Land and Environment Court New South Wales Medium Neutral Citation: Bonnefin v Central Coast Council [2021] NSWLEC 1321 Hearing dates: 25 May 2021 Date of orders: 8 June 2021 Decision date: 08 June 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders: (1) The Applicant is granted leave to rely on amended plans; (2) The appeal is upheld; (3) The Applicant's development application no. 1171/2020 is determined by the grant of consent, subject to the conditions at Annexure A; (4) The exhibits are returned, except exhibits A and 2. Catchwords: DEVELOPMENT APPLICATION – construction of a garage – potential amenity impacts – whether rear setback acceptable – whether car manoeuvrability is acceptable – application of s 4.15(3A) of EP&A Act Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7(1) Environmental Planning and Assessment Regulation 2000, cl 77 Land and Environment Court Act 1979, s 34AA Wyong Local Environmental Plan 2013, cll 2.3, 7.9 Texts Cited: Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy, 6 April 2021 Wyong Development Control Plan 2013 Category: Principal judgment Parties: Heath Bonnefin (Applicant) Central Coast Council (Respondent) Representation: Counsel: L Sims (Applicant) M Ball (Solicitor) (Respondent) Solicitors: Central Coast Council (Respondent) File Number(s): 2021/54684 Publication restriction: No Judgment 1. COMMISSIONER: Located opposite Swadling Park in Toowoon Bay, the Subject Site at 207 Bay Road, contains a two storey, four bedroom dwelling with park and ocean views to its east. 2. Mr Heath Bonnefin (the Applicant) has appealed the refusal by Central Coast Council (the Respondent) of his development application (DA No. 1171/2020) seeking consent for the demolition of an existing garage at the rear of the Subject Site and construction of a four car garage, with storage capacity, at the rear of the dwelling, along with certain excavation and drainage works (the Proposed Development). 3. The Respondent confirmed that the Applicant's development application had been notified consistent with the provisions of Wyong Development Control Plan 2013 (WDCP) and cl 77 of the Environmental Planning and Assessment Regulation 2000 (the EP&A Regulation), and that no objections had been received in response to that notification. 4. The garage is proposed to be located along the southern side boundary of the Subject Site and behind the existing dwelling. It would have a 0.9m setback to both the rear window of a ground floor bedroom in the dwelling on the Subject Site, and to the southern side boundary of the Subject Site. The proposed setback to the rear boundary of the Subject Site is 0.5m. 5. The appeal comes to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and is determined under the provisions of s 4.16 of the EP&A Act. 6. The appeal falls within class 1 of the Court's jurisdiction, and the appeal has been heard subject to the provisions of s 34AA of the Land and Environment Court Act 1979. 7. The Subject Site, and adjoining lots, are zoned R1 General Residential under the provisions of cl 2.3 of Wyong Local Environmental Plan 2013 (WLEP). 8. The appeal commenced in conciliation and the contentions in the matter were unable to be resolved in that phase of the proceedings. The appeal then moved to a hearing. 9. The appeal was undertaken consistent with the Court's COVID-19 Pandemic Arrangements Policy. An inspection of the Subject Site was undertaken prior to the conciliation phase of the proceedings. No objectors sought to make submissions during the on-site view. The hearing was later convened on the Microsoft Teams platform. Statutory context Environmental Planning and Assessment Act 1979 1. The following sections of the EP&A Act are of relevance in this appeal: 1. Section 4.15(1) of the EP&A Act which provides as follows: 1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application— (a) the provisions of— (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. 1. Section 4.15(3A) of the EP&A Act which provides as follows: Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority— (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria. Wyong Local Environmental Plan 2013 1. The Proposed Development is subject to the provisions of WLEP including cl 7.9 of WLEP which concerns essential services and provides that: Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required – (a) the supply of water, (b) the supply of electricity, (c) the disposal and management of sewage, (d) stormwater drainage or on-site conservation, (e) suitable vehicular access. Wyong Development Control Plan 2013 1. The Proposed Development is subject to the provisions of WDCP, and the following provisions of WDCP are of relevance to this appeal: 1. Chapter 2.1 of Part 2 in WDCP provides guidance to development in relation to dwelling houses, secondary dwellings and ancillary development, including the following relevant sections in that part: 1. section 2.1 concerning building height which includes the following: 1. an objective to ensure that the height of buildings protects the amenity of neighbouring properties in terms of visual bulk, access to sunlight, privacy and views; 2. a requirement that the maximum height of outbuildings, as well