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Land and Environment Court
New South Wales
Medium Neutral Citation: Banjanin v Mosman Council [2016] NSWLEC 1332
Hearing dates: 4-5 May and 11 August, 2016
Date of orders: 12 August 2016
Decision date: 12 August 2016
Jurisdiction: Class 1
Before: O'Neill C
Decision: 1. Leave is granted to the applicant to rely on the amended plans, listed at condition 1 of Annexure 'A'.
2. The applicant shall pay the respondent's costs pursuant to s 97B of the Environmental Planning and Assessment Act 1979 as agreed or assessed.
3. The appeal is upheld.
4. Consent is granted to development application 8.2015.117.1 for the construction of a pair of semi-detached dwellings, to be held under strata title, subject to the conditions of consent at Annexure 'A'.
5. The exhibits, other than exhibits 1, 13, D, E F and G, are returned.
Catchwords: DEVELOPMENT APPLICATION: construction of a pair of two storey semi-detached dwellings; impact on heritage significance of the adjoining heritage item; impact on streetscape, local character and significance of heritage conservation area; front setback.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Cases Cited: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94
Wehbe v Pittwater Council (2007) 156 LGERA 446
Category: Principal judgment
Parties: George and Dragana Banjanin (Applicant)
Mosman Council (Respondent)
Representation: Counsel:
Mr M. Staunton barrister (Applicant)
Ms A. Hemmings barrister (Respondent)
Solicitors:
Bartier Perry (Applicant)
Pikes & Verekers Lawyers (Respondent)
File Number(s): 2016/152968 (formerly 11005 of 2015)
Judgment
1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 8.2015.117.1 for the subdivision by torrens title of the existing allotment into two allotments, construction of a pair of two-storey semi-detached dwellings, new crossover and changes to an existing crossover, tree removal and landscape works (the proposal) at 32 Orlando Avenue, Mosman (the site) by Mosman Council (the Council).
2. The appeal was subject to mandatory conciliation on 1 February 2016, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 15 February 2016, pursuant to s 34(4) of the LEC Act.
3. During the hearing of the matter, the experts participated in further joint conferencing and came to an agreement in relation to all but one of the issues identified by the Council's experts, with reference to the Council's contentions, in the matter. The parties agreed to me determining the outstanding issue of an appropriate front setback for the proposal and handing down a decision on that issue with directions for the applicant to prepare the necessary amended documentation, the Council to prepare conditions of consent and a timetable for a consent orders hearing.
4. The consent orders hearing was heard on 11 August, 2016.
Issues
1. The Council's contentions in the matter can be summarised as:
* The proposal is an overdevelopment of the site, as the area of the subdivided allotments is less than the minimum subdivision lot size and the proposal is not consistent with the objectives of the R3 Medium Density Residential zone and does not satisfy the Orlando Conservation Area Townscape requirements.
* The proposal would have an unacceptable impact on the heritage significance of the heritage item and the heritage conservation area, the streetscape and the local character.
* The proposal would have an unacceptable impact on the amenity of the adjoining and nearby residences.
The site and its context
1. The site is on the western side of Orlando Avenue, between Calliope Street and Fleet Lane. The existing site is undeveloped and was formerly the garden to the adjoining dwelling at 30 Orlando Avenue.
2. The site is rectangular with an area of 489.1sqm and a frontage to Orlando Avenue of 15.975m. The site falls 1.91m to the east.
3. There is existing significant vegetation in the road reserve adjoining the site and on the site.
The original and amended proposal
1. The original proposal was for the subdivision by Torrens Title of the existing allotment into two allotments Lot 21 (244.2sqm) and Lot 22 (244.9sqm).and construction of a pair of semi-detached, two storey dwellings with a single car hard stand in the side setback of each dwelling. The original proposal included changes to the existing driveway crossover and construction of a new driveway crossover.
