Landco (NSW) Pty Ltd v Camden Council

[2017] NSWLEC 1694

Land and Environment Court

New South Wales

Medium Neutral Citation:

Landco (NSW) Pty Ltd v Camden Council [2017] NSWLEC 1694

Hearing dates:

20, 21 July 2017 with further written submissions on 28 July, 3, 9 August 2017

Date of orders:

06 December 2017

Decision date:

06 December 2017

Jurisdiction:

Class 1

Before:

Martin SC

Decision:

The Orders of the Court are:

1) The Applicant is granted leave to amend its development application by substituting the plans comprising Exhibit A and Exhibit L as the plans relied upon for the purposes of the development application.

2) Pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the Respondent’s costs that are thrown away as a result of amending the development application, as agreed or assessed.

 

3) The appeal is dismissed.

 

4) Development Application No 357/2016 for consolidation of four lots, the erection of three buildings each of two storeys and containing three attached dwellings, strata title subdivision and site works including landscaping, stormwater drainage and service connection, is determined by refusal.

 5) The Exhibits save for 1,4, H and K are returned.

Catchwords:

DEVELOPMENT APPEAL – actual refusal – consolidation of four lots and construction of three, two-storey buildings with three attached dwellings – minimum subdivision lot size – strata subdivision –late application to amend statement of Facts and Contentions refused – urban design – setback – principal private open space –planning principle regarding compatibility

Legislation Cited:

Camden Development Control Plan 2011
Camden Local Environmental Plan 2010
Environmental Planning and Assessment Act 1979 ss 74BA, 79C, 97(1), 97B(2),
Manooka Valley Masterplan

Cases Cited:

BPG Properties Pty Limited v Lake Macquarie City Council [2014] NSWLEC 399 at [117], [118]
DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 1358
Jacques Avenue Bondi Pty Ltd v Waverley Council [No 1][2003] NSWLEC 421
Landco (NSW) Pty Ltd v Camden Council [2017] NSWLEC 86
Manzie v Willoughby City Council [1996] NSWLEC 26
Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at [22] – [31]

Category:

Principal judgment

Parties:

Landco (NSW) Pty Ltd (Applicant)
Camden Council (Respondent)

Representation:

Counsel:
Mr M Staunton (Applicant)
Ms C Novak (Respondent)

  Solicitors:
Mills Oakley (Applicant)
Swaab Attorneys (Respondent)

File Number(s):

2017/80132

Publication restriction:

No

Judgment

1. This is an appeal from an actual refusal of development consent by the Camden Council (the Council) to a Development Application (DA) made by Landco (NSW) Pty Ltd (the Applicant), in respect of a proposed development on land known as 33, 35, 37 and 39 Newmarket Street, Currans Hill (the Site). Approval is sought for consolidation of four lots; the erection of three buildings each of two storeys and containing three attached dwellings; strata title subdivision into three lots and site works including landscaping, stormwater drainage and service connection.

Decision

2. I find that a multi-dwelling development is prima facie permissible and would be a suitable use for the Site. The R1 General Residential zoning allows, and indeed encourages, a variety of housing types and densities. The fact that this would be the first multi-dwelling development within the local area, the character of which is still emerging, is no bar to its approval.

3. However, largely for reasons of internal amenity, it is my finding that the proposed development does not satisfy the merit assessment required to be undertaken pursuant to s 79 of the Environmental Planning and Assessment Act 1979 (EPA Act). This is particularly the case, given the design opportunities afforded by the Site. Accordingly, development consent is refused.

The Site and its Context

4. The Site currently comprises four lots (Lots 413, 414, 415 and 416 in DP 1163902), adjoins residential properties and is currently vacant and clear of vegetation. It is bounded by three streets: Newmarket Street, Geraldton Drive and Penola Street.

5. Located within the suburb of Currans Hills, the Site sits within the north village of the Manooka Valley Urban Release Area. It is immediately south of the suburb of Gregory Hills which forms part of the South West Growth Centre, immediately to the west of the Campbelltown Local Government Area, north of the suburb of Mount Annan and east of the suburb of Smeaton Grange. It is located in close proximity to zones E2 Environmental Conservation and E4 Environmental Living.

6. The surrounding area is undergoing urban development, and its character is evolving. In terms of existing and approved developments, the Site’s immediate surroundings are characterised by detached dwellings which predominantly are single storey buildings. There are no approved multi-dwelling housing developments within the Manooka Valley Urban Release Area: Amended Statement of Facts and Contentions, Ex 1 at [14].

The Statutory Controls

7. The Camden Local Environmental Plan 2010 (Camden LEP) applies to the Site. The Aims of the Camden LEP are, relevantly:

(a) To ensure Camden retains its valued traditional qualities, character and scenic landscapes while providing for sustainable urban growth;

(b) To ensure that new communities are planned and developed in an orderly, integrated and sustainable manner and contribute to the social, environmental and economic sustainability of Camden;

…

(e) To ensure that appropriate housing opportunities are provided for all existing and future residents of Camden at all stages of their lives;

…

(j) To conserve and enhance the built and landscape heritage of Camden.

8. The Site is zoned R1 – General Residential (see map below). Under cl 2.3(2), the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land in that zone.

9. The objectives of the R1 zone are:

-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 allow for educational, recreational, community and religious activities that support the wellbeing of the community.

-To minimise conflict between land uses within the zone and land uses within adjoining areas.

