Land and Environment Court New South Wales Medium Neutral Citation: Hurley v Sutherland Shire Council [2016] NSWLEC 1630 Hearing dates: 7 December 2016 Date of orders: 23 December 2016 Decision date: 23 December 2016 Jurisdiction: Class 1 Before: Dickson, C Decision: The orders of the Court are: 1) The appeal is upheld; 2) Consent is granted to Development Application No. DA/16/0273 for the demolition of an existing dwelling and the construction of a new two storey brick veneer dwelling at Lot 225, DP 17295, 6 Second Avenue Jannali, subject to conditions in Annexure A and the following additional operational conditions: Condition 1 (a) Design Changes Required – Street setback The following design changes must be implemented to minimise the streetscape and amenity impacts of the development: a. The dwelling must be repositioned on the site so that the street setback is: 4.70m minimum measured to the vertical blade feature at the front of the dwelling; 5.15m to the upper floor Bed 4/study; and 6.5m to the garage. b. In repositioning the dwelling on the site, the cut and fill within the building footprint and the remainder of the site shall remain substantially the same as detailed in the plans and the building height shall not exceed 8.5m. Condition 4. (ii) Screen planting of suitable hedging plants to a mature height of 2.5m are to be provided along the eastern side allotment boundary for the length of the family room. 3) The exhibits are returned with the exception of 1, 5, B, and the Class 1 Application dated 6 September 2016. Catchwords: DEVELOPMENT APPEAL: weight of draft policy/ development control plan – suitability of front setback – appropriateness of front porch and elevated ground floor level – is the developments contribution to the streetscape appropriate. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Environmental Planning and Assessment Regulation 2000 Cases Cited: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Category: Principal judgment Parties: Anja Hurley (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: Smith, J (Applicant) Solicitors: J. Hones, Hones Lawyers (Applicant) J. Amy, Sutherland Shire Council (Respondent) File Number(s): 2016/00267534 Publication restriction: Nil Judgment 1. COMMISSIONER: In June 2016 Sutherland Shire Council approved an application for demolition of the existing dwelling, and construction of a new two storey dwelling at 6 Second Avenue, Jannali. In approving the works the Council imposed a condition on the consent requiring the house to be setback a further 1.95m from Second Avenue. The applicant is appealing to the court (under s 97(1)(a) of the Environmental Planning and Assessment Act 1979) to have this condition removed from the consent. The relevant condition is reproduced below: The dwelling must be repositioned on the site a distance of 1.95m towards the rear (south) so that the street setback is 6m measured to the upper vertical projection (above the 'architectural blade wall feature') at the front of the dwelling. In repositioning the dwelling on the site, the cut and fill within the building footprint shall remain substantially the same as detailed in the plans submitted to the Council on June 6 2016 in respect of this application and the building height shall not exceed 8.5m. 1. The appeal was subject to mandatory conciliation on 7 December 2016 (34AA of the Land and Environment Court Act 1979 (LEC Act)), however agreement was not reached and conciliation was terminated. The proceedings were dealt with as a hearing. The parties consented to the admission of evidence given during the conciliation conference in the hearing (s 34AA(2)(b)(ii) LEC Act). 2. Prior to the commencement of the proceedings the applicant amended their development application. It was agreed between the parties that these amended plans address Councils previous concerns in relation to the dimension of the proposed double garage, and the provision of adequate landscaped area. These changes were incorporated in an updated set of architectural plans that were the subject of the proceedings (Exhibit B). 3. In hearing the appeal the role of the Court (cl 39 of the LEC Act) is to assess and determine the development application based on the evidence in the proceedings and the amended plans, essentially re exercising the role of the Council in determining the application. 4. The key issues in dispute between the parties, and for the Court to determine, are: 1. What weight is appropriately applied to the Councils draft policy/ development control plan 2015; 2. Whether the front setback proposed is appropriate and meets the requirements of the applicable development controls; and 3. Whether the floor level of the ground floor, and the resultant the front porch and steps are acceptable and appropriate in the streetscape of Second Avenue. The site and its context 1. The site is located on the southern side of Second Avenue. It is rectangular in shape with a frontage of 13.715m and a depth of 41.15m. The site slopes up from the street to the rear of the block by approximately 2.5m. There are no trees within the site or road reserve. 2. The site currently contains a single storey brick and tile dwelling house which is proposed for removal. At the rear of the existing house is an outbuilding which is to be retained, but under the current approval (the subject of the appeal) is proposed to be restricted to a non-habitable and non-commercial use. There is no contention in relation to this restriction. 