on planning grounds, they do receive sufficient solar access, having one of the big advantages, being oriented north to south, and their living area is directly onto the private open space so they will receive sufficient solar access.”

42. I accept the opinion of Ms Maejiirs regarding solar access to unit 8 being sufficient because of the combined solar access calculations and the northern aspect advantage of the living area and POS. On balance, on the evidence that the Proposed Development complies with the LLEP and LDCP 2008 controls, I find that having one dwelling out of 9 dwellings that does not achieve technical solar access compliance is not a reason to refuse the granting of development consent for the Proposed Development. I reach this conclusion because notwithstanding technical solar access non-compliance for unit 8, the Proposed Development achieves the objective of setting the dwellings back from the street and adjacent properties to provide reasonable space for landscaping, POS and solar access.

43. The Respondent’s closing submissions (Transcript p 168 – 160) focus on the external amenity impacts, that is that “there are significant amenity impacts arising from the pedestrian walkway to access units 2 to 6. There are clearly unacceptable amenity impacts on the adjoining neighbours, both 8 to 10 Goldfinch and number 7 Gal Crescent.” The impacts identified by the Respondent are noise and overlooking impacts, and unacceptable impacts in terms of solar amenity. The Respondent also raises the concern that while ‘the stairs are trying to resolve one issue in terms of the amount of travel required from the basement up to each of the dwellings 2 through to 6, but it’s creating other impacts, for example compromising the walkway now from north to south, creating an obstruction in the middle of the walkway (Transcript p 137 at par 10). I am satisfied that the plan (Ex 8) referred to by the Respondent during cross examination of Ms Maejiirs is a conceptual plan only (Transcript p 133 at par 50) and that the wording of Ex K will allow for final dimensions to be drawn prior to the issue of the Construction Certificate as proposed by the Applicant.

44. I conclude that the contention 1 as to internal amenity is resolved by the amended plans relied on by the Applicant, as identified by Ms Maejiirs and consistent with the evidence of Mr Torres.

45. In relation to the amenity impact on adjoining neighbours, Ms Maejiirs identifies in the JER that:

“The amended plans will reduce noise impacts, reduce overlooking and block light spill onto Units 1-4 of No.8-10 Goldfinch Street and these units will continue to maintain the enjoyment of their POS and enhance residential amenity through the following amendments provided:

“• the proposed screening trees along on the western boundary will adequately obscure visibility into POS of Units 1-4 of No.8-10 Goldfinch Street, as the trees proposed reach 3m at maturity.

• the proposed trees will provide effective screening to ensure their POS is private and screen from overlooking whist maintaining adequate solar access.

• the ongoing maintenance of these screen planting by way of condition of consent will ensure its permanent use and not just a temporal measure.

• the proposed 1.8-metre-high boundary fence combined with the screen trees will absorb additional noise along the proposed walkway.

• the screen planting will so soften the appearance of the colourbond fence and soften the appearance of internal driveway.

• the proposed 1.5m aluminium screening proposed to be installed on porch of Units 2 to 6, provide a privacy screen on the balustrade of each terrace at ground level,

• the proposed frosted windows at first floor level of the western elevations,

• sight view plans have been provided on the plans showing the effectiveness of the screens. plantings and fence.”

46. Mr Torres is of the opinion that “while partial mitigation is achieved, the proposed aluminium screening are slotted and do not provide sufficient screening to mitigate visual intrusion. In addition, planting is not an acceptable method of screening as these are temporal measures. So are paling fencing which require maintenance to retain its opacity” (JER). I note that the Privacy Screen now proposed by the Applicant is of a more ‘solid’ structure addressing that aspect of Mr Torres’ concern.

47. Mr Torres is of the opinion that “while there have been solutions offered to mitigate intrusion of privacy via direct visual contact, these solutions do not address the noise and light spill issues that also impacts on the adjoining development as a result of the proposed site layout.” (JER)

48. This aspect of external amenity, that is the impact of the Proposed Development on the amenity of adjoining neighbours, is also addressed in relation to overshadowing in Contention 2 which I come back to later in this judgment.

49. In general terms, Ms Maejiirs is of the opinion that the Proposed Development is appropriately considered orderly development as it achieves the underlying purpose of the zone objectives to promote medium density housing forms. Further, it is her opinion that the proposed development fully complies with all relevant Development Standards in the LEP being Lot Size, Building Height and Floor Space Ratio. (JER, Ex 4)

50. I accept the Applicant’s submission that the Proposed Development complies with all relevant development standards in the LLEP and that as the Respondent does not raise any non-compliances, the Court can be satisfied that the LLEP requirements are met by the Proposed Development.

