Land and Environment Court of New South Wales CITATION : Trebincevic v Campbelltown City Council [2007] NSWLEC 557 APPLICANT Samir Trebincevic PARTIES : RESPONDENT Campbelltown City Council FILE NUMBER(S) : 10071 of 2007 CORAM: Murrell C KEY ISSUES: Development Application :- Impact on adjoining property, privacy overlooking, amenity of proposed dwellings - solar acces and relationship of open space, streetscape presentation, character of area. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Campbelltown (Sustainable City) Development Control Plan 2005 Campbelltown (Urban Area) Local Environmental Plan 2002 DATES OF HEARING: 07/05/2007 and 08/05/2007 DATE OF JUDGMENT: 31 August 2007 APPLICANT Ms A. Pearman, barrister Instructed by Mr S. Peters of Peters Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr A. Seton, solicitor of Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 31 August 2007 10071 of 2007 Samir Trebincevic v Campbelltown City Council JUDGMENT 1 This judgment is for an appeal under s97 of the Environmental Planning and Assessment Act 1979, against the refusal by Campbelltown City Council of a development application for a dual occupancy development at the property known as No. 32 Claremont Circuit, Glen Alpine. 2 The Court met on site the first morning of the hearing and heard from a number of resident objectors, including Ms Leanne Powell of No. 30 Claremont. She advised the Court that she had been attracted to the area because of the size of the lots to allow space around the dwellings for privacy from adjoining neighbours. She is concerned that the living areas are upstairs and the balconies will be used for as the primary open space areas. She also expressed concern about the lack of parking or visitor parking for the two dwellings proposed on the single allotment and that the character of the area would be adversely impacted and against the covenant for the area that does not allow dual occupancy development. She expressed concern that the garages would represent more than 50% of the frontage and that the character or uniqueness of Glen Alpine should be preserved. 3 Mrs Belinda Gibson of No. 26 Claremont informed the Court that she originally bought in the area because of the size of the allotments that is between 800 and 1000 square metres and that this represented the landmark estate of the area because there were no small blocks. She is concerned about the parking and traffic generated by the proposed development and expressed concern about privacy into her backyard. 4 Mr Stephen Salamonson of No. 47 informed the Court that he considers that the covenant should be upheld for dual occupancies. He is also concerned about the safety and traffic generated by the proposal and concern for pedestrians. 5 Mr Hussan Dehaini of No. 45 told the Court that the uniqueness of the area is that there are no dual occupancies because of the covenant. He also said that the site is some 3 kilometres from both the station and shops. 6 Mr Frank Wardlaw of No. 51 said he bought into the area because it was an estate with larger blocks with no flats or duplexes and that the proposal represented higher density. 7 Mrs Crook of No. 21 is concerned that if the dual occupancy is approved it would create a precedent and there are vacant blocks behind her. 8 Expert evidence was given to the Court on behalf of the respondent council by Mr Michael Brown, consultant town planner and Mr David Haskew, consultant planner gave evidence on behalf of the applicant. Proposal 9 The application is for the erection of a dual occupancy development comprising two attached dwellings and the Torrens Title Subdivision along the party wall to create two separate lots. The street elevation is attached at Figure 1. Issues 10 The Council provided an amended Statement of Issues as follows: 1. The proposed development is unacceptable in that it does not comply with the provisions of the Campbelltown (Sustainable City) Development Control Plan ("CSCDCP") in respect of access to private open space and visitor car parking. Particulars (a) The living areas of the proposed development are predominately located on the upper storey of the building and as such are not directly accessible to private open space areas, in circumstances where the CSCDCP requires that living areas be directly accessible to private open space areas (see Clause 3.6.1(a)). (b) The proposed development does not provide for any visitor car parking spaces in circumstances where the CSCDCP requires that one (1) visitor car parking space (not in a `stacked' configuration) be provided (see Clause 3.9.2(c) and (e)). 2. Whether the proposed development is consistent with the objectives of the Campbelltown (Urban Area) Local Environmental Plan with respect to protecting areas from inappropriate development. 3. Whether the proposed increase in density would result in adverse traffic and social impacts in the locality. 4. Whether the proposed development will have an adverse impact on the amenity of adjoining and nearby residents. 5. The proposed development is inconsistent with the character of existing and likely future residential development in the locality. Particulars (a) The character of the locality has developed consistently with the restriction on the use of the subject lot and the other lots in DP 840444 which prevented the erection or use of a main building otherwise than as a single private dwelling-house. (b) This restriction on the use of land in DP 840444 has resulted in there being no dual occupancy or multi-unit development in the locality and in that regard the proposed development is inconsistent with the existing and likely future residential character of the locality. 