Sked v Byron Shire Council

[2021] NSWLEC 1022

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Sked v Byron Shire Council [2021] NSWLEC 1022

Hearing dates:

26 & 27 November, 9 December 2020

Date of orders:

11 February 2021

Decision date:

15 January 2021

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

The Court Orders:

(1) The appeal is upheld.

(2) Development Application No. 10.2018.552.1 for multi-dwelling housing (consisting of 8 new townhouses), sub-division (Torrens Strata Title), boundary adjustment and tree removal over 3 stages at 9 Bian Court, Ocean Shores, is approved, subject to the conditions of consent set out in Annexure A.

(3) The exhibits are returned, except for Exhibits A, B and 1.

Catchwords:

DEVELOPMENT APPLICATION – multi dwelling housing – character

Legislation Cited:

Byron Local Environmental Plan 2014

Environmental Planning and Assessment Regulation 2000

State Environmental Planning Policy (Coastal Management) 2018

State Environmental Planning Policy No 55 – Remediation of Land

Strata Scheme Development Act 2015

Texts Cited:

Byron Shire Development Control Plan 2014

Category:

Principal judgment

Parties:

Callum Sked (Applicant)
Byron Shire Council (Respondent)

Representation:

Counsel:
A Gough (Applicant)
P Vergotis (Respondent)

Solicitors:
Storey & Gough (Applicant)
McCabe Curwood Pty Ltd (Respondent)

File Number(s):

2019/22451

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Mr Sked lodged Development Application DA No: 10.2018.552 with Byron Shire Council on 5 November 2018 seeking consent for a multi dwelling housing development including a Torrens title and strata title subdivision of the land to affect a boundary adjustment and the staged development of the multi dwelling housing development. The application also sought consent for removal of trees. The Council had not determined the application within the prescribed period and Mr Sked is appealing its deemed refusal.

2. The applicant has been granted leave to amend that application and the plans before the Court now involve Torrens Title subdivision in the form of a boundary adjustment between the three existing allotments and the construction of eight new dwellings in addition to the three existing dwellings that stand on the land. A staged strata subdivision of the nine multi dwelling houses is also proposed. The mechanics of approving a staged strata subdivision was discussed during the hearing and, at that time, left for resolution between the parties to finalise as part of the agreed conditions of consent.

3. The applicant pursued the matter and, in accordance with the provisions of s 75 of the Strata Schemes Development Act 2015, noted that consent could not be granted unless a strata development contract formed part of the application. Accordingly, a Notice of Motion was filed seeking to reopen the case to allow tender of such a contract. That motion was heard on 9 December 2020 and was unopposed. The applicant was granted the necessary leave and the contract now forms Exhibit K in the proceedings.

4. A number of the original contentions detailed in the Council’s Amended Statement of Facts and Contentions filed on 12 November 2020 were resolved as a result of joint conferencing and the primary issue in the case remains whether or not the proposed development is suitable for the site and accords to the Council’s planning controls.

The proposal

5. The site the subject of the application comprises three allotments. Two of those allotments front Warrambool Road and the third is located on a lot with frontage to Bian Court, Ocean Shores. The application proposes to resubdivide the three lots in the form of a boundary adjustment which would reduce the depth and area of the lots fronting Warrambool Road and increase the area of the Bian Court lot. The existing dwelling houses would be retained on the new allotments. Other than the reduction in the size of the Warrambool Road properties, no further development would occur on those new lots, to be known as Lots 1 and 2. Proposed lot 2 (No. 11) would have an area of 622.0m² and proposed lot 1 (No.13) an area of 740.12m².

6. Lot 3 in that Torrens Title subdivision would take the form of a development lot for a future three stage multi-dwelling housing development. That lot has an area of 4014.9m². The first stage of that development involves the construction of two new dwellings, one fronting Bian Court to the west of the existing dwelling and the second to the west of that building. No alterations to the existing dwelling are proposed. A driveway would be constructed to the north of these dwellings accessed off Bian Court. That driveway would also service the remainder of the development. Three visitor parking spaces would be constructed along that driveway as parallel parking spaces adjacent to proposed lots 2 (existing dwelling) and 3.