51. Mr Torres raises character as a concern in relation to Contention 1 in the JER. Mr Torres is of the opinion that “the resulting building form created by the side pedestrian semi-public entrance and the driveway to the basement parking is not in keeping with the existing character nor the emerging character as exemplified by the newly constructed adjoining development”, namely the property at 8-10 Goldfinch Street. (JER at par 4.2.1).

52. The Applicant submits in opening that the medium density residential zoning is relevant as both the council and the objectors submit that the proposed development is out of character with the existing local character, whereas the R3 zone objectives clearly requires development to be compatible with a medium density development, not a low-density environment.” (Transcript p 48 at par 15)”

53. Mr Torres also accepts that the word ‘character’ in the relevant section of the LDCP 2008 refers to the desired future character rather than the existing character (Transcript p 147 at par 35).

54. The Respondent refers the court to the LDCP 2008 Site Analysis Plan for multi-dwelling houses (p 202 Ex 2) and submits that this demonstrates the sort of development that is seen at 8 to 10 Goldfinch Street, “where there’s a central driveway, there’s a central access point for houses for people to come and go – so pedestrians would be using that portion as well […] That is what the council gives as a guide in terms of amalgamating land parcels. So that’s an amalgamation of parcels east-west, not north-south.” (Transcript pp 39-40 at par 42)

55. I will come back to amalgamation in Contention 2(c), (e) and (f) below.

Conclusion and findings

56. I have considered the evidence of the experts, the concerns of the objectors and the submissions of the parties in relation to objective of the R3 Medium Density Residential zone to ensure that a high level of residential amenity is achieved and maintained.

57. I am satisfied that the amenity of future residents is appropriate as proposed by the Applicant with the amended plans and conditions of consent. Accordingly, this contention is not a reason to refuse the grant of development consent to the Proposed Development.

The relevant controls for Multi-dwelling housing (villas and townhouses) in Part 3.6 of the LDCP 2008 (Contention 2)

58. Contention 2 is essentially about compliance with the terms of Part 3.6 of the LDCP 2008 which provides controls for multi-dwelling housing in the Liverpool local government area. The contention itself is broader and applies to the whole of the LDCP and reads as follows:

“The Proposed Development does not achieve satisfactory compliance with the relevant controls as stipulated in the LDCP 2008 pursuant to section 4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). Outlined below are various non-compliances with the LDCP 2008.”

59. It is trite to say that the consent authority is required to take into consideration any relevant provisions of the LDCP 2008 pursuant to s 4.15(1)(a)(iii) of the EPA Act. Contention 2 of the SOFAC raises a number of concerns in the particulars.

60. Firstly, in particular contention 2(a), landscaping is raised in relation to the LDCP 2008, Part 1 General Controls for all Development and the concern is that the proposed trees will impact stormwater drainage infrastructure. The expert Town Planners at p 6 of the JER agree that the relevant control is LDCP 2008 - Part 1 General Controls for all Development, Section 3 – Landscaping and Incorporation of Existing Trees. Item 3.4 - Landscape Specifications, No. 7 states that: Trees shall be planted well clear of underground services or overhead wires. Trees shall be planted in general accordance with the following minimum distances from buildings:

“- Small trees less than 6m mature height - 2m

- Medium trees 6 – 15m mature height - 3m

- Large trees more than 15m mature height - 4m”

61. Ms Maejiirs recommends that this can be addressed by a condition of consent, where proposed trees in Unit 1, 2, 3, 4, 5 & 6 shall be planted well clear of underground services or overhead wires. Trees shall be planted in general accordance with the following minimum distances from buildings: - Small trees less than 6m mature height - 2m - Medium trees 6 to 15m mature height - 3m - Large trees more than 15m mature height - 4m.

62. I accept Ms Maejiirs’ evidence that the amended Landscape Plan, Revision G, dated 14/10/2021 was prepared by Campbell Hill Group Pty Ltd, and checked by M.N. who is a registered Landscape Architect.

63. I am satisfied that contention 2(a) is accordingly resolved by the imposition of a condition of consent as recommended by Ms Maejiirs at par [61] above. I have added this condition to the agreed Draft Proposed Conditions of Consent at condition number 94 and have renumbered the balance of the conditions.

64. Contention 2(b) relates to the Waste Management Plan requirements of the LDCP 2008 - Part 1 General Controls for all Development, Section 25. I am satisfied that this contention is resolved by the Waste Management Plan dated 27 October 2021, filed with the Court on 11 November 2021, and I note that the agreed Draft Proposed Conditions of Consent includes at condition 7, a requirement to provide an updated Waste Management Plan prior to the issue of the Construction Certificate.

