Land and Environment Court New South Wales Medium Neutral Citation: Bannerman v Lane Cove Council [2016] NSWLEC 1118 Hearing dates: 16, 17 March 2016 Date of orders: 18 March 2016 Decision date: 18 March 2016 Jurisdiction: Class 1 Before: Pearson C Decision: (1) The appeal is dismissed; (2) Development Application 152/2015 seeking consent for the construction for a residential dwelling for an attached dual occupancy at 26 Pinaroo Place, Lane Cove North, is refused; and (3) The exhibits are returned except for exhibits 1, 7, A, B and J. Catchwords: DEVELOPMENT APPLICATION: Attached dual occupancy - Consistency with character of area – Bushfire prone land – Rear setback – Solar access – Privacy – Open space – Landscaped area Legislation Cited: Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Lane Cove Local Environmental Plan 2009 Cases Cited: Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 Zhang v Canterbury Council (2001) 115 LGERA 373 Category: Principal judgment Parties: Joseph Lionel Bannerman (Applicant) Lane Cove Council (Respondent) Representation: Mr J Bannerman (Applicant in person) Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 11208 of 2015 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal of Development Application DA152/2015 which sought consent for the construction of a residential dwelling for an attached dual occupancy at 26 Pinaroo Place, Lane Cove North. The application was lodged on 29 September 2015 and the applicant lodged his appeal against a deemed refusal on 22 December 2015; on 26 February 2016, the Council determined to refuse the application. The site and its locality 1. The site is on the western side of Pinaroo Place. It is irregular in shape with an area of 830.6sqm. It has a frontage of approximately 12.5m to Pinaroo Place, a rear boundary of approximately 30m, a northern side boundary of 36.5m and a southern boundary of just over 44m. There is a fall from the rear of the site towards the Pinaroo Place frontage. The site presently contains a single storey dwelling house with vehicle access from Pinaroo Place and parking for two vehicles in the frontage. 2. Surrounding residential developments comprise one and two storey dwelling houses. South of the site is a bushland area known as Battern Reserve. 3. The site is situated on land that is zoned E4 Environmental Living, pursuant to Lane Cove Local Environmental Plan 2009 (the LEP). A number of the one and two storey dwelling houses in the vicinity are also in the E4 zone. Towards the northwest the land is zoned R4 High Density Residential, and there is presently occurring a number of residential flat development buildings. Towards the south is land containing bushland zoned E2 Environmental Conservation. Further towards the east there is land zoned RE1 Public Recreation. 4. Immediately to the north of the site, at 28 Pinaroo Place, there is a two storey dwelling house, and further to the north are properties zoned R4 High Density Residential. To the northeast of the site there are two storey dwelling houses presently on land which is zoned R4 High Density Residential. East of the site, on the other side of Pinaroo Place, are dwelling houses in the E4 zone. Immediately south of the site is 24 Pinaroo Place, which has a one storey dwelling house, and is also zoned E4. To the west of the site, adjoining the rear boundary of the site are 6 and 8 Merinda Street, on which are located dwelling houses. The proposed development 1. The application proposes construction of a two storey dwelling with a double garage; a lounge, dining room, kitchen, and guest bedroom on the ground floor; and three bedrooms (one with an en suite), a bathroom, family area, and two additional rooms (identified on the plans as a study and library) on the first floor. 2. The existing dwelling is single storey. There is a carport on the northern side of the existing dwelling. The proposal is to remove that carport and provide access to the new dwelling along the driveway on the northern side of the site. The existing awning at the rear of the existing dwelling is to be reconstructed in non-flammable material, and a new awning added to connect to the new dwelling to be in the form of a steel structure, as identified in notations on the plans in exhibit G. The proposed new dwelling has a setback of 1.5m from the northern boundary and from its south eastern corner to the southern boundary, and a setback to the rear boundary with 6 and 8 Merinda Street of 3m. 3. The landscape plan (drawing DA04) shows landscaping in front of the existing dwelling, and on the southern boundary on the southern and rear sides of the proposed new dwelling; a small area on the southern side of the existing dwelling; and with the central area between the two dwellings proposed to be turf. Issues 1. The Council's Statement of Facts and Contentions (filed on 21 January 2016) raised as the first contention, the Floor Space Ratio (FSR) of the proposed development. Clause 4.4 of the LEP provides a standard of a maximum 0.5:1. The applicant has previously obtained development consent (DA14/43) for extensions to the existing dwelling. When the gross floor area (GFA) of that approved development of 175.86sqm together with the GFA of the proposed dwelling of 254.84sqm is combined, the FSR would be 0.52:1. The applicant is prepared to surrender development consent DA14/43, proposed as a deferred commencement condition in the Council's without prejudice conditions of consent. That would mean that the retained existing dwelling and the proposed new dwelling would comply with the FSR development standard in cl 4.4. That contention is not pressed by the Council. 