Land and Environment Court New South Wales Medium Neutral Citation: Dwyer v Sutherland Shire Council [2018] NSWLEC 1543 Hearing dates: 7 September 2018 Date of orders: 17 October 2018 Decision date: 17 October 2018 Jurisdiction: Class 1 Before: Bish C Decision: The orders of the Court are: (1) The appeal is upheld; (2) Amended Development Application DA17/1774 for two studios above two detached garages (Dwellings 1B and 2A) at the rear of Lots 2 and 3 DP 15962, known as 1106 and 1108 Old Princes Highway, Engadine is approved, subject to the conditions in Annexure A; (3) The exhibits, except Exhibits 1 and A, are returned. Catchwords: DEVELOPMENT APPLICATION: two studios above detached garages – FSR – ancillary dwelling use – characterisation – bulk and scale Legislation Cited: Environmental Planning and Assessment Act 1979 Sutherland Shire Local Environment Plan 2015 Cases Cited: MacDonald v Mosman Municipal Council (1999) 105 LGERA 49; [1999] NSWLEC 215 Texts Cited: Sutherland Shire Development Control Plan 2015 Category: Principal judgment Parties: Daniel Robert Dwyer (Applicant) Sutherland Shire Council (Respondent) Representation: Solicitors: G McKee, McKees Legal Solutions (Applicant) J Amy, Sutherland Shire Council (Respondent) File Number(s): 2018/63423 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against a deemed refusal of Development Application (DA) DA17/1774 for two studios above detached garages at the rear of Lots 2 and 3 DP 15962, known as 1106 and 1108 Old Princes Highway, Engadine (hereafter the site). 2. The site is rectangular in shape with a 34.1m frontage to Old Princes Highway and a total area of 1568.2m2. The site has a fall of 1.4m towards the east (rear boundary). 3. The surrounding area is dominated by one- and two-storey residential dwellings of various architectural styles, which due to the neighbouring lot configuration, have dwellings located in close proximity to both the rear and front of the site. Background 1. The site is currently occupied by two approved (DA 16/0095) three-storey dual occupancy dwellings under construction (i.e. four dwellings on the site), which are located in the front (street) portion of the site, with four semi-detached garages under construction in the rear portion of the site. 2. The central two garages, identified as belonging to Dwellings 1B and 2A, are the subject of the appeal. 3. The garages are separated from the (primary) dwellings by a landscaped yard, which on the centrally located dwellings (1B and 2A) can be accessed via a rear gate in the fence located near the garage or through the dwelling itself. The other dwellings (1A and 2B) can access the rear yard through a side gate in the front or internally through the dwelling. 4. The garages are currently approved as single storey, separated from the rear boundary by a 6m wide concreted driveway allowing garage access and a 1m wide strip of landscaping along the fence. The access driveway extends to the street through the centre of the site, and separates the garages of Dwellings 1B and 2A. 5. The DA (DA17/1774) for the proposed studios was lodged with Council on 20 December 2017, and after notification to residents, received five submissions in objection. The issues raised relate to: overdevelopment; potential use as secondary dwellings; neighbouring amenity impacts, principally overshadowing and privacy; floor space ratio exceedance; stormwater drainage impact; and parking deficiency onsite. 6. By agreement of the parties, no site inspection was undertaken at the hearing, as the site and objectors (were heard from and) properties were viewed at the s34AA conciliation conference, that was undertaken on 24 August 2018. 7. Evidence in the hearing with the consent of the parties includes: resident objectors (3) submissions (Exhibit 5); expert discussion onsite; and observations made at the site inspection. 8. Prior to the hearing, the DA was the subject of numerous discussions between the applicant and respondent, which resulted in amendments to the DA plans and information. 9. The Court granted leave to rely on the following tendered documents: * amended architectural plans by Jim Watt-Smith, dated 24 August 2018 (Rev 2/D, and erroneously referenced as section 96 plans), entered as Exhibit A; and * amended floor space ratio and gross floor area calculations for the applicant by Jim Watt-Smith, dated 4 September 2018 as Exhibit B, and for the respondent by Ms Lisa Pemberton, undated, as Exhibit 6. 1. The Court granted leave to rely on amended draft conditions of consent provided by the applicant (Exhibit F) and the respondent (Exhibit 7). 2. Following the hearing, at the request of the Court to seek further clarification following expert evidence, the applicant and respondent's experts submitted amended floor space ratio and gross floor area calculations on 21 and 24 September 2018, respectively, for which the Court grants leave to rely on. Planning controls 1. Section 4.15(3A) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act 1979) provides that: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application.