2. The amendments to the proposal agreed by the planning and heritage experts (exhibit 11) can be summarised as:
* The two dwellings are to be held under strata title;
* 3.25m side setback to both side setbacks;
* 6.672m rear setback;
* Roof pitch of 30 degrees;
* First floor steps back from the front setback and side setbacks for both front bedrooms, in order to provide an apron roof around the single storey portion when viewed from the street; and the middle portion of the first floor street elevation is indented 600mm; and
* The southern driveway crossover and hard stand are deleted.
Resident objector evidence
1. Five resident objectors provided evidence on-site at the commencement of the hearing on 4 May 2016. Their objections to the original proposal can be summarised as:
* The proposal is an overdevelopment of the site, as the site is not suitable for subdivision and two dwellings;
* The proposal is not sympathetic to the character of the streetscape and the heritage conservation area;
* The proposal has an unacceptable impact on the setting of the heritage item at 30 Orlando Avenue;
* The proposal extends the two storey portion too far to the rear of the site, which will overshadow and overlook the adjoining private open space of 30 Orlando Avenue;
* The two storey extension to the rear will be overbearing and will overlook the private open space of 34 Orlando Avenue;
* The position of the hard stand car parking area on the northern side of the site is beneath an existing Date Palm that drops heavy fronds 5-6 times a year and the hard stand will not be used for parking by the occupant of the dwelling in order to avoid damage to their car;
* The proposal is for a total of 8 bedrooms and the occupants of the dwellings are likely to have more than one car per dwelling, resulting in additional cars being parked in Orlando Avenue, which is already used for parking by a number of residents of the street.
Planning framework
1. The site is zoned R3 Medium Density Residential pursuant to Mosman Local Environment Plan 2012 (LEP 2012) and the proposal is permissible with consent.
2. The minimum subdivision lot size for the site is 300sqm, at cll 4.1 and 4.1A(b) of LEP 2012, as the site is within 'Area 2' on the Lot Size Map and a dwelling house or semi-detached dwelling house is to be erected on each lot.
3. The height of buildings development standard for the site is 8.5m and the proposal complies. The floor space ratio (FSR) development standard for the site is 0.6:1 and the amended proposal has a FSR of 0.606:1. The objectives of the FSR development standard in LEP 2012 are as follows:
(i) to ensure that buildings are compatible with the desired future character of the area in terms of building bulk and scale, and
(ii) to provide a suitable balance between landscaping and built form, and
(iii) to minimise the adverse effects of bulk and scale of buildings,
(iv) to limit excavation of sites and retain natural ground levels for the purpose of landscaping and containing urban run-off,
1. Clause 4.6 of LEP 2012 'Exceptions to development standards' provides an appropriate degree of flexibility in applying certain development standards to particular development with the objective of achieving better outcomes for and from development.
2. The site is a heritage item, being part of the former garden of 30 Orlando Street, Mosman, 'House 30 Orlando Avenue, Item 196', at Schedule 5 of LEP 2012. The statement of significance for 30 Orlando Avenue is 'an eclectic style house from the Federation period, employing an unusual form and materials'. The description includes 'the expansive garden includes a fine specimen of the date palm'. (exhibit 4, Mosman Heritage review 1996 Inventory Sheet).
3. Clause 6.6 Landscaped areas is in the following terms:
(1) The objectives of this clause are as follows:
(a) to have the landscape and townscape area character of Mosman's residential areas maintained and enhanced by requiring landscaping of sites in conjunction with other development,
(b) to have a general visual dominance of landscape over buildings maintained, particularly on harbour foreshores, while recognising the difficulty of achieving this on small lots where there are existing buildings such as semi-detached dwellings,
(c) to have adequate and usable ground level open space for recreation, landscaping and containing urban run-off.
(2) This clause applies to land in Zone R2 Low Density Residential or Zone R3 Medium Density Residential.
