South Coast Drafting Services Pty Ltd v Wollongong City Council

Case •

[2024] NSWLEC 1277

•

27 May 2024

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: South Coast Drafting Services Pty Ltd v Wollongong City Council [2024] NSWLEC 1277
Hearing dates: 4 and 5 March 2024
Date of orders: 27 May 2024
Decision date: 27 May 2024
Jurisdiction:Class 1
Before: Targett AC
Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) Development application no. DA-2022/852 for the demolition of the existing dwelling and associated structures and construction of a dwelling house with basement garage and store, swimming pool, retaining walls, site works and landscaping on Lot 3 in Deposited Plan 8096, known as 3 Boyce Avenue, Austinmer, and the road reserve adjacent to that land, and new vehicular access via Boyce Avenue involving works within the road reserve, is refused consent.

(3) The exhibits are returned, except for A, B, 1, 3 and 5.

Catchwords:

APPEAL – Development application – s34AA – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.10, 8.14

Land and Environment Court Act 1979, ss 17, 34AA, 39

Environmental Planning and Assessment Regulation 2021, s 38

Wollongong Local Environmental Plan 2009, cll 4.3, 4.4, 7.6

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Cases Cited:

Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115

Texts Cited:

Wollongong Community Participation Plan 2023

Wollongong Development Control Plan 2009

Category:Principal judgment
Parties: South Coast Drafting Services Pty Ltd (Applicant)
Wollongong City Council (Respondent)
Representation:

Counsel:
P Tomasetti SC (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
HWL Ebsworth (Applicant)
Bartier Perry (Respondent)
File Number(s): 2023/253049
Publication restriction: No

Judgment

COMMISSIONER:

Background

  1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s refusal of the applicant’s development application (DA-2022/852) (Development Application). The Development Application sought consent for the demolition of the existing dwelling house and associated structures and construction of a new dwelling house with basement garage and store, swimming pool, spa, retaining walls, site works and landscaping with new vehicular access from Boyce Avenue involving works within the Council reserve, including vehicle and pedestrian access and new retaining walls, on land identified as Lot 3 in Deposited Plan 8096, known as 3 Boyce Avenue, Austinmer (Lot 3) and the road reserve adjacent to that land (Road Reserve) (collectively, the Subject Land).

  2. The appeal was subject to conciliation on 4 March 2024, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(ii) of the LEC Act.

  3. The Court inspected the Subject Land and surrounding area with the parties by walking the length of Boyce Avenue and Foreman Lane as well as parts of Lawrence Hargrave Drive and Maxwell Road.

  4. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) LEC Act. The proceedings are determined pursuant to the provisions of s 8.14 of the EPA Act.

The Subject Land and its context

  1. The following facts are set out in the respondent’s Statement of Facts and Contentions (Ex 1):

  1. Lot 3 is a regular shaped allotment with an area of 677.3m2, located in Austinmer.

  2. Lot 3 is zoned R2 Low Density Residential under the Wollongong Local Environmental Plan 2009 (WLEP).

  3. Lot 3 has dual frontages to Boyce Avenue (primary frontage) and Foreman Lane (secondary frontage). Vehicular access is presently available via Foreman Lane.

  4. The single tile roofed dwelling house currently occupies Lot 3 along with ancillary structures including a garage and sheds to the rear of the property.

  5. Lot 3 falls from the north-west (secondary frontage) to the south-east (primary frontage) by approximately 3.93 from RL 22.810 to RL 18.880. An embankment abuts the primary frontage of the Subject Land in Boyce Avenue which has a steep fall from north-west to south-east by approximately 4.09m from RL 18.320 to 14.230 over a width of approximately 7.3m. No vehicular access is currently available to Lot 3 from Boyce Avenue.

  6. The immediate locality of the Subject Land is characterised by residential development comprising predominantly one and two-storey dwellings (although I note that this characterisation of one and two-storey dwellings is disputed by the applicant), of mixed character and style. The Subject Land is located in close proximity to Little Austinmer Beach, which is approximately 50m to the South-East across from Lawrence Hargrave Drive.

  7. The adjoining property to the south-west is known as 5 Boyce Avenue and is identified as Lot 22 in DP 8096. This property contains a two-storey dwelling house and detached garage access from Foreman Lane.

  8. The adjoining property to the north-east is known as 1 Boyce Avenue and is identified as Lot 20 in DP 8096. This property contains a part one, part two-storey dwelling house and garage access from Maxwell Road.

  9. Opposite the Subject Land to the north-west (across Foreman Lane) is known as 1 Maxwell Road identified as Lot 101 in DP 850549. This property contains a single storey dwelling house and garage.

  10. Opposite the Subject Land to the south-east (across Boyce Avenue) is known as 60 Lawrence Hargrave Drive, and is identified as Lot 1 in DP 103822. This property is a very narrow corner allotment, irregular in shape, with dual frontages to Lawrence Hargrave Drive to the south-east and Boyce Avenue to the north-west. This property contains a three-storey dwelling house.

The Proposal

  1. The Development Application as lodged with the respondent on 8 August 2022 sought consent for the demolition of the existing dwelling and associated structures and the construction of a dwelling house with basement garage and store, swimming pool, retaining walls, site works and landscaping on Lot 3, and new vehicular access via Boyce Avenue involving works within the Road Reserve.

  2. On 17 February 2023, the Development Application was refused.

  3. On 9 August 2023, the proceedings were commenced, being within the appeal period prescribed by s 8.10 of the EPA Act.

  4. On 31 August 2023, the respondent filed its Statement and Facts and Contentions (Ex 1).

  5. At the commencement of the hearing, the applicant sought leave to amend the Development Application by relying on amended plans and documents (Amended Development Application). The amendments can be summarised as follows:

  1. relocating basement (garage, store, lift, stairs) approximately 300mm towards the south western boundary, to align with ground floor;

  2. relocating basement (lift, stairs) approximately 700mm towards south eastern boundary, to align with rear wall of basement (store);

  3. removing retaining walls from the sides of the driveway across Council’s verge and replacing with terraced rock garden walls;

  4. reducing height of garage door from 3.6m to 2.7m;

  5. reducing overall width of ground and first floors by approximately 300mm and length of ground and first floors by approximately 700mm;

  6. reducing Floor Space Ratio of ground and first floors;

  7. reconfiguring/relocating Bed 4 and Lower Terrace to obtain clearance from the existing tree’s structural root zone;

  8. reconfiguring/relocating the Terrace to obtain clearance from the existing tree’s structural root zone; and

  9. replacing the existing retaining wall with new (maintaining current location).

  1. The applicant argued that the amendments sought were minor and unlikely to impact any adjoining property and therefore did not trigger the need to renotify under the Wollongong Community Participation Plan 2023 (CPP).

  2. The respondent did not object to the content of the proposed amendments on the basis that they largely reduced the overall impacts of the proposal. However, the respondent did not agree to the applicant amending its application on the basis that in its view, the Amended Development Application changed the impacts to neighbouring properties (particularly 5 Boyce Avenue) and the presentation of the Subject Land to the street and should therefore be renotified in accordance with the CPP. I note that neither party pressed for the adjournment of the hearing to allow renotification to occur.

  3. The applicant was then able to provide an email from Mr Dean Roddis, being the owner of 5 Boyce Avenue to Madeleine Ryan (of HWL Ebsworth Lawyers) dated 4 March 2024 (Ex C), which relevantly provided:

“We have no additional comments to make regarding the amended plans”.