… 1. The site is zoned R2 Low Density Residential, pursuant to the Sutherland Shire Local Environmental Plan 2015 (SSLEP 2015). The proposed development is permissible with consent. The objectives of the zone relevantly state: Objectives of zone • 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. Clause 4.4 of the SSLEP 2015 refers to the requirements for Floor Space Ratio (FSR), relevant for consideration in this appeal. The objectives and requirements of cl 4.4 are as follows: 4.4 Floor space ratio (1) The objectives of this clause are as follows: (a) to ensure that development is in keeping with the characteristics of the site and the local area, (b) to ensure that the bulk and scale of new buildings is compatible with the context of the locality, (c) to control development density and intensity of land use, taking into account: (i) the environmental constraints and values of the site, and (ii) the amenity of adjoining land and the public domain, and (iii) the availability of infrastructure to service the site, and (iv) the capacity of the road network to accommodate the vehicular and pedestrian traffic the development will generate, and (v) the desirability of retaining the scenic, visual, and landscape qualities of the area. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. 1. Also relevant to the assessment of FSR as it relates to the proposed development, is cl 4.5 and cl 4.5B of the SSLEP 2015, which provide detail on the calculation of FSR as follows: 4.5 Calculation of floor space ratio and site area (1) Objectives The objectives of this clause are as follows: (a) to define floor space ratio, (b) to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to: (i) prevent the inclusion in the site area of an area that has no significant development being carried out on it, and (ii) prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and (iii) require community land and public places to be dealt with separately. (2) Definition of "floor space ratio" The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area. (3) Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be: (a) if the proposed development is to be carried out on only one lot, the area of that lot, or (b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out. In addition, subclauses (4)–(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development. (4) Exclusions from site area The following land must be excluded from the site area: (a) land on which the proposed development is prohibited, whether under this Plan or any other law, (b) community land or a public place (except as provided by subclause (7)). (5) Strata subdivisions The area of a lot that is wholly or partly on top of another or others in a strata subdivision is to be included in the calculation of the site area only to the extent that it does not overlap with another lot already included in the site area calculation. (6) Only significant development to be included The site area for proposed development must not include a lot additional to a lot or lots on which the development is being carried out unless the proposed development includes significant development on that additional lot. (7) Certain public land to be separately considered For the purpose of applying a floor space ratio to any proposed development on, above or below community land or a public place, the site area must only include an area that is on, above or below that community land or public place, and is occupied or physically affected by the proposed development, and may not include any other area on which the proposed development is to be carried out. (8) Existing buildings The gross floor area of any existing or proposed buildings within the vertical projection (above or below ground) of the boundaries of a site is to be included in the calculation of the total floor space for the purposes of applying a floor space ratio, whether or not the proposed development relates to all of the buildings. (9) Covenants to prevent "double dipping" When development consent is granted to development on a site comprised of 2 or more lots, a condition of the consent may require a covenant to be registered that prevents the creation of floor area on a lot (the restricted lot) if the consent authority is satisfied that an equivalent quantity of floor area will be created on another lot only because the site included the restricted lot. 4.5B Density controls for dual occupancy (1) The objective of this clause is to ensure that the floor space ratio of each dwelling on a lot created by the subdivision of a dual occupancy will not exceed the maximum permissible floor space ratio shown on the Floor Space Ratio Map for that land. (2) The floor space ratio of a dwelling on a lot created by the subdivision of a lot containing a dual occupancy must not exceed the maximum floor space ratio shown for the land on the Floor Space Ratio Map. 1. According to the FSR Map in the SSLEP 2015, and pursuant to cll 4.5 and 4.5B, the maximum permissible FSR for the site and each dwelling lot is 0.55:1. 