Snashall v Ballina Shire Council

Case •

[2023] NSWLEC 1019

•

17 January 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Snashall v Ballina Shire Council [2023] NSWLEC 1019
Hearing dates: 1- 2 December 2022
Decision date: 17 January 2023
Jurisdiction:Class 1
Before: Bradbury AC
Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA-2021/605 for demolition of the existing dual occupancy development and associated works, cancellation of the existing strata plan and reversion to a single Torrens Title lot, and the erection of a new dwelling house on the land currently described as Lots 1 and 2 SP 34685 known as 38 Dress Circle Drive, Lennox Head subject to the conditions in Annexure ‘A’.

(3) Exhibits 1, 3, 4, 5, 6, B, C, E, G and J, are to be retained. Exhibits A, D, F, K, and 2 are returned.

Catchwords:

DEVELOPMENT APPLICATION – demolition of existing dual occupancy and erection of new dwelling house – bulk and scale – non-compliance with building envelope control in development control plan

Legislation Cited:

Ballina Local Environmental Plan 2012

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.11
Land and Environment Court Act 1979, ss 34, 34AA

Texts Cited:

Ballina Shire Development Control Plan 2012

Category:Principal judgment
Parties: David Snashall (Applicant)
Ballina Shire Council (Respondent)
Representation:

Counsel:
C Ireland (Applicant)
N Bergman (Solicitor) (Respondent)

Solicitors:
McCartney Young Lawyers (Applicant)
Allens (Respondent)
File Number(s): 2022/233503
Publication restriction: Nil

Judgment

  1. COMMISSIONER: This is an appeal against the deemed refusal of a development application (DA) for the cancellation of an existing strata plan and reversion to a conventional Torrens Title lot, the demolition of an existing two-storey duplex, the removal and reinstatement of landscaping vegetation and the erection of a new dwelling house (Proposed Development).

  2. The land to which the DA relates comprises Lots 1 and 2 SP 34685 and is known as 38 Dress Circle Drive Lennox Head (Site).

  3. The DA was lodged with the Council on 31 August 2021. It was notified to 91 other properties in the local area between 27 October 2021 and 11 November 2021. A total of six submissions were received. Two of the objectors gave oral evidence on site at the commencement of the appeal.

  4. When the DA had not been determined by the Council within the period after which it was taken to have been refused, on 8 August 2022 the Applicant appealed to the Court pursuant to ss 8.7 and 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is an appeal in Class 1 of the Court’s jurisdiction.

  5. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.

  6. The Court arranged a conciliation conference between the parties under ss 34 and 34AA(2) of the Land and Environment Court Act 1979 (LEC Act), which was held at the Site on 1 December 2022. I presided over the conciliation conference. When the parties were unable to reach agreement, I terminated the conciliation conference on that day pursuant to s 34(4) of the LEC Act and proceeded to hear the appeal.

  7. The DA has been amended several times to respond to the Council’s contentions, most recently with the leave of the Court on 12 October 2022.

Issues

  1. The Council’s only contention is that the Proposed Development is of an excessive bulk and scale and consequently amounts to an overdevelopment of the Site. It contends that this manifests itself in two ways. The first is that the Proposed Development proposes what the Council describes as a significant exceedance of the building envelope control (BEC) in the Ballina Shire Development Control Plan 2012 (DCP). The second is that the Proposed Development breaches the minimum setback control for secondary frontages in the DCP.

The site and its context

  1. The Site is currently occupied by two-storey strata titled dual occupancy. It is a triangular corner lot with frontages to both Dress Circle Drive and Allens Parade and has an area of 550.1 m2. The Site slopes from Dress Circle Drive to Allens Parade and, like many of the other properties around it, the Site enjoys panoramic coastal and ocean views. To take full advantage of the views, the Proposed Development is oriented towards Allens Parade, which is its primary road frontage.

  2. The locality is characterised by a mix of single, two and three-storey dwellings with a relatively large number of dual occupancies. The area is undergoing change with many older homes having been either the subject of substantial alterations and additions or demolished and rebuilt.

  3. The land slopes up to the west of the Site so that the properties on the opposite side of Dress Circle Drive are significantly higher than the Site and will look over the Proposed Development towards the ocean.

  4. The Site adjoins only one other dwelling, known both as 36 Dress Circle Drive and 45 Allens Parade.

Planning framework

  1. The site is zoned R3 Medium Density Residential under the Ballina Local Environmental Plan 2012 (LEP). Dwelling houses are permitted with development consent on land within that zone.