6. There is no jurisdiction to approve the development application as amended given that it is not accompanied by a BASIX Certificate. 7. The proposed development is unacceptable and not in the public interest, having regard to the public submissions received objecting to the development, and it would set an undesirable precedent for similar inappropriate development. 8. The proposed development is inconsistent with the following design objectives of Part 3.3 of the CSCDCP: (i) Ensure that buildings are designed to enhance the existing and future desired built form and character of the neighbourhood by encouraging innovative and quality designs that fit harmoniously with their surroundings. (ii) Ensure that parking areas, garages and driveways are appropriately sited, designed and constructed so that they do not detract from the appearance of the development or the streetscape. (iii) Ensure the provision of equitable access to light and sunshine for the occupants of all residential buildings. 9. The proposed development is unacceptable in that it exceeds the 2-storey height above natural ground level at any point control imposed by clause 3.3.2(a) of the CSCDCP. 10. The proposed development is not well designed and does not make a positive contribution to the streetscape and amenity of the neighbourhood and in that regard is inconsistent with the objective of Part 3.9 of the CSCDCP. 11. The proposed development is unacceptable in that the garage in the southern dwelling fails to meet the minimum internal dimensions specified in the CSCDCP. Particulars (a) The garage in the southern dwelling has a minimum internal width of 2.65 metres in circumstances where the CSCDCP requires that the minimum internal dimensions of an enclosed garage shall be 3 x 6 metres (see Clause 3.4(b)). (b) If the internal width of the garage in the southern dwelling were increased to comply with clause 3.4(b), the combined width of the garages would exceed 50% of the width of the dwelling (at its street fronting facade) in circumstances where the CSCDCP requires that garages facing a public street shall be no wider than 50% of the width of the dwelling (at its street fronting facade) (see Clause 3.3.1(e)). 12. The proposed development is unacceptable in that if fails to incorporate adequate security features in accordance with the principles of Crime Prevention through Environmental Design. Particulars (a) The proposed northern dwelling fails to provide for adequate casual surveillance opportunities to the street (see Clause 2.12(a)(i) of the CSCDCP). 11 At the commencement of the hearing on behalf of the respondent Mr Seton conveniently summarised the council's issues as: o The dominance of garages representing more 50% of the frontage. o The private open space at ground for the dwellings not connecting with the living areas on the upper floor. o Inadequate solar access. o Safety and streetscape issues. o Inconsistent with the character of the area and the predominate lot size. o Amenity impacts on adjoining properties. o No visitor carparking. o Traffic and parking. Side and Environs 12 The subject site is an irregular shaped allotment of some 802 sq metres with a 22.7 metre frontage to Claremont Circuit and an average depth of 38 metres. The land on the eastern side of the circuit where the site is located is relatively steeply sloping with a fall of about 8 metres from the front to the rear boundary. At the rear of the site there is 1.5 metre wide drainage easement. The site is one of the few remaining vacant lots in the Glen Alpine estate and surrounding development consists of single dwelling houses of one, two, three and four storeys in height. The dwellings opposite the subject site are on steep allotments with steep driveways with garaging under the dwellings. 13 At the time of subdivision of the estate a s 88(B) instrument under the Conveyancing Act 1919 was imposed. The terms of restriction of the use of land included: (d) not more than one main building shall be erected or permitted to remain on any lot. (e) no such main buildings shall be erected or used otherwise than as a single private dwelling house. 14 Other restrictions in the instrument included the use of building materials and requirements for fencing as well as not allowing more than three ton motor vehicles to be garaged or stored or remain on any lot. Similarly no caravan or mobile home shall be parked or stored on a lot. The restriction also stated that no lot shall be subdivided. Statutory Planning Framework 15 The Campbelltown (Urban Area) Local Environmental Plan 2002, zones the subject site as 2(b) – Residential B. The objectives of this zone include: (a) to make general provision for land to be used for housing and associated purposes, and (b) to permit the development of a range of housing types, and (c) to encourage a variety of forms of housing that are higher in density than traditional dwelling houses, including accommodation for older people and people with disabilities in location which are accessible to public transport, employment, retail, commercial and service facilities. except as otherwise provided consent must not be granted for development on land within this zone unless the consent authority is of the opinion that carrying out the proposed development would be consistent with one or more of the objectives of this zone. 16 A further objective of this zone is "to encourage a high quality standard of development, which is aesthetically pleasing, functional and relates sympathetically to nearby and adjoining development." 