(3) The consent authority may refuse to grant development consent to development involving the erection of a building unless at least the following minimum landscaped area of a site (as a percentage of the site area) is provided for the development:
(a) for development resulting in one dwelling per lot or for a non-residential building:
(i) 25%, if the site area is less than 400m2
(b) for development resulting in more than one dwelling per lot:
(i) 50%, for land identified on the Floor Space Ratio Map as having a maximum floor space ratio of 0.6:1 or less
1. Mosman Residential Development Control Plan 2012 (DCP 2012) applies to the proposal.
2. Part 4 – Primary Planning Controls of DCP 2012 includes the following relevant objectives and controls:
4.1 Subdivision of Land
O1. To have lots with a minimum size which would be sufficient to provide useable space for building, landscaping and services.
P1. Lot sizes and dimensions must enable development to be
sited to:
(a) receive sufficient solar access and be energy efficient;
(b) accommodate vehicular access;
(c) achieve minimum landscaped area requirements;
(d) accommodate services (e.g. mail, waste, power, water etc);
(e) provide for stormwater management;
(f) accommodate easements; and
(g) address the street.
P2. The minimum width for an access handle is 3m for a single dwelling and may be greater where length, number of lots or dwellings and/or topography
necessitate. Multiple dwelling access may require a wider access handle to accommodate passing bays.
O4. To have significant topographical and geographical features taken into account when creating lots, and minimise the affect on important site features.
P5. Lot sizes and dimensions must enable development to be sited to:
(a) protect natural or cultural features including heritage items and their curtilage;
(b) acknowledge site constraints such as terrain or soil erosion;
(c) retain special features such as trees, rock outcrops and public views;
(d) avoid significant changes to the natural topography as a result of future development;
P6. In considering an application to subdivide land, Council will consider any potential environmental impacts arising from the subdivision or likely future development.
4.2 Siting and Scale
The siting and scale of a building – its height, floor space ratio, setback from site boundaries and relationship in size to adjoining buildings – set the dominant character of any development.
Controls for these elements are important to facilitate an acceptable siting and scale of development that maintains a satisfactory relationship with neighbouring properties and the wider street context. Buildings should be designed from the ground up with ground floors located at or near ground level.
O2. To have a scale of development which is not excessive and is consistent with the existing or desired future townscape area character.
P2. Council may consider pitched roof forms to extend beyond the maximum building height set out in the LEP where a consistent pitched roof style is an important local character element or it is appropriate for an identified heritage item. New works should sit comfortably in the existing context without being visually dominant or overly prominent.
Building setback
O4. To have front setbacks complementing existing setbacks in the street.
P3. If a new development is to take place in a street with an established pattern of development, new buildings should be setback a similar distance from the street.
P4. Where there is no established pattern of development, front setbacks will be considered on their merits.
O8. To have rear setbacks which complement existing setbacks and which provide sufficient space for substantial planting, provide adequate separation of buildings, and have regard to cross views of neighbouring properties.
P19. Where the existing pattern of development displays an established rear setback, development should retain this setback to provide sufficient space for substantial planting, provide adequate separation of buildings, and have regard to cross views of neighbouring properties.
4.4 Landscaping
Landscaping plays an important role in integrating new development into a streetscape, improving the level of amenity, improving local habitat for flora and fauna, and in reducing the impervious surfaces of a development site and reducing local stormwater runoff.
For land zoned R3 Medium Density Residential, the minimum landscaped area is dependent on the location of the site. A greater building bulk and consequently lesser landscaped area is generally accepted on sites located near to public transport, shops and services, reflecting increased densities and best practice sustainability and urban consolidation principles.
O4. To have the existing canopied and vegetated landscaped character of Mosman protected and enhanced.
O5. To have existing established trees protected.
P2. Existing established trees which contribute to the amenity of the area and trees listed on Council's Urban Forest Management Register are to be retained and incorporated into the landscape design.
P3. Where an existing established tree or trees are approved for removal, adequate space in the landscape design is to be provided for a replacement tree or trees appropriate for the site.
O6. To have front gardens and areas forward of the front building alignment include vegetation and landscaping that makes a positive contribution to the streetscape.
