Kilzi v Cowra Shire Council

[2020] NSWLEC 1566

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kilzi v Cowra Shire Council [2020] NSWLEC 1566

Hearing dates:

6 November 2020

Date of orders:

18 November 2020

Decision date:

18 November 2020

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend the application and rely upon amended plans subject to the Applicant paying the Respondent’s costs thrown away as agreed or assessed pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2)   The appeal is dismissed.

(3)   Development consent for Development Application No DA 109/2019 seeking consent for 7 detached dwellings and an 8-lot community title subdivision on Lot 7 in DP 1250412 otherwise known as 13 Tokyo Terrace, Cowra is refused.

(4)   All Exhibits are returned, except for Exhibit A.

Catchwords:

DEVELOPMENT APPLICATION – multi dwelling housing development – terrestrial biodiversity – effect of proposed development on heritage significance – likely environmental impacts - solar access – site analysis

Legislation Cited:

Cowra Local Environmental Plan 2012

Environmental Planning and Assessment Act 1979

State Environmental Planning Policy No 55 – Remediation of Land

Cases Cited:

Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190

Schaffer Corp Ltd v Hawkesbury City Council (1992) 77 LGRA 21

Texts Cited:

Cowra Development Control Plan 2014

Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’

Valley View Estate Building and Site Design Guidelines

Category:

Principal judgment

Parties:

Michael Kilzi (Applicant)
Cowra Shire Council (Respondent)

Representation:

Counsel:
M Seymour (Applicant)
R White (Respondent)

Solicitors:
Crennan Legal (Applicant)
Bradley Allen Love Lawyers (Respondent)

File Number(s):

2020/65446

Publication restriction:

No

Judgment

1. COMMISSIONER: Mr Michael Kilzi (the Applicant) seeks consent for a multi dwelling housing development in the town of Cowra, NSW that is the subject of an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), following the refusal by Cowra Shire Council (the Respondent) of Development Application No. DA 109/2019 (the DA).

2. The DA, as it was originally lodged, seeks the construction of 9 detached dwellings and a 10-lot community title subdivision on Lot 7 in DP 1250412 otherwise known as 13 Tokyo Terrace, Cowra (the site).

3. Each dwelling has been designed with two bedrooms, an ensuite, and single lock-up garage on lots that range in size from 232.95m² to 277.80m².

4. Additional to the residential lots, Lot 1 is proposed to accommodate communal access, driveways, visitor parking and other common facilities.

Approach to proceedings

5. The matter was listed for a one-day hearing by Microsoft Teams in the short minutes of order dated 7 October 2020, and in accordance with the Court’s COVID-19 Pandemic Arrangements Policy.

6. At the outset of the hearing, the Applicant sought leave to rely upon amended plans that were filed by Notice of Motion on 3 November 2020, and marked for return on 10 November 2020.

7. The parties agreed that it would best to deal with the Notice of Motion in the hearing, and the tender of the amended plans was not opposed by the Respondent subject to costs thrown away as agreed or assessed pursuant to s 8.15(3) of the EPA Act.

8. The Applicant was granted leave to amend the application and the plans were marked Exhibit A. The amendments may be summarised as follows:

• Reduction in number of dwellings from nine (9) to seven (7).

• Re-orientation of living spaces within the dwellings in order to address north, and to open to private open space.

• Amendments to front, side and rear setbacks.

• Deletion of driveways to dwellings fronting Tokyo Terrace.

9. At the close of proceedings, the Applicant advised the Court that Exhibit A contained an error, and the floor plan for Dwelling 1, and not Dwelling 3, appears on Drawing Sheet 4 of 10, Proposed floor plan and elevations – Dwelling 3.

10. The effect is that, should the Court be minded to uphold the appeal and grant consent, the application would need to be further amended to accurately depict the floor plan for Dwelling 3.

The site and its context

11. The site is located to the north of the centre of the town of Cowra, and east of London Drive in an area of subdivision and development known as the ‘Valley View Estate’ that was approved for subdivision in February 2017.

12. Adjoining the site to the east is Crown land which is zoned RE1 as identified in the Cowra Local Environmental Plan 2012 (CLEP).

