Parr v Sutherland Shire Council

[2006] NSWLEC 215

Land and Environment Court

of New South Wales

CITATION:	Parr v Sutherland Shire Council [2006] NSWLEC 215
PARTIES:	APPLICANT K.V. Parr Pty Limited RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	11313 of 2005
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of an existing dwelling and ancillary structures and the construction of a housing development for older people for people with a disability - SEPP 1 objections to the allotment width, basement car parking height and floor space ratio - minimum landscaped area - impact on the streetscape and character of the area - amenity of adjoining properties - internal amenity impacts
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1 Sutherland Shire Local Environmental Plan 2000 Draft Sutherland Shire Local Environmental Plan 2004 Draft Environmental Planning Policy (Application of Development Standards) 2004
CASES CITED:	Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46; Hooker Corporation Pty Limited v Hornsby Shire Council (unreported, 2 June 1986) ; Centro Properties Limited v Hurstville City Council and others [2006] NSWLEC 78 ; Architects Haywood and Bakker Pty Limited v North Sydney Council [2000] NSWLEC 138
DATES OF HEARING:	10, 11/04/06
DATE OF JUDGMENT:	05/03/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr S Kondilios, solicitor SOLICITORS Maddocks RESPONDENT Dr S Berveling, barrister SOLICITORS Sutherland Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

3 May 2006

11313 of 2005 K.V. Parr Pty Limited v Sutherland Shire Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the deemed refusal of Development Application No. DA 1185/05 by Sutherland Shire Council (the council) for the demolition of an existing dwelling and ancillary structures and the construction of a housing development for older people for people with a disability at 16 Percival Rd., Caringbah (the site).

The site and surrounding area

2 The site is Lot 6 in DP 605448. It has a frontage of 21.335 metres to Percival Rd. and depth of 77.115 metres giving a total site area of 1645 square metres. The site has a change in level of 8 metres from the street frontage to the rear.

3 A dwelling house and some ancillary structures are located on the site. There are number of mature trees at the rear of the existing dwelling and some smaller shrubs in the front yard. Two mature trees are located on the footpath area in front of the site.

4 Development in the area is made up of single residential development of varying age, height and architectural style with some newer dual occupancy and townhouse developments. The residential developments are predominantly two storeys in height although some single storey dwellings exist in the area.

The proposal

5 The proposal provides for the demolition of the existing dwelling and all ancillary structures and the construction of a housing development for older people for people with a disability comprising 3 x 3 bedroom and 1 x 2 bedroom self-care aged housing units with basement car parking for seven vehicles.

Relevant planning controls

6 The site is within the 2(a2) Residential zone of Sutherland Shire Local Environmental Plan 2000 (LEP 2000). The proposed use is permissible with consent within this zone. Objectives of the zone are found in the development control table for the zone in Part 3. The site is also located within a Foreshore Scenic Protection Area.

7 Clause 19 provides requirements for development in a Foreshore Scenic Protection Area, cl 30 provides special considerations for the residential zones, cl 34(2)(e) provides requirements for basement height above ground level, cl 35 provides requirements for floor space ratio (FSR), cl 36 provides requirements for minimum landscaped areas and cl 38 provides requirements for minimum allotment dimensions.

8 Development Control Plan for Housing for Older People or People with a Disability (the DCP) applies. Clause 2 provides objectives, cl 6 contains matters for consideration and cl 11 provides matters that are to be satisfied in terms of design.

9 Draft Sutherland Shire Local Environmental Plan 2004 (the draft LEP) applies. The most recent evidence on the status of the draft LEP is contained in a fax received by the council on 23 January 2006 from the Minister for Planning. It states that the draft LEP is to be changed to address matters of State and regional significance. General areas of change are identified in the document, as is the need for council officer assistance from the council.

The issues

10 The council filed an Amended Statement of Issues containing nine separate issues and a number of sub issues. The council did not press the adequacy of the information (Issue 7) following the submission of further information. The remaining issues can be grouped into following main areas:

1) whether the State Environmental Planning Policy No 1 - Development Standards (SEPP 1) objections to the allotment width, basement car parking height and FSR development standards are well founded (Issues 1, 2(vii), and 4),
2) whether the proposed development satisfies the minimum landscaped area standard (Issue 3),
3) whether the proposed development will have unacceptable impact on the streetscape and character of the area (Issue 2),
4) whether the proposed development will have unacceptable impacts on the amenity of the adjoining properties in relation to building bulk and proximity and overlooking (Issue 5),
5) whether the proposed development has unacceptable internal amenity impacts (Issue 6).
6) whether other issues raised by local residents justify the refusal of the application (Issues 8 and 9).


