Land and Environment Court New South Wales Medium Neutral Citation: Vanovac Tuon Architects Pty Ltd v Ku-ring-gai Council [2016] NSWLEC 1558 Hearing dates: 15,16 September 2016 Date of orders: 24 November 2016 Decision date: 24 November 2016 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is dismissed. 2. DA0470/14 for the demolition of the existing buildings and the construction of 10 multi dwelling houses with associated parking at 34-36 Dumaresq Street, Gordon is refused. 3. The exhibits are returned. Catchwords: DEVELOPMENT APPLICATION: demolition of existing buildings and the construction of 10 multi dwelling houses with associated parking - inadequate street frontage width - non–compliant building setbacks - excessive site coverage - insufficient deep soil landscaping - isolation of adjoining site Legislation Cited: Environmental Planning and Assessment Act 1979 Ku-ring-gai Local Environmental Plan (Local Centres) 2012 Cases Cited: Cornerstone Property Group Pty Ltd v Warringah Council [2004] NSWLEC 189 Karavellas v Sutherland Shire Council [2004] NSWLEC 251 Melissa Grech v Auburn Council [2004] NSWLEC 40 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Category: Principal judgment Parties: Vanovac Tuon Architects Pty Ltd (Applicant) Ku-ring-gai Council.(Respondent) Representation: Counsel: Ms S Duggan SC (Applicant) Ms J McKelvey, barrister (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2016/155223 Publication restriction: No Judgment 1. COMMISSIONER: This an appeal against the refusal of DA0470/14 for the demolition of the existing improvements and the construction of 10 multi dwelling houses with associated parking at 34-36 Dumaresq Street, Gordon (the site). The development is aligned to address a future, but currently unconstructed road (the planned road) to the east of the site (7 townhouses) and Dumaresq Street to the north of the site (3 townhouses). 2. The council maintains that the development application should be refused for the following reasons: * inadequate street frontage width, * uncertainty of new road access to the development, * non–compliant building setbacks, * excessive site coverage, * insufficient deep soil landscaping, * isolation of adjoining site, and * inadequate provision for waste collection. The site 1. The site is Lot 1 in DP 940138, Lot B in DP 312896 and Lot 100 in DP 14178. The combined allotments are rectangular shaped with a total site area of 2120.4 sq m with the following approximate boundary dimensions: north (street frontage) 25.4 m, east 72.45 m, west 74.67 m, south 27.93 m (rear). The site contains a number of easements and drainage systems, including inter-allotment drainage from 39 Moree Street. 2. The topography of the site slopes quite steeply, with a two-way cross fall to a gully located mid-way along the western boundary. The high point is at the northern corner at RL 99.75 falling across the eastern boundary to the low point at RL86.28. From east to west, the cross fall to the gully is approximately 4 m across a distance of approximately 25 m. 3. Existing on each of the allotments are single storey dwelling houses, each with an attached single carport. The dwellings are set within established gardens. 4. The site is located within the Gordon Local Centre and is in close proximity to the Gordon shopping centre and other retail/commercial and residential development. Development on immediately adjoining sites consists of low and medium density residential development, some of which are in various stages of construction. Relevant planning controls 1. The site is within Zone R3 Medium Density under Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (LEP 2012) where the proposed development is permissible with council consent. Clause 2.3(2) provides that the Court must have regard to the zone objectives when determining a development application. The zone objectives are: •To provide for the housing needs of the community within a medium density residential environment. •To provide a variety of housing types within a medium density residential environment. •To enable other land uses that provide facilities or services to meet the day to day needs of residents. •To provide a transition between low density residential housing and higher density forms of development. 1. Clause 4.3 provides for a maximum building height of 11.5 m and a maximum floor space ratio (FSR) of 0.8:1. The proposed development satisfies both development standards. Clause 6.5 provides site requirements for multi dwelling housing and residential flat buildings. Clause 6.5(2) relatively states: (2) Development consent must not be granted for the erection of multi dwelling housing or a residential flat building on a lot unless the lot has an area of at least 1,200 square metres and at least 1 street frontage of not less than: (a) if the area of the lot is less than 1,800 square metres—24 metres, or (b) if the area of the land is 1,800 square metres or more—30 metres. 