  2. Clause 2.3 of the LEP provides 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 relevant objectives of the R3 zone 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.

• To provide development that is compatible with the character and amenity of the surrounding neighbourhood.

• To encourage housing and infrastructure that supports the ageing population.

• To provide for development that meets the social and cultural needs of the community.

• To encourage development that achieves the efficient use of resources such as energy and water.

  1. The Council does not contend that the Proposed Development is inconsistent with any of the zone objectives, and I have had regard to those objectives in determining the DA.

  2. The Council concedes that the Proposed Development complies with the applicable development standards in the LEP relating to building height in cl 4.3 and floor space ratio (FSR) in cl 4.4.

  3. The relevant provisions of the DCP are contained in section 3.1.3 of Chapter 4 – Residential and Tourist Development. They are Element C – Building Envelopes and Element E – Building Lines.

  4. Element C – Building Envelopes is as follows:

“C. Element - Building Envelopes

Objectives

a. Ensure buildings are set back progressively from the side and rear boundaries as building height increases so that buildings do not unduly affect existing or future development on adjoining properties by way of overshadowing, impinging on privacy, or unreasonably obstructing views;

b. Ensure that the occupants of residential accommodation have the opportunity to enjoy the optimum use of winter sunlight;

c. Enhance opportunities for solar access to both the development site and adjoining properties;

d. Achieve varied and interesting streetscapes, good orientation of residential developments with regard to sun, shade, wind and neighbouring development, and effective use of allotments to create usable private open space and courtyards;

e. Ensure that buildings are compatible with the bulk, scale and character of the locality;

f. Minimise adverse impacts on the existing or future amenity of adjoining properties and the scenic or landscape quality of the locality; and

g. To provide flexibility for steeply sloping sites to best address streetscape, solar orientation and location for outdoor amenity areas.

Controls

i. Residential accommodation and tourist and visitor accommodation in Zone R2 Low Density Residential and Zone R3 Medium Density Residential must be contained within a building envelope measured as follows:

▪ below a plane measured over the land at 45o from a point 1.8 metres above the side and rear boundaries,

▪ where the subject site has a frontage to a secondary street, below a plane measured over the land at 45o from a point 1.8m above a parallel line measured 2.0m inside the secondary street boundary,

▪ where the subject site has a frontage to a public reserve, below a plane measured over the land at 45o from a point 1.8m above the boundary to the public reserve, and

▪ below a plane measured 8.5 metres above ground level.

ii. The external walls of a residential accommodation or tourist and visitor accommodation must be setback a minimum of 900mm from the side and rear boundaries of the site (excluding internal strata title boundaries), subject to consideration of impact on privacy, private open space and solar access to adjoining properties;

iii. The external walls of garages, sheds and similar detached outbuildings with a floor area greater than 50m2 must be setback a minimum of 2 metres from the side and rear boundaries of the site (excluding internal strata title boundaries);

iv. …

Variations

i. The following variations to the setbacks nominated by the building envelope are permitted:

▪ Eaves and gutters – up to a maximum of 700mm (note: minimum setback requirements provided by the Building Code of Australia must be complied with i.e. 450mm to the outside of fascia),

▪ Climate control elements - which are of a minor scale and an open character, and that do not affect compliance with the above design objectives, and

▪ Encroachments are permitted along the northern and eastern elevations of the wall length subject to no adverse solar impacts on neighbouring properties.”

  1. The DCP contains a diagram that better explains the BEC:

Figure 4.1 – Typical Building Envelope Controls

  1. The Proposed Development breaches the BEC in a number of places. The areas of non-compliance the Council contends are unacceptable are:

  1. The area shown on the plans as ‘DA First Floor’ including the attic, WC, first floor stairs and roof over;

  2. The ground floor garden planter along the western boundary directly adjoining the external stairs;

  3. The patio/roof structure over the lower ground floor courtyard entry;

  4. The ground floor entry and stairs providing pedestrian access from Dress Circle Drive; and

  5. The kitchen on the ground floor.

  1. Element E – Building Lines is as follows:

“E. Element - Building Lines

Objectives

a. Protect the amenity of the locality in which the dwelling is situated;

b. Ensure new development makes a positive contribution to the local streetscape;

c. Setback buildings and garages/carports from the street to provide sufficient space for landscaping, visual and acoustic privacy and vehicle parking, whilst protecting the established character of the neighbourhood; and

d. Protect the amenity of and views to canals, rivers and foreshore areas.