17 The objectives of the plan include: (b) To protect areas from inappropriate development… (f) To encourage a variety of forms of higher density housing in locations which are accessible to public transport, retail, employment, commercial and service facilities. 18 Clause 32 of the plan relates to the subdivision provisions and all subdivision requires consent. For dual occupancies in the 2(b) zone separate title for a dwelling is allowed provided the lot is not less than 350 square metres. The two lots proposed have areas of 451 and 350 sq metres. 19 The LEP contains provisions in cl 40(1) states "subject to this plan, if any agreement, covenant or other similar instrument prohibits development allowed by this plan, then it will not apply to that development, to the extent necessary to allow that development." This clause is in accordance with s 28 of the Environmental Planning and Assessment Act. 20 Under the LEP the dictionary provides a definition for dual occupancy to mean two dwellings on the same lot and attached dual occupancy comprising two attached dwellings on the same lot. The definition for multi dwelling housing in the LEP means development involving the erection of three or more dwellings on the site. 21 The Campbelltown (Sustainable City) Development Control Plan defines multi dwelling housing as "development involving the erection of two or more dwellings on the site, each with separate principal access from the ground level, that does not include garden flats, narrow lot housing or residential apartment buildings. The DCP only contains a definition for dual occupancy development in rural areas. 22 The DCP contains a number of design requirements to minimise opportunities for crime and enhance public security and states: maximise where possible causal surveillance opportunities to the street and surrounding public spaces. 23 The objectives for building form and character are: o Ensure that the massing and scale of new development are complementary to the existing residential buildings in the neighbourhood. o Maintain a low medium density special character with any existing neighbourhoods. o Ensure that buildings are designed to enhance the existing and future desired built form and character of the neighbourhood by encouraging innovative and quality designs that fit harmoniously with the surroundings. o Ensure that parking areas, garages and driveways are appropriately sighted, designed and constructed so that they do not detract from the appearance of the development from the streetscape. o Ensure the provision of equitable access to light and sunshine for the occupants of all residential buildings. 24 The design requirements include: (a) Building design (including façade treatment, massing, roof design and entrance features), setbacks and landscaping shall compliment the scale of development, character and qualities of the streetscape and (e) garages facing a public street shall be no wider than 50% of the width of the dwelling (at its street fronting façade). (f) No part of a front loaded garage shall be located forward of the primary building alignment. 25 The objectives for carparking and access include: o Provide adequate on site carparking for residents and visitors that is convenient, secure and safe, o Ensure efficient and safe vehicle and pedestrian movement within, into and out of the development. 26 Visual privacy design requirements are also provided in the DCP and this contains the provisions that "no window of a habitable room or balcony shall directly face a window of a habitable room balcony or private open space of another dwelling located within six metres of the proposed window or balcony; off-setting of windows is required to limit views; and sill heights of 1.7 metres." 27 The DCP sets out a number of principles for solar access and the objectives are: o to encourage building design and siting to take advantage of climatic factors and reduce house hold energy consumption. o encourage features to be incorporated into site and building design to optimise passive solar access to interna and external spaces. 28 The section for multi dwelling housing requires a minimum width of 15 metres for two dwellings and the total FSR shall not exceed 0.4:1. The following requirements are also established. That is 5.5 metres from the primary street frontage; 0.9 metres from any side boundary for the ground level; 1.5 metres from any side boundary for all level above ground level; 5 metres from the rear boundary for ground level and 10 metres from the rear boundary for all level above ground level and garages must be setback a minimum of 6 metres from any street frontage. 29 The design requirements include: (b) each multi dwelling housing unit shall be provided with a minimum of one single garage (c) one additional visitor carparking space shall be provided for every two units. (e) no visitor carparking space shall be in a stacked configuration. 30 Other design requirements for multi dwelling housing are: a detailed landscape design plan and a minimum of 30% of the total area to be available for deep soil planting; the design shall be a distinctive architectural outcome that unifies a range of building elements and diversity within the development that also harmonises with surrounding development; and no more than 30% of the area forward of the building alignment shall be impervious. 