Pennine Developments Pty Ltd v Cumberland Council

[2019] NSWLEC 1031

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pennine Developments Pty Ltd v Cumberland Council [2019] NSWLEC 1031

Hearing dates:

17-18 January 2019

Date of orders:

05 February 2019

Decision date:

05 February 2019

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is dismissed;

(2) Development application No. 2018/16 for demolition of existing dwellings and ancillary structures on site; lot consolidation; and construction of a multi dwelling residential development of ten units over basement parking at 70-72 Pendle Way, Pendle Hill is refused.

(3) The exhibits are returned with the exception of Exhibits 3, B and D

Catchwords:

DEVELOPMENT APPLICATION: Multi Dwelling Housing – Affordable rental housing – compatibility of the development with the locality – appropriateness of two storey development at the rear of the site – streetscape presentation of the development – application warrants refusal.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Holroyd Local Environmental Plan 2013
State Environmental Planning Policy (Affordable Rental Housing) 2009

Cases Cited:

Project Venture Developments v Pittwater Council [2005] NSWLEC 191

Texts Cited:

Holroyd Development Control Plan 2013
Seniors Living Policy: Urban Design Guidelines for Infill Development, Department of Infrastructure, Planning and Natural Resources, March 2004

Category:

Principal judgment

Parties:

Pennine Developments Pty Ltd (Applicant)
Cumberland Council (Respondent)

Representation:

Solicitors:
S Kondilios, Hall and Willcox (Applicant)
A Seton, Marsdens Law Group (Respondent)

File Number(s):

2018/0076072

Publication restriction:

No

Judgment

Nature of Proceedings and Outcome

1. COMMISSIONER:    The Applicant, Pennine Developments Pty Ltd, seeks consent for the demolition of existing dwellings and ancillary structures; lot consolidation; and construction of a multi dwelling residential development of ten units over basement parking. The development is proposed at 70-72 Pendle Way, Pendle Hill.

2. This matter is an appeal under s 8.11 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal of DA/2018/16 by Cumberland Council.

3. The Court directed and facilitated a conciliation conference between the parties on August 29 2018. The applicant prepared an amended scheme for the purposes of the conciliation conference.

4. Further changes to the development were made in response to the contentions filed by the Council and the discussions held at the conciliation conference. The Applicant sought, and was granted leave, to formally amend their development application on October 10 2018.

5. At the commencement of the hearing the applicant sought leave to further amend the architectural plans that form part of their application. The changes were not opposed by the Respondent. The parties agree that the changes are minor and that no costs arise under 8.15(3) of the Act. The changes are principally:

1. an amendment to the roof at the rear of the site, proximate to Unit 06, in the north western corner of the site; and

2. changes to the private open space of Unit 3,5,6, and 7.

6. The Council contends that the application should be refused on the following grounds:

1. because the proposed development is not compatible with the character of the local area;

2. that the massing of the two storey elements is unsatisfactory and is not compliant with Council’s planning controls as the development is two storey for its entire length;

3. the development fails to provide adequate private open space;

4. the development has insufficient side boundary setbacks;

5. the development impacts unreasonably on the privacy of adjoining residents.

7. Following a consideration of the evidence presented and the submissions of the parties I am satisfied that the development, as amended, warrants refusal. I find that the design of the development is not compatible with the character of the local area and that the site is not suitable for the development proposed; s4.15 (1) (c) of the Act.

The site and its locality

8. The subject site comprises Lot 2 and 3 in DP 18647, located at 70-72 Pendle Way, Pendle Hill. The subject land has a frontage of 27.42m to Pendle Way and once amalgamated will have a site area of 1,125m².

9. The site is located in an established residential area which the parties agree is in transition from a low density character to one of medium density development. Adjoining and adjacent development comprises a mix of single dwellings, dual occupancies and multi dwelling housing.

10. The surrounding land is also zoned for medium density residential development, with land on the opposite side of Pendle Way zoned for high density residential development.

11. The site is approximately 500m from Pendle Hill Railway Station and the Pendle Hill shops.

Planning Controls

12. The application is made pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). The development proposal is for infill affordable housing. Under cl 10.1(2) of the instrument, the land must be within an “accessible area”. Accessible area is defined in cl 4 of SEPP(ARH):

4 Interpretation-general

(1) In this Policy:

accessible area means land that is within:

(a) 800 metres walking distance of a public entrance to a railway station or a wharf from which a Sydney Ferries ferry service operates, or

(b) 400 metres walking distance of a public entrance to a light rail station or, in the case of a light rail station with no entrance, 400 metres walking distance of a platform of the light rail station, or

(c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday

13. The parties agree that the development meets the test in cl. 10.1(2) of SEPP ARH as it is within 800m of Pendle Hill Railway Station.