7. In each stage the proposed strata plan includes a dwelling and its supporting private open space areas as part of a lot. The only common property is the driveway area. A drainage easement that currently traverses the site would be relocated and run through proposed lots 3 and 7.

8. Stage 2 involves the construction of three more dwellings and the supporting open space areas in lots 4, 5 and 6 with lots 7, 8 and 9 forming the final stage 3.

9. Each dwelling house has been individually designed in response to the slope of the site which varies from a lesser gradient at the west or Bian Court end of the land to a steeper grade at the eastern end. Earthworks and excavation of the site are also required to facilitate the construction of the dwelling houses. All proposed dwellings are 2 storey and 3 bedrooms with attached single garages. Additional parking is provided at the front of the buildings. Private open space areas are provided adjacent to the living areas of each dwelling, some of those areas elevated and accessed from upper level decks.

10. A drainage easement traverses the mid, low section of the site and the pipeline within this easement will be relocated and amplified to address localised flooding. Works external to the site are also required.

The site and locality

11. The site comprises three residential properties covering a total area of 5,386m² located between Bian Court and Warrambool Road to the east, approximately 50 metres north of the intersection with Rajah Road.

12. The properties are legally described as Lot 1497 DP 245028, Lot 1490 DP 245028 and Lot 1489 DP 245028, otherwise known as 9 Bian Court, 11 Warrambool Road and 13 Warrambool Road, Ocean Shores.

13. No 9 Bian Court is a fan shaped lot with an area of 1540 square metres. It has a frontage to Bian Court of 18.5m and a maximum depth of 59.81m. A 2 storey masonry and timber dwelling house and metal garden shed are located in the centre of the lot. The site gently slopes away from the Bian Court frontage, falling by approximately 4 metres from the road boundary to a gully at the rear of the site.

14. Nos 11 and 13 Warrambool Road have similar characteristics, being long rectangular lots with an approximate width of 24m and depth of 85m. Each block contains a brick and tile dwelling house located near the road boundary with vehicular access being obtained off Warrambool Road. Both properties slope steeply away from the Warrambool Road frontage, falling from a maximum height of RL 38 AHD near the road boundary to RL 22 AHD at the rear of the site. The steeper land at the rear of No. 11 has a dense coverage of native and non-native vegetation.

15. The site is located in an established residential area towards the southern end of the town of Ocean Shores. It is approximately 200 metres east of the Pacific Highway and 750 metres southwest of a local shopping centre known as Ocean Village.

16. The site and surrounding land are zoned for low density residential development and the area is characterised by large residential lots containing single dwelling houses with deep setbacks and established gardens. The area has steep, undulating terrain which is interspersed with pockets of native vegetation on the slopes and ridges.

17. Approximately 100m to the south, the land between Bian Court and the Pacific Highway is zoned for medium density residential development and contains a mixture of dual occupancies, multi dwelling housing and residential flat buildings.

Planning controls

18. The site is zoned R2 Low Density Residential pursuant to the provisions of Byron Local Environmental Plan 2014 (LEP). Clause 2.3(2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of 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.

19. Multi dwelling housing is permissible with consent in the R2 zone.

20. Part 4 of the LEP contains Principal development standards. Those relevant to the case are cl 4.1 Minimum subdivision size with a minimum lot size of 600m² applying to the site and cl 4.1E which requires a minimum lot size for multi dwelling housing in the R2 zone of 1,000 square metres. The first subdivision to form the Torrens Title lots fronting Warrambool Road complies with the minimum lot size under cl 4.1 and the development lot meets the minimum for multi dwelling housing under cl 4.1E.

21. Clauses 4.3 Height of Buildings and 4.4 Floor space ratio (FSR) also apply with a maximum building height of 9m and maximum FSR of 0.5:1 permitted. The development standard is met for the proposed subdivision and multi dwelling housing development. The overall FSR of the latter is 0.25:1.

22. Clause 6.2 applies to earthworks and requires consent. Consideration of the following matters is required in determination of the application:

(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

(b) the effect of the development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

23. The Council’s contentions do not involve any further provisions of the LEP.

24. Byron Shire Development Control Plan 2014 (DCP) applies to the site with Chapters B3 Services, B4 Traffic Planning, Vehicle Parking, Circulation and Access; B9 Landscaping; B13 Access and Mobility; B14 Excavation and Fill; D1 Residential Accommodation in Urban, Village and Special Purpose Zones; D6 Subdivision and E9 Ocean Shores, New Brighton and South Golden Beach particularly relevant to the matters for determination.