  1. The Court granted leave for the applicant to rely on the Amended Development Application (Ex B) pursuant to s 39 of the LEC Act, exercising its function under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), on the basis that:

  1. renotification was not required under the CPP as:

  1. based on the elevations and renderings provided by the applicant in both the Class 1 application (Ex A) and amended plans (Ex B), and having regard to the submissions made by both parties, I was satisfied that the proposed amendments were unlikely to impact any adjoining properties; and

  2. the owner of 5 Boyce Avenue (the directly adjoining neighbour to the south-west of the Subject Land who had previously made a submission objecting to the Development Application) had reviewed the Amended Development Application and provided no objection to the amendments (insofar as they did not change his general objections to the proposed development); and

  1. the Amended Development Application had been materially considered by the experts in their joint reports.

  1. Therefore, the proposal before the Court involves the documents and plans tendered as Ex B in the proceedings.

Issues

  1. The issues remaining in dispute at the hearing can be distilled as follows:

  1. Whether the Amended Development Application contains sufficient information to satisfy s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) in relation to contamination.

  2. Whether the Amended Development Application contains sufficient information to satisfy cl 7.6 of the Wollongong Local Environmental Plan 2009 (WLEP) in relation to earthworks.

  3. Whether the Amended Development Application should be granted or refused on the basis of its integration with, and impact on, the existing and future streetscape and neighbourhood character, having regard to issues of bulk and scale, number of storeys, setbacks, and the visual impacts as a result of the proposed works to the embankment located in the Road Reserve on Boyce Avenue.

  4. Whether the Amended Development Application should be granted or refused on the basis of the impacts of the proposed vehicular and pedestrian access from Boyce Avenue, having regard to sight lines, compliance with Australian standards, traffic generation, and ongoing maintenance considerations.

Expert evidence

  1. The applicant relied on the expert evidence of Mr Brett McClurg (traffic), Mr Iain Brammer (landscaping) and Mr Robert Bennett (town planning and environment).

  2. The respondent relied on the expert evidence of Mr Charlie Bevan (traffic), Mr Evan Smith (landscaping), Ms Sarah Richards (planning) and Dr Suri Mora (environment).

  3. The following joint reports were filed and subsequently tendered at the hearing:

  1. Joint Expert Report of Traffic Engineers prepared by Mr McClurg and Mr Bevan filed 9 February 2024 (Ex 3) (Joint Traffic Report).

  2. Joint Expert Report of Landscaping Experts prepared by Mr Brammer and Mr Smith, filed 12 February 2024 (Ex 4) (Joint Landscaping Report).

  3. Joint Expert Report of Town Planning and Environmental Experts prepared by Mr Bennett, Ms Richards and Dr Mora, filed 13 February 2024 (Ex 5) (Joint Town Planning Report).

Contamination

Statutory and planning framework

  1. Pursuant to s 4.6(1) of the RH SEPP, a consent authority must not consent to the carrying out of any development on land unless –

  1. it has considered whether the land is contaminated, and

  2. if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

  3. if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

  1. Further, Chapter E20 of the Wollongong Development Control Plan 2009 (WDCP) relevantly provides:

“4.2 General

The key principle in considering contaminated land and the likelihood of land contamination is to determine any issues as early as possible in the planning and development process. This section provides an overview of the requirements in the SEPP 55.

….

4.3.1 Stage 1 – Preliminary Investigation

2. The main requirements of a preliminary investigation are to: -

identify any past or present potentially contaminating activities;

review available historic records (ie including Council & NSW Government Department Records);

conduct a preliminary visual inspection;

provide a preliminary assessment of any site contamination; and

provide the basis for a more detailed investigation if required.

4.3.2 Stage 2 – Detailed Investigation

1. A detailed investigation is only necessary where a preliminary investigation indicates that the land is contaminated or the site history confirms that the site is or was exposed to potentially contaminated industry or activities.

2. The requirements of the detailed investigation are: -

To define the nature, extent and degree of all contamination (ie soil, water and soil vapour);

To assess potential risk posed by contaminants to health and environment; and

To obtain sufficient information for the development of a viable Remedial Action Plan (RAP), if required

…”

Evidence

  1. Mr Bennett and Dr Mora agreed that “inadequate information has been provided by the applicant and additional information should be provided” in respect of the contention that s 4.6 of the RH SEPP and Chapter E20 of the WDCP have not been addressed (Ex 5 p 37 at [12.2]).

  2. Mr Bennett and Dr Mora agreed that the Hazardous Materials Survey Report prepared by Property Risk Australia dated 23 December 2023 (Ex B, tab 4) (HazMat Report) submitted as part of the Amended Development Application, adequately addressed the respondent’s contentions that a hazardous materials survey was required to be submitted. For completeness, I note that the HazMat Report did identify the presence of asbestos in the existing structures on Lot 3.

  3. Further, the Amended Development Application included a Waste Classification Assessment prepared by Property Risk Australia dated 15 February 2024 (Ex B, tab 6) (Waste Report) which was limited to the “retaining wall/verge associated with Lot 21/8096”. This means that the Waste Report’s scope was limited to the classification of fill located in the Road Reserve, and did not consider the classification of fill or other material within Lot 3. The Waste Report identified the presence of fill and asbestos in the Road Reserve and recommended that the fill material (approximately 26m3) be disposed of at a waste facility that can lawfully receive Special Waste (Asbestos) mixed with General Solid waste CT1 (Non-Putrescible).

Applicant’s submissions

  1. The applicant submits that Lot 3 is not contaminated (T 5 March 2025 p 112 line 3-4) and made the following submissions:

  1. the historical aerial photos relied on by the respondent to suggest that Lot 3 has been filled are provided in black and white and do not show with precision where this fill is, what this fill is or if fill was ever placed on Lot 3;

  2. Lot 3 has “always been used for residential purposes and is intended to continue to be used for residential; purposes” (T 5 March 2024 p 112, line 25-26); and

  3. the geotechnical boreholes show that there is no fill on the Lot 3 and “it’s all clean, venom, natural material” (T 5 March 2024, p 111 (21) – (26)).

  1. The applicant further argued that the agreed conditions contain “belts and braces” conditions regarding contamination and an unexpected finds protocol in the event contamination is discovered (noting also that the HazMat Survey indicated contamination from the structures on Lot 3 and the Waste Report identified contamination in the Road Reserve and that these matters had been adequately addressed).

Respondent’s submissions

  1. The respondent submits that:

  1. Historical aerial photos indicate fill material was brought on to Lot 3 for levelling and compaction of the land for dwelling purposes (see contention 12(a) in the SOFAC (Ex 1)).

  2. The prerequisites to trigger the carrying out of a detailed site investigation (including historical uncontrolled filling) are satisfied pursuant to Chapter E20 of the WDCP and that no such investigation is before the Court.

  3. The applicant’s town planning expert, and the respondent’s environmental expert agree that insufficient information was provided under s 4.6(1) of the RH SEPP (Ex 5, p 37 at [12.2]).

  4. Relevant to the consideration of contamination, the Court only has before it a waste classification assessment report relating to samples taken from the Road Reserve (being the Waste Report), which does not relate to any testing of Lot 3.

  1. It is the respondent’s view that in order for the Court to approve the Amended Development Application, it must be satisfied of the matters listed in s 4.6(1) and based on the “insufficient material provided by the applicant, the Court cannot be satisfied it has considered matters regarding contamination” (Respondent written submissions at [24]).

Consideration

  1. The requirements of s 4.6 of the RH SEPP are jurisdictional in nature. On the basis that I am satisfied that the Amended Development Application does not propose a change in use for the purposes of s 4.6(2) of the RH SEPP, development consent cannot be granted to the Amended Development Application unless, in this case, the Court has considered the matters specified in s 4.6(1) of the RH SEPP.

  2. Having reviewed the historical aerial photographs relied on by the respondent to indicate the presence of fill on Lot 3, I agree with the applicant that these photos do not show with any precision the type or location of the purported fill, or indeed whether any fill was placed on Lot 3 at all.