14. Clause 10(1)(a) of SEPP ARH is satisfied by the parties agreement that the development is ‘multi dwelling housing’ which is permissible in the R3 Medium Density zone under Holroyd Local Environmental Plan 2013 (LEP 2013).

15. In accordance with clause 13 of SEPP ARH, 20% of the proposed floor space (Unit 5 and 6) is to be used for the purposes of affordable housing. The development complies with the floor space ratio control in cl. 13(2).

16. Clause 14 of SEPP ARH details standards that cannot be used to refuse consent. These standards are met by the development proposed.

17. Clause 15(1) of SEPP ARH applies as the development is not a residential flat building. It states:

(1) A consent authority must not consent to development to which this Division applies unless it has taken into consideration the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004, to the extent that those provisions are consistent with this Policy.

18. Clause 16A requires consideration of the character of the local area:

16A Character of local area

A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

19. The satisfaction of 16A of SEPP ARH is a matter of dispute between the parties and is considered later in the judgement.

20. Under the provisions of LEP 2013 the site is zoned R3 Medium Density Residential. The objectives of the zone are a relevant consideration pursuant to cl. 2.3(2) of the instrument. The objectives are:

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

• To provide a variety of housing types within a medium density residential environment.

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

21. The planning experts agree that the development is categorised as: ‘multi dwelling housing’ and is permissible under the R3 Medium Density zone. The Respondent notes that ‘residential flat buildings’ are not permissible in the zone which they argue is relevant to the Courts consideration of the whether the proposed development is compatible with the character of the local area.

22. The proposed development complies with the height development standard of 9m at cl. 4.3(2) of LEP 2013.

23. The development is also subject to the provisions of the Holroyd Development Control Plan 2013 (DCP 2013). Part B of DCP 2013 incorporates the controls for all types of residential development. The following provisions of DCP 2013 are relevant to the issues in the proceedings:

1. 1.4: Privacy

Objectives:

O1. To provide a high level of visual and acoustic privacy for residents and neighbours in dwellings and private open spaces.

…

O3. To ensure that building design practises overcome overlooking problems.

…

O7. To implement landscaping measures that to increase visual privacy.

..

Controls:

C1: The windows of dwellings are to be located so they do not provide direct and close views into the windows of habitable rooms and private open spaces of adjoining dwellings.

…

C5: Where a proposed deck overlooks outdoor living areas of adjacent dwellings, suitable screening is to be provided, at a minimum height of 1500mm.

…

C6: Landscaping shall be designed to provide screening and filtering for control of privacy and to reduce overlooking of dwellings.

C7: Attics are only permitted in dwellings where attics are located to face the street, directly face another element of the public domain such as a park, face onto an internal roadway within a development (i.e. multi dwelling housing development) or face onto a laneway and do not impact neighbouring properties.

C8: Any proposed attic windows are not to overlook windows of adjacent dwellings or their private open spaces. An outlook to the street should be provided from attic windows where appropriate (Figure 5).

…

2. 1.5: Landscape Open Space

Objectives

…

03: To ensure that landscaping and private open space provided for dwellings is defined, has good solar access, optimises usablity, privacy, accessibility, neighbours amenity and provides a central uninhibited area for passive and active recreation.

…

Controls:

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C11: Private open space shall:

• Only be located at the rear or side of the dwelling

• Be at located ground level. Structures such as decks proposed to be included as private open spaces, which are equal to or less than 500mm above ground level dwelling, and complies with all other criteria, may be considered by Council based upon their merits.

• Minimise overlooking opportunities and shall not decrease the visual privacy of neighbouring development.

• Accommodate both passive and active recreation uses.

• Must be directly accessible from a main living area of the dwelling (i.e. lounge/dining/rumpus room).

• Provided for the exclusive use of the occupant(s) of the dwelling house;

• Include an area for external clothes drying with good solar access where possible, which is not visible from a public area.

• Shall not be steeper than a 1:8 gradient. For steeply sloping sites, Council may consider terrace type stepping, which must have a length to width ratio no greater than 3:1.