25. Chapter 9 includes an introduction that assists in understanding the future direction of development in the suburbs. It reads as follows:

“This section provides the residential character context and principles for development within the above residential areas. The narrative statements draw on the unique qualities of these areas and provide an important direction for the development controls and built form guidelines. The statements divide the residential areas into pockets based on context including topography, setting, streetscape, land uses and built form. Accompanying the narrative is a figure showing a tiered approach to possible character change to signal how new residential development should respond to the streetscape and/or neighbourhood character within different parts of this locality.”

26. The site is located in Pocket B for the purposes of Chapter 9. The following is the context for the area:

“Pocket B surrounding these localities is Ocean Shores, master planned in the 1970s to provide a residential suburb with its own shopping centre, entertainment facilities, golf course and primary school.

Original homes in Ocean Shores are typically brick and tile homes well set back from the street with relatively large lots and lawn areas. The built form is largely contained at two storeys with some pockets of three storey housing. Newer homes and renovations responding to solar passive design and demands for greater housing choice display greater variation in size, height, materials, architectural styles and orientation. Outdoor activity spaces are oriented towards the backyard, with the front yard serving primarily an aesthetic landscape function and containing very few front fences. Most townhouse and unit development is clustered around Rajah Road, a main thoroughfare, or near the Ocean Shores Shopping Centre, while dual occupancies and secondary dwellings are more widely dispersed throughout.

The area’s coastal and hinterland views, hilly topography and abundance of subtropical vegetation, along with a wide array of wildlife, give it a distinctly natural feel. These attributes combine with the substantial presence of well-tended yards, gardens and leafy streetscapes to form the areas overall residential character.

Future housing diversity in Ocean Shores will occur through infill residential development - mainly in the form of secondary dwellings, dual occupancies and townhouses (to a lesser extent) on suitable sites. With a vitally important and challenging natural environment it is essential that future infill development respects the limitations of steep terrain, flooding and sensitive coastal habitat, as well as surrounding neighbourhood character. The amount of future growth that can be accommodated within Ocean Shores will largely depend on its capacity for infill and to be supported by adequate infrastructure (e.g. on-street parking). Higher average densities are generally suitable to areas within convenient walking distance of public transport, the Ocean Shores Shopping Centre and/or Billinudgel Village Centre. By providing greater housing choice in these localities, a greater mix of household types and age groups can be accommodated which in turn can provide a more ‘well-rounded’ community.”

27. The figure identifies the site within an environmentally sensitive area due to coastal and or flooding considerations with density and built form to address these considerations and reflect existing low scale, built form and streetscape. The Objectives of the control are to ensure that residential development will compliment, support and strengthen the residential character and living amenity of the localities and ensure that infill developments respects constraints associated with steep terrain, flooding and sensitive coastal habitat as well as surrounding neighbourhood character. The performance criteria require new development to be designed to respect the residential neighbourhood character of the area. There are no prescriptive measures in this chapter.

28. State Environmental Planning Policy (Coastal Management) 2018 (Coastal SEPP) applies with the site mapped as a Coastal Environmental Area and part of the site is within the Coastal Use Area. Accordingly, the provisions of cll 13,14 and 18 are relevant and in the following form:

13 Development on land within the coastal environment area

(1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following—

(a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment,

(b) coastal environmental values and natural coastal processes,

(c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,

(d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,

(e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(f) Aboriginal cultural heritage, practices and places,

(g) the use of the surf zone.

(2) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that—

(a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subclause (1), or

(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

14 Development on land within the coastal use area

(1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority—

(a) has considered whether the proposed development is likely to cause an adverse impact on the following—

(i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(ii) overshadowing, wind funnelling and the loss of views from public places to foreshores,

(iii) the visual amenity and scenic qualities of the coast, including coastal headlands,

(iv) Aboriginal cultural heritage, practices and places,

(v) cultural and built environment heritage, and

(b) is satisfied that—

(i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or

(ii) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(iii) if that impact cannot be minimised—the development will be managed to mitigate that impact, and

(c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.