  3. However, the Preliminary Acid Sulfate Soils Assessment prepared for the applicant by Southern Geotechnics NSW dated 14 September 2023 (Ex B, Tab 3) (PASS Report)) does state that “the original ground surface of the rear yard is inferred to have sloped down towards the south-east about 2 to 4 degrees, which has been modified to provide: a filled platform to support the brick garage and carpark near Foreman Lane; and the gently sloping rear yard”.

  4. The PASS Report goes on to state that “notwithstanding the results of the desk study, boreholes were drilled recently on the lot to a depth below the colluvial soil layer and into the residual clay soils, for sampling and testing”. The borehole samples ranged in depth from 0.6m to 1.2m and were located at the rear of the Subject Land adjacent to Foreman Lane and towards the front of the Subject Land adjacent to Boyce Avenue. The borehole samples were described as yielding “sandy clay (colluvium)” and “sandy clay (residual soil)”.

  5. The town planning experts agreed that “inadequate information has been provided by the Applicant and additional information should be provided” in relation to the assessment of contamination under s 4.6 of the RH SEPP and Chapter E20 of the WDCP (Ex 5,p 37 [12.2]). However, it does not appear that the results of the geotechnical boreholes located on Lot 3 (set out in the PASS Report) were considered by the experts in the Joint Town Planning Report in relation to the question of whether Lot 3 was contaminated, or whether such consideration would have caused the town planning experts to change their view.

  1. On the basis of the PASS Report, it would appear likely that Lot 3 was filled at some point in time, particularly in the rear portion of Lot 3, including under the brick garage and carpark area and the “gently sloping rear yard”. Although there were two borehole samples taken on Lot 3 which do not indicate the presence of uncontrolled fill, there is only one borehole sample at the rear of Lot 3 and it was not taken in the immediate location of the garage/carparking area. Further, it was not tested for contaminants.

  2. Therefore, I am satisfied that the inferred historical filling of Lot 3 is a potentially contaminating activity, and the applicant has not provided adequate information as to whether Lot 3 is contaminated for the purposes of s 4.6 of the RH SEPP. I make this finding notwithstanding that I accept there are “bolts and braces” conditions agreed to be imposed if the Amended Development Application was approved. As the consideration of contamination under s 4.6 of the RH SEPP is jurisdictional, the appeal must fail.

Earthworks

Statutory and planning framework

  1. Pursuant to cl 7.6(3) of the WLEP, before granting development consent for earthworks, the consent authority must consider the following matters –

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

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

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

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

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

(f)  the likelihood of disturbing Aboriginal objects or other relics,

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

Evidence

  1. Mr Bennett and Ms Richards agreed that “insufficient information was provided under cl 7.6 of WLEP with regard to proposed excavation, including the extent (m3) and management of the proposed excavation and details of how amenity and environmental risks will be minimized” (Ex 5, p 4 at [1.8]).

  2. In addition, Mr Bennett and Ms Richards agreed that “inadequate information has been provided by the applicant and additional information should be provided” in respect of the following relevant contentions:

  1. The proposal lacks information of the quality and quantity of fill material on the Subject Land.

  2. The proposed development requires a large amount of cut and fill adjacent to a busy road. No plans were submitted estimating total material required to be excavated and managed for off-site disposal.

  3. A construction environmental management plan (CEMP) detailed the storage and waste classification protocols prior to off-site disposal is required. The CEMP must address how the proponent will manage any foreseeable environmental risk during the demolition, excavation and construction phase. This includes but is not limited to documenting measures to ensure there is no pollution to waters, and dust and noise are minimised as far as practicable.

  1. In the witness box, Mr Bennett estimated:

  1. that the volume of material to be excavated from the “site” if the application was approved was 1,049.243m3 (T 5 March 2024, p 97 (15)-(23)); and

  2. that the excavation of this material would result in 42 truckloads (being 4 truckloads per day for 2 weeks made up of 5 day working weeks (T 5 March 2024, p 97 (25)-(35)).

Applicant’s submission

  1. It is the applicant’s submission that the boreholes taken on Lot 3 as detailed in the PASS Report and boreholes taken on the Road Reserve as detailed in the Waste Report are adequate to understand “the quality of the fill and what’s there” (T 5 March 2024, p 111 (21) – (24)). Although not expressly addressed in the applicant’s evidence or written submissions, it was stated in the applicant’s oral submissions (at T 5 March 2024, p 111 (21) – (44)) that:

“The quality of the fill or of the soil to be excavated is to be considered. You have boreholes of both the subject site where there will be excavation and the road reserve where there will be excavation to show the quality of the fill and what’s there. We know that, on the subject side, it’s all clean, venom, natural material. On the council’s roadside, there is some fill and contaminated material, and you know that that material is going to be treated in the ways which I’ll address shortly. Then you’ve got to consider in (e), the source of any fill material or the destination of the excavated material.

Now, the quantity is around about 1,050 cubic metres. It could be carried away in 40 or so truckloads over a 10-day period. And you’ve got a construction management plan and a traffic management plan, I believe, covered in the draft conditions which further control those traffic movements, and you know that those materials so far as they’re contaminated, will go to fill at a designated waste-receiving place.

The likelihood of disturbing Aboriginal objects and other relics, this is all solid, competent, long-weathered ground. There’s no evidence at all of the possibility that might suggest that the land might have middens or anything like that. Never raised by council contention. And, lastly, the proximity to and potential for adverse impacts on water courses. There’s none. Drinking water catchments, they’re all up on top of the table land or environmentally sensitive areas, there are none. And you are well able to consider those matters and should do so, can do so and should be satisfied.”

  1. The applicant therefore submitted that there was no impediment to the grant of consent pursuant to cl 7.6 of the WLEP.

Respondent’s submission

  1. It was the respondent’s submission that the applicant had provided “scant” information in relation to the matters required to be considered under cl 7.6(3) of the WLEP (T 5 March 2024 p 107 (39)-(43)) and that Mr Bennett’s calculations of the quantity of fill to be excavated during cross examination did not overcome this deficiency.

  2. The respondent similarly relied on the agreed position of the town planners that insufficient information had been provided in relation to this issue such that development consent cannot be granted to the Amended Development Application pursuant to cl 7.6(3) of the WLEP.

Consideration

  1. Having considered the submissions by the parties, evidence of the experts, and the material comprising the Amended Development Application, I agree with the respondent that insufficient information has been provided for the consideration of the matters listed in cl 7.6(3) of the WLEP.

  2. The reasons for this include:

  1. The two boreholes located on Lot 3 do not, as the applicant submitted, show that there is no fill located on Lot 3, particularly when the applicant’s own PASS Report states that Lot 3 has likely been filled at the rear of the property and only one of the boreholes was located at the rear of Lot 3. Therefore, there is inadequate information to consider the quality of the fill or soil to be excavated, or source of the fill to be excavated, in respect of Lot 3.

  2. There is inadequate information provided regarding existing drainage patterns and soil stability in the locality nor the proximity to and potential for adverse impacts of any watercourse, drinking water catchment or environmentally sensitive area.

  3. There is inadequate information to consider the likelihood of disturbing Aboriginal objects or relics.

  1. The applicant’s oral submissions (extracted above at [40]) are not expert evidence that can be given weight in the determination of this matter. Further, the condition requiring a CEMP to be prepared does not allow adequate consideration of the matters listed in cl 7.6(3) of the WLEP prior to the determination of the development application.

  2. This is not to say that these issues could not necessarily be overcome. However, the fact of the matter is that insufficient information has been provided to allow the Court, as the consent authority in this case, to consider the matters listed in cl 7.6(3) of the WLEP “before granting development consent for earthworks”. The appeal must therefore fail.

Streetscape/character

  1. A key issue in dispute between the parties was whether the Amended Development Application should be granted or refused on the basis of its proposed consistency with, or impact on, the existing streetscape and neighbourhood character of the locality and desired future character of the locality. This issue has been considered having regard to issues including number of storeys, bulk and scale, setbacks, and the visual impacts as a result of the proposed works to the embankment located in the Road Reserve on Boyce Avenue.

