Terra Ferma Pty Ltd v Sutherland Shire Council

[2022] NSWLEC 1522

Land and Environment Court

New South Wales

Medium Neutral Citation:

TERRA FERMA PTY LTD v Sutherland Shire Council [2022] NSWLEC 1522

Hearing dates:

26 and 27 May 2022

Date of orders:

27 September 2022

Decision date:

27 September 2022

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court orders that:

(1) The appeal is dismissed.
(2) Development consent for Development Application number DA21/0842 for the demolition of existing dwellings and associated structures, retention of existing improvements in the foreshore area, including the swimming pool, boatshed and associated structures, tidal pool and construction of a Multi Dwelling Housing Development is refused.
(3) The exhibits are returned with the exception of Exhibits A and C.

Catchwords:

Medium Density Housing – Clause 4.6 – Character – Amenity – Privacy

Legislation Cited:

Environmental Planning and Assessment Act 1979, cll 4.6, 8.7

Land and Environment Court Act 1979, s 34

Sutherland Shire Local Environmental Plan 2015, cll 2.3, 4.3, 4.6, 6.7, 6.9, 6.14, 6.16, 6.17

Cases Cited:

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Sutherland Development Control Plan 2015

Category:

Principal judgment

Parties:

Terra Ferma Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
S Berveling SC (Applicant)
J Cole (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2021/296924

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Terra Ferma Pty Ltd (Applicant) against Sutherland Shire Council (Respondent). The application is a proposal for a Multi Dwelling Housing development comprising of seven (7) dwellings with associated parking.

2. As part of the Appeal process the Court directed the parties to a conciliation process under s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation, held on 4 February 2022, did not result in an agreement between the parties.

3. I have concluded, for the reasons set out in this judgment, that the merits of the matter warrant dismissal of the Appeal. There is a deficiency in amenity relating to the internal relationship between several townhouses in terms of scale, form, landscaping, and privacy that are unsatisfactory.

The Proposal

4. The Development Application seeks consent for the demolition of existing dwellings and associated structures, retention of existing improvements in the foreshore area, including the swimming pool, boatshed and associated structures, tidal pool, and construction of a Multi Dwelling Housing development.

5. The proposal is summarised as follows:

• Retention of the swimming pool, boatshed, retaining walls, landscaping and water access within the foreshore building area.

• Retention of the existing Right-of-Way (ROW).

• Demolition of the dwelling on No. 12A plus tennis court and swimming pool and dwelling of No. 12 and fibro garage, clad garage, retaining walls and stairs.

• Construction of seven (7) large, detached townhouses stepping down the Site in four rows (from west to east) comprising four (4) dwelling types.

• New driveway to connect and to match existing ROW access to Dwellings 3-8 including landscaping on both sides.

• Excavation of building footprints for seven (7) dwellings and surrounds.

• Landscaping of private open space areas, including plunge pools, new pathways and minor landscape works of foreshore area.

• Stormwater drainage, including works within the foreshore area.

What are the main issues?

6. The proposal includes a written request to vary the Development Standard relating to Height of Buildings contained in cl 4.3 of the Sutherland Shire Local Environmental Plan 2015 (SSLEP 2015). The height, in terms of the cl 4.6 written request, remains an issue between the parties. As a jurisdictional issue, I have dealt with this prior to an assessment of the merits of the application. The merit assessment then considers the key aspects of character and amenity.

7. The other contentions that remain contested, and which are key to my decision on the Application, are summarised as follows:

1. Context and Neighbourhood Character (Contention 2) – This contention goes to whether the proposed development is out of character with the existing and desired future character of the area. The Respondent says that the proposal constitutes an overdevelopment of the Site with resultant impacts on internal and external amenity. This includes unacceptable impacts to the landscape character of the Site and locality.

2. Amenity (Contention 5) – This contention particularises various concerns relating to the adverse impact on amenity arising from bulk and scale, height and setbacks. The contention raises concerns regarding the amenity for future occupants of the development.