The evidence

11 Mr David Crane, a town planner and Mr John Flower, an architect provided evidence for the applicant. Mr Greg Hand, a town planner and Mr Peter Brooker, an architect provided evidence for the council.

12 Adjoining neighbours Mr and Ms Simpson of 14 Percival Rd., and Mr and Ms Hall of 18 Percival Rd., provided evidence on site and their issues are addressed under the heading of "Impacts on the amenity of the adjoining properties".

13 Other local resident evidence was provided on-site from the following:

• Ms Doreen McClelland of 5 Daphne St.,
• Mr Paul Hager of 25 Epacris St.,
• Ms Janine Walsh, 2B Daphne St.,
• Ms Linda Whitby of 15 Percival Rd.
• Ms Jane Pinkstone of 13 Percival Rd.,
• Ms Coralie Hile of 12 Percival Rd.,
• Mr Robert King of 35 Percival Rd., and
• Ms Sue Stone of 3 Bouvardia St.
  

14 The main issues raised by the other residents and not addressed in the other issues are:

• inadequate car parking/traffic,
• loss of street trees,
• glare from headlights entering and leaving the site,
• precedent.
SEPP 1 objections
The assessment approach

15 The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are posed. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state:

3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.

16 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state:

5.The objects of this Act are:

(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment;
(ii) the promotion and coordination of the orderly and economic use and development of land.

17 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

18 In Hooker Corporation Pty Limited v Hornsby Shire Council (unreported, 2 June 1986) Cripps J addresses to the approach to be taken when considering a SEPP 1 objection where he states:

….it is now established that is not sufficient merely point to what is described as an absence of environmental harm to found an objection. Furthermore, the objection is not advanced, in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose.

…. it is not be used as a means to effective general planning changes throughout a municipality such as are contemplated by the plan making procedures set out in Part III of the Environmental Planning and Assessment Act.

19 The proposal is also subject to Draft Environmental Planning Policy (Application of Development Standards) 2004 (the draft Policy). Section 79C(a)(ii) of the Environmental Planning and Assessment Act 1979 (EPA Act) requires the Court to take into consideration the provisions of any draft environmental planning instrument that has been placed on public exhibition. The draft Policy has been placed on public exhibition with the advertising period concluding on 18 June 2004. It provides for the repeal of SEPP 1.

20 In Centro Properties Limited v Hurstville City Council and others [2006] NSWLEC 78 Talbot J addresses the draft Policy and states (at pars 56 and 57):

56 It is not appropriate for the Court in these proceedings to conjecture what weight could have been given to the provisions of the draft SEPP that proposes to introduce stricter state policy guidelines for the consideration of the application of development standards.

57 The absence of any consideration leads to the inescapable conclusion that the council failed to carry out its mandated duty under s 79C. I am unable to accept in the circumstances that the provisions of the draft SEPP were such that no weight could be attributed to them or that they were wholly irrelevant to the consideration of the subject development application.
How is this case to be considered?

21 The applicant provided SEPP 1 objections to the development standards relating to allotment width, basement car parking height and FSR. The council argued that the landscaped area development standard was not satisfied and as such a SEPP 1 objection was required. The applicant disputed this conclusion and maintained that the development standard for landscaped area was satisfied. While Dr Berveling raised concern over the format of the SEPP 1 objections, I note that Mr Crane specifically addresses those questions posed in Winten.

22 The applicant also provided objections based on the draft Policy to satisfy the findings in Centro Properties. In this case, the draft Policy is a relevant consideration and the Court is required to determine the amount of weight to be placed on its provisions in the assessment of the proposed development. This requires a consideration of whether the making of the draft Policy is imminent and certain and any savings and transitional provisions.