P4. Vegetation and landscaping should:
(a) soften the built form;
(b) be consistent with the theme of vegetation in the streetscape, if a predominant theme exists;
(c) form part of the overall streetscape, and therefore contribute as a unifying element within the street.
O7. To have the streetscape character, context and curtilage of heritage items and conservation areas maintained through appropriate landscaping.
P5. The landscape design for heritage items or within a
conservation area is to:
(a) utilise appropriate plant species in achieving a setting for the item or conservation area;
(b) avoid changing characteristic landscapes;
(c) avoid landscape designs which have no relationship to the period of the item or conservation area; and
(d) be simple rather than complex.
4.5 Preservation of trees or vegetation
O1. To have the amenity of the area preserved through the preservation of trees and other vegetation.
P1. Trees or other vegetation to which clause 5.9 of the LEP applies are listed in the table below.
P2. An application to Council for consent to carry out any of the actions listed in clause 5.9 of the LEP on private land must be made on the relevant application form by the owner of the land, or any person with the consent of the owner of the land, or in respect of encroaching branches or roots by the owner of adjoining land affected.
P3. An application to Council for consent to carry out any of the actions listed in clause 5.9 of the LEP on public land must be made on the relevant application form. Only Council or persons approved and authorised by it are permitted to take action in respect of trees on public land. An application in respect of a tree on Crown Land which is not under the control of Council must be accompanied by written consent from the Crown.
P4. An application must include a plan showing the location of any tree the subject of the application, all trees in the vicinity of any such trees, and a brief statement of the reason(s) for the application as well as any pertinent information that Council may require.
P5. Council, in determining an application under clause 5.9 of the LEP, must have regard to:
(a) The health and or condition of the tree or trees; whether the tree is dead or dangerous*; proximity to existing or proposed structures; interference with utility services, and interference with views; and amenity of any person or property;
(b) Necessity for action in order to construct improvements to the property the subject of the application to achieve reasonable development;
(c) Effects in the nature of erosion, soil retention or diversion or increased flow of surface waters;
(d) The number of trees in the relevant area and the effect on the amenity of such area;
(e) The number of healthy trees that a given parcel of land will support; and
(f) Whether the tree(s) in question provide habitat for fauna.
1. Part 5 – Site Planning and Design of DCP 2012 includes the following relevant objectives and controls:
Streetscape refers to the way a street looks and is fundamental in defining neighbourhood identity and townscape area character. Streets are composed of buildings, landscape elements, fences, footpaths, driveways and utility services; it is the arrangement of these components and their visual appearance that influences the streetscape character.
Building form and architectural style contributes to a streetscape's identity and amenity and the community's perception of the place. Important elements of building design are:
height,
bulk,
roof form,
finishes, and
overall street presentation.
Compatible, sympathetic and innovative interpretations of these elements in buildings within a streetscape contribute to attractive streetscapes.
A predominant townscape characteristic of Mosman is pitched roofs, particularly when viewed from the harbours and foreshores. Refer to Part 7 of this Plan for specific planning controls for townscape areas.
O1. To have development of a scale and appearance which is in keeping with the street and desired future townscape area character.
O2. To have building bulk controlled by incorporating facades that are well articulated.
P1. New development should incorporate articulated facades to avoid a bulky appearance and to create proportions consistent within the streetscape. The use of elements such as recesses, modulation and setbacks in building walls, and varied materials is encouraged so as to avoid expansive uniform elevations. Pergolas, verandahs, decks and planter boxes are also appropriate provided they are suitably dimensioned and do not contribute to building bulk.
P2. Applicants must demonstrate that buildings are designed "from the ground up" with ground floors located at or near ground level and incorporating reasonable ceiling heights. The use of extensive void areas under or within a building is discouraged.
P3. Development on sites with two or more frontages should promote the corner elements of buildings as architectural features to add prominence and diversity to the streetscape.
P4. The design of additions and alterations to existing buildings should demonstrate architectural unity with the existing building. The extension or replication of roof pitches and the matching of external finishes is generally encouraged, and should be compatible with the townscape area.
