Land and Environment Court New South Wales Medium Neutral Citation: Dickinson Property Group Pty Ltd v Wollondilly Shire Council [2019] NSWLEC 1220 Hearing dates: 26 March 2019 Date of orders: 23 May 2019 Decision date: 23 May 2019 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted for the demolition of existing structures, the removal of trees and the construction of a two-storey multi-dwelling housing development containing 16 dwellings at 56-58 Carlton Road Thirlmere, together with associated stormwater drainage and civil works, landscaping and strata subdivision, subject to the conditions of consent in Annexure A. (3) Exhibits 1, 2, 3, 4, 6, G and L are returned. Catchwords: APPEAL – development application – multi-dwelling housing – area characterised by single dwelling housing – whether there is a requirement to respond to existing character – transition to low density residential zone – whether required to respond to heritage items or heritage conservation area located in the vicinity of the site – compliance with the provisions of the development control plan – design – amenity of the dwellings – objectives of the zone Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 State Environmental Planning Policy No 55 —Remediation of Land Wollondilly Local Environmental Plan 2011 Cases Cited: BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Nessdee Pty Limited v Orange City Council [2017] NSWLEC 158 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Texts Cited: Draft Medium Density Design Guide (Department of Planning, 2017) Low Rise Medium Density Design Guide for Development Applications (Department of Planning, 2018) Wollondilly Development Control Plan 2016 Category: Principal judgment Parties: Dickinson Property Group Pty Ltd (First Applicant) Ruxley Bay No 3 Pty Ltd (Second Applicant) J & J Earthmoving Pty Ltd (Third Applicant) Prestige Building (NSW) Pty Ltd (Fourth Applicant) Wollondilly Shire Council (Respondent) Representation: Counsel: S Berveling (Applicants) F Berglund (Respondent) Solicitors: Duffy Law Group (Applicant) Bradley Allen Love Lawyers (Respondent) File Number(s): 2017/353603 Publication restriction: No Judgment 1. COMMISSIONER: The development of the town centre of Thirlmere dates back to the late 19th century, when the southern railway line was constructed and Thirlmere railway station was opened. Whilst the station is no longer in use, its history has been immortalised in the NSW Rail Transport Museum and the area around the centre of Thirlmere retains some of its former railway village character. Carlton Road, Thirlmere, runs from north to south, where it intersects with one of the main streets, Oaks Street. At 56-58 Carlton Road, Dickinson Property Group Pty Ltd, Ruxley Bay No 3 Pty Ltd, J & J Earthmoving Pty Limited and Prestige Building (NSW) Pty Ltd ("the applicants") seek development consent for the construction of multi-dwelling housing and associated strata subdivision. They lodged a development application with Wollondilly Shire Council ("the Council") seeking the same on 1 November 2016. Following the expiry of the period after which a development application is deemed to be refused, they lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). 2. The appeal was listed before me for a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 ("LEC Act"), which commenced with a site view on 6 August 2018. The parties were unable to reach an agreement at or following the conciliation, but agreed to me disposing of the proceedings following a later hearing, pursuant to s 34(4)(b)(i) of the LEC Act. 3. Following the termination of the conciliation conference, the applicants were granted leave to amend their development application in accordance with amended plans. The proposed development, as amended, seeks the construction of 16 two storey dwellings of contemporary design, and associated strata subdivision. The dwellings are contained in four separate buildings configured around a communal open space along the southern side boundary, with two buildings at the street frontage separated by the driveway entrance, a central building located adjacent to the northern side boundary, and a rear building. The layout of the dwellings within each building across the site is pictured in Figure 1, and the perspective of the proposed development from Carlton Road is pictured in Figure 2. 1. The Council remains opposed to the grant of development consent. Its position is that the proposed development is inconsistent with the prevailing character of Carlton Road, is out of context from its location in the vicinity of a heritage item and a heritage conservation area, is not designed to transition appropriately at its interface with the low density residential zone, and is of excessive bulk and scale. 2. For the reasons that I outline below, the applicable controls are not consistent with the Council's desire, as expressed in these proceedings, to maintain the current character of single storey dwelling houses with large side setbacks. Instead, the zoning permits multi-dwelling housing and the Council's controls permit it in the density and design proposed. As such, I have determined that the Council's contentions do not warrant refusal of the application, and that the proposed development is consistent with the intended character as envisaged by the applicable controls. Further, each of the other contentions raised by the Council are either unfounded or do not warrant refusal of the application. The site and its immediate locality 1. The site is located on the eastern side of Carlton Road, and comprises two lots legally described as Lot 69 Section C DP 1569 and Lot 70 Section C DP 1569. The two lots result in a site with an area of approximately 3642m2, a frontage of 40m and a depth of around 90m. The site is generally level, with only a slight slope between the side boundaries from south to north. 