1. For a lot greater than 1,800 sq m, cl 6.5(2)(b) requires at least one street frontage to have a width of 30 m. As the site has an area of 2120.4 sq m and has a frontage of 25.4 m, the council maintains that there is a breach of the development standard. This was not a conclusion accepted by the applicant given that the planned (but unconstructed) road would satisfy this standard. For caution, a written request under cl 4.6 was provided to show why strict compliance with the development standard in cl 6.5(2)(b) was not necessary. 2. Ku-ring-gai Local Centres Development Control Plan 2013 (the DCP) was in force at the time of the hearing although Ku-ring-gai Local Centres Development Control Plan (the earlier DCP) was in force when the development application was considered. The agreed position was that there was little difference between the DCP and the earlier DCP although some provisions may have been expressed differently. The DCP will be used for assessment unless otherwise specified. 3. The relevant parts of the DCP are Part 3 Land Consolidation and Subdivision and Part 6 Multi-Dwelling Housing. Inadequate street frontage width The cl 4.6 written request 1. Clause 6.5(2) requires at least one street frontage of the land to have a width of 30 m. The site, at present, has a single street frontage of 25.4 m so if the standard is applied strictly, the site breaches cl 6.5(2). 2. The applicant has provided a written request under cl 6.4 to justify the variation to the street frontage requirement in cl 6.5(2). The written request states that the objectives of the development standard are met notwithstanding the non-compliance with the 30 m numerical standard because the site will become a corner site upon the construction of the planned road. This road will be constructed along the eastern boundary of the site under a Voluntary Planning Agreement pursuant to development consent DA0434/15 for the adjoining property (32 Dumaresq Street). Occupation of the proposed development can be conditional upon construction of the planned road, if necessary. This will ensure that new residential development will front the planned road, which satisfies the 30 m standard, upon its completion. 3. The written request states that the proposed development complies with all other statutory controls and all relevant DCP objectives. This will ensure the orderly and economic development of residential land while maintaining the local character of the area. Further, preventing development, given that the proposal will comply with the standard upon construction of the planned road, would be contrary to and would thwart compliance with the objectives of the standard. 4. The written request further states that these matters represent sufficient environmental planning grounds to justify contravening the development standard and as such compliance with the development standard is unreasonable or unnecessary in the circumstances of this case. The resultant development will therefore be in the public interest. 5. This was not a conclusion accepted by the council. Mr Walsh, the council's town planner, states that a request made pursuant of cl 4.6 relies upon compliance with setback controls and achieving an acceptable landscape outcome. These issues remain in contention and it is not considered that the request is well founded. Findings 1. Clause 4.6 of LEP 2012 imposes three preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). The second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). The third precondition requires the Court to firstly, consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). The third precondition requires the Court to secondly, consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)). 2. In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion [at 27]: The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible. 1. A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment. 2. The street frontage standard objectives in cl 6.7(1) are: (a) to provide site requirements for development for the purposes of multi dwelling housing and residential flat buildings so as to provide for the orderly and economic development of residential land while maintaining the local character, and (b) to ensure that lot sizes and dimensions of medium and high density residential sites allow for generous landscaped areas and setbacks to ensure the amenity of adjoining properties and to support the desired future character of those areas. 1. In dealing with the matters in cl 4.6, the zone objectives are broad and are not particularly helpful in dealing with the question of whether a variation to the street frontage standard is appropriate. The lack of relevance of the zone objectives to the variation of the height development standard should not be a matter that acts in a negative way, so pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is consistent with the zone objectives. 