13. With the consent of the parties, footage was played at the commencement of proceedings which took the form of a walking tour commencing at the intersection of London Drive and Tokyo Terrace and moving in an easterly direction towards the subject site, on to the subject site and onto the adjoining site to the north at Lot 6, and showing evidence of some construction commencing at Lot 8 to the south of the site.

14. The footage also captured the views to the west that are the subject of submissions and evidence.

The contentions

15. The background facts and contentions as identified by the Respondent are set out in the Statement of Facts and Contentions filed with the Court on 25 March 2020 (Exhibit 2).

16. However, as a result of the amended plans at [8], the parties agree that the remaining contentions may be best summarised as follows:

1. Accessibility to public transport as required by the objectives of the zone.

2. Consistency with the existing character, and the desired future character of the area.

3. Separation distances and setbacks.

4. Solar access to private open space.

The planning framework

17. The site is within the R1 General Residential zone as identified by the CLEP, in which multi dwelling housing is permitted with consent.

18. The objectives are in the following terms:

1   Objectives of zone

•  To provide for the housing needs of the community.

•  To provide for a variety of housing types and densities.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To provide attractive, affordable, well located and market-responsive residential land.

•  To ensure that any non-residential land uses permitted within the zone are compatible with the amenity of the area.

•  To ensure that housing densities are broadly concentrated in locations accessible to public transport, employment, services and facilities.

•  To maximise public transport patronage and encourage walking and cycling.

19. While it is not the subject of the contentions, the Applicant notes that as the subject site adjoins the Cowra Prisoner of War (PoW) camp site, which is listed as an item of State heritage significance, the provisions of cl 5.10 of the CLEP apply. In particular, subcl 5.10(4) relevantly provides that the consent authority, or the Court on appeal, must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned.

20. As the site is identified as ‘Biodiversity’ according to the Terrestrial Biodiversity Map at cl 7.3 of the CLEP, the following applies:

(1)  The objective of this clause is to maintain terrestrial biodiversity by—

(a)  protecting native fauna and flora, and

(b)  protecting the ecological processes necessary for their continued existence, and

(c)  encouraging the conservation and recovery of native fauna and flora and their habitats.

(2) This clause applies to land identified as “Biodiversity” on the Terrestrial Biodiversity Map.

(3)  Before determining a development application for development on land to which this clause applies, the consent authority must consider—

(a)  whether the development is likely to have—

(i)  any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and

(ii)  any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and

(iii)  any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and

(iv)  any adverse impact on the habitat elements providing connectivity on the land, and

(b)  any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

(4)  Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that—

(a)  the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b)  if that impact cannot be reasonably avoided by adopting feasible alternatives—the development is designed, sited and will be managed to minimise that impact, or

(c)  if that impact cannot be minimised—the development will be managed to mitigate that impact.

Accessibility to public transport as required by the objectives of the zone

21. In essence, the Respondent contends that the site is not suited to the level of intensity of medium density development that is proposed. While housing is evident in the area, and so has presumably satisfied the Council as to its proximity to public transport services, the Respondent submits that it is acceptable as the existing housing is low density residential.

22. Put another way, the Respondent argues that good urban planning practice locates medium density development closer to infrastructure, services and support than the subject site allows.

23. In the alternative, Mr Seymour, counsel of the Applicant, submits that multi dwelling housing is a permissible form of development in the R1 zone which is not limited to the immediate surrounds of the centre of town, and so it can be assumed that the Council, in determining the scope of the R1 zone, seeks the form of development that is permitted with consent in the zone.

24. Of particular relevance to the contention are the following two objectives of the R1 zone:

•  To ensure that housing densities are broadly concentrated in locations accessible to public transport, employment, services and facilities.

•  To maximise public transport patronage and encourage walking and cycling

25. According to Mr Seymour, the objectives of a zone are as much a guide to Council’s own decision making as they are for proponent’s seeking development consent. Furthermore, objectives are only something to which a consent authority, or the Court on appeal, must have regard to when determining a development application.