2. Non-compliance with a development standard may be considered by the consent authority, pursuant to cl 4.6 of the SSLEP 2015. 3. The definition of gross floor area (GFA) from the SSLEP 2015, which applies to calculation of FSR is as follows: gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes: (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes: (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement: (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above. 1. The relevant sections of the Sutherland Shire Development Control Plan 2015 (SSDCP 2015) for consideration are: secondary dwelling requirements (Chapter 3); and characteristics of a dual occupancy (Chapter 4). Of specific relevance to this appeal are the objectives for dual occupancies in Chapter 4 that relate to streetscape and building form as follows: "1.1. Objectives 1. Ensure that all elements of development visible from the street, waterways and public domain make a positive contribution to the foreshore, streetscape and natural features of the area. 2. Ensure development is compatible with the scale, character and landscape setting of the adjoining streetscape, natural setting and scenic quality." Issues in contention 1. The Council's contentions that remain regarding the proposed development are: * the FSR of the two proposed studios when considered together with the approved development on the site does not comply with the maximum FSR requirement of 0.55:1 for Dwellings 1B and 2A, and combined for the site; * the studios are not 'ancillary' to the existing development and will potentially function as secondary dwellings, therefore form part of a multi-dwelling development on the site; * the studios appear as two-storey elements located in the rear of the site, contrary to SSDCP 2015 control for dual occupancy dwellings (Chapter 4, control 1.2, dot point 9); * as a result, the bulky form and amenity impacts from the proposed studios are inconsistent with zone objectives and the future character of the area; and * for the reasons above, the development is not in the public interest. 1. The Council further contends that due to the exceedance in FSR for Dwellings 1B and 2A, a cl 4.6 written request pursuant to the SSLEP 2015 for variation of cl 4.4(2) standard is required, which has not been submitted by the applicant. 2. The applicant considers that that inclusion of the void space above the stairs in the attic and garage as proposed by Council in calculation of GFA is incorrect, and therefore, the FSR is compliant for the dwellings under appeal and the site. 3. The experts agree that the amended plans resolve the following contentions as set out in the Statement of Facts and Contentions (SoFC), dated 27 March 2018 (Exhibit 1) and relevant issues raised by residents in Exhibits 2 and 5: * land subdivision; * height; * privacy; and * overshadowing. Evidence and findings 1. The Court heard from the following planning experts: Mr Andrew Minto for the applicant; and Ms Lisa Pemberton for the respondent. 2. The experts agree that the issues under appeal relate solely to proposed development on Dwellings 1B and 2A. Does the proposed development comply with FSR requirements for the dual occupancy Dwellings 1B and 2A, and the site? 1. The disagreement between the planning experts on FSR stems from the calculation of GFA for the existing approved development, based on DA 16/0095. This forms the baseline for any additional GFA as a result of the proposed development (DA 17/1774). 2. The FSR for the approved and proposed developments when combined, determines whether the site and individual dwellings on each lot under appeal (1B and 2A) are compliant pursuant to cll 4.4, 4.5 and 4.5B of the SSLEP 2015, respectively. 3. The discrepancy derives initially from the approved plans versus the as-built (constructed) plans, and also from exclusions to the GFA calculation, with respect to void space above stairs. 