Contention 2(c), (e) and (f): Inconsistency with the LDCP 2008, Section 2 of Part 3.6: Subdivision, Frontage and Lot Size, Inconsistency with intent and objectives of the LDCP 2008 (18m lot frontage – section 4 of Part 3.6, LDCP)

65. The relevant control is the LDCP 2008, Part 3.6, Multi Dwelling Housing (Villas and Townhouses) in the R3 and R4 zones (19 February 2014), in Section 2: Subdivision, Frontage and Lot Size, which states:

“The minimum lot width for multi dwelling housing is 22m. Where development pursuant to Section 4 is proposed, minimum lot width shall be 18m.

Note: The amalgamation of land parcels into larger development sites is encouraged as this will result in better forms of housing development and design.”

66. I will address the reference to amalgamation in Section 2 of Part 3.6 of the LDCP 2008 first, and then I will consider the evidence in relation to compliance with Section 4 of Part 3.6 of the LDCP 2008.

67. The Site frontages on Goldfinch Street and on Gal Crescent are each 18.29m. The Applicant’s case is that the LDCP 2008 goes as far as to ‘encourage amalgamation’ and the Applicant relies on the offer to purchase evidenced in the undated letter from a Real Estate Agent offering a sum of money to each of the adjoining properties, number 4 Goldfinch and also 3 and 7 (Ex G).

68. The experts considered the letter of offer from GM Estates Real Estate (Ex G) regarding amalgamation and gave their opinions as to whether it was a genuine offer.

69. Mr Torres is of the opinion in the JER at par 4.4.2 that:

“the applicants failed to demonstrate genuine offer to amalgamate with adjoining properties by offering the letter from GM Estates Real Real estates confirming offers were made on 26/08/21 to purchase 4 Goldfinch Street and 3 and 7 Gal Crescent is not sufficient. For one, the offers were made by the applicants’ agent based on its own valuation which was not validated by an independent party. Secondly, there is no evidence of the letter of offer and negotiation and subsequent rejection. Clearly, the acceptable test and process established by the NSW Land and Environment Court was not followed in this particular case.”

70. Ms Maejiirs, on the other hand, is of the opinion that “the letter demonstrated genuine offer to purchase the property to then be able to amalgamate, but the offer was not taken up. Although the offer was not taken up, the current combined development sites comfortably exceed the minimum lot size being 1421.73 sqm or 142.1% larger than the minimum size. Combined with a depth of 77.7 metres there is ample depth and size to accommodate the proposed multi dwelling housing development.” (JER, par 4.4.2)

71. I accept the submission of the applicant that an offer was made to adjoining property owners to purchase their properties and that the offer was not accepted. Notwithstanding, the Proposed Development complies with the minimum lot width and minimum lot area controls, and is the result of an amalgamation. I note below in this judgment that Mr Torres agrees that the Applicant has the benefit of the 18 metre provisions in Section 4 of Part 3.6 of the LDCP 2008, and I accept the Applicant’s submission that having regard to that concession by Mr Torres, the Proposed Development cannot of itself be considered as ‘too narrow’.

72. I am satisfied, for these reasons, that the Proposed Development should not be refused on the basis of the failure to amalgamate lots on an east-west orientation.

73. Contention 2(e) provides that the Proposed Development does not comply with the intent of Section 4 - Townhouse and Villa Development on 18m frontage block of the LDCP 2008 - Part 3.6, Multi Dwelling Housing (Villas and Townhouses) in the R3 and R4 zones (19 February 2014), wherein the background states the following:

“It has been identified within the Liverpool City Council area that there is a shortage of small, affordable townhouse developments. This section is intended to provide controls which will enable townhouse development on lots less than the standard 22 m, providing all controls are followed.””

74. The SOFAC particularises this contention by noting that Section 4 of LDCP 2008 is invoked because minimum frontage of 22m is not met, however the contention is that the Proposed Development has failed to satisfy all the Objectives of Section 4 of Part 3.6 of the LDCP 2008. The objectives of Section 4 of Part 3.6 of the LDCP 2008 are as follows:

“a) To provide for a wide range of medium density dwellings, including two-bedroom dwellings.

b) To ensure compatibility with the surrounding development density by requiring acceptable site area requirements and setbacks.

c) To provide for accessible dwellings.”

75. The experts agree that the proposed development complies with Controls 1 to 4 of Section 4 of Part 3.6 of the LDCP 2008 (as specified in the SOFAC) (JER as par 4.5.1 and 4.5.2). However, the experts do not agree that the proposed development complies with the objectives (par 4.5.3, JER).

76. The Proposed Development provides 4 x 2 bedroom units (Units 3, 4, 5 and 6) out of the total 9 units proposed and these units are under 80m2. This complies with the first Objective.

77. Mr Torres has the opinion that the proposed development does not meet the Objective c) above. He asserts that the Drawing 14 of the Architectural Drawings, Revision G, dated 14 October 2021 (U1-U6 Ground/First/Roof) shows that no accessible dwellings are provided.