Controls

i. Residential accommodation and tourist and visitor accommodation buildings and all ancillary development on a lot must be setback behind the building line specified on the Building Line Map (except as specified in items (iii) or (iv) below).

ii. Where a building line is not specified in (i) and the land is within Zone R2 Low Density Residential or Zone R3 Medium Density Residential, the building line specified in Table 4.1 applies.

iii. Where an encroachment forward of the building line specified in (i) or (ii) is sought, variation to the standard may be granted where an alternate building line can be established on the basis of the average distance of the building lines of the nearest 2 buildings (either residential accommodation or tourist and visitor accommodation) having a boundary with the same primary road and located within 40m of the lot on which the residential accommodation or tourist and visitor accommodation building is to be erected.

iv. Variations to the building line specified in (i) or (ii) may be granted in relation to secondary road frontages on corner lots in accordance with Table 4.2 below:”

  1. Control (i) of Element E requires a secondary road frontage setback for the Proposed Development of 4.6 m, being the setback shown on the Building Line Map referred to in that control. Control (iv) allows this setback to be reduced by 1 m for corner blocks. The minimum setback for the Proposed Development from Dress Circle Drive is therefore 3.6 m. The Council contends that the setback control is breached by two of the building elements listed at par [20] above. The first is the ‘DA First Floor’ at [20(1)] and the second is the ground floor entry and pedestrian access from Dress Circle Drive at par [20(4)].

Public submissions

  1. As noted above at par [3], the Council received six written submissions in relation to the DA. These are contained in Ex 1 at Tabs 7-12 and I have had regard to them in determining the DA. Two local residents also gave evidence on site and a summary of their evidence was prepared by the Council’s solicitor and became Ex 6 in the proceedings.

  2. The issues raised by the submissions received by the Council include the following:

  • The height of the Proposed Development is excessive;

  • Loss of views;

  • Unacceptable bulk and scale;

  • The colour and reflectivity of the roof of the Proposed Development;

  • The Proposed Development will result in unacceptable traffic impacts;

  • The setback from the boundary on the Dress Circle Drive frontage is inadequate; and

  • The carparking proposed is inadequate.

  1. The only immediately adjoining neighbours at 36 Dress Circle Drive lodged a submission (Ex 1, Tab 8) which raised a number of specific issues including:

  • The side boundary encroachment on the western boundary will overshadow their property;

  • The external walls of the Proposed Development are within 900 mm of the side boundary which will have adverse privacy and solar impacts;

  • Balconies located on the side shared boundary will create overlooking and privacy issues for any future redevelopment of their property;

  • The north-east view from their property will be diminished by the Proposed Development.

  1. The Applicant made amendments to the Proposed Development to address those issues and on 16 March 2022 the neighbours informed the Applicant by email that,

“I’m ok with the changes made. Obviously this is based on my review only, if there are any items that are raised with me from the assessing officers that I haven’t considered following re-lodgement of amended plans I’ll discuss with you”.

  1. Despite this, upon receiving a further set of amended plans from the Council shortly prior to the hearing of the appeal, the neighbour sent an email to the Council dated 30 November 2022 (Ex 5) in which they say,

“… the amended plans provided some additional section and elevation drawings (with envelopes added) that we have only now had the opportunity to consider. These show significant encroachments on our boundary that we don’t agree with and advise that our original submission made on 8/11/21 remains.”

Expert evidence

  1. Mr Stephen Connelly (engaged by the Applicant) and Mr Darryl Anderson (engaged by the Council), town planners, conferred and prepared a joint report (Ex 3). The joint report deals with the non-compliance with the BEC and the setback controls as discrete issues and it is appropriate to also do so in this judgment.

The Applicant’s expert evidence

Non-compliance with the BEC

  1. Mr Connelly’s evidence (Ex 3 at 3.1.7) is that a review of development in the locality of the Site shows that there are very few examples of development in the local area that comply with the building envelope control (BEC) contained in the DCP and set out at [18] above. He says that the Council routinely permits development that does not comply with the BEC after considering factors such as the site constraints, whether existing buildings on the site comply with the BEC, whether the non-compliance with the BEC will result in any adverse impacts, such as overshadowing or view loss and after considering any objections that have been received. His evidence is that all of these factors are relevant in this appeal.