2. The remaining contentions were pressed by the Council. Those contentions are: 1. Future character and overdevelopment: the development application should be refused because the proposal presents as, and is in the form of, a detached dual occupancy development which is prohibited in the E4 zone. The development is inconsistent with the future character of the area having regard to the other residential uses permissible within the E4 zone; 2. Bushfire: the development application should be refused because approval of the application is premature in circumstances where the New South Wales Rural Fire Service has not completed its assessment of the proposal; and 3. Compliance with the controls in Lane Cove Development Control Plan 2010 (the DCP) relating to amenity, streetscape design, landscape, solar access and privacy: the development application should be refused because it does not comply with identified provisions of the DCP including those in Part C.1 of the DCP (cl 1.1, 1.2, 1.3, 1.5) and those relating to amenity in cl 1.8, particularly solar access, privacy and open space; 4. Public interest: approval of the proposal would create an undesirable precedent for similar inappropriate development in the area. This contention was not pressed in those terms; the planning experts agreed that any future application for a similar proposal would have to be considered on its merits. 1. The Council's assessment of the development application involved a number of meetings between the applicant and various Council officers, and considerable email correspondence between the applicant and various Council officers. A chronology, and copies of much of that email correspondence, is annexed to the applicant's Statement of Facts and Contentions in Reply (filed on 25 January 2016), and annexed to an affidavit sworn by the applicant on 11 March 2016 in support of a notice of motion seeking an adjournment of the hearing, heard and refused by the Registrar. Relevant matters raised in the chronology and the correspondence are discussed below. 2. In short, the applicant's position is that as a consequence of his discussions and correspondence with the Council, certain matters raised in the Council's Statement of Facts and Contentions had been resolved, namely, the issues of FSR, whether the proposal could properly be characterised as an attached dual occupancy, and the landscaped area. Other matters had been impliedly resolved, namely, solar access, privacy and open space; and a further matter, streetscape, is not in contention because it had never been raised. In his Statement of Facts and Contentions in Reply, the applicant states that the only issues not resolved and agreed by the Council were the absence of comments from the Rural Fire Service (RFS) and setbacks. 3. In identifying the issues to be determined in this appeal pursuant to the Court's function under s 39(2) of the Land and Environment Court Act 1979 (the Court Act) I note the following. The overriding purpose of the Civil Procedure Act 2005 is to facilitate the just, quick and cheap resolution of the real issue in the proceedings. As noted by Biscoe J in Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68: 45 …In order to identify and determine the 'real issues' in an appeal from a council refusal of a development application, the Court's practice is to direct the council to file and serve a statement of facts and contentions prior to the first return date: Practice Note Class 1 Development Appeals paragraph 8. Section 79C(1) of the EP&A Act requires the consent authority (and, on appeal, the Court standing in the shoes of the consent authority) to take into consideration the matters listed therein, but only if they are 'of relevance to the development'. In terms of s 79C(1)(a), the statement of facts and contentions is a vehicle for the council to identify any provisions of an environmental planning instrument that it contends are 'of relevance' to the development and to make precise contentions as to why consideration of those provisions should lead the Court to refuse the development application. It is also a vehicle for the council (among other things) to make merit contentions as to why the development application should be refused. 1. I note that while Biscoe J was dealing with relevant matters in an environmental planning instrument, the same can be said for the other matters identified in s 79C(1) of the Act. The Court's Practice Note for Class 1 Residential Development Appeals states that in its contentions: 6.The consent authority is to identify each fact, matter and circumstance that it contends require or should cause the Court, in exercising the functions of the consent authority, to refuse the application or impose certain conditions. 7.In Part B Contentions, the respondent consent authority is to: (a) focus on issues genuinely in dispute; (b) have a reasonable basis for each contention; (c) identify the nature of each contention with an appropriate short heading; and (d) present its contentions clearly, simply and without repetition and not by way of submission. 