Kaplan v Waverley Council

[2021] NSWLEC 1013

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kaplan v Waverley Council [2021] NSWLEC 1013

Hearing dates:

Conciliation conference on 7 December 2020; Hearing on 7 December 2020

Date of orders:

12 January 2021

Decision date:

12 January 2021

Jurisdiction:

Class 1

Before:

Bindon AC

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Waverley Council Development Application No. DA-318/2019 for alterations and additions to a secondary dwelling at 28 Macdonald Street Vaucluse is refused.

(3) The exhibits are returned with the exception of Exhibits A, B and 3.

Catchwords:

DEVELOPMENT APPLICATION – secondary dwelling – DCP compliance

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

State Environmental Planning Policy Affordable Rental Housing 2009

Waverley Local Environmental Plan 2012

Cases Cited:

Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 revised - 01/10/2004

Zhang v Canterbury City Council [2001] NSWCA 167

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020)

Waverley Development Control Plan 2012

Category:

Principal judgment

Parties:

Deborah Kaplan (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
M Kaplan – (Agent) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2020/83727

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 appeal filed with the Land and Environment Court (the Court) on 16 March 2020 under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Waverley Council (Council) of Development Application DA-318/2019 (the DA). The DA seeks consent for alterations and additions to an existing studio at the rear of 28 Macdonald Street Vaucluse involving the construction of an additional level to form a two-storey secondary dwelling. In exercising the functions of consent authority the Court has the power to determine the modification DA pursuant to ss 4.15 and 4.16 of the EPA Act.

The site and existing development

2. The DA relates to a 695.6m² allotment of land identified as Lot 1 in DP 82195 at 28 Macdonald Street Vaucluse (the site). The site is located on the northern side of Macdonald Street approximately 15 metres to the east of its intersection with Marne Street. The site sits on top of a cliff and enjoys uninterrupted views of the Pacific Ocean to the east. It is bounded by the Pacific Ocean to the east, Macdonald Street to the south and adjoining dwelling houses to the west (26 Macdonald Street) and north (11 Marne Street).

3. The site is occupied by:

1. a two storey brick rendered detached dwelling house, with a hipped tiled roof (the principal dwelling),

2. a secondary dwelling in the form of a detached single storey studio located in the north-west corner of the site (the existing studio), and

3. a swimming pool to the east and lawn area to the north-east of the principal dwelling.

4. The existing studio was approved by Council in June 2010 as part of a development application (reference DA-175/2010) for alterations and additions to an existing dwelling that included an extension to the first floor level of the principal dwelling and the construction of a freestanding studio at the rear. A copy of the stamped approved plans for DA-175/2010 was included in the Council’s bundle of documents (Folios 16-18) that became Exhibit 2 in the proceedings. An amendment to that development consent (DA-175/2010A) was approved by Council in April 2012 to permit alterations to the principal dwelling, including an extension of the garage and enclosure of the first level balcony facing the street. Plans of the amendment were included as an attachment (Annexure D) to the Joint Report of the expert town planners that was tendered as Exhibit 3.

Background

5. The DA was notified by Council between 1 – 15 October 2019, resulting in the receipt of one submission by way of objection on behalf of residents of the neighbouring property to the north at 11 Marne Street. On 22 November 2019 the DA was refused by Council staff under delegated authority.

6. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act). I presided over the s 34AA conciliation conference held on 7 December 2020. Due to the Court’s COVID-19 Pandemic Arrangements Policy (March 2020) restrictions in place at the time, and as agreed between the parties, there was no site view as part of the s 34AA conciliation process and no oral submissions were taken, although the objector’s submissions, including photographs, were tendered as part of Council’s bundle of documents (Ex2) and as Exhibit 4.

7. As the parties failed to reach an agreement as to the terms of a decision that would be acceptable to them I terminated the s34AA conference and a hearing under the provisions of s 34AA(2)(b)(i) of the LEC Act commenced on the afternoon of 7 December 2020 and concluded later that day. At the hearing, the parties agreed I could rely on the discussions held during the preceding s34 conciliation conference.

The Applicant’s representative

8. The hearing commenced with confirmation of the Applicant’s representative. Mr Patterson for Council pointed out that the Applicant was Mrs Deborah Kaplan who was represented by her husband Mr Michael Kaplan, who was not recognised by the Court. On 17 March 2020 the Court had granted leave under the provisions of s 63 of the LEC Act for Ms Anja Morgan, the Applicant’s expert town planner, to appear as the Applicant’s authorised agent at that time. The Court had not received a request from the Applicant to seek the Court’s leave to change her authorised agent, and the parties agreed Ms Morgan could not act in that role and be an independent expert providing evidence to the Court.