Statutory and planning framework

  1. The Subject Land is zoned R2 Low Density Residential under the WLEP, and the Amended Development Application is permissible with consent. The objectives of the R2 zone, which I have considered, are as follows:

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.

  1. Pursuant to cl 4.3 of the WLEP and Height of Buildings Map, the height of building standard in respect of the Subject Land is 9m. The parties agree that the Amended Development Application complies with this standard.

  2. Pursuant to cl 4.4 of the WLEP and the Floor Space Ratio Map, the floor space ratio standard in respect of the Subject Land is 0.5:1. The parties agree that the Amended Development Application complies with this standard.

  3. The WDCP applies to the Subject Land. Chapter B1: Residential Development relevantly contains residential development controls for dwelling houses. The objectives relevant to the issues in dispute are extracted below:

“(a) To ensure a high standard of residential development within the City of Wollongong LGA.

(b) To encourage new residential development that is sympathetic to the existing streetscape and neighbourhood character of a particular locality.

(c) To encourage residential development that reflects the desired future character of individual suburbs within the Wollongong LGA.

… “

  1. Section 4.1 of the WDCP (Number of Storeys) relevantly provides that:

“4.1 Number of Storeys

The maximum building height is set by the Local Environmental Plans generally

a) R2 Low Density Residential Zones permit a maximum height of 9m – a maximum of two storeys

…

The number of storeys acceptable will be dependant on the surrounding development, the future desired character of the area, the impacts that the proposed development has on solar access, privacy, visual amenity and overshadowing.”

  1. The relevant objectives for s 4.1 are as follows:

“4.1.1 Objectives

a) To encourage buildings which integrate within the streetscape and the natural setting whilst maintaining the visual amenity of the area.

…

c) To ensure that development is sympathetic to and addresses site constraints.

…

(e) To encourage a built form of dwellings that does not have a negative impact on the visual amenity of the adjoining residences.

…”

  1. Section 4.2 of the WDCP (Front Setbacks) relevantly provides that:

“4.2.2 Development Controls

1. The following setback requirements apply from the primary street frontage to the front façade of the building:

…

(c) Garages and carports must be setback a minimum of 5.5m to enable a vehicle to park of stand in front of the garage or carport.

…”

  1. The objectives for s 4.2 are extracted as follows:

“4.2.1 Objectives

(a) To reinforce the existing character of the street and locality by acknowledging building setbacks.

(b) To ensure that buildings are appropriately sited, having regard to site constraints.

(c) To ensure building setbacks are representative of the character of the area.

(d) To provide for compatibility in front setbacks to provide unity in the building line.

(e) To ensure that setbacks do not have a detrimental effect on streetscape or view corridors.

(f) To ensure that hard stand areas can be provide in front of garage without imposing on movement corridors (pathways, cycle ways and road reserves).”

  1. Section 4.3 of the WDCP (Side and Rear Setbacks) relevantly provides that:

“4.3.2 Development Controls

1. Walls must be setback at least 900mm from any side or rear property boundary and eaves/gutters must be setback at least 450mm from the side and rear property boundaries.

2. Walls (including gable ends and parapets) that exceed 7 metres overall height must be setback at least 3 metres from the side and rear boundaries.

…

7. The side and rear setback controls may only be varied where the following is demonstrated to Council’s satisfaction:

(a) The objectives of 4.4.1 are met.

(b) The walls and footings are located wholly on the subject land.

(c) There are no windows facing the adjoining property that enable overlooking.

(d) Walls provide articulation so as to not impact the amenity of adjoining dwellings.

(e) Landscaping is appropriately provided to screen development.”

  1. Section 4.8 (Building Character and Form) relevantly provides:

“4.8.2 Development Controls

1. The design, height and siting of a new development must respond to its site context taking into account both natural and built form features of that locality. The design of the development must have particular regard to the topography of the site to minimise the extent of cut and fill associated with dwelling construction.

2. Large bulky forms are to be avoided, particularly in visible locations. The use of extended terraces, balconies, sun shading devices and awnings will help reduce the apparent bulk of buildings.

3. New dwelling-houses within established residential areas should be sympathetic with the existing character of the immediate locality. New innovative contemporary building designs may also be permitted, where, in the opinion of Council, the development will not result in an adverse impact upon the streetscape or residential amenity of that locality, as compared to a more traditional design.

…

6. Where garages are proposed on the front elevation they must be articulated from the front façade.

…”

  1. The objectives for s 4.8 are extracted as follows:

“4.8.1 Objectives

(a) To ensure that development responds to both its natural and built context.

(b) To design residential development that responds to the existing character and the future character of the area.

(c) To ensure building design contributes in to the locality through a design that considers building scale, form, articulation and landscaping.

(d) To encourage colour schemes that are of similar hues and tones to that within the streetscape.

(e) To ensure buildings address the primary street frontage via entry doors and windows.

(f) To ensure that dwellings provide appropriate passive surveillance of public spaces and street frontage.

(g) To ensure that ancillary structures are not the dominate feature of built form.”

  1. Section 4.9 (Fences) relevantly provides:

“4.9.2 Development Controls

…

2. Fences within the front and secondary building lines should be predominantly constructed in transparent fence materials, allowing visual connection between the dwelling and the street.

3. Any fence and associated retaining wall within the front setback area from the primary road frontage must be a maximum 1.2 metres in height, above existing ground level. Where the front fence is located on the front property boundary line, the height of the fence is to be measured above the existing ground level of the adjacent footpath or verge.

4. Front fences must be open for at least 50% of the upper 2/3 of the area of the fence. Any brick or other solid portion of the fence above 600mm must not be more than 250mm wide.

…

6. Front and return fences should reflect the design of the residential building, wherever practicable.

…

9. Dividing fences between the front building line and the rear property boundary must be a maximum of 1.8 metres in height.

…

11. The height and design of any proposed fence on top of a retaining wall must be included in the consideration of the overall height of the fence and retaining wall.

12. Fences which exceed the maximum fence heights above will only be considered in exceptional circumstances where Council is of the opinion that the variation is reasonable in the circumstances. For example, the erection of a higher front fence for a property fronting a major arterial road, in order to improve the privacy or amenity of the property. In such cases, any fence will be required to be well articulated and landscaped with appropriate planting, to help soften the visual impact and improve the streetscape appearance of the fence.

13. Fences must be constructed of timber, metal, lightweight materials or masonry. Fences in bush fire prone areas shall be of a metal or masonry construction only.

14. Front and return fences are not to be of a timber paling, Colorbond, or chain wire mesh design.

…”

  1. The objectives for s 4.9 are relevantly extracted below:

“(a) To allow for the physical separation of properties for resident privacy.

(b) To define the boundaries between public and private land.

(c) To enhance the usability of private open space areas / courtyards.

(d) To ensure that the design, heights and materials of fencing are appropriately selected.

(e) To ensure that fencing design and location complements the building design, enhance the streetscape and complement the objectives of passive surveillance.

(f) To ensure that the design allows for casual surveillance of the lot.

(g) To ensure that clear lines of sight are maintained for motorists and pedestrians to and from the lot.

…”

  1. Section 4.10 (Car parking and Access) relevantly provides as follows:

“4.10.2 Development Controls

…

3. Garages must be setback a minimum of 5.5m from the front property boundary.

…

10. Driveways shall have a maximum cross-over width of 3 metres.

…”

  1. The objectives of s 4.10 are relevantly extracted below:

“4.10.1 Objectives

…

(b) To ensure that there is adequate provision of vehicular access and manoeuvring.

(c) To minimise the impact of garages upon the streetscape.”

  1. Chapter D1 (Character Statements) of the WDCP is also relevant to the Amended Development Application.

  2. Relevant sections of Chapter D1 have been extracted below:

“1 AIMS AND OBJECTIVES

The main aims of this chapter of the DCP are to identify the existing character and desired future character for each particular suburb within the city.