31 The objectives for subdivision include: o To ensure that land once subdivided contributes positively to the desired character of the locality and provides for the safe and attractive integration of existing and new development; and o The design requirements include that subdivision shall have appropriate regard to orientation, slope and aspect to maximise solar access for future development. 32 The design requirements for the subdivision of multi dwelling housing includes that for two dwellings each allotment to be created must satisfy: i. A minimum area of 300 square metres ii. A minimum depth of 25 metres iii. All allotments have direct access to a public street iv. No common property is created v. Each allotment has a minimum width of 5 metres 33 If the above standards are satisfied council will consider an application for a Torrens Title subdivision. Evidence 34 The council determined the development application by refusing consent and reconfirmed its decision in a s82A review. The report to the council recommended approval and the officers report of 10 March 2006 states: owing to the slope of the land, the dwellings are proposed to be constructed into the land and would appear as a double storey building from the rear elevation…Living areas are predominately contained within the upper storey and bedrooms and amenities contained on the lower level (beneath the level of Claremont Circuit). Balconies are proposed to the rear of the dwellings on the upper and lower storeys and feature decorative louvers and side blades in order to reduce the potential for the loss of privacy to adjoining properties. The SCDCP requires that open space areas be directly accessed from living areas within dwellings. The application has proposed that living areas are predominantly located on the upper storey of the building, in order to maximise access to sunlight. Access to open space from the living areas is provided by a stair well to the lower storey and rear yard. The living areas on the upper storey are afforded access to balcony space. In order to efficiently set out the dwellings on the site, having regard to its topography, the dwellings have been separated into a split level style. As a compromise, a direct open space from living areas is not available, however…the non-compliance is considered to be satisfactory in this instance as satisfactory provision for access is gained… It is considered having regard to the slope of the land, strict compliance with the DCP would result in a less desirable outcome. 35 With respect to the visitor carparking the council officers' report states: It is acknowledged that there is a technical non-compliance with the SCDCP with regard to the provision of visitor carparking. The standard contained within the plan is a blanket control for the various forms of multi dwelling housing development, which includes two attached dwellings. The standard requires that each dwelling have an enclosed garage space as well one visitor space per two dwellings. The standard is considered to be impractical particularly where it would result in creation of common property, which is not permitted under Torrens Title subdivision. The anomaly within the plan occurs particularly for two dwelling applications with subdivision under Torrens Title as is the case with the subject application. In this instance a minimum of three enclosed garage spaces are provided between the two dwellings, which complies with the SCDCP's other carparking standards. Further, additional parking can be appropriately provided on the driveway areas. 36 On the issue of site suitability the council officers report states: The site is considered to be suitable for the proposed development. The allotment is located within an established residential area, where appropriate servicing exists. The development is complementary to existing housing in the area, would not detract from the streetscape and is not likely to significantly alter the amenity surrounding residents. It is anticipated that Claremont Circuit is of satisfactory design to cater for the traffic generated by the development… The street has been designed in order to allow the passage of vehicles despite the appearance of cars parked at the curb. It is considered that the approval of the subject development would not further impact upon the traffic safety in the immediate vicinity to an extent that the application should not proceed… The building essentially appears from the street elevation as one single storey dwelling. The area contains several large two, three and four storey dwellings that are considerably larger in appearance than the building proposed in this application. It is considered that the built form of the proposal is not contradictory to that which presently exists in the locality. 37 A compliance table is also provided in the council officer's report in terms of the Campbelltown Sustainable City Development Control Plan 2005. From the table I note the application before the Court complies: with the maximum floor space ratio (FSR) of 0.4:1; the four hours solar access between 9 and 3 for 21 June and the Council requirement for 700 square metres for two dwellings as well as the minimum width and setback requirements from side and front boundaries. The non compliance with the DCP relates to the open rear yards not being directly accessible to the living areas. 