P5. First floor additions should be well integrated into the development design to avoid a bulk/scale relationship that would dominate the existing building, neighbouring buildings or the street.
P6. Contemporary alterations and additions, where appropriate, are to be limited to the rear of the building.
Roof design of building:
P7. Roof pitch should not be excessive. Where the predominant roof form is pitched, new roofs should be of a similar pitch and material.
5.2 Carport and garage design
O2. To have areas forward of the front building alignment reserved predominantly for vegetation and landscaping and to make a positive contribution to the streetscape.
O3. To have the siting of carparking structures respect the character of the streetscape and retain public views where they exist over the site.
5.3 Fences and walls
O1. To have new fences and walls that are compatible with positive elements of the streetscape and satisfy the character objectives for the townscape area.
1. Heritage Conservation at 5.6 of DCP 2012 includes the following relevant objectives and controls:
O3. To have the streetscape character of a conservation area maintained through appropriate design, built form, architectural style and landscaping and to ensure any infill development also respects the character of the streetscape.
O6. To have new infill developments within conservation areas or adjacent to heritage items which are sympathetic to and do not mimic the established
character.
P25. New infill developments should respect the architectural character of the heritage item/s or the important character of the conservation area. Design should be in a similar scale and proportion to the townscape area character, be sympathetic to the heritage item, and not dominate or overwhelm the item/s of importance.
P26. Do not replicate or mimic design features of the heritage item/s in the vicinity. New development should be clearly distinguishable from older development.
Refer to the NSW Office of Environment and Heritage guideline Design in Context; Guidelines for Infill Development in the Historic Environment for more information.
1. The Orlando Conservation Area description and state of heritage significance, at 7.18 of DCP 2012, is as follows:
7.18.1 Description of area and character
Orlando Conservation Area is of residential character containing mostly modest buildings in a wide range of architectural styles and several different types, generally blending well together. There is a strongly Federation period quality about most of the houses, yet there is a minority which represent a wide field of architectural styles, ranging from the Victorian period through Inter-War and Post War modes and including recent buildings and modifications. There are also a few timber structures in an area of predominant brickwork. Most, but not all, of these variations of style, scale and design blend well with or complement the overall character. The impact of planting on both public and private land in this conservation area is notably slight. The street plantings do not generally hold the visual qualities of the area together and the result is that the architecture dominates much more than in some other areas of Mosman. There are some old plantings in Orlando Avenue which, while venerable specimens individually, do little to give a cohesive character to the streetscape. There are opportunities for improvement.
7.18.2 Statement of heritage significance
Orlando Conservation Area is of residential character containing mostly modest buildings in a wide range of architectural styles and several different types, generally blending well together, though Federation and Inter-War period styles are in the majority. The area demonstrates the pattern of building in Mosman in these periods.
1. Semi-detached dwellings are to have 1 car parking space per dwelling, in the Table – car parking rates of DCP 2012.
Expert evidence
1. The applicant relied on the expert evidence of Catriona Mackenzie (Arboriculture), Natalie Vinton (heritage) and Alison McCabe (planning).
2. The Council relied on the expert evidence of Stephen Wall (Arboriculture), David Logan (heritage) and Kerry Nash (planning).
Consideration
1. Following the site view, the hearing was adjourned for the planning and heritage experts to discuss possible amendments to the proposal. During their joint conferencing, the experts agreed on the amendments listed at paragraph 10 of this judgment (exhibit 11).
2. The parties agreed to me determining the remaining outstanding issue of the dimension of the front setback of the dwellings.
3. In Mr Logan's view, the front setback should be 10m, to align with the eastern façade of the gable that runs across the site at 30 Orlando Avenue. In Ms Vinton's view, the front setback should be 5.26m to the ground floor verandah (exhibit B, dwg DA100 Rev 11).
4. The heritage experts agreed that an appropriate proposal for the site will result in a building that is neutral in the heritage conservation area.
