Land and Environment Court New South Wales Medium Neutral Citation: Owsnett v Sutherland Shire Council [2022] NSWLEC 1528 Hearing dates: 23 March 2022 Date of orders: 28 September 2022 Decision date: 28 September 2022 Jurisdiction: Class 1 Before: Harding AC Decision: The Court orders that: (1) The Appeal is upheld. (2) Development Application No DA21/0241, for the demolition of the existing dwelling and construction of a new dwelling, games room and double garage, with ancillary driveway, earthworks, retaining works and landscaping, is determined by the granting of Development Consent subject to the Conditions in Annexure "A". (3) The Exhibits are returned, with the exception of Exhibits 1, B and C which are retained. Catchwords: APPEAL – Development Application – new dwelling – Foreshore Area – character – visual presence – overshadowing. Legislation Cited: Environmental Planning and Assessment Act 1979, cll 4.6, 8.7 Land and Environment Court Act 1979 s 34 State Environmental Planning Policy (Coastal Management) 2018, cl 14 State Environmental Planning Policy (Resilience and Hazards) 2021 Sutherland Shire Local Environmental Plan 2015cll 1.8A, 2.3, 6.1, 6.2, 6.4, 6.7, 6.9, 6.16, 6.17 Cases Cited: Banool Developments Pty Ltd v Woollahra Municipal Council (1972) 2 NSWLR 353. Mona Vale Pty Limited v Pittwater Council (2003) NSWLEC 74. Texts Cited: Sutherland Shire Development Control Plan 2015 Category: Principal judgment Parties: Todd Wesley Owsnett (First Applicant) Tamara Jade Owsnett (Second Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: A Pickles SC (Applicants) S Berveling (Respondent) Solicitors: Bick and Steele (Applicants) Sutherland Shire Council (Respondent) File Number(s): 2021/304622 Publication restriction: No Judgment 1. COMMISSIONER: This is an Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Todd Wesley Owsnett and Tamara Jade Owsnett (the Applicants) against the Respondent, Sutherland Shire Council. The Development Application, being a proposal for a single dwelling, is subject to the appeal process of s 34AA of the Land and Environment Court Act 1979 (LEC Act). 2. The Appeal was subject to mandatory conciliation which was held between the parties under s34AA(2) of the LEC Act on 22 March 2022. I presided over the conciliation conference. An agreement between the parties was not able to be reached. The conciliation conference was terminated and the matter proceeded to hearing forthwith on 23 March 2022. I presided over the hearing and this judgment reflects the outcomes of that process. 3. I have concluded, because of the reasons set out below, that the merits of the matter warrant the Appeal being upheld, and consequently, that Development Consent should be granted to the Development Application, subject to the conditions set out in Annexure A. The Site and Locality 1. The Site is comprised of a single allotment, legally described as Lot 22 in DP 879590, and known as 248 Woolooware Road, Burraneer. The Site is an irregular shaped, land-locked allotment, reliant upon a right-of-way for access and is located on the eastern side of Woolooware Road. The Site is the third allotment from the street along the right-of-way. 2. The Site contains a single storey, brick and clad dwelling, with a part sub-floor of sandstone facing the waterfront (and returning part way along the side elevations) and a flat roof with shallow pitch from the east down to the west. The dwelling is located towards the rear (east) of the property, extending partly forward of the Foreshore Building Line (FBL). 3. The part of the existing dwelling forward of the FBL is an irregular shaped portion from approximately the rearmost 0.5m of the northern wall to approximately 2.8m of the southern wall, along with the eaves of the dwelling. The rear verandah and stairs, plus a small sub-floor area underneath the verandah, also forward of the FBL. 4. The Site is located in the Burraneer residential area, within the C4 - Environmental Living Zone pursuant to the provisions of Sutherland Shire Local Environment Plan 2015 (SSLEP 2015), as are surrounding allotments. The Site and its adjoining waterfront allotments are designated Environmentally Sensitive Land under SSLEP 2015. 5. The Site is surrounded by predominantly low density residential development. Development within proximity to the Site largely comprises 2 storey detached dwellings. The Royal Motor Yacht Club Port Hacking is located a few allotments to the north of the Site and is of a built form that is significantly larger than the surrounding dwellings. 6. Adjoining the Site to the north is a long and narrow waterfront property, being 244 Woolooware Road, which is occupied by a 2 storey dwelling that is currently under construction. Adjoining the Site to the south is a waterfront property, being 250A Woolooware Road, containing a 2 storey dwelling that is setback further west than the existing dwelling on the Site. The proposal 1. Development Application No DA21/0241 is a proposal for the demolition of the existing dwelling and construction of a new dwelling, games room and double garage, with ancillary driveway, earthworks, retaining works and landscaping. What are the main issues in dispute? 