…

C13: Private open space shall be provided at ground level in a single tract with a minimum dimension of not less than 3.0 metres.

C14: Principal private open space shall have a minimum dimension of 4 metres, have direct access from a major living area of the dwelling and be clear of all structures, including posts.

…

C16: Private open space at a rate of 20% of the total floor area shall be provided for each dwelling within a multi dwelling housing development and this shall include the principal area of 16m².

…

3. 1.9: Cut and Fill

Objectives:

…

03: To maintain privacy for adjoining residents.

4. Part 5: Multi Dwelling Housing:

1. 5.2: Setbacks:

Objectives:

01: To minimise adverse bulk and scale and amenity impacts from multi dwelling housing on adjacent and adjoining properties.

02: To provide for visual and acoustic privacy for dwelling occupants and adjoining residents.

…

04: To ensure multi dwelling developments are compatible with its setting and maintain the established character of the streetscape.

…

06: To establish the desired spatial proportions of the street and define the street edge

…

09: To maximise building separation to provide visual and acoustic privacy.

Controls:

C1: The minimum setback from the principal street frontage shall be 6 metres.

…

C8: Second storeys and above shall be setback at least 4 metres from the rear and side property boundaries of the dwelling.

…

C11: For multi dwelling development, private open space courtyards may intrude into the front setback where it is demonstrated that issues of privacy and residential amenity are maintained and the streetscape is reasonably consistent with established dwellings. Any such intrusion shall be limited to half the front setback.

2. 5.3: Height

Objectives:

01: To establish maximum storey limits for multi dwelling housing.

…

03: To ensure that multi dwelling and attached housing integrates within the existing landscape.

…

05: To ensure future development responds to the desired scale and character of the street and local area.

…

Controls:

C1: The maximum height for multi dwelling housing is two (2) storeys.

…

C3: Two storey dwellings shall have a maximum building height of 9 metres.

…

C5: The maximum building height of one storey applies developments (Figure 28) such as:

• Row(s) or other arrangements of townhouses/terraces that are situated to the rear of townhouses/terraces at the street frontage (e.g. a second row of townhouses).

• A row of townhouses that predominately faces the side boundary rather than the street, for that part of the building that is not within the first 20m of building length (i.e. the first 20m is permitted to be 2 storeys and the building is then required to step down to 1 storey).

…

C7: Attics are permitted in multi dwelling housing only where they comply with all other height and floor to ceiling height requirements.

C8: Attics are to be designed to fit within the building envelope (with the exception of dormer windows) and are not to increase the bulk and height of the roof.

…

C10: Council may only consider dormer style rooms, only where it is located within the roof line of the dwelling house and facing the principal street, a public park or an internal road and does not impact on neighbouring properties privacy.

C11: Dormer windows may be included which are no higher than the height of the main roof of the building, no greater than 1.5 metres in width and are not to incorporate an access or balcony.

24. The following definitions in DCP 2013 are relevant to the proceedings:

Attic means any habitable space, but not a separate dwelling, contained wholly within a roof above the ceiling line of the storey immediately below, except for minor elements such as dormer windows and the like.

Storey means any floor containing any habitable room or rooms other than –

• a floor used principally for storage, or

• a floor used wholly or partly for parking; and includes mezzanines/double-height spaces and habitable rooms in the roof.

25. Applying this definition the Respondent argues that the entirety of the development is two storeys. The experts in the joint report also note that ‘the proposed development is two storey in built form’ (Exhibit 6).

Public Submissions

26. I note that the development application was notified in accordance with the provisions of the DCP 2013. In response to the public notification Council received 4 submissions and a petition objecting to the application. I have read these submissions which have been tendered in the Council’s bundle of documents (Exhibit 5).

27. As noted at [4] the applicant was granted leave by the Court to amend their development application. These plans were renotified by the Council resulting in four submissions in objection to the amended plans.

28. Some of the objectors also gave further oral evidence at the site view. Broadly the residents’ concerns are that this application:

1. will add to the cumulative increase in development in the area, impacting on services, schools and the like;

2. is an overdevelopment in the terms of the number of proposed residents, the size of the development and its height;

3. will impact on the privacy of adjoining and proximate residents through overlooking;

4. will add to traffic congestion in the locality and impact on availability of on street parking, particularly due to the limited provision of parking on site;

5. will increase noise for existing residents due to the number of people proposed to be on site;

6. will result in an excessive number of refuse bins on the street awaiting collection which will generate smell and affect the quality of the streetscape;

7. may impact safety of residents with more people living in close proximity to each other;

8. has a two storey form the length of the site which is inappropriate in the locality.

