Land and Environment Court New South Wales Medium Neutral Citation: Lumb v Hurstville City Council [2013] NSWLEC 1071 Hearing dates: 15, 16 April 2013 Decision date: 24 April 2013 Jurisdiction: Class 1 Before: Hussey C Decision: 1) The appeal is dismissed. 2) Development consent to DA 11/GA - 370 for the construction of a detached dual occupancy and Torrens title subdivision at Lot 35 DP 5510, No 26 Llewellyn Street, Oatley is refused. 3) The exhibits may be returned except for 2, A, D and E. Catchwords: Development application: Dual occupancy, permissibility, site density, streetscape, desired future character, drainage Legislation Cited: Hurstville Development Control Plan No 1 Hurstville Local Environmental Plan 1994 Hurstville Local Environmental Plan 2012 State Environmental Planning Policy No 1 Cases Cited: Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 Category: Principal judgment Parties: Ms Sharon Marie Lumb (Applicant) Hurstville City Council (Respondent) Representation: Counsel Mr T To (Applicant) Solicitors Mr A Seton, Marsdens Law Group (Respondent) Brock Partners (Applicant) File Number(s): 10065 of 2013 Judgment Background 1This appeal is against council's refusal of a development application for a dual occupancy development and Torrens title subdivision at 26 Llewellyn Street, Oatley. 2The following contentions were identified for the appeal: * Site density * Permissibility of dual occupancy development on the subject site * Merit considerations concerning building height, front and rear setbacks and building separation * Drainage in terms of management of overland flows * Precedent * Adequacy of information 3The determination of this matter proceeded by way of a s 34AA conference. The matter commenced on-site with a view and hearing of oral evidence from the residents. Following this, conferencing was undertaken by the parties, particularly the engineers regarding the drainage issue. However as the council representatives did not have any delegation for agreement, the s 34 conference was terminated and the matter proceeded to determination. The site 4No 26 Llewellyn Street currently comprises the parent Lot 35 DP 5510, which has a total area of 1785 sq m and a 21.115 m street frontage. However approval was granted in May 2001 to the 2 lot subdivision of this parent lot into: * Lot 1, a battle-axe lot with an area of 753 sq m and 3 m wide access handle to Llewellyn Street, and * Lot 2 with an area of 1032 sq m fronting Llewellyn Street and subject to the 3 m wide right-of carriageway (ROC) to Lot 1. 5Consequently, the proposal is effectively for the dual occupancy development of Lot 2 (the site). As the original subdivision approval is still current but not registered, the draft conditions of consent for the subject proposal require the prior registration of the parent lot subdivision to create Lot 2. 6Currently existing at the rear of the site is a single storey dwelling house with a street setback of approximately 25 m. A concrete driveway is also located adjacent to the northern boundary of the allotment along the ROC. Existing vegetation on the site includes a significant Silky Oak (Grevillia Robusta) and an Illawarra Flame Tree (Bracychiton Acerfolius). 7The site has a significant fall to the rear and a cross fall from north to south. There is a private driveway to the adjoining No 28 adjacent to the front boundary, which encroaches on the subject site by approximately 2m on the south-eastern corner. 8The subject site is located on the western side of Llewellyn Street, Oatley. Llewellyn Street is characterised by one (1) and two (2) storey residential developments comprising primarily of single dwelling houses and dual occupancy developments and some multiple dwelling developments. 9Adjoining the site to the north, north-west and south are single dwelling houses. There is an existing 525 mm diameter stormwater pipe running along this southern boundary. Adjoining the site to the west (rear of the site) is a vacant allotment (Proposed Lot 1). The Georges River is located to the rear of this vacant allotment. The proposal 10The proposal is for the construction of a new dwelling at the front of the site leaving the existing single storey dwelling house (at the rear of the allotment) to be retained. The proposal then seeks consent for Torrens Title subdivision of the resulting dual occupancy development. 