78. Ms Maejiirs confirmed that “accessible dwellings are provided through the amended drawings for Units 3, 4, 5, & 6 with each unit having a total floor area of 70.30m2. The four units face the western elevation with accessible entry from the common walkway. Each unit has a car space within the basement and not carports. Due to the narrow site layout, proposing a carport will create a dominant element within the front setback and streetscape. Having car space in the basement prevents this” (JER at par 4.5.3). Ms Maejiirs concedes in cross examination that she has not addressed whether the Proposed Development is accessible to the transport routes such as the nearest bus stop which she says is about 600m away.

79. I also note the proposal by the Applicant to relocate the basement access and to include a stair lift, thereby eliminating the need to use stairs. This amendment is proposed by the Applicant to be effected by way of an additional condition requiring that prior to the issue of the Construction Certificate, amended plans are to be provided to Council relocating the basement stairs from outside Unit 6 to outside Unit 4, providing for a Stair-Lift in the stairs, and relocating the garden bed from outside Unit 4 to outside Unit 6 (Ex K).

80. In any event, Mr Torres’ evidence in cross examination, which I accept, is that there is not a requirement to provide accessible dwellings in this development “because it is not defined anywhere in the DCP or LEP, and you can only go to the two SEPPs, which the “accessible” has been defined, and that is the SEPP affordable housing and SEPP seniors living.” (Transcript p 143 at par 32)

81. The Applicant relies on an unspecified decision of Robson J to the effect that “If a development complies with the controls, the objectives can be deemed to be satisfied” (Transcript p 48 at par 40). In particular, as the planners have advised in the JER (Ex 4) that the controls have all been complied with, the Applicant submits that “the Court can either assume that the objectives have been met, or alternatively, that the objectives are of little relevance” (Transcript p 48 at par 45). Mr Torres accepts as a planning proposition that if the control is met, it is deemed that the objectives have been realised (Transcript p 146 at par 5).

82. The Applicant submits that Mr Torres now states very clearly that the Proposed Development has the benefit of the 18 metre provision (Transcript p 165 at par 48) and the Applicant concludes that it can’t be submitted to the Court, having regard to that concession by Mr Torres (Transcript p 142 at par 31 to 38), that the development site is too narrow. (Transcript p 166 at par 5)

83. I am satisfied that the Proposed Development sufficiently satisfies objective c) of Section 4 of Part 3.6 of the LDCP 2008, being the provision for accessible dwellings to the extent that the LDCP 2008 may include this as an objective in relation to multi-dwelling housing in the R3 Medium Density Residential zone pursuant to the LLEP.

84. For these reasons, I conclude that contentions 2(c), (e) and (f) are therefore resolved.

Are the adjoining neighbours afforded an appropriate level of privacy? (Contention 2(d) and (g))

85. I come back to the aspect of contention 1 which relates to external amenity impacts of the Proposed Development (objective of R3 Medium Density Residential zone of the LLEP), which also applies in contention 2(d) in the context of the LDCP 2008, Part 3.6, section 3 Site Planning. The concern about overshadowing and privacy also arises in Contention 2(g) in the context of Setbacks (section 5, Part 3.6).

85. Contention 2(d) reads as follows:

“(d) The Proposed Development does not comply the LDCP 2008, Part 3.6, Multi Dwelling Housing (Villas and Townhouses) in the R3 and R4 zones (19 February 2014), in Section 3: Site Planning on the following relevant controls:

(1) Site layout should consider, and as far as possible minimise overshadowing, acoustic and visual intrusion on neighbouring and on-site dwellings.

(2) The siting of dwellings shall be orientated to maximise solar access to both external courtyards and internal living areas. The Respondent contends that the Proposed Development will have adverse amenity impact of overshadowing on the adjoining private open spaces of units 1 to 4 of the property to the west of the Site at 8-10 Goldfinch Street Moorebank.”

87. The Applicant submits that the overshadowing is generated by the dividing fence, rather than from the building of the Proposed Development and relies on Drawing 10 and Drawing 21 of the Architectural plans.

88. The Applicant provided Drawing 10 in a larger version in the Applicant’s Bundle (Ex E) and relies on this Drawing to illustrate solar access and the impact of the existing Colorbond fence on the solar access to the private open spaces of 8-10 Goldfinch Street. Drawing 10 shows Winter Solstice at 21 June 9 am, 12 pm – courtyards of 8 to 10 Goldfinch Street. At 9 am the area is totally in shadow, at 12 pm the courtyards are entirely in sunlight.