9. Mr Kaplan advised that Mrs Kaplan would provide that day a signed written request to the Court seeking leave for Mr Kaplan to appear as her agent in the proceedings. With the agreement of the parties, and conscious of the fact that the Applicant did not have independent professional legal representation, I allowed Mr Kaplan to represent the Applicant in the interim. The written request consistent with the requirements of s 63 of the LEC Act and Court rules and signed by the Applicant was provided to the Court via email later on 7 December 2020.

The proposed development

10. The DA as lodged with Council related to a set of plans prepared by Bevan Boss Design, drawing numbers DA01 to DA05 Revision A, dated September 2019 (the original DA plans). The DA proposed alterations and extensions to the existing studio involving:

1. a second storey addition, with low gradient east-west sloping skillion roof, containing a bedroom, second bathroom, storeroom and stair access between the levels, and

2. a new awning at ground level for the full extent of the eastern elevation.

11. As noted on the original DA plans, the secondary dwelling has a gross floor area (GFA) of 53.2 m² and a height of 5.6m. The total FSR for the site, based on the GFA for both the principal dwelling and the proposed secondary dwelling, is nominated on the DA plans as 0.49:1. The setbacks of the secondary dwelling from the western side boundary and northern rear boundary of the site are less than 1m at ground level and increase to 1.35m at the first floor level.

12. In preparing for the s 34AA conciliation conference the town planning experts, Ms Anja Morgan for the Applicant and Mr Jeff Mead for the Council, (the town planners) had conferred and prepared a “Joint Experts Report” undated, filed with the Court on 18 November 2020 (Joint Report) that became Exhibit 3 in the proceedings.

13. In the Joint Report Ms Morgan recommended further design changes. She wrote (at paragraph 5.2):

“The second storey addition does impact on the streetscape as viewed from the Marne Street. In particular the square structure of the second storey addition could be redesigned to further reduce visual impacts from Marne Street. In my opinion, a design which incorporates a similar roof structure as the primary dwelling would be more visually appealing when viewed from Marne Street.”

14. In an attempt to address the visual impact and roof design issue referred to by Ms Morgan, the Applicant provided amended plans, firstly for the purposes of the s 34 conciliation conference and then as plans for which the Applicant sought leave to rely upon in the hearing. The Council did not object to the amended plans, and I granted leave for the Applicant to amend the DA accordingly. The amended plans are those prepared by Bevan Boss Design, referenced as drawing numbers DA01 to DA05, Revision B, dated November 2020, that became Exhibit A in the proceedings (amended plans).

15. The amended plans changed the roof form of the secondary dwelling from a low gradient skillion roof to a roof that was pitched on the northern, southern and western sides for a distance of approximately 1m before levelling out. The amended plans refer to the proposed upper level as a “new attic level” and Mr Kaplan and Ms Morgan described the secondary dwelling as now having a Mansard roof form.

The Planning controls

16. State Environmental Planning Policy Affordable Rental Housing 2009 (‘SEPP ARH’) applies to the DA. It aims to facilitate the delivery of new affordable rental accommodation, in part by allowing self-contained secondary dwellings in conjunction with another (principal) dwelling. To qualify, the new rental accommodation needs to be modest, in that the total floor area can be no more than 60m², the total FSR cannot exceed that permitted in the relevant local environmental planning instrument and the land accommodating the new dwelling cannot be subdivided. The proposal is not inconsistent with the relevant provisions of the SEPP ARH and this was not in contention between the parties.

17. The Waverley Local Environmental Plan 2012 (WLEP) is the relevant local environmental planning instrument applying to the land. Under the WLEP the site is located within the R2 Low Density Residential Zone (R2 Zone). There is no dispute that the alterations and additions to the existing secondary dwelling are permissible with consent in the R2 Zone. The development standards in the WLEP applying to this site are:

1. the cl 4.3 height of buildings standard, in this case of 8.5m, and

2. the cl 4.4 FSR standard, of 0.5:1.

18. There was no dispute that the development complies with the height of buildings development standard, although compliance with the maximum permissible FSR standard was in contention.