The key objectives of this chapter are to:

a) Protect and enhance the existing character that distinguishes the identity of each suburb within the city; and

b) Provide character statements for each suburb within the city which in conjunction with the specific development controls outlined in other chapters of this DCP will help assist decision-making as to whether a proposed development is compatible with the desired future character of the locality/ suburb.

2 WHAT IS CHARACTER?

“Character” has two specific elements, namely:

(i) “Existing character” relates to the current patterns of natural and urban geography which may be observed in an area; and

(ii) “Desired or future character” which provides objectives for the future development of a suburb and which emphasizes the important existing features or qualities of the area that should be maintained or enhanced.

Within the planning framework, the concept of character primarily focuses on physical planning outcomes and the design of the built environment in the public realm. This may include characteristics such as particular groups of land uses, architectural styles, building densities, building heights, building materials and building setbacks as well as the spatial definition or patterns of particular locality, including subdivision layout patterns and road pattern. The character of a suburb may also be partly based on unique topographical or natural landform features, scenic environmental quality of the particular suburb including significant remnant stands of trees or streets which are lined by a particular tree species. In addition, the character of an area may also be based upon the number of heritage items or conservation areas within that particular area.

However, the character of a particular suburb should not be confused with its attractiveness since all suburbs have an existing character.

…

3 CHARACTER STATEMENTS

…

3.13 Austinmer

Existing Character

Austinmer is a leafy residential village which extends from the coastal strip right up to the slopes and foothills of the escarpment. Austinmer is a medium sized seaside village being slightly smaller than Thirroul but larger than other seaside villages to the north.

Austinmer is characterised by predominantly low density detached dwelling-houses with some medium density housing, restricted to the coastal part of the village. Detached dwelling-houses predominantly comprise of a mix of one to two storey weatherboard and brick dwelling-houses with pitched roof lines. Newer two storey contemporary styled consisting of rendered brick and weatherboard dwellings with varied roof forms have been constructed along both the coastal strip and upper slopes and foothills of the escarpment.

Brush box street trees also line some streets in Austinmer which add to its leafy village character.

…

Desired Future Character

The village atmosphere of Austinmer should be retained and the existing retail centre should remain relatively ‘low key’.

Austinmer should retain its low density leafy seaside character and any new residential development should not dominate the scenic environmental quality of the coastal strip and forested escarpment. Dwellings should be generally one to two storeys in height and be designed to retain the nature attributes of the immediate locality.

Any new dwellings or major alterations and additions to existing dwellings should be designed to minimise the scale and bulk of the development through well-articulated building forms. Individually designed dwellings with weatherboard or colourbond facades with lighted coloured or light or mid grey finishes are preferred for properties along the coastal strip. The rooflines for dwellings along the coastal strip may either be flat, curved or gently pitched, depending upon existing view sheds from neighbouring properties. In some cases, split-level or varied setbacks for two storey dwellings and sloping flat or gently pitched roof forms may be necessary, to maximise view sharing opportunities for neighbouring dwellings.

…”

Expert evidence

  1. In relation to the number of storeys proposed by the Amended Development Application, the town planning experts, being Mr Bennett for the applicant and Ms Richards for the respondent, agree that pursuant to the definition of “storey” in the WDCP, the proposed garage/basement is deemed to be a “storey”, thereby making the proposed development three storeys.

  2. Mr Bennett and Ms Richards also agree that s 4.1 of Chapter B1 of the WDCP provides that “the maximum building height is set by the Local Environmental Plans generally, a). R2 Low Density Residential Zones permit a maximum height of 9m – a maximum of 2 storeys”. They also agree that s 4.1 of the WDCP goes on to state that “the number of storeys acceptable will be dependent on the surrounding development, the future desired character of the area, the impacts that the proposed development has on solar access, privacy, visual amenity and overshadowing.”

  3. On the issue of storeys, Mr Bennett is of the view (as set out in the Joint Town Planning Report (Ex 5)) that:

  1. Notwithstanding the definition of “storey” in the WDCP, the building height is more properly regulated under the terms of the WLEP, with the WDCP providing additional guidance. The Amended Development Application complies with the 9m height limit prescribed by the WLEP.

  2. The proposed development is for all intents and purposes, a two-storey building with a basement garage and will present as a two-storey building from the majority of locations, similar to most of the properties on the northern side of Boyce Avenue. This is particularly because there are no habitable rooms, doors or windows at the garage/basement level that would present to the street as a separate storey.

  3. The existing dwelling directly opposite the Subject Land, 60 Lawrence Hargrave Drive, (60 LHD) is a two-storey development with basement garage that would similarly be classified as a three-storey development under the WDCP.

  4. The proposed development does not have adverse impacts on solar access, privacy, visual amenity or overshadowing, and as a result the three storeys proposed is acceptable under s 4.1 of the WDCP.

  1. Ms Richards is conversely of the view (as set out in the Joint Town Planning Report (Ex 5)) that:

  1. The proposed development does not comply with the WDCP which only permits up to two storeys in the R2 Low Density Residential zone.

  2. The proposed development is three storeys in height and will present as three storeys. The garage/basement level constitutes a storey and appears as a storey whether or not it has habitable rooms, doors etc. As viewed from the street and surrounds, the development will evidently be three storeys and the garage/basement level highly visible.

  3. The existing development in the vicinity of the Subject Land along the north-western section of Boyce Avenue (seven properties numbered 1A to 11 Boyce Avenue) consist of one and two-storey residential dwellings with access via the rear laneway (Foreman Lane or Maxwell Road). None of these dwellings are three storeys in height and none have access via Boyce Avenue.

  4. There are many differences between 60 LHD and the Subject Land such that they should not be compared. For example, 60 LHD is a significantly constrained site that fronts a classified road and has no other means of access other than from Boyce Avenue, is irregular in shape and narrow in width, and has road frontages to three boundaries. Further, due to the topography of Boyce Avenue and 60 LHD, the basement garage at that site sits lower than street level and lower in overall height than the Subject Land, thereby minimising impacts.

  1. In relation to consistency with, or impacts to, existing and future character, the parties’ town planning experts, Mr Bennett and Ms Richards, agree that:

  1. a key objective of Chapter B1 of the WDCP is “to encourage new residential development that is sympathetic to the existing streetscape and neighbourhood character of a particular locality”; and

  2. section 3.13 of Chapter D1 of the WDCP sets out the existing and desired future character statement of the Austinmer seaside village in which the Subject Land is situated.

  1. In Mr Bennett’s view (as set out in the Joint Town Planning Report (Ex 5)), the Amended Development Application is “sympathetic to the existing streetscape and neighbourhood character of this particular locality” on the basis that:

  1. The terms “streetscape”, “neighbourhood character”, and “locality”, should not be restricted to a short section of the north-western side of Boyce Avenue and a broader framework for assessment should be adopted.

  2. The proposed development presents as a two-storey building, as do the majority of the existing properties in the vicinity of the Subject Land (including those long the north-western section of Boyce Avenue).

  3. The proposed dwelling is similarly situated within Lot 3 and presents a consistent front setback from Boyce Avenue.

  4. The proposed development actually improves the natural setting and visual amenity of the area by replacing the overgrown planting of the existing Road Reserve embankment and replacing it with more appropriate landscaping and native species that is sympathetic with the landscape planting on other properties immediately adjoining and elsewhere along Boyce Avenue.

  5. The basement garage will not present as a dominant feature within the streetscape and will instead achieve a sympathetic integration. When viewed from the junction of Boyce Avenue and Lawrence Hargrave Drive, the visual impact of the proposed development is one of a well landscaped embankment in keeping with its immediate and broader setting.