18 Hierarchy of development controls if overlapping

If a single parcel of land is identified by this Policy as being within more than one coastal management area and the development controls of those coastal management areas are inconsistent, the development controls of the highest of the following coastal management areas (set out highest to lowest) prevail to the extent of the inconsistency—

(a) the coastal wetlands and littoral rainforests area,

(b) the coastal vulnerability area,

(c) the coastal environment area,

(d) the coastal use area.

The contentions

29. The contentions in the case are the proposed development is inconsistent with the zone objectives; is incompatible with the existing and desired future character of the surrounding environment and fails to satisfy the objectives and performance criteria of DCP clause D1.2.4 - Character and Visual Impact; the extent and scale of the bulk earthworks is excessive and does not satisfy the objectives, performance criteria and prescriptive measures of DCP clause B14.2 - Excavation and Fill; the site layout and subdivision design does not respond to the natural features of the site and the locality and fails to satisfy the objectives, performance criteria of DCP clause D6.4.1 - Lot size and shape and the development is likely to result in adverse impacts on the coastal and built environment and is unsatisfactory in relation to the relevant matters for consideration under the Coastal SEPP.

30. Contentions relating to parking, access and manoeuvring, waste management, stormwater, staging and accessibility were resolved during the hearing through the provision of additional information. The Council contends the plans before the Court are inadequate and do not provide sufficient detail to allow consent to be granted.

The evidence

31. A site view was conducted prior to the hearing. Evidence was also heard from objectors to the proposal at the commencement of the hearing. The issues raised by objectors is summarised as the failure to comply with the Council’s planning controls, in particular with regard to character, density, bulk and scale; drainage and flooding concerns, impact on vegetation and amenity.

32. Expert evidence was provided by:

Applicant         Council

Arborists         Mr P Gray         Dr M Fitzgerald

Town Planning      Mr A Smith         Mr J Mead

Engineering         Mr J Williams         Mr R Solatan

33. The engineering experts were not required for cross examination as they had agreed, subject to imposition of agreed conditions of consent including conditions that require amplification of drainage lines downstream of the site, that the information before the Court now addressed the contentions in the case.

34. The arborists agree that only 11 of the 62 trees on the site are proposed to be removed and of these 11 trees, 3 are listed as weed or undesirable species. Only 1 native tree and 2 weed species are proposed to be removed from the Bian Court frontage and 3 from a large clump of 46 trees. Only 1 native tree is clearly visible from the street in Bian Court and given the amount of vegetation that is being retained and comparing it to the vegetation proposed to be removed, they say only a small impact will occur.

35. They consider that the 3 trees to be removed would not be visible from the street and the loss of the trees as proposed will have a very small impact on the visual amenity of the immediate vicinity and cannot be characterised as a substantial loss of native vegetation. Two of the trees proposed to be removed are in poor condition (trees 29 and 46) and one is in fair condition. Consequently, only 5 trees in good condition are proposed to be removed.

36. They agree the proposed development has been carefully designed to take into consideration the native vegetation and has been designed to retain almost all of the significant trees. The Arboricultural Assessment Report clearly identified suitable offset plantings and the suitable location for the plantings to address the trees that are to be removed.

37. They recommend the loss of the 8 existing trees be offset through the compensatory planting of 55 trees. The applicant accepts this condition.

38. In relation to the construction of retaining walls in the vicinity of trees 26, 27, 28 and 52 that would be located in or near the private open space of proposed dwelling 5, the experts assessed this work against the proposed cut and fill plan and have made recommendations on the material to be used within that open space area. That material is blue metal cracker dust or crushed basil rock which they say ensures that air and water can penetrate the material and reach the underlying soil. The particles of the fill material are larger than the soil particles which ensures a soil interface that does not allow the movement of water in air is not created. They are confident that conditions of consent can be imposed to ensure the work is carried out in accordance with the Arboricultural Assessment report which would ensure the viability of those trees.

39. They also made an assessment of those trees which were the in the vicinity of proposed retaining walls and also recommend the construction of pier footings and above ground concrete beams to minimise any potential impact on those trees. Subject to the implementation of conditions in accordance with the recommendations of their supplementally joint report, Exhibit 7, they conclude the construction of the proposed development as planned will not cause any tree to be retained to become unviable.

