Morgan v Lane Cove Council (No 1)

[2017] NSWLEC 1687

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Morgan v Lane Cove Council (No 1) [2017] NSWLEC 1687
Hearing dates:	19 September 2017
Date of orders:	01 December 2017
Decision date:	01 December 2017
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	See at [64]
Catchwords:	DEVELOPMENT APPLICATION – subdivision of land – construction of dwelling house – adequacy of rear setback form E2 conservation land on the site and adjoining foreshore reserve – weight to be given to planning proposal for acquisition of E2 land for a walkway
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Lane Cove Local Environmental Plan 2009 State Environmental Planning Policy No 19 – Bushland in Urban Areas
Cases Cited:	Morgan v Lane Cove Council (No 2) [2018] NSWLEC 1472
Texts Cited:	Lane Cove Development Control Plan 2009
Category:	Principal judgment
Parties:	June Morgan (Applicant) Lane Cove Council (Respondent)
Representation:	Counsel: M Fraser (Applicant) Dr J Smith (Respondent)   Solicitors: JT Law Pty Ltd (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2017/63578 and 2017/211667
Publication restriction:	No

Judgment

Introduction

1. The applicant, June Morgan, lodged two development applications with the Lane Cove Council in respect of her property at 7 Dettmann Avenue, Longueville (‘the site’):

• Development application number (DA 170/2016) sought consent for the subdivision of the site into two (2) Torrens title allotments. Lot 1 fronts Dettmann Avenue and is 654m². Lot 2 adjoins the foreshore to Tambourine Bay and is 917m² including a 3m wide access handle off Dettmann Avenue; and

• Development application number (DA 213/20166) sought consent for the construction of a three storey dwelling and access driveway on Lot 2.

2. The Council has refused development consent to the applications and the applicant has now exercised, in each case, her right of appeal to the Court under s 97 of the Environmental Planning and Assessment Act1979 (‘EPA Act’). The proceedings were heard together pursuant to s 34AA of the Land and Environment Court Act1979 (‘the Court Act’). The parties have asked, in my consideration of the evidence, that I have regard to the matters discussed and observed during the onsite s 34 conciliation conference which preceded the hearing. This includes my observations of the site and its environs and the oral evidence from the three local objectors who addressed the Court at that time. While their evidence was responsive to an earlier proposal, their submissions, to a large extent, remain relevant. I have also considered the further submissions received after notification of the current applications.

Facts

3. The site is located on the lower western side of Dettmann Avenue and is a foreshore property of Tambourine Bay. The land falls steeply approximately 20m from the street to the water. There is a depression in the topography toward the rear half of the site that is a remnant of sandstone quarrying that occurred during the 1930s. The Warraroon Reserve is located to the north of the site and is identified as bushland under the State Environmental Planning Policy No 19 – Bushland in Urban Areas (SEPP 19).

4. The local area is characterised by one and two storey residential dwellings within a foreshore bushland environmental setting. Adjoining the site to the north is a two storey detached dwelling house with bushland to the rear. Adjoining the site to the south are two allotments within a battle axe configuration. Both dwellings are two storey detached dwellings. The rear dwelling is recently constructed.

Zoning

5. The Lane Cove Local Environmental Plan 2009 (‘LEP’) identifies the site as zoned R2 Low Density Residential with the rear portion of the land (approximately 412m²) zoned E2 Environmental Conservation zone (Map LZN _002) and Environmental Protection Land (Map CL1 _002). The rear portion is also identified as Coastal Wetlands and identified as a Proximity Area for Coastal Wetlands in the Draft Coastal Management State Environmental Planning Policy Map entitled “The Coastal Wetlands and Littoral Rainforests Area Map”.

6. Development for the purpose of a “dwelling” is permitted with consent within the R2 zone but prohibited in the E2 zone.

7. The site is rectangular in shape and has a total land area of 1571m². The width of the site is 18.29m and the depth is 88.43m along the northern boundary and 83.36m along the southern boundary. The subdivision will create a battle axe allotment behind the parent lot with an access handle running along the southern boundary. The plan for the subdivision (Exhibit A) is reproduced below. The pink line indicates the E2 zone and the green line identifies the boundary between Lot 1 and Lot 2. The depression in the middle of the block can be understood from the contours grouped closely together within Lot 2 (Exhibit C).