26. As shown by Pearlman CJ, as her Honour was then, in Schaffer Corp Ltd v Hawkesbury City Council (1992) 77 LGRA 21, and later in Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190, a development may be considered to be consistent with an objective or objectives so long as it is not antipathetic to that objective or objectives.

27. The Respondent contends that the proposed development is not concentrated in a location accessible to public transport, employment, services and facilities. Further, it does not maximise public transport patronage as the public transport service is limited and not suited to the usual hours of weekday work.

28. By way of example, the 345 bus service that operates along London Drive does not provide a pick up before 9am, and does not return later than 1.27pm on Monday-Friday and only outside of school holidays. Services are even more limited during the school term, and on public holidays. This is impractical for future resident who may wish to take the bus to or from work in the town centre, or to other parts of Cowra that are not serviced by the 345 bus service.

29. According to Ms Cavanagh, the bus stop on London Drive is considered close, and alternatives such as walking allow easy access to employment centres such as the hospital and child care facilities that are closer than the centre of town which is agreed to be in the order of 2km from the site.

30. Multi dwelling housing is permitted in the R1 zone. There is not a progressive scale, or differentiation in forms of multi dwelling housing that are more permitted than others in the R1 zone.

31. The Respondent, being the Council, has applied the R1 zone widely in the Cowra township. I note that the R1 zone includes all manner of medium density housing, including residential flat buildings. The zone encompasses the subject site.

32. A proponent seeking consent for development can reasonably expect that where a development application demonstrates the development the subject of the development application is not antipathetic to the objectives of the zone, the development standards and other relevant controls, consent may be granted.

33. I accept the Applicant’s submission that there is little a proponent can influence in respect of the bus service that is subject to change in route and/or frequency. That said, the proposed development provides one car space for each dwelling and two visitor spaces on the site.

34. In doing so, I consider the development to take steps to encourage, if not maximise, public transport use by constraining the car parking provision to this number of spaces and so is not antipathetic to the relevant zone objectives.

Consistency with the existing character, and the desired future character of the area

35. According to the Respondent’s town planning expert, Mr Andrew Darroch, the proposed development is a ‘carriage-style’ form that is not seen in the Cowra locality.

36. Broadly speaking, the elements of a ‘carriage-style’ development include:

• A central driveway.

• Front-facing dwellings that address the street.

• Rear dwellings which face the central driveway.

37. The parties are agreed that this form of development is represented in diagrams at p24 (Figure 1) and p30 (Figure 2) of the Cowra Development Control Plan 2014 (CDCP) and which are re-produced below.

Figure 1 - Example of multi dwelling housing at p24 of the CDCP

Figure 2 - Example of multi dwelling housing in Site Area and Frontage controls, p30 of the CDCP

38. Mr Darroch considers the diagrams at Figures 1 and 2 to be an abstract representation of a development type that fails to consider real world context of this particular site. Furthermore, it is Mr Darroch’s opinion that the underlying flaws in the proposed development, as it is applied on this particular site, are a consequence of inadequate site analysis, evidenced by the lack of a site analysis plan in the application.

39. Without the analysis of constraints and opportunities on this particular site, the development form depicted in Figures 1 and 2 has not been adjusted to cater for such elements as terrain, and adjoining properties that will be impacted.

40. However, the Applicant submits, supported by Ms Cavanagh’s oral evidence, that the lack of a site analysis drawing does not mean that site analysis has not been undertaken. In fact, adoption of the medium density development form depicted in the diagram on p24 of the CDCP, being Figure 1, is indicative of such an analysis.

41. The Respondent also considers the proposed development to be at odds with the desired future character set out in the Valley View Estate Building and Site Design Guidelines (Valley View Guidelines) (Exhibit 1, tab 4) which envisage “large lot development” to capitalise on “magnificent views”.

42. Exhibit 2 states that the Valley View subdivision is subject to the Valley View Guidelines, however the Respondent accepts that the Valley View Guidelines are in draft form, and are yet to be incorporated into the CDCP.

43. In my assessment, the Valley View Guidelines are worthy statements of intent but which cannot, of themselves, be determinative in this case unless and until they are firstly, exhibited and secondly, incorporated into the CDCP.