2. I disagree with the conclusions of Mr Walsh on the consistency with the development objectives. While I understand his concerns over the non-compliance with the setbacks, the cl 4.6 written request relates to the development standard for lot sizes and dimensions not building setbacks. The adequacy or otherwise of the building setbacks is dealt with later in the judgment. Putting aside the location of the building on the site, I agree with the comments in the written request that the proposed development will ultimately front the planned road, which will satisfy the 30 m standard upon its completion. There was no suggestion that the planned road will not be constructed but only when it would be built. There was also no suggestion that the proposed lot size and dimensions were not appropriate for a medium density development but only that this particular form of medium density development was not appropriate for the site. 3. In my view, the approach adopted in the cl 4.6 written request that there will be a conforming lot width with the ultimate construction of the planned road is correct in that is consistent with "provide(ing) for the orderly and economic development of residential land while maintaining the local character" and "provide(ing) lot sizes and dimensions of medium and high density residential sites allow for generous landscaped areas and setbacks to ensure the amenity of adjoining properties and to support the desired future character of those areas". 4. I am satisfied that the written request demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard. Northern building setback 1. The proposed setback to Dumaresq Street setback ranges from 9.4 m to 10.5 m contrary to the control at cl 6A.3(1)(i) of the DCP, which requires multi dwelling housing developments to have a minimum setback of 10m from the primary street boundary. 2. Expert evidence for the council was provided by Ms Kerry Hunter, an urban designer and Mr Grant Walsh, a town planner. Expert evidence for the applicant was provided by Mr Rohan Dickson, an urban designer and architect and Mr Lewis Adey, a town planner. 3. Mr Adey maintains that the northern building setback has an average setback of 10 m. It is a a minor technical non-compliance created by the protrusion of part of a bay window at ground level and is acceptable, according to Mr Adey, from an urban design perspective. The bay component results in a better architectural form for the building and it would not be desirable to remove articulation from this elevation. Mr Dickson agrees with the comments of Mr Adey. 4. Ms Hunter also states that the proposed northern setback is acceptable from an urban design perspective. 5. I accept the conclusions of Mr Adey and Ms Hunter on the northern setback. Eastern building setback The evidence 1. The council maintains that the proposed setback to the eastern boundary ranges from approximately 2.3m to 5.2m and does not comply with the control in cl 6A.3 (1)(ii) of the DCP, which requires multi dwelling housing developments on corner sites to be set back a minimum of 8m from the secondary street boundary. Within a 6-8m area of the setback, "No more than 40% of the articulation zone is to be occupied by the building". The proposed development does not comply with this requirement. 2. Mr Adey states that the site and building will be significantly lower than the level of the new street, initially 1m below street level and dropping further to the west. The development is only 2 storeys high plus attic and is within the R3 zone as opposed to the approved development opposite, on the eastern side of the planned road where this site is higher than the new planned road and is in the R4 zone but requires the same setback. Development here is approved to be 6-storeys in height (or close to 7-storeys) when measured from street level. An 8m setback is therefore appropriate for this site to soften its considerable bulk as viewed from the street. The lesser setback is appropriate on the site of this application, being within a lower density and lower height zone, to minimise the disparity between the two developments. Due to the steep slope of the site, if the eastern setback were increased the building height would be further depressed into the landscape, creating an even greater and inappropriate disparity in building height and bulk between the site and the residential flat building across the planned road at 30 Dumaresq Street. 3. Mr Adey further states that the building is generally setback in excess of 6m along the eastern side, when measured from the back edge of the footpath. This would normally represent the property boundary but in this case the property boundary is between 1 and 2 m west of the back of the footpath. This council owned space would include a deep soil landscaped bank that would contribute to the visual setback and to landscape character. This will ensure that the entire eastern setback will satisfy the deep soil landscape objectives. The area can accommodate a consolidated deep soil zone, quality landscaping that contributes to the garden character of Gordon and will enable planting of large and medium sized trees close to the property boundary given the significant setback between this boundary and the proposed street. Similar views were expressed by Mr Dickson. 