11. Permissible with consent in the R1 zone are attached dwellings, dwelling houses and multi-unit housing. Under the Camden LEP, the definitions of “attached dwellings” and “multi-dwelling” houses are as follows:

attached dwelling means a building containing 3 or more dwellings, where:

(a)  each dwelling is attached to another dwelling by a common wall, and

(b)  each of the dwellings is on its own lot of land, and

(c)  none of the dwellings is located above any part of another dwelling.

multi dwelling housing means 3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building.

12. Multi-dwelling housing is a form of residential housing. The experts in this case agree that the proposed development comprises multi-dwelling housing.

13. Under cl 4.3, the prescribed permissible height is 9.5m. There is no floor space ratio prescribed. Under cl 4.1 the relevant minimum subdivision lot size is 450m2, subject to the terms of that clause, which is reproduced in full below:

4.1   Minimum subdivision lot size

(1)  The objectives of this clause are as follows:

(a)  to ensure that subdivision reflects and reinforces the predominant subdivision pattern of the area,

(b)  to ensure that lot sizes and dimensions are able to accommodate development consistent with relevant development controls,

(c)  to ensure that lot sizes and dimensions allow dwellings to be sited to protect natural or cultural features, including heritage items, and retain special features such as trees and views,

(d)  to provide for a range of residential lot sizes and types,

(e)  to ensure that the density of development is consistent with the existing and proposed future road and utility infrastructure in the locality.

(2)  This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.

(3)  The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

(4)  This clause does not apply in relation to the subdivision of individual lots in a strata plan or community title scheme.

14. Under the Camden Development Control Plan 2011 (Camden DCP), Chapters C and D (part B1.4, C8, D21, D2.2.3, D2.3.3) set out the objectives and controls specific to the Manooka Valley urban release area, Primary Residential Controls, Multi Dwelling Housing and Attached Dwellings controls and Site Specific Controls for Manooka Valley.

15. The Manooka Valley Masterplan, preceding in time both the LEP and DCP, is called up through the Camden DCP at C8.1, which states that all developments within Manooka Valley shall comply with the Masterplan. There are multiple zonings within that Plan, including General Residential, Environmental Conservation and Environmental Living.

16. Private Open Space, Site Cover and Landscaped Area are dealt with at D2.1.5. of the Camden DCP. The Objectives are:

1. Provide a high level of residential amenity with opportunities for outdoor recreation and relaxation within the property.

2. Facilitate solar access to the living areas and private open spaces of the dwelling.

3. Ensure that dwellings are designed to minimise overshadowing of adjacent properties and to protect minimum standards sunlight access to private outdoor living space of adjacent buildings.

4. Ensure that each site has sufficient area for landscaping, including deep soil planting areas for larger trees, to facilitate the establishment of attractive and functional open space areas.

17. Control 2 of D2.1.5 provides:

Each dwelling shall be provided with quality, useable private open space (POS) behind the building line. The total area of POS for each dwelling is to be a minimum 20% of the site area.

18. Control 3 of D2.1.5 provides relevantly as follows:

The POS area of each dwelling is to have a principal private open space (PPOS) in at least one courtyard directly connected to a living zone of the dwelling with a minimum area of 24m2, including a minimum length of 4 m and being not steeper than 1:10 gradient.

19. Control 4 sets out the requirements for sunlight for PPOS:

Sunlight must reach at least 50% of the PPOS of both the subject dwelling and of any adjoining dwelling, for not less than 3 hours between 9.00 am and 3.00 pm on 21 June. POS that has a southerly orientation (shaded by the dwelling and/or adjacent dwelling) may require an increase in its area to compensate for the shaded POS.

20. Streetscape and Architectural Design are provided for at D2.1.7. The Objectives are:

1. Ensure that buildings are designed to enhance the existing and future desired built form and character of the neighbourhood by encouraging innovative and quality designs that fit harmoniously with their surroundings.

2. Complement the visual character of the street and neighbourhood through appropriate building scale, form, detail and finish.

3. Reinforce existing streetscape features such as building setbacks, alignments, heights and fence design.

4. Provide a clear distinction between private and public space and encourage casual surveillance of the street.

21. Good streetscape design principles are illustrated at Figures D3 and D4, showing open verandas; entry features or porticos; recessing and projecting architectural elements; breathing space between buildings; mixture of building materials; expression of entry; addressing the corner and landscaping.

22. There is specific coverage of Multi Dwelling Housing and Attached Dwellings at D2.2.3. Objectives include high quality residential developments which feature a high standard of urban design and high amenity for residents (O1), and development sites which have sufficient site area to accommodate appropriate setbacks and open space areas (O2). The controls include that the development blend in with its surroundings and/or be in keeping with the character of the area (C5) and be designed to be compatible with the streetscape and be attractive when viewed from the street (C6). It should also create an appearance of a single or grouped dwellings that are separated by gardens and ancillary structures, with facades designed to incorporate a variety of materials and shading structures. Private open space (C19) is dealt with in the same way as D2.1.5 of the DCP, set out above.

23. There are specific controls applying to Manooka Valley found at D2.3.3. It is intended that the Manooka Valley controls apply in the event of inconsistency elsewhere.

24. Of particular relevance to attached dwellings and multi-unit dwellings are provisions relating to water management; landscaping; off-street carparking rates; Manooka Valley Planning Principles; Setbacks; Private open space, site cover and landscaped area; Streetscape and architectural design; multi-dwelling housing and attached dwellings; and Manooka Valley.

25. The Sydney Regional Environmental Plan No 20 – Hawkesbury Nepean River (No 2 – 1997) has relevant provisions at cll 5 and 6, which are concerned with general planning considerations and specific planning policies and recommended strategies to protect the environment of the Hawkesbury- Nepean River. While they are not pleaded as a contention, they must be taken into consideration.