8. The proposed dwelling is to be located on the flat area on Lot 2 below the terrace and forward of the E2 land (pink line).

9. The plans for the dwelling are Exhibit B. They were amended during the course of the hearing in order to address the privacy concerns raised by the neighbours to the north and to improve the private open space in the dwelling. In summary, the changes included screens to balconies where necessary and squaring off the alfresco area at the rear of the dwelling. Subject to those changes, the planners were in agreement that the design of the dwelling house was acceptable.

E2 zoned land

10. The Amended Statement of Facts and Contentions (‘ASOFC’) records that the E2 zoned land is of high ecological value, due to the presence of native vegetation which includes Estuarine Mangrove Forest and two Endangered Ecological Communities – Estuarine Swamp Oak Forest and Estuarine Saltmarsh within the adjoining bushland. By all accounts, the site previously contained healthy native vegetation however; it has over time been cleared and the significant vegetation removed.

11. Clause 6.4(2) of the LEP requires the consent authority (the Court) to consider the “impact of the proposed development on the vegetation, topography and distinctive features of the Environmental Protection Lands” in its assessment of any DA.

12. Clause 1.3.4 of Part C of the Lane Cove Development Control Plan 2009 (‘DCP’) provides for the rear setback of a dwelling house which contains or adjoins bushland.

13. Clause 5.2 of Part H of the DCP applies to residential area and provides that a greater buffer area may be required on a site to separate bushland from building area. The objective of the buffer area is “[t]o provide a transition between the building and bushland area so as to reduce the impacts of the development upon bushland”. Buildings are not permitted under the DCP within the buffer area. The likely impacts of the proposed developments on the bushland and the EEC, and the form of any buffer, or how such a buffer should be designed and managed, are matters which have been raised as contentions by the Council.

14. According to the Council, the minimum required depth for the “buffer area” is generally taken to be 10 metres pursuant to cl 5.21(f) of the DCP. The proposed buffer, in this case, is negligible between the proposed building and bushland. The Council believes that this is inadequate. The applicant takes a different view.

Land reservation for acquisition

15. The E2 zoned land on the site has been in place since the commencement of the County Of Cumberland Planning Scheme Ordinance in 1951/56. In the 60 – 70 years since the land was first set aside for Special Uses, and identified as being prospectively to be resumed for public use, nothing else has ever occurred to pursue that public resumption.

16. However, on July 2016, the Department gave gateway approval (subject to consultation with affected land owners) to Draft LEP Amendment No, PP_2016 _ LANEC _003_00 which included two Items of relevance for this site:

“Item 5 of the draft amendment will insert the following subclause to cl4.4 of the LEP:

Add: (2B) If a lot is a battle axe Lot or other lot and access handle, the area of the access handle is not be included in the lot size for the purpose of floor space ratio calculation.

…

Item 18 of the draft amendment identifies the E2 zone portion of the site is land reservation for acquisition.

”

17. On 20 March 2017, the Council resolved that Item 18 be deferred from this amendment, to allow additional public consultation as part of a separate Planning Proposal in relation to the land acquisition. The remainder of the draft LEP amendment remains unaffected.

18. On 28 June 2017, the Council sent a request to the Parliamentary Counsel’s office to finalise the draft LEP amendment. In the circumstances, it is my view that the amendment to exclude the access handle from the site area for the purposes of calculating the FSR is both imminent and certain.

Contentions

19. The ASOFC filed by the Council on 13 September 2017 outlines the background facts. It also identified the contentions raised by the Council. Some of these contentions have been resolved or refined through the experts’ joint conferencing process. As it happened, the hearing in this case focussed on the following matters:

1. The identification of the E2 land (the rear portion of the site - 421m²) as Land Reservation for Acquisition at some time in the future under the proposed draft Planning Proposal; and the weight to be put to the acquisition of the E2 zone in this case.

2. The adequacy of the rear setback of the development from the E2 zone portion of the site - under cl 1.3.4(a) in Part C1 of the Lane Cove DCP; and, the adjoining bushland under Part H – Bushland Protection of the DCP.

