Parris v Randwick City Council

[2016] NSWLEC 1507

Land and Environment Court

New South Wales

Medium Neutral Citation:	Parris v Randwick City Council [2016] NSWLEC 1507
Hearing dates:	11-12 October 2016
Date of orders:	01 November 2016
Decision date:	01 November 2016
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	DEVELOPMENT APPLICATION: detached dual occupancy, subdivision, minimum lot size
Legislation Cited:	Land and Environment Court Act 1979; Environmental Planning and Assessment Act 1979; Randwick Local Environmental Plan 2012
Cases Cited:	Wehbe v Pittwater Council [2007] NSWLEC 827
Texts Cited:	Randwick City Council Development Control Plan
Category:	Principal judgment
Parties:	Andrew Parris (Applicant)   Randwick City Council (Respondent)
Representation:	Counsel: Mr A Pickles (Applicant)   Solicitors: Mr J Ede Madison Marcus Law Firm (Applicant) Mr A Seton Marsdens Law Group (Respondent)
File Number(s):	168031/2016

Judgment

1. Mr Parris lodged Development Application No 122/2016 which sought consent from Randwick City Council for the demolition of existing structures, Torrens Title subdivision and construction of a detached dwelling house on each lot of land, each with a garage and swimming pool at the rear and associated landscape works.

2. The Council had not determined the application within the prescribed period and Mr Parris is appealing the deemed refusal.

The site and its context

3. The site is legally described as Lot 1 in DP 538977 with a street address of 44 Gale Road, Maroubra. It is located on the northern side of the road approximately 40m to the west of its intersection with Royal Street and is rectangular in shape with a frontage of 19.185m to Gale Road and approximate depth of 40m with a total site area of 760 m². The site slopes to the rear with a fall of approximately 2 metres.

4. A single storey dwelling house with carport and minor outbuildings currently stand on the site.

5. Development in the vicinity comprises low density one and two storey dwelling houses which are erected on varying setbacks to both the Street frontage and side boundaries. Whilst the subdivision pattern is rectilinear, the width of the lots varies and the site is one of the wider allotments within the locality.

Background and the proposal

6. As the result of discussions between the applicant and respondent, amended plans were submitted to the Council on 22 April 2016 for consideration. Those plans remain undetermined. Further plans were prepared following the mandatory conciliation phase pursuant to the provisions of s34AA of the Land and Environment Court Act 1979 (LECAct). The applicant sought and was granted leave to rely on those plans during the hearing subject to the payment of $2500 being the Council agreed costs pursuant to the provisions of s97B of the Environmental Planning and Assessment Act 1979.

7. Those plans, exhibit F, propose:

• subdivision of Lot 1 in DP 538977 into two equal lots, each lot having a frontage of 9.592m to Gale Road and a site area of 380m²;

• the construction of a two storey detached dwelling on each of the proposed lots incorporating single car garage within the main dwelling.

8. The proposed dwellings would be erected on a minimum alignment of 6 metres at ground level and 5.5m at first floor level to Gale Road. Side boundary setbacks of 1.2m would be provided along the eastern boundary of the proposed eastern lot and the western boundary of the proposed western lot with 900mm setbacks provided from the new common boundary. The greater setback would be provided from the existing adjoining dwelling houses and the reduced setback between the proposed new dwellings to be erected on the site.

9. The two storey building elements would be setback 11.455m from the rear boundary with raised decks, landscaped rear yard and a swimming pool provided within the backyard area.

The planning controls

10. The site is located within the R2 Low Density Residential Zone under the provisions of Randwick Local Environmental Plan 2012 (LEP). The proposed development is defined as subdivision and dwelling houses and is permitted with consent within the R2 zone.

11. Clause 2.3(2) of the LEP requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect to land within the zone. The objectives of the R2 zone are:

• To provide for the housing needs of the community within a low density residential environment.

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

• To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.