  2. Mr Connelly gave evidence (Ex 3 at 3.1.15 to 3.2.20) that the objectives of the BEC are achieved despite the Proposed Development’s non-compliance with the BEC. In this regard I note that in final submissions the Council indicated that the only objectives in relation to which it is contended that the Proposed Development was not consistent are those in paragraph (e) (bulk and scale and character of the locality) and paragraph (f) (impacts on the existing or future amenity of adjoining properties and the scenic or landscape quality of the locality).

  3. In relation to objective (e), Mr Connelly gave evidence (Ex 3 at 3.1.18) that the Proposed Development complies with the key bulk and scale controls, namely the height limit in cl 4.3 of the LEP and the FSR control in cl 4.4 of the LEP. His evidence is that the development in the locality has a mixed character with older single storey homes being redeveloped into duplexes “with most buildings being ‘non-compliant’ with the BCE” [sic]. He says that the floor space of the Proposed Development is less than a number of projects approved by the Council in recent years and that the design of the Proposed Development will provide an improvement to the streetscape.

  4. In relation to objective (f), Mr Connelly gave evidence that the neighbouring property at 36 Dress Circle Drive presents as a two-storey blank wall and a substantial carport for the majority of its shared boundary with the Site and that neither of these elements complies with the BEC. He says that the Proposed Development will provide a “more compliant elevation” to the neighbour than the existing building on the Site and that this will be an improvement on the existing situation. His oral evidence was that any overshadowing onto the adjoining property by the Proposed Development “is more or less zero” and that no adverse privacy issues would result from the non-compliance with the BEC.

  5. In the joint expert report (Ex 3 at 3.1.12 and 3.1.14), Mr Connelly also gave evidence that the non-compliance with the BEC would have no adverse impacts on the properties on the other side of Dress Circle Drive because of their higher elevation. However, in cross examination he conceded that the height studies he had prepared in relation to the property at 3 Pinnacle Row opposite the Site (Ex J at p 34) showed that the roof of the Proposed Development would protrude above the “land/sea interface”. He noted, however, that the Proposed Development complies with the height control in cl 4.3 of the LEP.

  6. The following is an extract from Ex J showing the view impact referred to in the preceding paragraph.

  1. Mr Connelly’s evidence was also that the streetscape in the immediate vicinity of the Site is dominated by the substantial double carport at 36 Dress Circle Drive which does not comply with either the setback control in the DCP or the BEC. His opinion is that, given the width of the street and the setback of the Proposed Development, the Proposed Development will have no adverse impact on the streetscape of Dress Circle Drive. His evidence is that the articulation of the façade of the Proposed Development will in fact enhance the streetscape.

Minimum secondary road frontage setback

  1. Mr Connelly gave evidence that, in his opinion, the Proposed Development achieves the objectives of Element E – Building Lines despite the non-compliance with the minimum secondary road frontage setback control.

  2. Mr Connelly’s evidence is that the protection of the amenity of the locality, the consideration advanced by objective (a) is not in any way diminished because of the articulated line and form of setback proposed, which he describes as being a “staggered saw toothed shape” (Ex 3 at [3.2.6]).

  1. In his opinion, the Proposed Development is also consistent with objective (b) as he says it makes a positive contribution to the local streetscape (Ex 3 at [3.2.7]). His evidence is that it does this by making an articulated line and form of setback adopting a staggered shape reducing in height and width along the Dress Circle Drive frontage to the corner of the triangular shaped lot. He also points out that the average line of the setback proposed is 3.929 m, which is more than the 3.6 m minimum permitted by the DCP. The minimum setback will be 2.675 m. In Mr Connelly’s view, the proposed staggered saw-toothed proposal “is far better than a bland building form set back 3.6 m”.

  2. In cross-examination it was put to Mr Connelly that 2.675 m was a “considerable reduction” on the minimum setback of 3.6 m, but he maintained that the reduction was “fair and appropriate and reasonable in the circumstances” and was not a significant variation in the circumstances of this application.

  3. Mr Connelly’s evidence is that, consistent with objective (c), the Proposed Development provides for increased vegetation and soft landscaping which, he says, will substantially increase visual and acoustic privacy compared to what currently exists along the Dress Circle Drive frontage (Ex 3 at [3.2.8]).

  4. Finally, Mr Connelly gave evidence that the average setback exceeds the setback control and that it is only certain components of the built form that sit forward of the minimum setback allowed. His evidence is that those exceedances are minor and will have no impact at all on amenity or on views to canals, rivers and foreshores as referred to in objective (d) (Ex 3 at [3.2.9]).