11The new dwelling is to be of two - storey construction with a part basement garage. The garage is to be accessed via the 3 m wide ROC on the northern side of the site. Pedestrian access to the new dwelling is via an elevated ramp incorporating a pergola type structure from the ROC to the front entry door at the upper level. This ramp is located within the front setback area. 12The new dwelling is proposed to be constructed with a 4.5 m front boundary setback; a 1.96 m setback from the south boundary; a 1.55 m from the northern boundary) and; a setback from the existing dwelling house on the site of 5.38 m. 13The proposal includes the removal and replacement of the existing Illawarra Flame tree in the front setback area. Also, the creation of a drainage easement substantially over the existing stormwater pipe along the southern boundary, together with construction of an overland flow path along the easement. Applicable planning controls A Hurstville LEP 1994 (LEP 1994) 14Under which the subject land is within Zone No 2 (Residential Zone) and it is in a Foreshore Scenic Protection Area. Section 8 deals with the zone objectives and development control table and states: (3) Except as otherwise provided by this plan, the council may grant consent to the carrying out of development on land to which this plan applies only if the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out and has considered the extent to which the proposed development is consistent with those objectives. 15The relevant zone objectives are: (a) to preserve and enhance the character and amenity of established residential areas, (b) to allow a variety of housing types within existing residential areas, ... (d) to encourage greater visual amenity by requiring landscaping and permitting a greater variety of building materials and flexibility of design 16Clause 11A contains the following controls for dual occupancy development: 11A Dual occupancies (1) Notwithstanding any other provisions of this plan, the objectives of this clause are to: (a) prohibit the creation of a second detached dwelling within the backyard of an existing property, except in respect of corner allotments or sites which have rear lane or dual street access, and (b) encourage the development of a second dwelling in the form of: (i) first floor additions to an existing detached dwelling, or (ii) new attached dwellings, and (c) allow minor extensions to an existing detached dwelling to provide additional floor space required to create a second dwelling, and (d) provide a minimum allotment size and width required for the development of dual occupancies so that: (i) the pattern of subdivision in residential areas is retained as reflected in lot size, orientation and shape, and (ii) allotments have a minimum size so as to provide landscaped areas that are suitable for tree planting, and (iii) the scale and density of development is compatible with the existing streetscape. (2) Unless otherwise provided for in this plan, this clause applies to all land within the local government area of the City of Hurstville. (2A) The minimum allotment size for the creation of a dual occupancy on land within Zone No 2 is 630 m2 and the allotment must have a width of at least 15 metres. (2B) Any development application relating to the creation of a dual occupancy on land within Zone No 2 that was lodged, but not finally determined, before the commencement of Hurstville Local Environmental Plan 1994 (Amendment No 50) is to be determined as if that plan had not been made. (3) The council must not consent to the erection of a second detached dwelling in the backyard of a dwelling house except in respect of corner allotments or sites which have rear lane or dual street access. 17Clause 19B contains the following FSPA controls: 19B Foreshore scenic protection area (1) This clause applies to land within a foreshore scenic protection area, which is land shown edged heavy black with diagonal hatching on the map marked "foreshore scenic protection area". (2) A dwelling house must not be erected on land within a foreshore scenic protection area, except with the consent of the council. (3) The minimum density requirement for the erection of more than one dwelling on land that is within Zone No 2 and within a foreshore scenic protection area is 500 square metres per dwelling. (4) The council must not grant consent to the carrying out of any development on land to which this clause applies unless it has considered the following: (a) the appearance of the proposed development from both the waterway and adjacent foreshore areas, (b) the likely impact of the proposed development on views from adjoining properties and public places to the waterway and adjacent foreshore areas, (c) the likely effect of the proposed development on the natural topography, natural rock formations, canopy vegetation, or any other significant vegetation, (d) the design of the proposed development and selection of materials and their impact on the character of the locality and landscaped open space on the site. B Hurstville LEP 2012 (LEP 2012) 18Under which the subject land is within the Zone R2 Low Density Residential. However this LEP contains the following savings clause: 1.8A Savings provision relating to development applications If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. Note. However, under Division 4B of Part 3 of the Act, a development application may be made for consent to carry out development that may only be carried out if the environmental planning instrument applying to the relevant development is appropriately amended or if a new instrument, including an appropriate principal environmental planning instrument, is made, and the consent authority may consider the application. The Division requires public notice of the development application and the draft environmental planning instrument allowing the development at the same time, or as closely together as is practicable. 