2. The site is vacant and largely cleared with minimal vegetation. Some minor tree clearing is proposed as part of the development. A number of large canopy trees are located on a neighbouring property to the rear of the site. There is one small, dilapidated shed on the site. 3. Surrounding uses along Carlton Road are predominantly low density residential dwelling houses of one storey, with large front and side setbacks on large lots. There are also some retail and commercial uses within the local centre to the south-east, and the site backs onto the Thirlmere commercial centre along Westbourne Avenue to the east, which contains a mix of shops and other uses. The planning context 1. Section 4.15(1)(a) of the EPA Act requires that the Court consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. Amongst other things, s 4.15(1) 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. The site is zoned R3 Medium Density Residential under the provisions of the Wollondilly Local Environmental Plan 2011 ("WLEP 2011"). To the west, on the other side of Carlton Road, is land zoned R2 Low Density Residential. To the rear of the site, the land is zoned B2 Local Centre. A map of the zoning can be seen at Figure 3. 1. Development for the purpose of multi dwelling housing is a nominated permissible use in the R3 zone, but is a nominated prohibited use in the adjoining R2 Low Density Residential zone. 2. Whilst there is no requirement for development within a zone to be consistent with the objectives of the zone, cl 2.3(2) of the WLEP 2011 requires the Court to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The zone objectives are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To encourage the provision of affordable housing. 1. Similarly, there is no requirement for development within a local government area to be consistent with the aims of the planning instrument applicable to that area. Nevertheless, the aims of the WLEP 2011 are as follows: (2) The particular aims of this Plan are as follows: (a) to provide for the management of natural resources and the protection of the natural landscape character, (b) to protect, conserve and enhance the built, landscape and Aboriginal cultural heritage, (c) to protect water quality in land that is situated within water supply catchments, (d) to encourage development that provides for an integrated transport and infrastructure system and adequate facilities and service provision for future growth, (e) to recognise, manage and protect rural resource lands for sustainable agriculture and extractive industry practices, (f) to maintain the separation between towns and villages to retain their unique character and rural and natural settings. 1. The height development standard pursuant to cl 4.3 of the WLEP 2011 is 9m, which applies across both the R3 and the R2 zones. The proposed development complies with this standard, with a maximum height of around 7m. 2. The site is located approximately 60 metres to the north of the Thirlmere Heritage Conservation Area. The site is also within the vicinity of numerous items of local heritage significance under Sch 5 of the WLEP 2011, including Thirlmere Public School and Residence, Thirlmere Railway Precinct and Heritage Centre, and a cottage to the north of the site at 50 Carlton Road. The cottage is separated from the site by two single storey dwelling houses at 52 and 54 Carlton Road. A map of the Thirlmere Heritage Conservation Area and proximate heritage items is shown at Figure 4. 1. The Wollondilly Development Control Plan 2016 ("WDCP 2016") also applies, and provides controls with respect to the development of the site. The proposed development complies with the WDCP 2016 with respect to the maximum dwelling yield, the front setback and the side setbacks. It also complies with the controls in the WDCP 2016 concerning site coverage, internal dwelling layout and minimum landscaping requirements. However, there are a number of controls in respect of which the Council says there is non-compliance. These are dealt with in my consideration further below. 2. In considering the objectives and the controls of the WDCP 2016, s 4.15(3A)(a) of the EPA Act prevents more onerous standards being imposed where the standards are met and s 4.15(3A)(b) of the EPA Act requires flexibility where the standards are not met. Specifically, s 4.15(3A) provides: (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. In this subsection, standards include performance criteria. The evidence 1. The hearing commenced on site with evidence heard from a number of objectors to the proposal. The following is a summary of the issues raised: * The bulk, scale and density of the proposed development is excessive, and is out of scale and out of character with surrounding development and with the historic character of the Thirlmere village community. * The proposal represents a significant intensification of land use, which is inappropriate for the historic, village community of Thirlmere. * The double storey and contemporary design of the proposal is incompatible with the site's context and the heritage items within the vicinity of the site. * There will be additional traffic generated and the proposed vehicular access will cause safety issues for those travelling to the local school. * There is a risk of contamination of local waterways as a result of there being no wash bay. * There is insufficient onsite parking provided for the future residents of the development. * There is insufficient information with respect to contamination of the site given the stockpiles located on the site. 1. Ms Brandstater also raised concerns with respect to the removal of canopy trees at the rear of the property. However, both the applicants and the Council agree that the site survey demonstrates that the trees are not located on the subject site. 2. Ms Herbert, another objector, raised an issue with respect to non-compliance firstly with the minimum side setback contained in the Medium Density Housing Code (within the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("SEPP ECDC")), and secondly with cl 5.3 of the WLEP 2011. However, neither of those provisions apply. The Medium Density Housing Code does not apply as the application is not made pursuant to the SEPP ECDC. Clause 5.3 of the WLEP 2011 does not apply as the proposed development is in the zone in which multi dwelling housing is permissible, and therefore cl 5.3 (which allows a prohibited use to be permissible if it is permitted in the adjoining zone) is not triggered. 