as detached ancillary development, in the R1 General Residential zone is 4.8m; 1. section 3.0 concerning setbacks which includes the following: 1. an objective to protect views, privacy and solar access of adjacent properties; 2. a requirement for the side boundary setbacks for primary and secondary dwellings and ancillary development of 0.9m for any part of a building with a height of up to 4.5m; 3. a requirement for the rear boundary setback for primary and secondary dwellings and ancillary development of 0.9m for 50% of the length of the rear boundary for a single storey development, and 3m for any part of the building with a height of up to 4.5m; 1. section 4.3 concerning private open space areas which includes: 1. an objective to provide dwellings with individual private open space areas promoting a practical outdoor living area for residents; 2. a requirement that for all dwellings the principal private open space areas shall be directly accessible from and adjacent to a habitable room other than a bedroom and shall be 24m2 for lots with a width greater than 10m; 3. a note that said, inter alia, that the principal private open space area of a dwelling should be located behind the front building line and that location should also be determined having regard to dwelling design, allotment orientation and adjoining development, and to minimise disturbance from any significant noise sources. 1. section 4.4 concerning sunlight access which includes: 1. an objective to facilitate solar access to the living areas and private open space areas of the dwelling and neighbouring dwellings; 2. a requirement that on June 21, 50% of the required principal private open space area for all dwellings should receive at least 3 hours of unobstructed sunlight access between 9am and 3pm; and 3. a further requirement that on June 21, 50% of the required principal private open space on adjoining land should receive at least 3 hours of unobstructed sunlight access between 9am and 3pm; 1. section 5.0 concerning car parking and access, and which includes: 1. a statement that a car parking space may be an open hard stand space, a carport or garage, whether attached to or detached from the dwelling house and is to provide safe entry and exit from a roadway; 2. the following objectives: "Car parking is to be designed in sympathy with the development without becoming the dominant feature on the streetscape; to provide adequate on-site parking relative to the occupancy of the dwelling; to have car parking access that minimises the potential for pedestrian and vehicle conflict." Contentions 1. At the commencement of the hearing proper, the Applicant sought leave to rely on amended plans that included: 1. an annotated site plan/analysis; 2. an amended design for the garage that retained the four car capacity of the proposed structure but with a pitched roof at the centre line up to a maximum height of 4.470m above natural ground level; and 3. a concept stormwater management plan. 1. The leave sought was granted without objection. 2. The Respondent confirmed that, based on Applicant's amended plans which reflected recommendations made by the Parties expert planners, Mr Gary Evans and Mr Chris Baker, in their joint expert report, contentions relating to building compatibility and the consistency of the Proposed Development with the certain objectives of section 2.1 of WDCP (see above at [12(1)(a)(i)]) related to detached dwellings, were no longer pressed. 3. The principal remaining contentions in the appeal related to the aesthetics, amenity and functionality of the Proposed Development, and are related to: 1. the potential impacts of the Proposed Development on the amenity of the dwelling on the Subject Site; 2. the potential impacts of the Proposed Development on the amenity of the dwelling on the lot adjoining the Subject Site to the south; 3. the manoeuvrability of cars into and out of the proposed garage; and 4. the acceptability of the Applicant's stormwater plans. 1. The Court was assisted by the evidence of the Parties expert planners, Mr Gary Evans for the Respondent and Mr Chris Baker for the Applicant. Are the potential impacts of the Proposed Development on the amenity of the dwelling on the Subject Site acceptable? 1. As noted above at [4], the Proposed Development includes the construction of a colorbond wall of the proposed garage at a distance of 900mm from the rear, west facing, ground floor bedroom window (identified at the hearing as window WB) on the south west corner of the dwelling of the Subject Site. 2. The Respondent stated that the construction of the proposed garage would reduce the amenity of the bedroom in the south west corner of the dwelling on the Subject Site by: 1. removing its current view out into the rear garden of the Subject Site; 2. replacing that view with a view onto a colorbond wall; and 3. reducing the amount of sunlight able to access the bedroom. 