3. The impact of the development on the Warraroon Reserve to the north of the site identified as SEPP 19 bushland.

4. The acceptability of the bulk and scale of the development from the foreshore and the water.

5. Whether the resulting lots are able to satisfy the minimum lot size - after acquisition of the part of the land zoned E2 within Lot 2.

6. Whether the dwelling should be refused as the floor space ratio (FSR) is excessive – the FSR established for the land by the LEP is 0.5:1. The proposed dwelling is 214.85m² in size. The FSR is 0.43:1 when including the battle axe handle. When excluding the battle axe handle, the FSR is 0.61:1.

7. Whether the cl 4.6 request to vary the FSR is first necessary, and if so poorly founded as it does not address why the control is unreasonable or unnecessary in the circumstances of the case. The resulting density of the development is out of keeping with the intended further character of the area.

20. I have dealt with the contentions under topic heading because the evidence overlaps. In doing this, I have relied on the following expert evidence:

Expert evidence

• Planning evidence from Glenn Apps (the Council) and for the applicant Christopher Oliver - planning Joint Report (Exhibit 4).

• Ecological evidence from Ms Kerry Heatley Council’s Assistant Manager Open Space and the applicant’s consultant Mr John Travers - ecological Joint Report (Exhibit 5).

• Engineering evidence from Mr Steven Waters (applicant) and Mr Raymond Bechara Council’s development engineer - engineers' Joint Report (Exhibit 7).

Objectors’ evidence

21. I have also considered the written and oral submissions from the objectors including those who addressed the Court at the site view. They included the immediate neighbours to the north at 9 Dettmann, and Mr Doug Stuart, a member and spokesperson for the Land Cove Bushland and Conservation Society Inc. The adjoining neighbours were concerned about their privacy and any amenity impacts generated by the positioning of the dwelling on the rear of the site. Their concerns were, in my view, adequately addressed by the amendments to the dwelling house plans (Exhibit B) and the agreed draft conditions (Exhibit 8).

22. Mr Stuart’s evidence focussed on the Council’s long term aspiration for public access to the foreshores of the municipality. He explained to the Court that the majority of the foreshore along this section of Dettmann Ave had been accessed with a walking track now extending to within a few blocks of 7 Dettmann – finishing at Dunois Street, but being extended beyond that by bush regenerators. Accepting that part of the E2 zoned land on this site was degraded and weed infested, he believed that these areas could be rehabilitated and turned into good native bushland. For that reason, Mr Stuart urged the Court to maintain the E2 zoning on the land and to ensure that any building on the site was well setback from this area in accord with the DCP, Part H, s 5.

Acquisition of the E2 land / walking track

23. Before anything else, I wish to address the issue of the Council’s acquisition the E2 land on the site and the walking track on the foreshore.

24. Item 18 of the Draft Local Environmental Plan Amendment identified the E2 portion of the site (and E2 areas on the properties at 3A, 5A and 7 Dettmann and 41 Stuart Street) as Land Reservation for Acquisition. These properties are the four remaining parcels of land along Dettmann Ave containing E2 land yet to be acquired. In these circumstances, Mr Apps is of the opinion that the Council has actively pursued the walking track on E2 land in accord with the aims of the LEP and for that reason the Court should place significant weight on the future acquisition of the applicant’s E2 land in its assessment of this development. Albeit, he concedes that the Council has recently resolved to defer Item 8 from the current Amendment to the LEP to allow further public consultation and to prepare a separate planning proposal for any acquisition.

25. Mr Oliver describes the walking track on the site as only a concept without plans or adopted management plans. As to whether the concept is formulated into a low level or high level walking track is, in his opinion, subject to further substantial investigation and costing. Until the Council decides to seriously acquire the E2 land, it will be held in private ownership. Moreover, Mr Oliver believes that the Council’s action suggests that the deferral of the acquisition approach was to examine other alternatives such as an easement for walking trails as opposed to acquisition of all of the E2 land on this parcel. For that reason, the Court should accept that there is no guarantee that the land acquisition will occur in the short to medium future. Under these circumstances, he believes that the Court should attach little weight to the acquisition of the E2 land. At its highest, the prospective amendment is part of the circumstances of the case and relevant only as part of the public interest: Environmental Planning and AssessmentAct 1979 (EPA Act), s 79C.