38 There is currently a dwelling house nearing completion on the site to the north, known as No. 34, and in the council's officer's assessment report for this application it stated: …the subject application provides a large area for designated rumpus room and bedrooms on the lower level. By definition these are habitable rooms and therefore defined as a storey, making the proposed dwelling three storeys in height. The development site falls naturally to the rear…therefore the proposed residents presents a single storey elevation to the street with the roof space design discising the second storey from the street. It is considered that the proposed dwelling will have minimal impact on the surrounding properties and has been designed to suit the land form, therefore the proposed variation is considered appropriate. As indicated many dwelling in Glen Alpine have lower ground garage and two habitable levels above facing the street … Conclusion In view of the minimum impact on the streetscape, the compatibility with other similar developments in the area, the stepped and partially excavated nature of the design, the proposal will have minimal impact upon adjoining residences insofar as this is possible in the steep Glen Alpine environment. 39 The planners in the proceedings, Mr Brown and Mr Haskew, prepared a joint report that became Exhibit 9 in the proceedings. On the issue of the location of open space the planners agreed: It is further agreed that the proposed development provides two forms of private open space. The largest area is provided at ground level at the rear of the proposed building. This area of open space grades from Arial 5.48 to 2.95 being the top of the rear retaining wall the depth of this private open space is 14 metres with an average grade of 18%. It is further agreed that the proposed dwellings are provided with elevated private open space in the form of balconies… In addition secondary balconies are provided to all east facing bedrooms at lower ground level. Both main internal living areas are provided skylights in addition to east facing windows and in the case of the northern most unit north facing windows. Nevertheless it is agreed that the north facing windows of Unit 1 do not achieve substantive solar access due to overshadowing by the northern adjoining dwelling under construction. It is further agreed that overshadowing of that dwelling on the subject land is likely inhibit midday solar access to the proposed skylights, however morning and afternoon solar access would still be available. 40 Mr Brown does not support the upper floor balconies off the living areas as appropriate private open space for the dwellings and cites the Australian Model Code of Residential Development (AMCORD) "private open space is best located adjacent to an assessable from living family rooms if it to serve as an outdoor extension of the dwelling." He considers that the use of balconies at the upper level heightens the issues raised by objectors in terms of privacy notwithstanding the provision of screening. He states: The proposed dual occupancy is unsuitable for this site due to the orientation of the lot being quite poor for adequate solar orientation for both dwellings and the need for a relatively large footprint to accommodate both floor plans, setbacks that could normally be applied on a single dwelling are simply not possible… Similarly given the very steep topography of the site, a well designed single dwelling would be able to respond more easily to level changes and the desired northern setback. 41 Mr Haskew on the other hand notes that the proposed living areas are provided with satisfactory solar access and are directly assessable to the ground floor balcony private open space areas. In his opinion the clause does not require accessibility to the principal or largest private open space area, but rather just to private open space areas. In terms of the topography Mr Haskew comments that the fact the differential is at about the height of a full storey correctly leads the design response to reverse levelling as proposed and in Mr Haskew's opinion represents a better design outcome thaN other built form examples in the locality. He states that: It is also worthwhile noting that under a split level design, the bedroom areas would be situated above the primary living areas. This would remove the opportunity for skylights as proposed such that solar access to the main internal living areas would be compromised. Accordingly pursuing a split level design alternative to achieve grade interface with the larger ground level private open space area would achieve a less desirable response. 42 Mr Haskew does not agree with Mr Brown's opinion that a single detached dwelling would achieve a better planning outcome. The northern adjoining site is developed as a single detached dwelling on similarly sloping land. It contains elevated living areas, and a significantly larger bulk. 43 On the issue of visitor parking the experts agreed that one visitor parking space for every two units is required under the controls. Mr Haskew comments that within the Campbelltown L. G. A. there are no examples of dual occupancy development having visitor parking and Mr Brown could not provide examples of dual occupancies having communally owned visitor carparking. Mr Haskew concurs with the council officers stated position in the section 82(A) review where the requirement is described as an anomaly within the plan. Mr Haskew considers that the use of the driveway areas by visitors would be an acceptable and common place situation for the provision of visitor parking for dual occupancy development. He also considers there to be sufficient spare curb side capacity to satisfy visitor parking demand in addition to stacked parking on the driveway as Claremont Circuit is a low volume low speed residential access street. 