1. The Respondent added that the provision of a 3m setback to the rear window of the ground floor bedroom would provide relief from the view at 900mm of the colorbond wall of the garage and would enable more light to enter the bedroom through WB. It also submitted that the space could be used to accommodate a clothes line in the rear yard of the Subject Site. 2. The Applicant submitted that the amenity value derived from window WB was low, and less that that available from window WA, and from the living rooms of the dwelling that were located at the front eastern side of the dwelling and which would not be affected by the Proposed Development. 3. In response to questions from the Parties: 1. the Applicant's expert, Mr Baker said that WB was a secondary window for the rear room, with its principal window (identified as window WA) located on the southern wall of the dwelling. He noted that WA was larger than WB, and WA provided oblique views to parkland and potentially to the ocean for the room's occupant/s; 2. the Respondent's expert, Mr Evans, said that he agreed with propositions put by the Applicant that: 1. the WA may have some views to Swadling Reserve and a caravan park on the opposite side of Bay Road; 2. the rear ground floor room is a bedroom which is principally used at night; 3. the amenity considerations of a bedroom are less than those in relation to a living room; 4. while there may be some impact on cross ventilation to the ground floor rear bedroom arising from the proposed garage, a breeze would continue to flow past and through the bedroom windows and cross ventilation would still be achieved; 5. although the sunlight that would access the ground floor rear bedroom adjacent to the proposed garage would be reduced, the controls within Part 4.4 of WDCP only related to the impact of sunlight access to private open space, and the proposed development would not significantly impact on sunlight access available to private open space. 1. Having considered the submissions of the Parties and the evidence of the experts, I have concluded that: 1. while an amended design that provided a 3m setback from WB to the colorbond wall of the proposed garage may indeed provide improved amenity to the rear ground floor bedroom, that is not the development that comes before me for determination; 2. while the Proposed Development will impact on the view and sunlight amenity of the bedroom with WB, there is no control within WDCP that would require the Applicant to amend its Proposed Development to reduce that impact; 3. notwithstanding the impacts identified above (at [19]) I accept the submissions of the Applicant, supported by the evidence of Mr Baker and Mr Evans, that the rear ground floor bedroom would still achieve cross ventilation, and would still retain some amenity from views and indirect light derived from window WA; 4. pursuant to the provisions of s 4.15(3A)(a) of the EP&A Act (see above at [10(2)]) I cannot not require a more onerous standard with respect to the either the setbacks or height controls applicable to the Subject Site within WDCP; and 5. the impact of the Proposed Development on the amenity of the rear ground floor, south west corner, bedroom is insufficient to refuse consent to the Applicant's development application. Are the potential impacts of the Proposed Development on the amenity of the dwelling on the lot adjoining the Subject Site to the south? 1. As noted above (at [4]), the Proposed Development will be constructed along the rear portion of the southern side boundary of the Subject Site. 2. It was common ground between the Parties that the Proposed Development is compliant with the building height controls within Part 2.1 of WDCP, and the side setback controls in Part 3.0 of WDCP. 3. The Respondent submitted that: 1. construction of the proposed garage would significantly impact on the sunlight access to the north facing windows of the dwelling on the adjacent lot to the south, and in particular to the front two of those windows, identified at the hearing as windows W2 and W3; 2. the impact of the Proposed Development on windows W2 and W3 would be ameliorated by requiring that the separation between the proposed garage and the dwelling on the Subject Site be increased by 3m, and the garage be reduced to house 3 vehicles. 1. The Applicant, supported by the evidence of Mr Baker, said that, notwithstanding the reduction of sunlight to windows W2 and W3 on the adjacent dwelling: 1. the front room associated with W2 and W3, assumed to be a living room, would continue to receive sunlight through its front eastern facing window, identified as window W1; 2. the window W1 would also continue to provide view amenity to the occupants of the adjacent dwelling, and this would be unaffected by the Proposed Development; and 3. the controls within Part 4.4 of WDCP did not serve to protect sunlight access to windows W2 and W3 as the controls only related to the impact of sunlight access to private open space, and the Proposed Development would not significantly impact on sunlight access available to private open space on the adjacent lot to the south. 1. In response to questions from the Applicant, Mr Evans agreed that: 1. window W1 provided visual amenity to the front (assumed living) room of the adjacent dwelling to the south, and that the views afforded by W1 were superior to those afforded by W2 and W3; 2. the window W1 would continue to receive sunlight for a portion of the day; 3. while the objective of section 4.4 of WDCP included facilitating solar access to living areas, the controls in WDCP section 4.4 only required maintenance of sunlight to areas of private open space, which remained largely unaffected by the Proposed Development. 