5. According to Mr Logan, a higher test should apply for the setback of the dwellings on the site as the site is included in the heritage item of 30 Orlando Avenue. In his opinion, the front façade of the proposal should align with the eastern façade of the gable of 30 Orlando Avenue, so that the development does not visually dominate the heritage item and because it is reasonable to adopt a substantial setback for the site to retain something of the garden setting of the heritage item. In Mr Logan's view, a lesser setback, as proposed by the applicant, would result in the heritage item being hemmed in by the new development.
6. Mr Logan provided a sketch of the building footprint that he considers would be appropriate (exhibit 12) and the footprint has a 10m front setback and 1.5m side setbacks. According to Mr Logan, a small verandah or feature on the front façade, approximately 1m deep, could project into the 10m front setback and in his opinion, the proposal could have a lesser rear setback than proposed.
7. According to Ms Vinton, the former garden of the heritage item, being the site, is not of great significance as it is not a formal garden and was not designed by a recognised landscape designer; the design of the dwelling at 30 Orlando Avenue does not orientate to the former garden to the north; and the former garden was an underutilised area. In her view, the remnant mature plantings are worthy of protection, particularly the Date Palm, and those trees are being retained in the proposal. The heritage item at 30 Orlando Avenue is recognised as being of an eclectic style and unique in the street and the garden on the site no longer has a relationship to the heritage item at 30 Orlando Avenue, nor does it contribute significance to the heritage item.
8. According to Ms Vinton, a front setback in excess of any other front setback on either side of Orlando Avenue would have a detrimental impact on the rhythm of the streetscape and consequently on the significance of the heritage conservation area. Ms Vinton noted that the heritage item at 30 Orlando Avenue sits comfortably with the more dominant form of the flats to the south at 28 Orlando Avenue.
9. Ms McCabe broadly concurred with Ms Vinton's evidence, adding that a 10m front setback for the site would be an unreasonable impost on the site to require a front setback far in excess of any other front setback on the same side of Orlando Avenue.
10. I accept and agree with Mr Logan's opinion that the slightly greater setback of the contemporary and neutral dwelling at 26 Orlando Avenue is appropriate and results in it being deferential and subordinate to the dwellings in its vicinity, particularly the striking flats at 28 Orlando Avenue. I accept and agree with Mr Logan's opinion that the flats at 28 Orlando Avenue contribute to the streetscape particularly because of the fine decorative brickwork detail of the street façade, the proportions, authentic style and intactness; and that it would be inappropriate for a new dwelling/s in Orlando Avenue to mimic the setback and scale of the front facade of 28 Orlando Avenue, because the flats are a dominant building in the streetscape.
11. I prefer Ms Vinton's opinion that the front setback of the proposal of 5.26m to the ground floor front verandah is appropriate, including the building envelope with the side setbacks of 3.25m and the stepped front profile of the proposal, shown in exhibit B, for the following reasons:
* I accept Ms Vinton's opinion that the garden on the site no longer contributes to the setting of the dwelling at 30 Orlando Avenue, as the dwelling does not orientate or otherwise acknowledge the former garden to the north;
* The side setbacks of 3.25m proposed by the applicant also provide a sense of a landscaped setting to the proposal and a generous separation between the proposal and the adjoining neighbours' dwellings, such that the heritage item will not be hemmed in by the proposal;
* The 3.25m side setback and 5.26m front setback of the proposal will provide for oblique views of the heritage item, particularly the semi-octagonal feature front bay of the heritage item at 30 Orlando Avenue, where views to the heritage item are available around or through vegetation in the verge and front setback of the proposal;
* The front setback of 5.26m will provide a greater front setback when compared to the dwellings on adjoining allotments and this will achieve a similar relationship to the streetscape as 26 Orlando Avenue, which is appropriate for a neutral building in the heritage conservation area.