The Council’s expert evidence

Non-compliance with the BEC

  1. Mr Anderson’s evidence (Ex 3 at 3.1.21) is that the non-compliance with the BEC is “neither minor nor insignificant” and results in a building which “is incompatible with the bulk, scale and character of the area” (Ex 3 at 3.1.22). He says that he has formed this view based on his analysis of the approvals granted for other development in the locality and his own inspection of the development in the area. In relation to the flexible application of the BEC, his evidence is that the Proposed Development is inconsistent with objectives (e) and (f) “because of the bulk and scale resulting from non-compliance with the building envelope and setback to Dress Circle Drive” (Ex 3 at 3.1.27).

  2. Mr Anderson gave evidence that the DCP permits variations to the BEC in certain prescribed circumstances (Ex 3 at 3.1.32) and said that, of 21 development applications reviewed, only four were approved with variations beyond those expressly permitted by the BEC. In his opinion, these can be distinguished from the Proposed Development because:

  • The encroachments were relatively minor and impacts from overshadowing were not significant;

  • There was no significant loss of views; and

  • The bulk and scale of the building did not increase.

  1. In oral evidence, Mr Anderson accepted that the Proposed Development will not result in any substantial privacy impact and that there will be no over-shadowing impact on the property to the west (36 Dress Circle Drive). He also accepted that the Proposed Development will appear as a two-storey development when viewed from the properties on the upper side of Dress Circle Drive but gave evidence that the non-compliance with the BEC resulted in an adverse amenity impact because the areas of non-compliance, or “protuberances” as they were described, would be “perceptible” and that this would result in a visual amenity impact and a consequential bulk and scale impact. However, in cross-examination Mr Anderson conceded that, while the non-compliance would have “an impact” it was not “a significant impact”.

  2. In the joint expert report Mr Anderson made no comment about any loss of views resulting from the Proposed Development. In oral evidence, however, he said that the Proposed Development “will have a medium to high impact on the view corridors that are currently available” to the property at 3 Pinnacle Row.

Minimum secondary road frontage setback

  1. Mr Anderson helpfully prepared a plan showing the intrusions by the Proposed Development beyond the 3.6 m setback allowed by the DCP and this is to be found at Attachment 7 to the joint expert report (Ex 3).

  2. Mr Anderson gave evidence (Ex 3 at [3.2.11]) that the main wall of the existing building on the Site is set back approximately 5 m from Dress Circle Drive, which complies with the minimum setback of 3.6 m required by the DCP.

  3. In his view, the magnitude of the non-compliances with the setback control range from “relatively minor” to “significant” (Ex 3 at [3.2.13]). However, he did not identify which non-compliances he considered to be significant.

  4. While Mr Anderson’s evidence was that the proposed articulated building façade to Dress Circle Drive “delivers a better outcome than the existing bland, straight building façade” (Ex 3 at [3.2.15]), he maintained that the encroachments are inconsistent with objectives (a), (b) and (c) of Element E. However, he did not explain why.

  5. Mr Anderson also gave evidence (Ex 3 at [3.2.16]) that “increasing the Dress Circle Drive setback would reduce the encroachments into the building line and achieve a better planning outcome in terms of reduced bulk and scale, improved streetscape and compliance with the building line objectives”.

  6. In cross-examination Mr Anderson agreed that, in relation to objective (c), the breaches of the 3.6 m building line will not significantly reduce the area available for landscaping and would have no relevant impact in terms of visual and acoustic privacy.

Submissions

The Council’s submissions

  1. The Council submitted that the appeal essentially raises one issue for the Court to determine and that is whether the Proposed Development is of an excessive bulk and scale and therefore amounts to an overdevelopment of the Site. The Council’s case is that this manifests itself in significant exceedances of both the BEC and also the minimum setback required by the DCP.

  2. The Council accepts that s 4.15(3A) of the EPA Act requires that the provisions of the DCP must be applied flexibly but submits that this does not mean that the BEC and setback controls can be completely disregarded. The Council submits that s 4.15(3A) requires the consent authority to be flexible and to allow reasonable alternative solutions which achieve the objectives of the standards in question. In this case those standards are the BEC and setback control in the DCP.

  3. The Council submits that the extent of the exceedances of these controls sought by the DA is excessive and results in the Proposed Development not satisfying the objectives of the controls.