4. The planning experts agree: * the total area of the combined site, and site area for each lot under appeal, * that the stairs form part of the GFA (and FSR) calculation as they are not considered areas for 'common vertical circulation' due to the single dwelling nature of the residential development, and * the as-built plans differs from the approved DA (16/0095) plans, and that these changes are consistent with the relevant conditions of consent, namely 2.A.i (requiring an additional 480mm setback along the driveway), thereby resulting in a different GFA/FSR for dwellings 1B and 2A, and therefore the site. 1. The experts do not agree on the inclusion in the calculation of GFA for the area or 'void' formed above the stairs leading to the (attic) third floor and to the proposed studios. It is not agreed whether this area is for the purposes of GFA calculation a void. 2. The experts fundamentally disagree whether the proposed development with the addition of two proposed studios results in an exceedance of the FSR for Dwellings 1B and 2A, and ultimately the site. 3. In cross examination, Mr Minto accepted that there was an error in his initial GFA/FSR calculations submitted to the Court (Exhibit A), to account for under the stairs storage (>1.4 m in height) on the ground floor of the primary dwellings and in the garages beneath the studio stairs. 4. Ms Pemberton accepted that there was an error in her initial GFA/FSR calculations in Exhibit 6, which did not account for the setback adjustment for Condition 2.A.i of DA 16/0095 consent. 5. The experts agreed to re-calculate the GFA and FSR accordingly, which was submitted into evidence between 20 and 24 September 2018 for the applicant and respondent, respectively. 6. Table 1 below shows the planning experts' calculations for the site, and Dwellings 1B and 2A. The 'as-built' value provides the baseline (approved under DA 16/0095) and the 'proposed' value includes the approved development plus proposed studios under DA 17/1774. Applicant Respondent Area (m2) GFA (m2) FSR GFA (m2) FSR Comment Duplex 1B As built 432.89 209.3` 0.48:1 217.7` 0.5:1 Submission 20 and 24 September 2018 Proposed 235.3` 0.54:1 238.9` 0.55:1 Submission 20 and 24 September 2018 Duplex 2A As built 428.37 210.6` 0.49:1 215.4` 0.5:1 Submission 20 and 24 September 2018 Proposed 235.5` 0.549:1 240` 0.56:1 Submission 20 and 24 September 2018 Site Proposed 1575.05 862.7* 0.55:1 917.4# 0.58:1 Based on Exhibits B (as-built) and 6 (approved) ` Includes under stair storage * Excludes under stair storage # Excludes setback adjustment for condition 2.A.i 1. For this site, I concur with the experts that the FSR for each of the dwellings and the site should not exceed 0.55:1, pursuant to cll 4.4, 4.5 and 4.5B of the SSLEP 2015. 2. According to the experts, the discrepancy in the estimation of FSR relates to whether the area above the stairs that leads to the attic (on the third floor) in the primary dwellings and the studios above the garages should be included in the GFA calculation. 3. Suffice to say that the calculations for GFA and FSR presented to the Court for consideration are inconsistent. I therefore focus on determining the most reliable values of GFA and FSR on which to assess compliance with regards to cll 4.4, 4.5 and 4.5B of the SSLEP 2015. 4. The variations in FSR are firstly due to the original consent for DA 16/0095 relying upon a condition (2.A.i) to amend construction design without making relevant adjustments to the approved plans. This results in inconsistency in the GFA and resultant FSR between approved and as-built plans. I consider that the as-built plans provide the baseline GFA and FSR values on which the Court must determine whether the proposed development can be accommodated. 5. In addition, the need for amendments post hearing for storage under the stairs and setback adjustment as per the consent has further complicated the assessment for the Court. 6. I will first address the difference in GFA and FSR calculated between the approved (stamped) plans and the as-built plans (considering Condition 2.A.i adjustment). This provides the baseline from which the proposed development can be assessed for compliance. 7. The compliance table (section 7) provided in Councils report for approval of DA 16/0095 on 26 May 2016 shows the pre (Condition 2.A.i) amended GFA and FSR for the approved development (Exhibit 2). It states that the development is compliant (≤0.55:1) for all dwellings and the combined site. I note however, that the GFA and FSR values in the consent do not correspond with those provided by Ms Pemberton in Exhibit 6, in which she states, were based on the approved (stamped) plans. 8. These values should be comparable as neither Exhibit 6 nor the (compliance table in section 7) report for the original consent have been adjusted for the setback specified in Condition 2.A.i, and were calculated by the same Council (although it is recognised may have been by different planners). 9. Initially, I will compare GFA/FSR values approved in the consent for DA 16/0095 against Exhibit 6 (which are both pre-setback adjustment). This allows me to understand the consistency of methodology the Council has adopted to calculate GFA and FSR. 10. Interestingly, Dwellings 1A and 2B, for which no additional (studio) development is proposed and are not to be amended for the setback, have a GFA and FSR that do not equate between the consent report and Ms Pemberton's values (in Exhibit 6). Ms Pemberton suggests that for Dwellings 1A and 2B, the development under the original approved DA exceeds the FSR, being 0.59:1 each. This is in direct contradiction with the FSR provided in the DA approval report (section 7), which shows the FSR for Dwellings 1A and 2B as 0.55:1. I rely on the calculations for these dwellings to compare methodologies between what was approved in the consent and what is provided to the Court as approved, as no alterations to values should be needed. 