44. The Respondent relies on two examples of medium density development located close to the site which are said to demonstrate appropriate medium density development in the form of a dual occupancy development at 39 London Drive, and a multi dwelling development at 43 London Drive.

45. By contrast, the proposed development offends the density, siting, level of amenity, streetscape presentation, impact on biodiversity and poor quality of landscaping.

46. The Applicant cautions that I not define character by reliance on the existing built form alone, but also by considering the desired future character intended by the controls.

47. The objectives of medium density housing in Cowra are set out in Part E2.2 of the CDCP:

“The objectives for medium density housing are:

…

b) To provide functional yet well designed medium density housing that responds to the constraints and conditions of the site and surrounding environment.

…

d) To ensure that medium density housing is provided with landscaping that complements the design of the development, defines private open space areas and improves liveability and general amenity.”

48. Part E1.3 of the CDCP sets out the aspects of site analysis required:

“a) The broad opportunities and constraints of the layout and design of the site.

b) The positive characteristics of the streetscape and surrounding natural and built environments.

c) Important site characteristics such as lot orientation and prevailing climatic conditions.

d) Existing areas likely to be impacted by overshadowing, for example, neighbouring private open space.

e) Inherent site constraints including flood affected land, overland flow paths, slope instability, contaminated land, landfill areas, heritage and archaeological features.

f) The location of existing services and facilities including drainage infrastructure and reticulated water and sewerage supply systems.

g) Easement, fence, boundary and access locations.

h) Views to and from the site and the existence of any significant nearby view corridors from public spaces.

i) Movement corridors including local streets and pedestrian pathways.

j) Existing mature trees and vegetation that should be retained.”

49. Part E2.5 of the CDCP provides for Site Area and Frontage Controls, including relevantly:

“(a) A minimum average site area of 300m² per dwelling unit is required for secondary dwellings, dual occupancies, semi-detached dwellings, attached dwellings and multi-dwelling housing. The minimum site area is calculated by dividing the total area of the development site by the number of proposed dwelling units.

…

Note: The site area controls are minimum only. Depending on the characteristics of the site and the design of the development, a larger site area per dwelling unit may be required in order to comply with all of the controls in Section E.2”

50. Part E2.6 of the CDCP contains controls in respect of streetscape.

51. Part E2.3 of the CDCP refers, at n) to landscaping controls under Part N of the CDCP such as the requirement for a Landscape Plan and the elements to be found therein which are set out in Part N2 of the CDCP (Exhibit 1, folio 196). Residential landscape controls are found at Part N3 of the CDCP.

52. I accept the Applicant’s submission that the siting and general arrangement of the proposed development closely mirrors the conceptual representation of multi dwelling development in Figures 1 and 2 at [37]. A multi dwelling development comprising a number of individual, free standing dwellings arranged around a central, shared driveway appears supported by the CDCP in a similar form to the development the subject of the development application.

53. Furthermore, the site density, when expressed as a number of dwellings per m², is in the order of one dwelling per 400m² which complies with the requirement at Part E2.5 of the CDCP, and appears to also satisfy the Note in Part E2.5 which provides for larger site area per dwelling in certain circumstances.

54. The streetscape controls require, at (a) of Part E2.6, that developments in existing urban areas must be consistent with the scale and character of adjoining dwellings and the surrounding environment and, at (d), that site and building design should consider the existing topographic setting and characteristics of other buildings and sites along the street.

50. The Statement of Environmental Effects prepared with the application is not in evidence, but images of other buildings in the area are contained as pp7-8. On the basis of the footage played at the outset of the hearing, the original assessment report by Council (Exhibit 1, folio 314) and the images of existing development in the area contained in Exhibit 3, I am satisfied that the materials, form and general presentation to the street of the proposed development is generally consistent with the materials, form and presentation of existing development in the area.

51. I accept that the central shared driveway, which is not a characteristic element evident in the images of development in the area, is an aspect of multi dwelling development anticipated in the controls. Furthermore, I also accept that the repeated forms of dwelling houses arranged either side of the central driveway is also anticipated by the controls.

52. However, while the general site and building design may mimic that shown in Figures 1 and 2 at [37], when the form of development is applied to the site, it is not without adverse environmental impacts on adjoining sites.