  4. The Council is critical of the Applicant’s reliance on the previous approval of other applications in the local area that do not comply with the BEC and setback control in the DCP. It says that the 21 applications analysed by the Applicant’s expert, Mr Connelly, in the joint expert report were selected by the Applicant and may not be representative of the broader area. It did not, however, give evidence of any additional applications it believed should be taken into consideration.

  5. The Council submits that of the 21 other applications the subject of expert evidence in the proceedings, eight were within the variations allowed by the DCP and two additional properties may or may not be within the allowable variations but in any case involved minor breaches of the BEC. Of the remaining applications, the Council submits that six were for alterations and additions (which it says the Applicant’s expert conceded are typically assessed more sympathetically than applications involving the building or rebuilding of an entirely new dwelling). This, the Council submits, leaves five applications in which the Council applied the DCP controls flexibly. In all but one of these, the Council submits Mr Connelly agreed the non-compliances were more modest than is proposed by the DA and, for the one remaining application, the Council submits that the evidence is unclear as to whether or not the exceedances were similar to those sought by this DA.

  6. The Council relies on Mr Anderson’s evidence that the Proposed Development is an over-development of the Site because of the cumulative effect of the various non-compliances which, he says, are inconsistent with objectives (e) and (f) of the BEC. The Council was, however, unable to point to anywhere in Mr Anderson’s evidence where he explained why he had formed the view that the Proposed Development was inconsistent with those objectives.

  7. The Council submits that some elements of the Proposed Development breach both the BEC and the setback control. This is because the BEC is measured from 2 m within the secondary frontage so that structures located closer than 2 m from the boundary contravene both the setback control and the BEC.

  8. The Council submits that the Proposed Development will result in amenity impacts. It accepts that there will be no privacy or overshadowing impacts but argues that there will be visual amenity impacts resulting from the appearance of a building that is “excessively bulky and large”.

  9. The Council also accepts that the triangular shape of the Site warrants some flexibility in the application of the DCP controls but argues that this does not justify the degree of exceedance sought by the DA.

  10. In relation to the setback control, the Council submits that the 3.6 m setback already involves a variation to the prescribed 4.6 m minimum setback and that the minimum setback of 2.675 m proposed by the DA is more than a minor encroachment. The Council accepts that the articulated or saw-toothed presentation to Dress Circle Drive is an improvement on the straight, red brick façade that currently exists. It also accepts that some of the intrusions are minor but maintains that some of them are not and that it is the cumulative impact of the various exceedances that results in the Proposed Development being unacceptable in terms of bulk and scale.

  11. The Council does not argue that the Proposed Development should be refused development consent because of any adverse view impacts. It does, however, draw attention to Mr Connelly’s admission in cross-examination that his comment in the joint expert report that there would be no impacts on the properties on the opposite side of Dress Circle Drive was “wrong” and submits that this is relevant to the weight the Court should attach to his evidence.

  12. Finally, the Council submits that the Court should have regard to the submissions made by the residents of the local area and the issues raised in both the written submissions and the oral presentations.

The Applicant’s submissions

  1. The Applicant submits that s 4.15(3A) of the EPA Act requires a flexible approach to be taken to the application of the BEC and setback control in the LEP and that the DA can (and should) be approved notwithstanding that the Proposed Development breaches the BEC and setback control if the objectives of those controls will still be achieved.

  2. The Applicant points out that the Proposed Development complies with the building height and FSR controls in the LEP, controls which the Council’s expert agreed are important in determining the bulk and scale of development in the area.

  3. The Applicant submits that the Council has demonstrated a flexible approach to the application of the DCP controls in relation to other development applications and submits that the same approach should be followed here and development consent granted despite the breaches of the DCP.

  4. The Proposed Development will present as a three-storey building to Allens Parade and a two-storey building to Dress Circle Drive and the Applicant submits that the Proposed Development is entirely consistent with other development in the area which includes “significant structures of modernist design”, a number of which are three storeys in height. The Proposed Development is, the Applicant submits, entirely consistent with other development in the local area.

  5. The Applicant submits that there is no evidence that the contravention of the DCP controls results in any disharmony or lack of compatibility with the other development in the local area.

  6. The Proposed Development will have a floor area of 264 m2 which the Applicant submits is “in the mid-range of achieved floor space” amongst the other approved development in the locality and cannot be considered to be incompatible with the bulk, scale and character of the locality.