* The 1.5m side setback in exhibit 12 would result in a much wider building which would negate the sense of a building in a garden setting in my view. The 1.5m side setbacks would have a greater impact on the amenity of both neighbours when compared to a proposal with a generous 3.25m side setback;
* The rear setback of the proposal should not be decreased as this would have an undesirable impact on the amenity and ambience of the rear gardens of the adjoining neighbours;
* I accept Ms McCabe's opinion that it would be an unreasonable impost on the site to require a front setback far in excess of any other front setback on the same side of Orlando Avenue and I accept Ms Vinton's opinion that a 10m front setback would have a detrimental impact on the rhythm of the dwellings in the streetscape and the significance of the heritage conservation area.
* I do not agree with Mr Logan that a 10m front setback would necessarily read as the former garden of the heritage item at 30 Orlando Avenue.
* The agreed amendments made to the original proposal, including the stepped front elevation, the apron roof around the front verandah with a side return and the 30 degree pitch of the roof have improved the proportions of the building envelope such that the amended proposal a better fit in the streetscape. The amended proposal, while not a particularly inspired design, is at least deferential in the context and will have a neutral impact on the heritage conservation area.
1. For the reasons set out above, the front setback of the proposal to the front verandah is to be 5.26m.
Directions
1. Directions were handed down on 10 May 2016, as follows:
As raised during the hearing with the parties, an appropriate condition is to be imposed on the consent requiring an external screen or fixed louvres on the upstairs window in bedroom 1 on the northern elevation to prevent overlooking from that window of the rear yard of 34 Orlando Avenue.
The applicant is to file and serve the amended proposal in accordance with this judgment by 17 May 2016.
The parties are to approach the Court's Registry for a suitable hearing date and the Council is to notify the resident objectors of the hearing in accordance with paragraphs 47-49 of the Court's Practice Note – Class 1 Development Appeals.
Liberty to restore on two days' notice.
Consent orders hearing
1. Following the determination of the front setback issue, the parties agreed to enter into consent orders, based on the amendments made to the proposal.
2. In considering the consent orders, the Court's Practice Note – Class 1 Development Appeals (paragraphs 47-49) provides:
Applications for final orders by consent of parties
47. If the parties settle the dispute and its resolution does require the Court to make orders, it will be necessary for the Court to determine the residential development appeal application rather than filing terms of agreement with the Court registry. The parties are to exercise the liberty to restore the proceedings before the Court and request that the application for final orders by consent be listed for determination by the Court.
48. The parties are to file the proposed consent orders signed by all parties before the date fixed for hearing the application for final orders by consent.
49. At the hearing, the parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:
(i) the content of the proposed orders (including the proposed conditions of consent);
(ii) the date of the hearing by the Court to consider making the proposed consent orders; and
(iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary.
1. Resident objectors were advised of the consent orders hearing listed on 11 August 2016 and provided with the proposed orders and conditions of consent by letters dated 21 June and 28 July, 2016 (exhibit 14). The objectors were invited to attend the hearing and give evidence relating to any remaining concerns regarding the amended proposal. One objector gave evidence and his objection to the amended proposal can be summarised as:
* The amendments made to the proposal have reduced the impact of the proposal on the amenity of neighbours and streetscape of Orlando Avenue.
* Although semi-detached dwellings are permitted in the R3 zone, it would have been more appropriate for the site to be developed for a single family dwelling as it is one of the smallest lots in Orlando Avenue.
1. The following condition is added by agreement to the conditions at condition 6, in response to the direction by the Court and the external privacy screen is shown on the northern elevation (DA400 exhibit D):
The louvres to the privacy screens of the northern window of bedroom 1 of the northern dwelling shall not be adjustable beyond 45 degrees in an upwards direction to prevent downward viewing.
The amended proposal
1. The amended proposal, including architectural plans and shadow diagrams (exhibit D), landscape plan (exhibit E), stormwater plan (exhibit F) and strata subdivision plan (exhibit G), includes the following summary (taken from a summary of changes to the proposal in exhibit H) of substantive amendments to the original proposal:
* Southern driveway deleted, replaced with landscaping and trees retained;
* 30 degree roof pitch;
* Side terraces deleted and rear terrace reduced in area and retaining walls reduced;
* Front setback 5.26m;
* Front elevation amended in accordance with heritage experts' agreement;
* 3.25m side setback and 6.675 rear setback;
* Internal layout amended.