19. The Waverley Development Control Plan 2012 (WDCP) is also relevant to this matter. Mr Patterson drew the Court’s attention to the WDCP provisions in Part B12 Design Excellence; in Part C2 Low Density Residential Development relating to general objectives (cl 2.0), setbacks (cl 2.2), streetscape and visual impact (cl 2.3), visual and acoustic privacy (cl 2.5), solar access (cl 2.6), views (cl 2.7) and in particular to the specific controls relating to secondary dwellings and ancillary buildings found at cl 2.16 of Part C2.

The Contentions

20. The Council’s Statement of Facts and Contentions filed with the Court on 27 April 2020 and tendered as Exhibit 1 (SOFC) relate to the original DA plans. The SOFC lists seven contentions that Council claimed as grounds for refusal of the DA.

Impacts on amenity – privacy, views and solar access (part Contention 4)

21. In the Joint Report the planning experts agreed, with respect to Contention 4 – Unacceptable Amenity Impacts, that the proposal:

1. was unlikely to result in any adverse acoustic amenity impacts on surrounding properties beyond that which could be expected from use of the secondary dwelling and yard space;

2. will not result in adverse (visual) privacy impacts on surrounding properties;

3. would not significantly impact the views of the ocean or city from the second storey bathroom window at 11 Marne Street that overlooks the site, “applying the Tenacity Principles” and that the “negligible loss of water view above the pitched roof of the principal dwelling … would not be a reason to warrant refusal of the application”;

4. was unlikely to impact views enjoyed from the rear yard and balconies of 11 Marne Street as the secondary dwelling is setback behind any potential rear view lines;

5. will not result in view loss from the ground floor kitchen window of 11 Marne Street;

6. the additional shadow cast “.. is relatively minimal and would not warrant refusal of the application”; and

7. the perception of light, sky views and appearance of building bulk near the boundary would be all impacted from the kitchen window at 11 Marne Street.

22. I concur with the town planning experts’ assessment of the impacts of the proposal on privacy (acoustic and visual), views and solar access, as agreed between them, and taking into account the shadow diagrams (part of Exhibit A) and photographs of views from within the adjoining property at 11 Marne Street that were provided as part of Joint Report (Ex 3) and objector’s submissions (Ex 4).

23. Whilst the amenity of the adjoining properties at 11 Marne Street and 26 Macdonald Street will be impacted to a degree, the privacy, view and shadow impacts are within the bounds of what is acceptable and are not of such significance as to warrant refusal of the application. The agreed resolution of these particular amenity impacts, however, is not determinative in favour of the application.

24. The contentions, often overlapping, that remained unresolved between the town planning experts and continued to be pressed by the Council were:   

1. Contention 1 – FSR, being non-compliance with the FSR development standard at cl 4.3 of the WLEP.

2. Contention 2 – Height, being non-compliance with the provisions of the WDCP’s height controls for secondary dwellings in Part C2, cl 2.16 (f) and the resultant adverse visual impact of the proposal when viewed from the street and adjoining properties. There is some overlap between this contention and (4) and (5) below.

3. Contention 3 – Setbacks of the first level extension, being inconsistency with the DCPs provisions for setback controls for low density residential development (in Part C2, cl 2.2).

4. Contention 4 – Outlook and visual bulk. There is overlap between this contention and (2) above.

5. Contention 5 – Design Excellence, including bulk and scale and inappropriate response to the existing context, being inconsistency with the DCP’s provisions for design and context analysis (in Part B12, cll 12.1 and 12.2) and for low density residential development (in Part C2, cl 2.0). There is some overlap between this contention and (2) and (4) above.

6. Contention 6 – Public Interest, being the undesirable precedent for future development and the ability to rely on DCP provisions.

FSR (Contention 1)

25. In the Joint Report the town planners agreed, at paragraph 1.1, that

“… the additional FSR calculation provided by Bevan Ross Design dated October 2020 (Annexure B to the Joint Report) demonstrate compliance with FSR provisions. Notwithstanding, the experts are not aware of whether these plans are accurate ‘as-built’ plans as their source is unknown (ie based on survey, or measured on site). Assuming they are accurate, the contention would be resolved insofar as the FSR numeric. Bulk and scale issues remain in contention…”

26. The quantum of GFA, upon which the FSR calculation is based, as set out in Annexure B to the Joint Report, is 338.5m² representing a FSR of 0.49:1. The maximum permissible GFA, based on the agreed site area of 695.6 m² and the WLEP FSR standard of 0.5:1 is 347.8m², a difference of 9.3m². Due to the doubts expressed by the experts, and as compliance with the development standard raises the jurisdictional issue of whether consent can be granted in the absence of a written request to vary the standard made pursuant to cl 4.6 of the WLEP, the veracity of the GFA measurements and FSR calculations was explored in the hearing.