The Application and the matter of Minimum Allotment Size

26. This matter has not proceeded as smoothly as it may have. For reasons which are not presently relevant, the parties’ experts were unable to reach agreement on the content of their joint report approaching the week before the hearing. Consequently, orders were made by Robson J in Landco (NSW) Pty Ltd v Camden Council [2017] NSWLEC 86 requiring the joint report of the town planning and urban design experts to be filed and served by 5 pm on 17 July 2017, with the hearing due to commence on 20 July 2017. This was duly done.

27. For the sake of context, it is worth setting out some of the history of this application. According to the Council’s Amended Statement of Facts and Contentions (Ex 1 at [34]), at a pre-DA meeting held between the Applicant and the Council on 1 April 2015, the Council provided advice to the Applicant regarding the need to: comply with the DCP controls for multi-dwelling housing, consider the relationship and integration between the public and private domain, and consider the impact on neighbouring dwellings. Development Application (DA) 357/2016 was lodged with Council on behalf of the Applicant on 15 May 2016. A period of exhibition followed, which elicited 38 public submissions in objection. Following internal referrals, further information was sought from the Council’s development engineer. All other officers recommended conditions of consent: Ex 1 at [39].

28. On 10 June 2016, the Council informed the Applicant about issues Council had with the proposal, including bulk and scale; location of private open space; non-compliances with the DCP; architectural design and lack of information. A subsequent meeting between the parties included discussions about Council’s request for the bulk and density of the development to be reduced.

29. An amended plan was provided to Council on 23 August 2016, which resolved some but not all of Council’s concerns. An amended concept plan was provided to Council on 3 November 2016. While representing what Council described as an improvement on the original proposal, on 14 December 2016 the Applicant was advised that the proposal remained inconsistent with the surrounding locality and was not in keeping with the character of the area or compatible with the streetscape. Council then determined the DA by refusal on 30 December 2016.

30. Subsequent to the filing of this appeal on 15 March 2017, the Applicant successfully sought leave twice to rely upon amended plans. On the second occasion, the application for amendment was made at the start of the hearing, supported by a Notice of Motion. In submissions from the Applicant the amendments were said to arise out of suggested changes made in the course of the expert conferencing process. The Applicant’s Notice of Motion also sought an order that the Applicant pay the Council’s costs, pursuant to s 97B(2) of the EPA Act.

31. In the event, the Council did not oppose these amendments, subject to the award of costs. The experts were also available to explain the amendments, and were available for cross-examination as required. The Council also submitted that in its view, notification of the further amended plans to objectors to the proposal was not necessary. On this basis, leave was grated for the amended plans to be relied upon by the Applicant. These plans became Ex A (Architecture) and G (Landscaping).

32. Following the hearing of that motion, a further preliminary but substantive matter arose. The Council made an application to amend its Statement of Facts and Contentions, introducing a new contention that there was a further reason to oppose the granting of development consent: the provision in cl 4.1 relating to minimum subdivision lot size meant that development consent ought not be granted due to the proposed sizes of the lots following subdivision. The Council referred to the recent decision of DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 1358. In that decision, the exception referred to in cl4.1(3) applied to subdivisions, including strata subdivisions. The Council’s argument in this case was that because the approval sought by the Applicant included a strata subdivision, the Applicant could not rely upon the exception contained in cl 4.1(4). The Council further submitted that the application was put as a matter of discretion and not law.

33. This was a new contention from the Council, and an attempt to introduce a new element of the case the Applicant was required to answer at the last possible moment. The Applicant rejected the Council’s characterisation of the DM & Longbow case, seeking to distinguish it from the present case and pointing to the existence of at least two arguments that could be made against the Council’s late submission, if the Applicant had the necessary time to prepare to meet this fresh and significant matter. At no time, complained the Applicant, during the lengthy interaction between the Council and the Applicant - in excess of a two year period - had the Council raised this concern.

34. After considering the application by the Council, and hearing submissions from the Applicant, I indicated that I would be prepared to grant the Council’s amendment, but only on the basis that the Council give an undertaking as to costs to be incurred by the Applicant, as an adjournment would be necessary to allow it to deal with the matters raised. In the event, the Council declined to provide an undertaking as to costs which would have been incurred by the Applicant as a result of meeting this new contention. The Council’s application to amend its Statement of Facts and Contentions was thus refused, and the case proceeded, moving to submissions and evidence.

35. At the beginning of the second day of the hearing, the Council again raised the matter of minimum lot size for subdivision, on this occasion arguing that there existed in effect a jurisdictional bar to approval: the Court could not legally approve the proposed strata subdivision because it contravened the minimum allotment size development standard specified under cl 4.1(3) of the Camden LEP.

36. In contrast to its application for amendment the previous day, Council now submitted that, as a question of law, the Court must be satisfied that the Applicant could properly rely upon the exception to the rule regarding lot sizes as set out in cl 4.1(4) of the Camden LEP. Council’s position was that if the exception set out in cl 4.1(4) were not available to the Applicant, in the absence of an acceptable and well-founded application under cl 4.6, that part of the application dealing with subdivision must be refused.

26. Given the circumstances, after hearing submission from both parties, I directed the parties to provide the Court with written submissions on the application of cl 4.1 to the consent sought and the availability of the exemption provided in cl 4.1, such submissions to address how the proposed consent sought by the Applicant could be granted so as not to breach the development standard set out in cl 4.1. I also granted the Applicant leave to submit a cl 4.6 application should it wish to do so.