89. I provide an extract of Drawing 29 which the Respondent referred to during cross examination below:

^{Figure 2: Existing Fence Overshadowing 21 June – 10 am}

90. The Applicant sent somebody out to properly measure on the Site, the side boundary between 8 to 10 Goldfinch and the Site. They constructed a model and provided shadow diagrams for the existing fence, what impact that will have, and to allow the Court to be advised as to the additional impact brought about by the development. (Transcript p 55 at 35)

91. The relevant control relied on for contention 2(g) is LDCP 2008, Part 3.6 - Multi Dwelling Housing (Villas and Townhouses) in the R3 and R4 zones (19 February 2014), with the Section 5 - Setbacks wherein it states the following relevant objectives:

“a) To set dwellings back from the street and adjacent properties to provide reasonable space for landscaping, private open space and solar access

b) To set back dwellings from one another to provide visual and acoustic privacy

c) To provide setbacks that minimise impacts on adjoining neighbours by minimising overshadowing and overlooking.”

92. I have already dealt with objective a) of Section 5 above in relation to internal amenity for the future residents under the topic of Contention 1. Here, the focus is on the external amenity impacts of the Proposed Development, that is the matters provided in objectives b) and c) of Section 5 of Part 3.6 of the LDCP 2008.

93. The experts do not agree that the Proposed Development does not achieve Objectives b) and c) above. (JER at par 4.8.2)

94. Mr Torres notes that Objective b) has been discussed in great detail on visual and acoustic privacy in Contention 1 in the JER.

95. In relation to Objective c) relating to overshadowing, Mr Torres has the opinion that:

“the Combined Architectural Drawings, Revision G, dated 14 October 2021 on Drawing 10 – Solar Study shows that the POS of Units 1,2,3 & 4 of 8-10 Goldfinch Street are overshadowed by the proposed development from 9 to 11am on June 21. It appears that the same POS areas are overshadowed by the Units 1 to 4 of 8-10 Goldfinch Street themselves and for most parts of the day do not receive adequate solar access. It is noted that on the same drawing provided (Drawing 10), there are images provided that are not relevant to the assessment. For example, shadows at 9am, 12pm & 3pm on March/September 21 and June 21 at 4pm. In addition, there are images that relevant images that are no included including shadows at 1, & 2pm on 21 June.”

96. I have considered the shadow diagrams Drawings 28 to 31 Rev I dated 11 November 2021 (Ex H) which incorporates and measures the impact of the existing boundary fence, as well as the existing internal fences of units 1 to 4 at 8-10 Goldfinch Street, the shadow diagram at plan 11 (Ex E) which only measures the impact of the Proposed Development, and the evidence of Mr Torres and Ms Maejiirs during the hearing.

97. It is agreed that at the winter solstice, the private open spaces of units 1 to 4 at 8-10 Goldfinch Street does not currently achieve solar access until 10 am and even then, it is a very small amount of solar access represented by the ‘green triangles’ in Fig 2. The Respondent submits that ‘the fact that it achieves such a little amount of solar access, that access is valuable.” (Transcript p 174 at par 7)

98. Ms Maejiirs was cross examined on the solar access to the private open spaces to the adjoining units at 8-10 Goldfinch, and reference was made to the clothes lines in those private open spaces and the small green triangles or the 10 am sliver of sunlight in some of the rear yards (Transcript p 133). The Applicant submits that ‘no matter what we do with the fence, those clotheslines that Ms Pearman pointed out will never get any sun on the winter solstice” (Transcript p 165 at par 41). Mr Torres agrees that the relevant private open spaces of 8-10 Goldfinch Street are severely compromised from overshadowing because of the level on the eastern side of the fence and the excavation that has taken place. (Transcript p 118 at par 15-25)

99. The Respondent appropriately refers to the assessment of the Proposed Development as a ‘balancing exercise’ (Transcript p 169 at par 21). On balance, having carefully considered the existing solar access to the private open spaces of the units of 8-10 Goldfinch Street, adjacent to the Site, I accept the evidence that those private open spaces are already severely compromised and that any new boundary fence will have some very minor impact which I conclude, would have been a likely and probable result of any new development on the Site in accordance with the development standards and controls of the LLEP and LDCP 2008. For these reasons, contentions 2(d) and (g) relating to overshadowing are not substantiated by the evidence in order to warrant the refusal of the grant of consent to the Proposed Development.

100. I note that in relation to the concern of light spill, there is a draft agreed condition of consent that any exterior light must be designed in such a way that there is no light spill onto the adjoining property (consent condition number 84, Ex 5).

101. I will now consider the evidence regarding visual and acoustic privacy impacts on the adjoining neighbours.

102. I accept that as a result of the Applicant’s proposal to relocate the stairs from the basement to unit 4, the only persons who would go past the pathway towards units 5 and 6 would be the occupants of units 5 and 6, which reduces and limits any potential acoustic impact of pedestrian use of the pathway. I note that Mr Torres was concerned that 6 dwellings would access the pathway, whereas the proposal is now for only two dwellings to access the relevant parts of the pathway.