Planning Experts

29. The applicant relied on expert planning evidence of Mr Ian Glendenning and the Council relied on the expert evidence of Mr Glen Apps. The experts prepared a joint report that was tendered as Exhibit 6.

Is the proposed development compatible with the character of the local area?

30. In their joint report the planning experts agree that: ‘the proposed development is two storey in form’ (Exhibit 6). The experts disagree whether the development is compatible with development in the locality and whether the built form proposed presents as a residential flat building.

31. Mr Apps’ evidence is that ‘the proposed development presents a design which is vastly different and incompatible with the multi dwelling housing forms envisaged by the current planning controls for multi dwelling housing in the area’.(Exhibit 6). On this basis Mr Apps agrees with the contention put by the respondent that the development application should be refused as it is not compatible with the character of the local area.

32. Mr Apps’ reasoning for reaching this conclusion of incompatibility is as follows:

29. The proposed development presents 3 separate courtyards and 3 first floor balconies to the street. While dwelling 4 is provided with a terrace in front of its living area as well as a terrace in front of bedroom 1, those terraces are separated by the stairs leading to dwelling 8 on the first floor.

30. The terrace for dwelling 5 is separated from the terrace for dwelling 4 by the stairs leading to dwelling 9 above.

31. As a result, the proposed development presents as 6 units to the street as a result of the separated terraces, stairs to the first floor, and the first floor balconies.

32. This typology is not typical of the form of multi dwelling housing that is found in the R3 zone. The development is more in keeping with what might be expected in an R4 zone. There is nothing of a similar typology in the R3 zones in proximity to the subject land.

33. Multi dwelling housing in the area takes on the more typical townhouse or villa style of development with 1 or 2 dwellings fronting the street.

34. The proposed development, will have a 2 storey presentation to the street, presents a form which is in keeping with higher density forms with the arrangement of terraces and balconies.

35. GA also notes that the use of balconies as the sole open space for a number of dwellings, including 2 that have 1.5m high walls to provide privacy to the adjoining owner to the north, is out of keeping with a medium density residential environment. GA considers that a medium density housing environment offers densities that are higher than single dwelling environments, but still carry a number of amenity expectations such as ground level courtyards – particularly in suburban settings such as Pendle Hill.

33. In the alternative Mr Glendenning refers to the revised Character Study of the area prepared by McCullum Architects, appended to the joint report of the experts, and concludes ‘the proposed development will be compatible with the modern dwelling character of the zone.’ (Exhibit 6)

33. Mr Glendenning disagrees with the evidence of Mr Apps that the development is not compatible, referencing the Character Study and stating:

24. IG disagrees and submits that there are many examples of multi-dwelling housing containing balconies and landscaping court yards in the front of the dwelling. The character study as Appendix C includes many examples of multi-unit dwellings being constructed and under construction in the locality which have balconies and landscape court yards at the frontage of the developments.

25. IG says that there are recent examples of development in R3 zones i.e 27A-27B Carinya Road, Girraween which presents as private courtyards in the front setback with 1st floor balconies over, multiple entry doors at street level. This arguable presents as 3-6 dwellings facing the street.

26. IG says that there are multiple examples of R3 sites where there is two storey massing to the street with rooms within the roof (dorma windows) design to the rear. I.e , 11, 17, 21 & 27A-27B Carinya Road, Girraween. 166-170 & 217 Targo Rd Girraween.

(Exhibit 6)

35. Mr Glendenning concludes that the character of the locality includes the following elements: ‘the character of the local area includes both one and two storey buildings and many buildings which have rooms in the roof at the rear, so to sat that our building form is out of character is untrue. If our proposal was three stories then it could be said that it was out of character with the local area”. (Exhibit 6)

36. Further Mr Glendenning argues that there are multiple examples in the R3 Medium Density zone where there is two storey massing to the street with a ‘room in the roof’ design at the rear of the site, and that the provision of balconies at the first floor level is not unusual and is seen in many forms of multi-unit housing in the locality.