27. In response to the Council’s pressing the issue, on the afternoon of the second day of the hearing the Applicant sought leave to amend its application to seek consent for strata subdivision into 3 lots (as opposed to 9 lots), all of which comply with the minimum lot size of 450m2 required by cl 4.1(3) of the Camden LEP, being approximately 732m2, 770m2 and 698m2. By virtue of that amendment, the Applicant’s position was that the issue of minimum lot size did not arise. This amendment is reflected in Exhibit “O” (being a document entitled “Strata Plan” prepared by Terry Bartlett, in lieu of drawing DA-0-110 Revision C titled “Draft Strata Title Plan” prepared on 3 July 2017). Leave was granted by the Court for the Applicant to make this amendment.

28. Having been raised twice in the course of the hearing, the matter with respect to minimum allotment size arose on a third occasion, this time through the Council’s proposed draft conditions of consent. The Council proffered draft conditions which included at condition 1(13) what amounts to a prohibition against further subdivision. This condition is set out in full:

(13) No Approval for Further Subdivision - The land must not be further divided from the approved three lots strata subdivision so as to create any additional lot for separate disposition. For the purpose of this condition, a division includes but is not limited to a division effected:

(i)    by conveyance, transfer or partition, or

(ii)    any agreement, dealing, plan or instrument rendering different parts of the land available for separate disposition including by way of strata subdivision or company title.

The reasons for this condition are:

a) if nine strata lots were ultimately created upon reliance on this consent and one or more later complying development certificates to further subdivide each of the three approved strata lots (which would be able to be approved in the absence of this condition), each of the resultant strata lot sizes would fail to conform with the minimum allotment size of 450m2 per lot as required by clause 4.1(3) of the Camden LocalEnvironmental Plan 2010;

b) creation of a nine lot strata subdivision would subvert proper town planning process, rigour and assessment by facilitating variation of a development standard without the need to address the statutory test to vary a development standard incorporated under clause 4.6 of the Local Environmental Plan

c) the extent to which the 450m2 minimum allotment size would be varied under an ultimate nine lot subdivision does not represent an appropriate degree of flexibility in applying the minimum allotment size development standard;

d) a nine lot subdivision would result in lot sizes that fail to ensure that the final subdivision reflects and reinforces the predominant subdivision pattern of the area, contrary to clause 4.1(a) of the Camden Local Environmental Plan 2010;

e) a nine lot strata subdivision would not result in better outcomes for and from development;

f)    the ultimate approval of a nine lot strata subdivision, would undermine the integrity of controls of the CamdenLocalEnvironmentalPlan2010 and the Camden Development Control Plan and would therefore not be in the public interest; and

g) there is public benefit in maintaining the minimum allotment size development standard and processes to properly assess any variation sought to the standard.

The above reasons remain relevant even if further subdivision sought fewer than nine ultimate lots, it being noted that none of the three approved strata lots is capable of division without breaching the 450m2 development standard.

40. Given my findings on matters of merit, it is not necessary for me to decide the question regarding potential further subdivision of the land into 9 lots (the subject of the original application), or to consider the appropriateness of this condition in this judgment.

Site Visit and Objector Evidence

41. On 20 July, in company with the parties, their legal advisers and experts (collectively, the Parties), I attended a site visit where five objectors also gave evidence. The dimensions of the proposed development were marked out by pegs, and height poles indicted the highest point of the hipped rooves of the three buildings. In the course of that site visit, in company with the Parties, I walked in a northerly and north-easterly direction, along Newmarket Street, and in a westerly direction along Caulfield Close. I was invited to take note of the setbacks of the existing dwellings (in particular the splay corners), their style and character, the separation between them and the general character of the locality. Features which were pointed out included the adjoining E4 zone. We also walked across a small bridge spanning a riparian zone to the local children’s playground.

42. Five objectors spoke against the proposal. In general terms, these submissions raised objections relating to: the impact of the development on local traffic; concerns about access and egress for emergency vehicles; overshadowing; bulk and scale; privacy impacts; size of the lots after strata titling; as well as their understanding of the type of development that would be built when they purchased their properties.

The Matters in Contention, the Expert Evidence and Findings

43. Expert evidence was provided for the Applicant by Mr Nigel Dickson (urban design) and Mr John O’Grady (town planning), as well as Mr Tim Michael (engineering). For the Council, Mr Brett Newbold (urban design and town planning) and Mr Thang Ma (engineering) provided expert evidence. The engineering issues were able to be resolved through the imposition of conditions with the result that the engineers were not required to give evidence.

44. The town planners conferred, as did the urban designers. They produced a joint expert report [Ex K], which contained considerable matters of detail, and gave oral evidence at the hearing. There is significant overlap in the evidence of the town planners and the urban designers.

45. Before turning to the detailed evidence of the experts and my findings thereon, I will deal with the preliminary question of permissibility of a multi-dwelling development on the Site.

Permissibility of Multi-dwelling development on the Site

46. I find that a multi-dwelling development is permissible in the zone, and meets the zone’s objectives. The minimum allotment size under cl 4.1 of the Camden LEP is 450m2. That clause also contains a carve out for the subdivision of individual lots in a strata plan. The meaning of this carve out has been the subject of vigorous contest in the running of this appeal.

47. On a plain reading of the clause, provided the minimum allotment size is met, a permissible development can be placed upon it, subject to relevant planning controls. Under the R1 zone a range of housing is permitted with consent, including multi-dwelling houses, defined above at [10]. What the Applicant proposes to do – consolidate four lots of land into three, and then place three buildings on those three lots of land, each of which complies with the minimum allotment size, and then strata subdivide the land into three lots, each of which is larger than 450m2 – is again, on its face, permissible, subject to a merit assessment.