103. In relation to overlooking or visual privacy, I note the numerous mitigation measures, acknowledged by Mr Torres, namely, providing privacy screens on the balustrades of each terrace for units 2 to 6 of the Proposed Development, frosted windows on all western-facing windows, a garden bed that will push back pedestrian access, where it is located, 800mm from the boundary and screened planting which will be conditioned to be maintained. I have also considered the site line analysis (Drawing 21 in Ex A) in relation to visual privacy of the adjoining neighbours.

104. I note Mr Torres’ evidence that the ability to look into the adjoining property is severely limited by the boundary fence, the planting, the privacy barrier on each balcony and the total frosting of all windows facing towards the west. (Transcript p 85 at par 5)

105. The Respondent raised a number of visual privacy concerns which are argued to result from the relocation of the basement stairs to unit 4. The Respondent also raised concerns about the potential use of the front porch of unit 6 as POS, thereby resulting in visual and acoustic impacts on the adjoining neighbour, in particular at 7 Gal Crescent.

106. Ms Maejiirs’s evidence is that unit 6 already has a dedicated POS located off the living area and that it was her opinion, which I accept, that although capable of being used a POS, the front porch is unlikely to be used as POS because firstly, it is located at the front door from an access way, and secondly because the floor plan of unit 6 depicts a bathroom near the front door, whereas the living area is located at the rear adjacent the dedicated POS.

107. I am satisfied on balance that the visual and acoustic impacts are minimal and otherwise appropriate for an R3 medium density residential development adjacent to another R3 medium density residential development.

Landscaped Area and Private Open Space controls, Section 6, Part 3.6 LDCP 2008 (Objective 2(h)

108. This contention relates to the following controls of Section 6 Private Open Space Controls:

“3. Private Open Space must be directly accessible from the main living area.

4. A minimum of 50% of the Private Open Space must receive 3 hours of hours of sunlight between 9:00am and 5:00pm on 21 June.”

109. The concern particularised is that “accessibility from the main living areas and alfrescos to the designated POS areas of the 9 units cannot be determined as the submitted Landscape Plan does not specify RL’s on the POS levels.” The Respondent submits that the amended plans are still not clear as to what the level drop is from the private living space of units 1 and 2 of the Proposed Development down to the courtyard area, and the POS noting that there is a drop of some 800mm at one point. (Transcript p 44 at par 25).

110. In the JER, at par 4.9.2, the experts agree to disagree in relation to POS. Ms Maejiirs confirms in the JER that POS is directly accessible from all the main living areas and confirms that Combined Architectural Drawings, Revision G, dated 14 October 2021 on Drawing 11 of 25, and Drawing 07 of 25 shows levels of the POS areas.

111. During cross examination, Mr Torres acknowledges that the levels on the private open spaces are in fact provided on the plans (Transcript p 143 at para 37-40). Accordingly, contention 2(h) is no longer a concern.

Contention 2(i) - Section 7 Cut and Fill, Building Design, Streetscape and Layout, Part 3.6 LDCP 2008

112. The final concern in Contention 2 relates to the controls in section 7 of Part 3.6 of the LDCP 2008, which relate to maximum continuous unarticulated wall length and presentation to the street frontage. The relevant Objectives and Controls under section 7 are extracted in the SOFAC as follows:

“Building Design and Appearance:

Objectives

a) To encourage designs that will enhance the character of the neighbourhood.

b) To promote variation of building facade and design.

c) That the building enhances the streetscape through the use of suitable built form design and landscaping.

d) To ensure buildings address all street frontages.

e) To discourage garages and in particular garage doors, from visually dominating the streetscape.

Controls

1. A sidewall must be articulated if the wall has a continuous length of over 10m.

2. The entrance of each dwelling shall be emphasised.”

113. The Respondent particularises the contention in the SOFAC as follows:

“• The building façade of Units 7 and 9 have a continuous unarticulated length of 13m. In addition, entry of each of the Units 7, 8 and 9 facing Gal Crescent are not emphasised as the main doors are behind the setback line and garage doors. The front façade at the ground level is dominated by roller shutter doors and entrance driveways.

• The Goldfinch Street frontage is not in character with the existing streetscape of the basement driveway dominating the frontage and creating a tunnel-like presence on the residential streetscape. In addition, the roller shutter doors are recessed and located to the foot of the basement driveway and creates a space that is not exposed to surveillance and will be a safety risk residents and adjoining neighbours.”

114. The experts consider this contention in the JER at par 4.10.2 and they disagree that the proposed development achieves the Objectives and complies with the controls prescribed above.

115. The Respondent, in opening referred the Court to Drawing 1 in Ex A. The Respondent submits that in respect of the Goldfinch Street frontage of the Proposed Development, there is a basement car park which is not characteristic of the area.