19The objectives for the R2 zone are: 1 Objectives of zone · To provide for the housing needs of the community within a low density residential environment. · To enable other land uses that provide facilities or services to meet the day to day needs of residents. · To encourage development of sites for a range of housing types, where such development does not compromise the amenity of the surrounding area, or the natural or cultural heritage of the area. · To ensure that a high level of residential amenity is achieved and maintained. · To encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment. · To provide for a range of home business activities where such activities are not likely to adversely affect the surrounding residential amenity. 20Clause 4.1(A) relevantly provides: 4.1A Minimum lot sizes for dual occupancies and multi dwelling housing (1) The objective of this clause is to achieve planned residential density in certain zones. (2) Development consent may be granted for development for the purpose of a dual occupancy on a lot that is land identified in Column 1 of the Table to this subclause if the area of the lot is equal to or greater than the area shown opposite that land in Column 2 of that Table. Column 1 Column 2 Land identified as "G" on the Lot Size Map in either Zone R2 Low Density Residential or Zone R3 Medium Density Residential 630 square metres Land identified as "K" on the Lot Size Map in Zone R2 Low Density Residential 1,000 square metres (3) Development consent may be granted for development on a lot identified as "K" on the Lot Size Map in Zone R2 Low Density Residential for the purpose of multi dwelling housing, if an area of at least 500 square metres is provided for each dwelling. (4) If a lot is a battle-axe lot or other lot with an access handle, the area of the access handle and any right of carriageway is not to be included in calculating the lot size. C Hurstville DCP No 1 21Section 4.2.contains the relevant information, controls and guidelines for dual occupancy development. Section 4.2.1.1 states: A dual occupancy must not be built on land: * that is a battleaxe allotment; or * that has a minimum street frontage and width (measured along the entire length of the allotment) of less than 15 metres, and/or a minimum site area of less than 630m2 if not located in the Foreshore Scenic Protection Area (FSPA), and/or a minimum site area of less than 1,000m2 if located in the FSPA. * 4.2.1.2 Basic Idea Behind this section Under this Section, dual occupancy development is generally only allowed in the form of single buildings containing attached dwellings (one or two storeys). This may include two dwellings side by side attached by a common wall or a two storey dwelling with one dwelling above the other. The only exceptions are for corner sites and sites with dual street or rear lane access, where a second detached dwelling can be built. A detached dwelling in the backyard of an existing property has a large impact on the provision of trees and private open space. Furthermore, it creates large roof catchments and increased paved areas, which increase stormwater runoff. By encouraging dual occupancies to be attached dwellings, backyards are retained and the area allocated for garden and landscaping is increased. Guidelines and drawings use the 'Urban Form Methodology', which tailor appropriate planning controls to a particular site through the use of building envelopes which define the building form. These provide definite outcome based controls. 22Section 4.2.2 then contains a raft of development controls including: * Building Envelope and Site Requirements * Allotment size * Height * Front boundary setback * Rear boundary setback * Side boundary setbacks * Cut and fill. The evidence 23Detailed evidence in this matter was presented by: * Mr W Gosling; Applicant's consulting planner * Mr A McKerron; Applicant's consulting engineer 24Insofar as council filed no expert reports, Mr M Ward - council's engineer conferred and responded to Mr McKerron's drainage assessment during the appeal. In addition to this a number of resident objections were made at the site and they have been considered along with the written objections. Accordingly, I have considered the evidence on the following basis in order to assess the overall impact of the proposal. Permissibility of dual occupancy 25The permissibility of the proposal is the threshold issue because council contends that cl 11A of LEP 1994 does not allow this form of detached dual occupancy. Insofar as it encourages attached dual occupancies, the only stated exceptions for attached dual occupancies is for corner allotments or those sites that have a rear lane access. As the proposal does not comply with these exceptions, council submits the application should be refused. 