Land and Environment Court New South Wales Medium Neutral Citation: Luxeco Property Pty Ltd v Willoughby City Council [2021] NSWLEC 1554 Hearing dates: 2 and 3 March 2021 Date of orders: 22 September 2021 Decision date: 22 September 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: INTERIM - directions Catchwords: DEVELOPMENT APPEAL – multi-dwelling housing – overdevelopment – landscaping – vehicle access and parking – adaptable and affordable housing – impacts on adjoining properties – floor space ratio development standard cl 4.6 written request – orders Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.15, 8.7 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007, cl 102 State Environmental Planning Policy No 19 – Bushland in Urban Areas State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Willoughby Local Environmental Plan 2012, cl 1.2, 4.4, 4.6 Cases Cited: BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Botany Bay City Council v Pet Carriers International Pty Limited (2013) 201 LGERA 116; [2013] NSWLEC 147 Gejo Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1712 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Rose v Woollahra Municipal Council [2016] NSWLEC 1348 Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 Texts Cited: Development Near Rail Corridors and Busy Roads – Interim Guideline, NSW Department of Planning Willoughby Development Control Plan 2012 Category: Principal judgment Parties: Luxeco Property Pty Ltd ACN 168230144 (Applicant) Willoughby City Council (Respondent) Representation: Counsel: M Wright (Applicant) P Vergotis (Solicitor) (Respondent) Solicitors: Holding Redlich (Applicant) McCabe Curwood Pty Ltd (Respondent) File Number(s): 2020/160587 Publication restriction: No Judgment 1. COMMISSIONER: This is a class 1 development appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of a development application number DA-2019/253 seeking consent for the demolition of the three existing dwellings and structures and construction of eleven new terrace style multi dwelling housing units and associated common access driveway, parking, landscaping and site works (the Proposed Development) at 82-86 Eastern Valley Way, Willoughby NSW 2068 legally described as Lots 33-35 in DP 20044 (the Site). 2. On 29 September 2020 the Respondent, by a decision of its Local Planning Panel, determined the Development Application by refusal. 3. The hearing commenced with an on site view and evidence from objectors given from the rear of the neighbouring property at 14 Edinburgh Road Willoughby. The matter was heard over two days with the parties filing written submissions on 12 March 2021, 1 April 2021 and 15 April 2021. The parties were directed to file written submissions and for the Applicant to file Proposed/Draft Conditions of consent. I have marked the Proposed/Draft Conditions of Consent filed by the Applicant on 8 March 2021 Exhibit V and I note that the Respondent's Proposed/Draft Conditions of Consent were tendered during the hearing and marked Exhibit 7. 4. This case is about whether the Proposed Development is an overdevelopment and the Applicant relies on a cl 4.6 written request seeking to justify the contravention of the floor space ratio development standard (FSR Development Standard) of 0.7:1 provided in cl 4.4 of Willoughby Local Environmental Plan 2012 (WLEP) (FSR Development Standard) (Exhibit P). The Respondent did not raise any objection to the cl 4.6 request in its contentions in the Statement of Facts and Contentions filed 31 July 2020 (SOFAC) (Exhibit 1) however, in written submissions, the Respondent submits that the cl 4.6 written request does not adequately justify a departure from the FSR Development Standard and that as a consequence of the non-compliance with the FSR Development Standard the Proposed Development amounts to an 'over development' due to its design and massing which exceeds the environmental capacity of the Site (Respondent Written Submissions filed 1 April 2021 at par 2.2). 5. The Applicant rightly acknowledges (Applicant Written Submissions filed 12 March 2021) that as cl 4.6 raises a jurisdictional threshold, the request must be addressed by the Court in this judgment and I do this at [57] below. 6. The Applicant's case is that the Proposed Development is a very careful design which responds to the physical aspects or constraints of the Site, namely the south facing orientation of the Site, the presence of rock and most relevantly, the nature of the road being Eastern Valley Way which is a classified state road. There is a theme in the Applicant's case of the design of the Proposed Development responding to the constraints of the south facing sloping Site and the constraint posed by Eastern Valley Way being the lack of on street parking and the road generated noise. The Applicant relies on the uncontested evidence in the Acoustic Assessment Report prepared by Acoustic Logic (Exhibit K) which specifies that acoustic management and design of the Proposed Development is a response to the noise from the road. 7. The Applicant summarises the description of the Proposed Development to be innovatively designed and incorporates elements of comfortable and sustainable living environment with sensibility to noise, privacy, traffic, views, access and landscaping. Architectural design and urban planning concept provide a sensitive response to the context of the site and its immediate surrounds, separating the eleven proposed residential terraces into three separate built forms and compares the Proposed Development with the recently development terrace housing to the west which present lineal building forms parallel, to, and facing Eastern Valley Way. Separation of the proposed residential terraces into three separate built forms, with terraces 4 to 9 setback behind terraces 3, 10 and 11, together with the provision of substantive building articulation and carefully considered materials and finishes allows the development to sensitively respond to, and integrate within the built form and siting of existing development to the north and east. 8. The parties acknowledge that the Site is in an R3 medium density residential zone in its early stages of transition from low density residential to medium density residential. The Applicant relies on the decision of BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [115]-[119] for the proposition that "in most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts." 9. During the process of joint conferencing of experts, amended plans were agreed between the experts and leave was granted during the hearing to the Applicant to rely on those amended plans. 10. The parties relied on the following Joint Expert Reports: 1. Joint Expert Report prepared by Brett Daintry, Town Planner for the Applicant and Mark Bolduan, Town Planner for the Respondent and Elke Haege, Landscape Architect for the Applicant and Anthony Powe, Landscape Architect for the Respondent filed 18 December 2020 (JER Planning and Landscaping) (Exhibit 2). 2. Joint Expert Report prepared by traffic experts Robert Varga for the Applicant and Clare Woods for the Respondent filed 15 December 2020 (JER Traffic) (Exhibit 3). What are the contentions or issues in dispute in this matter? 1. The Respondent listed those contentions which are pressed during the opening statement and these are summarised from the contentions listed in the SOFAC (Exhibit 1) below. I will address these in my reasons as well as the jurisdictional prerequisite cl 4.6 written request seeking to justify the contravention of the FSR Development Standard. The contentions pressed by the Respondent are as follows: 1. Unreasonable overdevelopment of the Site because the Proposed Development will not achieve the objectives of the R3 zone for the following reasons: 1. Clause D.2.7.3 of the Willoughby Development Control Plan (WDCP) requires a maximum site coverage of 30% of the site area (650m2). The proposal results in a site coverage of 38% of the site area (822m2). (SOFAC, contention 1(b)(iii)); 2. Clause D.2.10.3 requires a minimum of soft landscaped area of 759m2. (SOFAC, contention 1(b)(vii)); Landscaping is contended also in Contention 2 and Contention 5(a). 3. Clause D.2.11.3 requires that bedroom windows are to be at least 3m from shared streets, driveways, service and parking areas of other dwellings. Bedrooms in Units 1 to 9 will be 0m, bedrooms in Unit 10 will be 2.7m and bedrooms in Unit 11 will be 1.6m from the shared internal street. (SOFAC, contention 1(b)(viii)); 4. Clause D.2.13.3 requires that developments maximise the entry of winter sun and minimise the entry of summer sun to most of the habitable rooms and private open spaces. The private open spaces of Units 1-9 receive less than 3 hours direct sunlight on 22 June. This is a result of the excessive bulk excavation of the rear of the site, resulting in a dropping of the ground level and overshadowing of the private open spaces. (SOFAC, contention 1(b)(ix)); 1. Unsatisfactory landscaping because the Proposed Development does not achieve the amenity aims in cl 1.2(e) of WLEP or the R3 zone objective regarding landscaping which is particularised as follows: 1. Clause D.2.10.3 requires a minimum of soft landscaped area of 759m2. (SOFAC, Contention 2(a)); 2. The proposed landscaping will not provide a landscaped setting appropriate for a medium density development. (SOFAC, contention 2(b)); 3. No meaningful planting is indicated to be provided between Units 10-11 and Units 4-9, resulting in poor amenity with the space between dominated by building façade and driveway pavement only. (SOFAC, contention 2(c)). 