8. The parties rely on the following Joint Experts Reports:

1. Town Planning - Joint Expert Report prepared between G Chapman (Applicant) and J Vescio (Respondent).

2. Arboriculture - Joint Experts Report prepared by Ross Jackson (Applicant) and Fabian Hurst (Respondent).

3. Landscaping - Joint Experts Report prepared by Robert Frew (Applicant) and Fabian Hurst (Respondent)

4. Traffic and Parking - Joint Experts Report prepared by Robert Varga (Applicant) and Grant Rayner (Respondent).

The Site and Locality

9. The Site is legally described as Lot 4 in DP 24698, Lot 50 in DP 1042715, and Lot 51 in DP 2042715.

10. The Site is a battle-axe allotment, of irregular shape with a site area of 5,086m² excluding the area below Mean High Water Mark (MHWM) and 5,560m² inclusive of that area (according to the survey). The Site has an allotment width of 41.825m at the western edge of the Site, a 9.145m width at the boundary fronting Gunnamatta Bay and, a street boundary to Gunnamatta Road of 8.25m.

11. The Site is accessed via a crossover from Gunnamatta Road and a 3.5m wide driveway with approximately 4m wide landscape strip (which contains four (4) canopy trees). The access handle serves three properties being, No. 10 Gunnamatta Road on the northern side of Site and the two dwellings that comprise the Site (No. 12 and No. 12A Gunnamatta Road).

12. The Site has a fall from the Gunnamatta Road boundary (RL17.85m Australian Height Datum (AHD)) to the MHWM of Gunnamatta Bay (RL1.50m AHD) of approximately 16.35m over a distance of approximately 200m (to MHWM).

13. The southern side of the main body of the Site has a fall from the south-western corner of Lot 4 (RL15.28m AHD) to the MHWM of Gunnamatta Bay (RL1.50m AHD) of approximately 13.8m over a distance of approximately 141.5m (to MHWM).

Objector Submissions

14. The Development Application was notified for a period of 21 days. Thirty two submissions were received by Council as a result of the notification. The matters raised in submissions are summarised in the Statement of Facts and Contentions.

15. A further notification period was undertaken after amendments to the Application. A further six (6) submissions were received on the Amended Application. The submissions were principally concerned with density, traffic, parking, privacy, tree species selection on foreshore and, inadequate ecology/environmental reporting.

16. At the commencement of the onsite view, oral evidence was provided from adjoining residents in respect to concerns regarding the development. These concerns related to view loss (through landscaping in the foreshore area) and issues relating to traffic, parking and servicing of the Site.

What is the relevant Assessment Framework?

17. The Site is zoned part R2 – Low Density Residential and Part W2 Recreational Waterways pursuant to the SSLEP 2015.

18. I have had regard to the objectives of the zone in determining the Development Application (cl 2.3 (2) SSLEP 2015). They are as follows:

Zone R2 Low Density Residential

1 Objectives of zone

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

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

To protect and enhance existing vegetation and other natural features and encourage appropriate bushland restoration particularly along ridgelines and in areas of high visual significance.

To allow the subdivision of land only if the size of the resulting lots retains natural features and allows a sufficient area for development.

To ensure the single dwelling character, landscaped character, neighbourhood character and streetscapes of the zone are maintained over time and not diminished by the cumulative impact of multi dwelling housing or seniors housing.

19. A portion of the Site is identified within the Riparian Lands and Watercourses Map and is therefore subject to the requirements of cl 6.7 of the SSLEP 2015. Clause 6.7 sets out matters for consideration, prior to granting of development consent, on land to which this clause applies.

20. The development is subject to the SSLEP 2015 requirements for Height of Buildings (the Height) which is a Development Standard pursuant to cl 4.3 of SSLEP 2015. Whilst there is a broad height requirement for development across the R2 Zone, cl 4.3(2D) adds another layer of height control for Multi Dwelling Housing and is a relevant Development Standard for Height in this Appeal. The relevant clauses are reproduced below:

4.3   Height of buildings

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

(a)   to ensure that the scale of buildings:

(i)  is compatible with adjoining development, and

(ii)  is consistent with the desired scale and character of the street and locality in which the buildings are located or the desired future scale and character, and

(iii)  complements any natural landscape setting of the buildings,

(b)   to allow reasonable daylight access to all buildings and the public domain,

(c)   to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion,

(d)   to ensure that the visual impact of buildings is minimised when viewed from adjoining properties, the street, waterways and public reserves,

(e)   to ensure, where possible, that the height of non-residential buildings in residential zones is compatible with the scale of residential buildings in those zones,

(f)   to achieve transitions in building scale from higher intensity employment and retail centres to surrounding residential areas.

