Mendo v Liverpool City Council

Case •

[2020] NSWLEC 1655

•

16 December 2020

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Mendo v Liverpool City Council [2020] NSWLEC 1655
Hearing dates: 16 and 17 September 2020
Date of orders: 16 December 2020
Decision date: 16 December 2020
Jurisdiction:Class 1
Before: Chilcott C
Decision:

The Court orders:

(1) The appeal is dismissed.

(2) The Applicant’s development application DA-52/2019 seeking consent for construction of a multi dwelling housing development consisting of three dwellings and associated strata subdivision is determined by way of refusal.

(3) The exhibits are returned, with the exception of Exhibits A, C and 1.

Catchwords:

DEVELOPMENT APPLICATION – multi-dwelling development – application of setback controls in development control plan – adequacy of private open space – potential overshadowing impacts – proposed development does not provide a reasonable alternative solution to achieve objectives of controls

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment

Land and Environment Court Act 1979

Liverpool Local Environmental Plan 2008

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy

Liverpool Development Control Plan 2008

NSW Land Registry Services, “Glossary” < accessed 8 December 2020

Category:Principal judgment
Parties: Ammar Mendo (Applicant)
Liverpool City Council (Respondent)
Representation:

Counsel:
A Gough (Solicitor) (Applicant)
S Berveling (Respondent)

Solicitors:
Storey and Gough (Applicant)
Liverpool City Council (Respondent)
File Number(s): 2019/238186
Publication restriction: No

Judgment

  1. COMMISSIONER: Ammar Mendo (the Applicant) has appealed the deemed refusal by Liverpool City Council (the Respondent) of his development application DA-52/2019 8.2016.114.1 (the Subject Application) for construction of a multi-dwelling housing development consisting of three dwellings and associated strata subdivision (the Proposed Development) at 1 Billet Road, Edmondson Park, also identified as Lot 12 in DP1219985 (the Subject Site).

  2. The Subject Site is located on the corner of Billet Road and Burrows Avenue, adjacent to a public reserve associated with Cabramatta Creek, and is zoned R1 General Residential under the provisions of Liverpool Local Environmental Plan 2008 (LLEP). The location and orientation of the Subject Site in relation to its adjoining roads is provided below (shaded in yellow) which is taken from the NSW Government Six Maps website.

  1. The Subject Application, which seeks consent for construction of a multi-dwelling housing development with three dwellings including strata subdivision of the land, is made with owner’s consent and is permissible within the R1 zoning of the Subject Site.

  2. The Applicant’s proposed strata subdivision boundaries are illustrated in following extract from the Applicant’s Subdivision Plan (Dwg 21; Issue J) prepared by Mencon Pty Ltd, and to which a north directional arrow has been added.

  1. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and is determined under the provisions of s 4.16 of that Act.

  2. The Respondent has confirmed that the Subject Application had been notified as required under the EP&A Act, and the Environmental Planning and Assessment Regulation 2000, and Liverpool Development Control Plan 2008 (LDCP).

  3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy a site view was not undertaken prior to the commencement of the hearing, and the hearing proper was conducted by Microsoft Teams. No objectors sought to make submissions to the Court in relation to the proceedings.

  4. The Applicant was granted leave by the Court on 8 September 2020 to rely on amended plans, which were referred to during the hearing as the ‘Issue I’ plans.

  5. During the hearing the Applicant was granted leave to rely on further amended plans, without objection, and these plans were referred to as the ‘Issue J’ plans.

  6. The Respondent advised at the commencement of the hearing that, as a consequence of the Applicant having been granted leave to rely on its further amended plans, and on the basis of draft proposed conditions of consent:

  1. the following matters that had been in contention between the parties had been resolved:

  1. a contention concerning flooding impacts;

  2. a contention concerning the management of stormwater;

  3. a contention concerning the quantum of landscaping proposed by the Applicant.

  1. the following matters that had been in contention remained pressed in the appeal:

  1. the adequacy of the southern and eastern setbacks of the Proposed Development;

  2. the acceptability of the private open space within the Proposed Development;

  3. the potential overshadowing impacts of the Proposed Development on neighbouring properties;

  4. the acceptability of the quality of the Applicant’s proposed landscaping;

  5. the adequacy of proposals for the provision and location of street trees by the Applicant;

  6. the acceptability of the internal amenity of the proposed dwellings;

  7. the availability of adequate storage within the proposed dwellings; and

  8. the design and functionality of the garages within the Proposed Development.

