Land and Environment Court New South Wales Medium Neutral Citation: Jakovljevic v City of Ryde Council [2018] NSWLEC 1257 Hearing dates: 24 May 2018 Date of orders: 01 June 2018 Decision date: 01 June 2018 Jurisdiction: Class 1 Before: Morris AC Decision: The orders of the Court are: (1) The appeal is dismissed. (2) Development application DA-LDA2017/0053 for demolition of an existing dwelling house and construction of a new multi dwelling housing development comprising four dwellings at 160 Princes Street, Putney is refused consent. (3) The exhibits, other than exhibits A and 2, are returned. Catchwords: DEVELOPMENT APPLICATION: multi dwelling housing, Non-compliance with development standard for site width, slope Legislation Cited: Environmental Planning and Assessment Act 1979 Ryde Local Environmental Plan 2014 Ryde Development Control Plan 2014 Cases Cited: Faseas v Coffs Harbour City Council [2018] NSWLEC 1249 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009 Golden Max Pty Limited v Hurstville City Council [2015] NSWLEC 1234 Wehbe v Pittwater Council [2007] NSWLEC 827 Category: Principal judgment Parties: Christopher Sasha Jakovljevic (Applicant) City of Ryde Council (Respondent) Representation: Counsel: A Galasso (Applicant) G Farland (Respondent) Solicitors: Project Lawyers (Applicant) Council of the City of Ryde (Respondent) File Number(s): 2017/245179 Publication restriction: No Judgment 1. Mr Jakovljevic lodged Development Application DA-LDA2017/0053 with Ryde City Council on 3 July 2017 seeking consent for demolition of an existing dwelling house and construction of a new multi dwelling housing development comprising four dwellings at 160 Princes Street, Putney. 2. The council refused consent on 3 July 2017 and Mr Jakovljevic is appealing that determination pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979. 3. The contentions in the case relate to the failure to comply with the development standard for site frontage and non-compliance with various controls contained within the council's planning documents. 4. I had presided over a conciliation conference on 12 January 2018 however no agreement was reached and the conference terminated. A site view was held prior to the conference and I heard evidence from three persons in regard to the plans filed with the application. 5. As a result of discussions during the conciliation phase the applicant prepared amended plans and was granted leave by the Court to rely on those plans. 6. The parties agree that the evidence and discussions held during the conciliation conference be evidence in this hearing. The site and its context 1. The site is a rectangular lot located on the eastern side of Princes Street between Morrison and Phillip Roads. It has a frontage of 18.3m, depth of 70.9m/71.335m and site area of 1,301m2. There is a cross-fall of approximately 5.74m from RL44.83 in the rear north-eastern corner to RL 39.09 in the front south-western corner adjacent to Princes Street. 2. The topography of the area is steeply sloping descending from a ridgeline on Morrison Road down to the Parramatta River. The fall towards the river is steepest at the subject site and becomes more subdued closer to the river. 3. A brick dwelling house with a tiled roof is centrally located on the site and would be demolished to provide for redevelopment. There is a large tree towards the rear of the site which will be retained. A tree at the front is also to be retained and the applicant seeks variation to the width of the driveway that would service the site to allow for its retention. 4. Two detached dwelling houses are located to the north of the site in a battle-axe subdivision, one dwelling behind the other with a common driveway adjacent to the site's northern boundary. A single storey villa home development containing four dwellings is located to the immediate south of the site. 5. Development in the local area is predominantly characterised by low density residential accommodation in the form of dwelling houses. During the site view it was agreed that the older dwelling houses are being rebuilt and the more recent dwellings are much larger in terms of footprint and building height. There are very few single storey dwellings due to the slope of the land which suits the construction of garages under the main dwelling. There is a majority of two storey dwellings with some that are three storeys close to the site with one four storey dwelling house to the east. The proposal 1. The plans now before the Court propose the construction of a multi dwelling housing development containing four dwellings, two 2 bedroom dwellings with single basement garages and two 3 bedroom dwellings with double basement garages. The proposed front dwelling, Dwelling 1, has been designed to address Princes Street and is accessed by a boardwalk at the northern end of the site in response to the slope of the land. Internal access to this dwelling is also available from the garage. The rear dwellings are only accessed off the driveway with a stair adjacent to each allocated garage. A visitor parking space is provided at the eastern end of the driveway and a covered turning area between the garages for dwellings 2 and 3. 2. All dwellings have a split level floor plan responding to the slope of the land and have their private open space to the north. The rear unit has a larger area of private open space as its allocation includes the rear setback area. Each dwelling has a deck attached to the living area with portions of those decks raised above ground level. 