48. The R1 General Residential zone makes provision for a wide range of housing types, to be constructed within the context of the zone’s objectives. One of these objectives includes the provision of a variety of housing types. The experts have agreed that a range of dwellings is permissible with consent in the R1 zone. The Camden LEP and Camden DCP acknowledge that medium density housing can co-exist with single dwellings in the R1 zone, which zone also permits two storey and multi-dwelling housing.

49. The Council sought to argue that the Site was not suitable for the development, in part because there are areas with smaller lot sizes (200m2) which provide the opportunity for a more dense development, typically areas known as the “gateway” sites in the Manooka Valley Masterplan [Ex 2, p.477]. Lot size, says the Council, drives the desired density. Council also pointed to the existence of the R3 zone as providing an opportunity for medium density development.

50. I do not accept the argument that the existence of areas with smaller lot sizes, or indeed the existence of the R3 medium density zone, prevents multi-dwelling development from proceeding in the R1 zone.

51. True it is that this development, if approved, would represent the first multi-dwelling development within this part of Manooka Valley, but that in itself in my view would be no bar to the granting of development consent. While Mr Newbold opined that the scale, mass and design character of any multi-unit development would appear inherently different to detached dwellings which define streetscapes that surround the Site, if the existence of difference were to be used as the correct yardstick by which development were measured to be acceptable or not, the only development which could ever be permitted on the Site would be more of the same existing development, at a time when the future character of the locality, which is in transition, is still emerging. I concur with the Applicant that attached dwellings and multi-dwelling development are anticipated by the planning controls. They provide a cue for future character, which includes a variety of housing types.

52. The Applicant placed reliance on the decision of McClellan CJ in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399. In that case, his Honour held at [117] that

[i]n the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor… planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted.

53. His Honour went on to hold at [118] that

[i]n most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.

54. I respectfully follow his Honour’s reasoning in this case, for the reasons I have set out. Having found that a multi-dwelling development is permissible on the Site, and in keeping with his Honour’s decision cited above, I accept the Council’s submission that the fact that a development is permissible under the relevant controls is not the end of the matter: it must still be assessed, taking account of development controls, including the relevant DCP, which in this case is the Camden DCP.

55. Below I set out the Council’s contentions, the evidence of the experts, and my findings.

Matters in Agreement

56. In their joint report, the experts agree that the Site is visually prominent, and with respect to design, the relevant controls are section D2.3.3, D2.2.3 and D2.1.7 of the Camden DCP [Ex K [19]]. These controls require that the development blend with its surroundings and be compatible with the streetscape. The experts also agree that the relevant definitions of compatibility and measures that would contribute to it are provided by the planning principles set out by Roseth SC in GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268 and Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at [22] – [31].

57. Key extracts of the Project Venture decision are set out below:

22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.

…

24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked.

Are the proposal’s physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.

Is the proposal’s appearance in harmony with the buildings around it and the character of the street?

…

26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal’s assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character.

58. In oral evidence, the experts also emphasised the importance of compatibility in ascertaining whether the development represents a good “fit” for the area. The concept landscape plan showing the footprint of the proposed development appears below.

Matters in Dispute

60. The experts are in dispute as to the following: whether the Camden DCP requires a 6 m front setback, which is the view of Council’s experts, or whether a 4.5 m view is the correct setback (the Applicant’s position), and whether encroachments affect setbacks at street corners. In addition, there is a contest with respect to the proper interpretation of principal private open space (PPOS) in the Camden DCP, and whether 9 units in question receive at least 3 hours of sunlight to 50% of PPOS in mid-winter. The experts also disagreed as to the interpretation of compatibility of the development within the adjoining residential context. Speaking generally, there is also disagreement with respect to overdevelopment, amenity and design.

Overdevelopment and Setbacks

61. The Contention: Nine dwellings represent an overdevelopment of the Site according to design solutions which have been demonstrated by the amended proposal, and also having regard for development controls that require a “high standard of urban design” as well as a “high level of amenity for residents”: Amended Statement of Facts and Contentions, Ex 1 at [B.4].

62. Mr Newbold for the Council says: the overarching design quality objectives for multi dwelling housing are at D2.2.3; visual impacts are influenced by excessive site coverage; there are insufficient front setbacks and landscaped separation; there is an inability to accommodate indigenous canopy trees that might act as a screen. With respect to amenity of private open spaces: there is unsatisfactory amenity for 5 out of 9 dwellings due to excessive site coverage, inappropriate siting of buildings, and insufficient separation between buildings. Collectively, Mr Newbold says, these factors indicate the proposed dwelling density is excessive.

63. Mr Newbold’s response to the Council’s principal objections to the development is a proposal which contains 8, not 9, units, as he proposes at Attachment 2 of the Ex K. The key elements of that alternative design include reconfiguration of units facing Newmarket Street as a pair of semi-detached dwellings which are sited behind carports; reconfiguration of units facing Penola Street and Geraldton Drive as a semi-detached pair plus an offset but partly-attached corner dwelling; wider landscaped setbacks facing Newmarket Street and the splayed street corner boundaries; increased separation between adjacent buildings, which allows for private open spaces that are larger and broader; and simplified building forms and roofs: Ex K at [31].