  7. The Applicant submits that there will be no adverse amenity impacts associated with the Proposed Development. He points both to Mr Connelly’s evidence to that effect and the absence of any evidence from the Council to the contrary. He says that there is no evidence of any overshadowing impact or of any adverse privacy impacts. He also says that the breach of the BEC will not result in any adverse view impacts. The minor impact on views from the property at 3 Pinnacle Row, the Applicant submits, is the result of the height control in the LEP, not any breach of the BEC and, in any event, the impact is not unreasonable given the panoramic views available. The Applicant also notes that the Council did not raise any view loss contention other than in the context of the exceedance of the BEC.

  8. The Applicant also points to the relatively small number of objections received when the DA was publicly notified. Of some 91 persons who were notified, only six persons made submissions. Of those, only two decided to speak on site. In relation to the adjoining property at 36 Dress Circle Drive, the Applicant says that the design was amended to address the concerns raised by their original submission, that they had indicated their acceptance of those amendments and that their later email indicating that they pressed their original objection should be given little weight because the nature of the design indicates that their reasonable concerns have been considered and addressed.

  9. The Applicant also submits that the dimensions of this triangular corner site mean that the application of the BEC significantly constrains development on the Site. The Applicant’s position is that the BEC does not constrain development below the height plane of 1.8 m even if it is located outside the building envelope. He submits that the setback control is the only relevant control for any part of the development below the 1.8 m height plane.

  10. The Applicant submits that the DA merits approval and that there is no sound reason made out on the evidence for development consent to be refused.

The Proposed Development is acceptable

  1. I have decided that development consent should be granted to the DA.

  2. I am satisfied that the jurisdictional pre-requisites to the grant of consent are met.

  3. The parties did not differ on the correct approach to the assessment of the DA. A flexible application of the DCP controls means that development consent may be granted to the DA notwithstanding the breach of the DCP controls if the objectives of the controls will still be achieved.

  4. During the course of the hearing the parties took the Court to a number of other applications that had been approved by the Council despite apparent contraventions of the BEC. The Court was not greatly assisted by this as the circumstances in which variations had been allowed varied widely and the analysis of the various consents by the parties’ experts established little more than that variations had been allowed in a number of other situations but, as is generally the case, each variation reflected the individual circumstances of the development application the subject of the variation. The Court is required to determine whether any impacts associated with the Proposed Development are acceptable – not whether those impacts are greater or lesser than those of other development that may have been granted development consent by the Council.

  5. The issue for determination is whether the objectives of the BEC and setback control will be achieved despite the breach of the relevant controls in the DCP. In my assessment, they will.

  6. The evidence of the Council’s expert, Mr Anderson, was that the non-compliance with the BEC is “neither minor nor insignificant” and results in a building which “is incompatible with the bulk, scale and character of the area” (Ex 3 at 3.1.22). His evidence was that the Proposed Development is inconsistent with objectives (e) and (f) of Element C – Building Envelopes “because of the bulk and scale resulting from non-compliance with the building envelope and setback to Dress Circle Drive” (Ex 3 at 3.1.27). However, beyond the bald assertion that the Proposed Development would be inconsistent with those objectives (being the only two objectives with which the Council ultimately contended the Proposed Development would be inconsistent), the Council failed to put forward any evidence as to why that would be so.

  7. The Applicant’s expert disagreed with Mr Anderson in relation to whether the Proposed Development would be inconsistent with objectives (e) and (f). In relation to objective (e), Mr Connelly’s evidence was that the Proposed Development complied with the building height and FSR controls in the LEP and said these were important controls determining the bulk and scale of a development. He said that other development in the locality has a mixed character and includes a number of three storey buildings. His evidence was that the floor space of the Proposed Development will be less than a number of other projects approved by the Council in recent years and that the design will provide an improvement to the streetscape. The Council’s expert agreed with each of those propositions, which I therefore accept. In relation to objective (f), Mr Connelly gave evidence that the Proposed Development will provide a “more compliant elevation” to the neighbouring property at 36 Dress Circle Drive than the existing two storey blank wall and that this will be an overall improvement on the existing situation. Mr Anderson did not disagree with this.

  8. The Proposed Development will appear as a two-storey development when viewed from the properties on the upper side of Dress Circle Drive and, in my assessment, will be entirely compatible with the bulk, scale and character of the locality despite the breach of the BEC. There are already a number of three-storey buildings in the locality and the floor area of the Proposed Development is somewhat less than a number of other developments previously approved by the Council. In cross-examination, Mr Anderson agreed that the impact of the non-compliance with the BEC on the perception of bulk and scale when viewed from the other side of Dress Circle Drive would not be significant.