• To protect the amenity of residents.

• To encourage housing affordability.

• To enable small-scale business uses in existing commercial buildings.

12. Dual occupancies (attached) and dwelling houses are permitted with consent in the R2 zone. The dictionary to the LEP contains the following definitions:

dual occupancy means a dual occupancy (attached) or a dual occupancy (detached).

Note. Dual occupancies are a type of residential accommodation—see the definition of that term in this Dictionary.

dual occupancy (attached) means 2 dwellings on one lot of land that are attached to each other, but does not include a secondary dwelling.

Note. Dual occupancies (attached) are a type of dual occupancy—see the definition of that term in this Dictionary.

dual occupancy (detached) means 2 detached dwellings on one lot of land, but does not include a secondary dwelling.

Note. Dual occupancies (detached) are a type of dual occupancy—see the definition of that term in this Dictionary.

dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.

dwelling house means a building containing only one dwelling.

13. Dual occupancy (detached) are prohibited in the R2 zone. Therefore, unless consent is obtained to subdivide the site, the application would be prohibited.

14. Part 4 of the LEP contains principal development standards with clause 4.1 relevant to the application. It is in the following form:

4.1 Minimum subdivision lot size

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

(a) to minimise any likely adverse impact of subdivision and development on the amenity of neighbouring properties,

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

(c) to ensure that lot sizes are able to accommodate development that is suitable for its purpose.

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

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

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

15. The map that applies to clause 4.1 provides for a minimum lot size of 400 m² and therefore, as the proposed lots that would result from the subdivision R 360 m², the proposal fails to satisfy this development standard. The applicant relies on an objection pursuant to the provisions of clause 4.6 of the LEP. This matter is discussed later in my judgement.

16. Whilst not proposed in this case, clause 4.1A provides minimum subdivision lot size for strata plan schemes in zone R2 with the size of each lot resulting from the subdivision to be not less than 400m² and one dwelling to be situated on each lot. Similarly, clause 4.1C applies to attached dual occupancies and is in the following form:

4.1C Minimum lot size for dual occupancies (attached)

(1) The objective of this clause is to provide for housing diversity and affordability in residential zones.

(2) Development consent may be granted for development on a lot in Zone R2 Low Density Residential for the purpose of a dual occupancy (attached), if the area of the lot is at least 450 square metres.

17. Attached dual occupancy development could be approved on the site subject to compliance with the relevant controls.

18. Clause 4.3 Height of buildings permits a maximum building height of 9.5m and clause 4.4 Floor space ratio permits a maximum of 0.75:1. The proposal complies with those development standards.

19. Clause 6.4 applies to stormwater management for all land in residential, business and industrial zones and provide that development consent must not be granted to development on land unless the consent authority is satisfied that the development:

(a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

(b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

20. Whilst originally a contention in the case, stormwater disposal was resolved and draft conditions of consent prepared to address this matter.

21. Randwick City Council Development Control Plan (DCP) applies to the site with Part C1 Low Density Residential particularly relevant to the application. In addition to the minimum lot size provisions that are contained in the LEP the DCP control for minimum lot frontage of allotments resulting from the subdivision of land within the zone R2 for the purposes of dwelling houses and semi-detached dwellings is 12m. The development does not comply with that control. The objectives of the control are:

● to ensure land subdivision respects the predominant subdivision and development pattern of the locality.

● To ensure land subdivision creates allotments that have adequate wdith and configurations, to deliver suitable building design and to maintain the amenity of the neighbouring properties.

22. The DCP contains a control for attached dual occupancy development with a 15 m frontage required. Again, the site meets that control.

23. Other DCP controls relevant to the proposal are 2.3 Site Coverage with a maximum of 55% applying to the proposed allotments. This control would be met.