64. Mr Dickson for the Applicant responds to Mr Newbold in the following way: he says the building types are permissible; site coverage and landscape areas comply with the Camden DCP and are reasonable; percentages of site coverage and landscape provision are very similar to adjoining houses; the FSR is 0.49:1 which is comparable to surrounding developments; front setbacks meet design controls for multi dwelling and attached dwellings and are very similar to most of the housing in the immediate vicinity of the Site. Mr Dickson also comments that roof forms of the development have been changed as a result of the conferencing process, removing gabled ends and incorporating more hipped roof designs throughout.

65. According to Mr O’Grady for the Applicant, there is no overdevelopment of the Site because: its presentation to the street is different to other housing stock, as it comprises attached dwellings (permissible in the zoning) thus it is not inconsistent but provides variety; the facades are articulated and include details in fenestration, roof form and portico structures to provide visual variety and interest; and building height is consistent with the controls and with other housing in the neighbourhood.

Finding

66. I find that this particular development represents an overdevelopment of the Site. Put simply, fewer units on the Site would result in improved amenity for the development’s future residents.

67. The relevant objectives at D2.2.3 include high quality residential developments which feature a high standard of urban design and high amenity for residents, as well as sites with significant site area to accommodate appropriate setbacks and open space areas.

68. This development provides an example where despite substantial numerical compliance with measures set out in the DCP (for example, with site and landscape coverage, and setbacks), nonetheless a high level of amenity has not been achieved. In particular, some of the private open spaces attached to the units are awkward in shape (for example, units 8 and 9) and suffer from being closed in by adjacent roof forms. I accept that the updated design with partially-hipped rooves (in place of end gables) and other roof modifications result in an improved design, but in my opinion this does satisfy the requirement of the provision of a high standard of amenity for the residents.

69. My finding with respect to overdevelopment remains even though I prefer Mr O’Grady’s evidence regarding the disputed setback distance. Mr Newbold says that the correct setback for Newmarket Street and Penola Street is 6m due to the primacy of Table D10 at D2.3.3 (Manooka Valley), which specifies the front setback of a residential building on north-facing lots fronting “Main Street”. The setback for Geraldton Drive is 4.5m.

70. Mr O’Grady points out the ambiguity in the control in the absence of any definition of “Main Street”. He also points out that Figure C28 in the Manooka Valley Road Hierarchy Plan, which identifies street forms, identifies the three streets on which the Site is located as “local streets”. Such a designation is incompatible with a designation of these roads as being a “Main Street”. The increased setback requirement is not clearly enough defined to require its application to the Site. In the absence of a planning objective behind the additional setback, there is no positive outcome for its imposition.

71. I prefer the Applicant’s argument on this point. That being so, I find that the relevant setback for the development is 4.5m, which is satisfied by the design. I also accept the Applicant’s argument that the encroachments by the development on the splayed corners of Units 3 and 7 are not such as to warrant refusal of the development, as they are consistent with the setbacks in the immediate context.

Design Details

72. The Contention: Details of architectural and landscape design are not consistent with the Council’s vision, and accentuate the scale and mass of proposed building forms. The relevant considerations are provided by the objectives and controls in sections B2, D2.1.7 and D2.2.3 of the Camden DCP: Ex 1 at [B.3].

73. From an urban design perspective, Mr Newbold says (at [20](iv) of Ex K) that planning and design of the development have not moderated the scale of mass to an extent that would achieve reasonable compatibility with surrounding streetscape, and that the building frontages of 24 m to 28 m are twice the width of front facades of surrounding dwellings.

74. He also raised concerns regarding: insufficient diversity in the design treatment for facades; the visual prominence of the Site means direct visual comparisons between the development and surrounding streetscapes are available along all three streets which bound it; and planning and design (for example, repetition of identical dwelling modules) have not moderated scale or mass to an extent that would achieve reasonable compatibility with the surrounding streetscapes. Mr Newbold’s criticism extended to the presence of long dimensions of building frontages, leading to greater mass and horizontal scale.

75. In response, Mr Dickson made reference to dwellings at 25 and 31 Newmarket Street that have lengths of 21.9 m and 18.35 m. He also referred to the presence of two storey buildings within 200 - 250 m of the Site, which have similarities to the proposed development, and the fact that the buildings have variety in form due to orientation, street address and different lot sizes. There are elements which satisfy the “forms of differentiation and interest” sought by the DCP. The scheme has three different types of individual house plans each with different widths which also results in differences in built form elements. The criticism as to repetition is misplaced, as D2.2.3, under the heading of Image and Legibility, states that:

It is recognised that there may be instances in a planned development where repetition of a design element is used to create a theme development. These proposals will be considered on the merit of the design.

76. Moreover, says Mr Dickson, the bulk of the buildings is well articulated with a clear variety of roof forms; garages do not dominate the streetscape and all parking is in tandem garages and set back behind the building alignment; the building width dimensions of Building 1 and 3 (27.8 m) and Building 2 (24.25 m) are not dissimilar to other buildings; no gabled roof form is proposed facing the street and the massing of houses is reduced by all roof lines having hipped profiles to reduce visual bulk in response to concerns raised earlier by Mr Newbold. Taken together, Mr Dickson says the proposed built form is compatible with the character of the area.

77. As far as design details are concerned, Mr Dickson says that the scheme utilises materials similar to those used in nearby developments; it uses porticos and bay windows, which are elements of D2.1.7 C2; elevations at Newmarket street are similar to the sample elevation included in the Camden DCP at Figure D3 in D2.1.7; the Site coverage at 43% of the overall development is comparable for most developed lots nearby and the landscape area of 44% is comparable to and above nearby properties. The building height is less than the other 2 storey buildings in the area, and not “remarkably higher” than single storey dwellings with long pitched roof forms. In addition, amended landscape plans include endemic indigenous species.