23 Pearlman J in Architects Haywood and Bakker Pty Limited v North Sydney Council [2000] NSWLEC 138 addresses the question of imminence and certainty. In this case, a development application for attached dwellings was the subject of a draft environmental planning instrument. It was agreed that the proposed development took the form of "carriage development" although the draft environmental planning instrument contained objectives to "avoid carriage development". The draft environmental planning instrument had been readvertised although not determined by the council and Her Honour found that the non-compliance was critical and that the proposed development did not accord with the planning approach adopted by the draft environmental planning instrument.

24 In this case, and despite a specific request from the Court and the recent finding in Centro Properties, no evidence was produced on the current status of the draft Policy. No timetable for completion is identified in the letter from the Minister, no evidence was provided on how the changes would relate to the proposal, whether the council had even responded to the Ministers letter or whether the process of changing the draft LEP had started.

25 For this reason, it is not possible to consider the question of imminence and certainty in the manner set out in Architects Haywood and Bakker. Also taking into account the time that has elapsed since the end of the advertising period, I cannot come to any conclusion other than the draft Policy is not imminent or certain. Consequently, it should be given no weight in proceedings.

Floor space ratio

26 Clause 35 provides for a FSR of 0.4:1. There was agreement that the proposed development has a FSR of 0.47:1. There was also agreement that if the proposed turning and manoeuvering area within the basement car park was excluded, the FSR is 0.38: 1.

27 FSR is defined in cl 5 and, in part "means the ratio of the gross floor area of all buildings on a site to the area of the site". Gross floor area is also defined in cl 5 and relevantly excludes "car parking needed to meet the requirements of the council, up to 20 square metres per required parking space".

28 The objectives for the FSR development standard are:

(a) to provide a degree of consistency for existing residents as to the size and bulk of potential buildings in the neighbourhood, and
(b) to allow buildings of sufficient scale to satisfy the needs of residents while preventing development of sites beyond community expectations and the environmental capacity of the zone.

29 Mr Crane states that compliance with the development standard is unreasonable and unnecessary in this case because:

• the non-compliance results from the inclusion of turning and manoeuvering areas within the basement car park,
• the basement car park is mostly below ground level and the exceedance does not contribute significantly to the height and bulk of the building,
• the development is compatible with the built form and landscaped character of the existing residential development in the streetscape and surrounding locality, and
• the proposal provides less overshadowing than generated by the existing dwelling.
  

30 Mr Crane further addresses the objects specified in s 5(a)(i) and (ii) of the EPA Act and concludes that strict compliance would tend to hinder the attainment of these objects.

31 I agree with the conclusions reached by Mr Crane. The allowance of 20 square metres per car parking space in the calculation of FSR is not overly generous. In this case, the car park is a relatively compact and efficient design and does not provide any spaces in excess of that required by the council nor does the car park provided excessive amounts of manoeuvering and turning areas in the basement area.

32 The objectives relate largely to size, bulk and scale and I agree with Mr Crane that these elements in the development are not affected by the departure from the FSR development standard. Even though the proposed development was seen by many local residents as being beyond community expectations and the environmental capacity of the zone, the proposal is clearly contemplated by the zoning and in a form that is largely consistent with the councils planning controls.

33 If the variation to the development standard is tested against the underlying objectives, I accept that compliance with the development standard would be inconsistent with the aims of SEPP 1 and would tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. Consequently, strict compliance with the development standard is unreasonable and unnecessary in this instance and it follows and that the SEPP 1 objection is well founded.

Allotment dimensions

34 Clause 38(2) provides for a minimum allotment width of 25 metres for 3 or more dwellings. The proposed development has an allotment width of 21.335 metres. The proposed development satisfies the minimum allotment depth of 27 metres in cl 38(3) having a depth of 77.115 metres. The objectives of the allotment dimension development standards are:

(a) to require sufficient allotment widths and depth to enable some variations in design for development, and
(b) to ensure sites have adequate widths and depth for the arrangement of sufficient side boundary setbacks, efficient driveways, sufficient landscaped areas and a satisfactory building form that takes into account the uses made of adjoining properties.

35 Mr Crane states that the proposed development performs favourably in relation to the objectives in that:

• the proposal is compliant in floor space ratio (excluding basement manoeuvring areas),
• the built form and character is complimentary with adjoining built form,
• the elevations of the building are well articulated and respond to the site slope,
• the driveway is efficient and of minimum operational width,
• the proposal is compliant in landscaped area, and
• the proposal minimises impact by way of overshadowing and overlooking on the adjoining properties.
  