24. Clause 2.4 requires a minimum of 25% of the site area to be provided as deep soil permeable surfaces with those areas having a width of not less than 900 mm, the areas being maximised in the front yards of new development and a minimum of one canopy tree per allotment capable of reaching a mature height of at least 6 m required. Clause 2.5 requires a continuous private open space area with a minimum dimension of 6 m x 6 m, clause 3.3.1 requires a minimum front setback of 6 metres and clause 3.3.2 requiring side setbacks of 900mm. Clause 3.3.3 requires, in this case, a minimum rear setback of 8 m and clause 5.1, solar access and overshadowing requires a portion of the north facing living area windows and the private open space of the proposed development to receive a minimum of three hours of direct sunlight between 8 AM and 4 PM on 21 June. Neighbouring property is must receive a minimum of three hours of direct sunlight during this period to North facing living area windows and private open space as a result of any development on adjoining land. Clause 5.3 requires consideration of visual privacy.

25. The development satisfies these requirements.

26. Part 6 of the DCP applies to car parking and access with a maximum of one vehicle access per property, parking facilities provided in single car garage or carport if the site frontage has a width of less than 12m and provided behind the front facade alignment, either integrated within the dwelling or positioned to the side of the dwelling. The development satisfies this requirement.

The issues

27. The contentions in the case are that the proposed subdivision does not comply with the development standard in respect of minimum lot size in clause 4.1 (3) of the LEP and is inconsistent with the objectives of clause 4.1; the development is inconsistent with the objectives and controls in part 2.1 of the DCP; the proposed development is not consistent with the established subdivision pattern in the immediate locality; is inconsistent with the existing and desired future character of the local area and is not in the public interest.

28. Contentions regarding built form and building design, side and rear setbacks, bulk and scale, housing diversity and stormwater management were resolved through the provision of the amended plans and additional information.

The evidence

29. The matter is heard under the provisions of s34AA of the LECAct and commenced as a conciliation conference. As a result of the discussions in this forum, a number of the contentions were resolved and the plans amended to reflect that agreement. As the principal issue in the proceedings relates to the development standards for minimum lot size, this issue could not be resolved and the conciliation conference was terminated and the matter proceeded to hearing. The parties agreed that the discussions held during the conference could be taken into account during the hearing.

30. The matter had commenced with a site view and evidence was heard from a number of objectors to the proposal. The issues raised are summarised as follows:

• Overshadowing/loss of sunlight;

• Loss of privacy and outlook;

• Bulk and scale of development is excessive;

• Out of character with the streetscape and locality;

• Adverse amenity impacts from proposed pools.

31. Expert town planning evidence was heard from Mr A Betros for the applicant and Mr S Harding for the council.

32. They agreed that the amendments made to the plans address the particulars of the contentions that relate to amenity, bulk and scale, design, setbacks and siting and the visual dominance of the garages.

33. No agreement was reached in relation to minimum lot size and whether the objection to that development standard should be allowed. They also disagreed as to whether the DCP frontage control should be applied and therefore whether the form of development was consistent with the streetscape envisaged in the DCP and the desired future character for the locality.

34. Mr Betros had prepared the written objection to the minimum lot size development standard that is required under s4.6(3) of the EP&AAct (Exhibit B). Assessment of this objection is addressed later in this judgment.

35. In relation to the minimum lot size, Mr Betros says that the proposed lot sizes of 380 m² (which are 20 m² below the 400 m² allotment size) achieve the objectives of the standard as the proposed allotment sizes are capable of providing a high level of amenity for both dwellings, are able to maintain amenity for neighbouring properties and achieve a streetscape and subdivision outcome which is compatible with the character of the locality. He notes that the amended plans provide for a consistent side setback and retain solar access, privacy and views for neighbouring properties (in a manner greater than anticipated by the DCP provisions for amenity). With the integration of the garages into the facades of the dwelling he considers this achieves a desirable streetscape outcome. He notes that the proposed lot sizes are capable of achieving setbacks either side which are equal to or greater than required for either dwelling houses or an attached dual occupancy which are the potential permissible residential options in the R2 Low Density Residential zone.