1. Unsatisfactory vehicle access and parking (SOFAC, contention 3) which has been resolved by agreement reached between the traffic experts however the Respondent raises a new concern regarding the amenity impact of the visitor parking next to the kitchen of Unit 10. 2. In relation to adaptable and affordable housing, the Proposed Development does not achieve the aim in cl 1.2(f) of the WLEP to provide opportunities for a range of housing choice in Willoughby to cater for changing population needs in accessible locations, and to facilitate the provision of adaptable and affordable housing because clause C.6 of the WDCP requires that the proposal provide 3.65 dwellings as adaptable housing. (SOFAC, Contention 4(c)). 3. Unacceptable impacts on adjoining properties because the proposed development does not provide sufficient landscaping as required by clause D.2.10.3 of the WDCP resulting in a low amenity for neighbours overlooking the Site. (SOFAC, Contention 5(a)). 1. The Respondent's written submissions strayed to some extent from these contentions and I give those aspects outside of the contentions little, if any, weight. I accept the submission of the Applicant that the Respondent should not be permitted to raise new issues in written submissions filed after the proceedings had concluded and not raised by it as contentions in the proceedings. To that effect, there is authority that the Respondent is bound by the contentions it has raised (Segal v Waverley Council (2005) 54 NSWLR 177; [2005] NSWCA 310 at [42]; Botany Bay City Council v Pet Carriers International Pty Limited (2013) 201 LGERA 116; [2013] NSWLEC 147 at [101]-[108]). Is the proposed multi-dwelling housing an overdevelopment on the Site because it will not achieve the R3 zone objectives? 1. The planning experts disagree as to whether the proposal is an overdevelopment of the Site (JER Planning and Landscaping at par 57). I will refer to this contention as "the Overdevelopment contention" and the particulars of contention 1(b) are limited to WDCP controls regarding site coverage, bedroom window separation, soft landscaped area and solar access. 2. Before I undertake an assessment of the evidence regarding overdevelopment it is relevant to note at the outset that the Respondent did not press contention 1(a) in the SOFAC which particularises the Overdevelopment contention by reference to the two following objectives of the R3 medium density residential zone in the WLEP: • To accommodate development that is compatible with the scale and character of the surrounding residential development. • To encourage innovative design in providing a comfortable and sustainable living environment that also has regard to solar access, privacy, noise, views, vehicular access, parking and landscaping. 1. The R3 zone objectives in the Land Use Table of the WLEP are reproduced in full below in this judgment in my assessment of the jurisdictional prerequisite matter pursuant to cl 4.6 seeking to justify the contravention of the FSR Development Standard. 2. Initially, the Applicant submits at par 41 that as contention 1(a) was not pressed "it should therefore be accepted that the Proposed Development is compatible with the R3 zone objectives." However, the Respondent made submissions in writing at par 21 as follows: "The proposed development fails to meet these two important objectives because firstly the sheer bulk, size and massing of the development is not compatible with the surrounding residential development. This was evidence when the Court was taken on the view of the adjoining residential properties in Warners Avenue. Secondly, the way in which the development scheme has been designed will inherently cause the future occupants to not enjoy a comfortable living environment by virtue of the facts that there is a lack of proper separation distances between dwellings nos. 4 to 11 that will compromise privacy; there will be poor solar access to private open space areas and the development will have insufficient amount of soft landscaping. Furthermore, the tight compliant vehicular access will present its own set of challenges." 1. Rather than address the R3 medium density residential zone objectives under the Overdevelopment contention, consistency with the objectives of the R3 zone is a relevant consideration of the public interest limb of the cl 4.6 written request (cl 4.6(4)(a)(ii) WLEP) and I will deal with the R3 zone objectives in that section below in the judgment. 2. The Overdevelopment contention is summarised by the Respondent in its written submissions at par 3 as follows: "The first shortcoming of the proposal is the exceedance of the floor space ratio development standard of 0.7:1. Despite the clause 4.6 written request seeking to justify the non-compliance the question here is not so much about the justification sought but rather why cannot the proposal comply when this development involves the demolition of three standalone dwelling houses providing a 'blank canvas' to make way for multi-unit medium density dwellings? It is not the case that this proposal has to cater for (or work around) existing built forms. The answer is, respectfully, there are too many dwellings in this proposal. There are 11 dwellings all 'shoe-horned' onto this site where before there were only 3 dwelling houses on 3 allotments albeit the site had been up-zoned to accommodate multi-unit developments." 1. Again, I will deal with the FSR Development Standard below in my consideration of the cl 4.6 written request which will encompass consistency of the Proposed Development with the R3 zone objectives. 2. Firstly, the Applicant, in written submissions filed 12 March 2021 notes that the Respondent did not raise precedent as a contention and at par 26, submits that: "it is important to emphasise that a recurrent theme in Mr Bolduan's evidence was that of an adverse precedent being created based upon the incorrect premise that this proposal is the first of its kind in the R3 zone. Mr Bolduan appears to express a fear of the very zoning that the Respondent has deemed appropriate for this Site." 1. I note further that the Respondent raises 'adverse legacy' in written submissions at par 43 and for the reasons given at [12] above, I accept that as the Respondent did not raise precedent as a contention, I do not give weight to this aspect of Mr Bolduan's evidence. 2. I will now consider the evidence before the Court for each of the particulars relied on by the Respondent in the SOFAC in relation to the Overdevelopment contention and make my findings accordingly however, I will deal with all the landscaping contentions in 1(b)(vii), 2 and 5(a) summarised above separately. After I address the Overdevelopment contention I will address the contravention of the FSR development standard in my consideration of the cl 4.6 written request and following that I will address landscaping, vehicle access, affordable and adaptable housing and finally consider the competing conditions of consent before making the final orders in this matter. Site coverage (Clause D.2.7.3 WDCP) and overdevelopment (Contention 1(b)(iii)) 1. The first particular relating to the Overdevelopment contention as a reason that the Proposed Development does not achieve the R3 zone objectives is the non compliance with the WDCP maximum site coverage control of 30% (clause D.2.7.3 WDCP). The numerical or quantitative non compliance with the site coverage control by the Proposed Development is 8% or a total site coverage of 38%. 2. In the JER Planning and Landscaping at par 71 Mr Daintry refers to the WDCP objective of this control which is "a high standard of amenity by controlling the proportion of site which may be covered by building to achieve adequate open space and reasonable privacy" (emphasis added) (clause D.2.7.1 WDCP). 3. The Applicant relies on meeting the objective or intent of the control and during the proceedings Mr Daintry unpacks how he reaches the opinion that the Proposed Development provides adequate open space and reasonable privacy. 4. Mr Bolduan approaches the non compliance differently and his evidence, at p 15 JER Planning and Landscaping is that the Proposed Development does not meet the objective of the site coverage control specified in clause D.2.7.1 of the WDCP because the Proposed Development does not: 1. Provide an adequately landscaped setting (as evidenced by the corresponding breach of minimum soft landscaped area control); 2. Provide adequate privacy between units 4-9 and units 10-11; 3. Provide a high standard of amenity because excessive development results in overshadowing of the private open spaces of Units 1-9 and Unit 10 internal living areas not receiving any sunlight on 22 June. 4. Provide amenity for Unit 10 which will be directly abutted by the visitor car space under the kitchen window. 1. I will address the concerns raised by Mr Bolduan in the context of the relevant contentions below but will firstly consider the adequate open space and reasonable privacy aspects of the site coverage control intent. 2. Mr Daintry was asked to unpack his conclusion that the Proposed Development achieved the intent of the site coverage control during the proceedings and he started with open space and then followed with addressing privacy. 