1. A key aspect of the Application is the interpretation and application of cl 6.9 of the SSLEP 2015. In summary, cl 6.9 of SSLEP 2015 sets out a series of objectives and performance criteria for particular development in a Foreshore Area. The interpretation of cl 6.9 has an impact as to whether or not the proposed dwelling is within the legal flexibility of the clause, or in the alternative, the Applicant must rely on a clause 4.6 written request that seeks to vary the FBL. 2. Associated with the Foreshore Area considerations is an assessment of the proposed built form and its contextual relationship with other development in the Foreshore Area. This includes considerations in respect to the building's location relative to the FBL, as well as the colours and materials proposed for the development. 3. Interrelated to the foreshore considerations are other merit considerations, including whether the building form and appearance is appropriate and whether there are unacceptable amenity impacts arising from the scheme. The impacts that may arise from overshadowing was a focus of the merit considerations and was the subject of particular evidence in this matter. 4. The parties rely on the following Joint Experts Reports: 1. Town Planning - Joint Expert Report prepared between Mr M Vine (Applicant) and Ms K Gordon (Respondent). 2. Arboriculture - Joint Experts Report prepared by Mr Sam Allouche (Applicant) and Mr Jim Van Breda (Respondent). 1. Evidence was also provided in respect to unacceptable tree loss and impacts. Public Submissions 1. The Application was placed on exhibition, with the last day for public submissions being 14 April 2021. Two submissions were received, predominantly raising concerns relating to privacy and overshadowing. 2. A further exhibition period was undertaken after amended plans were provided to Council. The amended plans were notified on 8 July 2021. No further submissions were received during this period. The Assessment Framework The Sutherland Shire Local Environmental Plan 2015 1. The Site is zoned C4 – Environmental Living pursuant to the SSLEP 2015, as are the surrounding allotments. In addition, the Site and its adjoining waterfront allotments are designated Environmentally Sensitive Land under the SSLEP 2015. 2. Amendments were made to SSLEP 2015 which change the description of zone E4 Environmental Living to C4 Environmental Living. This change was accompanied by a document from the New South Wales Department of Planning and Environment which advised that any reference to the E4 zone should be construed now as a reference to C4 zone. This change has not yet filtered through to all of the associated planning documents, in particular, the Development Control Plans. 3. The objectives of the zone, to which regard must be had in determining the Development Application (SSLEP 2015, cl 2.3(2)) are: Zone C4 Environmental Living 1 Objectives of zone To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. To ensure that residential development does not have an adverse effect on those values. To allow for development that preserves and enhances the natural landscape setting of the locality. To protect and restore trees, bushland and scenic values particularly along ridgelines and in other areas of high visual significance. To ensure the character of the locality is not diminished by the cumulative impacts of development. To minimise the risk to life, property and the environment by restricting the type or level and intensity of development on land that is subject to natural or man-made hazards. To allow the subdivision of land only if the size of the resulting lots makes them capable of development that retains or restores natural features while allowing a sufficient area for development. To share views between new and existing development and also from public space. 1. The parties have different views as to the reading and interpretation of cl 6.9 Limited Development on Foreshore Area of the SSLEP 2015. This clause sets out a series of objectives for development on the foreshore and then takes a tiered approach to the matters that are required to be satisfied, dependent upon the category of development, prior to any development consent being granted. 2. As a further layer of complication, the SSLEP 2015 was amended on 29 April 2022. This amendment, which was not before the Court at the time of the initial hearing, made amendments to cl 6.9 of the SSLEP 2015. The parties acknowledged that the amendment has limited consideration in this matter by virtue of the savings provisions contained in cl 1.8A(2A) of the SSLEP 2015. As a result, I deal initially with the previous iteration of this clause and then discuss any consequences of the amendment. 