Separation distances and setbacks

58. Of particular concern to the Respondent is the close proximity of dwellings 1-3 on the southern side of the site, and the potential for overlooking to the property under construction at Lot 8, to the south of the site.

59. Specifically, the elevation drawings for dwellings 1-3 show a kitchen door that provides access to the private open space associated with the dwelling. The kitchen door is partly glazed, so that there is effectively a window when the door is closed, and a full height opening when the door is open.

60. The finished floor level of the dwellings, the height of the boundary fence, and the fall of the terrain suggests that a standing sightline is possible from dwellings 1-3, to the site at Lot 8.

61. Part E2.10 of the CDCP provides, in summary, that:

• Windows should be located so they do not provide direct and close views into the living area windows or courtyards of other dwellings which can be achieved by offsetting or using windows which are narrow, translucent, obscured or fitted with louvers or screen panels.

• Minimum separation distances of 12m should be provided between buildings where habitable rooms or balconies face like spaces, or 9 metres where habitable rooms / balconies face non-habitable rooms or blank walls, or 3m where non-habitable rooms / blank walls face like spaces.

• Separation distances may be reduced by up to 25% where privacy issues can be addressed by other means.

62. Additionally, Part E2.8 of the CDCP provides guidance on setbacks for single storey buildings as follows:

• For side setbacks, a distance of 900mm is required

• For rear setbacks, a distance of 3m from the boundary is required

63. When viewed from the street, the southern boundary is properly regarded as a side setback, to which a minimum dimension of 900mm applies and Ms Naula Cavanagh, is satisfied that the minimum setback dimension for a side boundary is achieved.

64. However, as Dwelling 2 is oriented to address the central driveway, and one side of the private open space is bound by the southern boundary, the rear of Dwelling 2 is more in the form of a rear yard than a side setback, according to Mr Darroch.

65. The relevance of this is that access to the private open space of Dwelling 2 is most easily gained via the kitchen door which provides the elevated sightline of around 500mm above the boundary fence.

66. Mr Darroch queries whether orienting the dwellings east-west, rather than north-south would alleviate the overlooking, as the southern boundary would perform more like a side boundary, and not a rear yard.

67. Whether or not this is a real or perceived impact is unclear from the evidence before the Court. I accept the Respondent’s argument that the burden to demonstrate that impacts are ameliorated is borne by the Applicant. According to Part E2.3 of the CDCP, it is the express purpose of site analysis (at (a)) to identify opportunities and constraints of the layout and design of the site, and (at (h)) views to and from the site.

68. Part E2.3 also provides guidance on landscaping of residential blocks. While it is commonly held by the Court that landscaping should not function as the main safeguard against overlooking, the CDCP clearly regards landscaping to play a role in addressing amenity impacts that may arise in medium density development. New medium density housing development should comply with the provisions at Part N of the CDCP.

69. According to Part N2 of the CDCP (Exhibit 1, folio 196) a Landscape Plan must have an analysis of site constraints including overshadowing, privacy, views, building bulk. The Landscape Plan (Exhibit A, Sheet 9 or 10) does not.

70. For completeness, I also note that a Landscape Plan must show existing and proposed walls, fences and retaining walls, the height of fencing, and detailing of edge treatments.

71. The location of retaining walls is not shown on the Landscape Plan. Instead, a note appears on both the Proposed Site & subdivision plans (Exhibit A, Sheet 1 of 10), and the Proposed landscaping plan and planting details (Exhibit A, Sheet 9 of 10) as follows:

“Location and heights of all retaining wall to be confirmed”

72. However, elsewhere in the Exhibit A plans, the location and height of retaining walls appears to be confirmed. Retaining walls are evident in cross section on the North site elevation and South site elevation (Sheet 1 of 10), and on each of the drawing sheets prepared for each dwelling (Sheets 1-8 of 10). These retaining walls do not appear in plan view so their extent and height is uncertain.

73. I also note that the Stormwater Management Plan (Exhibit A, Sheet 10 of 10) does not indicate provision of drainage in the locations of retaining walls shown in the drawings as may be typically expected.