26Against this, the applicant submits that there are unique circumstances prevailing because as the dual occupancy is not in the back yard it therefore is not prohibited. Mr Gosling supports the proposal on the following basis: * The development proposal is not inconsistent with Objective (a) of Clause 11A - Dual Occupancies of HLEP 1994 as it is proposed to create a second detached dwelling in the front yard of an existing property and not in the backyard * The subject site is an unusual situation where an existing dwelling house has a large setback of approximately 25 m in an area where the majority of dwellings in the street directly address the street with setbacks in the order of 4.5 m to 6 m. There are 3 dwellings to the south of the site in Llewellyn Street with similar front setbacks as the site. The large setback of the existing dwelling on the site creates a "sawtooth" effect and results in a building that is inconsistent with the prevailing streetscape. The construction of a detached dual occupancy in the front yard will ensure that the development on the site is consistent with the prevailing streetscape and particularly new development in the street and is not inconsistent with Objective (a). * The proposed development does not offend Objective (b) which is to encourage the development of second dwellings in the form of first floor additions to an existing detached dwelling or construction of new attached dwellings as detached dual occupancy development is permitted in the zone. * Similarly, the proposal does not offend Objective (c) which allows minor extensions to an existing detached dwelling to provide additional floor space required to create a second dwelling. * The pattern of subdivision in residential areas is retained as reflected in lot size, orientation and shape the proposed development will result in a subdivision pattern consistent with a number of other battle-axe developments in the locality Site density 27Council contends that the minimum site density control of 500 sq m per dwelling (i.e. total site area of 1000 sq m) in cl 19B(3) is not met because the area of the ROC should be deducted. This would result in an effective area of 872.1 sq m. Therefore the proposal is an overdevelopment of the site. 28In support of this approach, the council refers to its consistently applied provisions of cl 11 (4) of LEP 1994, which deals with the minimum lot sizes for 'dwelling houses' in zone 2 as follows: (4) The width or area of any access corridor, accessway, right of carriageway or the like is not to be included in the calculation of the width or area of an allotment. 29Against this, Mr Gosling says that cl 11(4) does not apply because the proposal is categorised as residential dwelling development. Therefore, as each lot in the dual occupancy will have an area of 532 sq m, cl 19B is satisfied. Notwithstanding this, he prepared a SEPP 1 Objection for consideration in the event that this control was otherwise determined. Building height 30Council's contention is that the proposal is inconsistent with the provisions of cl 4.2.2.4(c), which requires the maximum height of the dual occupancy not to exceed 6.8m to the ceiling of the uppermost floor. In this case, the exceedances are in the order of: * South-east elevation; 600 mm * South-western elevation; 600 mm 31Mr Gosling says that DCP 1 contains a suite of height controls that present a "building envelope graphic" that allows for a maximum height of 9m. The subject building includes cathedral ceilings that comply with the overall height. The aforementioned non-compliances relate to the effective corner wall heights, which he does not consider unacceptable because they do not generate any adverse impacts on the adjoining property. Setbacks/building footprint 32Front setback; Clause 4.2.2.6 of DCP 1 requires that the front setback for dual occupancy development to be a minimum of 5.5m. The front dwelling is to be setback 4.5m from the front property boundary but the elevated pathway, which is approximately 9m long x1.5m wide and partially enclosed, to the front entry is located within this setback, which council contends is unacceptable. 33Mr Gosling considers it is appropriate to provide a minimum 4.5 m front setback as this is the front setback control for dwelling houses at Section 4.1 Single Dwelling Houses of DCP No, which also requires a minimum front setback of 5.5m to the front wall of a garage. This is required to enable a car to be parked between the front building line and the garage door. As the Llewellyn Street streetscape in the vicinity of the subject site is characterised by 2 storey dwelling houses, Mr Gosling says that the proposal has been designed to take the appearance of a 2 storey dwelling house as opposed to a dual occupancy development. 34Mr Gosling says that the proposed 4.5 m front setback will not have any adverse impacts on the streetscape given that the location of the proposed dwelling is approximately 2 m lower than the street level of Llewellyn Street and is separated from Llewellyn Street by the driveway which traverses the front boundary of the subject site to service No. 28 Llewellyn Street. Also, the existing and proposed vegetation can provide an effective screen for the new dwelling. 