36 Mr Crane further addresses the objects specified in s 5(a)(i) and (ii) of the EPA Act and concludes that strict compliance would tend to hinder the attainment of these objects.

37 I agree with the conclusions reached by Mr Crane. The objectives essentially seek to ensure that a site has adequate dimensions to allow for developments that will sit comfortably on the site particularly considering matters such as side boundary setbacks, efficient driveways, sufficient landscaped areas and a satisfactory building form that takes into account the uses made of adjoining properties.

38 I am satisfied that the proposed development satisfactorily addresses the objectives of the development standard including those specific matters raised in objective (b). These matters are addressed in more detail later in the judgement.

39 If the variation to the development standard is tested against the underlying objectives, I accept that compliance with the development standard would be inconsistent with the aims of SEPP 1 and would tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. Consequently, strict compliance with the development standard is unreasonable and unnecessary in this instance and it follows and that the SEPP 1 objection is well founded.

Basement height

40 Clause 34(2)(e) requires that basement car parking must not exceed 1.5 metres above ground level to the top of the slab. The extent of the departure is visible to a maximum height of approximately 2.1 metres above existing ground level for a distance of approximately 5 metres on the north elevation. The exceedance also occurs across the site at the basement level although it is not visible from areas external to the building. The objectives of the height limit development standards are:

(a) achieve consistency in the scale of buildings within each zone, and
(b) minimise adverse impacts from development on adjoining on nearby properties due to loss of privacy and views, and overshadowing, and
(c) relate the building form to the topography of the site, and

(d) ensure buildings in a residential zone, other than the 2(c) Residential zone, maintain a maximum two-storey appearance.

41 Mr Crane states that the proposed development performs favourably in relation to the objectives in that:

• the building is wholly one storey above the basement level and is otherwise compliant in building setback and two-storey height limit,
• the basement is contained mostly below ground level and does not contribute significantly to the height and bulk of the building above ground,
• the external walls of the basement car park are not visually dominant elements of the buildings elevation, and
• the elevations of the buildings are well articulated and the height of the car park has a negligible impact.
  

42 Mr Crane further addresses the objects specified in s 5(a)(i) and (ii) of the EPA Act and concludes that strict compliance would tend to hinder the attainment of these objects.

43 I agree with the conclusions reached by Mr Crane. The breach of the basement height requirement occurs at a point where the building is single storey. In my view, the departure flows largely from the topography of the site and the desire to relate to the building to this topography. Combined with the limited extent of the breach, I can comfortably conclude that the objectives of the height development standard are satisfactorily addressed in that the scale of the building is largely unaffected by the breach and that there is no impact on adjoining properties.

44 If the variation to the development standard is tested against the underlying objectives, I accept that compliance with the development standard would be inconsistent with the aims of SEPP 1 and would tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. Consequently, strict compliance with the development standard is unreasonable and unnecessary in this instance and it follows and that the SEPP 1 objection is well founded.

Minimum landscaped area

45 Clause 36 provides for a minimum landscaped area of 55% of the site area. The objectives of the landscaped area requirements are:

(a) to ensure opportunities for tree retention and tree planting to preserve and enhance the tree canopy of Sutherland Shire, and
(b) to ensure that unbuilt upon areas balance the built form , and
(c) to contain urban run-off flows by minimising the impervious areas on residential development sites.

46 Landscaped area means:

…any part of the site of a building or a proposed building that contributes to achieving the objectives of the landscaped area development standards of this plan. The site is taken to be only that part of the site zoned to permit the development for which the building is or is proposed to be used.

Landscaped area includes any area used for gardens, lawns, shrubs or trees, but does not include any part of the site occupied by buildings, driveways, service accessways, parking areas, communal drying yards, garbage storage areas, swimming pools, balconies or decks.

47 Mr Hand calculates the landscaped area at 50.4% whereas Mr Crane calculates the area at 56.3%. Helpfully, a plan was tendered that showed the additional areas included in Mr Crane's calculation. The areas are a formed but pervious communal open space area and access stairs (38.3 square metres or 2.3%), retaining walls (7.3 square metres or 0.4%), pervious access paths (35.6 square metres or 2.2%) and pervious paving outside the master bedrooms of Villa 1 and Villa 2 (16.5 square metres or 1%).

