> Land and Environment Court of New South Wales CITATION : Daniella De Angelis v Liverpool City Council [2003] NSWLEC 241 Daniella De Angelis PARTIES : Liverpool City Council FILE NUMBER(S) : 10995 of 2002 CORAM: Moore C KEY ISSUES: Subdivision :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: DATES OF HEARING: 5 and 6 August 2003 EX TEMPORE JUDGMENT DATE : 08/06/2003 Applicant: Mr C Maley Maclarens LEGAL REPRESENTATIVES: Respondent: Mr W O'Rourke Deacons JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10995 of 2002 Moore C 6 August 2003 Daniella De Angelis Applicant v Liverpool City Council Respondent Judgment 1 This is an appeal against what was initially a deemed refusal of an application for integrated housing at Lots 203 and 204 in DP 1016202 at 6 and 8 Orkney Place, Prestons. The application was subsequently refused by Liverpool City Council in November 2002 with a notice of determination issued in March 2003. The application sought the subdivision of two existing allotments into four Torrens Title allotments with rights of way to provide access to three of the four allotments. It is proposed that upon these separate allotments substantial freestanding dwellings would be erected, two of which would be three bedroom dwellings and two of which would be four bedroom dwellings. The land is presently zoned Residential 2(a) pursuant to the Liverpool Local Environmental Plan (1997) and this development is permissible with consent. The total area of the two present allotments is 1511 m2 and the resulting proposed allotments would vary in area between 330 m2 and 383 m2. 2 The process that was undertaken by the council, which was over some period of time, resulted in two separate considerations by council officers. Each of these, on the plans that were then before each of the officers, resulted in a recommendation for approval. Each of the approval recommendations went through a process adopted by Liverpool City Council of using an Independent Hearing and Assessment Panel and in each of those cases the Independent Hearing and Assessment Panel recommended the rejection of the application. The applications that were considered on the separate occasions by the Assessment Panels differed. The Assessment Panels, however, in each instance, comprised a lawyer, an environmentalist and an urban design specialist and, on the first occasion, also included a community representative. 3 The site is at the south-eastern end of a cul-de-sac known as Orkney Place, Prestons and is surrounded by existing allotments that range in size from 640 m2 to 970 m2 approximately. The largest of those allotments is the allotment which is 7 Orkney Place immediately to the west of the site which is the subject of this application. On 7 Orkney Place is erected a substantial two storey brick veneer freestanding dwelling. On 4 Orkney Place, which is the property immediately to the north on the eastern side of the site, is also erected a substantial freestanding brick dwelling. 5 Orkney Place comprises vacant land. 4 There is a childcare centre on the south-western portion of the intersection between Orkney Place and Dalmeny Drive. On the opposite site to the childcare centre there are two dwellings each of which is freestanding and each of which appeared to have its private open space to the side rather than to the rear. This is on allotments which have been approved by the council as a subdivision of what was previously a single allotment into two separate Torrens Title allotments. To the east of the site is a McDonalds Restaurant and Woolworths Service Station which are separated from the site by a substantial retaining wall and privacy and shielding wall some 3.5 m in height. Immediately to the south of the site separated from it by a modest public reserve is a major arterial road or State Highway known as the Camden Valley Way. 5 The site is contained within a development known as the Ashgrove Estate and this was shown in the photographic exhibit provided by Mr Hurley on behalf of the applicant. It shows that the Ashgrove Estate is a largely separated estate in the south-eastern corner of a newly developing or to be developed area that is to be linked through the extension of Dalmeny Drive into already constructed areas of Prestons to the north and to new areas to the north-west. It was obvious on the view that the construction of Dalmeny Drive through towards the at least first stages further to the north-west was already substantially completed and although not formally in evidence it is understood that the allotments in a portion of that new estate have already been sold. 6 The parties viewed the site this morning and it is sufficient to say that the evidence discloses a site that has no particular constraints of a topographic nature that would act as an inhibition on the development, although the existence of the substantial wall to the McDonalds is a matter which raises some issues which will be discussed later in this judgment. 