37. During the onsite view it was agreed by the planning experts that the view of development seen from the footpath directly opposite the site forms the ‘local area’ as relevant to the question asked by cl 30A of SEPP ARH. This encompasses the existing development along Pendle Way, Macklin Street and Magowar Road, to the extent development is visible in these cross streets.

Submissions

38. Mr Seton for the Respondent submits that the typology of the development is not the form of development envisaged in the applicable Council controls. He adopts the conclusion of Mr Apps and argues that the architectural design of the development, when viewed from Pendle Way, is characteristic of a residential flat building. It is Mr Seton’s submission that as residential flat buildings as a type of residential development is specifically prohibited in the R3 Medium Density zone and is therefore a form of development which is inconsistent with the desired future character.

39. Further Mr Seton submits that the built form outcome is inconsistent with the following controls in DCP 2013, further emphasising that it is an intensity of development that is not compatible with the character of the local area:

1. Private open space (POS):

• The POS for dwellings 6, 7, 8, 9 and 10 do not have access to ground level POS contrary to Control C13 of Part B of clause 1.5.

• The POS for dwellings 4 thru 10 fail to meet the minimum dimension requirement of 4m (Control C14 of Part B of clause 1.5).

• The POS for dwellings 3,4,5,8,9 and 10 do not achieve the minimum principal area of 16m² and dwellings 3, 4, 5, 7, 8, 9 and 10 do not achieve the standard of POS being 20% of the floor area of the associated dwelling (Control C14 of Part B of clause 1.5).

2. Length of two storey built form:

• The length of the proposed building is non-compliant with control C5 of clause 5.3 which requires the part of the building that is not within the first 20 metres of building to be single storey. The non compliance ranges from between 9 and 11 metres.

3. Upper level balconies:

• The proposed development is non-compliant with the required 4m setback between the upper storey and the southern boundary and the required rear setback of 4 for ground and first floor.

4. The provision of POS in the front setback.

• The POS for dwellings 4,5,8,9 and 10 are located in the front setback contrary to Control C11 of Part B of clause 1.5.

40. Specific to the locality in question Mr Seton submits that all higher forms of development that have occurred in proximity to the subject site (and in the local area as agreed by the experts) have adopted the typology sought by the planning controls. He argues these developments have established a specific character of medium density development.

41. Mr Seton specifically notes the following characteristics that result from the application of the planning controls:

1. the provision of spatial relief between built forms by the provision of private open space at natural ground.

2. the stepping of the height of the development to single storey at the rear of the site.

3. the limiting of overall height of development to 9m.

4. the provision of a front setback of at least 6m, with only 50% of this allocated to private open space for residents.

42. Mr Seton concludes that the failure of the development to respond to these characteristics makes it incompatible with the character of the locality and argues that the development should be refused on these grounds.

43. In the alternative Mr Kondilios submits that the development provides an opportunity to renew older, dated housing stock. He emphasises the developments compliance with the standards detailed in cl 14 of SEPP ARH which includes standards for: site area; landscaped area; deep soil zones; solar access; parking provision and dwellings sizes.

44. Mr Kondilios argues that the Court should give weight in consideration of the application to the aim of SEPP ARH which is to facilitate delivery of new affordable rental housing by providing incentives for development.

45. Further Mr Kondilios notes that cl 15 of SEPP ARH states:  A consent authority must not consent to development to which this Division applies unless it has taken into consideration the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004, to the extent that those provisions are consistent with this Policy. He submits that in effect these guidelines act as a development control plan for development proposed under SEPP ARH. He notes that the Council has not raised any contention with regard to the applications compliance with this guideline document.

46. Mr Kondilios argues that the provisions of DCP 2013 are inconsistent with the provisions of SEPP ARH (cl. 8) and therefore the provisions of SEPP ARH prevail. He emphasises that the locational and design standards contained in SEPP ARH provides are met by the application.

47. If the Court concludes that the DCP is not inconsistent with SEPP ARH, Mr Kondilios argues that the variations sought are warranted on the following grounds:

1. the variations are justified by the provision of affordable housing; and

2. there is no impact that arises from the variations to the controls sought by the Applicant.