3. Firstly, in relation to whether the Proposed Development provides adequate open space he refers the Court to the Site Plan drawing DA 1.20 Rev 12 in Exhibit E. Mr Daintry's opinion is that the extent of open space for future occupants is generous. He refers to the amenity of Units 10 and 11 which provide north facing open space and roof top private open space together with south facing open space being an advent to having access to shaded areas as required by the WDCP. It is Mr Daintry's opinion that adequate open space is achieved by the design of the Proposed Development. 4. Secondly, does the Proposed Development achieve reasonable privacy? Mr Daintry explains that it does by the provision of two layers to mitigate the direct privacy issues between units 5, 6, 7 and 8 and the roof tops of units 10 and 11 being the provision of privacy screens and landscaping elements. In relation to landscaping elements he notes on the Site Plan drawing DA 1.20 Rev 12 that Note 14 reads "Landscape screening rooftop planters." Mr Daintry concludes that as a result of the design and the implementation of these two layers of mitigation measures of privacy screens and landscaping, there is no direct line of sight between the units. 5. Mr Daintry was asked what the correlation was between the intent in clause D.2.7.1 and the control in clause D.2.7.3 and his evidence is that the control is the guidance on how to implement the intent. He said that the WDCP is a guideline document and referred the court to his reference at par 99 of JER Planning and Landscaping where Mr Daintry refers to the decision of Commissioner Dickson at [20]-[23] in Rose v Woollahra Municipal Council [2016] NSWLEC 1348 which provides as follows: "Weight given to the Development Control Plan 20. The EPA Act, at s79C(3A)(b) outlines how consent authorities are to give weight to, an apply provisions of, the relevant development control plans as detailed below: "S79C(3A) 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." 21. As was outlined by Moore AJ in Trinvivass Pty Ltd v Council of the City of Sydney [2015]NSWLEC15, at [68]: the effect of s79C(3A)(b) mandates taking a flexible approach to the matters in dispute between the parties and at 69 that this provision modifies the position that has followed since the decision in Zang V Canterbury City Council [2001] NSWCA 167, so that the issue is whether the objective of the development control is achieved by the proposal. 22. This approach was followed by Pearson C in Kotronakis v Pittwater Council [2015] NSWLEC1508 at [37] outlines the task for the consent authority to determine how the provisions of the DCP, which is a mandatory relevant consideration under s79C(1)(a)(iii) of the Act, should be applied to the development proposed. 23. I agree that the effect of sub-s 79C(3A)(b) is to require a flexible approach to those standards, allowing alternative solutions that would achieve the objects of the relevant standards." 1. I will consider the objections of Mr Bolduan firstly by noting that although the side setback control in clause D.2.8.3 WDCP was not pressed by the Respondent (contention 1(b)(v) SOFAC), this control was raised by Mr Bolduan as an issue in relation to the maximum site coverage control regarding whether the Proposed Development achieves reasonable privacy and his concern focused on the separation of the buildings and internal privacy. 2. Mr Daintry and Mr Bolduan gave evidence concerning the figure appearing beneath clause D.2.8.2(7) and (8) WDCP which I reproduce below: 1. The Applicant relies on the performance criteria regarding "building separation" at control 7 which provides "Council may give consideration to varying the minimum building separation distance if the applicant can demonstrate that the required level of privacy and solar access as stated in this Plan to the dwelling units and to adjoining properties can be complied with." 2. It was eventually agreed between Mr Daintry and Mr Bolduan during the proceedings that applying the formula prescribed in the figure above would require a building separation of 9.4m whereas the separation between the 2 relevant windows of the Proposed Development is 6.3m. 3. Mr Daintry's evidence is that whether you have a separation of 9.4m or 6.3m, privacy will be maintained by the occupants themselves at their discretion by the use of blinds, curtains or operable privacy screens. 4. In addition, I accept that the Applicant has proposed conditions of consent in Exhibit V to be complied with prior to the issue of a Construction Certificate numbered condition 3(b) to 3(e) which include changes consistent with the evidence given by Mr Daintry in response to the general privacy concerns raised by Mr Bolduan as follows: "(b) Privacy screens shall be provided to the northern edge of the rooftop terraces of Units 10 & 11 to prevent overlooking of south facing bedrooms windows of Units 4 to 9. Privacy screen shall be designed in general accordance with the plan titled Privacy Screen View Angles prepared by Brett Daintry and dated 15 May 2004, with the height of privacy screens preventing direct line of sight from the rooftop terraces to south facing bedroom windows of Units 4 to 9. (c) Internal blinds or privacy screens shall be provided to the south facing Ground Floor bedroom windows of Units 4 to 9 to prevent overlooking from the rooftop terraces or north facing First Floor windows of Units 10 and 11; (d) Internal blinds or obscure glass to a height of 1.65 metres shall be provided to the north facing First Floor bedroom and bathroom windows of Units 10 to 11 to prevent overlooking from south facing windows of Units 4 to 9; (e) External blinds or privacy screens remotely controlled from within the south facing Ground Floor bedroom windows of Units 4 to 9 to prevent overlooking from the rooftop terraces or north facing First Floor windows of Units 10 and 11;" 1. I accept the evidence of Mr Daintry and find that the Proposed Development will achieve the intent of the site coverage control because I am satisfied that there is adequate private open space and that reasonable privacy is achieved. I conclude that the evidence does not support the contention that numerical non compliance with the WDCP site coverage control results in the Proposed Development not achieving the R3 zone objectives. Separation of between windows (clause D.2.11.3 WDCP) and overdevelopment (Contention 1(b)(viii)) 1. The second particular relied on by the Respondent to support the overdevelopment contention refers to the positioning of windows and specifically to the control at clause D.2.11.3 WDCP which requires that "bedroom windows are to be at least 3m from shared streets, driveways, service and parking areas of other dwellings". I note that D.2.11 is titled "Privacy, Acoustic Privacy" and that the intent of this control, specified at clause D.2.11.1, is "to ensure the provision of maximum acoustic privacy, both within the development itself and between the development and adjoining properties." It is contended by the Respondent that non compliance with this control is a reason why the Proposed Development does not achieve the R3 zone objectives resulting in being an overdevelopment. 2. Mr Bolduan's evidence at par 58(g) in the JER Planning and Landscaping is that the Proposed Development does not achieve the objective, and by objective I understand he means the intent at D.2.11.1, because "The proximity of south facing bedroom windows in Units 4 to 9 to the internal road will cause adverse acoustic impacts from people and vehicles using that roadway. This will require that bedroom windows are closed in order to achieve acoustic privacy and this is not an acceptable amenity outcome." 1. Mr Daintry addresses acoustic privacy in the JER Planning and Landscaping at par 70 in the second bullet point stating as follows: "as to the issue of separation distances between dwellings 6, 7, 8, 9 and 10 and 11, subject to the inclusion of a privacy screens as detailed by Annexure 18 – BD's Privacy Screens Dwelling 10 and 11 being placed along the northern edge of the roof top POS of Dwellings 10 and 11 and having regard to the acoustic report 201211-20201203MBA_R1_Revised _DA_Acoustic_Assessment) (Annexure 5), there is adequate acoustic and visual privacy. Double glazing, louvres and window furnishing sufficiently resolve bedroom to bedroom privacy between units 4-9 and 10-11. The two green pergola's above the driveway also further mitigate reverberation impacts." 1. I have referred to the Revised DA Acoustic Assessment prepared by Acoustic Logic filed 2 February 2021 (Exhibit K) and note that the requirement to keep windows closed in all areas with façade facing south, west and east is in the context of ventilation requirements and complying with the NSW Department of Planning document "Development near Busy Roads and Rail Corridors – Interim Guideline" and states "although windows on these facades can be openable, the required internal noise level for rooms on these facades is only achieved when the windows are closed." (Exhibit K, p 12). 2. Further, the Revised DA Acoustic Assessment at par 8.2 considers the predicted noise level to windows of unit 4-11 facing driveway and concludes at table 8.2 that there will be noise compliance and at par 8.4 the concluding paragraph states as follows: "It is noted that traffic noise level from Eastern Valley Way is higher than the noise generated from the use of the common driveway, as such, the acoustic attenuation measure detailed in section 7 are sufficient to ensure compliance with the criteria." 