7 As a preliminary matter in the course of reading the material that was tendered by the council the Court became aware of the fact that there was a covenant over the properties and a number of the other properties in Orkney Place. The s 88B instrument that set out the covenant was put in evidence by the respondent council. The beneficiary of the covenant is the development company AV Jennings Limited which apparently developed all or part of the Orkney Place estate and perhaps parts of the surrounding areas. The council has lodged an objection to the development on the basis of its rights under the covenant. That objection was tendered as part of the council's bundle of documents. 8 I have considered the issue of what, if any, impact the covenant might have as a preliminary point to my consideration of the merit issues in this appeal. The covenant operates for five years from mid 2000. Section 28(2) of the Environmental Planning & Assessment Act provides that under certain circumstances specified therein a Local Environmental Plan may vest in a local consent authority what effectively amounts to the power to negate covenants if it chooses to do so when determining an application under that legislation. Such a provision is provided for in cl 7 of the Liverpool Local Environmental Plan. 9 I considered the issue of whether, if I considered that the covenant was a constraint, I should grant consent subject to a deferred commencement condition which would require the covenant to be responded to appropriately by further consent from AV Jennings Limited being obtained. I put the proposition to the parties that such a course of action would be contrary to the intent of the Court of Appeal's decision in Wheal v Bathurst City Council [2000] 111 LGERA 181; NSWCA 88 and the parties concurred in this position. 10 I have come to the conclusion that if I am satisfied on the appropriate merit issues pursuant to the Liverpool Local Environmental Plan and the Development Control Plan, coupled with the matters that I am obliged to take into account pursuant to s 79C of the Environmental Planning & Assessment Act, those would comprise the totality of the suite of issues that any reasonable person exercising the rights of AV Jennings pursuant to the covenant would be obliged to have regard to. Therefore, I have concluded that if I were to be satisfied that the development should be approved, it would be appropriate for me to exercise the discretion and power given by cl 7 of the LEP to effectively terminate the covenant and that the covenant should act as no inhibition to the consideration of these matters by the Court. 11 There are two principal planning documents that are relevant in consideration of the appeal. The first is the Liverpool Local Environmental Plan 1997. The responsibilities that fall to the Court pursuant to that arise from cl 9(4) of the LEP which relates to the granting of consent to development within a zone. Pursuant to cl 9(4)(A) I am obliged to have regard to the general objectives of the LEP, the relevant ones of which it appears to me are cl 2: (j) To facilitate development which is environmentally sustainable. (k) To provide a basis for Development Control Plans to supplement the broad controls of this plan, more detailed provisions for regulating the carrying out of development. (l) To promote a high standard of urban and environmental design." 12 In this regard I note that cl 2(k) provides an appropriate foundation for the second of the two planning documents which is the Liverpool City Council Development Control Plan 4 entitled "Environmentally Responsive Residential Development" which is dated May 1997. In this regard of course I am mindful of the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373. That assists in acknowledging what weight and consideration should be given to a Development Control Plan and the necessity to have regard to provisions of the Local Environmental Plan and to other matters which might arise under s 79C. 13 Clause 9(4)(B) of the LEP takes the Court to the objectives of the zone. They are set out in cl 39 of the LEP, the relevant portion of which reading by extraction from cl 39(1)(a) relates to integrated housing which is the nature of this application and requires it to be compatible with existing housing. Clause 9(4)(c), in taking me to other provisions of the plan, takes me to cll 40 and 41, particularly cll 40(a) and 40(d) and cl 41(c) and 41(d), those latter provisions being triggered by the fact that this is a proposal for integrated housing development in a 2(a) zone. 14 The specific issues were set out in the formal statement of issues filed by the council on 7 March 2003 but in the course of the hearing it became clear that there were six matters of issue ranging of varying degrees of importance. 15 They are: o the present and future character of the area; o the adequacy of solar access within the proposed development; o the general amenity of the proposed design; o the impacts on the neighbours at 7 Orkney Place; o the adequacy or otherwise of the proposed setback of the dwelling on Lot 1 to the street frontage; and, o as a comparatively minor matter, the issue of whether condition 13B requiring incorporation of water tanks for each dwelling ought be imposed if I were otherwise minded to give consent. 