3. The site is approximately 500m from Jannali train station and the character of the locality in proximity to the site is predominately low density residential development, consisting of single and two storey dwellings. The architectural character of dwellings within Second Avenue is varied and given the age of the homes the Council is of the view that they are likely to be replaced with new, larger dwellings in the future. Public submissions 1. The development application was notified in accordance with the Council's Policy/ Draft Development Control plan 2015 (Draft Policy/ DCP 2015) and no submissions were received. No members of the public addressed the Court at the commencement of the hearing. Planning framework 1. Section 79C(1)(a) of the Act requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest. 2. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate (number 7859845) has been submitted with the development application and the relevant requirements incorporated in the proposal. The proposal is considered to satisfy the requirements of this policy. 3. The site is zoned R2 Low Density Residential under the provisions of Sutherland Shire Local Environmental Plan 2015 (LEP 2015). The proposed development of a dwelling house is a land use that is identified as being permissible with consent in the R2 zone. 4. Pursuant to clause 2.3 (2) of LEP 2015 the consent authority must have regard to the objectives of the zone when determining an application in respect of land within the zone. The objectives of the R2 zone are as follows: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To protect and enhance existing vegetation and other natural features and encourage appropriate bushland restoration particularly along ridgelines and in areas of high visual significance. • To allow the subdivision of land only if the size of the resulting lots retains natural features and allows a sufficient area for development. • To ensure the single dwelling character, landscaped character, neighbourhood character and streetscapes of the zone are maintained over time and not diminished by the cumulative impact of multi dwelling housing or seniors housing. 1. Part 4 of LEP 2015 contains principal development standards. Clause 4.4 Floor Space Ratio (FSR) prescribes a maximum FSR of 0.5:1 for the site, and at clause 4.5 a maximum building height of 8.5 m. A minimum landscape area standard (cl 6.14) of 35% applies to the site. It is agreed that the development complies with these development standards. 2. LEP 2015, at cl 6.16 provides specific standards in relation to urban design. The consideration of this clause is a mandatory precondition to the grant of consent. Relevant to these proceedings the clause states: (1) In deciding whether to grant development consent for any development, the consent authority must consider the following: (a) the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained, by the development, (b) the extent to which any buildings are designed and will be constructed to: (i) strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and (ii) contribute to the desired future character of the locality concerned, (c) the extent to which recognition has been given to the public domain in the design of the development and the extent to which that design will facilitate improvements to the public domain, (d) the extent to which the natural environment will be retained or enhanced by the development, (e) the extent to which the development will respond to the natural landform of the site of the development, (f) the extent to which the development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas, … 1. Specific urban design standards in relation to residential development are provided at cl 6.17 which states: In deciding whether to grant development consent for development for the purposes of residential accommodation the consent authority must consider the following: (a) the extent to which recognition has been given in the design of the development to the needs of the diverse and changing population of Sutherland Shire, (b) the extent to which any adverse impacts of the development on adjoining land and open space, in terms of overshadowing, overlooking, views, privacy and visual intrusion, will be minimised, (c) the extent to which the quality of the streetscape concerned will be improved by the development, (d) the extent to which there will be private open space of a sufficient area and dimensions to enable proposed and required activities, (e) the extent to which any adverse impacts of the development on adjoining land, in terms of size, bulk, height, scale and siting, will be minimised, (f) the extent to which the residential accommodation concerned integrates with a well-designed landscaped setting, (g) any opportunities for the provision of affordable housing. 1. The Court heard heritage evidence from Mr Jeffrey Mead, for the applicant, and Ms Amanda Esposito, for the Council. Both experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention as detailed in [3]. As a result of the conferencing process they prepared a joint expert report which was tendered as Exhibit 4. What weight should be given to the Councils Draft Policy/ DCP 2015? 