27. Mr Mead confirmed he had considered additional information provided by the Applicant in the form of photographs of the interior of the primary dwelling’s stairwell and garage, copies of which were provided to the Court as part of a bundle of additional information tendered as Exhibit H. Based on that information he was satisfied the proposed development complied with the FSR standard.

28. Based on the evidence of the agreement between the town planners, and no evidence to the contrary, I find that the proposal complies with the FSR development standard.

Height of Secondary Dwelling (Contention 2)

29. The Council maintains that the proposed development should be refused “.. as it exceeds the maximum height limit (in the WDCP) for secondary dwellings that do not front a laneway and results in adverse bulk and scale impacts.” (SOFC – Contention 2).

30. The WDCP Part C2 cl.2.16 Objectives (a), (b, (d) and (e), and cl 2.16.1 Controls (c) and (f) for secondary dwellings that are of particular relevance are:

2.16 SECONDARY DWELLINGS AND ANCILLARY BUILDINGS

Objectives

(a)  To ensure secondary dwellings and ancillary development achieve acceptable levels of building design, amenity, landscaping, access and security.

(b)  To limit the bulk and scale of secondary dwellings and ancillary development.

(d)  To minimise the adverse amenity impacts of secondary dwellings and ancillary buildings on adjoining properties.

(e)  To ensure secondary dwellings and ancillary development enhances the streetscapes of laneways and primary streets.

Controls

2.16.1  Secondary Dwellings

(c)  Secondary dwellings are not to significantly impact upon the privacy and amenity of neighbouring properties.

(f)  Secondary dwellings that do not front a laneway are to be single storey only, with an overall maximum height of 3m.

31. The relevant WDCP C2 cl.2.3 Objectives (a) and (b) and Controls (a) and (d) for Streetscape and Visual Impact are:

Objectives

(a)  To enhance the built form by encouraging quality design that corresponds harmoniously with the surroundings.

(b)  To encourage and facilitate lower density residential accommodation of a high architectural and aesthetic standard, that acknowledges and responds to the architectural style, scale, materials and character of the existing built environment.

Controls

(a)  New development should be visually compatible with its streetscape context. It should contain or at least respond to essential elements that make up the character of the surrounding area.

(d)  Development must not dominate or erode the character of the streetscape, particularly when viewed from a public place such as parks, reserves, beach or the ocean.

32. The town planning experts

1. agree the proposal does not comply with the single storey and 3m height control in C2 cl 2.16.1(f) of the WDCP, and

2. agree that the development will not have an unacceptable visual impact from Macdonald Street, but

3. disagree about the acceptability of the visual impact from Marne Street.

33. In support of the proposed development Ms Morgan refers to the fact that it complies with the overall height of buildings development standard (of 8.5m) in the WLEP and, in her opinion, the visual impact of the development on the Marne Street streetscape is acceptable. This latter opinion is qualified by her statement at paragraph 2.7, that “A redesign discussed in Point 5.2 could reduce to (sic) impact on Marne Street and provide a better design solution.”

34. Mr Mead on the other hand points out (in paragraph 2.8) that the proposal results in a 2.6m (87%) height breach and the objectives in C2 cl 2.16 relating to secondary dwellings are quite different to the height objectives in the WLEP. Mr Mead expresses the view, at paragraph 2.8, that:

“The emphasis (in the WDCP) is on limiting height (‘to limit bulk and scale’). In my opinion that is because secondary dwellings are more often than not sited within rear yard areas where built form is expected to be less prevalent, and of smaller scale. This is directly related to minimising amenity impacts on neighbouring properties, but also to ensure that secondary dwellings … enhance streetscapes.”

35. In relation to streetscapes, Mr Mead says (at paragraph 2.10) “ .. whilst the building is set back from Marne Street beyond the garage of No.26 (Macdonald Street), and will be partially screened by conifers were they to remain over time, the structure will be clearly visible from the south-west looking across the yard of No. 26. The structure will be inconsistent with the pattern of lower scale rear yard development which exists on No. 26 and No. 28 (Macdonald Street) and that which is envisaged by the planning controls.”