48. In regards to the developments compatibility with the existing and desired character Mr Kondilios argues:

1. the nine metre height limit (cl. 4.3 LEP 2013) is not reasonably considered to be for single storey development. The development standards in LEP 2013 are the principle built form controls for the local area;

2. the nine metre height limit also applies to development in the R2 Low Density zone which is located on the southern side of Magowar Road and the last three lots on Pendle Way opposite the site near Collins Street. The allotments to the rear of the site are zoned R3 Medium Density and have the same development standards as the subject site. Therefore the DCP control (control C5 of clause 5.3) does not serve a purpose to provide a transition as there is no lower density development adjoining or adjacent.

49. Further Mr Kondilos accepts the evidence of Mr Glendenning that the proposed development will be compatible with the modern dwelling character of the zone. He emphasises that the controls in LEP 2013 contemplate significant redevelopment of the local area. He argues that therefore the proposed development seeks to achieve compatibility with the new building forms in proximity to the site as it is likely the older stock will be redeveloped under the LEP controls.

Findings

50. I am content to adopt the local area as being the view of development seen from the footpath directly opposite the site and the visual catchment of the existing development along Pendle Way, Macklin Street and Magowar Road, although the specific delineation makes little difference to the question asked by cl 30A of SEPP ARH.

51. I find the Character Study annexed to the joint planning report to be of limited value. Firstly it is of broad scope encompassing many developments outside the relevant ‘local area’. Secondly it provides little analysis of the relevant examples in terms of their characteristics and how those characteristics are consistent with the design of the development proposed.

52. The sites in Giraween, to which Mr Glendenning draws reference in his evidence, are located approximately 1.6 kilometres from the subject site on the northern side of Pendle Hill Railway Station (as opposed to the subject site which is to the south of the station). These are clearly outside the ‘local area’.

53. The planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 (Project Venture) provides guidance in the assessment of compatibility. It has been used repeatedly by the Court in addressing cl 30A of SEPP ARH. The relevant considerations outlined in the planning principal are:

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

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

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

54. The planning principle also notes that compatibility is different from sameness and it is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.

55. In these proceedings the main contention between the parties is focussed on the second question in Project Venture, namely: is the proposal's appearance in harmony with the buildings around it and the character of the street?

56. In the case of the current development I accept that it is appropriate to emphasise the compatibility of the development with the future character of the area. I have reached this conclusion on the basis of the development potential available for proximate sites under the existing planning controls and the extent of recent development readily identifiable in the local area. I accept the evidence of the planners that the locality is in transition to a character of medium density development in accordance with LEP 2013 and DCP 2013.

57. After careful consideration of all of the evidence, including my own observations while standing in the local area, I am satisfied that the design of the development is not compatible with future character of the local area. Further I find that the site is not suitable for the development as proposed; s4.15 (1) (c) of the Act. My reasoning is as follows:

1. The zoning table applicable to the R3 Medium Density zone specifically excludes residential flat buildings as part of the permissible residential development. I am satisfied from an analysis of the plans and the evidence that when viewed from Pendle Way the development will be of a character similar to a residential flat building. The factors that influence this conclusion include: the length of the building that will be of a two storey scale; the provision of private open space within the front setback; the design of the development which includes stacked single storey units (as opposed to a townhouse style of design); and the inclusion of dormer windows within the roof form which results in a continuation of the two storey form for the length of the development.

2. Further to (1) I concur with the evidence of Mr Apps at paragraph [32] and adopt his assessment of the elements of the development that result in incompatibility.

3. I am not persuaded by the submission of Mr Kondilios that the provisions of DCP 2013 are inconsistent with the provision of SEPP ARH. I am satisfied they are relevant to the consideration required under cl 30A of SEPP ARH as they moderate and provide more detailed built form and site planning controls that inform the appropriate development approach to the site.

4. I am satisfied that the variations to the development standards in DCP 2013 sought by the applicant will result in a form of development that is not harmonious with the specificity of development form envisaged by the controls in DCP 2013, and the consistency with which these control have already been realised in the relevant ‘local area’.

58. Given this finding, it is therefore not necessary for me to address whether the proposed variations to the DCP 2013 are reasonable alternative solutions to compliance with the relevant controls.

Orders

59. The Court orders that:

1. The appeal is dismissed;

2. Development application No. 2018/16 for demolition of existing dwellings and ancillary structures on site; lot consolidation; and construction of a multi dwelling residential development of ten units over basement parking at 70-72 Pendle Way, Pendle Hill is refused.

3. The exhibits are returned with the exception of Exhibits 3, B and D.

…………….

D M Dickson

Commissioner of the Court

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Decision last updated: 06 February 2019