…

(2D)  Despite subclauses (2) and (2A), the maximum height for multi dwelling housing on an internal lot in Zone R2 Low Density Residential and Zone R3 Medium Density Residential is 5.4 metres.

21. The Site is affected by a Foreshore Building Line. Accordingly, cl 6.9 of the SSLEP 2015 is a relevant consideration in this matter.

22. The Site is categorised as “J” on the Landscape Area Map of the SSLEP 2015 and therefore, pursuant to cl 6.14 of the SSLEP 2015, an assessment is required of the Landscaped Area.

23. The SSLEP 2015 requires several Urban Design considerations. In particular, there are specific clauses related to Urban Design at cll 6.16 and 6.17, that I must consider. They read as follows:

6.16 Urban design—general

(1) In deciding whether to grant development consent for any development, the consent authority must consider the following:

(a) the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained, by the development,

(b) the extent to which any buildings are designed and will be constructed to:

(i) strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and

(ii) contribute to the desired future character of the locality concerned,

(c) the extent to which recognition has been given to the public domain in the design of the development and the extent to which that design will facilitate improvements to the public domain,

(d) the extent to which the natural environment will be retained or enhanced by the development,

(e) the extent to which the development will respond to the natural landform of the site of the development,

(f) the extent to which the development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas,

(g) the principles for minimising crime risk set out in Part B of the Crime Prevention Guidelines and the extent to which the design of the proposed development applies those principles.

6.17 Urban design—residential accommodation

In deciding whether to grant development consent for development for the purposes of residential accommodation the consent authority must consider the following:

(a) the extent to which recognition has been given in the design of the development to the needs of the diverse and changing population of Sutherland Shire,

(b) the extent to which any adverse impacts of the development on adjoining land and open space, in terms of overshadowing, overlooking, views, privacy and visual intrusion, will be minimised,

(c) the extent to which the quality of the streetscape concerned will be improved by the development,

(d) the extent to which there will be private open space of a sufficient area and dimensions to enable proposed and required activities,

(e) the extent to which any adverse impacts of the development on adjoining land, in terms of size, bulk, height, scale and siting, will be minimised,

(f) the extent to which the residential accommodation concerned integrates with a well-designed landscaped setting,

(g) any opportunities for the provision of affordable housing.

The Sutherland Development Control Plan 2015

24. The Sutherland Development Control Plan 2015 (SDCP 2015) contains a specific chapter, Chapter 5, which sets out relevant planning guidelines for Multi Dwellings Housing. Part “a” of Chapter 5 deals specifically with Multi Dwelling Housing in the R2 Low Density Residential Zone (at page 1 of Chapter 5). Part “a” is further expanded into various sections dealing with a range of planning objectives and controls.

25. Section 1, Streetscape and Building Form (page 2), provides a series of objectives for the overall form of Multi Dwelling Housing in the R2 zone. Whilst all objectives require consideration, two of these objectives, outlined below, are particularly relevant in assessing the current proposal.

7. Provide for resident amenity.

8. Buildings are to be designed and sited to acknowledge the private open space of surrounding development and spatial character of rear yards. Extensive development should not dominate neighbouring rear yards.

26. The objectives are followed by a series of controls, including the following control relating to design and amenity.

13. Development must be sensitively designed so that it is sympathetic to the amenities and view corridors of neighbouring public and private property and balances this with the amenity afforded to the new development.

27. Section 4 – Landscaping (page 11) includes the following objective relating to landscape outcomes:

2. Provide landscaping treatments which foster attractive outlooks, privacy and private recreation areas of high aesthetic quality.