35Rear setback; In the context of council's overdevelopment issue, there was discussion concerning impacts relative to the rear setback of the new dwelling and the separation between the two dwellings. 36Notwithstanding council's primary contention that this form of dual occupancy is not permitted, reference was made to the cl 4.2.13 'Building Envelope Graphics' diagrams. This shows 6 Options for allowable dual occupancy situations. All except Option 5 and 6 are for attached dual occupancy. 37Option 5 does not apply because it is for corner lots only. Option 6 allows detached dual occupancy only where there is a separate rear lane access. Whilst that is not the case in this proposal, nevertheless this diagram indicates a 7m separation from the rear neighbour's property i.e. a total separation of 14m between the two dwellings. 38However, the proposal involves a 1m (approximately) setback from the new common boundary to the existing dwelling and a variable 3m -5m setback to the new dwelling. The rear elevation of the new dwelling is approximately 5.5m high along the western elevation fronting the existing dwelling. Desired future character 39Council contends that the proposal should be refused because it is inconsistent with the desired future character envisaged by LEP 2012. In particular, this refers to the provisions of cl 4.1(A), which seek to achieve specified density outcome for dual occupancies based on a minimum lot area of 1000 sq m (in the designated land area "K"), excluding the area of any battle-axe handle or ROC. On this basis the effective area of the subject lot is approximately 872 sq m, which council submits is not consistent with desired future density character. 40In response to this, Mr Gosling relies on the savings clause provisions and says that the development proposal will result in a 2 storey dwelling that will be constructed with a front setback of 4.5 m, which is generally consistent with the prevailing setbacks of development in the locality and consistent with the 4.5 m front setback for dwelling houses in this locality. Therefore from the streetscape, the proposal will ensure that 26 Llewellyn Street has a presentation similar to other new development in the locality and will be consistent with the character of the surrounding area. Stormwater 41This issue concerning the impact of the development on an overland flow path was assessed by Mr McKerron. There is a sag point in Llewellyn Street adjacent to the front of the subject property, which in certain storm events results in surcharge from the pit and overland flows predominantly across the front of the site and along the accessway to No 28. A smaller percentage of the overland flow diverts along the southern side of the subject property where there is a 0.525 mm diameter pipe that is to be covered by a future drainage easement to be created in the parent lot subdivision. 42Apparently some stormwater travels in a wider path across the subject site near the south - eastern corner of the new building and there is a likelihood this part of the new dwelling would divert water onto No 28. From his analysis of the catchment area, Mr McKerron proposes: * A minimum ground floor level of RL 11.6. * An internal drainage system to drain the front yard area, comprising a drainage line D - C - B - E - A. * The construction of a masonary base/wall (400 mm high) over the pipeline from the designated Pit A and adjacent to the existing dwelling to the end of the existing pipe. This wall is proposed to be cantilevered over the existing pipe. * The erection of a pool type barrier fence at the lower end of the wall in order to provide safety and protection in storm events because of the potential velocity and depths of stormwater, whereby the V x D ratio is calculated at 1.18 sq m/sec. 43In joint discussion on this issue, Mr Ward agreed that this drainage proposal would work. However he expressed reservations about the masonary wall over the existing pipeline for the overland flowpath because it would significantly restrict access for maintenance and any future relaying or replacement the pipe totally within the proposed drainage easement. He accepted that the barrier fence should be erected at the end of the masonary wall for safety reasons. Conclusion 44For the determination of this matter I have considered the evidence, submissions and undertaken a view. In terms of the existing planning controls it is apparent to me that LEP 1994 is the prevailing control due to the saving clause 1.8A in LEP 2012, which requires the development application to be determined as if this LEP 2012 had not been made. 45Accordingly the question of what weight should then be given to LEP 2012 has to be determined. This question has been addressed in a number of other matters on the following basis that the weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 at par 5). Relevantly, in Terrace Tower, Spigelman CJ states at pars 6 and 7 that: 6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect. 7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective. 