48 Mr Kondilios, the applicants advocate, submitted that the landscaped planter boxes on the first floor level could also be included in the landscaped area calculations. If included, there can be no dispute that the proposed development satisfies the minimum landscaped area requirements.

49 In balancing the additional areas proposed by Mr Crane against the objectives of the landscaped area requirements and the definition of landscaped area, I find that all but the pervious access paths satisfy the objectives and definition in LEP 2000. The inclusion of these areas does not inhibit the ability of the development to enhance the tree cover, provide a reasonable balance between unbuilt upon areas and built form and minimise pervious surfaces. The inclusion of these areas provides for a landscaped area of 54.1% or approximately 15 square metres below the required area.

50 While an area of approximately 15 square metres on a site of 1645 square metres is unlikely to be the difference between a development that is consistent with the development standard objectives and one that is not, it is still necessary for the proposed development to satisfy the numerical requirements, in the absence of a SEPP 1 objection.

51 I accept the submission of Mr Kondilios that the landscaped planter boxes on the first floor level can be included in the landscaped area calculations as these areas are part of …. a proposed building that contributes to achieving the objectives of the landscaped area development standards of this plan. To the extent that only an area of 15 square metres is required to satisfy the development standard, I accept that the areas will enhance the tree canopy of the area and will not upset the balance between unbuilt upon areas and built form and not have any effect on urban run-off flows.

52 Consequently, I accept that the proposal satisfies the requirements of cl 36 and that an SEPP 1 objection is not required.

Streetscape and character of the area

53 The zone objectives require "the scale, amenity and sensitive environmental character of the area is preserved" (Objective (a)) and "where the streetscape is characterised by detached one and two-storey residential buildings within a landscape setting" (Objective (b)).

54 Clause 19 states that the "objective of the foreshore scenic protection area is to limit the scale of development and protect the landscaped and visual character of foreshore areas of Sutherland Shire".

55 Clause 35 requires consideration to be given to a range of specific matters. The relevant matters are:

(b) the effect of the proposed development on the quality of the streetscape,
(f) any adverse impact on the natural and built environment,
(h) the impact that the proposed development may have on any public area or water body from loss of sunlight, views and visual amenity

56 Clause 11(b) of the DCP provides a range of requirements for neighbourhood amenity and streetscape. Relevantly, the proposed development shall:

(ii) contribute to an attractive residential environment with clear character and identity
(iii) maintain…. appropriate residential character by providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing
(iv) maintain…. appropriate residential character by using building form and siting that relates to the current scale and characteristics of the zone, the site and its location
(v) maintain…. appropriate residential character by adopting building height up to the maximum height of other residential development permissible in the zone
(vii )be designed so that the front building setback of the development is consistent with the building setback of other residential development in the zone in which it is proposed.

57 There was disagreement between the applicant’s experts and the council's experts on the impact on the streetscape. Mr Hand maintains that there are no other nearby developments with a double width driveway to a basement car park. This, and the garbage storage area at the front boundary and substantial hard paving forward of the building adversely impact on the character of the area.

58 Mr Crane states that the proposed driveway is not obtrusive and that recent amendments reducing the garbage bin area and paving will ensure that the proposal fits within the existing streetscape.

59 With the benefit of the view of the site and the surrounding area I accept that the proposed development will contribute to an attractive residential environment and will not have an unacceptable impact on the streetscape or the character of the area.

60 While the existence of the driveway to the basement car park is a foreign element in the streetscape it is not element that overpowers other elements that make up the streetscape. The presentation to the street is single storey and is relatively modest considering the existence of many two-storey residential dwellings in the area. The building form is clearly residential in nature and the design includes appropriate levels of articulation and modulation. The proposal complies with the height requirement, the front setback is consistent with other residential development in the street and an acceptable level of landscaping will be provided, based on the plans provided to the Court.

61 Incoming to this conclusion I accept that the proposed development will be larger and will be used for a purpose different to other residential development within the street however housing development for older people for people with a disability is a permissible use within the zone and is a use that is clearly compatible with other forms of residential development. The proposal generally complies with the planning controls formulated for the council for this type of use. Even though the proposal breaches a number of development standards, the breaches do not affect, in any meaningful way, the existing streetscape or character of the area.