3. Vehicular access to all dwellings is from a driveway that runs along the southern boundary of the site in the location of the existing driveway that currently services the site. Each garage would be on the same level as the driveway with the rear portion cut into the site in response to the cross-fall. Excavation up to 2.55m is required to accommodate the proposed driveway, with the deepest excavation occurring towards the rear of the proposed turning bay and also where the visitor parking space is located adjacent ot dwelling 4. 4. Excavation within the proposed building footprint ranges between 500mm at the front of the site to around 3.8m to the rear. The most significant excavation on the is concentrated to the basement car parking garages. 5. Stormwater drainage will be collected along the northern boundary and diverted around the site with an onsite detention tank and separate rainwater tank located beneath the proposed driveway. The discharge is proposed to be piped to an existing surface inlet pit within Princes Road. The planning controls 1. The site is zoned R2 Low Density Residential under the provisions of Ryde Local Environmental Plan 2014 (LEP). The objectives of the R2 zone are: * 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 provide for a variety of housing types. 1. Part 4 of the LEP contains Principal Development Standards with clauses 4.1B - Minimum lot sizes for dual occupancies and multi dwelling housing; 4.3 – Height of Buildings; 4.3A Exceptions to height of buildings; 4.4 – Floor Space Ratio (FSR) and 4.5A Density controls for Zone R2 Low Density Residential relevant to the application. 2. Clause 4.3 provides for a maximum building height of 9.5m (subject to the terms of clause4.3(2) which states: Despite clause 4.3, the maximum height of a dual occupancy (attached) and a multi dwelling housing on land in Zone R2 Low Density Residential is 5 metres for any dwelling that does not have a road frontage. 1. It is common ground that this standard is met. 2. Clause 4.4 provides for a maximum FSR of 0.5:1. It is agreed that the FSR of the proposal is 0.4:1 and therefore compliant with this development standard. Similarly, it is agreed that the development standards for height are met. 3. Clause 4.1B is in the following form: 4.1B Minimum lot sizes for dual occupancies and multi dwelling housing (1) The objective of this clause is to achieve planned residential density in certain zones. (2) Development consent may be granted for development on a lot in Zone R2 Low Density Residential for a purpose shown in Column 1 of the table to this clause if: (a) the area of the lot is equal to or greater than the area specified for that purpose and shown opposite in Column 2 of the table, and (b) the road frontage of the lot is equal to or greater than 20 metres. Column 1 Column 2 Dual occupancy (attached) 580 square metres Multi dwelling housing 900 square metres 1. The effect of that clause is to require a minimum lot size for multi dwelling housing of 900 square metres and a minimum road frontage of 20m. The proposal has a site area of 1,301 square metres so complies with the lot size however with a frontage of 18.3m does not satisfy the minimum road frontage. 2. Ryde Development Control Plan 2014 (DCP) applies to the application with Part 3.4 Multi dwelling housing (for Low Density Residential Zone) of particular relevance and consideration. 3. Clause 1.4 Assessment of Multi dwelling housing developments informs how applications are assessed and are measured against the Guiding Principles and Objectives of the Part. 4. The guiding principles of this Part are: * Providing a medium density housing form within the City of Ryde which is compatible and sympathetic with conventional detached dwelling-houses while maintaining the existing character of residential neighbourhoods; * Spreading the increase in population densities over all residential areas within the City rather than concentrating such increases in any one area; * Providing for the changing housing needs of a growing proportion of existing residents; * Providing the best possible environment for a variety of household groups with particular emphasis on couples, older persons and persons with disabilities; * Preserving and enhancing the existing residential amenity of the City; * Ensuring no adverse environmental impacts such as loss of remnant vegetation and other significant vegetation or adverse impacts on heritage items or conservation areas occurs; * Ensuring change in any area is gradual and that change is distributed across the City. 1. The objectives of the Part are: 1. to ensure Multi dwelling housing developments complement existing development and streetscape; 2. to encourage dispersal of Multi dwelling housing developments within neighbourhoods throughout the City of Ryde; 3. to require Multi dwelling housing developments be designed to the highest possible aesthetic standard; 4. to ensure Multi dwelling housing developments meet the needs of all households including older persons; 5. to provide for a mix of housing types throughout the City of Ryde; 6. to ensure that Multi dwelling housing designs promote security and safety of residents; 7. to ensure that land used for Multi dwelling housing development has adequate provision or daylight, privacy, landscaping and car parking; 8. to ensure the amenity of occupants of adjoining land is not adversely affected by any Multi dwelling housing development; 9. to require the scale of any Multi dwelling housing development be related to the character of the area; 10. to provide for the retention of heritage significant buildings and those identified as contributing to the character of Ryde; and 11. to ensure that Multi dwelling housing developments occur in suitable areas only, that is areas where the development meets the needs of all residents, does not have adverse environmental impact or an adverse impact on the character of an area. 1. Part 2.0 Site analysis, Location, Number and Type of dwellings addresses a range of matters relevant to the case. In terms of minimum allotment size, the objective of the controls is to ensure that Multi dwelling housing development is capable of meeting all the requirements of the DCP and provide adequate visual and acoustic privacy for the occupants of the Multi dwelling housing development and nearby residents. 