26. Mr Apps disagrees with Mr Oliver. He does not accept the proposition that the land acquisition for walking track is unlikely to occur in the short to medium future. The fact that there is a walking track proposed through the E2 zone on the foreshore to link existing tracks in Warraroon Reserve to Stuart Ave, which will enable access through the E2 land in line with the aims of the LEP in cll1.2(e)(iii) “[t]o make more foreshore land available for public access”, and (iv) “[t]o link existing open space areas for public enjoyment” means that the track is a certainty. As such, he told the Court that it is appropriate that any walking track is provided on top of the ledge and not under it on the Council land proximate to this site. To provide a walking track under the ledge would mean that it was provided in the mangroves and the tidal zone and would require extensive construction in the form of a boardwalk or elevated walkway which would result in the destruction of the some of the mangroves.

27. Putting all disagreement aside, the bottom line is that the planners agreed during their oral evidence that the proposed dwelling will have a similar setback to the recently constructed dwelling adjoining the site at 5A Dettmann Ave, and be in the same position in respect of possible future acquisition of the E2 land and the walking track concept. They also agreed that any walking track could be located to the western end of the E2 land, away from the dwellings at 5A Dettmann Ave and the subject development. Moreover, rehabilitation of the E2 land between the walking track and the dwellings along the intervening E2 land could still occur thereby protecting the amenity of the residents and walking trail users. Despite this, the Council maintained its position that an approval of this application will impede the Council’s long term plan to provide a foreshore walkway.

Finding – Acquisition of the E2 land /walking track

28. Based on the evidence, I am not prepared to accept that the approval of the current applications will impede or preclude the Council from creating the foreshore walkway anticipated by the LEP or from any future acquisition of the E2 land.

29. For the reasons outlined by Mr Oliver, I accept that there is no certainty about an amendment of the LEP to provide for the acquisition of the E2 land on the site in the immediate future. The Council has deferred Item 8 and is investigating other options such as an easement over part of the E2 land to accommodate the foreshore walkway. The land is currently in private ownership, and in any event, the development is wholly outside the E2 portion of the site.

30. Importantly, the planners have agreed that the proposed dwelling will be setback proximate to the recently constructed dwelling to the south. In the end, the site will be in exactly the same position as the adjoining property in respect of possible future acquisition of the E2 land and the walking track concept. In any event, there is opportunity to create a walkway “on the western end of the E2 land, away from the dwellings at 5A Dettmann Ave and the subject development” and the planners also acknowledged irrespective of the approval of these applications that “rehabilitation of the E2 land between the walking track and the dwellings along the intervening E2 land could still occur thereby protecting the amenity of the residents and walking trail users”.

The rear setback

31. The parties are in heated disagreement about the appropriate rear setback for the development namely: whether the rear setback should be taken from the cadastral boundary or the E2 zone on the site.

32. As it presently stands, the proposed dwelling and subdivision have a nil setback to the E2 zoned land. The Council contends that a larger buffer between the bushland and the built form is necessary in order to protect the high ecological value of the bushland and to facilitate the future rehabilitation of the E2 zoned land on the site. To that end, the Council has suggested to the applicant that the subdivision should be reconfigured to accommodate a 8m - 10m buffer between the bushland on the site and the built form. This in turn would allow for the future acquisition of the E2 land as planned by the Council in the deferred Planning Proposal.

33. The applicant contends on the evidence of Mr Oliver that there is currently no code or policy setting an obligation for the setback to apply to the E2 zone boundary. In fact, the Lot size map includes the E2 land along with the R2 land for the purpose of Lot size on this property. Therefore, it is reasonable to calculate the rear setback from the cadastral boundary to which the development complies, particularly as the Lot size controls include the E2 land. Moreover, based on Mr Travers’ assessment the applicant submits that the proposed dwelling is located at 20m from the high ecological value elements of the E2 land, separated by a grassed area and with no native vegetation. The applicant submits “[i]n this instance not all of the E2 zoned land contains the identified attributes thereby questioning the rationale of the zone line selection” (Joint Report p4 at 2). Shortly stated, there is no requirement or basis on the facts for any setback as contended by the Council in this case.

Ecological evidence about the rear setback

34. The Council contends that the development will have an adverse impact - with a nil setback to the E2 land - on the bushland on and adjoining the site.