11. Ms Pemberton did not elaborate on the reason for the discrepancy between her calculations (Exhibit 6) for FSR and GFA when compared with the approval report for the original consent. There remains some doubt as to the consistency of methods used by Council's planners in determining GFA and FSR, and to the reliability of Ms Pemberton's calculations. 12. If I was to adopt Ms Pemberton's values in Exhibit 6 for (GFA/)FSR, Dwellings 1A and 2B in the approved development (DA 16/0095) would have been non-compliant with cl 4.5B of the SSLEP 2015. There is no evidence provided that the approved DA required a cl 4.6 written request for variation of FSR. 13. I therefore conclude that the calculations provided in Exhibit 6 are unreliable. 14. Focusing on Ms Pemberton's 24 September 2018 submission and particularly the dwellings under appeal, the approved as-built development has a GFA of 217.7m2 (Dwelling 1B), and 215.4m2 (Dwelling 2A), and FSR of 0.5:1. In comparison with the consent report, the approved development has a GFA is 217.63m2 and 222.14m2, and FSR is 0.5:1 and 0.52:1, for Dwellings 1B and 2A, respectively. 15. There is no explanation as to why the change in GFA as a result of the setback amendment is negligible for Dwelling 1B (0.07m2) and more significant for Dwelling 2A (6.74m2). 16. It is unclear what the differences in calculation methodology are, however, it does call into question the methodology and therefore results for GFA and FSR that Ms Pemberton relies upon. This leads me to conclude that the approach adopted by Ms Pemberton is not consistent with that used for the DA approval. 17. Mr Minto, in his 20 September 2018 submission, indicates that the adjustment for the setback in Condition 2.A.i and including under stair storage, results in a GFA of 209.3m2 (Dwelling 1B) and 210.6m2 (Dwelling 2A), and FSR of 0.48:1 (Dwelling 1B) and 0.49:1 (Dwelling 2A), for the as-built approved development. Again, the rationale for the differences between the dwellings for what was approved and constructed are not clear, however, I consider Mr Minto's calculations more credible in this circumstance as the order of difference is realistic. 18. In evidence, Ms Pemberton relied on the Council's 'established methodology' to determine GFA and FSR, which she says includes the area above the stairs that leads to the attic and studio, as she does not consider this a 'void'. She states that the 'stairs should be flipped up' in the GFA calculation which creates the storey above the stairs. 19. I find this approach does not reflect accurately the appropriate methodology to calculate GFA and FSR. 20. I agree with Mr Minto that the area created above the stairs that leads to the attic and studio is a void, and should be excluded from the GFA (and FSR) calculation. There is no floor above the upper (3rd) level stairs to the ceiling, and therefore a void is created. This approach is consistent with exclusion (j) in the definition of GFA, in the SSLEP 2015, as follows: but excludes: … (j) voids above a floor at the level of a storey or storey above. 1. Therefore, in answer to the key contention of Council of whether the area above the attic/garage stairs is not a void and should be included in the GFA, I disagree. I consider that the areas above the stairs in the primary dwelling leading to the attic and in the garage leading to the studio form a void, and should not be included in the GFA for the purposes of calculating FSR. 2. I concur with the experts that storage beneath the stairs at a height exceeding 1.4m should be included in the GFA and FSR calculation, consistent with exclusion (i) in the GFA definition of the SSLEP 2015. (i) terraces and balconies with outer walls less than 1.4 metres high, 1. For the reasons above, I agree and am informed by the GFA and FSR provided by Mr Minto which provide both the baseline for the approved as-built GFA, and as a consequence of the proposed development for the Dwellings 1B and 2A, and combined for the site. 2. Therefore, I find that the FSR for Dwellings 1B and 2A are 0.54:1 and 0.55:1, respectively, and I have no evidence before me that suggests that FSR for the site will not be compliant with 0.55:1. 3. The proposed development therefore satisfies cll 4.4, 4.5 and 4.5B of the SSLEP 2015. Are the studios ancillary to the primary dwelling? 1. The issue revolves around whether the studios can be occupied separately to the (primary) dwellings already approved on the site, and whether the studios are considered 'ancillary' to these primary dwellings (1B and 2A). 