44 On the other hand Mr Brown considers that: Like most suburbs located some distance from high levels of public transport there is a high dependency on the private motor vehicle…the average household in the area has two or more vehicles per dwelling… The development results in either visitors being parked in stacked situation within the building line or within the street system. This is contrary to this clause. 45 On the issue of local traffic environment the experts agree: o Claremont Circuit is a two lane, un-line marked, undivided carriage way with curb side parking opportunity with a carriage width of approximately 7 metres. o Claremont Circuit services are total of 66 single detached residential dwelling houses. o Based on RTA guide traffic generation rates total traffic generation from Claremont Circuit at the intersection of Hartford Avenue is likely to be in the order of 594 daily movements and 56 peak hour movements. o It is agreed that the above is a low traffic volume. o It is agreed that there are no geometric or other physical conditions, which would represent any obvious traffic safety hazards. o Pursuant to the RTA guidelines the proposed development, as compared to a single detached dwelling would generate nine additional day movements and one additional peak hour movement. o It is agreed that the proposed access driveway is appropriately located, of sufficient width and satisfactory grade to achieve compliance with the Australian Standard. o It is further agreed that the proposed development is unlikely to result in any unacceptable adverse traffic related impacts, such as vehicular noise or headlight intrusion. 46 Mr Brown notes that the proposal results in vehicles parked within the street system and while this is not a major issue per se in terms of the capacity of the system to handle additional traffic one must consider the on-site parking provision for this development and compare that to the existing situation in respect to driveway locations. He notes that the driveway for No. 47 is almost opposite the driveway to the subject property and the increased on street parking could have an adverse effect on this residence. 47 On the issue of social impact the experts agreed that the proposed development will not result in adverse social impacts. 48 For the issue adverse impacts on the amenity of adjoining and nearby residents the planners agreed that overshadowing impacts are considered acceptable having regard to the east west orientation of the site and the overshadowing that would be likely to occur for any development of the site. They also agree that the bulk and scale is acceptable having regard to the compliance of the proposal with the maximum FSR and setback provisions as well as the proposal being consistent with bulk and scale of surrounding development in the locality. 49 Mr Brown considers the proposal exceeds the maximum height requirement of two storeys whereas Mr Haskew considers that it is compliant. 50 During the proceedings the experts provided a more detailed analysis of privacy and overlooking and Mr Haskew suggested some minor modifications to the plans to overcome overlooking concerns. However, Mr Brown does not consider the changes as being acceptable being made on the run he is not satisfied with the privacy impacts to the east. Mr Brown comments "it is conceivable even with careful planning, an increase in density in this particular locality, that currently does not have any form of multi unit housing, will impact on the character and amenity attributes currently enjoyed by adjoining residents." He also states that there has been no details submitted to show the location of window in relation to the subject proposal and existing development. During the proceedings this matter was further assessed by the experts. 51 Mr Brown states that: The balconies and hence private open space for each unit is located at the upper level when view from adjoining properties. The balconies will perform an extension of the living areas and will be more frequently used given the fact the private outdoor open space is located at the lower level. The frequency of use of balconies at this level only heightens the concerns expressed by the objectors as to privacy. 52 With respect to the definition of two storeys Mr Haskew notes that storey is defined as that space within a building which is situated between one floor level and the floor level above where if there is no floor above the ceiling the roof above. Therefore in his opinion the proposed development is two storeys at the rear with the under croft of the ground floor not constituting a storey. 53 In Mr Haskew's opinion overlooking from the rear ground floor balconies is controlled through the use of blade walls to protect northern and southern adjoining lots. The eastern adjoining private open space area is situated some 15 metres from the ground floor balconies. This separation distance exceeds the 9 metre privacy protection radius adopted by both AMCORD and the New South Wales model code. Mr Haskew further comments that: Elevated living areas appear to be common in the locality and I do not accept that the proposed development results in unreasonable or unsatisfactory privacy outcomes as a result of the elevated private open space. Notwithstanding the above, proper assessment of privacy impacts should have regard to the relative position of windows between dwellings and it is for that reason that window locations on adjoining dwellings have been requested by supplementary survey. 