35. The Warraroon Reserve is located to the north of the site and this area is identified as SEPP 19 bushland. The site adjoins the foreshore and is identified on the map entitled “Land Adjoining Bushland” under the DCP and in that regard, Part H is applicable. Clause 5.2 of Part H of the DCP requires a buffer area on the site which separates “bushland from the building area”. The objective of the buffer area is “to provide a transition between the building and the bushland area so as to reduce the impacts of development upon bushland”.

36. Clause 5.2.1(f) of the DCP provides for a minimum required depth of 10mfor the buffer area. The proposed buffer is 1-1.5m wide between the proposed building and the bushland. According to the Council’s expert, Ms Heatley, the lack of any setback to the E2 zone and bushland to the north means that the proposed development is likely to have an unacceptable impact on the adjoining bushland. Therefore, the development does not meet the aims of cl 2.1(e) of the LEP because the development will not protect and restore the bushland area of the site, including all rare and threatened species and communities.

37. The Council further submits that cl 1.3.4(a) of the LEP provides for a minimum rear setback for dwelling houses of 8m or 25% of the site depth for sites up to 1000m² - subject to the caveat that “[t]he existing predominant rear setback and site constrains, especially for irregular sites, may be taken into account” and “[i]f a site adjoins bushland a greater setback may be required, See Part H- Bushland Protection”.

38. While the site is constrained by the depression and the 20m fall in the land, it is generally of a regular shape and adjoins bushland. In that circumstance, a buffer is appropriate - the issue is whether the rear setback or buffer should be taken from the current boundary or the boundary of the E2 zone on the site. Mr Apps contends for an 8m setback under the DCP to ensure appropriate amenity and privacy for the residents of the proposed dwelling and in the future walkers from the community on the track. Mr Apps also believes that a greater setback should be provided to the E2 zone to enable appropriate screening or fencing so that there is some privacy for those using the walking track and the residents of the dwelling. Although currently lacking vegetation other than grasses and weeds, Mr Apps said in his oral evidence to the Court that the E2 land on the site is intended to be used for environmental conservation. The objective of the E2 zone makes this plain namely: “to protect and restore areas of high ecological, scientific, cultural or aesthetic values” and “to prevent development that could destroy, damage, or otherwise have an adverse effect on those values”. Relying on Ms Heatley’s evidence, Mr Apps believes that the land could be restored and managed so as to provide an effective buffer to the foreshore ecosystem and achieve the zone objective.

39. Ms Heatley and Mr Travers agree that the E2 land on the site is presently dominated by exotic weeds and grasses and herbs. That said, they agree that other E2 zoned land is generally of high ecological value due to the presence of native vegetation which includes – Estuarine Mangrove Forest. They also agree that two endangered ecological communities – Estuarine Swamp Oak Forest and Esturaine Saltmarsh are present on the bushland of Warraroon Reserve / Hodgson Park. However, Mr Travers does not accept that there is any saltmarsh on the site or immediately adjacent to it. Relying on the mapping, Ms Heatley believes that there is. She is also of the opinion that there is potential for expansion and regeneration of the EECs into the lower E2 zone portion of the site. She told the Court that the Council’s bush regeneration contractors have successfully expanded these EECs in the Warraroon Reserve/Hodgson Park adjacent the sites.

40. In regard to the potential for EEC’s to regenerate or expand onto the E2 lands, Mr Travers is of the opinion that this would not occur due to the height above the waterline. He told the Court that the adjoining vegetation to the immediate north is a non EEC community and this is the typical vegetation for this landscape above the water lilies. The sandstone ledge is on average 2-5m above the height of the Swamp Oak Floodplain Forest and there is no potential for regeneration or revegetation of such communities within the E2 lands above the sandstone ledge. After a consideration of “the impact of the proposed development on the vegetation, topography and distinctive features of the land” as required by cl 6.4(2) of the LEP, he is not troubled by the proposed development because there is no work proposed on the E2 lands or within 20m of the EEC communities. In his opinion, the areas of high ecological value as mapped containing the Swamp Oak Forest (EEC) will not be impacted by proposed works or the construction management activities (e.g. Sediment fencing during construction - Joint Report (Exhibit 5)). Mr Travers does not believe that the aims in cl 1.2(e) of the LEP will be affected by the development as there are no rare or threatened plant or fauna habitats on the site - they are restricted to below the sandstone ledge.