1. It is a matter of dispute between the parties as to which DCP applies to the assessment of the application under s79C(1)(a) of the Act. Council has prepared, but not yet adopted, draft policy/DCP 2015. This policy is intended to implement LEP 2015 which was gazetted in June 2015. The applicant argues that draft policy/ DCP 2015 is not a validly made DCP, and that DCP 2006 remains in force as it has not been repealed by the Council. The Council argues that this policy should be given significant weight in the assessment of the application before the Court. The two DCP's provide different controls in relation to the setting of the setback required by the development. Relevantly the Act (s74C) mandates that only one DCP can apply to an individual parcel of land. Expert evidence 1. Ms Esposito's evidence is that DCP 2006 is not relevant to the application as since the making of Sutherland Shire LEP 2015, Council has adopted DCP 2015 as policy for the purposes of assessing any development application under LEP 2015 (Exhibit 4). She argues that draft policy/DCP 2015 should be given significant weight for the reason that it has been publically exhibited twice, adopted by Council as a policy and has been consistently applied to development applications lodged with Council since the gazettal of LEP 2015. 1. In submissions Council argued that the final resolution of Council in relation to draft policy/DCP 2015 (Exhibit 3), extracted below, demonstrates that significant weight should be given to the provisions of the policy/DCP 2015 by the Court as the matter has been finalised by Council and referred to the NSW Department of Environment and Planning for the plan to be made. 2. During the joint conferencing of the experts Mr Mead and Ms Eposito agreed that the introduction to DCP 2006 (extracted below) has the effect that it only applies to land covered by LEP 2006. Therefore DCP 2006 should only be used for land deferred from LEP 2015 or historic DA purposes. 1. In contrast in his evidence Mr Mead expresses the view that draft policy/DCP 2015 is not a matter for consideration of the Court under s79C of the Act for the following reasons (Exhibit 4): Whilst council may have adopted the amended draft DCP as a policy for the purposes of assessing development applications lodged under LEP 2015, the existing DCP has not been repealed and remains a matter for consideration under Section 79C whereas the Draft DCP is not (other than perhaps as a matter of public interest) 1. In submissions the applicant argued that draft policy/DCP 2015 does not apply for the following reasons: 1. It has not been appropriately adopted as a DCP, and DCP 2006 has not been repealed; 2. The council resolution referring the matter seeks to make further amendments to the document, meaning that the final form of the document (and its controls) are uncertain; 3. A significant number of public objections to the document were generated at the last exhibition, which should influence the weight the document is given, if it is considered under public interest (s79C(1)(e) of the Act). In addition this public interest consideration should be balanced by the fact that the application before the Court received no objections, and no members of the public addressed the Court; and 4. That s74C of the Act, Preparation of Development Control Plans, provides at (2) that only one development control plan made by the same relevant planning authority may apply in respect of the same land and that if this subsection is not complied with, all the development control plans concerned have no effect. 1. In their submissions both parties referenced Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 which, at [92] provides a framework for the consideration of the appropriate weight to be given to Council policies. These considerations are: ● the extent, if any, of research and public consultation undertaken when creating the policy; ● the time during which the policy has been in force and the extent of any review of its effectiveness; ● the extent to which the policy has been departed from in prior decisions; ● the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans; ● the compatibility of the policy with other policies adopted by a council or by any other relevant government agency; ● whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it. 1. The Council argued that these principles were supportive of the application of significant weight to draft policy/DCP 2015 given its extensive consultation, the consistency of its use since the gazettal of LEP 2015 and that overall the draft policy/DCP 2015 is not a significant departure from the Councils previous decisions. 2. In the alternative, the applicant argues that applying Stockland Development Pty Ltd v Manly Council the draft policy/DCP 2015 should be given little weight for the following reasons: 1. The public consultation on the policy/DCP 2015 is not complete, and Council has yet to formally consider its response to the most recent exhibition; 2. Draft policy/DCP 2015 has only been utilised by Council for a relatively short period, since the gazettal of LEP 2015 in June 2015; 3. The current application demonstrates that there is inconsistency between LEP 2015 and the policy/DCP 2015. The proposal complies with the LEP building envelope controls: height; FSR; landscape area. In the absence of a statement on desired future character, these controls, along with zoning are an appropriate cue to future built form. These controls generate a form that is of greater bulk and scale than the existing housing stock. However in the draft policy/DCP 2015 the setback controls require 7.5m or an averaging provision of the adjoining neighbours, which seeks to maintain the existing character; and 4. The resolution of Council, and the 'track changes' that appear in the current version of draft policy/DCP 2015 before the Court indicate uncertainty