1. Having regard to the history of the Council's assessment of this application, including the ongoing concern of Council officers to establish whether the proposal could properly be characterised as a "dual occupancy (attached)"; the identification from shortly after lodgement of the application in the letter of 13 October 2015 of concerns as to compliance with the DCP controls including rear setback and provision of private open space; and the continuing expression of that concern, as expressed in an email of 19 November 2015 to the applicant, that given the non-compliances, the recommendation for the development application was unlikely to be favourable and it was not recommended that he obtain a Bushfire Report for the proposal, I am of the view that is there no basis on which it could be said that the Council has failed to comply with its obligations under Civil Procedure Act or the Court's Practice Note. At the commencement of the hearing, the Council's representative identified those contentions that remained in issue. The planning controls 1. The site is in the E4 zone under the LEP. The objectives of that zone are: • To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. • To ensure that residential development does not have an adverse effect on those values. 1. Development for the purposes of "dual occupancy (attached)" is permissible with consent. The relevant definitions are: dual occupancy means a dual occupancy (attached) or a dual occupancy (detached). Note. Dual occupancies are a type of residential accommodation—see the definition of that term in this Dictionary. dual occupancy (attached) means 2 dwellings on one lot of land that are attached to each other, but does not include a secondary dwelling. Note. Dual occupancies (attached) are a type of dual occupancy—see the definition of that term in this Dictionary. dual occupancy (detached) means 2 detached dwellings on one lot of land, but does not include a secondary dwelling. Note. Dual occupancies (detached) are a type of dual occupancy—see the definition of that term in this Dictionary. 1. Other relevant provisions in the LEP include cl 4.1, which provides a minimum subdivision lot size: cl 4.1(4A) provides that the size of a lot for the purpose of a dual occupancy must not be less than 750sqm for a "dual occupancy (attached)", and 900sqm for a "dual occupancy (detached)". 2. The relevant provisions in the Lane Cove Development Control Plan (the DCP) are primarily located in Part C Residential Development, in particular Part C.1 which applies to Dwelling Houses and Dual Occupancies. The relevant provisions are sections 1.2 Streetscape, 1.3 Setbacks, including 1.3.4 Rear Setbacks, 1.5 Landscaped Area and 1.8 Amenity. 3. The provisions of the Streetscape section (1.2) state the following objectives, to: (1) achieve development of a scale and appearance which is in keeping with the predominant traditional or emerging street and neighbourhood character. (2) ensure the existing landscape character of the area is maintained and enhanced. ... (5) ensure that garages, carports and driveways do not dominate the dwelling or streetscape. … 1. The relevant Provision is (c), which states: Attached dual occupancies should not have a symmetrical appearance when viewed from the street and are to be designed as one building structure, both physically and in appearance. 1. The objectives for the Setback provisions (1.3) include, in relation to side and rear setbacks: (9) Side and rear setbacks are to provide building separation, sunlight, landscaping, ventilation, public views (if appropriate) for the dwelling and its neighbours. 1. The Provisions in section 1.3.4 specify a minimum rear setback of 6m for dual occupancies. 2. In relation to Landscaped Area (1.5) the objectives are: (1) to provide privacy and amenity (2) to retain and provide for significant vegetation, particularly large and medium sized trees and to provide continuous vegetation corridors (3) to conserve significant natural features of the site (4) to assist with on-site stormwater management. 1. The relevant Provision is (a): A minimum of 35% of the site is to be landscaped area. A minimum width of 1m is required for inclusion as landscaped area. 1. Section 1.8 Amenity has the objectives of: (1) to provide reasonable solar access to habitable rooms and recreational areas of new and existing developments (2) to provide reasonable acoustic and visual privacy for neighbouring properties (3) to minimise overlooking between adjoining dwellings and their private open spaces. 1. The relevant Provisions are in 1.8.1, relating to solar access and overshadowing, which require that: Dwellings or additions be designed and orientated so as to give reasonable sunlight to the habitable rooms and recreational areas of the subject site and adjoining premises between 9.00am and 3.00pm on 21 June. 1. Section 1.8.3 deals with private open space, and states that: (a)where possible all dwellings are to have an area of private open space that receives northerly sun in winter … (d) the minimum of one area of private open space per dwelling is 25sqm with a minimum depth of 4m and a maximum gradient of 1.50. The evidence 1. This matter has been subject to the provisions of s 34AA of the Court Act, and in accordance with that provision and with the Court's usual practice commenced on site with a view of the site and the locality. The conciliation required under s 34AA did not reach an agreed outcome and was terminated, and the matter proceeded to a hearing in accordance in with s 34AA(2)(b) of the Court Act. The parties consented to observations of the site and its locality made on the view forming part of the evidence. 2. Expert planning evidence was given on behalf of the applicant by Mr Mike George and on behalf of the council by Mr Kerry Nash. The experts provided a joint report, dated 9 March 2016 (ex 6), and gave oral evidence. Consideration 1. The Council's position at the conclusion of the evidence was that there are three fundamental problems with the application: 1. The noncompliance with the 6m rear setback required under the DCP, and there being no good reason to depart from that requirement; 2. The attachment of the two dwellings is, at best, tokenistic and does not achieve what the DCP intends in cl 1.2 (that it be designed as one building structure, both physically and in appearance); and 3. Poor amenity in terms of provision of private open space and solar access. 