36. I prefer the evidence of Mr Mead on this issue. The specific controls in the DCP for secondary dwellings require a particular focus for consideration by virtue of their specificity. The fact that the proposal complies with the more generic maximum height standard in the WLEP does not determine that the greater height permitted by the WLEP is to prevail or necessarily to be favoured over the WDCP height control regardless of the circumstances.

37. Under the provisions of s 4.15 of the EPA Act, as the consent authority when determining the DA, I must take into consideration the provisions of any relevant environmental planning instrument (s 4.15(1)(a)(i)) and any relevant development control plan (s 4.15(1)(a)(iii)) that apply to the land. With respect to development control plans s 4.15 (3A)(b) provides for flexibility in applying DCP controls if a development does not comply with those standards, as follows:

(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—

(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) …

38. Authority on the role of development control plans and the weight that should be given to them when considering development applications is found in the Court of Appeal decision Zhang v Canterbury City Council [2001] NSWCA 167 (Zhang) and the Land and Environment Court decision of McClelland CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 revised - 01/10/2004 (Stockland), in which his Honour refers to Zhang.

39. In Zhang, Spigelman CJ found at 71 – 73 and 75:

“71    The statutory power in s80 of the Act (now s4.16 of the EPA Act) to “determine a development application” by granting or refusing consent does not confer an unfettered discretion. It is subject to the obligation to “take into consideration” the matters identified in s79C(1) (now s4.15(1) of the EPA Act). This obligation is of a similar character to that which has been found to be imposed by a statutory obligation to “have regard to” identified matters.

72    In one such statutory context Mason J said:

“When subs (7) directs the Permanent Head to ‘have regard to’ the costs, it requires him to take those costs into account and to give weight to them as a fundamental element in making his determination”. ( R v Hunt; ex parte Sean Investments Pty Ltd(1979) 180 CLR 323 at 329 emphasis added).

73    In the case of a statute which empowered the court to make such order “as to it seems just and equitable having regard to: (a) … and (b) …”, Gleeson CJ and McLelland CJ in Eq said:

“… par (a) and par (b) prescribe the focal points by reference to which the discretionary judgment as to what seems just and equitable must be made. They are not merely two matters, or groups of matters, which take their place amongst any other relevant considerations.” ( Evans v Marmont (1997) 42 NSWLR 70 at 79-80 emphasis added).

75    The consent authority has a wide ranging discretion - one of the matters required to be taken into account is ‘the public interest’ - but the discretion is not at large and is not unfettered. DCP 23 had to be considered as a “fundamental element” in or a “focal point” of the decision making process. A provision so directly pertinent to the application for consent before the Council as was cl 4.0 of DCP 23 was entitled to significant weight in the decision making process but was not, of course, determinative.”

40. In Stocklands, at 87, McClelland CJ set out five principles relevant to the consideration of development control plans, that he summarised as follows:

• “A development control plan is a detailed planning document which reflects a council’s expectation for parts of its area, which may be a large area or confined to an individual site. The provisions of a development control plan must be consistent with the provisions of any relevant local environmental plan. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan. (emphasis added).

• A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation.

• A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied.

• A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies.

• Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property.”

41. With respect to s 4.15(1) of the EPA Act and applying Zhang:

1. The WLEP and the WDCP are both relevant statutory planning documents that I must take into consideration.

2. The WDCP is a “fundamental element” in or a “focal point” of the decision making process.

3. The provisions in the WDCP relating to secondary dwellings (Part C2 cl2.16 Objectives and cl 2.16.1 Controls) are so directly pertinent to the application that they are entitled to significant weight in the decision making process, but they not determinative.

42. In applying to this matter the first of the five principles in Stockland:

1. The WDCP is a detailed planning document which reflects the Council’s expectation for large parts of its area. It also reflects the Council’s expectations for particular categories of development, in this case low density residential development, and particular land uses or types of development within that category, in this case secondary dwellings.

2. The controls in cl 2.16.1 of the WDCP include a specific height ‘control’ that is less than the height of buildings development standard in the WLEP. It operates, as it may, to confine the intensity of development, in this case by confining building bulk and scale. The WLEP’s greater height standard does not “permit” a building up to 8.5m high it merely renders the greater height permissible, subject to other considerations as specified in cl 4.15 of the EPA Act.