  6. The existing embankment within the Road Reserve presently comprises a series of different treatments, both in the approach to landscaping and the existence of a number of driveways (with the existing driveways being on the opposite side of Boyce Avenue to the Subject Property).

  7. Other development in the locality has been approved with three storeys and with access provided through an embankment, for example 60 LHD, thereby indicating the Amended Development Application is consistent with the existing streetscape and character of the locality.

  1. In relation to the “existing character” of Austinmer, as set out in Chapter D1 of the WDCP, Mr Bennett is of the view that the proposed development:

  1. comprises a low density detached dwelling house;

  2. presents predominantly as a two-storey dwelling of appropriate bulk and scale;

  3. is contemporary in style consisting of rendered brick, with varied roof forms; and

  4. proposes a landscape treatment that contributes to the leafy village character of the locality.

  1. In relation to the “future character” of Austinmer, as set out in Chapter D1 of the WDCP, Mr Bennett is of the view that the proposed development:

  1. retains the “village atmosphere”;

  2. retains the low density leafy seaside character;

  3. does not dominate the scenic environmental quality of the coastal strip;

  4. presents predominantly as two-storey in height;

  5. has been designed to retain the natural attributes of the Subject Site and locality, including the Illawarra Flame Tree;

  6. has been designed to be sympathetic with neighbouring properties in terms of scale and bulk;

  7. is an individually designed dwelling, with light coloured finishes; and

  8. has a roof form that assists view sharing opportunities for neighbouring dwellings.

  1. In Ms Richards’ view (as set out in the Joint Town Planning Report (Ex 5)), the Amended Development Application is “not sympathetic to the existing streetscape and neighbourhood character” on the basis that:

  1. The existing development on the north-western section of Boyce Avenue (seven properties numbered 1A to 11 Boyce Avenue) consist of one and two-storey residential dwellings with access via the rear laneway (Foreman Lane or Maxwell Road). None of these dwellings are three storeys in height and none have access via Boyce Avenue.

  2. The embankment in the Road Reserve fronting these properties is visually prominent as it is 4 to 5m above the street level. This embankment is generally intact (except for variations in landscaping treatments) with no vehicular access through. The embankment, and dwellings sitting above the embankment (including the Subject Land), are visible from Boyce Avenue and the junction at Boyce Avenue and Lawrence Hargrave Drive, and also further along Lawrence Hargrave Drive.

  3. The proposed development is not sympathetic to, or compatible with, the existing or desired future streetscape or character of the locality because it is three storeys in height, presents excess bulk and scale by the addition of the garage/basement level and is incongruous with other nearby development in this part of Boyce Avenue.

  4. The garage/basement will present as excessive bulk and scale and a dominant feature within the streetscape where there is a largely intact embankment. The proposed new garage/basement level will have a 3.6m high opening and garage door for vehicular access, excavated into a steep vegetated embankment. The alternative and available access via Foreman Lane does not present these adverse impacts to the streetscape and surrounds.

  5. The existing site constraints of the Subject Land, including the topography of the Subject Land, the embankment, the setting and attributes, including existing access from Foreman Lane, have been disregarded. The proposed development therefore does not minimise the extent of cut and fill and is unnecessary and undesirable.

  6. It is acknowledged that there are other properties in the locality that are three storeys in height (with garage/basement level), including, in particular, 60 LHD. However, the proposed development can be distinguished from 60 LHD as that property fronts a classified road and has no other means of access other than from Boyce Avenue. Further 60 LHD is significantly constrained because of its irregular shape, narrow width and three road frontages. Notwithstanding this, the basement garage at 60 LHD sits lower than street level and lower in overall height that the Subject Site, minimising impacts. Further, the embankment in the road reserve on this side of Boyce Avenue (south-eastern side) is substantially lower than the Road Reserve fronting Lot 3.

  1. In relation to the “existing character” of Austinmer, as set out in Chapter D1 of the WDCP, Ms Richards is of the view that the proposed development:

  1. is three storeys in height (not one to two storeys described in the “Existing Character” statement); and

  2. requires substantial excavation into the Subject Land, including Council Road Reserve, to provide a basement garage (being a non-compliant storey) with a 4.8m wide driveway, entry and retaining wall and landscape sandstone walls is not considered to contribute to the leafy village character of the area, does not minimise bulk and scale and does not contribute to a visually appealing environment.

  1. In relation to the “desired future character” of Austinmer, as set out in Chapter D1 of the WDCP, Ms Richards is of the view that the proposed development:

  1. is three storeys in height and not the one to two storeys that is described in the “Desired Future Character” statement;

  2. is, in the circumstances of the Subject Land and its surrounds, overbearing and dominates the scenic environment;

  3. requires significant excavation into Lot 3 and the Road Reserve to create a 4.8m wide driveway, 3.6m high garage door, retaining walls and landscape sandstone walls in place of a vegetated embankment, does not result in the retention of the leafy seaside character or retain the natural attributes of the immediate locality. The proposal breaks the continuity of the streetscape and provides a development that is incongruous to its surrounds;

  4. ignores the existing topography, site constraints and existing access; and

  5. is not deemed to be sympathetic with neighbouring properties in terms of scale and bulk.

  1. In relation to setbacks, the town planning experts agree that:

  1. Section 4.2.2(b) of Chapter B1 of the WDCP provides that “garages and carports must be setback a minimum of 5.5 metres to enable a vehicle to park or stand in front of the garage or carport”. The Amended Development Application does not meet this requirement. However, the issue of adequate space to enable a vehicle to park or stand in front of the garage entry may be addressed by the transport experts.

  2. The Amended Development Application results in a variation to the side setback control under s 4.3.2(1) and (2) of the WDCP in the area of the south-western elevation (where the wall height exceeds 7m but a side setback of less than 3m is proposed). However, this matter may be addressed by provision of additional information, including a variation request, as required under the WDCP, addressing the objectives of the control and by demonstrating that the variation will not result in adverse impacts.

  1. In Mr Bennett’s view, notwithstanding the non-compliance with the 5.5m garage setback requirement in the WDCP, the proposed development does achieve the objectives of s 4.2.1. This is because, in this particular case, the basement garage will be directly under the house and generally out of site, and it would result in a perverse outcome in the basement garage was set back further into the Subject Land.

  2. In Ms Richards’ view, the proposed development does not meet the objectives of s 4.2.1 of the WDCP because the:

  1. proposed garage/basement is out of character with the north-western side of Boyce Avenue, disrupting the continuity of setbacks and scale of development and thereby adversely impacting on the streetscape;

  2. site constraints have been disregarded with suitable access currently available via Foreman Lane; and

  3. there is inadequate space for a hardstand area in front of the garage without imposing on movement corridors.

  1. In relation to fencing, the town planning experts agree (as set out in the Joint Town Planning Report (Ex 5)) that:

  1. The proposed development proposes a variation to the side boundary fence height adjacent to the swimming pool on the south-western side boundary and inadequate justification or details have been provided for this.

  2. A 1.8m high boundary fence is indicated to the secondary frontage to Foreman Lane and details of the materials and elevation have not been provided.

  3. Inadequate details have been provided in regard to any front fence proposed to Boyce Avenue.

Applicant’s submissions

  1. The applicant submits that the Amended Development Application complies with all planning controls in the WLEP and WDCP.

  2. The applicant further submits that there is no desired future character statement for Austinmer in the WLEP and as per the decision of Preston CJ in Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 (SJD), the desired future character of an area cannot be derived from a Development Control Plan absent express provisions in the parent Local Environmental Plan. As was the case in SJD, the WLEP does not expressly refer to the provisions of the WDCP for the purpose of defining “desired future character”. Therefore, the existing character of the locality is what is seen.

  3. The applicant states in its written submissions that “an analysis of the buildings within the locality has been done”, which is stated to be “confirmed from site visit, visual inspection and local knowledge (Mr Steven House), 25 February 2024”.