2. The Council maintains that the studios are consistent with the definition of a 'dwelling' in the SSLEP 2015, capable of being used as a secondary dwelling. Therefore, the development forms part of multi-dwelling housing, which whilst permissible in the zone, would result in the requirement of other relevant development standards and controls not yet assessed, primarily parking. 3. Ms Pemberton considers that a limitation on the use of the studio, should be registered on title, which would provide the necessary assurance for the studios to remain ancillary to the primary dwellings, and therefore consistent with the approved dual occupancy development requirements of the SSDCP 2015. 4. She contends that the 'separate entrance' to the studios through the rear gate located near the garage and studio entrance further supports the perception that the studios will be used as a secondary dwelling. 5. Ms Pemberton also suggests that the presence of facilities that could be adapted for cooking and a bathroom with shower, mean that the studios will not in the future remain ancillary to the primary dwellings. 6. The experts agree that the removal of the shower will support the use of the studios as ancillary to the primary dwelling. 7. Mr Minto contends that a condition to restrict the studio use for ancillary purposes, although not registered on title, is sufficient. He considers that the studios cannot be used as a separate (secondary) dwelling due to the absence of cooking facilities. The absence of these facilities results in the studios not being considered a dwelling 'capable for separate domicile', based on the definition (below) of a dwelling in the SSLEP 2015 as follows: dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. 1. Further to this, Mr Minto does not consider that a 'cooking facility' includes a microwave or bench top burner. He agreed to the inclusion of a restriction on the provision of cooking facilities by condition in the consent. 2. Mr Minto does not agree with Ms Pemberton that the separate entrance to the studio accessed through the gate at the rear of the yard of the primary dwelling lends itself to being used as a secondary dwelling. He contends that the gate in the rear yard primarily provides convenience for access to the yard by the residents of the primary dwelling. 3. Mr Minto explained that the proposed development is consistent with multi-generational families seeking to maximise use of the site. He contends that the studio is designed to function in connection with the primary dwelling, through visual surveillance to the rear of the landscaped yard. 4. I agree that the registration on title to ensure ancillary use of the studio is not necessary nor appropriate, which is consistent with the decision by Lloyd J in MacDonald v Mosman Municipal Council (1999) 105 LGERA 49; [1999] NSWLEC 215 at [14] where he states the following: "14. I am prepared in this case to follow and apply the principles explained in the abovementioned cases. I am not satisfied that the power of the Council to either grant or withhold development consent for the erection of any further or additional structure on the southern side of the applicant's dwelling house needs to be reinforced in the manner contended for by the Council. The Court has not, in the past, been favourably disposed towards conditions requiring registered restrictions as to user. In particular, Cripps J in Carr v Goulburn City Council held that it was not appropriate to impose such a condition. The abovementioned cases show that such a condition is neither necessary nor generally appropriate. I agree. In the present case, on a consideration of the merits, there is nothing in the present case that takes the matter outside those principles. The condition will not be imposed." 1. I agree with Mr Minto that the presence of a bench with sink in the main room does not by itself enable the area to be converted into a kitchen for the purposes of cooking. I disagree, however with Mr Minto, that a microwave or cooktop cannot form part of a cooking facility. 2. Further to this, and to ensure that the studios are used ancillary to the primary dwelling, I agree that the shower should be removed from the studio design and a condition imposed to ensure these facilities (both showering and cooking) are not constructed in the future in the studios. 3. I agree that the studios without the benefit of shower and cooking facilities cannot be considered as a 'separate domicile'. 4. I, therefore, conclude that without the shower or cooking facilities, the proposed studios will reliably function as ancillary to the primary dwellings (i.e. for the purpose of serving a multigenerational family as a teenage retreat and/or home office), which is consistent with a dual occupancy development on the site and cannot therefore be considered as part of a multi-dwelling housing development. 