1. On this evidence I am satisfied that the recommendation for mechanical ventilation for windows facing driveway within Unit 4-11 is to achieve a level of acoustic privacy from the road noise from Eastern Valley Way and not from the shared internal road or driveway. I am satisfied that the amenity concern raised by Mr Bolduan does not result from the proximity of the relevant bedroom windows to the internal road or driveway. There being no evidence of any acoustic privacy related amenity impact resulting from this proximity I find that this particular of the Overdevelopment contention is satisfactorily resolved. I conclude that the evidence does not support the contention that the numerical non compliance with this control results in the Proposed Development not achieving the R3 zone objectives. Solar access (clause D.2.13.3 WDCP) and overdevelopment (Contention 1(b)(ix)) 1. The third particular relied on by the Respondent as a reason to support the overdevelopment contention is that the private open spaces of Units 1-9 receive less than 3 hours direct sunlight on 22 June however there was evidence that raised and addressed the adequacy of solar access to the living rooms of Units 2 and 10 at the winter solstice (22 June). 2. There are five controls set out in cl D.2.13.3 WDCP as follows "D.2.13.3 Controls 1 Shadow diagrams must be submitted to illustrate compliance with the controls. 2 New developments are to be designed to maximise the entry of winter sun and minimise the entry of summer sun to most of the habitable rooms and private open spaces of the dwelling units by the siting and orientation of the buildings and the use of appropriate landscaping and sun screening methods. 3 The principal portion of any outdoor communal space of the development must have at least 3 hours of sunlight between 9 am and 3 pm on June 22. 4 The north facing windows of living areas and the principal portion of the recreational open space of adjoining residential buildings should have at least 3 hours of sunlight between 9 am and 3 pm on June 22. 5 Where existing overshadowing by buildings and fences is greater than this, sunlight should not be reduced by more than 20%." 1. The Respondent submits that the controls at D.2.13.3 of the WDCP are "aimed at having new developments designed to maximise the penetration of winter sunlight to most of the habitable rooms and private open space areas. A large proportion of this development fails to achieve this aim." 2. Mr Daintry's evidence at par 70 of the JER Planning and Landscaping is that "Each proposed dwelling has ample northern solar access." 3. The intent or objective of this control which is provided for at clause D 2.13.1 WDCP provides as follows: "D.2.13.1 – Intent 1 That the design of development provides for adequate solar access in winter and summer. 2 To avoid the potential for significant overshadowing of neighbouring dwellings, open spaces, recreation areas and public areas used by pedestrians (such as malls, parks and the footpaths in commercial areas.)" 1. Mr Bolduan's evidence in support of this contention is at par 58(h) of the JER Planning and Landscaping at p 18 and he says that the Proposed Development does not achieve the objective of this control because "The private open spaces of Units 1-9 receive less than 3 hours direct sunlight on 22 June. This is a result of the extensive bulk excavation of the rear of the site, resulting in a dropping of the ground level and overshadowing. Furthermore, Unit 10 internal living areas will not receive any sunlight between 9 am and 3 pm on 22 June." 1. Both Mr Daintry and Mr Bolduan gave further oral evidence regarding solar access. 2. In relation to solar access, the Applicant submits at par 90 that Mr Bolduan's evidence focused on the lack of sunlight to the living room to Unit 10 during the winter solstice. Mr Bolduan concedes that there is no numerical control for minimum periods of sunlight, and acknowledges that the objective was to maximise solar access and referred to clause D.2.9.2(3) WDCP which in relation to private open spaces provides that private open spaces should be "(ii) located so as to maximise solar access, that is, preferably oriented from north-east to north-west." 3. I accept Mr Daintry's oral evidence that there will not be extensive excavation of the Site and that the Site has a southerly orientation and that resulting from the slope from the rear to the front, the Site is overshadowed because of the topography. Mr Daintry acknowledges that the units that will get no solar access to the living rooms at the winter solstice are Units 2 and 10 and that Unit 2 is the worst affected because its private open space is not in sunlight at the winter solstice either. Mr Daintry distinguishes Unit 10 on the basis that it has a "high amenity outcome because of roof top private open space which provides excellent winter sunlight access." (Applicant, written submissions at par 132). 4. I accept Mr Daintry's evidence and explanation that there can be no reasonable expectation that even the most skilful architect could, on a south facing steep site on the low side of a ridge in an R3 zone, achieve 100% solar access. Although Mr Daintry refers to and relies to some extent on the requirements for residential flat buildings in the Apartment Design Guide where 70% of units must achieve solar access and no greater than 15% must receive no solar access, I accept Mr Daintry's evidence and explanation as achieving the intent or objective of the control to maximise the entry of winter sun because there is no control in the WDCP that requires that 100% of the units achieve the three hours solar access. 5. I find that the living areas of nine of the eleven units achieve adequate solar access mid-winter to their private open space and that only Unit 2 receives a negligible amount of solar access to its private open space at the winter solstice. The concern raised about Unit 10, although not raised in the Contentions, has been satisfactorily addressed and I accept the evidence of Mr Daintry regarding the overall amenity of Unit 10 because of its roof top private open space. I am satisfied that the solar access achieved by the Proposed Development is an acceptable outcome for this steep south facing site and I agree with the Applicant's submission at pars 134-135 that raising levels or heights would not result in any improvement but rather would result in more bulk, scale and associate impacts and more shadowing within the Site. 6. I conclude that the Proposed Development has maximised solar access to most of the habitable rooms and open space and that the evidence does not support this contention as a reason that the Proposed Development will not achieve the R2 zone objectives. Cl 4.6 written request (Exhibit P) to justify the contravention of the FSR development standard cl 4.4 WLEP 1. The cl 4.6 written request prepared by Mr Daintry dated 12 December 2020 (Exhibit P) (Written Request), at pars 7 – 9 on p 7 of 15, provides that the FSR Development Standard in cl 4.4 of the WLEP is an FSR of 0.7:1 whereas the proposed FSR is 0.73:1, an exceedance by 70.85m2 or 4.67%. 2. Mr Daintry at par 63 in the JER Planning and Landscaping notes that "nothing in the contentions and related particulars, nor in any preceding discussions with Council, took issue with the justification within the cl 4.6 written request primarily being the need for more onsite parking as there is no off-site parking in the immediate vicinity of the site." The cl 4.6 written request relies on the Varga Traffic and Assessment Report which I note has been superseded by the Varga Revised Traffic and Parking Assessment Report dated 17 March 2020 (Exhibit L). 3. At par 64 of JER Planning and Landscaping Mr Daintry appropriately notes that the Written Request (Exhibit P) justifies the exception to the FSR Development Standard, does not repeat its contents and that the statutory precondition must be considered in full. 4. It is agreed that Eastern Valley Way is a classified road by the Roads and Maritime Services (RMS) as a State Road and that it provides the key north-south road link in the area linking Roseville and Northbridge. Kerbside parking is generally prohibited on Easter Valley Way as a result of clearway restrictions which apply along both sides of the road during community peak periods. Mr Daintry concludes that as no on-street parking is available within the immediate vicinity of the Site to service the development, "therefore it is reasonably necessary to provide 8 additional onsite parking, in this circumstance, to service the development." (Exhibit P, p 2). 5. It follows, that as the Applicant is not able to rely on any on-street parking, the Applicant seeks to internalise all of the parking requirements to service the Proposed Development ultimately resulting in 5.75 parking spaces in excess of the required parking for the Proposed Development on the Site. The consequence of this is the application of clause C.4.2 of the WDCP which provides: "If any spaces are provided which are in excess of the specified rates, these spaces will be included in the calculation of floor space ratio." 1. Accordingly, the Applicant's case is that the Proposed Development contravenes the FSR Development Standard as a result of the design response to constraints of the Site, namely the need to provide all parking for the Proposed Development entirely within the Site and as a result, "environmental planning justification is found in the provision of more onsite parking to offset the fact there is no on-street parking within the immediate vicinity of the site." (Exhibit P, p 2). 