Finding

78. I find that the mass and scale of the development to be excessive. Notwithstanding the existence of buildings in the locality with lengths of some 22 and 18 m, these are still a considerable way short of the lengths presented by the development. Further, those lengths (relied upon by the Applicant to support the lengths of the buildings in the proposed development) are not at the front of the buildings, but to the side. I find that there is too much bulk in the development relative to the surrounding streetscapes. While the building height may be “not remarkably higher” than single storey dwellings with long pitched rooves, nonetheless the scale of the development, due to the length of the buildings, will be significantly greater than the surrounding streetscape.

79. Notwithstanding this overall finding, I do not accept Mr Newbold’s criticism with respect to the repetitious elements present in the design: as Mr Dickson has said, there is an opportunity for repetition to create a themed development, and this is what is proposed.

80. As with the contention regarding overdevelopment, a key consideration from a merit perspective is that of compatibility. These findings do not suggest that it is not possible to have attached or multi-dwellings in the zone. Rather, it is my finding that the scale of this particular development is out of step with the surrounding development.

Residential Amenity

81. The proposal (as amended) does not ensure that all private open spaces achieve a high level of amenity for residents. Reliance was placed on the objectives and controls in sections D2.1.5 and D2.2.3 of the Camden DCP: Amended Statement of Facts and Contentions, Ex 1 at [B.2].

82. The controls with respect to principal private open space (PPOS) are set out above at [17] and [18].

83. With respect to PPOS, Mr Newbold says the following: PPOS should include an area which is designed to accommodate intensive outdoor living, such as terraces located adjacent to living or dining rooms, but not spaces located next to back fences.

84. Mr O’Grady disagrees with this interpretation, stating that for Mr Newbold’s definition to apply, there would need to be reference to a maximum length from the living zone of the dwelling.

85. As far as amenity of private open space is concerned, Mr Newbold says that if PPOS is considered to comprise paved terraces and gardens adjacent to living rooms, 5 of the dwellings get less than 3 hours of daily sunlight to at least 50% of PPOS, which results in unsatisfactory amenity for those 5 units. Considering amenity generally, he says that the controls are to provide a high level of residential amenity; the proposed private open spaces for 2,3,7 and 8 have L-shapes incorporating relatively narrow areas, substantially concealed behind garages, hemmed between two storey walls of neighbouring dwellings and gable ends above garages up to 4 m high, overshadowed during midwinter; and the outlook from living rooms in 1 and 7 are restricted by dimensions and configurations of private open spaces, and living rooms recessed behind garages and store rooms.

86. Mr Dickson opines that the PPOS areas are located to the open plan living room, kitchen and dining at the ground floor; and emphasises that private open spaces all receive sunlight in midwinter. Lot 8 faces south, and consequently does not have much access to sunlight in mid-winter, but its open plan living area allows ready access to north side of the dwelling, that is, the front setback, which has extensive sunlight. The proposed dwellings have reasonable solar access to private open spaces, and Lots 1-7 and 9 have greater than 3 hours of solar access generally in midwinter. The control recognises and makes allowance for south-facing private open space. There is additional space to compensate: many lots have more than 24m2 private open space to compensate for orientation.

Finding

87. I find that the development provides insufficient amenity for residents. In particular, the proposed private open spaces of units 2,3,7 and 8 are awkwardly configured. There is also a failure to comply with solar access to PPOS required by the Control.

88. The experts disagreed about whether PPOS had to be an area which was adjacent to the living zone, and much of Mr Dickson’s evidence was focused on solar access available to POS as opposed to PPOS. However, by its wording, the control is seeking to encourage the provision not only of solar access, but solar access which can be enjoyed in close proximity to the residence, for example through a courtyard “directly connected to a living zone of the dwelling”.

89. I prefer Mr Newbold’s evidence that logically, the PPOS should include an area which is designed to accommodate intensive outdoor living. The control has some specificity to it: if the Applicant’s construction were to be preferred -that private open space and principal private open space can be effectively read to mean the same thing- there would be no work for the definition of PPOS to do. Notwithstanding the requirement for sunlight to reach at least 50% of the PPOS for not less than three hours between 9 am and 3 pm, the degree of compliance of solar access has been measured by the Applicant on the basis of sunlight to private open space [Ex K, att 4, drawing DA-0-002]. Using POS as the measure, every unit except one – unit 8 – receives more than 3 hours solar access in midwinter. Unit 8, being south facing, receives only one. However the control is that PPOS, not POS, receive a minimum of three hours solar access in mid winter. On that basis, it was conceded by Mr O’Grady that units 3, 7 and 8 do not get three hours of solar access to PPOS in midwinter. This to me results in unacceptable amenity.

Public interest

90. The proposal is not in the public interest, having regard to the contentions noted above, as well as the issues raised in the public submissions, including the public’s submissions as to: the proposal not being in keeping with the Manooka Valley area; inadequacy of parking; concern regarding pedestrian safety; the proposal’s representing an overdevelopment of the Site and the impact on neighbours’ privacy: Ex 1 at [B.6].

91. Council has not raised a contention with respect to traffic, and the experts agreed that there are no concerns with pedestrian safety. Further, concerns about privacy have not been pleaded by Council, and according to the experts, do not arise because of the location and orientation of windows, and separation between the Site’s rear boundary and proposed rear windows. I am satisfied that such matters are not of such a nature as to warrant refusal of consent.