40. If consent were to be granted, the council's draft conditions, Exhibit 5, would need to be amended to reflect these requirements.

41. The planning experts agree that the relevant development standards under the LEP are met. They do not agree whether the development as proposed would meet the R2 Zone objective of providing for the housing needs of the community within a low density residential environment. Mr Smith says the proposal is consistent because the development results in a density of 1 dwelling per 598 square metres which is well within the bounds of what is commonly accepted as low density. That density is also significantly compatible with the density envisaged in the areas under the LEP which provide for a minimum block size of 600 square metres. He says there is a distinct movement in the Ocean Shores area that is seeing increased infill development of the larger lots and that trend is resulting in a significant number of dual occupancy and medium density housing developments being constructed in the area. He notes there is a minimum lot size of 800 square metres for development of dual occupancies which would result in a dwelling density of 1 dwelling per 400 square metres which he says is evidence of the evolving character of the area and the low density character of the development proposed.

42. Mr Mead says the proposed site planning is not characteristic of a low density residential environment as it relies on a driveway of approximately 100 metres in length rising from the street frontage by 3.5 metres terminating at retained land. He says the proposal fails to positively relate to the site topography which results in extensive earthworks and retaining walls, dwellings which do not relate well to the ground level including high subfloors to some and excavation to others, poor entrance arrangement to dwellings and poor connection between living spaces and associated private open spaces within dwellings. Whilst the proposal meets FSR and landscape requirements, he says it is not characteristic of a low density residential environment due to its design.

43. In regard to character and visual impact, the experts agree that this character is determined with reference to the Pocket B character area in the DCP.

44. Mr Smith says the proposal is compliant with the provisions and intent because the development comprises dwellings that are well sited and respond to the site’s characteristics and constraints. This is demonstrated by the compliance of the proposal with the cut and fill requirements of the DCP, the relevant retaining controls of same and the fact that only eight native trees are to be removed to accommodate the development. As there are no natural waterways or natural drainage lines on the site and the site has been extensively disrupted in the past, the site drainage is formed by way of an artificial easement established at the time of the development of the land. As the proposal results in a development density of 1 dwelling per 598 square metres this is generally consistent with the minimum lot size mapping for the area and the R2 zone generally.

45. The development format is not one incorporating a reliance on an access handle to access separate lots but rather the driveway is representative of a road commonly applied in a strata titled development such as this. Other detached housing developments in the area incorporating a strata title format also use a common access driveway. The development provides significant side and rear setbacks both internally and externally that are consistent with a low density form and the streetscape character in the local area. The internal side setbacks provided are generally well above what you would find in a medium density development and this further demonstrates that the design has responded to the site’s characteristics and the detached character of surrounding residences.

46. Whilst the design of each dwelling is independent of the other, this actually demonstrates that the designer has taken into consideration the constraints of the site and the character of surrounding development. The degree of sensitive design responsiveness is also demonstrated by the retention of almost all of the large trees on site so as to retain a significant canopy that speaks to other canopies in the immediate vicinity and preserves a key feature of the local area.

47. There is a significant degree of separation and design responsiveness to dwellings on adjoining land with the dwellings set into the slope and responsive to the landform. Mr Smith does not support the view of Mr Mead that the development should take a more traditional approach to townhouse development and says this would be damaging to the character of the local area given the lack of compatible attached housing.

48. Mr Mead says the pattern of subdivision in the area is generally curvilinear with small cul de sacs such as Bian Court and there are few if any relying on access handles from the primary street frontage. For that reason, he says the subdivision pattern and layout is inconsistent with the pattern of development in the locality and results in variation to that pattern requiring removal of vegetation and significant modification to the landform. Rather than locating the development on the relatively flat parts of the site that is towards the front, the pattern of development extends to a significant depth to the part of the site that is relatively steeply sloping and requires modification to the landform, significant areas of retaining and house designs which require significant areas of cut and fill, contained subfloor areas or occupy excavated areas. The adopted levels of the dwellings will be significantly higher than the street level of Bian Court which, when combined with the design approach of a gun barrel driveway with length over 100 metres, climbing 3.5 metres and terminating at retaining structures, will be inconsistent with the natural and built environment context of the locality, particularly the pattern of vegetated yards to the north and south. He says the more appropriate and typical approach to strata titled medium density housing development where the layout is not governed by lot size and dimension requirements would be one that adopts the constraints of this site, in this case mainly the terrain and pattern of surrounding development. He concludes the layout and form of development is inconsistent with the existing and desired future character for the locality and does not respect or complement the natural environment.