1. I will consider the attachment issue first, since while the Council did not press the permissibility aspect of its contention, it was common ground that the only basis on which the proposed development is permissible in the E4 zone is as a "dual occupancy (attached)", and the site does not meet the minimum lot size provided by cl 4.1 for a "dual occupancy (detached)" development. 2. It is clear from the email correspondence referred to earlier that the issue of whether the proposed development could properly be regarded as "attached" was of concern to the Council. The Council obtained legal advice on that issue, forwarded to the applicant in the form of an email dated 14 December 2015. That advice was that the proposal is "attached". However, the Council's assessment report (ex 3, tab 8) and the Council's reasons for refusal on 26 February 2016 assert that the development is not "attached". The experts considered that issue in terms of the Council's contention which was expressed in the following terms: The development application should be refused because the development presents as, and is in the form of, a detached dual occupancy development which is prohibited in the E4 zone. The development is inconsistent with the future character of the area having regard to the other residential uses permissible within the E4 zone. 1. Mr George's evidence was that there are no material adverse consequences that arise from the proposed building arrangement. The proposal is well within the maximum FSR and there is no practical difference in how that floor space might be distributed. In his opinion, the future character of the area is likely to be dominated by residential flat development in the adjacent R4 zone and in that context, the proposal has no apparent bearing on the character of the area and will form part of a narrow ribbon of one and two storey residential development between flats and bushland. 2. Mr Nash's evidence was that in the absence of details as to the form of connection between the existing and proposed dwelling, it is not with any certainty that the proposal could be agreed to fulfil the definition of "dual occupancy (attached)". In his opinion, the proposed development will read as two separate dwellings when viewed from adjoining properties. In his opinion the location of the proposed two storey footprint 3m from the rear boundary, running almost its entire length from the rear boundary, will be out of character with the existing and future built form envisaged under the E4 zone in terms of visual bulk and scale, site coverage, tree retention and landscape setting. 3. In oral evidence, Mr Nash accepted that there would be a limited view of the proposed dwelling from the street and that a person standing at the driveway entrance would see approximately 5.5m; that is, 4m of the dwelling. His opinion was that it would be read as a separate dwelling. Mr George agreed that the attachment awning proposed would not be seen from the street and his evidence was that it would be clear that the proposal is a different style of building and is not the same style of architecture. 4. The applicant submits that there are no material adverse consequences of the proposed development in terms of its FSR, building height, or otherwise and it could not be regarded as an overdevelopment; there is no practical difference in terms of the future character of the area as the residential flat development in the R4 zone will be the dominant form of development and there will be no apparent bearing on the character of the five lots remaining in the E4 zone in Pinaroo Place. The applicant states that he was never asked for detail of the attachment by the Council. 5. I accept, as agreed by the experts, that with the combination of the R4, E4 and E2 zoning, the character of the locality is undergoing change. There are larger residential flat developments closer to Mowbray Road; bushland to the south, which is to be extended by demolition of a number of houses around the cul de sac; and there will be five dwellings remaining in the section of the Pinaroo Place in which the subject site is located. As noted earlier, the development immediately to the north of the site at 28 Pinaroo Place is two storey, the other development in the area is predominantly single storey. The aerial photograph in exhibit 2 confirms a prevailing pattern of substantial front and rear setbacks for those dwellings. 6. I agree with Mr Nash that a large two storey building running almost the entire length of the rear boundary, behind the existing single storey dwelling, is out of character with the existing and with the future built form, and I am not satisfied that it achieves the objective specified in section 1.2 of the DCP that it be "designed as one building structure both physically and in appearance". 7. As noted earlier, the terms "dual occupancy (attached)" and dual occupancy (detached)" are defined in the LEP in terms that are mutually exclusive. The only helpful Dictionary definition of the term "attached" is that from the Oxford Dictionary which defines the term "attached" to mean "joined or connected physically"; or, in architecture terms, "directly adjoining; joined to a wall, etc, rather than standing clear; sharing a wall, not detached". 