46If the draft LEP is imminent and certain, Terrace Tower (par 7) raises the question of whether the proposed development will preserve the character anticipated by Zone R1 General Residential and whether the proposed development will undermine the objectives of the zone. 47In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states: 30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have, been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA185at193). 48This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls. 49In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan. 50Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case. 51In the subject appeal, dealing firstly with LEP 1994, the site is within Zone No 2 (Residential) and the FSPA. However, whilst cl11A prohibits detached dual occupancies in backyards it does permit detached dual occupancies on corner sites or sites with dual access. The proposal does not fit into these categories. 52Consequently, I note the applicant's submission that the circumstances for the subject development are different because the new dwelling is proposed in the front yard, where dual occupancy is not specifically prohibited. However, I think this submission should be given diminished weight because apart from the aforementioned circumstances for detached dual occupancies, cl11A specifically only encourages new attached dwellings or minor extensions to an existing detached dwelling. 53Nevertheless, proceeding on the applicant's assumption of permissibility, the next hurdle concerns the minimum site area for such development within the FSPA. According to cl 19B(3) a minimum site area of 1000 sq m is required for the two dwellings. Insofar as the site has a complying area of 1032 sq m, it is subject to the restriction of the 3m ROC. The deletion of this area leaves an effective area of 872 sq m, which council considers non - compliant. 54However LEP 1994 contains the following definition: site area, in relation to development, means the area of land to which an application for consent to carry out development relates, but does not include any part of that land on which the development is not permitted by or under this plan or any other environmental planning instrument. 55It seems to me that this definition supports the applicant's submission that this definition does not require the area of the ROC to be excluded. But in response the council submits that it relies on the provisions of cl 11(4) of LEP 1994 relating to the minimum lot sizes for residential lots, which excludes the area of any ROC and access corridors. 56I do not consider this qualification of the site definition is appropriate in the circumstances because the LEP differentiates the various forms of development and provides different sets of controls. The 'mix and matching' of different controls is unlikely to satisfactorily achieve the objective seeking a variety of housing types. Therefore I think that the minimum area requirement under LEP 1994 for dual occupancy is satisfied. 57But the more detailed development controls in DCP 1 must also be considered. This supports the aforementioned LEP controls that the minimum area for a permitted form of dual occupancy is 1000 sq m. It also excludes detached dual occupancies except on corner lots or dual frontage lots. The permitted forms of dual occupancy are illustrated in s 4.2.13 and the only possible scenario is Option No 6. In my assessment, notwithstanding the possible minimum site area compliance, the proposal still does not satisfy the desired forms of dual occupancy prescribed in the DCP 1, which I consider is unacceptable in the subject circumstances. 58As noted previously, some weight has to be attributed to the provisions of LEP 2012. As this LEP has now been made, I think it should given significant weight, particularly the zone objectives and controls for the desired future character of the area. Whilst allowing dual occupancies in this Zone R2, cl 4.1A, it prescribes a minimum lot size of 1000 sq m, excluding any access handle or ROC. Under these controls the proposal is non - compliant and would consequently not satisfy the desired future character density for the area. 59In summary then, there is a consistent theme in the objectives for this area in both LEP 1994 and LEP 2012 to preserve and not compromise the amenity of the existing residential amenity and that is to be achieved partially by compliance with the minimum site density requirements. Notwithstanding the numerical compliance with LEP 1994, I think the significant weight should be attributed to the associated DCP 1 provisions, which are consistent with the LEP 2012 controls. On this assessment the proposed lot areas are non - compliant being considerably less than the 500 sq m per lot. Nevertheless I have further considered the merits of the proposal in terms it qualitative compliance with the other controls. 