  1. The Respondent also said that, notwithstanding the fact that the Proposed Development complied with the floor space ratio (FSR) development standard applicable to the Subject Site under the provisions of cl 4.4 of LLEP, the bulk and scale of the Proposed Development represented an overdevelopment of the Subject Site. As a consequence, the Respondent submitted that the Proposed Development breached numerous controls within the Liverpool Development Control Plan 2008 (LDCP) applicable to development on the Subject Site, and therefore should not be approved.

Statutory context

Environmental Planning and Assessment Act 1979

  1. Section 4.15(3A) of the EP&A Act provides as follows:

3A Development control plans

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority –

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

Liverpool Local Environmental Plan 2008

  1. Development on the Subject Site is subject to the provisions of LLEP. The following provisions of LLEP are of particular relevance in this appeal:

  1. Clause 2.1, which establishes land use zones within the area to which the plan applies as provided in cl 2.2 of LLEP.

  2. The Subject Site is zoned R1 General Residential, and under the provisions of cl 2.3 of LLEP:

  1. the objectives of this zone are to:

• provide for the housing needs of the community.

• provide for a variety of housing types and densities.

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

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

• facilitate development of social and community infrastructure to meet the needs of future residents.

  1. a multi-dwelling housing development, such as is proposed in this matter by the Applicant, is permissible within the R1 zoning of the Subject Site;

  2. the dictionary in LLEP defines multi dwelling housing as:

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.

  1. Clause 7.11 of LLEP which concerns minimum dwelling density in relation to the subdivision of land, and in relation to which:

  1. the Subject Site falls within an area that is subject to a minimum dwelling density of 17 dwellings per hectare as confirmed in the Dwelling density map – sheet DWD-009 of LLEP; and

  2. the subdivision under which the Subject Site was created complies with its required minimum dwelling density;

Liverpool Residential Development Control Plan (2008)

  1. The Proposed Development is subject to the provisions of Liverpool Development Control Plan 2008 (LDCP), and following are the provisions of relevance to this appeal:

  1. Part 1 of LDCP which provides guidance for all residential development and which includes the following definitions of relevance in this appeal:

“Private open space

An open area of land or building attached to a dwelling (e.g. balcony or roof garden) intended for the exclusive use of the occupants of the dwelling, being located and designed so as to offer maximum privacy to occupants and neighbours.

Primary frontage means:

(a) the single frontage where an allotment has a single frontage to the street; or

(b) the shortest frontage where an allotment has two or more frontages to the street; or

(c) the two frontages where an allotment (not including a corner allotment) runs between two streets.

Secondary frontage means:

(a) the longer frontages where an allotment has two or more frontages to the street; or

(b) the frontage that adjoins a lane where an allotment (not including a corner allotment) runs between a street and a lane. A lane is a roadway that is 6m wide or less.

Setback

The horizontal distance measured from an external enclosing wall (including an above ground deck, balcony, and the like), a window, or the eaves of a building, to the:

(a) allotment boundary; or

(b) a window to a bedroom or living area of another dwelling.

Side Boundary

The boundary between adjacent properties.”

  1. Part 2.11 of LDCP which provides controls for development within Edmondson park and which confirms that land zoned R1 general Residential with a minimum dwelling density of 17 dwellings per hectare is identified as Urban Transition with a character described as:

“1. The Urban Transition Character Area is a predominantly residential zone that provides a transition between the more urban higher density and the more suburban lower density character areas. Urban Transition reinforces the legibility and structure of Edmondson Park through the framing of the secondary routes, village centres and parkland.

2. It comprises a range of housing to cater for varying household needs including low rise apartments, attached, semi-detached and detached housing. A minimum net residential density of 17 or 21 dwellings per hectare is required. Lots for detached residential dwellings are typically between 250 and 400sqm.

3. Buildings are predominantly 2 storeys, with potential for 3 storeys along parks, adjacent to ‘Urban’ Character Area, and to reinforce corners. Buildings will contain medium setbacks and good landscaping.