3. As a result of the complexities, it is prudent to reproduce the clause in its entirety: 6.9 Limited development on foreshore area (1) The objectives of this clause are as follows— (a) to ensure that development on the foreshore area will not adversely impact on natural foreshore processes or affect the significance and amenity of the area, (b) to maintain and improve public access to the intertidal area of waterfronts if that access will cause minimal adverse environmental impact, (c) to avoid adverse ecological effects on waterways by minimising any adverse impact from development on water quality and, so far as is practicable, to improve the quality of urban run-off entering waterways, (d) to protect and enhance significant natural features and vegetation on the foreshore area, (e) to retain endemic vegetation along foreshore areas, (f) to restore and revegetate foreshore areas to improve estuarine flora and fauna habitat, (g) to minimise any adverse visual impact of development when viewed from adjacent land and waterways by using a design and materials that complement the natural landscape of the foreshore area, (h) to minimise any adverse impact of development on the natural landform of the foreshore area and waterways by integrating the development with minimal change to the natural topography of the foreshore area, (i) to achieve a balance between private development and the public use of waterways, (j) to minimise the obstruction of water views from public land. (2) Development consent must not be granted for development on the foreshore area except for the following— (a) the alteration, extension or rebuilding of an existing dwelling wholly or partly on the foreshore area if the footprint of the extension or alteration will not extend any further forward of the foreshore building line than the footprint of the existing dwelling, (b) the erection of a new dwelling on the foreshore area if there is no reasonable alternative that would allow a new dwelling to be located outside of the foreshore area, (c) development for the following purposes that does not significantly alter the shape, natural form or drainage of the foreshore area— (i) boat sheds, (ii) jetties, (iii) landscaped areas, (iv) sea retaining walls, (v) slipways, (vi) swimming pools (that are no higher than 300 millimetres above ground level), (vii) water recreation structures, (viii) waterway access stairs, (ix) inclinators, (d) the erection of a building on the foreshore area (other than a building referred to in paragraph (a), (b) or (c)), if the levels, depth or other exceptional features of the Site make it appropriate to do so. (3) Development consent must not be granted under this clause, unless the consent authority is satisfied that— (a) the appearance of the development, from both the foreshore area and the adjacent waterway, will be compatible with the surrounding area, and (b) the development will not cause environmental harm such as— (i) pollution or siltation of the waterway, or (ii) an adverse effect on surrounding uses, marine habitat, wetland areas or fauna and flora habitats, or (iii) an adverse effect on drainage patterns, and (c) the natural qualities of the foreshore area are retained or restored as far as practicable through the retention or reinstatement of natural levels and endemic vegetation, and (d) the development will not cause congestion or generate conflict between people using open space areas or the waterway, and (e) opportunities to provide continuous public access along the foreshore area and to the waterway will not be compromised, and (f) any heritage significance of the foreshore area on which the development is to be carried out and of surrounding land will be maintained, and (g) in the case of development for the alteration, extension or rebuilding of an existing building (or the erection of a new building) wholly or partly in the foreshore area, the alteration, rebuilding or new building will not have an adverse impact on the amenity or aesthetic appearance of the foreshore, and (h) in the case of the erection of a new dwelling, the dwelling will not be erected further forward of the foreshore building line than any existing dwelling on the land, and (i) it has considered sea level rise or change of flooding patterns as a result of climate change. (4) In deciding whether to grant development consent for development on the foreshore area, the consent authority must consider whether and to what extent the development would facilitate the following— (a) continuous public access to and along the foreshore area through or adjacent to the proposed development, (b) public access to link with existing or proposed open space, (c) public access to be secured by appropriate covenants, agreements or other