41. With respect to cl 1.2(f) of the LEP, Mr Travers is confident that the public waterways will remain unaffected by the development particularly since the redesign of the stormwater disposal system. He is also of the opinion that the development will not provide excessive shadowing to ecologically sensitive vegetation because of the sites’ topography. Ultimately, he said the built form will be not dissimilar to that of the nearby recently subdivided and built dwellings which were approved by the Council.

42. Ms Kerry Heatley has a different view. She believes that the two identified endangered ecological communities are still present on the lower portion of the private E2 land and adjacent reserve land and “…that there is strong potential for the regeneration and expansion of the EEC onto the cleared E2 zoned portion of the site, and that the proposed developments would jeopardise any future rehabilitation”. For that reason, she believes that the cleared area of the E2 land on the site cannot be utilised or considered as a buffer. Rather, the buffer must be provided on the residential land between the dwelling and the E2 zone boundary on the site in order to protect the native bushland area. The lack of buffer between the development and the E2 land is not conducive to protecting and restoring the E2 land, and therefore does not meet the aims of cl 1.2(e) of the LEP. The Council also requires a restoration plan for the privately owned E2 land.

Finding – Rear setback /Buffer

43. After careful consideration of all of the evidence, I accept Mr Traver’s expert assessment as summarised earlier that the proposed buffer of 20m to the EEC and the buffer to the bushland more generally is sufficient to provide a transition between the building and the bushland area, so as to reduce the impacts of development upon the bushland, and thereby achieve the objective of cl 5.2.1 of Part H of the DCP. Relevantly, the setback at the rear is consistent with the recently approved and constructed adjoining dwelling to the south. There is no development proposed in this case on the E2 portion of the land - which both ecologists accept is currently highly degraded containing grasses and exotic weeds. The amended plans deal with the stormwater disposal being contained within the R2 land and the engineers are satisfied (subject to the draft conditions) with that part of the application. Accepting as Ms Heatley suggests that there is potential for regeneration of the E2 portion of the site, the rear setback as proposed from the cadastral boundary does not preclude the rehabilitation of the E2 portion of the site in the future or the construction of a walkway on the foreshore based on the planners evidence and that of Mr Travers. In any event, there is ample land available within the E2 land on the site to achieve a suitable landscape buffer at the time of any acquisition if, and when, that occurs. For the above reasons, I am satisfied that the proposed rear setback / buffer is appropriate for the development after a consideration of all of the relevant controls as listed in the SOFC and referred to in the evidence before me.

Minimum Lot size

44. The minimum lot size for the site is 550m². It is agreed that the rear of Lot 2 will not comply with the minimum lot size once the E2 land is acquired, albeit there is a variance about the degree of noncompliance. The applicant’s planner says the land area will be 501.2m² and the Council planner calculates it to be 492.1m² (Planners’ Joint Report (Exhibit 4)).

45. The Council contends that the subdivision cannot be supported as it is not possible to provide for both the acquisition of the E2 zone and satisfy the minimum lot size. Whereas, the applicant’s position is that the Acquisition Map Amendment has been deferred and for that reason cannot be relied upon as certain and imminent. In that circumstance, it is not appropriate to impose a development standard for lot size to the R2 zoned portion of Lot 2 for the purpose of compliance with a standard that does not exist and is not proposed in any amendment. The use of the E2 area for the purpose of calculating site area is clearly contemplated by the LEP.

Finding – minimum lot size

46. I must agree with the applicant on this issue. The Council’s deferral of the amendment for the acquisition of the E2 land and decision to prepare a planning proposal after further consultation makes it plain that there is no imminent amendment in place.

47. The lot size control includes the whole of Lot 2 for present purposes. Therefore, the development is compliant in that regard.

FSR

48. Clause 4.4 of the LEP deals with Floor Space Ratio. It provides as follows:

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

(a)  To ensure that the bulk and scale of development is compatible with the character of the locality.

(2)  The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.

(2A)  Despite sub clause (2):

(a) the maximum floor space ratio for multi dwelling housing on land in Area 1 on the Floor Space Ratio Map is 0.4:1, and

(b)  The maximum floor space ratio for a building containing shop top housing on land in Area 2 on the Floor Space Ratio Map is 2.5:1.”