49. In regard to earthworks, Mr Mead is critical of the lack of detail in relation to levels and the extent of excavation that is required for the development to occur. He said the proposal poorly relates to the site topography and does not minimise adverse visual impacts, bulk or scale of the overall development. A large proportion of the site requires earthworks to accommodate the development and there is extensive reliance on retaining walls both within the building footprint, and along the driveway area. He says they design response to keeping the cut and fill numeric to a minimum on parts of the site has resulted in other poor design outcomes such as multi level private open spaces, ground level courtyards being reached by stairs only, undercroft areas such as dwellings 5 and 6 which require screening and poor front entrance arrangements such as to dwellings 6 and 9 where retaining structures dominate the frontage, increased head heights to garages also results in a poor front elevation to some dwellings. The proposal fails to respond to site topography due to the layout of the proposed strata lots which are essentially designed in the manner of small Torrens Title lots with detached housing. A more appropriate design response would be to avoid the steeper areas of the site and develop the flatter parts and co-locate dwellings in those areas perhaps attached in some cases to provide more efficient footprints across the overall site.

50. Mr Smith disagrees and says the proposal demonstrates overwhelming compliance with the DCP provisions for cut and fill and is appropriate to the constraints of the site, the intent of the planning controls and the needs for the community.

51. The extent of cut and fill has been minimised and is largely the result of complying gradients for access and to accommodate drainage changes to the existing unnatural and constructed drainage easements on the site. This extent of filling is no way disproportionate and is somewhat typical when compared to other developments. Dwellings are set into the slope and do not adversely interact with adjoining dwelling houses and the compliant retaining structures are proportionate to the site’s slope and the need to provide efficient and easily accessible private open space to each dwelling in a detached format with generous side setbacks.

52. Whilst not proposing Torrens Title subdivision of the development lot, the Council contends that the site layout and subdivision design does not respond to the natural features of the site and locality and therefore fails to satisfy the objectives and performance criteria of the DCP in relation to lot size and shapes.

53. Mr Smith says the proposal demonstrates overwhelming compliance with the provisions of the DCP and satisfactorily addresses the natural features and constraints of the site. It does not rely upon any rights of carriage way as the entirety of the development fronting Bian Court uses a strata title format that comprises common property access provision and/or temporary access easements as the development of stages proceed.

54. Mr Mead acknowledges the DCP provisions pertain to Torrens Titles lots but criticises the site layout to the effect that it is being designed as small lot housing which has driven a design response that does not positively respond to site constraints or the subdivision and built form character of the locality.

Conclusion and findings

55. Having regard to the evidence, I find the development is an appropriate response to the constraints of the site and satisfies the Desired Future Character (DFC) as described for Pocket B, the relevant LEP and Coastal SEPP provisions and the objectives of the DCP controls.

56. Multi dwelling housing is a form of development that is anticipated within the R2 zone under the LEP provisions and the density of the proposed development is consistent with that density if the land were to be subdivided into individual allotments. The subdivision as proposed complies with the relevant minimum lot size development standards and the area of the proposed development lots, at 4014.9m², is well in excess of the 1,000m² required for multi dwelling housing. The development has building heights of less than the development standard of 9m and a FSR well below the development standard of 0.5:1. The FSR is half the maximum allowed, demonstrating the low density scale of the proposal.

57. The scale of the development is therefore sympathetic and compatible with the desired future character envisaged in the LEP and detailed in the DCP for the Pocket B Area. It is also consistent with the R2 zone objectives in that it provides for the housing needs of the community within a low density residential environment.

58. The DFC for Pocket B envisages that newer homes will respond to solar passive designed and demands for greater housing choice displaying greater variation in size, height, materials and architectural styles and orientation. Outdoor activity spaces are oriented towards the backyard, with the front yard serving primarily an aesthetic landscape function and containing very few front fences. Most townhouse and unit development is clustered around Rajah Road, a main thoroughfare. The design of the development responds to this character and the site is located in close proximity to Rajah Road. The individual design of each dwelling house ensures that site topography is considered with larger setbacks to side boundaries reducing privacy impacts to adjoining properties.