Solar access to private open space

74. Drawing sheet 1E of the Exhibit A plans contains 3 diagrams described as ‘Site Shading – June’ and represents the location of sun, and corresponding shadows, at 9am, 12pm and 3pm.

75. The relevant solar access controls are at Part E2.9 of the CDCP and provide, relevantly:

“…

(b) Medium density housing should be designed to allow the living areas and private open space areas of at least 75% of dwellings (within the development) to receive a minimum of 3 hours sunlight between 9am and 3pm on 21 June (winter solstice).”

76. The Respondent submits that these controls should be read in conjunction with Part E2.11 of the CDCP which requires 40m² of private open space per dwelling, having a minimum width of 3m in any direction.

77. The effect of the two being read together is that, according to the Respondent, 40m² of private open space should receive a minimum of 3 hours of sunlight between 9am – 3pm on the winter solstice.

78. Ms Cavanagh’s opinion is that a ‘significant proportion’, and not the entirety, of the private open space must receive 3 hours of sunlight and, in her view, this is achieved. That said, Ms Cavanagh accepts that the shadow diagrams are not to a scale that would allow measurements to be taken, and nor is the origin of the north point known.

79. Mr Darroch considers the north point to be relevant, as it appears ‘Map Grid North’ may have been used, and not ‘true north’.

80. Part E2.11 (a) of the CDCP requires private open space to be oriented to the north east and (d) requires private open space to be defined by walls, fencing and landscaping so as be self-contained. A space addressing the north east that is contained by fencing must experience some degree of overshadowing.

81. It is for this reason that I prefer Ms Cavanagh’s assessment that a significant proportion of at least 40m² of private open space should receive sunlight, and not all of the private open space which is inherent in the Respondent’s argument.

82. That said, I consider the shadow diagrams to be of little assistance to the Court. Whether or not the north point is accurate, the value of a 2-dimensional shadow diagram is that it can, or should, be capable of measurement where an area is required to be demonstrated in numerical terms.

83. Private open space requires a minimum dimension of 3m in width. The dwellings are set out at an angle to side boundaries which describes the irregular geometry of private open space. Dwellings 2 and 7 appear to have private open space that, at some point, fails to achieve 3m in width.

84. I do not suggest the area of private open space is less than 40m², but that, absent an area positively marked on the plans, it is conceivable that a significant proportion of that private open space measuring at least 40m² does not receive sunlight.

85. On the basis of the expert evidence, and careful consideration of the private open space shown on the shadow diagrams, I am not satisfied that a significant proportion of an area of 40m² of private open space receives sunlight to Dwellings 1, 2 or 7.

86. As the control at Part E2.9(b) requires at least 75% of dwelling to receive 3 hours of sunlight, at least 6 of the dwellings, rounded up, are required to achieve this level of sunlight. I conclude that the proposed development fails to achieve the level of solar access required.

The site is identified ‘biodiversity’ on the Terrestrial Biodiversity Map

87. At the outset of the hearing, the Applicant sought leave to file and tender an Ecology Assessment Report (Ecology Report) prepared by Dr Kate Hammill dated 5 November 2020.

88. As it was put by Mr Seymour, the purpose of the report is, in part, to address matters that are jurisdictional in nature but are not specifically the subject of contentions.

89. The tender was not opposed by the Respondent, subject to its content being reviewed given its late issue. After the experts had been released, Mr White sought for Mr Darroch to be given leave to provide evidence on the Ecology Report, marked Exhibit C.

90. While mindful of the potential for the late issue of the Ecology Report to be prejudicial, I declined the Respondent’s application on the grounds that Mr Darroch did not have relevant expertise and upon Mr White’s counsel that the Court did not require Mr Darroch’s evidence should it be minded to dismiss the appeal on the basis of the Ecology Report..

91. I also note here that the Respondent was granted some indulgence during opening submissions to identify parts of the Ecology Report including that the site was visited only once, on 3 November 2020 and during which it is possible that species relevant to the assessment may not have been in evidence or abundance.

92. Furthermore, that par 46 of the Ecology Report notes the close proximity of Critically Endangered Ecological Communities (CEEC), and recommends a planted buffer along the eastern boundary to reduce impacts on the adjacent reserve.