in relation to the documents final form. Relevant to this appeal the resolution indicates the Council is seeking to confine two storey development in the R2 low density zone in the front 60% of the allotment depth, which arguably may see an amendment to setback controls. Findings 1. I accept the view of the applicant that a proper reading of s74C of the Act is that only one DCP can apply to the site. There is no evidence before the Court that the draft policy/DCP 2015 has been adopted by the Council in accordance with the requirements of the Act and the Environmental Planning and Assessment Regulation 2000 (the Regulation). Part 3 Division 3, cl 21 of the Regulation states: (1) After considering any submissions about the draft development control plan that have been duly made, the council: (a) may approve the plan in the form in which it was publicly exhibited, or (b) may approve the plan with such alterations as the council thinks fit, or (c) may decide not to proceed with the plan. (2) The council must give public notice of its decision in a local newspaper within 28 days after the decision is made. (3) Notice of a decision not to proceed with a development control plan must include the council's reasons for the decision. (4) A development control plan comes into effect on the date that public notice of its approval is given in a local newspaper, or on a later date specified in the notice. [emphasis added] 1. There is no evidence before the Court that these requirements have been met and that draft policy/DCP 2015 has not come into effect as an environmental planning instrument. Given this it is not a matter for consideration as a Development Control Plan under s79C(1)(a)(iii). 2. The Regulation provides for the repeal of DCP's at Division 4, cl 22. It provides that: (1) A council may amend a development control plan by a subsequent development control plan. (2) A council may repeal a development control plan: (a) by a subsequent development control plan, or (b) by public notice in a local newspaper of its decision to repeal the plan. 1. In the proceedings it was uncontested between the parties that DCP 2006 has not been formally repealed. 2. During the joint conferencing of the experts Mr Mead and Ms Eposito [at 21] agreed that the introductory section to DCP 2006 has the effect that it only applies to land covered by LEP 2006. It is their evidence that DCP 2006 does not apply to land the subject of LEP 2015. 3. The subject site is not a deferred matter under LEP 2015. Pursuant to cl 1.8 Repeal of planning instruments of the LEP, extracted below, LEP 2006 has been repealed. (1) All local environmental plans and deemed environmental planning instruments applying only to the land to which this Plan applies are repealed. (2) All local environmental plans and deemed environmental planning instruments applying to the land to which this Plan applies and to other land cease to apply to the land to which this Plan applies. 1. As a result of the above conclusions there is no current DCP for land that is the subject of LEP 2015. 2. In relation to the weight given to the draft policy/DCP 2015, applying Stockland Development Pty Ltd v Manly Council I prefer the submission of the applicant and concur with the assessment provided at [25] against the matters outlined in this case for the reasons that: 1. he Councils consideration of the draft policy/DCP 2015, and in particular the results of the recent public exhibition are not finalised; 2. The resolution to refer the matter to the NSW Department of Environment and Planning includes a reasonable uncertainty as to the final outcome in relation to the controls that will govern siting of buildings. In particular in R2 low density zone, the request to include a further amendment in the final document to require two storey dwellings to be contained within the front 60% of the allotment may influence the final form of the setback controls. 1. However I have given consideration to the evidence of the Council is that draft policy/DCP 2015 has been applied consistently since the gazettal of LEP 2015 to assess development applications. 2. For the above reasons I find that the policy may be used to inform process of assessing the likely impacts of development under s79C(b) and the suitability of the site under s79C(c) but not given significant weight in the determination of the application. Is front setback proposed appropriate? 1. On the basis of the findings at [34] the relevant controls in relation to the front setback are only those provided in LEP 2015, of which there are none specific to the determination of front setbacks. 2. However it is necessary to consider the R2 zone objectives in LEP 2015, relevantly: ● To provide for the housing needs of the community within a low density residential environment. .. ● To protect and enhance existing vegetation and other natural features and encourage appropriate bushland restoration particularly along ridgelines and in areas of high visual significance. … 1. In addition to the zone objectives cl 6.16 and 6.17 of LEP are both relevant to the consideration of urban design, streetscape and ultimately the appropriate setback. Relevantly at (b) 6.16 requires the consent authority as part of the assessment of an application to consider the extent to which any buildings are designed and will be constructed to: strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes; and contribute to the desired future character of the locality concerned, 2. Relevant to this appeal Clause 6.17 at (b) & (e) requires consideration of the extent to which any adverse impacts of the development on adjoining land and open space, in terms of overshadowing, overlooking, views, privacy and visual intrusion from size, bulk, height, scale and siting, will be minimised. The extent to which the residential accommodation concerned integrates with a well-designed landscaped setting and the extent to which the quality of the streetscape concerned will be improved by the development are considerations at (c) and (f). 