59. The design of the development has had regard to the hilly topography and abundance of subtropical vegetation, the majority of which is to be retained on site and enhanced through significant plantings. This would ensure their retention of the leafy streetscapes. Infill residential development is anticipated on suitable sites and having regard to the area of land available, the site is considered suitable for the proposed development. I accept the evidence of the experts for the applicant that the design has adequately considered the steep terrain of the site and that flooding issues will actually be addressed through the drainage works proposed and accepted by the applicant including works offsite.

60. I prefer the evidence of Mr Smith that the design of the development better reflects the character of the area rather than Mr Mead’s submission that a more appropriate form of development would be to concentrate the multi dwelling housing to the front portion of the site in an attached form.

61. The proposed multi dwelling housing development involves earthworks associated with the construction of the driveway and proposed dwellings. The joint report of the engineers reach agreement on matters pertaining to geotechnical risks and the proposed excavation and filling of the land. Therefore, subject to the imposition of appropriate consent conditions reflecting that finding, I am satisfied that the matters stipulated in cl 6.2(3) of the LEP are satisfactorily addressed. Whilst I do accept the Council’s submission that the architectural plans lack details in regard to site levels, when read in conjunction with the engineering and earthworks plans, I am satisfied that adequate regard has been given to the DCP provisions and the extent of cut and fill proposed is acceptable across the site.

62. With regard to the provisions of cl 13(1) of the Coastal SEPP, and considering the evidence, I am satisfied that the proposed development is not likely to cause any adverse impact on those matters listed in the subclause. I am also satisfied that the development is designed, sited and will be managed, subject to appropriate consent conditions, to avoid any adverse impact on those matters (cl 13(2)).

63. Having regard to the considerations of cl 14 of the LEP, and consideration of the evidence, I am satisfied with that the proposed development is unlikely to cause an adverse impact on any of the matters listed in that clause and has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.

64. There is no evidence of site contamination, and therefore the provisions of State Environmental Planning Policy No. 55 – Remediation of Land do not require any further investigation or works to be conducted.

65. A BASIX certificate accompanied the application as required by cl 2A of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

66. The Council's draft conditions of consent had not been finalised at the commencement of the hearing and those tendered do not adequately address all of the matters required. In addition to those described in this judgement, it is necessary to ensure the conditions have regard to the strata development contract, Exhibit F, and include specific conditions and the imposition of restrictions to user applying to those areas in the vicinity of the significant trees to be retained on the site. For this reason, the parties should update those conditions, exhibit 5, to reflect the findings of this judgement.

67. For these reasons, there is no reason that consent should not be granted and on receipt of the final agreed consent conditions, Orders will be made in Chambers, upholding the appeal.

Orders

68. The parties are directed to file agreed conditions of consent that reflect the findings of this Judgment within 2 weeks of these Orders being made. On receipt of those conditions, final Orders will be made in Chambers.

Addendum made on 11 February 2021

69. In accordance with the terms of directions in [68] of my judgment of 15 January 2021, the parties have provided me with the agreed conditions of consent. I am satisfied firstly that development consent to the application should be granted and that the conditions of consent marked Annexure A accord with my findings.

69. Accordingly, I make the following orders as follows:

1. The appeal is upheld.

2. Development Application No. 10.2018.552.1 for multi-dwelling housing (consisting of 8 new townhouses), sub-division (Torrens Strata Title), boundary adjustment and tree removal over 3 stages at 9 Bian Court, Ocean Shores, is approved, subject to the conditions of consent set out in Annexure A.

3. The exhibits are returned, except for Exhibits A, B and 1.

………………………………

Sue Morris

Acting Commissioner of the Court

Annexure A (439470, pdf)

Architectural Plans (9039571, pdf)

Landscape Plans (5576212, pdf)

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Amendments

11 February 2021 - See Addendum for final orders at [69]-[70].

16 April 2021 - Insertion of Architectural and Landscape Plans.

Decision last updated: 16 April 2021