2. Mr Daintry's cl 4.6 written request seeks to demonstrate that: 1. The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)); 2. The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)); 3. Compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cll 4.6(3)(a) and 4.6(4)(a)(i)); and 4. There are sufficient environmental planning grounds to justify contravening the development standard (cll 4.6(3)(b) and 4.6(4)(a)(i)). 1. The Respondent submits in written submissions at pars 6, 10 – 11 that the cl 4.6 written request has not been framed nor based on any sound reasoning to justify the departure from the development standard and has not addressed the relevant R3 zone objectives and the objectives of the FSR development standard found in cl 4.4(1) of the WLEP. The Respondent submits as follows: "The applicant's planning evidence [in Exhibit 2] proffered in relation to the written request does not adequately address the relevant limbs of clause 4.6(3)(a) and (b) for the Court to be satisfied that a development consent ought to be granted. Notably, paragraph 64 of Exhibit 2 defers the important consideration of the jurisdictional matters set out in clause 4.6(4)(1)(i) and (ii) back to Exhibit P which of itself, with respect, is contrary to the examination and analysis necessary to justify a departure from the floor space ratio development standard pursuant to clause 4.4 of the WLEP. Mr Daintry's commentary at paragraph 63 in Exhibit 2 does not obviate the need to provide a thorough analysis of clause 4.6(3)(a) and (b) of the WLEP. Accordingly for this reason alone the Court cannot grant consent to this proposal." 1. I do not agree with the Respondent and am satisfied that the justification for the contravention of the FSR Development Standard must be contained within the cl 4.6 written request and that apart from considerations of public interest I am required to consider only what is contained within the cl 4.6 written request prepared by Mr Daintry. 2. I will now undertake the task required pursuant to cl 4.6 of the WLEP which provides as follows: 4.6(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating— (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. 4.6(4) Development consent must not be granted for development that contravenes a development standard unless— (a) the consent authority is satisfied that— (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, and (b) the concurrence of the Planning Secretary has been obtained. Is compliance with the FSR Development Standard unreasonable or unnecessary? (cl 4.6(3)(a) and cl 4.6(4)(a)(i)) 1. The first matter to be adequately demonstrated by the cl 4.6 written request is that compliance with the FSR Development Standard is unreasonable or unnecessary. This must be demonstrated in the cl 4.6 written request (Exhibit P) (the Written Request). 2. Mr Daintry refers to the 5 tests in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 ('Wehbe') and at page 3 of the Written Request states that the cl 4.6 request makes clear that "it is unreasonable or unnecessary in the circumstances of the case to require technical numerical compliance with the maximum FSR where the additional GFA does not add to the bulk and scale of the proposal and serves the legitimate purpose of providing a reasonable number of parking spaces for vehicles generated by a development including visitors within the site where there is no offsite parking in the immediate vicinity." Mr Daintry notes that the Traffic Engineers have in their report "resolved parking and traffic contentions supporting the parking arrangements for this proposal" (Exhibit P, p 3) 3. Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118, Preston CJ at [16] – [22] confirmed the common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary as follows: "16. As to the first matter required by cl 4.6(3)(a), I summarised the common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe v Pittwater Council at [42]-[51]. Although that was said in the context of an objection under State Environmental Planning Policy No 1 – Development Standards to compliance with a development standard, the discussion is equally applicable to a written request under cl 4.6 demonstrating that compliance with a development standard is unreasonable or unnecessary. 17. The first and most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard: Wehbe v Pittwater Council at [42] and [43]. 18. A second way is to establish that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary: Wehbe v Pittwater Council at [45]. 19. A third way is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable: Wehbe v Pittwater Council at [46]. 20. A fourth way is to establish that the development standard has been virtually abandoned or destroyed by the Council's own decisions in granting development consents that depart from the standard and hence compliance with the standard is unnecessary and unreasonable: Wehbe v Pittwater Council at [47]. 21. A fifth way is to establish that the zoning of the particular land on which the development is proposed to be carried out was unreasonable or inappropriate so that the development standard, which was appropriate for that zoning, was also unreasonable or unnecessary as it applied to that land and that compliance with the standard in the circumstances of the case would also be unreasonable or unnecessary: Wehbe v Pittwater Council at [48]. However, this fifth way of establishing that compliance with the development standard is unreasonable or unnecessary is limited, as explained in Wehbe v Pittwater Council at [49]-[51]. The power under cl 4.6 to dispense with compliance with the development standard is not a general planning power to determine the appropriateness of the development standard for the zoning or to effect general planning changes as an alternative to the strategic planning powers in Part 3 of the EPA Act. 22. These five ways are not exhaustive of the ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary; they are merely the most commonly invoked ways. An applicant does not need to establish all of the ways. It may be sufficient to establish only one way, although if more ways are applicable, an applicant can demonstrate that compliance is unreasonable or unnecessary in more than one way." 1. Mr Daintry addresses the first method identified in Wehbe, namely compliance with the FSR Development Standard is unreasonable or unnecessary in the circumstances of the Proposed Development because the objectives of the development standard are achieved notwithstanding non-compliance with the standard. The objectives of the cl 4.4 FSR Development Standard are listed and addressed individually in the Written Request at page 9 of 15. 2. The objectives of the FSR development standard in cl 4.4 WLEP are as follows: (a) to limit the intensity of development to which the controls apply so that it will be carried out in accordance with the environmental capacity of the land and the zone objectives for the land, (b) to limit traffic generation as a result of that development, (c) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (d) to manage the bulk and scale of that development to suit the land use purpose and objectives of the zone, (e) to permit higher density development at transport nodal points, (f) to allow growth for a mix of retail, business and commercial purposes consistent with Chatswood's sub-regional retail and business service, employment, entertainment and cultural roles while conserving the compactness of the city centre of Chatswood, (g) to reinforce the primary character and land use of the city centre of Chatswood with the area west of the North Shore Rail Line, being the commercial office core of Chatswood, and the area east of the North Shore Rail Line, being the retail shopping core of Chatswood, (h) to provide functional and accessible open spaces with good sunlight access during key usage times and provide for passive and active enjoyment by workers, residents and visitors to the city centre of Chatswood, (i) to achieve transitions in building scale and density from the higher intensity business and retail centres to surrounding residential areas, (j) to encourage the consolidation of certain land for redevelopment, (k) to encourage the provision of community facilities and affordable housing and the conservation of heritage items by permitting additional gross floor area for these land uses. 1. Addressing each of the above objectives of the FSR Development Standard, the Written Request, provides as follows: 1. The additional parking does not impact the intensity of development; 2. The number of parking spaces does not change the number of dwellings; 3. The number of parking spaces have no impacts upon views, loss of privacy, overshadowing or visual intrusion; 4. The additional parking spaces have no impacts upon bulk and scale; 5. The additional parking spaces have no impacts upon development density; 6. Objectives (f), (g), (h) and (k) are not applicable to the Proposed Development; 7. The Site is wholly within the R3 zone; 8. The Site will be consolidated to form an appropriately proportioned site and site area for medium density development; 1. The Written Request then goes on to address the other tests in Wehbe at pp 10 to 12 and concludes on p 13 that: "The burden placed on the future residents of the development (by requiring strict compliance with the development standard together with the absence of