116. Mr Torres, in the JER expresses his opinion that the proposed Goldfinch Street frontage presentation is “not in character with the existing streetscape due to the basement driveway dominating the frontage and creating a tunnel-like presence on the residential streetscape, normally expected where residential flat buildings are found. In addition, the basement roller shutter doors are recessed and buried at the foot of the driveway, and creates an unwelcoming and unsafe space.

117. Ms Maejiirs’ opinion in the JER is that “the basement garage below street level provides a convenient, safe, and sufficient space for vehicular manoeuvrability, whilst being visually unobtrusive.”

118. The Applicant submits and Mr Torres agrees that basement car parking is not something that is prohibited in any of the council’s controls (Transcript p 102 at par 48). Mr Torres also agrees that Part 3.6 of the LDCP 2008 which specifically deals with multi-dwelling housing makes reference to basement carparking (Transcript p 148 at par 45). The Applicant also notes that Unit 1 has a window that overlooks the entrance to the basement providing some comfort as to surveillance.

119. As referred to earlier in this judgment, Mr Torres concedes that the relevant character assessment is the desired future character, and I am satisfied that the façade of the Proposed Development onto Goldfinch Street will have an appearance of a single dwelling house. Accordingly, the evidence does not support this aspect of the contention.

120. The Respondent submits that in respect of the presentation of the Proposed Development to Gal Crescent, there are two doors, a garage door for unit 9 and the actual main door is set back “and that’s contrary to what is required under the DCP” (Transcript p 44 at par 50).

121. Mr Torres gives his opinion in the JER that “the other end, along Gal Crescent the combined front building façade Units 7,8 & 9 as shown on the Combined Architectural Drawings, Revision G, dated 14 October 2021 on Drawing 20 – Consolidated Elevations – Consolidated Southern Elevation, is predominated by garage doors and the main entry doors to the front entry of individual units are recessed by 4.1m behind the setback and garage door lines. This outcome is the exact opposite of what is inscribed in Objectives c) & d) above.”

122. Mr Maejiirs confirms in the JER that “the amended plans provide articulation to the façade of Units 7, 8, and 9 fronting Gal Street with the garage setback 5.5m from the front setback having the recessed look with the top balcony forward of the garage creating a less dominance of the garage to the street. The seamless timber garage door garage is integrated with the façade and appear as an architectural feature in the street adding to the streetscape. The timber finish provides quality finish with a combination of beauty and durability. Therefore, the garage doors are not visually dominating the streetscape. The added distinct change of materials, location of windows and extended roof treatment enhances the built form design.”

123. During cross examination, Mr Torres acknowledges that although each dwelling in Gal Crescent has its own garage door, the Proposed Development has 3 dwellings fronting Gal Crescent and there are two garage doors (Transcript p 149 at par 10 to 15), and Ms Maejiirs describes the seamless garage door as follows:

“it ties in with the architectural features of the dwelling and with types of developments that has to have access from the street frontage. Yes, it kind of softens and doesn’t give that impression of a garage, that bulk, from the streetscape.”

124. Although Mr Torres’ interpretation is that ‘the garage door should be behind the building line, so you would have a prominent entrance to the building. The buildings here are actually recessed like 4 or 5 metres behind the building line and so the pedestrian entry if you like into the dwellings are not distinguishable’, Mr Torres does acknowledge that technically, the garage door of the Proposed Development is in fact set back behind the front building alignment of the building. (Transcript p 150 at par 17 to 38)

125. On balance, I conclude that the street frontage presentation of the Proposed Development to Gal Crescent is a satisfactory design outcome and that the entrance is sufficiently emphasised.

126. The Respondent referred the Court to Drawing 20 of Ex A, consolidated elevations to consider the wall of some 13m in length and submits that the council is of the opinion that the articulation is not sufficient and reads as a long blank wall. (Transcript p 45 at par 15)

127. Mr Torres is of the opinion in the JER that “Units 7 and 9 do not comply to Control 1. As shown on the Combined Architectural Drawings, Revision G, dated 14 October 2021 on Drawing 18 – U7-U9 Ground/First/ Roof these units have a continuous unarticulated length of 13m.”

128. During cross examination, Mr Torres gave evidence that he accepts the articulation of the walls on the ground level but not the first floor. (Transcript p 153 at par 9). Ms Maejiirs draws the Court’s attention to the windows on the first floor and the mixture of cladding and brick material (Transcript p 154 at par 11).

129. I am satisfied that the relevant sidewalls of the proposed Development, while measuring over 10m, are sufficiently articulated and I conclude that the control is complied with.

130. Overall, I reach the conclusion as to contention 2 that having carefully considered the evidence and having undertaken the balancing exercise, on balance, the evidence before the court does not support the Respondent’s contention as particularised to warrant the refusal of the grant of development consent to the Proposed Development for the reasons given above.