5. This resolves the contention relating to parking, which was only relevant if the proposed development was considered as part of a multi-dwelling housing development. 6. The proposed studios above the garages of Dwellings 1B and 2A are ancillary; therefore, the proposed development complies with the definition of dual occupancy as provided in the SSLEP 2015: dual occupancy (detached) means 2 detached dwellings on one lot of land, but does not include a secondary dwelling. 1. I, therefore, find that the proposed development is permissible in the R2 residential zone and as part of a dual occupancy suitable for the site, consistent with the requirements of s 4.15(1)(c) of the EP&A Act 1979. Are the amenity impacts due to the proposed development? 1. The Council contends that the proposed development does not comply with Chapter 4, Section 1.2, point 7 (dual occupancies) control of the SSDCP 2015 provided below: "7. Two or three storey development is only permitted on the front of an allotment and may extend to a maximum of 60% of the depth of the site measured from the property boundary." 1. The proposed studios above the garages (for Dwellings 1B and 2A), the Council contends, are not in attic form and therefore constitute a second storey feature in the rear of the site. The consequence is a development that presents as a building mass that is inconsistent with the character of the R2 residential zone. 2. Ms Pemberton suggests that the proposed studios appear as a two storey element to neighbours in the adjoining rear yard, although agrees this is not necessarily perceived from the street. Also, the cladding material proposed for the studios will add to the bulky appearance of the studios. 3. She advises that there are no other properties in the local area that have two storey structures in the rear portion of the site, although acknowledges that some, such as at 28 Engadine Road, have single storey structures which function for a similar suggested intent as the proposed development (i.e. ancillary to the primary dwelling). 4. Mr Minto agrees with Ms Pemberton that the studios are not strictly an 'attic' form as they are no contained 'wholly' within the roof, based on the definition below from the SSLEP 2015. The studios present externally as a 'room in roof', particularly to 28 Engadine Road, and are not perceived as two storeys from the street. attic means any habitable space, but not a separate dwelling, contained wholly within a roof above the ceiling line of the storey immediately below, except for minor elements such as dormer windows and the like. 1. Both experts agree that the surrounding area is in a period of transition, where the overall character is currently low scale developments, and change is consistent with the existing development on the site of dual occupancy and single residential dwellings of two storeys. 2. Ms Pemberton is of the view that the proposed development provides little relief in its built form to neighbouring properties and is visible, although not prominently, through the centrally located driveway to the streetscape. 3. Mr Minto contends that as shown in the amended plans, the studios present as 'attic style' rooms, have features designed to mitigate any potential amenity impacts to neighbours, and will not be significantly visible to the street. 4. Mr Minto notes that the highlight and opaque windows with limited opening that overlook neighbouring properties are designed and have the effect to minimise privacy impacts. 5. The experts agree that the amended plans do not result in adverse privacy impacts to neighbouring properties, and that the orientation of the studio activity is toward the existing dual occupancy dwellings on the site thereby minimising amenity impacts. 6. The experts also agree that the proposed studios do not result in adverse solar access to the neighbouring properties, although there is some discrepancy as to whether there is a limited adverse impact for solar access to the dual occupancy dwellings on the site. This is however not pressed by Council. 7. The experts agree that the proposed development complies with the requirements specified in the SSLEP 2015 and SSDCP 2015 regarding height and setbacks. 8. In assessing the weight to be given to compliance with the SSDCP 2015 control (Chapter 4 for dual occupancies) limiting two/three storeys in the rear portion of the site, I find it helpful to refer to the SSLEP 2015 definition for a 'storey'. storey means a space within a building that is situated between one floor level and the floor level next above, or if there is no floor above, the ceiling or roof above, but does not include: (a) a space that contains only a lift shaft, stairway or meter room, or (b) a mezzanine, or (c) an attic. 1. The definition of a 'storey' expressly excludes an attic, which the experts both agree the proposed studios do not strictly comply with, as being 'wholly within the roof'. 