36. Mr Betros says the height of the dwelling houses in the streetscape and when viewed from neighbouring properties to the east, north and west are well below the permitted DCP wall height of 8 m and the LEP height limit of 9.5 m. The proposed allotments are of an appropriate size, shape and dimension to accommodate the dwellings, without resulting in any adverse or unacceptable amenity impacts on neighbouring properties is achieved by provision of dwellings will be low the permitted FSR having an FSR of 0.52:1 noting that 0.75:1 is permitted for lot sizes of 300 to 450 m²; provision of dwellings up to 3.5 m below the statutory 9.5 m height limit; and 2 m below the permitted DCP wall height limit of 8 m; outperformance of side setback requirements by providing side setbacks of 1.2 m; provision of a fragmented built form when viewed from adjoining properties either side with landscaping within those side setbacks; provision of a greater than required setback to the rear and a consistent front setback to Gale Road; outperformance of deep soil landscaped area, landscaped area, site coverage and private open space area requirements; retention of solar access for more than three hours to neighbouring properties and privacy to those properties by minimising side facing openings at the first floor.

37. He says the surrounding area is characterised by numerous allotments which are similar to or less than the proposed allotments in regard to size whilst the proposed frontages, which are also compatible and similar to numerous sites in the vicinity. He has prepared a plan of the subdivision pattern which he says demonstrates that the proposed outcome will not set an undesirable precedent, noting that there are no lots comparable to the subject site which is considered to be a ‘double lot’ and that the subdivision merely achieve the replication of the adjoining lots to the rear and are comparable and consistent with those adjoining to the east. The streetscape outcome of the individual detached dwellings on each proposed allotment achieve a more compatible outcome than if a single dwelling or attach dual occupancy were provided on site. He considers the variations that occur in regard to site frontage and site areas would not be evident to the casual observer as one does not observe a subdivision pattern from street level and based on the sloping nature of the site which falls away from the street the shortfall of 20 m² per site is imperceptible.

38. Mr Betros considers the proposed single dwellings will be compatible with the streetscape character due to the provision of consistent front setbacks with those properties to the east, noting that those to the west are irregular and back on to the rear of properties addressed to Royal Street. The two storey scale of development with landscaping in the front setback and single garage presentation is also compatible with the surrounding streetscape and any redevelopment of sites which have similar frontages and site area. He considers the provision of the two single dwellings as opposed to a large broad fronted dwelling or an attached dual occupancy represents an outcome which is more in keeping with the predominant character of single dwellings.

39. In terms of lot frontage, Mr Betros says the variations will not generate any inconsistent subdivision outcome nor would be proposed frontage generate any adverse or inconsistent streetscape outcome due to the variety of frontages and site areas which are comparable and compatible with that proposed. The rectangular shape of the proposed allotments fit neatly with the predominant pattern of subdivision, are consistent with the size, shape, dimension and orientation of allotments within the immediate streetscape and surrounding locality with the two square shaped allotments to the west of the site considered to be anomalous. He says the proposed allotment size and frontages satisfy the objectives of the DCP because those objectives confine the assessment of the pattern of subdivision and development and the proposed allotments respect the predominant subdivision pattern by providing rectangular shaped site that provide for dwellings oriented to Gale Road with dwellings and lots in a north south orientation; the width and size are consistent and compatible with the predominant rectangular shaped allotments and provide for dwellings with consistent and compatible orientation and relationship and have adequate width and configuration to deliver a suitable building design whilst maintaining the amenity of neighbouring properties.

31. Mr Harding says that Randwick Council has undertaken a very specific planning exercise to determine the appropriate allotment areas for land subdivision. The Council has strictly applied these outcomes, in particular, for new buildings and the areas are based on the Council’s intent to maintain a character as set out in the LEP for the R2 zone based on building and land sizes for a low density outcome. The Council has set these limits based on an extensive series of calculations about allotment sizes throughout the Council area and it had come to the conclusion that even small variations in allotment size had the ability to create significant precedent about the area of subdivision that have the potential to erode the low density character the Council was seeking.