4. The public streetscape is formal in arrangement and transitional in character, containing large trees in soft verges spaced 8m apart.”

  1. Section 4.0 of Part 2.11 of LDCP provides controls for residential development in urban transition areas with a minimum dwelling density of either 17 or 21 dwellings per hectare, and the following objectives and controls are particularly relevant in this appeal:

  1. Section 4.2 concerns site planning and provides:

  1. the following objectives:

“a) To ensure that the dwelling(s) are sensitive to site attributes, such as streetscape character, natural landform, drainage, existing vegetation, land capability, slope, solar access and if relevant, heritage items.

b) To ensure privacy for residents and neighbours.”

  1. The following relevant control:

“1. The dwelling layout must be designed around the site attributes such as slope, existing vegetation, land capability and/or solar access (See Figure 34 for a site analysis plan).”

  1. Section 4.3 concerns required setbacks for dwellings and provides:

  1. The following objectives

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

b) To set dwellings back from each other to provide visual and acoustic privacy.

c) To create a streetscape that provides a desirable and safe environment.

d) To establish a streetscape of a scale and sense of enclosure appropriate to the locality.

e) To maximise the amount of area capable of allowing the growth of trees and shrubs.”

  1. The following relevant controls:

“Front and Secondary Setbacks

1. Buildings shall be setback in accordance with Table 4.

Table 4: Setbacks within the 17 dw/ha area

Front Setback

Secondary Setback

4.5m

2.5

2. For lots containing a dwelling house, the secondary setback is generally along the longest length boundary. For multi-dwelling housing, the secondary setback faces the secondary road, which may be the shorter boundary(s).”

Side and Rear Setbacks

1. Buildings shall be setback from the side and rear boundaries in accordance with Table 5.

Table 5: Side and rear setbacks within the 17 & 21 dw/ha areas

…”

  1. Section 4.4 provides controls in relation to the provisions of private open space, and includes:

  1. the following objectives of relevance to this appeal:

“a) To ensure that private open space is clearly defined, usable and meets user requirements for privacy, solar access, outdoor activities, accessibility and landscaping.

b) To provide all dwellings with private open space.”

  1. the following controls in relation to the required quantum of private open space that should be provided within the Proposed Development:

“1. Private open space shall be provided for in accordance with Table 6for Multi Dwelling Housing, Attached dwellings and Semi-detached dwellings and Dwelling houses.

Table 6: Private open space in the 17 & 21 dw/ha area

2. Private open space areas should be an extension of indoor living areas and be

functional in size to accommodate seating and the like.

3. Private open space should be clearly defined for private use.”

  1. Section 4.8 concerns the avoidance of environmental impacts including in relation to overshadowing, and includes:

  1. the following objective:

“To minimise overshadowing of neighbouring dwellings and their private open space.”

  1. the following controls in relation to managing the impact of overshadowing on neighbouring properties:

“Adjoining properties must receive a minimum of three hours of sunlight between 9am and 5pm on 21 June to at least:

- One living, rumpus room or the like; and

- 50% of the private open space.”

Contentions

  1. As noted above at [11], the Respondent had submitted that the Applicant’s Proposed Development had a bulk and scale that, notwithstanding its compliance with the applicable FSR control, represented an overdevelopment of the Subject Site, and was in breach of a number of controls in LDCP reflecting the remaining contentions in the appeal. These were identified above at [10(2)].

  2. Of those remaining contentions, some related directly to the bulk and scale of the Applicant’s Proposed Development, while others concerned potential amenity related impacts arising from it.

  3. As a consequence, I have framed the principal questions for resolution in the appeal, and the order in which they should be addressed, as follows:

  1. Is the bulk and scale of the Proposed Development acceptable, and in particular:

  1. are the proposed southern and eastern setbacks of the Proposed Development acceptable?

  2. is the proposed amount private open space (POS) within the Proposed Development acceptable?

  3. are the potential overshadowing impacts of the Proposed Development on neighbouring properties acceptable?

  1. Are the potential amenity impacts of the Proposed Development acceptable, and in particular:

  1. is the quality of the Applicant’s proposed landscaping acceptable?

  2. are the Applicant’s proposals for the provision and location of street trees acceptable?