any lawful on-street parking in the immediate vicinity) would be disproportionate to the (non-existent or inconsequential) adverse consequences attributable to the proposed non-compliant development" 1. In the JER Planning and Landscaping, Mr Bolduan refers to objectives (a), (c) and (d) of the FSR Development Standard and at p 12 his opinion is as follows: "The proposal does not achieve the above objectives … because: The non-compliance is caused by the totality of the proposal, not just the extra car parking spaces. The additional car parking spaces could be contained within a compliant building envelopment, that is, the remainder of the development could be reduced so that the total GFA/FSR would be compliant. The GFA/FSR exceedance corresponds to breaches of the WDCP controls pertaining to density and height (Clause D2.5), site coverage (Clause D2.7.3), setbacks (Clause D2.8.3), distances between buildings (Clause D2.8.3), recreational area (Clause D2.9.3) and soft landscaping (D2.10.3). These breaches indicate that the proposal exceeds the environmental capacity of the land." 1. The Applicant submits that cl 4.6 is intended to be facultative and submits that the Applicant does not ask the Court to ignore or overlook the provisions of the WDCP. However, s 4.15(3A)(b) of the EPA Act expressly provides that a DCP is to be applied flexibly and to allow reasonable alternative solutions. The Applicant relies on the decision of Preston CJ in Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 at [37] which provides as follows: "Furthermore, insofar as the desired future character provisions of WDCP set standards with respect to an aspect of development that can be carried out on the site and its surrounds, the consent authority, in determining a development application for such development, "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" (s 4.15(3A)(b) of the EPA Act)." 1. I accept the Applicant's submission and I prefer the reasoned analysis of Mr Daintry of the FSR Development Standard objectives set out in the Written Request. Elsewhere in this judgment I address the intent or objects of the relevant controls referred to by Mr Bolduan in his objection to the Written Request. I am not persuaded that these numerical non-compliances with the WDCP controls are sufficient reasons to establish that the objectives of the FSR Development Standard are not achieved. I form this view because the evidence before the Court satisfactorily establishes that the Proposed Development achieves the intent or objectives of the relevant controls contended by the Respondent and in accordance with s 4.15(3A)(b) of the EPA Act. 2. I conclude that the Written Request adequately addresses and demonstrates that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard (cl 4.6(3)(a) and I am satisfied that the Proposed Development is consistent with the objectives of the FSR Development Standard for the reasons given by Mr Daintry in the Written Request. Are there sufficient environmental planning grounds to justify the contravention of the FSR development standard? (cl 4.6(3)(b) and cl 4.6(4)(a)(i)) 1. The second matter that must be adequately demonstrated in the Written Request is that there are sufficient environmental planning grounds to justify the contravention of the FSR Development Standard. The environmental planning grounds provided in the Written Request at page 14 are as follows: "(a) With respect to the FSR those elements of carparking included in the GFA that cause the technical and numeric breach of the FSR do not add to the visual bulk or scale of the buildings and deleting the additional off-street parking would occasion the same bulk and scale and general impacts. (b) The absence of any on-street parking in the immediate vicinity of the site differentiates the site and the proposal from other sites that benefit from on-street parking in their vicinity. (c) The additional on-site parking is, in the circumstances of this case, a fair and reasonable response to the absence of legal on-street parking in the vicinity of the site and there will be acceptable traffic and parking impacts as detailed by the Traffic and Parking Assessment Report by Varga Traffic Engineers demonstrating the proposal is consistent with the LEP and DCP objectives and the Traffic Engineering evidence does not take exception to additional on-site parking in this circumstance." 1. I am satisfied that the cl 4.6 has adequately addressed and demonstrated that there are sufficient environmental planning grounds to justify the contravention of the cl 4.4 FSR development standard and I adopt the reasons given by Mr Daintry set out in the paragraph above. Is the Proposed Development in the public interest? (cl 4.6(4)(a)(ii)) 1. The third matter is that I must be satisfied that the Proposed Development is in the public interest because it is consistent with the objectives of the FSR Development Standard and consistent with the objectives of the R3 Medium Density Residential zone. In this regard, I am not limited to the contents of the Written Request and I have also considered the contents of the JER Planning and Landscaping (Exhibit 2) and the oral evidence of the witnesses during the proceedings. 2. I have found above at [77] that I am satisfied that the Proposed Development is consistent with the objectives of the FSR Development Standard. 3. In relation to the objectives of the R3 medium density residential zone I noted earlier in this judgment at [14] that the Respondent did not press this aspect of the particulars to the Overdevelopment contention, namely the inconsistency with the two stated objectives of the R3 zone (contention 1(a)). 4. Mr Daintry relies on the decision of Commissioner Gray in Gejo Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1712 at [28] to support that in relation to cl 4.6(4)(a)(ii), there is a presumption that if the proposed development is consistent with the objectives of the zone and of the development standard then it is in the public interest (Exhibit P, par 28). 5. Mr Daintry at par 66 p 19 Joint Expert Report (JER) Planning and Landscaping refers to the agreement that cl 6.2 of the WLEP is satisfied having regard to the extent of excavation and the geotechnical report and goes on to say as follows: "The additional parking is buried and does not contribute to the bulk and scale of the proposal. Its deletion and numeric compliance with the GFA would not further reduce the height or bulk" 1. The Objectives of the R3 Medium Density Residential zone specified in the WLEP, in particular the two originally stated in the SOFAC which are not pressed by the Respondent and are identified by underline emphasis below are as follows: Zone R3 Medium Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To accommodate development that is compatible with the scale and character of the surrounding residential development. • To allow for increased residential density in accessible locations, while minimising the potential for adverse impacts of such increased density on the efficiency and safety of the road network. • To encourage innovative design in providing a comfortable and sustainable living environment that also has regard to solar access, privacy, noise, views, vehicular access, parking and landscaping. 1. The relevant R3 zone objectives in the circumstances of the FSR development standard are the last three listed above and in response to these Mr Daintry states as follows: 1. the height, shape, bulk and landscape outcomes are consistent with the character of the surrounding residential developments, compliance with the height of buildings (HOB) and setbacks being achieved the proposal is consistent with the existing and desired future character of the R3 zone. (Written Request, p 8 of 15) 2. the site is located on Eastern Valley Way and this road is classified by the RMS as a State Road which provides the key north-south road link in the area, linking Roseville and Northbridge and notes that the traffic and parking assessment report confirms that there are no adverse impacts from increased density on the efficiency and safety of the road network (Written Request, p 8). 3. Finally, in relation to innovative design, Mr Daintry states that "the proposal provides ESD with excellent amenity for future occupants, under the maximum HOB, such that the amenity impacts upon neighbours are negligible to minor" (Written Request, p 8). 1. I accept that firstly, as contention 1(a) was not pressed by the Respondent the Proposed Development is prima facie consistent with the objectives of the R3 Medium Density Residential zone. In any event, I have considered the zone objectives and am satisfied that the Proposed Development is consistent with them for the reasons set out by Mr Daintry in the Written Request. 2. I conclude that for the reasons given above I am satisfied that the Proposed Development is 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. Adequacy of soft landscaping – clause D.2.10.3 (Contentions 1(b)(vii), 2(a) and 5(a)) 1. These contentions arise from an alleged numerical non-compliance with the control in clause D.2.10.3 of the WDCP which requires a minimum of 35% soft landscaping on the Site, or 759m2. The Respondent's position is that there is a shortfall of 94m2 of soft landscaping in so far as that the applicant's inclusion of artificial turf and area beneath eaves is an inappropriate solution. (Respondent's submissions at par 29). 