2. The DCP includes provisions regarding Non Preferred Locations with the objectives stated to be: 1. To allow Multi dwelling housing developments only in suitable locations, that is: a. Locations where development meets the needs of all residents, and b. Locations where development does not adversely impact on traffic, stormwater, the environment or the character of an area. 1. The site is not included in the map to Schedule 2 of the plan however it would meet one of the criteria that satisfies inclusion, that is, it is land where the slope is greater than that described in section 3.1 of the DCP and the reasons for inclusion are said to be adverse impacts on privacy, access and overland stormwater flow. Subclause 3.1 to Section 3.0 – Site Planning deals with Slope of Site and have the following objectives: 1. To ensure that a Multi dwelling housing development is compatible and sympathetic with surrounding development in its presentation to the street. 2. To prevent adverse impacts on the privacy of other properties. 3. To ensure that the following requirements are achieved: i. Improved streetscape ii. Better accessibility iii. Steps minimised iv. Reduce impact on adjoining properties from stormwater and overlooking. 1. The controls are: a. Dwellings must have presentation to the street. The front entrance of at least one dwelling must be clearly seen from the street. b. Sites with a down slope of more than 1:6 will not be acceptable (refer Figure 3.4.03). c. Sites that slope up from the street with a slope of more that 1:6 will not be acceptable. d. Sites with a cross fall of more than 1:14 will not be acceptable. Sites which have a cross slope may not be suitable for Multi dwelling housing as dwellings will be higher than adjoining properties and lead to adverse impacts on the privacy of other properties (See Schedule 4 – Designing For A Slope). 1. Schedule 4 includes diagrams and the following comments: This Plan aims to improve the quality of design for sloping sites. The following diagrams illustrate the challenges that must be overcome when designing for sloping sites. These challenges include: • Privacy for adjoining properties • Extent to cut and fill • Location of courtyards • Construction of retaining walls Development applications should be accompanied by cross sectional drawings. 1. Clause 3.2 Altering the Levels of the Site has the following objectives and controls: Objectives 1.To ensure a balance between built and unbuilt areas, and to allow for sufficient landscaping and pervious areas within the site. Controls a. Fill should not be brought onto the site; b. The levels of the site should not be altered by more than 300 mm. This relates to all areas of the site not covered by the building floor envelope e.g. driveways, courtyards, setback areas, landscaped areas; c. No basement garages are permitted, steps are to be minimised and there should be minimal retaining walls; and d. Private open space is required to be provided generally at natural ground level. 1. Density control are contained in clause 2.5 with the objectives: 1. To create a balanced relationship between the site area, dwelling size and residential population living on the site. 2. To ensure the highest aesthetic Multi dwelling housing developments possible. 1. Other parts relevant to the case are 3.3 Storey and Height; 3.9 Overshadowing and Access to Sunlight; 3.10 Visual and Acoustic Privacy; 3.11 Accessibility and; 4.0 Building Form. The issues 1. The contentions in the case are that the site is not suitable for multi dwelling housing; the design of the development is an inappropriate design response to the site's constraints and the character of the local area and the development is not in the public interest. 2. The contention relating to impacts on significant vegetation has been resolved through the retention of Tree 8, a large Eucalyptus tereticornis which is to be retained at the rear of the site. The final contention, insufficient information regarding fencing was the subject of discussion during the hearing and a matter the applicant says can be determined by the Court on the basis of evidence provided. The 4.6 objection 1. Mr Glendinning, for the applicant, prepared a written request pursuant to the provisions of clause 4.6(3) of the LEP (Exhibit F) in relation to non-compliance with the development standard for site frontage. For consent to be granted the Court must be satisfied that the request adequately demonstrates the matters in clause 4.6 have been satisfactorily addressed and the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. 2. Clause 4.6 of the LEP is in the following terms: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. 