49. Clause 4.4 establishes an FSR of 0.5:1 for this site. The proposed dwelling is 214.85m² in size. The FSR for Lot 2 is 0.43:1 when including the battle axe handle. When the battle axe is excluded the FSR is 0.6:1.

50. The Council has sought to exclude consideration of the area of the battle-axe handle in the FSR calculation in this case. It invites me to place determinative weight on the Minister’s Gateway approval and the Council’s request for the Minster to make the amendment (Item 5) to cl 4.4 and dismiss the appeal. Whereas, the applicant submits that the standard has not been amended so the development is complaint with the current LEP. There is no legal requirement for a cl 4.6 written request to vary the current control. Secondly, the development meets the objective of the standard namely: “to ensure that the bulk and scale of development is compatible with the character of the locality”. It is not dissimilar in scale and bulk to the recently approved development to the south within the locality. For those reasons, the applicant submits that the amendment, whilst certain and imminent should be given little weight in the Court’s consideration under s 79C. (Despite acknowledging that there is no legal requirement for a cl 4.6 written request to vary the current FSR standard – the applicant has in fact lodged one).

Finding - FSR

51. As it presently stands, there is no requirement for a cl 4.6 written request to vary the standard in cl 4.4 of the LEP because the amendment is not made. And, while the amendment is imminent and certain and therefore relevant, I have decided not to place determinative weight on the exclusion of the driveway in the FSR calculation for this DA. I have formed this view because the development is compliant with the current standard and based on my observations at the site inspection and the planners’ evidence, I am satisfied that the development’s bulk and scale is compatible with the character of the locality and accords with the stated objective of the clause.

Front setback

52. The planners’ have not raised any issue with respect to the front setback of the development subject to the registration of the subdivision before the construction certificate is issued (Joint Report Exhibit 4, p15). This, they believe will ensure that the front lot will be available for development to compliment the streetscape: LEP, Part C1, cl 1.3.1(a).

Finding – front setback

53. The Council has proposed a condition to require registration of the subdivision before the issue of the construction certificate and the applicant is accepting of this condition. I am of the opinion the condition should be imposed on the consent.

Storeys - Bulk and scale

54. The development is three storeys when assessed under cl 1.7.1(e) of the DCP because the lower level does not meet the definition of “basement” as defined in the LEP. In other words, the lower level is not predominately below the existing ground level and the floor immediately above is greater than 1m above the ground level. The DCP talks about buildings “having an appearance in elevation” and Mr Apps is of the opinion that that the objectives of this DCP control is to deal with the visual impact of 3 storeys. In this case, he believes that the building will present to the rear and the sides as 3 storeys and will present as 3 storeys when viewed from the E2 land. Mr Apps does not support the proposed variation to the storey control because it will be perceived as 3 storeys from some locations and thereby is at odds with the objective of the clause.

55. Despite that, Mr Apps agrees with Mr Oliver that the third storey is provided with a greater setback and reduced form to provide articulation and to reduce the visual dominance of the upper storey. Mr Apps also acknowledges that the dwelling complies with the maximum height established under the LEP at 9.5m.

56. Mr Oliver is of the opinion that the third storey is also articulated away from the side boundaries and when viewed from the street will appear as 2 storeys and for that reason is less imposing that the adjoining dwelling at 5A and compatible with that at 9 Dettmann. It will not be seen when viewed from the lower foreshore due to the height of the sandstone cliff and distance from the top to the dwelling. In its context, the development, when viewed from the water, will sit in the landscape of other urban development of similar bulk.

Finding – storey –bulk and scale

57. Based on my view of the site and its environs, I accept Mr Oliver’s expert evidence that the 3 storey scale of the development is not a basis to refuse consent. The development, with the 3 storeys, will be less imposing than the recently approved development next door and will be “well-articulated” as Mr Oliver explained in his evidence as summarised above. In this case, the development’s compliance with the maximum height control ensures that it is compatible within the existing and proximate development. Importantly, while able to be perceived from the cleared E2 land on the site, it will not have an unacceptable impact when viewed from the lower foreshore due to the height of the sandstone cliff and distance between the development and this area.