  3. is the internal amenity of the proposed dwellings acceptable?

  4. is the amount storage space within each of the proposed dwellings acceptable? and

  5. is the design and functionality of the garages within the Proposed Development acceptable?

  1. The Court was assisted in its consideration of these questions by the evidence of the expert planners, Mr Glenn Apps for the Applicant, and Mr Peter Nelson, for the Respondent.

  2. The expert planners had prepared a joint expert report in relation to the contentions between the Parties and had provided further comments in relation to the Applicant’s amended ‘Issue I’ plans.

  3. As a consequence of the evidence of the expert planners at the hearing, and the Applicant’s further amended ‘Issue J’ plans, the Parties agreed that the following matters, which had remained in contention at the commencement of the hearing, had been resolved:

  1. the internal amenity of the proposed dwellings which, on the basis of the Applicant’s further amended plans, were agreed to be acceptable;

  2. the amount storage space provided within each of the proposed dwellings which, on the basis of the Applicant’s further amended plans, were agreed to be acceptable; and

  3. the design and functionality of the garages within the Proposed Development which, on the basis of the Applicant’s further amended plans, including swept path analyses, were agreed to be acceptable.

  1. I will now consider those remaining contentions that require resolution in this appeal, dealing first with matters of bulk and scale and concluding with a consideration of matters pertaining to the potential amenity impacts of the Proposed Development.

Is the bulk and scale of the Proposed Development acceptable?

  1. As identified above at [17], the acceptability or otherwise of the Proposed Development’s bulk and scale required consideration of three questions concerning the southern and eastern setbacks within the Proposed Development, the amount of POS within the Proposed Development, and the potential overshadowing impacts of the Proposed Development on neighbouring properties. I will address each of the matters in turn.

Are the proposed southern and eastern setbacks of the Proposed Development acceptable?

  1. This question was the subject of oral evidence from the expert planners (see above at [18]) at the hearing supported by the following reports tendered as evidence:

  1. a principal joint expert report, prepared in response to the Respondent’s contentions, and

  2. a supplementary joint response to the Applicant’s “Issue J” plans, upon which it now relies.

  1. The position and orientation of the Subject Site is provided above at [2] and illustrates that the single lot comprising the Subject Site has a long, north-south, axis and a shorter, east-west, axis.

  2. The orientation of the Applicant’s proposed strata subdivision of the Subject Site is provided above at [4] and illustrates the position and orientation of the Applicant’s proposed three strata plan units. This strata subdivision plan would provide:

  1. two units (Units 2 and 3) occupying the southern portion of the Subject Site, each with a rectangular form, and having a long axis oriented east-west, which is also the orientation of the Applicant’s proposed dwellings on these units; and

  2. one unit (Unit 1) that would occupy the corner position within the Subject Site, at the intersection of Billet Road and Burrows Avenue, with an irregular square form and a less discernible long axis. The Applicant proposes to position a dwelling on this unit with its entry being oriented northwards to face Billet Road.

  1. The setback controls applicable to the Subject Site are provided within section 4.3 of Part 2.11 of LDCP (see above at [14(3)(b)(ii)]).

  1. The expert planners differed in their interpretation on the application of these controls to Proposed Development as follows:

  1. Mr Apps was of the opinion that:

  1. the southern setback of the Subject Site should be considered a side setback as opposed to a rear setback because, inter alia,:

  1. in circumstances where multiple dwellings are proposed on a corner lot, such as the Subject Site, the preferable streetscape outcome would be to have dwellings fronting each street, as proposed by the Applicant;

  2. the southern boundary of Unit 3 would constitute a side boundary in relation to the proposed dwelling on that unit;

  3. if the southern boundary setback were considered to be a rear setback it would result in a significant gap between the southern boundary of the Subject Site and any dwellings on the lot;

  4. requiring the southern boundary to be the rear boundary would require the deletion of the proposed dwelling on Unit 3, and would result in a dual occupancy development with a side setback that would be out of keeping with the character and rhythm of development in the neighbourhood;

  1. Mr Nelson was of the view that:

  1. the primary frontage, secondary frontage, side boundary and rear boundary of corner sites should be determined by reviewing the Subject Site prior to the imposition of a built form such as to identify:

  1. the primary frontage, which would be the site address;

  2. the secondary boundary (which I understand to be the secondary frontage) as the remaining frontage;

  3. the rear boundary which would be the boundary opposite the front boundary (which I understand to be the primary frontage); and

  4. the side boundary which would be opposite the secondary frontage;

  1. in relation to the Subject Site:

  1. the primary frontage is to Billet Road as this represents the street address of the Subject Site;

  2. the secondary frontage is to Burrows Avenue;

  3. the southern boundary represents the rear boundary, as it is opposite the primary frontage; and

  4. the eastern boundary would represent the side boundary of the Subject Site;

  1. the setback controls within LDCP applicable to the Subject Site should then follow the identification of relevant boundaries as determined from a consideration of the Subject Site as a whole;

  2. the form of development proposed for the Subject Site should then reflect a consideration of the controls that flow from the identification of the various site boundaries based on a consideration of the Subject Site as a whole and prior to, rather than in response to, the design of a proposed built form for the Subject Site; and

  3. assessing the compliance of a built form to the setback controls without first establishing how the controls should apply to the entire Subject Site, before the imposition of a proposed built form, would facilitate developments that could “game” the setback controls, and so circumvent the intent of those controls.

  1. Having considered the evidence of the expert planners, I prefer the interpretation of Mr Nelson in relation to the application of the setback controls to the Subject Site for the reasons he identifies (see above at [27(2)]), which I embrace, as well as for the following additional reasons:

  1. the definitions of primary frontage and secondary frontage within LDCP (see above at [14(1)]) make reference to, and rely on, the circumstances of the “allotment” that is the subject of the Proposed Development. While the term allotment is not defined within either LDCP, LLEP or the EP&A Act, it is my view that this term does not refer to the configuration of units proposed to be established under a strata subdivision. Rather, my assessment is that the term ‘allotment’ should be interpreted as referring to a lot or lots that are the subject of a proposed development. I note that this interpretation of the term “allotment”, and my interpretation of its application to the Subject Site in this appeal, are consistent with its definition within the Glossary published by the NSW Land Registry Services (NSW LRS) ( which is as follows:

“Allotment:

The smallest subdivision of land in a section of a town or village map”.

  1. the definitions of primary frontage and secondary frontage with LDCP anticipate that these terms would need to be applied to allotments that have two or more frontages to the street, and the definitions allow for the clear identification of the primary and secondary frontages of Subject Site;

  2. as noted above (at [27(2)(a)(iii)]) I agree with Mr Nelson that the rear boundary should be established as that which lies opposite the primary frontage, and that this is the boundary from which the applicable rear setback controls for any development on the Subject Site should be established. This conclusion is confirmed in my mind by the fact that, in addressing the merits of this appeal, the Subject Site, while being generally, but not perfectly, of rectangular form, does have discernible north-south and east west axes, allowing the front and rear of the Subject Site to be identified;

  1. As a consequence of my finding above (at [28]), I do not agree with the assessment of Mr Apps that the southern boundary of the Subject Site should be considered a side boundary for the purposes of applying the setback controls in section 4.3 of Part 2.11 of LDCP to development on the Subject Site.

  2. As noted by Mr Apps in his written evidence within the joint expert report prepared with Mr Nelson and as recorded above (at [27(1)]), if the southern boundary of the Subject Site is taken to be the rear boundary then the Proposed Development does not comply with the multi-dwelling housing rear setback controls in section 4.3 of Part 2.11 of LDCP. Mr Apps further observed that compliance with that rear setback control would require the Applicant to delete the proposed dwelling on Unit 3 of the Proposed Development. The Applicant’s ‘Issue J’ plans do not envisage the deletion of that dwelling, and any requirement to do so is likely to result in a revised form of development that would differ significantly from that proposed by the Applicant in the plans upon which it relies in this appeal.

  3. Notwithstanding my findings above at [28] and [30], and the observation of Mr Apps, that the Proposed Development does not, and could not comply with the rear setback controls in LDCP, I am required under s 4.15(3A)(b) of the EP&A Act to consider whether the Applicant’s Proposed Development represents a reasonable alternative solution that achieves the objectives of the setback controls in section 4.3 of Part 2.11 of LDCP such that flexibility in the application of those controls might be applied.