16 Evidence was given on behalf of the respondent council by Mr B Tillott, consultant town planner, and by Mr I Cooper a resident of 7 Orkney Place. Evidence was given on behalf of the applicant by Mr P Hurley, a consultant town planner. 17 The Development Control Plan provides a framework for consideration and assessment of applications. The first is the hierarchy which is set out in cl 1.4 of the Development Control Plan which sets out the structure of each section of the DCP as containing objectives, performance criteria and controls. Of particular relevance to this case is the fact that although the controls are prescriptive standards it is expressly stated in the Development Control Plans that development complying with the controls will, in the majority of circumstances, be deemed to have met the objectives of the plan. 18 That is repeated in different form but with a more emphatic structure at 1.6 which acts as a significant caveat to someone reading and using the DCP. 1.6 provides relevantly, "Compliance with development controls does not guarantee approval of an application, the objectives must be achieved in each case." The consequence of this is that the objectives and the performance criteria are capable of being used if the numeric standards are not achieved and secondly that if the numeric standards are achieved but the person assessing the application is not satisfied that, despite the numeric compliance, the performance criteria have been achieved then there is a discretion on the basis of the Development Control Plan to refuse the application. 19 I turn first to the issue of what might be described as the character of the area. This arises from in the first instance the general objective of the DCP set out in 1.2 at the fifth dot point which sets out the objective of "maintaining and enhancing neighbourhood character in established residential areas". Although there is development occurring immediately to the west and the north-west I am satisfied that the present site is in an established residential area. 20 The objective, in the specific, that is set out for this, is set out as objective D of 2.2 Building Appearance and Neighbourhood Character of the DCP and it requires that the building appearance is visually compatible with the predominant character of the existing surrounding residential development. The particular performance criterion that is relevant is (2) which requires inter alia that: " Integrated housing established amongst established single dwelling development is designed to respect and incorporate the predominant building form characteristics of the neighbourhood. " 21 Mr Tillott gave evidence that he did not cavil with the proposed subdivision into four allotments but that in his opinion to respect the structure of the neighbourhood it would require at least one of the dwellings that was proposed on the four allotments to be a single storey dwelling. Mr Hurley put the alternative proposition that the proposal for four double-storey dwellings on the site was not inconsistent with the predominant nature of the neighbourhood. 22 During the course of the view, the parties undertook with the Court a drive around of both the immediate area and the area somewhat further to the north. It is obvious from the inspection that there is a variety of single and two-storey dwellings but that the dominant building form is two-storey with an interspersing of single-storey, although there are some locations in the immediate neighbourhood where there are a greater number of single-storey dwellings. Whilst I am satisfied that Mr Tillott's proposition that it would be better if there were a single-storey dwelling amongst the four proposed to be erected on the site I am, however, satisfied that, although that is better, Mr Hurley's proposition sets at least the minimum threshold for acceptability and that there would be no basis for rejecting the proposal on the basis of non-conformance with the neighbourhood character. 23 By far a more significant issue is the question of solar access. It falls in two parts, solar access for the buildings and solar access for the private open space areas designed to service each of the dwellings. The initial consideration under the Development Control Plan for this comes from site planning objective B at 2.1, "to assist microclimate management such as solar access and shade", and also generally from site area and dimensions at 2.4(D), "to provide for lot dimensions and areas which are adequate to ensure development responds to inter alia solar and daylight access". In this context I note that Mr Tillott did not object to the subdivision into four lots on this basis. 24 The specific provisions relating to sunlight are contained in 2.8 of the DCP. The objective is, "to provide living areas and private open space areas of proposed and adjoining development with adequate sunlight". Submissions were made concerning the definition of main living area or living room which is set out in the DCP as meaning, "rooms with high use including a lounge room, living room, kitchen, dining room, television room and sunroom and the like but not bedrooms or bathrooms". There was some discussion as to whether or not the upper level retreats in a number of the dwellings should constitute living areas but I did not take this to be pressed in the final analysis as the majority of submissions and technical cross-examination related to the family room, dining room, lounge room opportunities on the ground floor of each of the dwellings. However, had it been necessary for me to rule on this issue I would have ruled that I did not consider that the retreat areas on the upper storey comprised high usage areas even though they might be regarded as ancillary recreational areas. 