54 As noted earlier the additional information was available during the proceedings. And such recommendations were contained in Exhibit L with respect to sill heights and the location of windows. 55 The planners agreed that the s 88 instrument to restrict dual occupancy development in Glen Alpine has lapsed and in any event any such an instrument would be suspended pursuant to cl 40 of the LEP. It is further agreed that within Glen Alpine there are four examples of dual occupancy development. Mr Haskew considers these examples to be successful inclusions into the pre-existing character of their respective localities and Mr Brown distinguishes this application as being out of character compared to the other existing dual occupancies. 56 Mr Brown is of the opinion that the character has been largely influenced by the s 88(B) instrument and he states: The pattern can be seen that the covenants have been largely complied with. Of particular importance is that driveways are fairly consistent in width at the crossing area, with some widening to provide access to double garages. In addition driveways are located on either one side of the subject properties and not central as that proposed by this development. The only exception is the driveway provided to No. 34, which has a wide driveway crossing and a significant amount of hard paving forward of the building. In addition the lots are large and this proposed development will result in smaller lots than these existing in the area. 57 Mr Haskew considers that the character is a term used for the visual impressions of a locality and states: The character of the subject locality can be described as large, one, two and three storeys detached brick and tile dwellings on relevantly steeply sloping land. The character is also influenced by low traffic volumes, front garden landscaping, and a quiet and peaceful ambiance. This character description can not be plausibly be said to be adversely influenced by the inclusion of a dual occupancy into an otherwise detached dwelling environment where: o The architectural style and construction materials are entirely consistent with existing development. o The visual presentation to the public domain is entirely consistent with existing development. o Bulk, scale, height and size is entirely consistent with the existing development and o Traffic and other manifestations of activity of localities quiet ambiance are so minimal as to be unnoticeable. 58 On the issue of design and streetscape Mr Haskew is of the opinion that :the development presents to Claremont Circuit as a single storey brick and tile dwelling which is entirely consistent with the bulk, scale, design and character of the development within the locality." He further considers that the development complies with all numeric design requirements with the exception of visitor parking as well as a minor exceedence of maximum garage width averaging 51% of the frontage. Mr Brown on the other hand states that there is no distinctive architectural style in the street and that whilst the development provides a style consistent with the type of dwelling locality it does not address the street with the dwellings and garages being a dominant feature being central to the building whilst other dwellings generally have garaging to one side. He further considers that: The development does not promote good design due the overall bulk and scale of the building, the lack of façade articulation, and the effective lack of solar access to the northern and southern unit. 59 Mr Brown considers that the dwellings do not address the street and provide passive surveillance due the design with the double garage entry foyer located across the front. Mr Haskew accepts the proposed development does not maximise passive surveillance of the public domain however, in his opinion: The instance of two dwellings with sub optimum passive surveillance is unlikely to have any consequential bearing on crime risk in Claremont Circuit. He also notes that the fact that there is a window presenting to the street is more important than the use of the room and that "the perception that there may be people watching from behind the windows is significantly more important. 60 Therefore in his opinion providing four separate windows to Claremont Circuit provides the necessary environmental queue of creating the perception that people maybe be watching is achieved. Findings 61 The attached Figure 1, while not to scale, depicts the proposed development in the context of adjoining dwellings on either side. I am satisfied the proposed development will sit comfortably in the streetscape and is not out of character with the area. In this regard I am persuaded by the evidence of Mr Haskew and council's assessment planner. I do not agree with Mr Brown's assessment that the presence of a dual occupancy would be offensive in the streetscape. 62 In my assessment the design of the dwellings is such that it will appear as a large residence not dissimilar to many in the streetscape. Furthermore, the dwellings will be less dominant in their combined built form and will provide for a more comfortable fit than many of the dwellings in the street, in particular the dwelling to the north currently under construction. The element of two letter boxes to flag that this is a dual occupancy development as opposed to a single residence could not offend a passer-by and indeed would not warrant refusal of the application. 