Exceedance of the FSR development standard
1. The applicant submitted a written request (exhibit J) for the contravention of the FSR development standard, pursuant to cl 4.6 of LEP 2012. The proposal has a FSR of 0.606:1 and the FSR development standard for the site is 0.6:1 The written request justifies the non-compliance of the proposal with the numerical standard on the basis that the massing of the development is essentially that contemplated by the suite of controls and the side and rear setbacks of the proposal are greater than the requirements of the planning controls.
2. In order for development consent to be granted for a development that contravenes a development standard in LEP 2012, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2012) and that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2012) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2012).
3. Mr Staunton submits that Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 [9] is relevant to my consideration of the very minor numerical non-compliance with the standard. He further submits that this important case, which was influential in the Chief Judge's reasoning in Wehbe v Pittwater Council (2007) 156 LGERA 446 [42], is often overlooked as it can be difficult to locate given the dollar sign in lieu of a 's'. The relevant portion of [9], in relation to a minor numerical departure from the standard, is as follows:
Before the assessor the appellant attempted to establish that compliance with the development standard was unreasonable or unnecessary because the standard itself was unreasonable or unnecessary. There were other ways in which an objector under SEPP 1 might present his case. He might accept that the standard was both reasonable and necessary, but seek to establish that enforcing compliance in his case would be unreasonable or unnecessary. This would be a sensible approach where the departure from the standard was modest…
1. I accept the applicant's justification of the minor numerical non-compliance with the FSR development standard and I am satisfied that compliance with the FSR development standard is unnecessary in the circumstances. I accept that the proposal is consistent with the relevant objectives of the FSR development standard to ensure that buildings are compatible with the desired future character of the area in terms of building bulk and scale; to provide a suitable balance between landscaping and built form; and to minimise the adverse effects of bulk and scale of buildings, for the reasons articulated by Ms McCabe in her written request for the contravention of the FSR development standard.
Car parking
1. The amended proposal provides one on-site car parking space for the northern dwelling and no on-site car parking space for the southern dwelling. The Council does not press a contention in relation to the provision of parking by the proposal.
2. The issue of on-street parking was raised by the objectors at the commencement of the hearing.
3. The applicant submits a parking survey as part of the statement of evidence of Mr Geoff Higgins and Mr Graham Pindar (exhibit K) carried out on Friday 20th May and Sunday 22nd May 2016, between 5pm and 9pm, which demonstrates that within 100m of the site parking demand did not exceed 64% of capacity at any time during the surveyed periods. I accept the evidence of the applicant's traffic expert and I am satisfied that there is some capacity for on-street parking for the future residents of the proposal and their visitors.
Conclusion
1. In considering the amended plans and documents and agreed conditions of consent and taking into consideration the issues raised by the resident objectors, I am satisfied that it is lawful and appropriate to grant the consent, having regard to the whole of the circumstances.
Orders
1. The orders of the Court are:
1. Leave is granted to the applicant to rely on the amended plans, listed at condition 1 of Annexure 'A'.
2. The applicant shall pay the respondent's costs pursuant to s 97B of the Environmental Planning and Assessment Act 1979 as agreed or assessed.
3. The appeal is upheld.
4. Consent is granted to development application 8.2015.117.1 for the construction of a pair of semi-detached dwellings, to be held under strata title, subject to the conditions of consent at Annexure 'A'.
5. The exhibits, other than exhibits 1, 13, D, E, F and G, are returned.
_____________________
Susan O'Neill
Commissioner of the Court
152968.16 O'Neill (C) (335 KB, pdf)
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Amendments
12 August 2016 - Conditions attached
24 August 2016 - Typographical error corrected in paragraph [52 (4)].
08 September 2016 - Development Application number is amended on cover sheet and in paragraphs [1] and [52(4)].
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Decision last updated: 08 September 2016