25 The principal control for solar access to the buildings is set out in control D to 2.8 which requires that one living room window is to receive at least three hours sunlight between 9 am and 5 pm on June 21. Mr Maley, for the applicant, took Mr Tillott through a variety of calculations and through a tour of the windows on the plans and, as a consequence, Mr Tillott to agreement that there was some solar access to at least one window of one of the rooms that might be regarded as a living room in satisfaction of that particular control. 26 Mr Maley put to me that I should draw the conclusion that Lot 1 received nine room hours of solar access, Lot 2 ten room hours, Lot 3 five room hours and Lot 4 nine room hours during the period for which calculations have been undertaken which was until 3 pm in the afternoon and that each of those comprised a satisfaction of the minimum requirement in control D. Mr Tillott conceded that each of the instances to which Mr Maley took him did constitute solar access for the relevant room but in a number of instances he said that they were to small areas and were, in his opinion, next to useless. 27 It seems to me that this is an area where the internal checks and balances provided for in cl 1.4 of the DCP have considerable relevance. It is clear to me that the performance control is quantitatively satisfied. The issue that arises in terms of the possibility of exception is to whether the quantitative satisfaction is qualitatively acceptable. In this regard what I would consider the qualitative descriptor is contained in the objective to 2.8 and particularly with respect to cl 2J of the LEP which requires designing for an environmentally sustainable development. 28 Mr Tillott gave evidence as to the likelihood of necessity for heating to be used because of the paucity of solar access to what he considered were the predominantly likely to be used rooms. In this regard I was taken to the layout of the dwellings that are set out in the ground floor plan site plan in the tendered plans. For Lot 1, the primary and dominant solar access comes through the lounge room which is at the north-eastern corner and is considerably separated from the dining and family rooms which are in the south-western corner and adjacent to the kitchen. It was put in evidence by Mr Tillott as to the probability of there being young families residing in the development and the likelihood that those would be the more heavily trafficked family areas. The similar position applies with the solar access to the dwelling proposed for Lot 3 in particular. I am satisfied that overall, although there is technical quantitative compliance with the controls, it is not qualitatively acceptable in terms of the objectives of the LEP and the objectives of the DCP and that that in itself would comprise a basis for refusal of the application. 29 The second issue relating to the solar access relates to the private open space. The applicant tendered a sunlight analysis table which analysed the percentage of allocated private open space area receiving sunlight on 21 June on three bases. The first was the basis in which the adjoining dwellings at 4 and 7 Orkney Place and all fencing were taken into account, the second discounted the fencing and the third discounted the fencing and the adjoining dwellings. 30 In aid of a contention that at least the second proposition should be adopted, that is the discarding of the fencing, the applicant called in aid the shadow diagram that was provided to the Council for the assessment of development application 2146/01 for the construction of a dwelling, that dwelling being at Lot 205 which became 7 Orkney Place, the adjacent residence immediately to the west. 31 I accept that that shadow diagram did not require the inclusion of fencing. It was, however, obvious from the view that even if the shadow diagram had required the showing of fencing (which it was not required actually but, which it would have been required had the Council strictly adhered to the provisions of control G of the DCP when that application was before it), that the provision of a shadow diagram including the fencing would not have shown any likelihood of non-compliance with the controls in the DCP. For that reason I do not consider that the neighbouring property provides any great comfort in that regard. However, more importantly, was Mr Hurley's evidence that he considered that it was a widespread practice not to have regard to shadows cast by fences when undertaking such shadow assessments. 32 In this case the provisions of DCP 4 at 2.8 in control G specifically require that shadow diagrams are to be based on and show the effects of fencing and courtyard walls. For that reason I am satisfied that the appropriate element of the sunlight analysis table to consider is the element that is contained in option one and that is one which considers the shadows cast by the proposed dwellings by the adjoining dwellings and by all fencing. 