3. Development for the purposes of a secondary dwelling that complies with the height control in Part C2 cl 2.16.1 of the WDCP would also comply with the height standard in the WLEP, and therefore is not inconsistent with it.

4. Nothing in the WDCP can or does prohibit development which exceeds the WDCP height control and complies with the WLEP height limit, that being a matter of discretion.

43. The third principle in Stockland is that significantly greater weight be given to a development control plan which has been consistently applied by a council, than one which has only been selectively applied. The Applicant introduced additional information on the Council’s application of the WDCP height controls for secondary dwellings.

44. An amended Statement of Environmental Effects (the amended SEE) (Ex G) added to the assessment table at page 14 notes in support of the non-compliance with the height controls in Part C2 cl2.16.1(f) that “The Council has varied 3m height control recently as per below figures”. The “below figures”, Figures 9 and 10 of the amended SEE, relate to a single development application in Roscoe Street Bondi. They show a single storey “painting studio” with a height of 3.3m. Ms Morgan in oral evidence confirmed she prepared the amended SEE and was aware of the Roscoe Street example.

45. The Applicant also tendered as part of the additional information in Exhibit H, at “Section 2” entitled “Other examples of DCP variances under current DCP scheme”. This refers to four development applications on properties outside the locality in which the subject site is located. Two of the development applications involve secondary dwellings or ancillary buildings that breach the 3.0m height control; the Roscoe Street Bondi example identified by Ms Morgan in the amended SEE and another in Bondi, and two that breach both the 3.0m height and the single storey control; one in Bondi Junction and one in Dover Heights. This information, which included simple and selective bullet point notes of comparison with the subject DA, had not been considered by the town planning experts when preparing their Joint Report, and Mr Mead had not considered it at all.

46. In oral evidence Ms Morgan suggested these examples demonstrate that Council has varied the height “where there is minimal impact on the neighbours.” She agreed, however, that she had not reviewed the site contexts or read the assessment reports of these examples, that each would have been dealt with on its own merits, that the subject site is unique, and that one would need to be careful in relying on this material. I concur with Ms Morgan on the latter two points.

47. Having considered the limited additional material in “Section 2” of Exhibit H tendered by the Mr Kaplan in support of the Applicant’s case, and the evidence of the planners, as well as the final submissions of both parties I am not satisfied that Council has undermined or compromised its WDCP controls, and certainly not to the point that the WDCP is not to be considered as a “fundamental element” in or a “focal point” of my decision making process. Put simply, the ‘other examples of DCP variances’ in Exhibit G carries no substantive weight in my determination of this matter.

48. In considering the directly pertinent WDCP provisions relating to secondary dwellings (Part C2 cl2.16 Objectives and cl 2.16.1 Controls) the purpose of the WDCP control in limiting the height of secondary dwellings to a single storey and not exceeding 3m is evident from the objectives set out in part C2, cl.2.16 of the WDCP. Of particular relevance are the objectives to limit the bulk and scale of the secondary dwellings and to minimise the adverse amenity impacts on adjoining properties. At two storeys the proposal fails to limit the bulk and scale of the development to an extent envisaged by the height controls and fails to minimise the adverse visual impacts of the proposal when viewed from either of the two adjoining properties.

Setbacks of Secondary Dwelling (Contention 3)

49. Council contends that the development should be refused because it is inconsistent with the prevailing setbacks in the locality, relying on the WDCP controls for setbacks in Part C2 cl 2.2 and the General Objectives for low density residential development at Part C2, cl 2.0.

50. The town planning experts agree, at paragraph 3.1 of the Joint Report “that the northern boundary of the site represents the rear of the property, and the proposed second storey of the secondary dwelling does not comply with the predominant rear building line”.

51. The WDCP makes provision for instances where it is proposed to build beyond the predominant rear building line, in which case “greater consideration” must be given to a number of matters, as set out in the Part C2 cl2.2 controls (d)(i) to (ix).

52. Ms Morgan maintains that a variation to the predominant rear setback line, in this case, “… can be considered acceptable as amenity impacts of (sic) adjoining developments will be maintained.”

53. Mr Mead maintains that the proposal does not have merit when “greater consideration” is given to the “criteria” in cl2.2 (d)(i) to (ix). He points out the proposal does not meet the height controls (as set out in cl 2.16 for secondary dwellings), which is one of those criteria. The lack of compliance with the height control coupled with the setback non-compliance exacerbates the bulk and visual impacts.