32. He does not consider the variation in lot sizes leads to a better environmental outcome although acknowledges the amended plans do address amenity impacts such as privacy and overlooking.

33. Mr Harding noted that in the material provided by the applicant, the allotment frontages for Gale Road almost all achieve the 12m width requirement with only one or two exceptions where the width is 11.9m. This pattern of development is consistent with the 12m which sought by the DCP and is therefore consistent with the character that the planning controls are seeking to implement. This streetscape is an important part of the immediate locality and he does not consider there are sufficient circumstances to warrant the variation to the planning controls in this instance because the site will deliver to dwellings that are not characteristic of the street and which are in allotments that are much narrower than the character being sought by Council. The granting of this variation would open up the opportunity for an extensive number of allotments to be created with the same width which he says is at odds with the future character objectives that Council and the community has carefully considered.

34. In aural evidence Mr Harding did concede that the council’s review of dual occupancy, subdivision and dwelling controls (Issues Paper) and its associated report to its Health, Building and Planning Committee did consider the application of a range of lot sizes across the local government area however resolved to apply a fixed the control all 400 m² and recommended that the control be flexibly applied when appropriate. He considered that a single building is desirable and a consistent character element in the street whereas the proposed two narrow dwellings are not an element consistent in this section of Gale Road. He agreed that the lots were capable of accommodating a dwelling house however that form of development would not be consistent with the character of the area.

Conclusion and findings

44. Clause 4.6 of the LEP imposes a precondition to a consent authority exercising the power to grant consent to development on land to which the clause applies and if I am not satisfied that the provisions of the clause are met, consent cannot be granted.

45. Clause 4.6 is in the following form:

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

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

(5) In deciding whether to grant concurrence, the Secretary must consider:

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Secretary before granting concurrence……………….

46. This imposes a number of tests, the first that compliance with the development standard must be unreasonable or unnecessary in the circumstances of the case, the second that there are sufficient environmental planning grounds to justify contravening the development standard, the third that the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3) and the fourth, that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. In addition, satisfaction of those matters that must be considered by the Secretary in determining whether concurrence should be granted is required.

47. Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 sets out five ways of demonstrating that compliance with a development standard is unreasonable or unnecessary. They are:

1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

2. the underlying objective or purpose is not relevant to the development with the consequence that compliance in unnecessary;

3. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable;

4. the development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consent departing from the standard;

5. the zoning of particular land was unreasonable or inappropriate so that a development standard appropriate for that zoning was also unreasonable or unnecessary is applied to the land.

48. The objectives of the R2 zone are detailed at [11]. The objectives of the minimum subdivision lot size development standard are:

(a) to minimise any likely adverse impact of subdivision and development on the amenity of neighbouring properties,

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

(c) to ensure that lot sizes are able to accommodate development that is suitable for its purpose.

49. Having regard to the evidence and in particular to the written objection prepared, I am satisfied that these tests have been met. Firstly, I must be satisfied that the written objection adequately addresses the matters required to be demonstrated by clause 4.6(3) and secondly, the development will be in the public interest because it is consistent with the objectives of the minimum subdivision lot size standard and the objectives for development within the R2 zone in which the development is proposed to be carried out.