3. There was evidence from both experts as to the compliance or otherwise of the setback proposed with the controls in DCP 2006 and draft policy/DCP 2015. Given the findings at [34] I have considered the objectives of the setback controls in draft policy/DCP 2015 to inform the process of assessment. They are as follows: 1. Establish the street proportions. 2. Encourage articulated building forms and ensure garages do not dominate the streetscape. 3. Enhance the setting for the building by providing opportunities for landscaping and infiltration of stormwater and protecting the landscape qualities and character of the locality. 4. Promote residential amenity for residents and neighbours including access to natural light and ventilation and both visual and acoustic privacy. 5. Provide adequate access for emergency services within the side setback in bush fire prone areas. 6. Alleviate the visual intrusion of building bulk on neighbouring properties. 7. Minimise view loss from adjoining or nearby properties. 1. The numerical control for front setback is 7.5m or the established street setback which is defined as the average distance of the setbacks of the nearest 2 dwelling houses having the same primary road boundary and located within 40m of the lot on which the dwelling house is erected. Within this setback area a development is allowed an 'articulation zone' which is allows building elements to encroach 1.5m into the front setback for a maximum of one third of the area of the façade. 2. The draft policy/DCP 2015 provides for variation where: a. the setback proposed does not have adverse consequences for the landscape quality of the streetscape, and b. the proposed variation does not have adverse impacts on adjacent properties in terms of solar access, visual intrusion, view loss or privacy. 1. The proposal before the Court, subject to the imposition of a condition offered by the Applicant (Exhibit C) has the following proposed setbacks to Second Avenue: 1. Blade Feature: 4.70m 2. Bed 4/ Study: 5.15m 3. Garage: 6.5m 1. These correspond to the articulating elements of the front elevation as shown below: Expert evidence 1. Ms Esposito's evidence is that the street setback as proposed by the applicant [40] will result in significant impacts on the streetscape and amenity of the neighbouring properties for the following reasons: 1. The setback proposed is neither the established street setback [refer 41] or 7.5m; 2. It is not considered to appropriately integrate into the existing built form of Second Avenue; and 3. It will set an undesirable precedent by re-establishing an inappropriate setback which is in strong contrast with the desired future character of the area; (Exhibit 4) 4. It is visually intrusive from the two immediately adjacent dwellings; 5. By reducing the landscaped setting to the front of the site it will result in inappropriate spatial proportions in the streetscape; and 6. The proposed setback is not compatible with the street setbacks of the nearest two dwellings and does not respect the minimum dwelling setbacks on the southern side of the street. 1. Ms Esposito also presented in her evidence a plan analysing the existing street setbacks on the southern side of Second Avenue. Her conclusion from this analysis is that the average minimum setback measured to the closest extent of the 17 dwellings on the southern side of the street is calculated to be 7.07m. (Exhibit 4) 2. It was her evidence that only analysing the southern side of the Second Avenue was the appropriate approach as: 1. this is the built form context to which the proposed setback directly relates, particularly in regards to the spatial quality of the street, including whether there is an acceptable continuity of the building facades, when looking down the street; and 2. The land falls away on the northern side of the street which creates a notable difference in context and has the effect of making the southern side of the street more visually prominent. (Exhibit 4) 1. Exhibit 4 details the setbacks of the southern properties in immediate proximity to the site as: 1. Number 2 (corner block): 4.3m 2. Number 4: 10.1m 3. (Subject Site) Number 6: currently: 12.1 4. Number 8: 7.4m 5. Number 10: 4.2m 6. Number 12: 5m 7. Number 14: 6.45m No similar analysis was conducted for the properties on the northern side of Second Avenue. 1. Following this analysis and assessment Ms Esposito concludes that the proposed setback is not in keeping with the predominant existing character or the desired future character. In establishing the desired future character she relies on the streetscape and built form objectives in draft policy/DCP 2015. It is for these reasons she proposes a condition requiring the building setbacks to Second Avenue for the proposal to be increased to: 1. Blade Feature: 6m 2. Bed 4/ Study: 6.45m 3. Garage: 7.8m 1. In submissions the Council also argued that the increased setback, proposed by the existing deferred commencement condition, will retain adequate rear open space and that there is no valid planning reason for the development to not be compliant with the draft policy/DCP 2015. 