92. Other matters raised in the public interest contention have been substantially dealt with above.

Further Discussion

93. The Camden DCP (at A1.9) provides the capacity to vary the controls contained within the DCP. That provision states that Council may grant consent to a proposal that does not comply with all the relevant controls, providing the objectives of the controls are achieved. Each application will be considered on its merits. On the flipside, consent may be refused despite compliance with set standards.

94. Leaving aside the question of weight to be given to the DCP, Mr Dickson has thoroughly assessed the proposal against the numeric Controls contained within the DCP. I find that, save for solar access, the Controls therein are substantially complied with by the proposal. However, numeric compliance is not the end of the matter.

95. In this case, as set out above, I find that the proposed development is an overdevelopment of the Site and does not achieve a high level of amenity in private open space and principal private open space.

96. A major contest in this hearing was the matter of compatibility of the development within the adjoining residential context. With respect to length of buildings relied upon by the Applicant, the Council submits that neither of the lengths offered as a favourable comparison to the proposed development relate to the primary frontage of the dwellings, but rather relate to a secondary frontage on a corner lot. The Council concedes that expectations for a side building differ from the front of a building, but the proposed buildings are still 50% wider than “prevailing worst case scenarios”.

97. In its submissions, the Council does not agree with the proposition that mulit-dwelling development housing cannot be expected to look the same as single dwellings, submitting that it is possible to have structures that look like one home. While I do not support this submission, I find that a less bulky development would be more compatible with the character of the area.

98. Mr Newbold has advanced an alternative concept design of eight units as satisfactorily addressing the Council’s concerns with the development: Ex K at Att 2. Whether or not a fresh design incorporating these kinds of changes (as have been suggested by Council’s expert) would result in approval is a matter to be addressed if such an application were to be made, and is not a matter upon which is it appropriate for me to comment: Manzie v Willoughby City Council [1996] NSWLEC 26.

99. The challenge raised by this development, in my view, is as much about amenity for the future residents as it is about compatibility. As far as PPOS is concerned, the control dealing with this seeks to promote high levels of amenity. The controls expressly differentiate between private open space, and principal private open space. Adopting the definition in the control, PPOS should be confined to land adjacent to the living zone of the dwelling, which is what is contained within the clear words of the control. The plans upon which the Applicant seeks to rely do not nominate the location of PPOS, as was conceded by the Applicant’s expert. By Council’s estimate, there are several units (2,3,7 and 8) which do not meet the Council’s interpretation, which interpretation I adopt, of what is required by the control.

100. The Applicant pressed that where there is no asserted non-compliance with the Camden LEP, it is appropriate to consider the DCP: s 74BA EPA Act. Under that section, the purpose of a DCP is to provide guidance on specified matters, giving effect to the aims of any environmental planning instrument that applies; facilitating permissible development and achieving the objects of land zones under any such instrument. Moreover, the DCP is to be applied flexibly. Accordingly, the Court was urged to give the development favourable consideration.

101. With respect to private open space, and principal private open space, the Applicant adopts the position that there is nothing prohibiting those types of space from being the same space: they do not have to be different. Private open space can also include hard paved and grassed area, and all private open spaces are directly connected to living areas.

102. The Applicant also urges a flexible approach to be taken with respect to solar access. In order for compliance to be achieved, the Applicant could have reduced the area of private open space in order to argue that 50% of solar access is provided to a smaller space. It has not done so. While the development may not strictly achieve three hours, it presses its submission that there is still reasonable amenity to all units.

103. The Applicant cited the decision of Moore C and Brown C in Jacques Avenue Bondi Pty Ltd v Waverley Council [No 1] [2003] NSWLEC 421, in which the Commissioners encouraged a holistic approach to the assessment of amenity, citing with approval Professor Webber (at [89]) who suggested “a dwelling unit that receives little sunlight but has reasonable amenity standards for outlook, privacy, noise, internal layout, accessibility, and transport availability may be entirely acceptable”. The Commissioners went on to find “as in most planning exercises it is a question of balancing the always competing components of a proposal. It is neither practical nor appropriate to reject a proposal simply because it fails to satisfy every applicable standard”: [91].

104. Applying the balancing test as I am required to do, I find that the development does not satisfy that which is required of it by the planning controls applying to it, even allowing for a flexible approach, and the fact that in the construction of most developments there are necessarily compromises along the way. The Council’s position is that the Site is unconstrained and presents design opportunities, and should be able to provide excellent amenity for its occupants, as well as satisfying the standards for minimum amenity under the Camden DCP. This is a position with which I concur.

105. With respect to the public interest contention, I adopt the view of the Applicant’s town planner with respect to the Site’s suitability for medium density development due to its proximity to significant public open space and existing or planned public transport; and its contribution to housing choice in the form of medium density housing which is envisioned but not yet delivered in Manooka Valley. However, on balance, for the reasons I have set out, the public interest is not met by this development.

Orders

106. The Orders of the Court are:

1. The Applicant is granted leave to amend its development application by substituting the plans comprising Exhibit A and Exhibit L as the plans relied upon for the purposes of the development application.

2. Pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the Respondent’s costs that are thrown away as a result of amending the development application, as agreed or assessed.

3. The appeal is dismissed.

4. Development Application No 357/2016 for consolidation of four lots, the erection of three buildings each of two storeys and containing three attached dwellings, strata title subdivision and site works including landscaping, stormwater drainage and service connection, is determined by refusal.

5. The Exhibits save for 1,4, H and K are returned.

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Senior Commissioner Martin

Decision last updated: 04 May 2018