1. The objective of the development standard for minimum lot sizes for dual occupancies and multi dwelling housing is to achieve planned residential density in certain zones and the objectives of the R2 zone are at [17]. 2. The written request says there are four preconditions to be satisfied, those being firstly, consistency with zone objectives, secondly, consistency with the objectives of the standard, thirdly, consideration of the written request to demonstrate that compliance is unreasonable or unnecessary in the circumstances of the case and finally that the request demonstrates that there are sufficient environmental grounds to justify contravening the development standard of the Court with a finding that the matters noted have been adequately addressed. 3. Mr Glendinning's request makes the following comments in relation to consistency with zone objectives: The development proposal provides for the construction of four (4) dwellings in accordance with Council's multi-dwelling housing policy which is articulated in part 3.4 of the Ryde DCP. The proposal is considered to meet the objectives of the R2 zone for the following reasons: • The proposal will provide additional housing stock and housing choice in an excellent location. • The development, except for its departure, generally satisfies the Council's Multi-Dwelling Housing Policy. • The departure of the development standard is minor and will enable the development to be undertaken and will be complimentary to the prevailing streetscape. 1. Mr Glendinning's second consideration is consistency with the objectives of the standard and he says: In this case, the lot has an area of 1301m2 and satisfies the lot standard, however it has a frontage of 18.3m and does not comply with the road frontage requirement of 20m. The proposal is seeking consent to provide a Multi dwelling housing development that is consistent with the objectives of the Multi dwelling Housing policy as set out in Part 3.4 of the Ryde DCP. The objectives provide in part: To ensure Multi dwelling housing developments meets the needs of all households including older persons. • To provide for a mix of housing types throughout the City of Ryde: • To ensure Multi dwelling housing designs promote security and safety of residents; • To ensure that land used for Multi dwelling housing development has adequate provision or daylight, privacy, landscaping and carparking; • To ensure the amenity of occupants of adjoining land is not adversely affected by any Multi dwelling housing development; • To require the scale of any Multi dwelling housing development be related to the area; • To provide for the retention of heritage significant buildings and those identified as contributing to the character of Ryde; and • To ensure that Multi dwelling housing developments occur in suitable areas only, that is areas where the development meets the needs of all residents, does not have adverse environmental impact or an adverse impact on the character of the area. It is considered that notwithstanding non-compliance with the road frontage standard, the proposed development will deliver the outcomes as described in the above objectives. For the above reasons, I am of the view that the variation requested and the resultant development is consistent with the objectives of the development standard. 1. Thirdly, Mr Glendinning states that "It is unreasonable and unnecessary to require strict compliance with the development standard given the resultant development will provide a good development outcome in terms of addition housing choice. For the above reasons, it would therefore be unreasonable and unnecessary to require strict compliance with the standard". 2. Finally, with regard to his fourth test, he says that the primary issue is whether or not there are sufficient environmental planning grounds particular to the site to allow the variation to the minimum road frontage development standard. He considers the existing parcel of land is relatively large and has an area of 1301mw and is of sufficient area and dimension to accommodate multi dwelling housing in compliance with council's code and therefore sufficient reason to justify a variation of the development standard for minimum road frontage. 3. Mr Glendinning's written request then revisits some of the issues in reference to Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009. He again considers whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and states: In the circumstances of this case the resultant housing development will permit the construction of dwelling houses on each separate allotment in compliance with Council's development controls. This outcome is demonstrated on the submitted architectural plans and 3D computer model. This demonstrates that compliance with these standards in unnecessary or unreasonable for the purpose of the construction of a multi dwelling housing development. 1. Environmental planning grounds are also reconsidered with the following comments made: The proposed buildings have been designed to ensure that adequate amenity to privacy and solar access is provided to each dwelling; and • That the buildings have been designed having regard to the slope of its land; and • That the proposal will include exposure to water views; and • That the extent of the non-compliance by 1.7m is relatively minor and does not hinder the attainment of good development outcomes on the subject site. 1. He states these are environmental planning grounds which are the circumstance which are particular to the development that merit a variation to the development standard. The interaction of the site slope and the desired architectural outcome combine to produce a meritorious development despite the numerical variation to the minimum road frontage standard. 