  4. The objectives of the setback controls in section 4.3 of Part 2.11 of LDCP were provided above at [14(3)(b)(i)], and:

  1. Objective (a) requires that dwellings should be set back from the street and adjacent properties to provide reasonable space for landscaping, private open space and solar access, and in relation to this:

  1. the Respondent’s original contention in relation to the quantum of landscaping provided within the Proposed Development is now resolved through the provision of the Applicant’s ‘Issue J’ plans (see above at [15]), and so the landscaping aspect of this objective is achieved;

  2. the Respondent’s contentions include that the Applicant’s Proposed Development:

  1. does not provide an acceptable quantum of POS; and

  2. may give rise to unacceptable potential overshadowing impacts on neighbouring properties.

  1. the objectives and controls that guide the provision of POS within the Proposed Development are provided within section 4.4 of Part 2.11 of LDCP (see above at [0]), and require that:

  1. dwellings with a “dwelling size” of between 65m2 and 100m2 should provide 40m2 of POS with a minimum width of 3m; and

  2. dwellings with a dwelling size of between 101m2 and 150m2 should provide 50m2 of POS with a minimum width of 4m;

  1. the POS controls provide guidance in relation to the size of dwellings that are measures to the nearest square metre, and I interpret this to mean that any dimension that is measured to a quantum less than a square metre should be rounded to the nearest square metre, and on this basis the opinions of the experts planners were aligned and confirm that size of each of the dwellings and the proposed amounts of POS for each dwelling in the Proposed Development are as follows:

  1. Dwelling (Unit 1): is 101m2 in dwelling size and requires an area of POS of 50m2;

  2. Dwelling (Unit 2): is 99m2 in dwelling size, and requires an area of POS of 40m2;

  3. Dwelling (Unit 3) is 101m2 in dwelling size and requires an area of POS of 50m2.

  1. the expert planners disagreed on the quantum of POS associated with each dwelling within the Applicant’s Proposed Development, as follows:

  1. in relation to Dwelling 1, Mr Apps calculated it provided a POS area of 50.1m2 and complied with the applicable POS area control, whereas Mr Nelson calculated that it provided a POS area of 27.774m2, and so did not comply;

  2. in relation to Dwelling 2, Mr Apps calculated that it provided a POS area of 40.7m2 and complied with the applicable POS area control, whereas Mr Nelson calculated that it provided a POS area of 36.368m2, and so did not comply;

  3. in relation to Dwelling 3, both expert planners had assumed an incorrect dwelling size of less than 100m2, and on this basis Mr Apps calculated that it provided a POS area of 40.5m2 and concluded compliance with the assumed POS area control of 40m2, whereas Mr Nelson had calculated that it provided a POS area of 35.989m2 which even adopting the incorrect, and lesser, 40m2 control, concluded that it did not comply. In my assessment, if the area of POS proposed is compared to what I understand the planers agree is the correct requirement for 50m2 of POS for a dwelling size of 101m2 or larger, the calculations of both planners indicate that the POS for proposed Dwelling 3 does not comply with the control.

  1. in calculating the areas of POS within the Proposed Development:

  1. Mr Apps had stated that he had used the details of the Applicant’s plans to determine the size of POS areas noting that he had calculated them using CAD software as part of the process of drafting the plans;

  2. Mr Nelson had identified a series of assumptions that had underpinned his calculations, including close reference to the definitions of, and objectives for, both open space and private open space within LDCP, and on this basis had excluded areas associated with drying areas (clothes lines) from his calculations. These areas had been included by Mr Apps in his calculations. Mr Nelson had also provided clear illustrations of the areas that constituted the basis for his calculations of POS areas within the Proposed Development. On the basis of the explanations provided by Mr Nelson, I am satisfied that the areas of POS calculated by him demonstrate that each of the POS areas associated with the dwellings on Units 1, 2 and 3 do not comply with the minimum POS area controls applicable to the Proposed Development (see above at [(d)]].

  1. as a consequence of my conclusion above (at [(f)(ii)]), it is my further assessment that the Proposed Development as amended cannot achieve objective (a) of section 4.4 of Part 2.11 of LDCP, because the Proposed Development’s non-compliance with the POS controls in LDCP is not trivial, and the proposed POS will as a consequence be inadequate to meet user requirements for outdoor activities, which is a requirement of that that objective.