2. The definition of soft landscaped area in the WDCP Dictionary (Exhibit S) is as follows: "soft landscaped area means a component of recreational open space, and meant that part of a site which is not occupied by any building, structure or work (such as swimming pools, tennis courts, driveways etc.) and which is vegetated with gardens, lawns, shrubs or trees, but does not include any paved areas." 1. During the proceedings, Mr Daintry corrected his evidence at par 96 in the JER Planning and Landscape to read as follows: "There is numerical compliance in soft landscape area as detailed by Annexure 13 – DA_1.161_Rev01_Proposed Landscaped Areas Plan (774.4m2 or 35.5%)" 1. The issue in dispute remains the quantity of soft landscaping area provided in the Proposed Development as it appears that the experts agree that the quality of soft landscaping provided achieves effective compliance with the WDCP. The relevant landscaping contentions are in the context of 1. the numerical non-compliance with clause D.2.10.3 is presented as a reason for the Proposed Development not achieving the objectives of the R3 zone (contention 1(b)(vii)); 2. The Proposed Development does not achieve the amenity aims in cl 1.2(e) of the WLEP or the R3 zone objective because of the numerical non-compliance with clause D.2.10.3 (contention 2(a)); and 3. The Proposed Development's unacceptable impacts on the adjoining properties resulting in low amenity for neighbours overlooking the Site (Contention 5(a)). 1. In the JER Planning and Landscaping at pars 77 - 78 the experts agreed to further amendments to the landscape plan and these amendments were made to the plans to provide for an improved landscape outcome within the site boundaries. These changes are reflected in Annexure 14 to the JER Planning and Landscaping and were tendered and marked Exhibit G Revised Landscape Plans. 2. Ms Haege-Thorvaldson's evidence is that the landscape intent and outcomes of clause D.2.10 are met (JER Planning and Landscaping at pars 89 – 95). In addition, Ms Haege-Thorvaldson gave evidence that on her revised calculations against the WDCP definitions, the Proposed Development complies with the 35% minimum soft landscaped area for the Site. 3. The Landscape Experts agree that the Particulars of the Contention 2(a), (b) and (c) have been addressed and I set these out in full from the JER Planning and Landscaping at par 82 as follows: "(a) Additional soft landscaped area has been achieved via the deletion of three swimming pools and paved areas to the rear of the units and replacement with soft landscape elements. (b) Additional trees, shrubs, groundcovers, climbers and trellises have been provided within the site to provide an appropriate landscape setting. (c) Additional planting has been provided to the garden beds between Unit 10-11 and 4-9; additional vertical garden structures have been provided to the facades of the buildings fronting the access drive; two trellis structures incorporating climing vines have been provided over the access drive between units 10-11 and 4-9 providing softening of the space and the building facades. (d) Small/medium sized trees are provided in raised planters along the side and rear setbacks. Following discussions with the Planning Experts, it was agreed that in this instance there was a tension between the desire for heavy screen planting and maintenance of view corridors from residences to the north of the site. In order to address the need for retaining existing view corridors, the size of trees proposed are considered adequate to provide for screening and environmental benefit without impacting on the amenity of adjoining residents. (e) Amendments to the Landscape Plans have incorporated additional tree and shrub planting to the front boundary of the site, replacing areas previously shown a lawn forward of Units 10-11 and Unit 1. The increased vegetation provision is considered adequate to provide for screening of the visitor parking bays as the planting matures. Additionally, architectural screen fencing forward of the visitor parking bays is proposed as shown on Drawing DA_4.570 and DA_2.120_Rev01_Street Elevation Sheet 1 and DA_2.121_Rev01_Street Elevation Sheet 2 by Howe Architects to provide immediate screening. (f) Artificial turf has been provided to the courtyards at the rear of units 4-9 and is clearly marked on the amended plans. In this instance, the Landscape Experts agree that maintenance of turf in these areas would be difficult due to low light levels in this location on the southern side of the retaining walls and fences. Permeability will still be maintained through the artificial turf enabling ground water recharge and useable rear courtyard spaces. All other areas on the site proposed for lawn are clearly marked on the plans." 1. Mr Bolduan does not agree on the basis that the planning experts are in disagreement over the calculation of the area of soft landscape provided on the Site and Mr Powe makes no comment about whether the amended plans achieve the minimum area of soft landscaping but does consider the provision of compliant soft landscape areas to be important "as the existing landscape is to be significantly altered by the development proposed and that this development is one of the first to transition from the former R2 Zone to the now R3 Zone" (par 87 JER Planning and Landscaping). 2. I have addressed earlier in this judgment the issue or concern of precedent and the fact that it was not raised as a contention. I therefore give little weight to the comment of Mr Powe in that regard. 3. Mr Bolduan at par 86 of the JER Planning and Landscaping confirms his opinion that there remains a shortfall of soft landscaping of 94m2 and he relies on the exclusion of the artificial turf under eaves which is referred to at (f) above in [95] of this judgment. 4. I accept the evidence of Ms Haege-Thorvaldson that the landscape elements compilate to propose a considered, designed landscaped setting that proposes to enhance the local context and streetscape setting more than is currently existing, and proposes a high quality and attractive landscape setting, sensitive and responsive to the site's attributes (par 91 JER Planning and Landscaping). This is qualitative assessment and I accept that the intent or object of the soft landscaping control is achieved whilst providing an alternative solution of the artificial turn under the eaves as detailed in par 82(f) of the JER Planning and Landscaping quoted above at [95]. 5. In response to contention 5(a) which relates to the impact of the Proposed Development on the adjoining properties resulting in low amenity for neighbours because of insufficient landscaping as required by D.2.10.3 of the WDCP, I note that at page 28 of the JER Planning and Landscaping at par 128 the experts evidence is as follows: "We agree that the landscape area provided by the side and rear setbacks as detailed by the landscape plans is sufficient to provide a vegetative screen from neighbours and is consistent with the relevant DCP objectives and this is consistent with the Landscaping evidence." 1. I am satisfied that there is sufficient soft landscaping because I accept the evidence of the landscaping experts that on the south facing Site the provision of artificial turf is a satisfactory alternate solution and I accept their conclusion that the quality of soft landscaping provided achieves effective compliance with the WDCP by achieving the intent or objects of the control, being a relevant consideration pursuant to s 4.15(3A)(b) of the EPA Act. 2. This resolves contentions: 1. 1(b)(vii) - overdevelopment, 2. 2(a) – unsatisfactory landscaping and 3. 5(a) – impact on neighbours in relation to overlooking onto the Proposed Development. Is the vehicle access and parking satisfactory? Contention 3 1. The Traffic Experts Robert Varga for the Applicant and Clare Woods for the Respondent prepared a Joint Expert Report Traffic filed 15 December 2020 (Exhibit 3) (JER Traffic) and they agree that contention 3 is resolved. Mr Varga and Ms Woods were not required for cross examination and I accept their evidence. Accordingly, I do not give any weight to the comments made in written submissions by the Respondent at par 2.5 that the vehicular manoeuvring throughout the site is tight and in some areas awkward and I accept the Applicant's submission in reply at par 7(iv) that the Respondent does not specify where on the Site vehicular manoeuvring is said to be 'tight' or 'awkward' or what adverse consequence is said to flow from this. There is no evidence before the Court to support this assertion and I reject it on that basis. 2. The Respondent's expert town planner, Mr Bolduan, raised a new concern during the hearing about the impact on the amenity of unit 10 of the visitor car parking space. The Respondent included this as a topic for cross examination of the planners during the proceedings however in written submissions, the Respondent is otherwise silent on the alleged impact on amenity of Unit 10 of the visitor car parking space. 3. I do not give any weight to the new issue raised during the hearing because it was not raised in the contentions and the Respondent did not make any submissions in relation to the alleged impacts. I am satisfied that Mr Daintry and Mr Bolduan addressed the location of the visitor car parking space and that it is located below a high light kitchen window. There is no evidence of any adverse impact on the amenity of Unit 10 resulting from the visitor car parking space. 