instruments registered on the title to land, (d) public access to be located above the mean high water mark, (e) reinforcement of the foreshore character and respect for existing environmental conditions, (f) management of any rise in sea level or change of flooding patterns as a result of climate change. The Sutherland Shire Development Control Plan 2015 1. The proposal also requires assessment against the Sutherland Shire Development Control Plan 2015 (SSDCP 2015). In particular, Chapter 2 contains provisions related to dwelling houses. Part "b" of Chapter 2 deals with dwelling houses in the C4 Environmental Living Zone. 2. Section 1, Streetscape and Building Form provides the following objectives: "1. Ensure that all elements of development visible from the street, waterways and public domain make a positive contribution to the foreshore, streetscape and natural features of the area. 2. Ensure development is compatible with the scale, character and landscape setting of the adjoining streetscape, natural setting and scenic quality and that the environment's natural qualities dominate. 3. Buildings are to be designed and sited to acknowledge the private open space of surrounding development and spatial character of rear yards. Extensive development should not dominate neighbouring rear yards." 1. Section 2, Building Setbacks provides a series of objectives and controls in relation to the setback of buildings. This includes Objective 3: "3. Enhance the setting for the building by providing opportunities for landscaping and infiltration of stormwater and protecting the landscape qualities and character of the locality." 1. Section 5, Building Layout, Private Open Space and Solar Access deals with amenity considerations. This includes objectives around solar access including Objective 4: "4. Ensure building design and location does the most to minimise adverse impacts of overshadowing of neighbouring buildings and private and public open spaces." 1. Objective 4 is, in part, articulated through the controls at 5.2.6 as follows: "6. For the neighbouring dwellings: a. ensure 10m2 of private open space has 3 hours of solar access between 9:00am and 3:00pm at the winter solstice (21 June); b. ensure windows of living areas have 3 hours of solar access between 9:00am and 3:00pm at the winter solstice (21 June); c. consideration will be given to reduced solar access where the proposed dwelling is generally compliant with all development standards and controls, and the extent of impact is the result of orientation, site constraints, and or existing built forms; d. overshadowing by vegetation should be ignored; e. overshadowing by fences, roof overhangs and changes in level should be taken into consideration." Is the proposal a "rebuild of a dwelling" or a "new dwelling", or both? 1. A threshold issue in this matter is the determination as to whether the proposal is a development in accordance with cl 6.9(2)(a) of the SSLEP 2015 which allows certain works forward of the FBL. In summary, I am required to decide the answers to the following questions: 1. Is the proposal a "rebuild", as allowed for in cl 6.9(2)(a), and therefore permissible forward of the FBL without upholding a cl 4.6 written request to vary the FBL development standard? 2. If the proposal is a rebuild, is it also a new dwelling? 3. If it is a new dwelling, is the proposal subject to the restrictions in cl 6.9(2)(b) which requires new dwellings to consider reasonable alternate locations for the dwelling behind the FBL? 4. If the proposal does not meet the criteria above, do the clauses in 6.9(2) act as a prohibition or is the FBL able to be varied as a development standard? 5. If the proposal is reliant on the cl 4.6 written request, prepared as a precautionary approach, should it be upheld? 1. If the proposal fits the category of development, described by cl 6.9(2)(a), then a cl 4.6 written request is not required. This clause provides flexibility to the granting of Development Consent to development that is forward of the FBL, subject to the caveat that it does not extend any further forward of the FBL than the footprint of the existing dwelling. 2. In contrast, cl 6.9(2)(b) of the SSLEP 2015 only allows the erection of a new dwelling on the foreshore area if there is no reasonable alternative that would allow a new dwelling to be located outside of the foreshore area. Question 1 – Is the proposal a rebuild? 1. It is the Respondent's position that this proposal is a new dwelling that could be located elsewhere on the Site and compliance with the FBL is required. The Respondent says, as the proposal is for a new dwelling forward of the FBL, a written request to vary the Development Standard is required. 