93. The Applicant supports the recommendation and invites the Court to grant consent, conditional on the planting of a planted strip to the eastern boundary.

94. Consistency, or compliance, with the provisions of cl 7.3 of the CLEP, Territorial Biodiversity is contended by the Council in Exhibit 2. However, the particulars are in respect of an existing tree that is proposed to be removed, and failure to provide an arborists’ assessment report.

95. I accept the findings of the Ecology Report that the site is disturbed by earthworks in the form of earth bunds that are a consequence of subdivision, and that as a result, former plant communities have been removed.

96. I also accept that the site is absent of hollow bearing trees, wetlands or rock outcrops that would likely provide shelter to the threatened species assessed on pp17-19 of Exhibit C.

97. Finally, I accept the conclusion that the subject site is not part of the Yellow Box – White Box grassy woodlands CCEC and that the proposed development on the site will not further fragment or reduce habitat connectivity beyond that approved for the subdivision.

Consideration of impact on heritage significance of the Cowra PoW Campsite

98. As the subject site adjoins an item of State heritage significance, I must consider the impact, if any, of the proposed development on the significance of the heritage item.

99. On the basis of the Heritage Report prepared by Ian Rufus dated November 2020, (Exhibit D) I am satisfied that the development would not adversely impact the heritage significance of the Cowra PoW Camp for the reasons that follow:

1. Firstly, the elements of particular focus of the heritage significance are located at a distance to the subject site and, as stated in the physical description of the item, are separated from the town by a ridge line.

2. Secondly, I accept that the curtilage of the heritage item does not extend to the subject site.

3. Thirdly, I accept the Applicant’s proposition that the central driveway will permit a sightline through the development to the Crown land on which the item is located.

Contamination of the site is considered

100. Clause 7 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) requires the Court to consider whether the land is contaminated.

101. The Applicant did not enter the Class 1 Application into evidence, however the Statement of Environmental Effects prepared with the application by CPC Development Consultants states at p6 that:

“The subject land was created from a larger subdivision of lot 3 in DP1141112 in 2019 as part of Stage 3 in Cowra Shire Councils Valley View Estate subdivision.

…

With the release of stage 3 in Cowra Shire Councils Valley View Estate subdivision which form part of original development which includes this site further suggests evident supporting the land is free from contaminants. If any previous knowledge of contamination or hazardous use of the land and its surroundings prior to being subdivided would have risen.

After carrying out this initial evaluation, none of the enquiries suggest that the land might be contaminated or that further enquiry is warranted.

…”

102. On the basis of the Respondent’s assessment report (Exhibit 1, folio 393), I accept that that there are no known prior land uses that are likely to have resulted in contamination of the land, and I accept that no further investigation is warranted.

Conclusion

103. The Respondent has identified large areas of the Cowra township to be zoned R1 General Residential, in which multi dwelling housing, being a form of medium density development, is permitted with consent.

104. Presumably to encourage medium density housing, the CDCP includes an inventory of types of medium density development including conceptual depictions of secondary dwellings, dual occupancy, semi-detached and attached dwellings, multi dwelling housing and residential flat buildings.

105. The proposed development appears to substantially adopt the conceptual depiction of multi dwelling housing, and it does so in conformance with site area and frontage controls.

106. An aspect of the site that is not depicted in the conceptual depiction of multi dwelling housing form of development is the fall in the terrain that imposes on the Applicant a challenge in stepping the development up the slope to the east.

107. The terrain is addressed by ‘benching’ the dwellings on the site with cut and fill to achieve level access for cars into the garages to the east of each dwelling, while the habitable rooms are elevated over sloping terrain to the west.

108. Part E2.4 of the CDCP identifies that “sloping sites present a number of design challenges and generally require greater design input than flat sites”. Control (a) requires a cut and fill plan to accompany a development application. The Court was not taken to a cut and fill plan.

109. As a result of the benching at Dwelling 2, there is potential for overlooking of the southern neighbour at Lot 8 that is deemed acceptable, according to Part E2.10 of the CDCP when a separation distance between buildings of between 9-12m is achieved.