54. I prefer the evidence of Mr Mead on this point. Contrary to Ms Morgan’s statement the amenity impacts on adjoining properties will not be maintained but will change, to the detriment of the adjoining properties. While some amenity impacts are considered by the town planning experts as acceptable they do not agree that the visual impacts are acceptable. This is dealt with below in relation to Contention 5.

Design Excellence (Contention 5)

55. Council contends that the development should be refused as it is inconsistent with design objectives and controls in the WDCP (in Part B12 cl 12.1) and is not an appropriate design response to the existing constraints of the site and surrounding properties.

56. In oral evidence the planning experts disagreed on whether the amended plans resolved the contentions relating to building design and visual impact. Mr Mead’s opinion of the original design was that a more responsive design “would take into account the nature, and amenity of surrounding development”. At paragraph 5.5 of the Joint Report Mr Mead suggested that the yard of the subject site was not so constrained as to preclude an alternative design approach of a horizontal extension of the existing single level studio “in a manner envisaged by the DCP”.

57. In oral evidence Mr Mead advised that the amended design, notwithstanding it was a ‘slight improvement’, was still not satisfactory in its design, did not constitute an “attic” (and referred to Part C3 cl3.6 of the WDCP for what constitutes an attic) and did not overcome the non-compliances with the WDCP height and rear setback controls and the development’s visual impact on adjoining properties and on views from Marne Street.

58. Ms Morgan on the other hand considered the revised roof form in the amended plans to be a better fit in the streetscape and a more appropriate design. The amended truncated pitched roof, in her opinion, “was not dissimilar” to the roof of the principal dwelling. Ms Morgan also advised the Court that alternative designs had been considered by the building designer and rejected, including:

1. an easterly horizontal extension complying with the height control which was rejected as it would have greater impacts on 11 Marne Street,

2. a fully pitched roof on the second storey extension had been rejected as the development would then have been even higher and more impacting visually, and

3. a true attic, with rooms in the roof, was not feasible due to the inability to provide sufficient room heights with the limited footprint of the building.

59. In closing submissions Mr Kaplan rejected the alternative solution for a single storey extension of the existing studio on the basis that this would have greater impacts on the amenity of 11 Mamre Street.

60. On this issue I find the key premise of Mr Mead’s evidence more convincing although his alternative design suggestion for a single level extension cannot be considered as it has not been explored in detail in the evidence before the Court. It would undoubtedly have differenct implications, including for impacts to 11 Marne Street, that may or may not be acceptable. The design approach in the proposed development, including amended roof form, is a poor response to the objectives and controls in Part B12 Design Excellence of the WDCP and does not warrant the proposed departure from the Council’s planning intentions for secondary dwellings in the rear yards of properties that do not front a laneway.

Public Interest (Contention 6)

61. The fifth principle in Stockland refers to consistency of decision-making by those who make administrative decisions and how this is assisted by the adoption of DCPs and the making of decisions which are consistent with them. This is arguably a matter of public interest as it creates “an appreciation of the likely future development of nearby property” for anyone interested in the planning and development of land and the impacts it may have. The ‘making of decisions consistent with the provisions of DCPs’ necessarily involves the exercise of discretion and the balancing of sometimes conflicting objectives or controls. In this case however, for the reasons set out in this judgement refusal of the application is warranted.

62. With respect to Council’s contention that approval of the development would set an undesirable precedent, Ms Morgan agreed with Mr Patterson that the site is unique. Just as the ‘other examples of DCP variances’ in Exhibit G do not set a precedent for approval of the subject DA, the decision in this matter does not set a precedent for other development applications on other sites and involving a different set of circumstances.

Decision

63. Having considered the evidence of the expert town planners, the written submissions of behalf the adjoining owners, the oral submissions of the parties, the matters for consideration under s 4.15 of the EPA Act, I am satisfied for the reasons set out in this judgment that the appeal should be dismissed.

Orders

64. The orders of the Court are:

1. The appeal is dismissed.

2. Waverley Council Development Application No. DA-318/2019 for alterations and additions to a secondary dwelling at 28 Macdonald Street Vaucluse is refused.

3. The exhibits are returned with the exception of Exhibits A, B and 3.

………………………….

J Bindon

Acting Commissioner of the Court

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Decision last updated: 12 January 2021