28. The following control is of relevance to this decision:

7. Any privacy fencing must be appropriately landscaped with screen planting.

29. The objectives for Building Layout, Solar Access and Private Open Space, are contained in Section 5 (page 14). The preamble for this clause provides some context for the objectives and controls. It reads as follows:

“Good design provides a building layout that maximises the natural attributes of the site. Carefully considered building layout and design also creates a higher level of amenity for occupants through enhanced visual and acoustic privacy, passive heating and cooling, attractive outlooks from living spaces, and flexible and useable indoor and outdoor spaces that meet the needs of occupants. Dwelling layouts and room size should be functional and appropriate for the intended purpose and number of occupants.

Ideally, solar access should be maximised in winter and controlled in summer. Daylight consists of both diffused light and direct light. Good levels of daylight in a dwelling improve amenity and reduce the need for artificial lighting. Good levels of daylight can be achieved through the careful consideration of window size, location and proportion.

Quality private space is critical to achieving good residential amenity. Open space of sufficient area and dimensions to enable recreational and outdoor use, landscaping and service functions is needed for all dwellings.”

30. Objective 4 seeks to minimise the impacts of development:

4. Minimise the impacts of ancillary aspects of development on people, building occupants or neighbours, and on the streetscape and the natural environment.

31. Visual and Acoustic Privacy is dealt with in Section 6 of the SDCP 2015 (page 16). This is a key aspect of consideration in this proposal.

32. The objectives are as follows:

6.1 Objectives

1. Ensure a high level of amenity by protecting the acoustic and visual privacy of occupants within dwellings and their associated private open spaces.

2. Ensure dwellings are sited and designed so that visual and acoustic privacy and vibration from outside sources is controlled to acceptable levels.

3. Minimise direct overlooking of windows and private open space so that the amenity of neighbours and intended occupants is respected.

4. Recognise the outlook and views from principal rooms and private open space without compromising visual privacy of others.

33. These objectives are expressed as controls as follows:

1. Locate, orientate and design new development to maximise the provision of visual privacy.

2. Use detailed site and building design elements to increase visual privacy without compromising access to light and air.

3. Living room, dining room and kitchen windows that provide a direct outlook to an adjacent property dwelling which leads to a loss of amenity, needs to consider the following:

a. offset the edge of one window to the edge of the other window by a sufficient distance to limit the views into the adjacent windows; or

b. provide sill heights of at least 1.6m; or

c. have fixed obscure glazing or glass blocks in any part of the window below 1.6m.

d. direct the outlook from all living rooms, dining rooms, bedrooms, kitchens and studies where possible towards the street, private open space on the development site, public open spaces, and waterways.

e. where overlooking of adjacent living rooms, dining rooms, bedrooms, kitchens and studies or private open space is unavoidable then screening elements such as louvres and obscured glass must be used to preserve reasonable visual privacy for neighbours.

Is the variation to the Height of Building Development Standard Acceptable?

34. It is agreed between the parties that there is a breach of the Development Standard pertaining to Height of Buildings.

35. The following series of figures demonstrate the location and extent of the height breach. They are further explained by extracts of the sections, elevations and “views from the sun” filed with the Court, and which give an overall understanding of the form of the development. They collectively provide an understanding of the relationship with the part of the building that breaches the height with the surrounding development.

Figure 2 - Extract from cl 4.6 written request by Chapman Planning

Figure 3 - Extract from cl 4.6 written request by Chapman Planning (TH3)

Figure 4 - Extract from cl 4.6 written request by Chapman Planning (TH4)

36. Clause 4.6 of the SSLEP 2015 provides the Court with the power to grant Development Consent to the development even though the development would contravene the Development Standard found in cl 4.3(2D) of the SSLEP 2015, but that power is subject to conditions.

37. I have a jurisdictional threshold question as to whether the Applicant’s written request to vary the Development Standard should be upheld. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority can exercise the power to grant development consent for development that contravenes a Development Standard.