4. In the JER Planning and Landscaping the planning experts note that vehicle access and parking was addressed by the Traffic Engineering Evidence and the planning experts made an observation in relation to particular (f) of Contention 3 regarding the combined driveway and recommended that a left only sign be conditioned to be placed on the left hand side of the driveway at the boundary on a 1.2m high hot dip galvanised street sign pole to assist in compliance with the left only movement (Exhibit 2, par 111). 5. I have reviewed the Proposed Conditions of Consent filed by the Respondent 23 February 2021 (Exhibit 7) and I note that it does not include this recommendation. On this basis, I prefer the Proposed Conditions of Consent filed by the Applicant 8 March 2021 (Exhibit V) which does include this recommendation in proposed consent condition 3(f) requiring amendment of the proposal prior to the issue of a construction certificate as follows: "A left only sign is to be placed on the left hand side of the driveway at the boundary on a 1.2m high hot dip galvanised street sign pole." Adaptable and affordable housing (contention 4) 1. This contention refers to achieving the aims of cl 1.2(2)(f) of the WLEP which provides as follows: (2) The particular aims of this Plan are as follows— (f) for housing— (i) to provide opportunities for a range of housing choice in Willoughby to cater for changing population needs in accessible locations, and (ii) to facilitate the provision of adaptable and affordable housing, 1. Dealing first with adaptable housing, the WDCP clause C.6 requires 3.65 dwellings to be adaptable. The Respondent seeks 3 adaptable dwellings and I note that the Applicant's Proposed Conditions of Consent filed by the Applicant on 8 March 2021, Exhibit V, includes a condition 3(g) which requires the Proposed Development to be amended prior to the issue of a construction in the following manner: "3 units are to be nominated as adaptable dwellings on the site plan. A suitably qualified access consultant is to provide a report demonstrating that the nominated adaptable dwellings are capable on being adaptable and capable of complying with AS 4299. The report is to include plans of the nominated adaptable dwellings showing the dwellings in pre-adaptive and post-adaptive state with the adaptive plans showing paths of travel and dimensions of circulation spaces in accordance with the deemed to satisfy or performance solutions identified in the access report." 1. On the basis that the Respondent seeks and that the Applicant now agrees to provide for 3 adaptable housing dwellings within the Proposed Development, I am satisfied that the aims of the WLEP regarding the provision of adaptable housing is achieved. 2. Dealing secondly with affordable housing, cl 6.8(2) of the WLEP provides as follows: (2) Development consent must not be granted to the erection of residential accommodation on land identified as "Area 3" or "Area 9" on the Special Provisions Area Map unless the consent authority has taken the following into consideration— (a) the Willoughby Affordable Housing Principles, (b) the impact the development would have on the existing mix and likely future mix of residential housing stock in Willoughby, (c) whether one of the affordable housing conditions should be imposed on the consent for the purpose of providing affordable housing in accordance with the Willoughby Affordable Housing Principles. 1. The planning experts in the JER Planning and Landscaping page 26 at par 118 state that "we agreed that having considered the matters under cl 6.8(2) of the WLEP, the housing mix is appropriate provided a condition is imposed under cl 6.8(3)(b) of the WLEP". 2. In accordance with the experts' agreement, the proposed consent condition 5 provides for the monetary contribution as required by cl 6.8(3)(b) of the WLEP. The Applicant proposes amendments to the wording of consent condition 5 and the Respondent, in written submissions did not object to the proposed changes. I find that the wording of consent condition 5 as proposed by the Applicant in Exhibit V is the preferred wording. 3. With the inclusion of consent condition 3(g) and consent condition 5, I am satisfied that the Proposed Development achieves the aims in cl 1.2(2)(f) of the WLEP and that contention 4 is resolved. Public interest 1. In opening the Respondent made clear that the Respondent only pressed neighbouring view loss as a matter raised by the objectors going to the public interest, which was not expressly raised as a contention, and the Respondent does not maintain that this is a separate reason warranting refusal of the Development Application. As public interest is an assessment consideration provided in s 4.15(1)(e) of the EPA Act I will consider the evidence before the court. 2. It is acknowledged by the parties that there will be some view loss to the residents of 14 Warners Avenue Willoughby resulting from the transition from the existing low density residential dwellings to the R3 medium density residential development. 3. The evidence is that the Proposed Development is "predominantly well below the maximum height" (par 131 at p 28 JER Planning and Landscaping) and the planning experts agree that the view loss from No 10 and No 12 is considered to be minor and the view loss from No 33 is not caused by any non-compliance, is minor and acceptable (par 137 at p 29 JER Planning and Landscaping). Similarly, Mr Daintry's evidence is that the view loss from No 14 is not caused by any element breaching any development standard or development control (par 143 at p 30 JER Planning and Landscaping) and after observing that No 14 retains panoramic views from its first floor, concludes at par 151 that the "proposal achieves adequate sharing of views and the view lost are caused by the inevitable impacts of the increased density in this contemporary R3 zone." 4. In the JER Planning and Landscaping p 28 at par 129 Mr Bolduan's request that the height of landscaping along the western boundary to Willoughby Market Gardens be limited in height to maintain the views from No. 14 to the south and south-west along the general alignment of Eastern Valley Way was considered by the Landscaping experts and they are satisfied that the mature heights of the proposed trees in this location will achieve this objective. 5. I accept the conclusion of Mr Daintry above and accept the Respondent's submission that loss of view is not in itself a reason for refusal of the Proposed Development. 6. I also note my findings above at [88] in relation to cl 4.6(4)(a)(ii) of the WLEP insofar as the Proposed Development is 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. Conclusion on merit 1. Having considered the submissions of the parties and the evidence before the court, I conclude that the Applicant's Proposed Development should be approved for the reasons given in this judgment. 2. I will now address the proposed conditions of consent and note that it will be necessary that the Parties undertake work to finalise conditions of consent so that final orders can be made to dispose of the appeal by way of a grant of approval to the Proposed Development subject to conditions of consent. Jurisdictional prerequisites 1. In addition to the cl 4.6 written request seeking to justify the contravention of the FSR development standard there are a number of other jurisdictional prerequisites that need to be satisfied prior to the granting of consent. The JER Planning and Landscaping identifies and addresses these at pp 9 to 11 which are as follows: 1. Willoughby Local Environmental Plan 2012 (WLEP) 2. State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) 3. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 4. State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 5. State Environmental Planning Policy No 19 – Bushland in Urban Areas 6. State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) 7. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 1. I have read and considered these jurisdictional prerequisites and I accept and adopt the reasons set out in the JER Planning and Landscaping. Proposed/Draft Conditions of Consent 1. The Applicant's Proposed/Draft Conditions of Consent, Exhibit V was filed on 8 March 2021 and proposes a number of amendments to the Respondent's Proposed/Draft Conditions of Consent in track changes and providing comments and reasons for the changes in yellow highlight. The Respondent did not object to the proposed amendments in the written submissions filed 1 April 2021. I have considered the changes proposed by the Applicant and am satisfied that they are appropriate. Directions 1. It will be necessary that the Parties undertake work to finalise conditions of consent so that final orders can be made to dispose of the appeal by way of a grant of approval to the Proposed Development subject to conditions of consent. To that end, I make the following directions. 2. The Court directs that: 1. the Respondent is to file with the Court final, agreed, conditions of consent, reflecting the conclusions of this judgment above at [125] by no later than midday on 6 October 2021; 2. the matter is listed for mention on 13 October 2021 at 4:15pm; 3. if direction (1) above is complied with, an order will be made granting development consent and the mention on 13 October 2021 will be vacated; 4. the Parties are granted liberty to restore on three days' notice. ………………………. E Espinosa Commissioner of the Court ********** 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: 22 September 2021