Is the Proposed Development in the public interest? (Contention 3)

131. Contention 3 relates to the public submissions received by the Respondent in relation to the Proposed Development. It is relevant that those submissions do not respond to the amened plans before the Court.

132. The Court heard from three objectors (Transcript pp 18 to 26), and I summarise their concerns as follows:

1. The impact of unit 6 as to overlooking. For reasons given earlier, I am satisfied that the amended plans provide sufficient mitigations to significantly limit opportunities for overlooking including the 1.8m dividing fence, no balcony on the first floor, windows are frosted or opaque and privacy screen on front entry porch.

2. Concerns regarding the changing nature of the street. The Applicant acknowledges that the area is in transition, and I accept the submission that the Proposed Development is responsive to the rezoning of the area in 2008 by the Council to R3 Medium Density Residential.

3. Traffic and parking concerns where a total of 9 dwellings are proposed with 6 with basement parking fronting Goldfinch Street and 3 with garage parking fronting Gal Street. The Respondent does not raise any traffic or parking contentions and I am satisfied that the Proposed Development complies with the relevant planning controls.

4. Solar access was presented in the context of overshadowing caused by the adjacent recent multi-dwelling development at 8-10 Goldfinch Street, and I note that these concerns are not applicable to the Proposed Development.

133. The Town Planning experts also addressed the public interest in the JER.

“4.11. Contention 3: Public Interest

4.11.1. The experts agree that the relevant satisfactory compliance with the provisions of Section 4.15(1)(d)&(e) of the EP&A Act that states: Matters for consideration--general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.

4.11.2. The experts disagree that the matters raised in the notification period of 14 days from 20 April 2021 to 5 May 2021 in line with the Liverpool Community Participation Plan 2019 wherein 9 submissions were raised are grounds for refusal.

• ET has the opinion that the issues raised in the submissions are planning considerations including high density/overpopulation, narrow street and not enough on streetcar parking, increased local road traffic and safety concerns due to the road geometry, isolating properties that results in devaluation, disruption during construction, substantial regrading and changing of ground elevations that result in overshadowing, overlooking into backyards and privacy concerns, among others.

• ET is of the opinion that the adjoining resident’s concerns on parking provision has merit. The required carparking provision in the LDCP is 20 spaces which includes 16 for residents (1.5/2br x 4 units, 2/3br x 5units) and 4 visitor parking (1 / 4 dwellings). The Combined Architectural 13 Drawings, Revision G, dated 14 October 2021 on Drawing 13 – Basement / Pathway Plan & Drawing 07 – Sediment Control Plan show a total of 18 carparking (12 on the basement and 6 on each Units 7,8, & 9 on tandem.

• JM is of the opinion that parking and traffic arrangements satisfy council's requirements. The proposed development accommodates visitor parking on site and that most, if not all, nearby properties have off-street parking. Council raised no issues relating to external traffic movements.

• JM is of the opinion the proposal provides a well-designed affordable townhouse development and is in the public interest and is consistent with the overriding aims of the Environmental Planning & Assessment Act 1979, LLEP and LDCP 2008.

• JM is of the opinion there is no evidence to support any of these issues being grounds for refusal.”

134. The Court, as the consent authority, in determining a development application, is to take into consideration the public interest (s 4.15(1)(e) EPA Act).

135. I accept that the concerns raised have been considered and addressed by the Applicant’s amended plans and conditions of consent, and I conclude that there is no reason to refuse the Proposed Development on the basis of public interest.

Conclusion and findings

136. For the reasons given in this judgment, I conclude that development consent for the Proposed Development can be granted.

137. I now turn to the agreed Draft/Proposed Conditions of Consent filed 15 November 2021 (Ex 5) and an additional condition proposed by the Applicant as to relocating the basement (Ex K).

138. As I have considered the merits of the Applicant’s proposed additional condition earlier, I conclude that the Conditions of consent should be amended to include the Applicant’s proposed condition, accordingly I have inserted the ‘contested condition’ at condition number 33 and have renumbered the balance of the conditions. I have also included the recommended condition regarding tree planting (refer to par [63]).

Orders

139. The Court orders that:

1. The appeal is upheld.

2. Development application no DA-29/2021 seeking development consent for the demolition existing structures, consolidation of the lots and construction of a multi-dwelling development consisting of nine (9) dwellings with basement parking and Strata Subdivision at 6 Goldfinch Street and 5 Gal Crescent Moorebank is determined by granting consent to the application subject to the conditions in Annexure A.

3. The exhibits are retained.

……………………….

E Espinosa

Commissioner of the Court

(Annexure A) (946563, pdf)

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Decision last updated: 01 April 2022