1. Having considered the submissions of the Parties and the evidence of the experts, I have concluded that: 1. while an amended design that provided a 3m setback from the rear of the dwelling on the Subject Site to the proposed garage, as suggested by the Respondent, may indeed provide improved amenity to the windows W2 and W3 of the adjacent dwelling to the south, that is not the development that comes before me for determination; 2. while the Proposed Development will impact on the view and sunlight amenity of the room to which windows W2 and W3 open, there is no control within WDCP that would require the Applicant to amend its Proposed Development to reduce that impact; 3. notwithstanding the impacts identified above (at [26(1)]), I accept the submissions of the Applicant, supported by the evidence of Mr Baker and Mr Evans, that: 1. the front room associated with W2 and W3, assumed to be a living room, would continue to receive sunlight through its front eastern facing window, identified as window W1; 2. the window W1 would also continue to provide view amenity to the occupants of the adjacent dwelling, and this would be unaffected by the Proposed Development; and 3. the window W1 would continue to receive sunlight for a portion of the day; 4. the controls within section 4.4 of WDCP did not serve to protect sunlight access to windows W2 and W3 as the controls only relate to the impact of sunlight access to private open space, and the Proposed Development would not significantly impact on sunlight access available to private open space on the adjacent lot to the south; 5. pursuant to the provisions of s 4.15(3A)(a) of the EP&A Act (see above at [10(2)]) I cannot require a more onerous standard with respect to the either the setback or height controls applicable to the Subject Site within WDCP; and 6. the impact of the Proposed Development on the amenity provided by windows W2 and W3 of the adjacent dwelling to the south is insufficient to refuse consent to the Applicant's development application. Is the manoeuvrability of cars into and out of the proposed garage acceptable? 1. The Respondent had contended that the Proposed Development had not been designed to be functional given the limited manoeuvring area within the rear portion of the Subject Site. The Respondent added that the limited manoeuvring area would limit the ability of vehicles to be housed within the proposed garage outbuilding. 2. The Respondent also contended that access to the rear of the dwelling on the Subject Site is restricted by a balcony protruding over the side driveway from an upper level of the dwelling, and that this would restrict access to vehicles with a maximum of 2.3m height. 3. At the hearing, Mr Baker opined that the clearance to the first floor balcony over the driveway was 2.4m if certain lights and security cameras were re-located. He also said that a 2.4m height clearance exceeded the relevant Australian Standard for driveway access. 4. Further Mr Baker said that with the current garage to be demolished, and the cleared area at the rear of the Subject to be paved, there would, in his opinion, be adequate space for vehicles to enter and exit the proposed garage as required. 5. Mr Evans said that, as he was not a traffic expert, he was unable to assist the Court formally in relation to vehicle manoeuvrability into and out of the proposed Development, but he did state in his view vehicle manoeuvrability was likely to be acceptable. 6. Having considered the submissions of the Parties and the evidence of the experts, I am satisfied that the height of the balcony over the access driveway is acceptable to facilitate the movement of vehicles into the area at the rear of the dwelling on the Subject Site, and that there will be sufficient space for vehicles to manoeuvre into and out of the Applicant's proposed garage. Are the Applicant's stormwater plans acceptable? 1. The provisions of cl 7.9 of WLEP are provided above (at [11]). The Subject Site is already provided with the essential services identified in cl 7.9 of WLEP, and there was no dispute at the hearing that the Subject Site has access to stormwater drainage. 2. The Applicant has tendered a concept stormwater plan to confirm arrangements for management of stormwater flows off the Subject Site should the Applicant's Proposed Development be approved. 3. I am satisfied that the Applicant's Proposed Development includes adequate arrangements in relation to stormwater drainage and the provisions of cl 7.9 of WLEP in relation to stormwater have been fulfilled. Other matters Rear setbacks 1. The Applicant's proposed garage has a setback to the rear boundary of the Subject Site of 0.5m and a width along the rear boundary of 8.0m. 2. As identified above (at [12(1)(b)(iii)]), the required rear boundary setback for primary and secondary dwellings and ancillary development of 0.9m for 50% of the length of the rear boundary for a single storey development, and 3m for any part of the building with a height of up to 4.5m. 3. The rear boundary of the Subject Site is 15.23m, and 50% of its length is 7.615m. As a consequence, the Applicant's proposed garage is non-compliant with the setback provisions of WDCP as follows: 1. for the initial 7.615m portion of the rear boundary, the proposed garage falls short of the required setback by 0.4m (a non-compliance of 44.4%) along 6.715m of the garage's western elevation; and 2. for the remainder of the rear boundary the proposed garage falls short of the required setback by 2.5m (a non-compliance of 277.8%) along 1.285m of the garage's western elevation. 