3. I do not accept that there is any evidence of safety concerns with respect to the driveway, which allows for vehicular traffic to enter and leave the proposed development in a forward direction. Similarly, I do not accept that the absence of a car wash bay warrants refusal of the application on the basis of a risk of contamination. 4. The issues with respect to overdevelopment, parking and the contamination of stockpiles form part of my consideration below. Expert evidence 1. Expert evidence was given on the town planning issues by Mr Andrew Darroch, a consultant town planner engaged by the Council, and Mr Michael Brown, a consultant town planner engaged by the applicants. 2. The general tenor of Mr Darroch's evidence is that the character of Carlton Road and its approaches is recognisably free standing, single storey, low density dwelling houses in an open landscaped setting. He opines that to address this streetscape with two storey, row housing of parapeted roof form with minimal side setbacks fails to respond to the elements that make up the character of the surrounding urban environment, fails to provide a transition to the R2 zone and does not reflect its context within the vicinity of the heritage items and the heritage conservation area. 3. On the contrary, the evidence of Mr Brown is that development within a medium density zone will have a different character to that within a low density zone, and that the proposed development will set a built form character for medium density development that is consistent with the objectives of the WDCP 2016. Matters for determination 1. As a result of the contentions raised in the proceedings, and the evidence given by Mr Darroch and Mr Brown, the following matters need to be determined: * Whether the bulk and scale of the proposed development is appropriate given the prevailing character of Carlton Road, the location of the adjacent R2 Low Density Residential zone, and the controls of the WDCP 2011 (contentions 1, 5 and 6), * Whether the design of the proposed development is acceptable given its location within the vicinity of heritage items and the heritage conservation area (contentions 1, 2 and 4), * Whether the proposed development is acceptable in circumstances where one of the objectives of the zone is to provide a variety of housing types (contention 3), * Whether the proposed development is acceptable given the communal open space, the private open space, and other design issues raised (contentions 7 and 9), * Whether the proposed development should be refused on the basis of the adequacy of sustainability measures (contention 8), and * Whether any additional issues raised by the objectors warrant refusal of the application. Bulk and scale (contentions 1, 5 and 6) 1. The Council contends that the proposal is inconsistent with the desired future character of the village and its visual character, the bulk and scale of its built form and the rural character of its landscape form and will therefore adversely affect the existing and future streetscape of the area and its relationship to the built and landscape heritage values. It therefore considers that the proposed development is inconsistent with the following aims of the WLEP 2011, which are contained in cl 1.2(2): (2) The particular aims of this Plan are as follows: … (b) to protect, conserve and enhance the built, landscape and Aboriginal cultural heritage, … (f) to maintain the separation between towns and villages to retain their unique character and rural and natural settings. 1. Further, the Council contends that the visual character of the proposal is inconsistent and unsympathetic to the built form, bulk and scale, siting and material and forms characteristic of the Thirlmere village, and is therefore contrary to objectives 1.1 to 1.3 of Volume 4 of the WDCP 2016, which are as follows: "1. Visual Character and amenity 1.1. To ensure that infill development does not detract from the existing landscape character. 1.2. To enhance the landscape and streetscape character through considerate and attractive design. 1.3. To create attractive streetscapes and landscapes through quality built form and by ensuring that development does not dominate through excessive bulk, height or inappropriate scale." 1. Specifically, the Council contends that the development is inconsistent with the streetscape in the following respects: * Is two storeys in height, * Adopts a front setback that is not consistent with the streetscape, * Has unarticulated walls up to 14m in length, * Has a uniform parapet roof form, * Contains dwellings that are larger than the typical dwelling house size in the locality, and * Has a long straight driveway that exposes the unrelieved density to the streetscape. 1. The Council alleges that the following controls of the WDCP 2016 in Part 3.18 concerning building design and setbacks are not met by the proposal: "8 The design of any medium density development shall ensure that the development contributes to the visual interest of the street and shall avoid long rows of attached dwellings, long straight driveways and uniform roof designs throughout the development. … 13 No more than 50% of the front façade of any dwelling in the development shall be garage doors. … 16 Medium density developments must not: • Be mirror reversed; • Have a repeated façade; • Locate garages at the centre of the building's front façade; nor • Present an excessively bulky front façade. In medium density developments involving a large number of dwellings, repeated facades may be considered throughout the development provided that there are no repeated facades in a row of dwellings which face a public road. … 20 The minimum rear setback for any dwelling from land not included in the development shall be 8.0m for a two (2) storey dwelling and 3.0m for a single storey dwelling or a single storey part of a two (2) storey dwelling. For the purposes of this control, the rear boundary of any dwelling within the development is taken to be the boundary opposite the front elevation of the dwelling. … 23 For dwellings not fronting the street, any garage attached to the dwelling shall be located no less than 1 metre behind the front building line of the dwelling." The evidence in support of the contentions 1. In support of its position, the Council relies on the evidence of Mr Darroch. He considers that to ascertain the desired future character, it is necessary to "pay attention to the heritage conservation area, the heritage items in the vicinity and the distinctive character of the adjoining R2 Low Density Residential land which has a particular and recognizable [sic] character of free standing, single storey, low density dwellings in an open landscaped setting." Mr Darroch opines that the design of the proposed development and its breaches of the WDCP 2016, do not conserve that character. 