2. In relation to the public interest Mr Glendinning again considers this issue and says that granting consent to the proposed development will enable the construction of contemporary dwellings on what is considered to be a large allotment and which will satisfy the Council's planning and zone objectives by permitting reasonably sized dwellings with good residential access. The planning outcomes will be in the public interest in permitting the orderly and economic use of the land, thus satisfying an objective of the EPA Act. 3. In a third consideration, Mr Glendinning considers the guidance of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 as follows: 1 the objectives of the standard are achieved notwithstanding non-compliance with the standard: Comment: Yes. Refer to comments under "Justification of Proposed Variance' above which discusses the achievement of the objectives of the standard. 2 the underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary: Comment: it is considered that the purpose of the standard is relevant but the purpose is satisfied. 3 the underlying object or purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable; Comment: compliance does not defeat the underlying object of the standard Development; however, compliance would prevent approval of an otherwise supportable development. Furthermore, it is noted that development standards are not intended to be applied in an absolute manner; which is evidence by clause 4.6(1)(a) and (b) 4 the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable; 5 the zoning of the particular land is unreasonable or inappropriate so that a development standard appropriate for that zoning is also unreasonable and unnecessary as it applies to the land and compliance with the standard would be unreasonable or unnecessary. That is, the particular parcel of land should not have been included in the particular zone. Comment: the development standard is applicable to land appropriate to the zone. 1. No comment was made in relation to the fourth test. He concludes "the proposal produces an appropriate development outcome and the variation to the road frontage control is considered acceptable and that it has been demonstrated that the site can support the proposal for Multi dwelling housing development. As there is no material impact on adjoining properties or the public domain arising from the variation to the minimum road frontage development standard and the objective of the control are satisfied, it is considered that strict compliance with the development standard is unreasonable and unnecessary in the circumstances of the case". The evidence 1. Expert evidence was heard from Mr Glendinning for the applicant and Mr Tesoriero for the council. Their Joint Report, Exhibit 3 details their consideration of the contentions in the case. 2. The experts agree that the cross fall of the site is 1 in 6 so the site would fall into the criteria described in the DCP controls as a "non- preferred" site. 3. There is no agreement as to whether the development is appropriate for the site, Mr Glendinning says it is an acceptable design solution and the development standards for building height, FSR and density controls for R2 Low Density Residential are met. Mr Tesoriero disagrees and says the design is inappropriate, appears as a long, bulky building when viewed from the street and not the form of development anticipated by the LEP or DCP. He is particularly critical of the extent of cut, the number of storeys in each dwelling and says the building is out of character with the locality on a very prominent site due to its steep slope, uncharacteristic of a building in a low density residential environment. 4. The reasons for their polarised views are expressed in their joint report and it does not add anything to my assessment of the merits of the application to repeat those views in detail. 5. In response to cross examination, the experts addressed the objectives and controls contained in the DCP. 6. Mr Tesoriero considers the development standard for lot width establishes an exclusionary provision that would disperse multi dwelling housing developments throughout the R2 zone and says that only sites that have a 20m frontage and a minimum area of 900 square metres would be capable of redevelopment for that purpose, the remaining allotments would accommodate single dwelling houses or may permit dual occupancy developments (subject to having an area of 580 square metres). 7. The experts considered an alternate design solution to address the issue of privacy between the proposed dwellings and those on the up slope of the site. The plans at Exhibit A propose the provision of three screens along the north-eastern common boundary opposite the living areas of each unit. That screen is detailed as a new operable louvred privacy screen over fence to max 3300mm above existing ground level. 8. Alternate plans tendered for consideration by the experts, Exhibit J show "new operable privacy blinds" attached to the underside of the eaves of each dwelling for the length of its balcony. No details of the height, material, transparency or operating mechanisms were provided. 