4. Ms Hunter states that the building line actually being sought is approximately 3.5 m from the new boundary when scaled from the drawings. This is significantly less than the 8 m required by cl 6A.2(1) and significantly less than the 40% of the building permitted to encroach to 6 m. She notes that no documents had been provided to demonstrate how the proposed development will sit within the surrounding urban context and whether the proposed eastern setback would be an acceptable streetscape outcome along the planned road. Based on her own analysis, Ms Hunter has plotted the street frontage setbacks of recently constructed apartment development and proposed development at 29-31 Moore Street in the vicinity of the site. The analysis clearly demonstrates that all recently constructed apartment developments comply with the required setbacks along their primary street frontages addressing Dumaresq Street and Mclntyre Street to the north and Moore Street to the south. Importantly, these apartment developments also have their secondary street frontages addressing the new planned road to the north of Dumaresq Street (Beans Farm Road) and the new planned road adjacent to the site. All these developments comply with the required setbacks to secondary street frontages. 5. The proposed development at 29-31 Moore Street, Gordon proposes a multi-dwelling housing development on the south-eastern corner site of the new planned road. This enables a like-for like housing typology comparison in the same location as the subject site. It is clear that the proposed development at 29-31 Moore Street complies with the setbacks both to Moore Street as the primary street frontage and the new planned road as the secondary street frontage. 6. Ms Hunter states that there are no extenuating site conditions (such as dramatic topographical features of a cliff or similar) that would prevent the remaining undeveloped R3 zoned sites from achieving the required setbacks along the planned road. Findings 1. I agree with Ms Hunter that the eastern setback to the new planned road is unacceptable. The variation to the eastern building setback is significant. Clause 6A.2 requires a minimum of 8m setback but allows an articulation zone between 6-8m where no more than 40% of this area is to be occupied by the building. The proposed building has a setback around 5.2 m for most of its length (with some design features encroaching into this setback) except near the corner where it reduces to 2.9 m. 2. Any suggestion that the setback to this elevation should be measured from the footpath (rather than the property boundary) is without merit and should not be entertained. Clearly, the development must satisfy the necessary planning requirements on its own site and not borrow public land to address any deficiencies. Similarly, the suggestion that the site and building would be lower than the level of the new street cannot reasonably support the large variation to the eastern setback. 3. Mr Adey and Mr Dickson also question the appropriateness of the setback given that a similar setback applies to taller buildings in the immediate vicinity of the site, although in a different zone. Again, this is an approach that cannot succeed. The DCP, including the setback requirements, must be given weight in the assessment of the application. It must be accepted that the numerical setback has a purpose, although it does not follow that strict compliance is essential for any approval on the site. In this case, the evidence of Ms Hunter shows that the council has consistently applied the setback requirements and this adds further support for compliance, in this case. 4. If a variation to a numerical requirement is sought, it is normally addressed through an assessment against the objectives of the particular numerical requirement. The objectives for building setbacks (cl 6A.2 of the DCP) are: 1. To soften the built form and maintain the garden character of Ku-ring-gai. 2. To ensure buildings are set within a garden setting dominated by canopy trees. 3. To ensure adequate space between buildings to enable effective landscaping. 4. To allow space to protect existing trees and provide for the planting of large trees, especially at the front and rear of the development. 5. To alleviate impacts on amenity including privacy, solar access, acoustic control and natural ventilation. 6. To reduce the visual bulk of buildings from the street. 7. To maintain the rhythm of the built form on the street. 