8. There is a physical connection proposed for this development, in the form of the steel awning, to connect the existing awning at the rear of the existing dwelling with that for the proposed dwelling. The dimensions of and location of that structure are identified in the annotated plan (ex G). Even if it can be regarded as a "dual occupancy (attached)", and therefore permissible in the E4 zone, the relevant issue, as identified by the Council in its conduct of the appeal, is whether the proposed development complies with the requirements of or achieves the objectives of the DCP. Mr George accepted, in his oral evidence, that there would be a number of ways of achieving integration of the dwellings. There is no reason to doubt that evidence, and I accept that there is scope for integration of two dwellings on the site, given its size, and the area at the rear of existing dwelling. However, based on an assessment of the plans for the present proposal, and consistent with the expert evidence including that of Mr George, that it would be clear that the proposal is a different style of building and is not the same style of architecture, I am not satisfied that it achieves the design outcome of one building structure, both physically and in appearance. Having regard to the prevailing streetscape as confirmed in exhibit 2, I am not satisfied that the proposed development is in keeping with the street character of the remaining E4 area. 9. The second issue to consider is the rear setback. As noted earlier the DCP provides for a minimum of 6m and the proposal provides 3m. The relevant objectives of those controls "are to provide building separation, sunlight, landscaping, and ventilation for the dwelling and its neighbours". Mr George noted that the applicant's position was that the proposed 3m rear setback is a response to the prospect of multi-level residential flat buildings close to the rear boundary of the site and at a higher ground level. A 6m setback across a 30m rear boundary would present a substantial open space area that would be entirely overlooked by a future redevelopment. The reduced setback was intended to increase the area of useable open space between the two dwellings, which would be protected from overlooking by the proposed second dwelling. In the circumstances of the substantial setbacks of the two dwellings in Merinda Street, Nos 6 and 8, that share a common boundary with the site, the proposed setback does not conflict with the objectives of the standard. In Mr George's opinion, the relevant issue is the privacy implications of potential adjoining multi-level residential flat buildings and the diminished utility of a setback area. 10. In Mr Nash's opinion, the 3m setback is inadequate to achieve the relevant objectives in section C1.3. In his opinion that setback will also impact on the privacy of the rear yards of 6 and 8 Merinda Street, given that five first floor windows to habitable rooms will overlook their rear yards without adequate setback from the rear boundary. 11. In oral evidence, the experts considered the overshadowing impacts of the existing development and the proposed development by reference to shadow diagrams in exhibit H. Those diagrams indicate that a rear private open space area would not receive sunlight at 9am, however it would receive sunlight at 12 noon and at 3pm at a time when the central open space area would be shaded. 12. Mr George accepted that the proposed configuration with a shared central area for private open space results in overlooking by the proposed new dwelling, and that there would be substantially more solar access to the rear area than to the central area of the current development; depending on how the land to the north is developed, a 6m setback at the rear would get sunlight. Mr George also accepted that future development in the R4 zone of land to the northwest is not likely to be hard up to the boundary. If further lots (identified on the aerial photograph in exhibit 2 as 67, 68 and 69) are redeveloped he would expect some shadow, but accepted that it would depend on what is there and he considered there would be likely to some slots for solar access. 13. The applicant submits that the proposed 3m setback is a response to the residential flat development at the rear of the site and is intended to avoid overlooking by any future development there; reducing the rear setback increases the separation between the dwellings, Nos 6 and 8 retain a substantial rear setback and there is no conflict and there was no objection from those properties; and any overlooking from the upper floor windows could be resolved by opaque glass. 14. Based on the zoning map (ex 3) the lots immediately adjoining the subject site to the north and to the south, and the two lots to the west, are all in the E4 zone. The closest R4 zoned lot is identified as lot 70 on the aerial photograph (ex 2), which adjoins the subject site only at its northwest corner, which is the southeast corner of that site. Based on the shadow diagrams and evidence of existing development from the view and in exhibit 2, I accept that in the context of the topography of the site there are overshadowing and potential privacy impacts from the existing development at 28 Pinaroo Place; overshadowing impacts from the existing garage structure on lot 70; and that the redevelopment of the lots now zoned R4 for residential flat development up to five stories could, depending on how that development takes place and what setbacks and privacy measures are required, impact on solar access and privacy for the subject site. Mr Nash accepted that there is the potential for overlooking into the southern areas of the central private open space for occupants in high levels of any redevelopment of those