9. Mr Glendinning said the blinds were the preferred solution to privacy as they reduced the height of the boundary fence however Mr Tesoriero did not support the alternate as he said the blinds, whilst providing some benefit, there is not much benefit and because they are under the eave this transposes bulk towards the boundary and doesn't screen all of the private open space from overlooking. He remained critical of the fence height saying it provides poor amenity to the courtyards of the dwellings. 10. No assessment of the impacts of the blinds on solar access had been made and, following discussion between the experts they agreed that the option of the blinds left occupants of the proposed dwelling with either sun or privacy as both could not be achieved. Mr Tesoriero said this was unsatisfactory with Mr Glendinning saying it was a matter of choice for the occupants. 11. In response to the question of what is the planned residential density, Mr Glendinning said the planning objectives have no meaning, a single line which is to allow for multi dwelling housing at a planned density. He says there is no plan for residential densities only the recently abandoned State Environmental Planning Policy. Mr Tesoriero disagrees and says you need to look back, it is in the LEP and guided by the DCP and the plan is to provide multi dwelling housing on those lots that have a 20m width and meet the minimum lot size. If it was the council's intention to see multi dwelling housing everywhere we wouldn't see the clause. The intent is for the density to be spread. Conclusion and findings 1. For consent to be granted the jurisdictional test in clause 4.6 of the LEP must be passed. Having regard to the written objection, I am not satisfied that it justifies contravention of the development standards by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case or that there are sufficient environmental planning grounds to justify contravening the development standard. That is because I am not satisfied that the development is either consistent with the objectives of the standard itself or the zone objective. 2. There is nothing in the written request that adequately determines what is required by the objectives of either clause. The zone objectives require provision of housing needs of the community within a low density residential environment and the objectives of the standard require achievement of planned residential density in certain zones. 3. Consistent with my findings in Faseas v Coffs Harbour City Council [2018] NSWLEC 1249 there is no consideration of what is a low density residential environment nor what is the "planned density". In his aural evidence, Mr Glendinning stated there is no plan for density. The development standard is the starting point and has two standards, one for site area and one for site frontage. This is different from a number of planning instruments that apply to other council areas. There must be a reason for the two standards and therefore, it is necessary to determine what is intended and whether the objective is met. 4. The LEP assists with reference of other clauses that apply to density, in particular, clauses 4.1, 4.1AA, 4.1A, 4.1B and 4.1C, whilst not wholly relevant to the issue before the Court all define density controls. Clause 4.5A is also a relevant consideration in that it details specific controls for density in terms of the size of dwelling houses that can be erected on sites in the R2 zone dependent on site area. In terms of the number of dwellings and the size of those dwellings, the LEP informs the planned density in that it is based on area and number of bedrooms. 5. In my view the role of site width has not been adequately considered in the written request. Mr Glendinning relies on the proposed design of the development to support his claim that the objectives of the R2 zone and the development standard are met. I do not consider this is the correct approach. It is possible to design a development that meets some or all of the objectives of the DCP and I note that he was selective in choosing those objectives rather than focussing on those which inform density, in particular that part of density that defines the site width. 6. Whilst I agree that the DCP assists in determining the intent of the standard, I do not consider that any guidance in relation to lot width is gained from the written request and therefore Mr Glendinning has failed to demonstrate that the objectives of the standard and zone are met. Design and lack of impact do not demonstrate the objectives are met. Even if I was to accept that proposition, I am not satisfied, having regard to the evidence that the impacts of the proposal in relation to privacy have been adequately addressed. The extent of non-compliance with DCP controls, particularly the extent of cut and the site slope are other reasons why I do not consider the objectives of the DCP are met. 7. I accept that DCP provisions should be flexibly applied, however I do not accept the views put by Mr Glendinning that this provides a reason to vary the standard. Further a suggestion that because a development will provide a good development outcome in terms of additional housing choice is not a reason to vary a development standard. 8. In Golden Max Pty Limited v Hurstville City Council [2015] NSWLEC 1234 I set out the tests for satisfying the provisions of clause 4.6 as follows: 51.It is therefore, firstly, necessary to explore whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. 52.Secondly, there must be sufficient environmental planning grounds to justify contravening the development standard. 