36. Pursuant to cl 4.6(4)(a), the consent authority, or the Court on Appeal exercising the functions of the consent authority, must be satisfied of both of the matters in cl 4.6(4)(a)(i) and (ii), being:

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

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

39. The first precondition in cl 4.6(4)(a)(i) is that the Applicant’s written request, seeking to justify the contravention of the Development Standard, has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and (b), being:

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

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

Is compliance with the Height Development Standard unreasonable or unnecessary in the circumstances of this case (cl 4.6(3)(a))?

40. Pursuant to cl 4.6(3)(a) of the SSLEP 2015, the Applicant has submitted a written request prepared by Chapman Planning dated 26 May 2022. The written request relies on the first of 5 ways as set out in the decision of Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827. The written request states that compliance with the Development Standard found in cl 4.3(2D) of the SSLEP 2015 would be unreasonable or unnecessary, because the proposed development is consistent with the objectives of the Height of Buildings Development Standard, notwithstanding non-compliance with the standard. The written request, at pages 4 to 6, set out the reasons as to why the proposed development meets the objectives for the Height of Building Development Standard.

41. The written request goes on to say that strict compliance would be unreasonable and unnecessary for the following reasons:

• It is unnecessary to require compliance with the standard as the variation to the 5.4m height standard is confined to the north-eastern corner of the roof form of Townhouse 3 and Townhouse 4 and these elements of the proposal will not result in any significant adverse visual impacts upon the adjoining properties or the public domain, and the variation will not be highly perceptible from adjoining properties or the public domain.

• It is unreasonable to require compliance with the development standard as the proposed variation is a result of the topography of the subject site as the current ground level beneath the varying element – north-eastern corner of Townhouse 3 is partly excavated due to the existing driveway which runs along the northern boundary of the site and there is a change in level east of Townhouse 4. The remaining dwellings have otherwise been designed to conform to the topography of the site in a 1-2 form, noting the site has a fall of approximately 18m from west (front) to east (rear) towards Gunnamatta Bay.

• The proposal otherwise complies with the 5.4m height control which applies to the development. The proposed height is suitable for the subject site and compatible with the planning objectives and intended outcomes for the site and the objectives of the R2 – Low Density Residential zone.

42. I accept the Applicant’s position that the breach, when measured against the objectives that seek to protect the relationship of the building height with adjoining properties, is not inconsistent with those objectives. I also agree that the variations are so minor that the portion of building exceeding the height standard will have little or no consequential impact on the adjoining developments or on the overall character of the locality. I accept that strict compliance with the Development Standard is unreasonable and unnecessary.

Are there sufficient environmental planning grounds to justify contravening the Height of Building Development Standard?

43. Having been satisfied that strict compliance with the Development Standard is unreasonable and unnecessary, I must also be satisfied, pursuant to cl 4.6(3)(b) of the SSLEP 2015, that there are sufficient environmental planning grounds to justify the contravention of the Development Standard.

44. The written request, starting at page 6, outlines the following environmental planning grounds to justify the component of the development that results in the height variation:

• The variation to the height control is confined to the north-eastern corner of the roof forms of Townhouse 3 and Townhouse 4 central to the site. The proposed variation is a result of the topography of the subject site as the current ground level beneath this element of the development is partly excavated due to the existing driveway which runs along the northern boundary of the site, and there is a change in level to the east of Townhouse 4. The proposed development otherwise complies with the 5.4m height control.

• The subject site has a fall of approximately 18m from west (front) to east (rear) towards Gunnamatta Bay. The north-eastern corner of Townhouse 3 – roof form is located above a fall at the central portion of the site from RL10.60 to RL10.15 of 450mm across the length of the varying element and Townhouse 4 has a fall RL10.8 – RL10.29. The fall of the land at these portions of the site contributes to the variation, noting the variation is 200mm - 340mm above the 5.4m height control.

• The resultant built form presenting a minor variation to the 5.4m height control will not result in any significant adverse impacts upon the adjoining properties with respect to overshadowing, visual impact, or privacy.

• Strict compliance with the height control would not achieve a better environmental planning outcome as the variation is located centrally on the site and will be largely imperceptible when viewed from adjoining properties and the public domain.