2. The Applicant's opposing view is that cl 6.9(2)(a) of the SSLEP 2015 applies as this proposal fits the category of "rebuild" and can be located forward of the FBL subject to the limitations outlined in the clause. In support of this position, the Applicant highlights that the proposal is to retain the sandstone footing of the existing dwelling, particularly at the foreshore side of the building, and that the proposal is a "rebuild" of the existing dwelling. 3. The Applicant draws the distinction between the "rebuild" of an existing dwelling and what would be a proposal for "new dwelling" which would be the form of development contemplated by cl 6.9(2)(b). The Applicant states that this clause captures a proposal for a dwelling on land that is vacant as distinct from a "rebuild". 4. The parties refer to the decision of Banool Developments Pty Ltd v Woollahra Municipal Council (1972) 2 NSWLR 353, as how to interpret what is a "new dwelling" compared with "alterations and additions". Their views on the case provide differing perspectives. The Applicant also refers to Mona Vale Pty Limited v Pittwater Council (2003) NSWLEC 74, as further explanation of what constitutes a "rebuild". These decisions invariably deal with a slightly different context in each case and none deal with interpretation of cl 6.9 of the SSLEP 2015. The inclusion of cl 6.9(2)(b), which deals with new dwellings as a different category from a rebuilding of an existing dwelling, is an important distinction. 5. The wording of cl 6.9(2)(a) deals entirely with a circumstance where there is an existing dwelling that is changed. Each of the scenarios in subclause (a) will result in a "new" form of dwelling in that it will be changed, in one way or another, to create a dwelling that is "new". If each of the scenarios in subclause (a) result in a form of "new" dwelling, then subclause (b) which refers to "new dwellings", would be superfluous. It suggests that subclause (b) had purpose in applying to "new" dwellings, creating a distinction that cl 6.9(2)(b) deals with new dwellings and that cl 6.9(2)(a) deals with dwellings that are changed through alteration, addition or by rebuilding. 6. As this proposal involves retention of parts of the existing building, the proposal differentiates itself from what would be a new dwelling. The retention of the footings and "rebuild" of the dwelling allows for the categorisation of the proposal as a "rebuild" in the context of cl 6.9. I agree that cl 6.9(2)(a) allows a rebuild, without limitation on the extent of that rebuild, but subject to the footprint criteria that it extends no further to the foreshore than the footprint of the existing dwelling. Question 2 – Is the proposal a new dwelling in terms of Cl 6.9(2)(b)? 1. Notwithstanding that I have reached the conclusion that the proposal is a rebuild pursuant to cl 6.9(2)(a), there is still consideration as to whether cl 6.9(2)(b) applies. As stated above, subclause (b) seeks to separate out from subclause (a) a form of "new dwelling" that requires consideration for an alternate location for the development behind the FBL. 2. I accept the Applicant's reasoning that the term "new dwelling" in cl 6.9(2)(b) has a specific meaning within the confines of the clause generally. Subclause (b) differentiates itself from the various forms of alteration or rebuilding set out in subclause (a). The retention of the footings is of substance. The proposal involves the rebuild of a dwelling, including retention of part of the existing dwelling, and cannot be considered a "new dwelling" in the form contemplated in subclause (b). 3. As foreshadowed, I have also given consideration as to whether the amendment to the SSLEP 2015 undertaken in April will impact on the deliberation of this matter. The Applicant filed a Notice of Motion to request that the Court re-convene the hearing for further evidence on the SSLEP 2015 amendment. After deliberations between the parties and the Court, an agreed position was to allow each party to provide additional material as to how, if at all, the amendments impacted on the matter. This included an amended cl 4.6 written request, in the event it was required, and an addendum Expert Statement by Ms Gordon on that material. There is some agreement between the parties that the newly worded clause removes ambiguity that a new dwelling is permissible forward of the building line under the circumstance described in cl 6.9. 4. The parties agree that the savings clause, cl 1.8A, is operational. The amendments do not materialistically change my decision that cl 6.9(2)(b) is not applicable and that a cl 4.6 written request is not required. 5. I am satisfied that a written request cl 4.6 is not required and that I am therefore able to determine the remaining matters based on the merits of the scheme and subject to relevant jurisdictional criteria. Tree Removal/Retention 1. The Arboriculture experts provided written and oral evidence in respect to the retention or removal of trees on the Site. The process was also assisted by ongoing discussion between the experts in respect to the retention of a significant tree, T1, located centrally at the entry of the property. 