2. I agree with the experts that the proposed studios do not comply with the SSDCP 2015 control in Chapter 4, section 1.2, point 7. 3. The assessment, therefore, of whether the proposed studios are acceptable relates to the potential amenity impacts to neighbouring properties and consistency with control objectives for streetscape and building form, as well as the (R2) zone objectives. 4. I concur with the experts that there is no adverse amenity impacts either internally to the studios or to neighbouring properties, and very limited impacts to the dual occupancies on the site from the proposed studios, which will not result in adversity. 5. With regards to the streetscape and building form objectives of the SSDCP 2015 control for dual occupancies, I find that the proposed development is not inconsistent. 6. I agree with Mr Minto that the proposed development will not be significantly visible from the street and due to the setback of the studios from the property boundaries will not present as a significantly bulky feature to neighbouring properties. 7. I consider the bulk of development on the site sits within with the approved three storey dwellings located in the front portion of the site. The garages with studios above them do not add any significance in bulk that is inconsistent with the SSDCP 2015 control objectives for streetscape and building form, specifically: * Objective 1 – the portion of the studios visible from the street through the driveway is limited and does not present a negative contribution, * Objective 2 – the studios are in scale with the rest of the development on the site and not incompatible with the adjoining streetscape, and * Objective 3 – not relevant. 1. With respect to the zone objectives, I find that the proposed development is not inconsistent with the relevant objectives for the R2 zone, therefore satisfies cl 2.3(2) of the SSLEP 2015. The proposed studios support the needs of diverse families in a low density residential setting, and are not incompatible with the character of the neighbourhood. 2. Therefore, as the proposed development poses no unacceptable amenity impacts to adjoining properties, and achieves the relevant objectives for the zone and relevant SSDCP 2015 controls (for streetscape and building form), I find pursuant to s 4.15(3A)(b) of the EP&A Act 1979, that the non-compliance with the SSDCP 2015 control for limiting a two storey development in the rear of a site does not provide sufficient weight to merit a refusal due to the measures proposed to mitigate amenity impact. Conclusion 1. I am satisfied that the contentions raised by Council and the residents have been resolved with the amended dwelling design and information provided. 2. I am also satisfied that the proposed development for two studios above garages satisfies from the SSLEP 2015, the objectives of the (R2) zone and relevant standards (including FSR), together with the SSDCP 2015 controls (including streetscape/building form) for dual occupancies. 3. Additionally, I am satisfied that the proposed amended development is lawful and complies with the relevant provisions of the EP&A Act 1979. Conditions 1. The conditions of consent for DA17/1774 provided in Annexure A are as per the draft conditions provided by the respondent in Exhibit 7, with the following amendments: 1. Condition 2.A.iii is deleted. The access gates are not for the exclusive use of the studios and therefore removal of the gates could detrimentally impact on the functioning of the Dwellings (1B and 2A), such as putting rubbish bins to the kerb for collection. It is unreasonable to expect these bins to be transferred internally through the dwelling. 2. Condition 3 is deleted as registration of use in title is not reasonable. 3. Condition 4 is amended as follows to ensure the use of the relevant studio remains ancillary to the primary dwelling: "Use of the Studios above Garages The use of the approved studios above the garages at 1106B and 1108A Old Princes Highway, Engadine shall be in accordance with the following: a. No part of the proposed studio above the garage is to be used as a separate occupancy or domicile, and no shower, cooking (including but not exclusive of microwave, cooktop or oven) and laundry facilities are to be installed within the studios or the garages below. b. The proposed studio above the garage is not to be used as a separate occupancy or domicile." Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Amended Development Application DA17/1774 for two studios above two detached garages (Dwellings 1B and 2A) at the rear of Lots 2 and 3 DP 15962, known as 1106 and 1108 Old Princes Highway, Engadine is approved, subject to the conditions in Annexure A. 3. The exhibits, except Exhibits 1 and A, are returned. ……………………. Sarah Bish Commissioner of the Court Annexure A (84.3 KB, 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: 17 October 2018