60This is a somewhat difficult task because the there are no specific controls for a dual occupancy in the front yard of a lot. The adopted process of 'mix and matching' some controls for dual occupancy and some for residential lots was very selectively undertaken and not appropriate to achieve a consistent outcome as envisaged by the controls for the different forms of development. 61The designated front setback for an appropriate dual occupancy is 5.5m according to cl 4.2.2.6 of DCP 1, with the objective to maintain and enhance the streetscape. However the proposal has a setback of 4.5m, which Mr Gosling considers adequate in the circumstances. But the design also includes the elevated ramp to the front door with its pergola enclosure within this setback area and part of the driveway to No 28 at the south - eastern corner. 62Taking into account these intrusions into the setback area, together with the prominent two - storey façade, the proposed landscaping, the drainage line and pits to drain this low- lying area, I do not consider it will maintain and enhance the streetscape amenity. It will introduce uncommon elements closer to the public domain, which I do not consider consistent with the existing streetscape characteristics and intent of the controls for dual occupancy. In this regard, I give diminished weight to the proposal potential compliance with the alternative residential dwelling setback control because it is not fully assessed on this basis. 63I also have significant reservations about the proposed landscaping based on the landscape plan presented to the Court. It is obviously inappropriate in a number of respects, including the planting of an Illawarra Flame tree about 2m from the front of the new dwelling in the setback area. Mr Gosling agreed with this inadequacy of the landscaping proposal. 64Council also raised the rear setback and building separation as issues. This is another aspect where there are no specific controls for this non - conforming type of dual occupancy. If Option 6 was applicable, a 7m setback on each lot would be required for adjoining back yards i.e. a total of 14 m. Instead, there is a general separation of 4 - 5m between the rear of the new dwelling and front of the existing dwelling, which likely to result in a reduced amenity outcome, in my assessment. The limited width of the rear yard of the new dwelling also restricts opportunities for landscaping to achieve greater visual amenity, in my opinion. 65Considering that the rear, western elevation of the new dwelling is in the order of 6m high and it includes an upper level terrace with potential overlooking of the entry to the existing dwelling, I consider that the proposal would result in a poor level of privacy amenity for the use of the private open space areas and relative privacy for the residents of each lot as compared to the surrounding amenity of the area. 66With regard to the drainage of the site, it appears to me that the overland flow path imposes significant constraints on the development of this front lot. Insofar as I accept the engineer's opinion that the majority of the overland flows from council's road drainage system travels along the sloping driveway to No 28, the desire to divert about 50% of this flow along the southern boundary of the site has unfortunate consequences. 67As it is apparently not feasible to pipe this stormwater through the proposed drainage easement, the alternative open waterway with 400 mm retaining wall results in high velocity flows along the side of both dwelling that is classified as high hazard. Consequently, it would be necessary to erect some form of pool fencing barrier for protection of residents. 68Taking into account then, that the only practical pedestrian route for the residents of the new front dwelling to the front yard is via the southern side of the house and along the overland flow path, which is to be partially fenced for safety, I do not consider a desirable outcome that enhances the amenity of the area. 69In summary then, my conclusion is that the proposed dual occupancy represents an overdevelopment of this constrained site and it does not merit consent. The relevant controls only permit limited forms of detached dual occupancy and the proposal is not consistent with the allowable building envelope options. Whilst I have considered the various merit issues, I am not satisfied that the applicant's attempt to 'mix and match' the various controls for this non conforming development ultimately results in a development that is consistent with the LEP 1994 'No 2 Residential' objectives to preserve and enhance the character and amenity of the established residential area or that it achieves greater visual amenity with appropriate landscaping. Court Orders 70The Court orders that: 1 The appeal is dismissed. 2 Development consent to DA 11/GA - 370 for the construction of a detached dual occupancy and Torrens title subdivision at Lot 35 DP 5510, No 26 Llewellyn Street, Oatley is refused. 3 The exhibits may be returned except for 2, A, D and E. R Hussey Commissioner of the Court ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 April 2013