63 The overall character of the area of large dwellings on large allotments will not be disturbed by the proposed development. From the street elevation it would be difficult to perceive the built form as two dwellings on two lots having regard to the integrated design of this attached dual occupancy that achieves the appearance of a single dwelling. In my assessment the proposed development will not alter the character of the area as the overall design is consistent with the prevailing built form in the streetscape. 64 Similarly the more central location of the garages in the streetscape would not warrant refusal of the application. The presence of three garages in the streetscape for one dwelling is not an unusual feature in the estate. Furthermore I am satisfied that, while the garages together represent some 51% of the frontage, and a greater percentage in respect of the double garage when subdivided into two lots, the design has merit and the garages will not detract from the appearance of the development or the streetscape. As could be seen on the view there are many large dwellings with three garages clearly visible in the streetscape, not just the dwelling to the north. Similarly the overall design of the dwellings will in my assessment fit harmoniously with their surroundings. 65 I note that there are few vacant lots in the estate and the development of the subject site for the proposed two dwellings will not be a precedent that could lead to a change in the character of the existing estate now or in the future. The estate will continue to function as a lower density area with predominantly large allotments with large single dwelling houses in well maintained landscaped settings with the variations in topography to provide an attractive distinguishable setting. 66 The design of the proposed built form generally respects the steep topography with the slope of the land being such that the garages be readily accessed from the level of the street with two storeys at the rear to take up the slope of the land. In this regard I agree with the Applican'ts expert and the councils planner's assessment. I am also satisfied that the building at the rear will read as a two storey development with an undercroft and it is generally consistent with the pattern of development in the area. 67 While I recognise that it is more desirable to provide ground level private open space connected with the living areas at the same time the site is constrained by topography, and orientation with the large dwelling to the north. The critical question for the Court then becomes whether the site is suitable for the development and this must be assessed in terms of whether the balconies from the upper floor living areas together with the rear ground private open space provides satisfactory amenity for the occupants, including solar access, and without also unreasonably impacting on the amenity and privacy of the dwelling house to the south. 68 On the basis of the evidence to the Court I am satisfied that the proposed development will not unreasonably impact on the dwelling house to the south and the overlooking privacy concerns are sufficiently ameliorated by the separation distances and the design of blade walls and louvres as shown in the plans. I appreciate that residents do not always embrace change, however, the role of the Court is to assess whether the impacts are unreasonable and I am satisfied that the proposal will not create impacts than could not be expected in a suburban low density environment with steep topography where there is a certain degree of mutual overlooking. 69 In my assessment with the benefit of the experts I am also satisfied that solar access and the internal and external amenity for the proposed dwellings is satisfactory and would not warrant refusal of the application. As such the site is suitable for the proposed development of two dwellings. I do not accept Mr Brown's analysis that the site is only suitable for a single dwelling. 70 On the question of design for safety I am persuaded by Mr Haskew's evidence that the proposal may not be optimum for passive surveillance of the public domain , however, in the context of this streetscape where the design of dwellings generally provides for 'eyes on the street' this would not warrant refusal of the application. 71 The issue of the need for a visitor car parking space in my assessment also would not warrant refusal of the application in the circumstances of the case where the driveways to each dwelling provide off-street visitor parking and there is on street parking available. The evidence before the Court is that the street also has the capacity of accommodating the proposed development. 72 In my overall assessment of the merits and against the council's planning regime the proposed development is consistent with the objectives of the zone. In particular, the proposal provides for a variety in housing form and range, and "the design is aesthetically pleasing and relates sympathetically to nearby and adjoining development". Orders 73 Accordingly on the basis of my assessment above the formal orders of the Court are: 1. The appeal in respect of the property known as No. 32 Claremont Circuit is upheld. 2. Development application submitted to Campbelltown City Council, and as amended is approved subject to the conditions contained in Annexure 'A'. 3. The exhibits are returned to the parties with the exception of Exhibits 4, 6, B, C, L and O. ___________________ J S Murrell Commissioner of the Court ljr 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.