2. The Council expressed concerned in relation to the future effect of an approval of the proposal at the applicants requested setback. This was on the basis of two factors: 1. The creation of a precedent; and 2. The impact of the reduced setback on the calculation of the established street setback for the two adjoining properties. 1. During the site visit the proposed setbacks for the development sought by both the applicant and the Council were marked on site. This allowed the Court to view the setback alignment as well as hear evidence from the planners. Ms Esposito's evidence was that at the reduced setback proposed by the applicant the development had the impact of being visually obtrusive to the two adjoining neighbours, especially as they entered their homes. 2. Mr Meads evidence was that given that the draft policy/DCP 2015 had not been formally adopted by the Council the acceptable setback must be arrived at through analysis of the existing and likely built form context in the visual catchment of the surrounding streetscape. (Exhibit 4). It was his evidence on site that an appropriate visual catchment is approximately 6-7 houses on both sides of Second Avenue, as this is what is visible to a person traversing the street. 3. In relation to the existing dwellings setback it was Mr Meads view that the current home, at a setback of 12.1m to the street is anomalous and that the proposal seeks to be more compatible with the setbacks of adjoining homes. 4. As part of the redevelopment the proposal provides for increased landscape area in the front setback. This is consistent with Councils streetscape objectives. Mr Mead states that the applicant agrees with the proposed condition 12 and 13 (Exhibit 5) which require: 1. the planting of two indigenous canopy trees with a mature height of 5m within 3m of the front boundary; 2. the planting of one street tree; and 3. the removal of the existing concrete area in the front yard of the property. 1. Mr Mead notes that no amenity concerns with the reduced setback are raised with the exception of a concern that the built form at the proposed setback will be visually obtrusive for the adjoining residents. He disagrees with this analysis on the basis that the proposal is compatible with the pattern of reduced setbacks in the locality and that the outlook from the adjoining dwellings and their porch in particular, is to the street rather than to the subject site. In his view any oblique view would not be obtrusive or offensive. 2. In submissions the applicant requested the planning experts to apply the proposed controls in draft policy/DCP 2015 to examine any impact of the proposed setback on the calculation of the established street setback for the two adjoining properties. The exercise was also completed for the adjoining properties if the proposal was required to be setback the 7.5m requested by the Council. The results indicate that if the current site is redeveloped at a setback of 6m, and the draft policy/DCP 2015 is applied the property adjoining, 8 and 4 Second Avenue, would have a compliant setback of 5.1 and 5.15m respectively. Alternatively, if the current site is redeveloped at a setback of 7.5m (as sought by the Council), and the draft policy/DCP 2015 is applied the property adjoining, 8 and 4 Second Avenue, would have a setback of 5.85 and 5.9m respectively. applying the established street setback control in the current version, noting that both proposals would be subject to specific merit assessment at the time. Findings 1. On balance when considering if the proposed setback is appropriate in the streetscape, and its impact on the adjoining neighbours I prefer the evidence of Mr Mead and concur with his assessment. I have formed this view for the following reasons: 1. Based on the site view I find the development will achieve an articulated building form that is compatible with the existing street proportions. The analysis at [58] indicates that whilst the precinct may be undergoing change the proposed setback will remain congruent with the adjoining sites if and when they develop. 2. The development allows for the enhancement of the streetscape environment by the inclusion of 30% site area as landscaping, and the provision of three canopy trees in the front setback and verge. This is consistent with the R2 zone objectives in LEP 2015, and the requirements of cl 6.16, and is a positive urban design outcome. 3. On the basis of the evidence the site view, and after consideration of cl 6.17 in LEP 2015, I am satisfied that any intrusive impact to the adjoining neighbour is minor, and having regard to the evidence, I am satisfied that the physical impacts of the development are satisfactory. 1. I have considered Councils submission that approval of the reduced setback will set an undesirable precedent. Section 79C (3A) (c) of the Act states that if a DCP contains a provision that relates to the development, the consent authority may consider those provisions only in connection with the assessment of that development application (emphasis added). Given this provision the role of precedent in the application of development controls is contained to any consideration applicable at 79C(1)(c) and potentially in the case of setbacks, a consideration of streetscape context and character through 79C(1)(b). The analysis at [58] indicates that if the controls in the draft policy/DCP 2015 are adopted as currently drafted the potential impact of the precedent to the averaging exercised utilised to arrive at the established street setback is minor. 