  4. The applicant goes on to state that this analysis demonstrates that:

  1. 32% of properties within the “broader locality” of the Subject Land comprise of three-storey dwellings of either three floors of residential habitation or two floors of residential habitation and a basement/garage level; and

  2. 58% of properties within the “immediate locality” comprise three-storey dwellings of either three floors of residential habitation or two floors of residential habitation and a basement/garage level.

  1. Therefore, the applicant submits (applicant’s written submissions at [2.6(i)]) that the Court should conclude that three-storey development “is very much part of the existing character of the locality”, and that this is reflected in the 9m maximum building height standard in the WLEP.

  2. In relation to the visual appearance of the basement/garage level, the applicant confirms that the Amended Development Application reduces the proposed height of the garage opening to 2.7m down from 3.6m. The applicant submits that many properties on Boyce Avenue have direct vehicular access to a garage from the street, including 60 LHD and 62 Lawrence Hargrave Drive and many other properties in Austinmer generally.

  3. The applicant goes on to state in its written submissions (at [2.7(f)]) that the existing embankment in the Road Reserve is degraded with an old retaining wall, flight of stairs and vegetation comprised of exotic weeds. The proposed garage/basement level will be landscaped and improve the interface with 3 Boyce Avenue. The applicant submits (at [2.7(i)]) that “the visual impact of the development, including the basement garage, is of sympathetic integration although it is the first development on the north west side of Boyce Avenue that seeks the utility, amenity and safety of basement vehicle garaging” and that the proposed development will “present as a two storey building, above a basement consistent with urban low density residential development”.

  4. The applicant’s written and oral submissions did not address the issues raised by the respondent regarding setbacks or fencing.

Respondent’s submissions

  1. The respondent submits that the provisions of the WDCP are a relevant consideration in the determination of this appeal and that the R2 low density residential objectives, controls, and existing and desired future character provisions relating to Austinmer should be considered.

  1. The respondent goes on to state (respondent’s written submissions at [32]) that the context of the Subject Land, being the existing developments in the vicinity of the Subject Land along the north-western side of Boyce Avenue:

  1. consists of one and two-storey residential dwellings with access via the rear laneway (Foreman Lane);

  2. presents consistent front setbacks from Boyce Avenue; and

  3. features embankments that are generally intact.

  1. It is the respondent’s contention that the existing character of Boyce Avenue along its north-western side is clearly distinguishable from its south-western side due to the existing natural features, namely the embankment.

  2. The respondent submits that the proposed development is not sympathetic or compatible with the existing streetscape and character because it presents as three storeys in height, presents excess bulk and scale by the addition of the garage/basement level (which will present as a dominant feature within the streetscape where there is currently a largely intact embankment), and is incongruous with other nearby development in this part of Boyce Avenue. This results in a detrimental impact on the streetscape and an adverse visual impact.

  3. The respondent states that the embankment forms part of the character of the area and as set out in the WDCP, the character of an area is not to be confused with its attractiveness.

  4. Further, the respondent contends that there is more suitable existing alternative vehicular access available from Foreman Lane, which does not present the same adverse impacts to the streetscape, amenity and surrounds.

  5. Finally, the respondent submits that the Amended Development Application should be refused on the basis that it fails to demonstrate compliance with:

  1. the minimum front setback requirements at garage/basement level pursuant to Ch B1, s 4.2.2(b) of the WDCP and fails to demonstrate compliance with the objectives in Ch B1 s 4.2.1(a)-(f) of the WDCP; and

  2. the fencing requirements in Ch B1 s 4.9.2(2)-(4), (6), (9) and (11)-(14) and s 4.9.1(a)-(g) of the WDCP.

Consideration

  1. In relation to the issue of storeys, I am satisfied that the Amended Development Application, if approved, would constitute a three-storey development for the purposes of the WDCP. I accept Ms Richards’ evidence that it would present as a three-storey development when viewed from Boyce Avenue as the garage/basement level will be highly visible when viewed from the street.

  2. It is the clear intention of the WDCP to generally limit residential development in the local government area to two storeys (as per s 4.1(a) of the WDCP) although it is noted that the number of storeys acceptable will be dependent on the surrounding development, the character of the area, the impacts that the proposed development has on solar access, privacy, visual amenity and overshadowing. This qualification, in conjunction with the height limits prescribed by the WLEP, indicate that three storeys can be acceptable in the Austinmer locality, subject to the merits and location of the particular development.

  3. In terms of whether three-storey residential development is consistent with the existing character and streetscape of the locality in which the Subject Land is situated, the town planning experts gave conflicting evidence. Both town planning experts agree that there are examples of three-storey dwellings in the vicinity of the Subject Land, however, the quantity or prevalence of three-storey dwellings is disputed.

  4. Starting with the north-western side of Boyce Avenue comprising 1A to 11 Boyce Avenue (being the side of Boyce Avenue in which the Subject Land is located), Ms Richards was of the view that all of the existing dwellings were one or two-storey. However, Mr Bennett stated in cross examination that many of the dwellings in this location were in fact three-storey. When asked if these properties presented a uniform two-storey appearance, Mr Bennett responded (T p 93 line 12-14):

“No. Depends on which angle you take it from. So it depends if you take it from the street or from the front garden. So from the front garden, many of them present as three-storey.”

  1. When asked to confirm that these properties present as two-storey from the road at the bottom of the embankment on Boyce Avenue (as opposed to standing in the front garden of the properties), Mr Bennett said “I can show you some places where you can” and took the Court to photos of 7 Boyce Avenue and 62 Lawrence Hargrave Drive.

  2. However, Mr Bennett says earlier in the Joint Town Planning Report (Ex 5, p 10 [2.26]), that “the proposed development presents as a two storey building – as do the majority of the existing properties in the vicinity of the Site (including those along the north-western section of Boyce Avenue)”.

  3. I have considered the analysis contained within the applicant’s written submissions which is stated to be “confirmed from site visit, visual inspection and local knowledge (Mr Steven House), 25 February 2024”. It is not definitive as to the author and does not comprise a proper planning analysis of what has been approved by the respondent council or whether these dwellings are in fact three storeys or whether they present as three storeys and from what vantage point. I have therefore provided significantly more weight on the evidence of the town planning experts as set out in the Joint Town Planning Report and their oral evidence.

  4. Based on the evidence, I accept that some of the dwellings along the north-western section of Boyce Avenue (being properties 1A to 11 Boyce Avenue) present as three storeys when viewed from within the boundaries of those properties. These properties primarily include 7 Boyce Avenue (as per the photograph taken from the property in Ex D, p 27) and 1A Boyce Avenue (when viewed from Maxwell Road as per Ex D, p 16). However, having regard to the evidence of the planners and my own observations from the site view, I accept Mr Bennett’s written evidence that the majority of the existing properties along the north-western section of Boyce Avenue, present as two storeys when viewed from the street at Boyce Avenue.

  5. I am therefore satisfied that the north-western section of Boyce Avenue, presents as a row of primarily two-storey dwellings sitting atop a large embankment with no structural breaks in the continuity of that embankment, save for various stairs and retaining walls.

  6. Turning to the other side of Boyce Avenue and locality more generally, I accept that there are instances of dwellings presenting as three storeys in the locality based on the evidence of the experts, the photographs contained within Ex D, tab 1, and walking the locality at the site view.

  7. In relation to desired future character, I have considered section 3.13 of Chapter D1 of the WDCP which states “dwellings should be generally one to two storeys in height and be designed to retain the nature attributes of the immediate locality”.

  8. Noting the decision of Preston CJ in SJD, I am satisfied that the desired future character for Austinmer as set out in s 3.13 of Chapter D1 of the WDCP is a relevant, although not determinative matter to which I have had regard in the determination of this appeal.