50. The written request in relation to the minimum subdivision lot size (Exhibit B) reflects much of the evidence in chief provided by Mr Betros. The following is a summary of his reasoning:

• The subdivision pattern where the site is located has lots with similar size and dimension to that proposed;

• Those lots are developed with a predominance of single detached dwelling houses thereby demonstrating that the proposed Torrens title subdivision and associated development of two free standing homes, will be consistent and compatible with the established character of the immediate area;

• The lots are of a suitable size and dimension to each accommodate a single dwelling house;

• The proposed lot sizes are not responsible for any increased external amenity impacts above and beyond that of a compliant lot;

• The design of the development addresses issues of bulk, scale and character;

• The development is in the public interest as it would contribute to housing affordability through the provision of two houses instead of a large dwelling house;

• Two single detached dwellings provide for a better planning outcome and achieve greater compatibility with the single detached nature of housing in the visual catchment;

• The development results in an orderly and economic use of the land without compromising the character of the area and the amenity of immediately adjoining premises;

• The proposed lot size will each accommodate a dwelling with a compliant height and FSR whilst also outperforming a number of the council’s DCP controls including site coverage, deep soil planting, private open space and solar access to both the subject and adjoining sites. The dwelling houses also provide for compliant front, side and rear setbacks and are capable of accommodating a compliant degree of parking that does not dominate the street frontage.

51. It is common ground that the second objective of the development standard is not relevant to the case.

52. Having reviewed the written request, I am satisfied that it has adequately demonstrated the first test in Wehbe that the objectives of the development standard are achieved notwithstanding non-compliance with the standard. Therefore, I am satisfied that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case.

53. Similarly, having regard to the location of the site and the adjacent subdivision pattern, I am also satisfied that there are sufficient environmental planning grounds to justify contravening the development standard.

54. In regard to the second test, my findings in relation to the first result in the conclusion that the proposed development will be in the public interest because it is consistent with the objectives of the minimum subdivision lot size standard.

55. Having regard to the objectives of the R2 zone and the evidence provided, I am also satisfied that the subdivision of the land as proposed would provide for the housing needs of the community within a low density residential environment. The density of the development proposed listed with and compatible with the character of the locality. Whilst the design of the dwellings as proposed is not a relevant consideration, I am satisfied that it has been demonstrated that the desirable element of the existing streetscapes and built form would contribute to the desired future character of the area without adverse impact to the amenity of existing residents. There is no economic evidence before me to assess affordability of the proposal and similarly, no evidence to suggest development is contrary to the objective of income housing affordability. For these reasons, I am satisfied that proposed subdivision would be consistent with the objectives of the R2 zone.

56. Having regard to those matters area must consider deciding whether to grant concurrence, there is no evidence that contravention of the development standard raises any matter of significance for State or regional environmental planning.

57. I have considered the matters raised in the Council issues paper and in particular table 7 shows the impact of various different lot sizes and consider that happening found this case variation the development standard is appropriate, there would be no public benefit in maintaining the standard.

58. For these reasons, it is appropriate to uphold the written objection to the development standard for minimum subdivision lot size and allow the subdivision of the land into two hundred 380 m² allotments.

59. My findings in relation to the clause 4.6 objection address the matters and particulars raised in contentions one, two, three and four of Council statement of facts and contentions, Exhibit 1 with the exception of lot width, however, having found the subdivision is satisfactory and the lots are capable of providing for the construction of dwellings that accord to the council’s controls, I am also satisfied that the width of the lots are appropriate in the particular circumstances of the case. That is because the experts agree that the design of the dwellings as now proposed is appropriate and addresses the previous concerns regarding amenity and streetscape impacts.

60. The planning experts agree that the amended plans address intention five, six and seven with the remaining prior to the hearing through the provision of additional information and detail or the imposition of conditions of consent.

61. Accordingly there are no reasons why consent should not be granted.

62. The Orders of the court are:

1. The appeal is upheld.

2. Development Application No 122/2016 for the demolition of existing structures, Torrens Title subdivision and construction of a detached dwelling house on each lot of land, each with a garage, swimming pool at the rear and associated landscape works is approved subject to the conditions in Annexure A.

3. The exhibits, other than exhibits A, F and 1 are returned.

______________

Sue Morris

Commissioner of the Court

168031.16 - Annexure A (176 KB, pdf)

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Decision last updated: 01 November 2016