• The element of the proposal which exceeds the height control – north-eastern corner of Townhouse 3 roof form is adequately separated from the waterfront – Gunnamatta Bay and will not have an adverse visual impact upon the public domain.

45. I accept the environmental planning grounds put forward in the written request. The variation of the height is not inconsistent with the objectives of the Development Standard that seeks to control a proposed buildings height to reduce impacts to neighbouring development and the public domain. The written request demonstrates that there will be little or no consequence to adjoining properties, or the public domain, as a result of these minor departures.

46. Pursuant to cl 4.6(4)(a)(i) of the SSLEP 2015, I have reached the point of satisfaction that the written request has adequately addressed the matters required to be demonstrated by cl 4.6(3).

Is the proposal in the public interest?

47. Finally, I am required to be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular Development Standard, and the objectives for development within the R2 Zone. I have already considered the objectives of the Development Standard.

48. The written request sets out (at pages 9 and 10) the reasoning as to why the development is in the public interest as follows:

The development proposal meets the applicable objectives of the low-density residential zone based on the following assessment:

• The proposal provides for the housing needs of the community through the provision of 7 x dwellings that are compatible with the overall form and scale of development within the locality – low density residential character;

• The proposed development contributes to the availability of residential accommodation within the residential zone within close proximity to services including nearby education facilities;

• The proposed development has been designed to retain significant landscaping on the site – mature canopy trees along the existing driveway access and will be appropriately landscaped to soften the proposed built form across the site;

• The proposed built form is predominantly 1-2 storeys and is in keeping with the single dwelling character of the locality noting the large site area and compliant FSR proposed. The minor height variation proposed – Townhouse 3 is located at the central portion of the site and will be largely imperceptible from the surrounding properties. The proposal is unlikely to diminish the low density character of the locality, noting the site is not visible from Gunnamatta Road and will not detract from the streetscape.

Further, the site area comfortably complies with the applicable minimum lot size for multi dwelling housing in the low-density zone and as such the proposed development is consistent with the envisioned density of multi dwelling housing development within the zone.

In addition to the above, the proposal is also in the public interest because:

• The proposed development is predominantly in a 1-2 storey form consistent with the height envisioned for multi-dwelling housing on internal lots in the R2 zone. The proposed built form will sit comfortably on the site and as such the proposal will not result in any significant adverse visual impacts upon adjoining properties.

• The development has been designed in a contemporary form and will not result in unreasonable amenity impacts to the public domain or the adjoining properties.

49. Consistent with the reasoning outlined above, I am satisfied that the proposal is in the public interest. I accept the argument put forward by the Applicant that the proposal, in terms of the Height of Building variation, will be in the public interest because the height variation is consistent with the objectives of the particular Development Standard and the objectives (as they relate to the breach) for development for the zone in which the development is proposed to be carried out.

50. I have reached the conclusion that the cl 4.6 written request could be upheld.

Is the resultant character and amenity of the proposal satisfactory?

51. As foreshadowed earlier in this judgment, the mains issues are around the character and amenity of the development. Contention 2 of the amended Statement of Facts and Contentions sets out the particulars in respect to character and overdevelopment that the Respondent say articulate the reasoning that warrants dismissal of the Appeal. Contention 5 raises amenity impacts that the Respondent says have not been overcome and which also warrant dismissal of the Appeal.

52. I have set out, in paragraph [24] to [32], a number of the planning controls in the SDCP 2015 that seek to ensure an appropriate built form character and the levels of amenity required for new development. These controls provide guidance on the decision-making process relating to the merits of the Application.

53. The evidence of the experts demonstrates the overlap between Contention 2 and Contention 5. Mr Vescio states that the character required by the planning controls, which is a landscaped low-density zone, is not achieved primarily due to inadequate separation of buildings and the poor relationship the proposed buildings have with the private open space. Mr Vescio says that these relationships result in poor amenity. I agree with Mr Vescio that these issues are linked and that the poor amenity outcomes, resulting from the poor building locations, result in a situation where the low-density character is not achieved.