  2. I note that the expert planners agreed in their evidence at the hearing that, as a consequence of the Proposed Development, the adjoining property to the east at 3 Billet Road would never achieve the minimum of three hours of sunlight to 50% of its POS, as required under the controls in section 4.8 of Part 2.11 of LDCP, which concerns overshadowing impacts on neighbouring dwellings. It was Mr Apps’ evidence, with which Mr Nelson agreed, that at no point in the day on 21 June each year would the adjoining POS at 3 Billet Road receive sunlight to 50% of its area.

  1. On the basis of my conclusions above at [32(1)(g)] and [32(1)(h)], I further conclude that the Applicant’s Proposed Development does not provide a reasonable alternative solution that would achieve the objectives of the controls within both sections 4.4 and 4.8 of Part 2.11 of LDCP concerning POS and the mitigation of impacts in relation to overshadowing to neighbouring properties, respectively;

  2. On the basis of my conclusions above at [33], I must conclude that the Proposed Development is not a reasonable alternative solution that would achieve the objectives of section 4.3 of Part 2.11 of LDCP as identified above at [32(1)] in relation to the Proposed Development’s setbacks.

Is the proposed amount of private open space (POS) within the Proposed Development acceptable?

  1. As discussed above (at [32(1)(f)(ii)] and [32(1)(g)]), the Applicant’s Proposed Development does not comply with the controls in section 4.4 of Part 2.11 of LDCP in relation to POS.

  2. Additionally, as discussed above at [33], the Proposed Development does not provide a reasonable alternative solution that would justify the application of flexibility in relation to the controls, as it would not achieve the objectives of that control such that it would satisfy the provisions of s 4.15(3A)(b) of the EP&A Act.

Are the potential overshadowing impacts of the Proposed Development on neighbouring properties acceptable?

  1. As discussed above (at [32(1)(h)]), the controls of section 4.8 of Part 2.11 of LDCP are not satisfied by the Proposed Development in relation to the adjoining dwelling at 3 Billet Road, and the objectives of those controls are also unable to be achieved as the Proposed Development does not minimise the impacts of overshadowing on its neighbour.

  2. As a consequence, the Proposed Development does not provide a reasonable alternative solution that would justify the application of flexibility in relation to the controls in section 4.8 of part 2.11 of LDCP, as it would not achieve the objectives of those controls such that it would satisfy the provisions of s 4.15(3A)(b) of the EP&A Act.

Conclusion in relation to the acceptability of the bulk and scale of the Proposed Development

  1. As a consequence of my conclusions above at [34], [36] and [38] in relation to the setbacks, POS and overshadowing impacts of the Proposed Development, I find that the Proposed Development should not be approved as, consistent with the submissions of the Respondent, it has an unacceptable bulk and scale because:

  1. it does not meet the controls of sections 4.3, 4.4 and 4.8 of LDCP, and

  2. it does not represent a reasonable alternative solution such that it would achieve the objects of those controls and justify the application of flexibility in relation to the provisions of those controls.

Are the potential amenity impacts of the Proposed Development acceptable?

  1. As a consequence of my findings above at [39], consideration of the Proposed Development’s potential amenity impacts is otiose, and therefore unnecessary.

Conclusions

  1. As I have found that the Proposed Development has an unacceptable bulk and scale as a consequence of its non-compliance with the controls concerning setbacks, POS and overshadowing impacts, and its inability to demonstrate achievement of the objectives of those controls, within Part 2.11 of LDCP (see above at [39]), I conclude that:

  1. the Proposed Development is not in the public interest and should not be approved; and

  2. the Applicant’s development application should be refused.

Orders

  1. The orders of the Court are:

  1. The appeal is dismissed.

  2. The Applicant’s development application DA-52/2019 seeking consent for construction of a multi dwelling housing development consisting of three dwellings and associated strata subdivision is determined by way of refusal.

  3. The exhibits are returned, with the exception of Exhibits A, C and 1.

..…………………………..

M Chilcott

Commissioner of the Court

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Decision last updated: 16 December 2020

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