lots. However, in his opinion, a side setback for such development is not likely to be less than 6m. 15. I am not persuaded that the reduced rear setback, which means providing all the open space for both dwellings in the centre of the site, would achieve the objectives of the setback controls. There would remain the opportunity for overlooking, both internally and from the second storey of the adjoining development to the north and from future higher density development to the north and northwest. In addition to not addressing the concerns of objective (9) in section 1.3, the location of the proposed dwelling 3m from the rear boundary would add to the visual impact of the bulk of the building for the adjoining lots. 16. I accept that the current development on 6 and 8 Merinda Street is located towards the front of those lots, with significant separation from the principal dwellings to their boundary. However, that would not of itself be a sound basis for accepting a departure from the expected 6m setback on the subject site. The shadow diagrams confirm that the reduced setback reduces solar access to the private open space at the rear of those properties. 17. Turning now to the amenity issues. In relation to proposed private open space for the two dwellings, the relevant provision is that in section 1.8 of the DCP. Mr George considered that the separation between the buildings of between 6m to 8.5m provides reasonable separation, particularly given the normal 1.8m side separation of dwellings; in the normal course of events, it would be expected that residents would take whatever steps they thought necessary to screen windows for privacy as well as protection from the sun. In his opinion, there is no compelling need to precisely define private open space and there is no reason why open space is unable to be shared; to some extent it depends on who occupies the two buildings and whether their lifestyle and relationship warrants some or no differentiation. In his opinion, it is not readily apparent why the central open space will not provide adequate amenity, the issues rests on the requirements of future residents and the opportunity to provide screening if necessary. 18. In Mr Nash's opinion, the private open space area between the existing and proposed dwellings will be extensively overshadowed in midwinter. The private open space of the existing dwelling in the rear yard would have received more than three hours of sunlight in midwinter; the proposed open space between the two dwellings will not receive three hours solar access during midwinter, particularly if the existing and proposed structures are included in the shadow projections. In Mr Nash's opinion, the proposal does not delineate the boundaries of the private and common areas within the site, including defining the path of access by pedestrians to the entry door of the dwelling of the rear and the separation of the private open space areas. In planning terms, he did not consider it provides a satisfactory level of privacy between the two dwellings. Any screening by high fencing would only be beneficial at the ground floor level as the open space area between the two dwellings will be overlooked from the windows of the first floor level. In his opinion, the application fails to adequately address the visual privacy considerations in section C1.8.2 of the DCP and does not satisfy the private open space provisions in section C1.8.3. 19. The applicant submits that the block has usable private open space for both dwellings, including the paved areas under the existing pergola and the proposed awning and the proposed alfresco area at the south of the new dwelling, in addition to the landscaped area. The applicant submits that there is adequate private open space on the site and the relationship between the dwellings would be the same as it is for any dual occupancy development; future residents can add screening or fencing, if they wish, between the properties. The applicant did not accept Mr Nash's calculation of landscaped area and submits that there is potential to increase it, for example, by providing grass between the vehicle strips on the driveway. 20. I accept that given the site area, it would be possible to achieve private open space areas of at least 24sqm with a minimum depth of 4m for each dwelling. However, unless the rear setback is widened to 6m that could only be in the central space between the two dwellings. The plans do not provide detail of the landscaping proposed, and indicate that that central area is to be turf. While I accept that it might be possible to fence off separate areas, to do so would add to overshadowing, and in any event would not preclude overlooking from the first storey of the second dwelling. I am not satisfied that it would provide reasonable solar access to the recreational areas of the two dwellings or achieve reasonable acoustic or visual privacy, or minimise overlooking, as sought in the objectives of the DCP. 21. In terms of the extent of landscaping proposed, Mr Nash's evidence in the joint report (ex 6) was that on his calculation the area is 220sqm or 26% of the site. Mr Nash noted that that was an estimate only as the drawings at A3 do not correspond to the marked scale of 1 to 100, and in his opinion, in the absence of detailed calculations on the landscaped area and a landscape plan prepared by a suitably qualified person, the proposal does not satisfy the objectives of section 1.5 nor the required 35% of landscaped area. In oral evidence, Mr George accepted that he had not undertaken a calculation of landscape area and he accepted Mr Nash's measure. 