1. It is simply not sufficient to say that the objectives will be satisfied with a smaller setback than that provided for in the DCP because the proposal can (as stated by Mr Adey) "accommodate a consolidated deep soil zone, quality landscaping that contributes to the garden character of Gordon and will enable planning of planting of large and medium sized trees close to the property boundary given the significant setback between this boundary and the proposed street". 2. Contrary to the evidence of Mr Adey and Mr Dickson, I have little trouble in concluding that the proposed setback is contrary to the relevant building setback objectives. In coming to this conclusion I have taken into consideration the built form and likely streetscape presentation that is anticipated by the council's planning controls for building setbacks, including the numerical requirements. Specifically, the proposed setback does not: * "soften the built form" because the built form has an inadequate setback that brings the bulk of the building closer to the street (objective 1), * "ensure buildings are set within a garden setting dominated by canopy trees" as the application seeks to rely on public land outside the site for achieving a landscaped setting (objective 2), * "allow space to … provide for the planting of large trees, especially at the front and rear of the development' because inadequate area is provided (objective 4), * "reduce the visual bulk of buildings from the street" because the built form has an inadequate setback that brings the bulk of the building closer to the street (objective 6), and * "maintain the rhythm of the built form on the street" given the large variation to the eastern setback and the consistent adoption of the designated setback by other developments in the area (objective 7). 1. The non-compliance with the eastern building setback is a significant negative aspect of the development. It has impacts on the streetscape and landscaped setting by the visual bulk of the building that will be closer to the street than anticipated by the council's planning controls. In my view, it is of such importance that the application should be refused for this reason alone. It is also a matter that cannot be addressed by the provision of further plans because any redesign to accommodate the additional setback would likely result in major changes to other aspects of the design. 2. I will briefly deal with the other matters in dispute. Site coverage/deep soil landscape area The evidence 1. The proposed site coverage is 51%, which exceeds the maximum site of 40% under cl 6A.3(1)(i) of the DCP. The proposed deep soil landscaped area is approximately 694 sq m or 33% of the site and does not comply with the minimum 40% of the site area, as required by cl 6A.6 of the DCP. 2. Expert evidence from the council was provided by Ms Tempe Beaven, a landscape architect and for the applicant by Ms Narelle Sonter, a landscape consultant. 3. Ms Beaven and Ms Sonter agree that the minor non-compliance with the northern setback will not compromise the characteristic landscape setback; a conclusion that I agree with. 4. They however disagree on the eastern setback. Ms Sonter states that the proposed setbacks are appropriate to meet the landscape objectives. The current landscape plan includes large trees within setbacks with greater than 4 m setback to balconies. In relation to Townhouse 3 (located on the corner of Dumaresq Street and the planned road), views from the street will feature a large canopy tree to 10-12 m in height. Townhouse 3 will also be bookended by two trees of 10-12m in height with a further 11 m tree located on the corner of the lot. On this basis, Ms Sonter considers that Townhouse 3 will be viewed as being within a landscape setting. 5. In relation to deep soil landscaped area, Ms Sonter states that the landscape objectives can be achieved. There will be characteristic landscaping with an appropriate number of upper canopy trees well distributed around the site and planting patterns which are characteristic within the locality, even accepting that there is a level of compromise in the diversity of landscape provided along the southern boundary setback and the southwest corner of the site due to the dictates of the overland flowpath and stormwater requirements. 6. Notwithstanding the constraints on the southern boundary and the southwest corner of the site, Ms Sonter maintains that this does not compromise the ability to achieve the objectives of the deep soil zone. 7. Ms Beaven states that in relation to Townhouse 3, compliance with the building setback would be a better outcome for the establishment of a landscape setting to the development. The proposed 3.3-5.2 m building setback will not provide sufficient area for a generous landscape treatment that mitigates the bulk and scale of the building. 