2. A consequence of the oral evidence and discussions was the preparation of an agreed management regime, including minor alterations to the proposal through proposed conditions of any development consent, as an agreed path forward in the retention of this tree and other foreshore planting. The Court was assisted by Exhibit D – Arborists Notes, which is an annotated drawing, reflecting an agreed position for the retention and protection of tree T1. As a consequence, Exhibit 5 – draft conditions of development consent, at condition 2A, incorporates proposed design changes in the event that the Appeal is upheld. 3. The parties agreed a set of proposed conditions in the event that Development Consent was granted by the Court. These conditions, which now form Annexure A to this judgment, set out agreed conditions to make slight improvements to landscaping in and around the development. In addition to dealing with the matters raised by the Arborists, these amendments are also in response to the evidence given by Ms Gordon regarding the appearance of the development and the foreshore character. Visual Bulk and Foreshore Character 1. A significant aspect of this matter centres around the opposing views of the parties as to whether the proposed development will have an acceptable impact upon the foreshore and waterway. The evidence of the parties centred on the visual appearance of the proposed development. The parties had differing views on whether the proposal meets the requirements of the SSLEP 2015 in respect to considerations relating to foreshore development. 2. Emphasis was placed on the Objectives for the C4 Environmental Living Zone and the requirements for consideration of development pursuant to cl 6.9 of the SSLEP 2015. The evidence of the planners focused on various elements of the visual appearance when assessed against these controls. These considerations are guided, in part, by cll 6.9(3) and 6.9(4) of SSLEP 2015. The planners addressed these considerations in their written and oral evidence. 3. On the subject Site, the FBL has an irregular alignment. The proposed design is located behind the FBL on the northern side of the property but forward of the FBL on the southern side. The portion of building located forward of the FBL is made permissible by cl 6.9. As a result, the Objectives relating to the clause, and the required assessment criteria within the clause, must take into account that the SSLEP 2015 that allows this development, as a rebuild, forward of the FBL. 4. The evidence of Ms Gordon focuses heavily on the consequences of the dwelling being forward of the FBL. Ms Gordon concludes that the dwelling should not be forward of the FBL and therefore the dwellings visual presence is more sensitive than otherwise might be the case. The conclusion reached is that the proposed dwelling is more visually dominant than other nearby development and that this is an outcome that Ms Gordon considers unacceptable. 5. Ms Gordon, at paragraphs 56 to 60, sets out a number of reasons as to why the visual impact is unacceptable. This includes an opinion that the proposed design does not reflect a low-impact residential development, nor does it seek to enhance the natural landscape setting of the locality. The proposal fails to provide landscaping to appropriately soften the bulk of the development as viewed from the waterway. 6. In contrast, Mr Vine states at paragraph 17 of the Joint Report that "the immediate visual context of the foreshore is heavily developed with a range of water fronting development comprising boat sheds, terraces, reclaimed land, elevated swimming pool as well as some dwellings the project forward of the foreshore building line. In addition to the highly developed foreshore context, the Royal motor yacht club Marina is located in close proximity (to the north east) of the site and contributes to the developed character of the foreshore area." (page 6 of the Joint Report). 7. Mr Vine also outlines how the design has minimised the visual impact. This position is outlined at paragraph 22 of the Joint Report wherein Mr Vines states: "22. MV states that the dwelling comprises a two storey form that has been designed to minimise the imposition in the visual context by: 22.1 Incorporating two gable ends at the first floor level which are setback from the ground floor alignment of the existing building footprint. The recessed upper level reduces the scale and sheerness of the two storey element within the foreshore area; 22.2 The existing enclosed ground floor level of the dwelling (at the north-eastern alignment) has been redesigned as an open terrace which reduces the perceived encroachment of the ground floor level into the foreshore area; 22.3 Incorporating a double gable end into the roof design is a mechanism