22. Both experts responded to the applicant's indication of possible additional landscaped area, as shown on exhibit J. Neither accepted that it would be possible to provide landscaping for the entirety of the areas presently indicated as car spaces in front of the proposed new dwelling or along the driveway, and Mr Nash did not accept that any area under the proposed connecting awning could be regarded as falling within the definition of "landscaped area" in the DCP, which is defined in the LEP to mean "part of a site used for growing plans, grasses and trees but does not include any building structure or hard paved area." 23. I accept that it may be possible, with some modification of the proposed landscape areas, to achieve numerical compliance with the 35% of the site required by the DCP. However there is on the current plans, based on Mr Nash's calculation which was not challenged in the expert evidence, a significant shortfall in the order of 74sqm. It is not apparent that any additional landscaped areas could be provided in the central area of the site, which is intended to provide the primary private open space for both dwellings. In that context, I am not satisfied that the objectives of section 1.5 of the DCP are achieved. Conclusion 1. I accept that the subject site could be regarded as unusual: it is irregular in shape, and shares its 31m rear boundary with two residential lots, and the topography of the locality means that there is fall from the rear towards Pinaroo Place. The area is undergoing significant change with redevelopment in the R4 zoned area, and the proposed integration of the existing houses to the south in Pinaroo Place into the reserve area. Mr Nash's evidence was that the E4 zone is designed as a transition zone between the E2 Environmental Conservation zone covering Stringy Bark Creek to the south and the R4 High Density Residential zone to the north. 2. Mr George queried the validity of a transitional zoning in the circumstances, given that it would be overwhelmed by flats. The applicant, in submissions, raised concerns as to the appropriateness of the zoning. However the Court is required, in accordance with s 79C(1)(a) of the Act, to have regard to the provisions of the LEP under which the land is zoned; and the objectives of that zone include "to provide for low impact residential development". 3. The DCP provides, in accordance with s 74BA of the Act, guidance to giving effect to the aims of any environmental planning instrument that applies to the development, facilitating development that is permissible under any such instrument, and achieving the objectives of land zones under any such instrument. The provisions of the DCP are, by virtue of s 79C(1)(a)(ii) of the Act, a fundamental element in or a focal point to the decision making process: Zhang v Canterbury Council (2001) 115 LGERA 373. Those provisions are, however, not in themselves determinative. Section 79C(3A) of the Act provides that if a development application does not comply with standards applicable to any aspect of the development the consent authority is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development. 4. In the circumstances of this application I am satisfied that the proposed development does not comply with the numerical standards provided in the DCP for rear setback (section 1.3.4) or landscaped area (section 1.5). I am not persuaded that it achieves the objectives for those provisions, and on that basis I am not satisfied that it would be appropriate to approve a departure from those requirements. The proposed development does not comply with the streetscape requirement for attached dual occupancies in section 1.2, that it be designed as one building structure both physically and in appearance. While the proposed development could potentially comply with the numerical standard for minimum area of private open space for dwelling, as presently proposed it does not achieve the objectives of section 1.8 of the DCP. Having regard to the non-compliances, both with the numerical standards and the intent of the DCP, I agree with the Council that it has not been demonstrated that there is a basis to approve a development in the present form. 5. That conclusion makes it unnecessary to deal with the remaining issue of bushfire standards. However, that issue was identified by the applicant as one of the two issues which he regarded as remaining in contention and was considered by both parties. The starting point for consideration is s 79BA of the Act, which relevantly provides: (1) Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land unless the consent authority: (a) is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements), or (b) has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements. (1A) If the consent authority is satisfied that the development does not conform to the relevant specifications and requirements, the consent authority may, despite subsection (1), grant consent to the carrying out of the development but only if it has consulted with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire. … 1. The site is bushfire prone, being identified on the Council's bushfire prone land map. The proposed development is not integrated development for the purposes of s 91 of the Act. 2. The applicant's bushfire risk assessment report (ex D) notes that the potential hazard for the development is the vegetation in the land to the south. That report states in the Executive Summary that the proposal should be assessed under 79BA and is considered to be "infill" development, as described in Planning for Bush Fire Protection. The calculations and assumptions outlined in that report show that through the use of an alternate solution, the development could comply with the construction requirements of AS 3959-2009 BAL-29. The Executive Summary further goes on to state that: Assessment of this proposal using the methodology of Planning for Bushfire Protection and AS 3959 would result in the proposal being classified as "Flame Zone". … Compliance with AS 3959 for this proposal has been calculated by using a combination of the recently released discussion paper by the New South Wales Rural Fire Service with regard to the proposed Short Fire Run methodology to do determine a potential width of the frame front from a single spot ignition and the method two assessment as outlined in AS 3959 2009 to determine the likely radiant heat emitted from the calculated flame width. 