  9. In relation to the visual impacts associated with the garage/basement level and their consistency with, or impacts to, streetscape and character, I accept that the other side of Boyce Avenue has multiple driveways excavated into the embankment on that side of the street. However, I accept Ms Richards evidence, which is consistent with my observations from the site view, that the embankment on the other side of Boyce Avenue to Lot 3 is significantly lower than the embankment which adjoins Lot 3. Further, the embankment which adjoins Lot 3 is intact, in the sense that no driveways have been cut into it, such that the two sides of Boyce Avenue should not necessarily be treated the same. Further, it does not appear that there would be any other vehicular access available to the properties on the other side of Boyce Avenue (not having rear lane access).

  10. The embankment adjoining Lot 3 creates a consistent and continuous visual line on that side of the road. If the proposed development was approved and a 4.8m wide driveway constructed with a garage and basement level on Boyce Avenue, I am satisfied that this would be a significant departure from the existing streetscape. For completeness, I hold this view regardless of whether the garage opening is 2.7m in height as per the Amended Development Application or 3.6m as per the plans considered in the Joint Town Planning Report.

  11. Section 2 of Ch D1 of the WDCP expressly provides that “the character of a particular suburb should not be confused with its attractiveness since all suburbs have an existing character”. I accept the respondent’s submission that the embankment “informs the existing character” regardless of whether it comprises fill, is natural, weed infested or otherwise, and the guidance provided by s 2 of Ch D1 of the WDCP is a relevant consideration in this case.

  12. I accept Ms Richards’ evidence that 60 LHD can be distinguished from the Subject Land such that it should not be used as a precedent to support the proposed development in this case. This is primarily because 60 LHD is significantly constrained because of its irregular shape, narrow width and three road frontages (one being a classified road). Further, I accept Ms Richards’ evidence that the embankment in the road reserve on this side of Boyce Avenue (south-eastern side) is substantially lower than the Road Reserve fronting Lot 3.

  13. Therefore, although a three-storey residential development may be appropriate in the Austinmer locality in certain circumstances, the merits of the Amended Development Application do not support a three-storey dwelling in this case. This is because I am satisfied that the north-western section of Boyce Avenue presents as a row of primarily two-storey dwellings sitting atop a large embankment with no structural breaks in the continuity of that embankment, save for various stairs and retaining walls. It is appropriate to distinguish the north-western section of Boyce Avenue from the other side for the purposes of establishing the streetscape relevant to the Subject Land, due to the height and structural continuity of the embankment within the Road Reserve on the north-western side when compared with the significantly lower and inhomogeneous embankment on the other side of Boyce Avenue.

  14. The proposed development, if approved, would be a significant departure from the existing streetscape in that it would present as a three-storey development when viewed from the street, and the proposed excavation into the embankment to facilitate a garage/basement will present as excessive bulk and scale and a dominant feature within the streetscape where there is a largely intact embankment on the north-western side.

  15. Finally, I accept the respondent’s submissions that the Amended Development Application fails to adequately address setback and fencing requirements in the WDCP, although I note the agreement of the town planning experts that these issues could likely be resolved through the provision of further information.

  16. Therefore, I accept the respondent’s submission that the Amended Development Application should be refused as the proposed development is not sympathetic to the existing or desired future streetscape and neighbourhood character, and the garage/basement level is out of character and context with the surrounds, presenting an unnecessary and unacceptable bulk and scale in the context of the Subject Land.

Issues raised regarding Foreman Lane

  1. As I have decided that the appeal must fail on its merits having regard to streetscape and character, it is not necessary to consider the parties’ submissions in relation to traffic issues. However, I note for completeness, that the applicant’s case asserted that the existing access off Foreman Lane was “unsatisfactory”, “not convenient” and “unsafe” and that this was a primary reason why access should be provided from Boyce Avenue.

  2. To this end, I accept the evidence of the experts that Foreman Lane does not comply with contemporary standards and would likely not have been constructed if a new residential subdivision was created today (see for example, T 5 March 2024 p 28 line 46 to 49). I accept the applicant’s evidence that due to the narrowness of the lane and lack of turning circle at the end of the lane, access via Foreman Lane can be inconvenient at times.

  3. However, I also accept the evidence of Mr Bevan that Foreman Lane is an “existing situation” which presently services approximately seven properties. There was no evidence before the Court that the use of Foreman Lane was so unsafe that it should not be utilised by the Subject Land or any of the existing properties going forward. I accept the evidence of Mr Bevan that the carriageway width of Foreman Lane “would allow safe movement of vehicles” (T 5 March 2024 p 49 (33)-(34)), is “sufficiently designed for the amount of traffic that is using it at the moment” (T 5 March 2024 p 49 (50)) and “will continue to function okay” (T 5 March 2024 (11)-(12)).

  4. Therefore, I do not accept the applicant’s submission that the access provided by Foreman Lane is so inadequate or unsafe that alternative access must be provided through Boyce Avenue.

Submissions

  1. The Development Application, as lodged, was notified between 15 and 29 August 2023. One written submission objecting to the proposed development was received in response to the notification of the proposal. This objection primarily related to issues of solar access, major excavation for the basement garage, dust control, noise from equipment, fireplace fuel, landscaping and wind impacts.

  2. In addition, two different residents addressed the Court at the on-site view in support of the Development Application, primarily in relation to the design of the development, respectful approach to view sharing, and reducing traffic impacts on Foreman Lane.

  3. The written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.

Conclusion

  1. By way of conclusion and summary, the appeal should be dismissed on the basis that:

  1. The inferred historical filling of Lot 3 is a potentially contaminating activity, and the applicant has not provided adequate information as to whether Lot 3 is contaminated for the purposes of s 4.6 of the RH SEPP.

  2. Insufficient information has been provided to allow the Court, as the consent authority in this case, to consider the matters listed in cl 7.6(3) of the WLEP “before granting development consent for earthworks”.

  3. The Amended DA, if approved, would present as a three-storey dwelling which would be unsympathetic and inconsistent with the existing visual presentation to the street of the other dwellings on the north-western side of Boyce Avenue (which largely present as two storeys).

  4. It is the stated intention of the WDCP to generally limit residential development in the local government area to two storeys although it is noted that the number of storeys acceptable will be dependent on consideration of a number of factors (as per Ch B1 s 4.1(a) of the WDCP). Further, it is the stated “desired future character” of the Austinmer area that “dwellings should be generally one to two storeys in height and designed to retain the nature attributes of the immediate locality” (Ch D1 s 3.13 WDCP). As set out above at [107], although the provisions in the WDCP are not in themselves determinative, they are relevant considerations to which I have attributed weight in the determination of this appeal. Having regard to the merits of the Amended Development Application, three storeys is not supported in the circumstances of this case.

  5. The north-western side of Boyce Avenue can and should be distinguished from the other side of Boyce Avenue due to the 4m high intact embankment which forms a key feature in the streetscape. This key feature should not be disturbed to provide vehicular access when alternative vehicular access presently exists via Foreman Lane.

  6. The proposed excavation into the embankment to facilitate a garage/basement will present as excessive bulk and scale and a dominant feature within the streetscape where there is a largely intact embankment.

  7. The existing access via Foreman Lane is not so unsafe or inconvenient that alternative access via Boyce Avenue is necessary.

Orders

  1. The Court orders that:

  1. The appeal is dismissed.

  2. Development application no. DA-2022/852 for the demolition of the existing dwelling and associated structures and construction of a dwelling house with basement garage and store, swimming pool, retaining walls, site works and landscaping on Lot 3 in Deposited Plan 8096, known as 3 Boyce Avenue, Austinmer, and the road reserve adjacent to that land, and new vehicular access via Boyce Avenue involving works within the road reserve, is refused consent.

  3. The exhibits are returned, except for A, B, 1, 3 and 5.

N Targett

Acting Commissioner of the Court

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Decision last updated: 27 May 2024

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