2. In completing the assessment of the application I have considered clause 6.16 and 6.17 of LEP 2015 and find that the proposal is consistent with these objectives. 3. For the above reasons I find that the front setback proposed [44] is appropriate. Is the floor level of the ground floor, front porch and steps acceptable and appropriate in the streetscape? Expert evidence 1. Ms Esposito's evidence is that the elevated habitable ground floor level of the dwelling exacerbates the visual impacts of the building in the streetscape due to its proximity to the street. In addition it is her evidence that the proposals alteration of the site is inconsistent with the character of the streetscape and the future character of the area. 2. Ms Esposito also argued that any fill placed between the dwelling and the eastern side allotment boundary has the potential to result in a privacy impact due to overlooking from an elevated position. 3. It is Mr Mead's evidence that such front entry porches are not uncharacteristic of homes on the southern side of Second Avenue, and are a positive contribution to streetscape. In addition they provide the potential for casual surveillance of the street. It is his evidence that the dwelling complies with the LEP height control, and that setting of the floor level at the level of the yard at the rear provides an at grade transition from the house to the private open space increasing its functionality. 4. The applicant in their submissions argued that a step in the building floor plate, to remove the need for a front porch, would impact the useability and practicality of the home, and that an increase in cut and fill was not desirable in achieving a natural landform as required by the Councils development controls/ policy. Findings 1. LEP 2015 at clause 6.16 (e) requires developments to respond to the natural landform of the site. With the benefit of the site visit, I am satisfied that the design of the building, in particular the inclusion of a porch is compatible with the character of the street and responds to the landform of the site. On the basis of the evidence I am satisfied that the alternative of either an increase in cut or a stepping in the floor plan of the site would provide a less appropriate outcome for the development. 2. In relation to the potential for the development to have a privacy impact to the adjoining property to the east, the site plan included in Exhibit B, and the Northern elevation contain insufficient detail to confirm the exact finished level in the vicinity of the eastern boundary. However fill in this area of 470mm is indicated in the elevation, and would reduce the effectiveness of the proposed 1.6m side privacy screen that is proposed to reduce any privacy impacts between the properties. 3. Section 80 of the Act provides that the consent authority, if granting consent, can do so unconditionally or subject to conditions. Conditions may be imposed, of relevance to this proposal, if they relate to a matter in 79C(1) or modifies details of the development the subject of the development application. To provide certainty in relation to any privacy impacts to the eastern side allotment boundary I find that it is appropriate to require additional screen planting to the side facing windows of the family room which will front the eastern boundary. This can be achieved by adding the following to proposed condition 4, in addition to the privacy screen already conditioned for the laundry landing (Exhibit 5) : 4. (ii) Screen planting of suitable hedging plants to a mature height of 2.5m are to be provided along the eastern side allotment boundary for the length of the family room. Conclusion 1. On the evidence before me and after considering the relevant matters under s 79C(1) of the Act, the amended plans, the expert reports, the proposed conditions of consent, I am satisfied that it is lawful and appropriate to grant the consent, having regard to the whole of the circumstances. 2. The orders of the Court are: 1. The appeal is upheld; 2. Consent is granted to Development Application No. DA/16/0273 for the demolition of an existing dwelling and the construction of a new two storey brick veneer dwelling at Lot 225, DP 17295, 6 Second Avenue Jannali, subject to conditions in Annexure A and the following additional operational conditions: Condition 1 (a) Design Changes Required – Street setback The following design changes must be implemented to minimise the streetscape and amenity impacts of the development: * The dwelling must be repositioned on the site so that the street setback is: 4.70m minimum measured to the vertical blade feature at the front of the dwelling; 5.15m to the upper floor Bed 4/study; and 6.5m to the garage. * In repositioning the dwelling on the site, the cut and fill within the building footprint and the remainder of the site shall remain substantially the same as detailed in the plans and the building height shall not exceed 8.5m. Condition 4. (ii) Screen planting of suitable hedging plants to a mature height of 2.5m are to be provided along the eastern side allotment boundary for the length of the family room. 1. The exhibits are returned with the exception of 1, 5, B, and the Class 1 Application dated 6 September 2016. ……………. D M Dickson Commissioner of the Court 267534.16 Dickson (C) (218 KB, pdf) 267534.16 - Plans (4.16 MB, pdf) 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: 23 December 2016