1. The Applicant submitted that, pursuant to the provisions of s 4.15(3A)(b) of the EP&A Act (see above at [10(2)]), the Court should allow these non-compliances as they were reasonable alternative solutions that achieved the objects of the setback controls in Chapter 3.0 of WDCP. 2. The objective of Chapter 3.0 of WDCP that is of relevance in this appeal was identified above at [12(1)(b)(i)], and is to protect views, privacy and solar access of adjacent properties. 3. The Applicant submitted, supported by the evidence of the planning experts, Mr Baker and Mr Evans, that the non-compliant rear setbacks of the proposed garage would not give rise to any material impact in relation to views, privacy or solar access of the adjacent properties. This submission was not challenged by the Respondent. 4. As a consequence, I am satisfied that the non-compliant rear setbacks of the proposed garage achieve the relevant objectives of the rear setback control and represent a reasonable alternative solution to which flexibility should be applied in relation to those controls. I further conclude that the non-compliant rear setback of the proposed garage is not a reason to refuse consent to the Applicant's development application. Private open space 1. The location of the Applicant's proposed garage at the rear of the Subject Site would reduce the area of the rear private open space on the Subject Site. 2. As noted above (at [12(1)(c)]), the provisions of section 4.3 of WDCP notes that: 1. the principal private open space area of a dwelling should be located behind the front building line; but also 2. the location should also be determined having regard to dwelling design, allotment orientation and adjoining development, and to minimise disturbance from any significant noise sources. 1. At the hearing, the Respondent said that the erection of the proposed garage would remove the principal private open space at the rear of the Subject Site, and so would be contrary to the provisions of section 4.3 of WDCP. 2. However, the Applicant, supported by the evidence of Mr Baker, noted that: 1. the requirements of section 4.3 of WDCP were that the principal private open space areas shall be directly accessible from and adjacent to a habitable room other than a bedroom (see above at [12(1)(c)(ii)]); and 2. consistent with the requirements of section 4.3 of WDCP, the principal private open space on the Subject Site was located in the site's front setback which was accessible from and adjacent to the living room areas of the dwelling on the site and which had been located there based on the design of the dwelling. 1. Having considered the submissions of the Parties on this matter, I accept the submission of the Applicant that the principal private open space of the Subject Site is located within the front setback for the reasons it provided, which I adopt. 2. I conclude that the Proposed Development is consistent with the provisions of section 4.3 of WDCP concerning private open space. Conclusions 1. As noted above at [3], the Applicant's development application was notified as required under the provisions of cl 77 of the EP&A Regulation and the relevant provisions of WDCP, and no objections were received in response to this notification, and no objectors sought to make submissions at the hearing. 2. As a consequence of my findings above in relation to potential amenity impacts of the Proposed Development (see above at [23(5)] and [29(3)(f)]), and in relation to vehicle manoeuvrability (see [35]), stormwater drainage (see [38]), the development's non-compliant rear setbacks (see [45]) and private open space (see above at [51]), I have concluded that: 1. the matters that must be considered under s 4.15(1)(a) of the EP&A Act in relation to the assessment of the Applicant's Proposed Development have been considered; 2. there are no jurisdictional matters that would preclude the exercise of the Court's powers to determine the application under s 4.16 of the EP&A Act; 3. the Applicant's development application should be approved, subject to conditions. 1. The Parties have provided agreed conditions of consent that should be imposed if the Court were to determine the matter by the grant of consent. Orders 1. The Court orders: 1. The Applicant is granted leave to rely on amended plans; 2. The appeal is upheld; 3. The Applicant's development application no. 1171/2020 is determined by the grant of consent, subject to the conditions at Annexure A; 4. The exhibits are returned, except exhibits A and 2. ..……………. M Chilcott Commissioner of the Court Annexure A (223823, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 June 2021