33 In response to the possibility that such an option would be preferred by the Court, the applicant put two further matters in its aid. The first is that, effectively, the applicant was providing much more than the minimum area required for private open space, which is a minimum of 80 m2 per allotment, and that it ought not be subject to a penalty by the fact that a larger area was being provided but that did not comply. The applicant also submitted to me that the calculations, if applied to the minimum area, would show either compliance or very close to compliance with the prescriptions of the DCP. 34 I am satisfied that for Lot 3, if I were to take the more generous position advocated by the applicant, that it is possible that there would be compliance and that was acknowledged by the evidence of Mr Tillott. However, it remained his evidence, as I apprehended it, that Lot 1 would still not comply and that in any event, even if there is strict numerical compliance, which there is not, the solar access would only be at the cusp of acceptability and likely to be below it. However, cl 1.4 of the DCP takes me to this proposition, that if the numerical control is not met then the performance criteria and particularly the general objectives must be met. 35 I am satisfied given the definition of private open space in 2.7(2) which is that, "Private open space is to serve as an extension of the dwelling providing space for relaxation, dining, entertainment, recreation and children's play", that the degree of solar access to the private open space of Lot 3 fails, albeit marginally, but that I am not satisfied that the private open space of Lot 1 is satisfactory against the general tests. For that reason I would refuse the appeal on the basis of sunlight and solar access to private open space areas. 36 With respect to the broader issue of general amenity of the design that comes from the DCP general objectives at the sixth dot point of "encouraging housing of the highest feasible standard", feasibility not, as far as I am able to determine, being a defined form of art in the DCP. It takes one to 2.1 objective A, "to achieve site layout that provides pleasant, attractive and energy efficient living environment", and to 2.9 at performance criterion 3 which says that, "site layout and building design should protect internal living and sleeping areas from high levels of external noise". 37 There are two issues that arise out of the question of general amenity and design and they come from the siting of the dwellings on proposed Lots 3 and 4 adjacent to the substantial retaining and site barrier wall between the subject site and the McDonalds Restaurant and service station site immediately to the east. The consequences of this on the proposed siting is that the ground floor rooms which face the eastern side and therefore into the wall will have marginal amenity and, to the extent that they have windows, the evidence was that between 10 am and 11 am they would obtain at best fleeting solar access and that the dining room of the dwelling on proposed Lot 4 would rely on what Mr O'Rourke described as borrowed light for its natural lighting. 38 The second issue that related to the general amenity and design is the issue of the necessity to have a shuttering to the window of bedroom four of the dwelling proposed for Lot 4 which would be its only possible source of natural ventilation but that shuttering being necessary to comply with the provisions of one of the restrictions contained in the covenant and also to preserve some possibility of night time amenity. Whilst these might be reflective of a poor overall design - not a poor design of each of the individual dwellings as a separate dwelling if they were looked at otherwise on an unconstrained site - but as a consequence of what the first hearing of the independent housing assessment panel described as a too congested development of the site. However, I would not reject the development on the basis of those defects in design. 39 The next issue is the issue of the impact on the residents at 7 Orkney Place. The first provision that is relevant comes from 1.2 of the general objectives of the DCP at the concluding dot point on page 1 relating to privacy and noise. That takes me to 2.1 of the DCP at C, site planning, which is that the site planning objective is to ensure privacy for residents and neighbours. The particular matters that are then relevant arise from the fact that the definition of the private open space area, as it applies to dwelling number one that I adverted to earlier, contained in 2.7 at performance criterion 2 envisages that the private open space will be used extensively by the residents of a dwelling is likely to cause noise impact on the master bedroom of the dwelling located at 7 Orkney Place. 