62 I find that after the consideration required by LEP 2000 and the DCP, the proposal will not create unacceptable impacts on the streetscape and character of the area.

Impacts on the amenity of the adjoining properties

63 Clause 30 requires consideration to the given " to the impact that the proposed development may have on adjoining development, buildings and open space from loss of sunlight, views and privacy" (cl 30(a)) and "the impact of the proposed development on adjoining properties in terms of size, bulk, height and amount of landscaped area" (cl 30(d)).

64 Clause 11 of the DCP requires that the Court be satisfied that adequate regard has been given to maintaining "reasonable neighbourhood amenity…" (cl 11(b)(iii)) and "appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping" (cl 11(c)(ii)).

65 Mr and Ms Simpson from 14 Percival Rd. and Mr and Ms Hall of 18 Percival Rd. provided submissions to the council when the development application was advertised and also provided evidence on site. Their concerns (not addressed elsewhere in the judgement) relate to the bulk of the proposed building when viewed from their property, inadequate setbacks, noise and overlooking. Mr and Ms Hall raised the additional concerns of overshadowing and the proximity to the driveway to the basement car park.

66 In my opinion, the proposed development has an acceptable relationship with the adjoining dwellings. As I understand, the side setbacks do not breach any council requirements. The setback to the northern boundary ranges from 2 metres to 2.2 metres and contains a pathway and landscaping strip. The setback from the southern boundary is generally 1.5 metres at the lower level and 3 metres at the upper level. The setback area available for landscaping will provide the opportunity for sufficient landscaping in the setback areas and provide a landscape separation between buildings. I do not accept that it is necessary that the proposed building be totally hidden from view by landscaping and as such any additional area to accommodate more substantial landscaping is not required.

67 The form of the building is well articulated and is generally single storey with the two storeys component occupying a relatively small section of the building. Because of the slope of the site, the floor level is elevated above ground level in some locations however it is not excessive and does not materially add to the bulk when viewed from the adjoining properties.

68 The length of the building may not necessarily be consistent with a single residential dwelling however this is a direct result of the floor space allowable under the council planning controls and the area of the site. I accept that the proposal seeks to minimise the impact of the building extending beyond the rear of the dwellings on the adjoining sites although some oblique views from the adjoining dwellings will be lost. This loss is not sufficient to warrant the refusal of the application because of the general compliance with the council planning controls and the maintenance of existing views to the east.

69 In relation to potential overlooking I also accept that the proposal is satisfactory. Opportunities for overlooking from the rear balconies are limited by the proposed screening and while this adds to some extent to the bulk of the building in this location, the reduced height of the screen to 1.5 metres, the increased setback from the boundary and the inclusion of additional landscaping at the upper level minimises this additional bulk. The placement and the use of translucent glazing in the windows satisfactorily address the potential for overlooking from the windows in the proposed building.

70 The potential noise generated from the rear balconies is not a matter that would warrant the amendment or refusal of the application. While these areas will undoubtedly be the principal outdoor recreational areas for the dwellings, it is unrealistic to assume, particularly considering the intended occupants, that the dwellings would necessarily generate levels of noise greater than could be expected for any other form of residential development even considering the number of dwellings.

71 The applicant provided shadow diagrams showing the impact of the proposed development on 18 Percival Rd. Mr Crane states that there will be less overshadowing than that generated by the existing dwelling. Mr Hand or Mr Brooker did not challenge his conclusions so I accept that the loss of solar access is not an issue that could support the refusal of the application.

72 Noise associated with the operation of the basement carpark door was not the subject of any specific evidence in proceedings. In the absence of any evidence to suggest that the operation of the door will create a nuisance, I accept that the door, if operated and maintained in a reasonable manner, is unlikely to create any unacceptable noise impacts, particularly considering the limited likely traffic generated by only 4 dwellings and its location below ground level. Similarly, the use of the driveway to the basement car park is unlikely to create unacceptable impacts because of the limited traffic generation potential of the development.

73 I find that after the consideration required by LEP 2000 and the DCP, there are no reasons why the proposed development will create unacceptable amenity impacts on the adjoining properties.