to break down the mass of an otherwise single linear roof form that occupies the width of the dwelling. The double gable roof profile provides a more fine grain roof profile and is a contextual respose to the profile and width of the at No. 244 Woolooware Road." 1. The photographic evidence provided to the Court, and the on-site view undertaken as part of the proceedings, demonstrated a range of built form outcomes and a range of colours and materials in existing developments in the visual catchment of the Site. This is highlighted in Exhibit D (see Figure 1), a coloured photo of the Site and surrounding area when viewed from the waterway. This provides a reference point for discussions by the planners. In my view, this adds weight to Mr Vine's evidence that the proposed design, in terms of colours, materials and form, is not inconsistent with the surrounding built form. Figure 1 - Photo of Waterfront, Exhibit E of the proceedings. 1. As a result of the above observations, I agree with the conclusions reached by Mr Vine in respect to the character and visual appearance of the proposed development. I agree that the proposal is not inconsistent with the character and form of surrounding development. I also agree with the Applicant's position that the proposal is not inconsistent with the objectives of cl 6.9 of the SSLEP 2015 nor the zone objectives of the C4 Environmental Living zone in the SSLEP 2015. 2. I am satisfied, on the evidence before me, that the proposal meets the required criteria set out in cl 6.9(3) and (4) and that the required satisfaction has been reached in terms of considering the matters relevant to this proposal. In summary, I am satisfied in respect to the appearance of the development in terms of compatibility and character, including the overall design aesthetics of the proposal. 3. The parties provided the Court with proposed Conditions of Consent, should they be required. The only disputed condition, proposed Condition 2(iii), relates to the colour and materials of the scheme, as follows: "The materials, finishes and colours of the dwelling facing the waterway are to be of natural, muted colours and tones to be recessive as viewed against the landscaped backdrop. The use of white/off-white or light tones shall be limited to detailing only such as window/door frames;" 1. In reaching the conclusion that the Proposal is not out of character, including in terms of colour and materials, it stands that I do not consider imposing the suggested Condition as necessary. Is the Overshadowing Impact Acceptable? 1. The planning experts provided evidence on the acceptability, or otherwise, of the overshadowing outcomes to the southern neighbour at 250A Woolooware Road. The experts disagreed as to whether or not the overshadowing was acceptable, but did agree that the assessment of overshadowing impacts was limited to the living room windows of the adjoining property. There evidence is set out in the Planning Experts Joint Report Addendum dated 23 March 2022 (part of Exhibit 3). 2. The experts agreed that the assessment criteria set out in control 5.2.6 of Chapter 2 of the SSDCP 2015, and as set out earlier at paragraph [28] in this Judgment, are relevant. They also agreed that the west facing dining room windows will retain some solar access between 1 PM and 3 PM at midwinter to the top, southern side of the sliding doors. The experts also agreed that the shadow diagrams show there is potential solar access retained by the east facing glazed doors at 9 AM at midwinter. 3. Mr Vine noted that the dwelling contains a large north facing window which spans both levels of the dwelling and relates to the stair core and circulation area. He notes that this window receives unobstructed sunlight from 11 AM until 4 PM at midwinter (paragraph 23 of the Joint Report Addendum). Mr Vine also relies on subsection C of the control which states that consideration will be given to reduced solar access where the proposed dwelling is generally compliant with the planning controls, and the extent of impact is a result of orientation, site constraints, and all existing built forms (paragraph 26 of the Joint Report Addendum). 4. In contrast, Ms Gordon (at paragraph 41 of the Joint Report Addendum) suggests that the Site does not contain any constraints, being a large-size with a significant area in which to locate a dwelling. Ms Gordon notes that, as the Proposal is for a new dwelling, there are no existing built forms that limit the location of a new dwelling that would reduce overshadowing impacts. Ms Gordon notes (at paragraph 42 of the Joint Report Addendum) that the western portion of the proposed dwelling is compliant with the relevant controls but says that the eastern portion is not compliant as it breaches the FBL. Ms Gordon also notes (at paragraph 46 of the Joint Report Addendum) that, whilst relocating this design further to the west would provide potentially some additional solar access to the east facing living room glazed doors, it would not result in a satisfactory solar access outcome. 