53.Thirdly, I must be satisfied the proposed development is in the public interest because it is consistent with the objectives of the development standard and the objectives of the R3 zone (and concurrence of the Director-General has been obtained). 54. Pain J in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 considered these provisions and says at [34]: There is every reason to construe cl 4.6(4)(a)(i) as if it has more work to do than subclause (4)(a)(ii), not least because "and" is between the two subclauses…….The use of "and" suggests the requirements in subclauses (4)(a)(i) and (ii) are separate requirements. 55.It is therefore necessary to be satisfied that both compliance with the development standard is unreasonable and unnecessary AND of consistency with the objectives of the development standard and the zone objectives. It is not sufficient to find that because consistency with the objectives is achieved, compliance with the development standard is unreasonable and unnecessary, further consideration of the latter is required. 1. I turn to the DCP for guidance in relation to what is meant by the planned density. The DCP reiterates the density development standards and, in further defining objectives, further assists in understanding the planned residential density. The Guiding Principles give the first clue to what the standard is trying to achieve. It says that a principle is to spread the increase in population densities over all residential areas within the City rather than concentrating such increases in any one area. Another is to ensure change in any area is gradual and that change is distributed across the City. I consider that this supports the view expressed by Mr Tesoriero that not all sites within the R2 zone can be developed for multi dwelling housing and, whether a site is suitable for such development is determined by the two development standards, site area and lot width. The planned residential density therefore is determined by those factors. 2. Application of the lot width development standard, is, pursuant to the provisions of clause 4.6 of the LEP, to be applied flexibly. It is not the role of the consent authority to determine what goes behind the standard however it must understand the intent of the standard in order that it can consider the tests in the clause. 3. Even if I am wrong in my assessment in regard to the intent of the lot width development standard, I am not satisfied that the written request has provided adequate consideration of the objective and has rather put forward general comments instead of focussing on the objective itself. 4. In view of the above, I am not satisfied that the applicant's written consent has demonstrated that compliance with the development standard for site width is unreasonable or unnecessary in the circumstances of the case. 5. Having reviewed the written request, I am not persuaded that there are any environmental planning grounds that justify contravention of the standard. Again, the fact that the site is large and is of sufficient area and dimension to accommodate Multi dwelling housing in compliance with council's code is not adequate justification, particularly when the development does not comply with all aspects of that code. Good design is expected. 6. The suggestion that the buildings have been designed to ensure that adequate amenity, privacy and solar access is provided to each dwelling; (a matter that I do not accept);have been designed having regard to the slope of its land (contrary to the DCP requirements for site slope); the proposal will include exposure to water views are not, in my mind, sufficient environmental planning grounds to justify contravening the development standard. Nor is the statement that and the extent of the non-compliance by 1.7m is, according to Mr Glendinning, relatively minor and does not hinder the attainment of good development outcomes on the subject site. 7. For these reasons, I am not satisfied that it is appropriate to vary the development standard for minimum site frontage in clause 4.1(2)(b) of the LEP and the application must fail. Therefore, I am also not satisfied that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the R2 zone 8. It is therefore not necessary to determine the merits of the application however, as they were given considered evidence during the hearing, I agree that the development is of good design having regard to the slope of the land however I do consider the fact that occupants of the proposed units cannot enjoy both privacy and solar access if the alternate privacy solution put by the applicant is a fundamental flaw in the design. The original privacy solution would result in a 3.3m high wall as the primary outlook from living rooms and individual open space courtyards, a poor design solution. It is a consequence of the crossfall of the site and therefore non-compliant with the DCP controls. The site is a non-preferred location for multi dwelling housing and, when combined with the failure to comply with the site frontage development standard, the extent of non-compliance with the DCP would be further reason to refuse consent. 9. The Orders of the Court are: 1. The appeal is dismissed. 2. Development application DA-LDA2017/0053 for demolition of an existing dwelling house and construction of a new multi dwelling housing development comprising four dwellings at 160 Princes Street, Putney is refused consent. 3. The exhibits, other than exhibits A and 2, are returned. ________________ Sue Morris Acting Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 June 2018