40 The acoustic privacy objectives are set out in the DCP at 2.9 as objective A, "to site and design buildings in a manner which protects the acoustic privacy of nearby dwellings". Performance criterion 1 requires that the acoustic privacy of neighbouring dwellings is respected. The evidence from Mr Tillott satisfies me that it is likely that the use of the private open space for proposed dwelling one would be in accordance with the definition of private open space contained in 2.7 performance criterion 2 of the DCP and that because of the proximity of that private open space to the master bedroom of 7 Orkney Place that it is likely that that would result in an unacceptable impact on the residence of 7 Orkney Place. 41 The second possible impact of the proposal on 7 Orkney Place relates to the matter raised by Mr Cooper of his view of what he described as an unrelieved continuous two-storey brick wall. I am satisfied that, to some extent, Mr Cooper's concerns are exaggerated. I am certainly not satisfied from the view that there would be any concern of a legitimate nature relating to the proposed dwelling on Lot 2 for these purposes. 42 However, with respect to the two-storey element proposed on Lot 1 which is forward of the area which comprises on the second storey of No. 7 (the master bedroom) would provide a view from that master bedroom of what was likely to be a largely unrelieved brick wall. It is the two-storey element of the proposed building on Lot 1 which is immediately above the garage area which provides that and leads me to a discussion of the issue of setbacks because it is that second-storey element immediately above the ground which I consider is the matter which causes the applicant to fail on the issue of setbacks to Lot 1. I would indicate that in totality the adverse impacts, particularly the noise impacts on the residents at 7 Orkney Place, would be in itself a basis for refusal of the appeal. 43 There was considerable discussion of the issue of setbacks and the particularly long setback to 7 Orkney Place. It was put on behalf of the applicant that the degree of setback to 7 Orkney Place was somewhat aberrant and ought not be regarded for the purposes of control B at 2.5 of the Development Control Plan to be the norm for the purposes of requiring the setback on the present site. During the view the location of possible setbacks for a dwelling which might be erected on No. 5 were inspected and some considerable discussion both on the view and in submissions and evidence has taken place on the likely effect on setbacks of the bulb of the cul-de-sac. This is not a matter, given my other conclusions, that requires detailed consideration. 44 As I indicated with respect to the issue of the visual impact on the master bedroom of No. 7, the difficulty that I perceive with setbacks for the present proposal does not relate to the numerical compliance or otherwise, it is the substantial effect of the second-storey element above the garage to proposed Lot 1. If the setback to the residence at 7 Orkney Place were setback to a single-storey garage element at its most forward point thus I would be satisfied that a consideration of what might be regarded as to the sweep of setbacks round the bulb of the cul-de-sac would not render the numerical issue of the setback to the proposed dwelling on Lot 1 unacceptable. It is the relationship between its second storey element and the dwelling at No. 7 that is unacceptable and not the numerical setback from the street. 45 The final matter that requires to be dealt with is the proposed condition 13B relating to water tanks and the requirement that each dwelling have a water tank. Such a requirement would be consistent with cl 2J of the Local Environmental Plan as it would be a provision that would facilitate environmental sustainability. It is possible, although I note that Mr Tillott did not consider it so, that a water tank would also assist in the satisfaction of objective B of provision 2.13 of the DCP as to minimising the negative impact of stormwater run-off. I am also satisfied that the requirements of 1.2 in the fourth dot point of the DCP would render such a clause generally appropriate because it is, in the DCP's terms, also related to the promotion of ecologically sustainable development. 46 However, I would indicate that I am not satisfied that the drafting of the clause as proposed is sufficiently precise as to be capable of certainty of compliance by an applicant. I merely make that comment as I have otherwise determined that the appeal should be dismissed and the application refused, but I would have, had I been pressed to do so and there been nothing else in the way of the application, declined to impose 13B on the grounds of lack of certainty as to size of water tank and the like. 47 As a consequence, the orders of the Court are: 1. The appeal is dismissed. 2. Development Application 2043/02 for subdivision of two existing allotments into four Torrens Title allotments and the erection of a two storey free-standing dwelling on each new allotment at 6 and 8 Orkney Place, Prestons, being Lots 203 and 204 DP 1016202 in accordance with plans numbered 2003/1 to 2003/17 prepared by ITZ Your House is refused; and 3. The exhibits, except A, may be returned. ____________________ T Moore Commissioner of the Court rjs 1 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.