Stormwater

58. The stormwater experts are satisfied with the revised stormwater design (Joint Report (Exhibit 7)). The revised design now ensures that the stormwater drainage will be fully contained within the R2 portion of the site. The proposal also accommodates a minimum freeboard of at least 150mm above the adjacent ground levels. The proposed finished floor level of the lower level is 6.77RL and the adjacent ground level is higher with an RL of approximately 7.1. The applicant has also agreed to a stormwater easement being conditioned on the approval.

Private open space

59. Ultimately, Mr Apps accepted, with some design changes to square off the rear alfresco area, that the development would have adequate private open space. There are no planning issues with the design of the development in terms of internal amenity.

Character and Streetscape

60. The Council contends on the evidence of Mr Apps that the development should be refused because the development is inconsistent with the character of the area and the streetscape. It believes that it does not meet the aims stated in cl 1.2(b) of the LEP as it would not preserve and improve the existing character, amenity and environmental quality of the land and the expectation of the community. It does not meet the aims of cl 1.2(f) of the LEP and the objectives of cl 1.2 in Part C of the DCP.

Conclusion

61. After careful consideration of the evidence of the experts and the objectors, it is my considered opinion that there is no planning basis to refuse the applications after assessment under s 79C of the EPA Act. The developments are permissible and comply with the current numerical requirements of the LEP and the relevant zone objectives. Although the development exceeds the storeys control in the DCP, it is within the height control under the LEP. The evidence is that the development will not be perceived from the street and that that amended design has increased the side setbacks of the built form from the neighbours’ properties to address the privacy impacts raised by the objectors. I accept the evidence of Mr Travers and Mr Oliver that the proposed buffer to the rear of the development provides an appropriate transition area between the building and the bushland area so as to reduce the impacts of the development upon the bushland. In my view, it meets the objective of buffer areas articulated in cl 5.2.1 of Part H of the DCP and Part C of the DCP with respect to dwelling houses. I have no reason to believe that it will be overbearing when viewed from the water – rather the evidence suggests that it will appear with other urban development through the bushland. In this instance, the rear setback is considered to be adequate by Mr Travers for the protection of the EEC and the E2 land and I accept his assessment. The plans have been amended to remove any cut and fill within the E2 land. The dwelling is wholly within the R2 land. The stormwater issues have been resolved and the applicant accepts the Council’s condition (Exhibit 8).

62. As Mr Travers said, there is now a 20m distance between the proposed dwelling and the EEC on the adjoining land. The E2 land on the site currently lacks vegetation other than grasses and weeds – and, is in need of regeneration. However, I am satisfied for the reasons stated Mr Oliver and Mr Travers as summarised earlier that a conditional approval of these development applications will not compromise the opportunity into the future for such regeneration of this E2 area of the site as anticipated by the E2 zone objectives. Nor will any conditional approval of these appeals preclude the development of a foreshore walkway should the Council decide to act to pursue a new planning proposal to require acquisition of the E2 land or negotiate an easement over this area for a track. Having considered the zone objective and the aims of the LEP and relevant provisions in the DCP, I have decided to grant development consent to each application based on the conditions in Exhibit 8 as amended by my reasons for judgment.

63. The Court orders are:

1. Appeal No 17/63578 is upheld.

1. Development application number (DA 170/2016) for the subdivision of land at 7 Dettmann Avenue, Longueville into two (2) Torrens title allotments is approved subject to the conditions in Exhibit 8 as amended by this judgment.

2. Appeal No 17/211667 is upheld.

3. Development application number (DA 213/20166) for the construction of a three storey dwelling and access driveway on Lot 2 at 7 Dettmann Avenue, Longueville is approved subject to the conditions in Exhibit 8 as amended by this judgment.

4. The Exhibits are returned apart from Exhibits A, B, 1, 8 and 10.

Addendum

64. The final orders in this judgment at [63] have been set side, as explained in Morgan v Lane Cove Council (No 2) [2018] NSWLEC 1472.

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Commissioner Dixon

Amendments

02 March 2018 - Annexure B - Conditions for Subdivision Added

01 March 2018 - Pursuant to UCPR 36.17, the slip rule, amend Orders of 1 December 2017; Amendment to Orders (2) and (4) at [63].

Decision last updated: 06 September 2018