  9. Given Mr Connelly’s evidence in relation to the absence of any overshadowing or privacy impacts and the concessions made by Mr Anderson in oral evidence, I am also satisfied that the Proposed Development will not result in any material adverse impacts on the existing or future amenity of adjoining properties, in particular the adjoining property at 36 Dress Circle Drive and the properties on the opposite side of Dress Circle Drive. I reject the proposition that the average person would be able to perceive the contraventions of the BEC and find that such a perception, even if it existed, is not an impact that would warrant the refusal of the DA in the circumstances of this appeal.

  10. The impact of the Proposed Development on the views enjoyed from the properties on the upper side of Dress Circle Drive was not an issue raised by the Council’s contentions and the Council made it clear in closing submissions that the issue was raised only in the context of the weight to be given to Mr Connelly’s evidence given his concession in cross-examination that the statement in the joint expert report that there would be no impact on those properties was “wrong”: see par [62] above. Where there was a divergence of views between the experts, I prefer the evidence of Mr Connelly, notwithstanding the statement in the joint expert report regarding the view impacts on the properties on the other side of Dress Circle Drive. In general, I found Mr Connelly’s evidence to be considered and measured and that he made concessions when necessary, including in relation to the impact on views.

  1. On the issue of view impacts, in my opinion, having regard to the view studies prepared by Mr Connelly (at Ex J pp 34, 35) any impact by the Proposed Development on the views currently enjoyed from the properties on the upper side of Dress Circle Drive will be negligible: see par [34]. The impact is certainly not a “medium to high impact” as was suggested by Mr Anderson in his oral evidence.

  2. I am also satisfied that the Proposed Development will achieve the objectives of the setback control, despite the encroachments into the setback on the Dress Circle Drive frontage.

  3. In the plan prepared by Mr Anderson to show the extent of the encroachments (Ex 3, Attachment 7), it is readily apparent that the non-compliance is relatively minor. Despite Mr Anderson’s evidence to the contrary, in my view none of the encroachments can reasonably be described as “significant”. On this issue, I prefer Mr Connelly’s evidence that the articulated, saw-toothed shape of the Dress Circle Drive setback will produce a better design outcome and that, as the average setback will exceed the minimum prescribed by the DCP despite elements protruding beyond that setback, the Proposed Development will not adversely impact on the amenity of the locality but will make a positive contribution to the local streetscape. I note in this regard that Mr Anderson agreed in cross-examination that the proposed articulated building façade to Dress Circle Drive “delivers a better outcome than the existing bland, straight building façade”.

  4. I am also satisfied that the setback of the Proposed Development is sufficient to provide for landscaping, visual and acoustic privacy. I accept Mr Connelly’s evidence that the Proposed Development provides for increased vegetation and soft landscaping which will substantially improve the visual and acoustic privacy compared to what currently exists on the Dress Circle Drive frontage. Mr Anderson agreed in cross-examination that the breaches of the 3.6 m building line will not significantly reduce the area available for landscaping and would have no relevant impact on visual and acoustic privacy. As the car parking proposed will be on the Allens Parade frontage, the reduced setback on Dress Circle Drive will have no impact on the provision of car parking.

Conclusion and conditions

  1. For the reasons I have set out above, the DA should be determined by the grant of development consent.

  2. The Council tendered a set of draft conditions (Ex 4), all but one of which are acceptable to the Applicant. The one condition that is in dispute is proposed condition 4, which requires the amendment of the DA plans to remove the parts of the Proposed Development which breach the BEC and/or setback control to an extent that the Council contends is unacceptable. As I have found that the DA should be granted development consent despite non-compliance with the BEC and setback controls, it necessarily follows that condition 4 should not be imposed. 

Orders

  1. The Court orders that:

  1. The appeal is upheld.

  2. Development consent is granted to Development Application DA-2021/605 for demolition of the existing dual occupancy development and associated works, cancellation of the existing strata plan and reversion to a single Torrens Title lot, and the erection of a new dwelling house on the land currently described as Lots 1 and 2 SP 34685 known as 38 Dress Circle Drive, Lennox Head subject to the conditions in Annexure A.

  3. Exhibits 1, 3, 4, 5, 6, B, C, E, G and J, are to be retained. Exhibits A, D, F, K, and 2 are returned.

Annexure A

Alan Bradbury

Acting Commissioner of the Court

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Amendments

18 January 2023 - Amendment to include Annexure

Decision last updated: 18 January 2023

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