54. Amenity impacts are a further area of disagreement between the experts and an issue that I also consider fatal to the Application. Contention 5(b) in the Statement of facts and Contentions raises these issues as follows:

b) the proposed separation between buildings is inadequate to compensate for the poorly considered design attributes including the layout and orientation that result in substandard internal amenity between buildings within the development including privacy and solar access impacts.

55. Mr Chapman suggests that the internal impacts are acceptable and that there is adequate separation between the buildings (paragraph 5.2 of Joint Report). In contrast Mr Vescio outlines, at paragraph 5.6 to 5.9, concerns around the congestion of the built form and the corresponding absence of privacy. Mr Vescio considers these impacts unacceptable.

56. In considering both perspectives, I have reviewed the relationship of the balconies for TH 3 and TH 4 with the private open space of TH 5 and TH 6. The juxtaposition of these elements is shown in Figures 5 and 6 below.

Figure 5 - This extract from the Roof Plan and Survey Overlay (attached to cl 4.6) provides an indication of the relationship between the area of breach and the adjacent private open spaces of Townhouses 5 and 6.

57. Figure 5 (above) shows how the balconies for TH 3 and TH 4 abut the private open space for TH 5 and TH 6. Figure 6 shows the eastern portion of TH 3 and the vertical relationship with the private open space of TH 4. The cross section shows the relative height of both dwellings as well as the relationship of the dwellings to the private open space. It also demonstrates the visual relationship between the elevated living area of TH3 with the habitable space at the rear of TH4.

Figure 6 - Cross Section Extract (Sheet A4003)

58. These extracts demonstrate that there is an unsatisfactory relationship between the dwellings as well as a poor relationship between the dwellings and the private open space. A built form outcome, where the balcony of one dwelling is both horizontally and vertically dominant over the adjoining private open space, is not of a desired scale and character when assessed against the objectives relating to the zone, the Landscaped Area or the Urban Design criteria. The outcome is a built form character that is not a characteristic of a low density built form character and fails to achieve reasonable and acceptable levels of amenity.

59. The horizontal extension of TH3 and TH4 also diminishes the ability to achieve the canopy trees that are envisaged to assist in maintaining the character of the locality. The possible locations for such trees, discussed by the landscape experts during oral evidence, were based on a landscape plan showing the basement car park levels of the dwellings. A more important comparison is the ground level plans which demonstrate that the balconies extend to the fencing line of the adjacent private open space. The proposed tree canopies could not be achieved as TH3 and TH4 extend too close to the private open space of the adjoining townhouses and do so in a manner that would preclude the canopies developing.

60. As a result, I am swayed by the Respondent’s argument, including evidence by both the landscape and planning experts, that the required levels of amenity and the desired landscape setting are not achieved by the current design.

Conclusions

61. I have accepted the arguments of the Applicant in respect to the cl 4.6 written request. I am satisfied that the applicant’s cl 4.6 written request to vary the Height of Building Development Standard in cl 4.3 of the SSLEP 2015 has demonstrated that there are “sufficient environmental planning grounds” to justify the contravening the Development Standard”. The breach of the height is a small component of the proposal with minimal, if any, impact.

62. I agree with the Respondent in terms of the consequences of a poor spatial relationship in the development. The proximity of the dwellings to each other and with the private open spaces, within the proposed development, would result in significant amenity impacts. The result is a scheme that would not deliver the low-density character that the planning criteria in the SSLEP 2015 and SSDCP 2015 seek. The proposed development would not provide adequate area for more mature landscaping between dwellings and adequate levels of amenity for future occupants.

Orders

63. The Court orders that:

1. The appeal is dismissed.

2. Development consent for Development Application number DA21/0842 for the demolition of existing dwellings and associated structures, retention of existing improvements in the foreshore area, including the swimming pool, boatshed and associated structures, tidal pool and construction of a Multi Dwelling Housing Development is refused.

3. The exhibits are returned with the exception of Exhibits A and C.

.…………………………

S Harding

Commissioner of the Court

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Decision last updated: 27 September 2022