Internal amenity impacts

74 Clause 11(d) of the DCP states that the proposed development shall:

(ii) involve site planning, dwelling design and landscaping that reduces energy use and makes the best practical use of natural ventilation solar heating and lighting by locating the windows of living and dining rooms in a northerly direction.
NOTE. AMCORD A National Resource Document for Residential Development 1995, may be referred to in establishing adequate solar access and dwelling orientation appropriate to climatic conditions.

75 A9.1 in Element 5.10 Design for Climate in AMCORD states:

Windows to north facing living areas receive at least 3 hours of sun between 9 am and 5 p.m. on 21 June over a portion of their surface.

76 Mr Brooker states that three of the four proposed dwellings are denied reasonable solar access to the living rooms due to the orientation towards away from the northerly aspect and a lack of external windows and door openings in the northern elevation. The dwellings will not receive the AMCORD requirement of 3 hours of sun on the living room windows. He rejects the use of skylights as a poor alternative to direct sunlight.

77 Mr Flower acknowledges that the solar access to three of the four dwellings is deficient however he states that the street pattern determines that a sensible design would orientate these dwellings in an east and west direction. To compensate, substantial clestories are provided over the living areas for dwellings 3 and 4. This provides substantial solar access to the living areas over and above what would be expected from east-west orientated dwellings. The orientation also importantly minimises the potential overlooking impacts on the dwelling to the north at 18 Percival Rd. Overall, three of the four dwellings have northern sun for a substantial part of the day.

78 On this issue I accept that the solar access is not optimal but satisfactory considering the constraints of the site and the particular design features that maximise solar access. I accept the evidence of Mr Flower that the proposed orientation of the dwellings is an appropriate response to the characteristics of the site. Generous areas of private open space are available for each dwelling and take advantage of the distant water views to the east. The private open space areas are also located directly off the living areas of the dwellings and provide access to winter sun.

79 A northerly orientation of the dwellings would likely raise overlooking issues with the adjoining property, create considerable difficulties in locating private open space areas in close proximity to the living areas of the dwellings and orientate the dwellings away from the attractive easterly views. The clestories provide additional sunlight to the living areas although without the direct access to the areas of private open space, the overall access to winter sunlight could be problematic. I am also mindful of the availability of the large area of communal open space that would obtain significant levels of solar access in midwinter in determining that the proposal achieves an acceptable level of solar access.

Resident issues
Inadequate car parking/traffic

80 The proposal satisfies the requirement in the DCP for residential and visitor car parking. I also accept that the proposal will not generate any meaningful level of vehicle movement when compared to the capacity of the local road system. Consequently the level of car parking and traffic generation could not support the refusal of the application.

Loss of street tree

81 The access to the basement car park will necessitate the removal of a mature Brush Box street tree in the footpath area. The landscaping plan provides for a replacement tree. While close to the proposed driveway, a second street tree is to be retained. Even though the tree contributes, to some extent to the landscaped character of street, it has extensive central pruning to allow for overhead wires to pass through the tree. In my view, the removal of the tree is not a reason to refuse the application particularly when a more appropriately located tree will, in the longer term, improve the landscaped character of the area.

Glare from headlights entering and leaving the site

82 While the opportunity exists for headlights to shine on houses on the opposite side of Percival Rd. when vehicles leave to the site, the frequency of such events is relatively limited because of the level of development. It is not a matter that would warrant amendment or the refusal of the application.

Precedent

83 While precedent is a legitimate planning issue, I am not convinced that it is relevant in this case. The site has its own special characteristics that are unlikely to the repeated in other sites. I do not accept that the approval of this application would be of any precedent value if other applications are submitted in the area. Importantly, the opportunity exists through the councils zoning for other applications to be submitted however these would be assessed on their own individual merits.

Orders

84 The Orders of the Court are:

1) The appeal is upheld.
2) Development Application No. DA 1185/05 for the demolition of an existing dwelling and ancillary structures and the construction of a housing development for older people for people with a disability at 16 Percival Rd., Caringbah is approved subject to the conditions in Annexure A.
3) The exhibits are returned with the exception of exhibits 1, 2 and H.
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G T Brown
Commissioner of the Court