1. On p 18 the report notes: Although the methodology has not yet been formally adopted by the RFS and the final parameters are yet to be verified, this company has had previous assessments based on this methodology and the parameters contained within this assessment accepted by the Rural Fire Service. 1. The report concluded that the proposal required referral to the RFS because an alternate solution was suggested. 2. The Council referred the assessment report to the RFS, informing the applicant that it had done so on 15 December 2015. The RFS response on 14 January 2016, which is now exhibit 4, was as follows: The bushfire assessment report … has determined that the proposal complies with the requirements of Planning for Bush Fire Protection based on the use of short fire run methodology. In doing so, the report refers to a NSW RFS discussion paper on the matter. While the NSW RFS has shared a discussion paper with New South Wales Bushfire Planning and Design bush fire consultants, the paper does not constitute adopted NSW RFS policy and should not form the basis for the submission of an alternate solution. Any bush fire assessment incorporating short fire run methodology must present this as a fully explained and justified standalone alternate solution. As such, so that the NSW RFS can undertake a proper assessment, any alternate solution using the short fire run methodology will require an amended bushfire assessment report that fully explains and justifies the assumptions made for the methodology as a standalone solution. 1. The applicant submits that he has been advised by his consultants that "the short flame run method is effectively dead in the water." The applicant submits that the RFS has changed the modelling and his proposal cannot comply. The applicant submits that the Court is not bound by what the RFS says and as a matter of natural justice, should find in his favour. In reply, the applicant submits that the Planning for Bush Fire Protection standards relate to development abutting the Blue Mountains, and not development in urban areas, and his development should not be the "flame zone". 2. The Council submits that while s 39(6) of the Court Act enables the Court to proceed whether or not consultation with the RFS has occurred and whether or not concurrence has been granted, in this instance, there is a response from the RFS requiring justification for an alternate solution, and that approach is consistent with the requirement at s 4.3.5 of Planning for Bush Fire Protection. If an alternate solution is not accepted as appropriate, this proposed development would be considered to be exposed to a radiant heat of more than 29 kW/sqm, in which case it is considered to be in the flame zone. Planning for Bush Fire Protection does not provide that a building could not be constructed on the site; it simply requires demonstration of compliance with the performance requirements and the relevant objectives. 3. I agree with the Council. While the Court could, pursuant to s 39(6) of the Court Act, decide to proceed in the absence of consultation with the RFS, in this instance that has taken place. The RFS has responded in terms that make it clear, as accepted by the applicant's consultant, that the short fire run methodology adopted in that assessment was based on a discussion paper, and not adopted RFS policy. That response also makes it clear that the RFS requires a fully explained and justified standalone alternate solution. 4. There is no compliance with the specifications and requirements of Planning for Bush Fire Protection, as specified in s 79BA(1)(a), and there is no certificate pursuant s 79BA(1)(b). In the absence of either agreement by the RFS or appropriate expert evidence as to the measures that could be taken with respect to the development "to protect persons, property and the environment from danger that might arise from a bushfire" (s79BA(1A)) the Court should, in my view, be reluctant to grant a development consent as urged by the applicant. Further, it is doubtful whether the matter could properly be addressed in the form of a condition, as proposed by the Council and opposed by the applicant, that there be a "New South Wales RFS revised bushfire report stating a compliance without the need for referral New South Wales RFS". 5. However, while noting those comments, given the findings above, it is not necessary to reach a concluded view on the bushfire issue. 6. The orders of the Court are: 1. The appeal is dismissed; 2. Development Application 152/2015 seeking consent for the construction for a residential dwelling for an attached dual occupancy at 26 Pinaroo Place, Lane Cove North, is refused; and 3. The exhibits are returned except for exhibits 1, 7, A, B and J. Linda Pearson Commissioner ********** 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: 05 April 2016