8. Ms Beaven further states that to achieve characteristic landscaping, it is necessary to achieve compliance with the minimum 40% deep soil requirement on all townhouse developments. The proposed non-compliant building setbacks to the eastern boundary and to the rear southern boundary in association with the proposed overland flow path prevent the achievement of the deep soil objectives for tree plantings and screening to the street and within the southern setback to the development. Findings 1. The objectives for site coverage in cl 6A.4 of the DCP are: 1 To ensure development is consistent with the landscape character of the area. 2. To protect and improve the tree canopy within Ku-ring-gai. 3. To provide adequate space for the planting of tall trees and other landscaping. 4. To provide a balance of built form and soft landscaped area, characteristic of the Ku-ring-gai setting. 5. To minimise impervious surfaces that generate storm water runoff. 1. The objectives for deep soil landscaping in cl 6A.5 of the DCP are: 1. To provide consolidated deep soil zones in all residential development sites especially at the front and rear. 2. To provide quality landscaping that contributes to the garden character of Ku-ring-gai. 3. To ensure that most of the deep soil landscaping is within common areas. 4. To provide landscaping that provides habitat for native indigenous plants and animals and contributes to biodiversity in the area. 5. To provide viable deep soil landscaped areas for the retention and/or planting of large and medium sized trees: •to provide shade and amenity; •to soften the built form; •to capture carbon; •for the sustainable maintenance and enhancement of the tree canopy. 6. To provide for reduced deep soil landscaping for sites where at grade parking is provided to improve accessibility. 1. I generally agree with most of the conclusions of Ms Beaven as the requirements relating to site coverage and deep soil landscaped area are interlinked with setbacks in this case, particularly on the eastern boundary. The breach of the building setback on the eastern boundary and the breach of the site coverage and deep soil landscaped area create a situation where many of the objectives cannot be satisfied. I am less concerned with the setbacks to the rear southern boundary that need to accommodate the proposed overland flow path however landscaping should be maximised while not disturbing the efficiency of the overland flow path in this location. 2. While Ms Sonter has provided a scheme that maximises the available area for landscaping; this not the test imposed by the objectives. As stated earlier in the judgment, it is necessary to take into consideration the built form and likely streetscape presentation that is anticipated by the council's planning controls, including the numerical requirements when considering whether a proposed development satisfies the objectives. Again, this is particularly relevant when more recent redevelopment in the area has provided compliant setbacks that allow greater areas for landscaping. The same cannot be said for the proposed development because of the significant breach of the eastern setback. Isolation of adjoining property - 38 Dumaresq Street 1. The property at 38 Dumaresq Street has a frontage of 14.94 m, side boundaries of 76.03 m and 74.68 m, a rear boundary of 10.97 and a site area of approximately 967 sq m. It is within the same zone as the site; being R3 Medium Density under LEP 2012. The adjoining property to the west is within a different zone; being R2 Low Density Residential under LEP 2012. 2. Council maintains that Controls (3) and (4) to cl 3A.1 of Volume A of the DCP require that development proposed to occur on land in a medium density residential zone is to be amalgamated to avoid isolating an adjoining site so as not to compromise the development potential of such a site. The proposed development will, if approved, have the effect of potentially isolating the site at 38 Dumaresq Street, immediately to the west. 3. Mr Adey states that In order to ensure that sites are not isolated, Planning Principles have been prepared by the Land and Environment Court (Karavellas v Sutherland Shire Council [2004] NSWLEC 251, Melissa Grech v Auburn Council [2004] NSWLEC 40 and in Cornerstone Property Group Pty Ltd v Warringah Council [2004] NSWLEC 189) that address the question of potential site isolation. 4. Mr Adey provided the following summary of events relating to communication with the owners or representatives of 38 Dumaresq Street. * 10 March 2016; the applicant made an offer to purchase 38 Dumaresq Street which was supported by a valuation prepared by a Registered Valuer. * 1 April 2016; the applicant made an increased offer to purchase 38 Dumaresq Street however there was no response from the owner of 38 Dumaresq Street to either of the offers. * 23 May 2016; the applicant wrote to the owner of 38 Dumaresq Street indicating that he was in the process of having a valuation prepared for the easement. * 3 June 2016; the applicant received an email from the owner of 38 Dumaresq Street indicating that they would withdraw their objection to the development if they were granted the easement for a certain sum. * 8 June 2016; the applicant sent a letter to the owner of 38 Dumaresq Street offering to purchase the property and if that were not acceptable, to sell the easement at a figure below the market value of the easement by a Registered Valuer. 