5. I note that both planners agree that the western portion of the proposed dwelling, which has the greatest potential to impact on the adjoining neighbour, achieves compliance with the SSDCP 2015. I am satisfied that the overshadowing outcomes are satisfactory in that the proposed design has sort to minimise impacts to neighbouring development and that the site circumstances have an impact on the ability to achieve better outcomes. 6. In reaching this conclusion, I note that the subject Site has an east-west orientation and the proximity of the north facing windows of the living room of the adjoining dwelling to the northern boundary (700mm according to Exhibit 6 – Plans of Adjoining Residence). These latter elements further diminish the opportunity for the Applicant to achieve increased solar access. Other procedural matters 1. SSLEP 2015, Cl 6.1 – Acid Sulphate Soils, is not activated by this development. 2. SSLEP 2015, Cl 6.2 – Earthworks, requires consideration of various matters prior to the granting of development consent for earthworks. I am satisfied, based on the material with the Application and the proposed conditions of any Development Consent, that the matters listed in cl 6.2 have been adequately considered. 3. SSLEP 2015, Cl 6.4 – Stormwater Management, has been considered by the Applicant and this is reflected in the provision of stormwater plans which have been accepted by the Council. In concert with the proposed conditions of any Development Consent, I am satisfied that the required matters for consideration and satisfaction in cl 6.4 have been met. 4. SSLEP 2015, Cl 6.7 – Riparian Land Watercourses, applies to the Site. This clause requires consideration of the impacts on water quality, water flows, aquatic and riparian species, habitats, ecosystems, stability of the bed, free passage of fish and other aquatics organisms, and future rehabilitation amongst other things. I am satisfied, based on the assessment by the Respondent and the material provided by the Applicant that required elements have been considered. This includes appropriate Conditions that seek to control any future development. 5. The SSLEP 2015 sets out, at cll 6.16 and 6.17, a variety of urban design considerations that must be considered in deciding whether to grant development consent. I am satisfied that these broader controls, which are generally reflected in the objectives and controls in the SSDCP 2015, have been addressed by the Applicant and considered by the Respondent. In addition, I have deliberated on the broad range of urban design considerations, but in particular, the character of the locality, the visual presence and any impacts resulting from the development, and any consequential amenity impacts that might arise from the development. I have considered cll 6.16 and 6.17. 6. The Statement of Environmental Effects (SEE), at page 10, deals with the matters raised in State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). The SEE notes the long-time use of the property for residential purposes and the absence of any historical use or zoning that would give cause to suspect that the Site was contaminated or requires remediation for a residential use. On this basis, I am satisfied that the matters raised in the Resilience and Hazards SEPP are dealt with. 7. The Applicant has provided the requisite certificate pursuant to State Environmental Planning Policy (BASIX) 2004. 8. The State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP) applies to the subject Site. The SEE prepared by the Applicant, undertakes an assessment pursuant to cl 14 of the Coastal Management SEPP. I am satisfied that the matters that require consideration have been duly considered and that the matters requiring satisfaction in cl 14(1)(b) are satisfied. These outcomes required consideration of the bulk, scale and size of the development as well as minimising impacts on various aspects of the coastal environment. Conclusion and Orders 1. Todd Wesley Owsnett and Tamara Jade Owsnett's Development Application (as amended) should be determined by the granting of development consent, subject to Conditions. 2. The Court Orders that: 1. The Appeal is upheld. 2. Development Application No DA21/0241, for the demolition of the existing dwelling and construction of a new dwelling, games room and double garage, with ancillary driveway, earthworks, retaining works and landscaping, is determined by the granting of Development Consent subject to the Conditions in Annexure "A". 3. The Exhibits are returned, with the exception of Exhibits 1, A, B and C which are retained. ………………………. Stuart Harding Acting Commissioner of the Court Annexure A (189401, 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: 28 September 2022