110. Part E2.10(f) of the CDCP provides for a reduction in this separation of up to 25% where privacy issues can be addressed in another form.

111. It is agreed that a dwelling at Lot 8 is under construction. It may or may not be located at a distance of, or greater than, the separation distance of 9-12m. It is also possible that the dwelling presents a garage or other such non-habitable space such that the privacy impact is deemed acceptable, or where a reduction of up to 25% is applicable.

112. The difficulty presented to me is that the amended plans at Exhibit A do not depict any feature or aspect of the surrounding environment beyond the site boundary, and so the Court is unable to conclude that the proposed development will not impose an adverse environmental impact on the adjoining property at Lot 8, as the Respondent has established it is capable of doing.

113. Evidence of consideration or analysis of aspects or features beyond the site boundaries is lacking. I do not accept Ms Cavanagh’s opinion that adopting a conceptual depiction of multi dwelling development illustrated in Part E2.1 of the CDCP can be in any way a substitute for recording an analysis of those aspects set out in Part E2.3 of the CDCP.

114. While overlooking from Dwelling 2 in the direction of Lot 8 is agreed, it is not possible to accurately predict the degree of overlooking. The finished floor level is shown for the garage, and a step up is evident in the cross section. A finished floor level to the habitable areas of the dwelling is not shown on the drawing.

115. Adopting the lower floor level of the garage, being RL 371.6, a person with a standing eyeline of 1500mm would be at least 500mm above the height of the boundary fence, which I am told is 1800mm in height.

116. The landscape plan does not propose planting to the southern boundary, and in my view, no grounds have been set out to apply the 25% reduction in separation distances at Part E2.10(f) of the CDCP.

117. Next, the lack of scaled drawings and uncertainty as to the source of the north point on the shadow diagrams asks the Court to trust that the information contained in the shadow diagrams is correct. A further invitation for the Court flows from that, which is to conclude that a significant proportion of the private open space to at least 75% of dwellings receives 3 hours of sunlight.

118. I am unable to conclude that the private open space receives sufficient sunlight to conform to the requirements of PartE2.9 (b) of the CDCP.

119. As I consider Dwelling 2 of the proposed development imposes an adverse environmental impact on the property at Lot 8, in the form of overlooking, and I also conclude that the private open space to Dwellings 1, 2 and 7 do not comply with the requirement set out in Part E2.9 of the CDCP, I have determined that the appeal should be dismissed.

120. As I have sought to set out in my reasons above, I observe that the drawings themselves have not assisted the Applicant in this case. As was noted by Mr Seymour at the close of proceedings, errors on Sheet 4 of 10 are capable of being addressed. I agree.

121. However, a site analysis is not in evidence.

122. The benefit of a site analysis plan is at least twofold. Firstly, it assists the Applicant to identify opportunities and constraints upfront on the land the subject of the proposed development, so that a proposed development can, in the second instance, demonstrate to a consent authority or the Court, that likely environmental impacts, and occupant amenity have been considered and addressed.

123. In this instance, early site analysis may have identified the opportunity, with an alternative site layout, for the private open space of Dwelling 2 to address north east, in accordance with Part E2.11, control a), and for the living area of dwelling 1 to open out to the private open space of Dwelling 1 in accordance with Part E2.11, control (b).

124. Likewise, site analysis evidenced on the landscape plan may also have identified constraints in the form of future development at Lot 6 and Lot 8 adjoining the subject site and so addressed privacy and overlooking of adjoining dwellings in accordance with Part N3.1, control (d).

Orders

125. The Court orders that:

1. The Applicant is granted leave to amend the application and rely upon amended plans subject to the Applicant paying the Respondent’s costs thrown away as agreed or assessed pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

2. The appeal is dismissed.

3. Development consent for Development Application No DA 109/2019 seeking consent for 7 detached dwellings and an 8-lot community title subdivision on Lot 7 in DP 1250412 otherwise known as 13 Tokyo Terrace, Cowra (the site) is refused.

4. All Exhibits are returned, except for Exhibit A.

…………………..

T Horton

Commissioner of the Court

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Decision last updated: 18 November 2020