1. All relevant correspondence and the valuations referred to above were provided to the Court 2. Based on the communications and the Planning Principles, Mr Adey concludes that amalgamation of the sites is not feasible at this time. 3. Notwithstanding the applicant's attempts to purchase 38 Dumaresq Street or granting of an easement, Mr Adey maintains that the proposed development has been designed in such a way that future amalgamation could occur at any time by making use of a shared driveway, constructed wholly on the subject site. Failing that, development of the adjoining site could also occur in its own right, making use of the easement being offered to allow the driveway on the subject site to be shared by both sites. 4. In response, Ms Hunter states that the potential development scheme of 38 Dumaresq Street that was prepared by the applicant did not demonstrate that a development consistent with the planning controls could be achieved. The development scheme proposes a townhouse development of a full 4-storeys at the minimum 3m setback for the western boundary of the interface site with R2 zoned land. 5. Ms Hunter notes that few compliant setbacks are proposed and no evidence of a right of way to secure vehicular access to the site via the subject site can be achieved, as proposed. It is also unclear how car parking can be accommodated, unless it is constructed at-grade which would have a further unacceptable impact on site character. Also, there is no consideration of existing stormwater and flood issues, nor the retention of significant trees. 6. For these reasons, the development scheme for 38 Dumaresq Street does meet the DCP controls that include but are not limited to setbacks, private open space, landscape provision and character, building bulk, interface zone controls, car parking, protection of existing trees, stormwater, and minimum site requirements. Findings 1. Even though the application is to be refused on grounds other than the lot isolation issue, I propose to respond to the evidence provided on this issue. Clearly, the most optimal scenario is the combined development of both sites. It is clear that the applicant is aware of the potential isolation issue and has sought to address this through the outright purchase of the property, the acquisition of an easement or providing a development that can accommodate the development of 38 Dumaresq Street at a later date and after the development the site. None however have resulted in a successful solution to the potential isolation of 38 Dumaresq Street. 2. Clause 3A.1 Land Amalgamation is relevant as it applies to a "Medium density…residential zone". The control provides that : …sites are to be amalgamated to avoid isolating an adjoining site or sites. In particular potential redevelopment of the adjoining site or sites in accordance with its zoning must not be compromised. Lot amalgamation is to avoid creating: i) a primary street frontage less than that required by KLEP (Local Centres) 2012, 1. Even though cl 3A.1 requires that sites "are to be amalgamated", there is no overall amalgamation plan in the DCP or a requirement in LEP 2012 for amalgamation. Even though cl 3A.1 requires that sites "are to be amalgamated", cl 3A.1(6) contemplates the development of sites that may ultimately leave an isolated site (and consistent with the previously identified Planning Principles) but subject to: * a history of negotiations with the owners of the isolated site, and * details of how the isolated site and the development site can be orderly and economically developed in accordance with the provisions of LEP 2012 and the DCP. 1. The evidence suggests that the applicant has entered into meaningful negotiations with the owner of 38 Dumaresq Street, including matters identified in cl 3A.1(6), such as the provision of valuation reports from Registered Valuers, but without success. 2. It does not follow that simply because negotiations with the owner of an isolated site have not been successful that any development that may leave a site isolated must be refused. In my view, it would be unreasonable to withhold an approval, even if it results in a site that cannot be developed to its full potential if all reasonable attempts have been made to address the potential isolation issue. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. DA0470/14 for the demolition of the existing buildings and the construction of 10 multi dwelling houses with associated parking at 34-36 Dumaresq Street, Gordon is refused. 3. The exhibits are returned. ______________ G Brown 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 November 2016