2. Further, Mr Darroch points out that the site is on the boundary with an extensive area of R2 zoned land, which has that particular and recognisable character. Relying on the planning principle concerning a zone interface in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117, he opines that it is not sufficient for the proposed development to simply respond to the requirements and controls of the R3 zone, but that it should also recognise and take into account the form of existing development and/or development likely to occur in the adjoining R2 zone. In doing so, Mr Darroch considers that the development may not be able to achieve the full potential otherwise indicated by applicable standards. 3. Mr Darroch also opines that, to meet the control for the design of the development to contribute "to the visual interest of the street" (consistent with item 8 of the controls) it must be compatible with the streetscape. In this respect, he relies on the planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 ("Project Venture"), and considers that a new development ought to be visually compatible with its context by containing, or at least responding to, the essential elements that make up the character of the surrounding urban environment. He opines that the proposed development, with its two storey, "row housing of parapeted roof form, repetitive detailing, unsympathetic materiality, and extensive building length and minimal side setbacks" fails to contain, or respond to, the essential elements that make up the character of the surrounding urban environment. He opines that it does not contribute to the character of the street because it adopts a front setback that is not consistent with the streetscape. In its context, Mr Darroch considers that the proposed development therefore does not comply with the requirement to "avoid long rows of attached dwellings, long straight driveways and uniform roof designs throughout the development" in item 8. Mr Darroch opines that the uniform roof design provided to every dwelling is uncharacteristic and inconsistent with the control, and that the proposed driveway cannot be described other than as a long, straight, highly visible driveway, contrary to the control. 4. Further, he opines that the proposal does not satisfy the control that proscribes developments from being mirror reversed, having repeated facades or presenting an excessively bulky front façade. In particular, he points out that the façade is repeated throughout the development with minimal differentiation and interest, and that the proposal presents a bulk to the street that is uncharacteristic. The applicants' position 1. The applicants' position is instead that, given the zoning of the site, and compliance with the WDCP 2016, the bulk, scale and character of the development is appropriate for the location. The applicants submit that the likely environmental impacts of the development, which is a mandatory consideration pursuant to s 4.15(1) of the EPA Act, should be assessed through the applicable controls. 2. The applicants rely on the evidence of Mr Brown, who opines that development within a medium density zone will have a different character to that within a low density zone. He considers that the scale and character of the existing dwellings in Carlton Road is varied, and does not reflect the current zoning for medium density development on the eastern side. Mr Brown's evidence is also that where there are controls that seek protection of the existing built form character, if they are adopted in their entirety, they erode the scope for the application of contemporary architectural style and exclude any building styles, forms, material and colours, which essentially fail to replicate the prevailing built form character. 3. Mr Brown notes that, as this is the first medium density development, there is no precedent for development. The development will set a built form character for medium density development. He considers that the development is consistent with the objectives of WDCP 2016, and that development on land zoned R3 in Carlton Road will be different to the western side in the R2 zone. In the absence of a statement of the desired future character of the area, he considers that lands within the R3 zone are different to that of the R2 zone and the rural fringe areas, and that the Council has encouraged higher densities in proximity to centres and lower densities on the edges. He considers that this is evident in the zoning of these lands. 4. Further, he considers there to be no landscape character of Carlton Road, as there is no or minimal street planting. Mr Brown opines that if the "landscape character" is within the front setback of properties, it is limited to lawn areas only. On this basis he considers the landscape character to be "non-existent". 5. The applicants submit that the controls in Part 3.18 at items 8 and 12 are met, as well as the objectives of those controls. With respect to item 12, the applicants submit that there is no blank wall greater than 12m, as the side walls have windows. Contrary to the evidence of Mr Darroch with respect to item 8, Mr Brown's evidence is that the requirement for development to contribute "to the visual interest of the street" does not mean it has to appear the same as existing development. Further, his evidence is that the proposed development adds visual interest by bringing new development that transitions the streetscape from single storey to two storey development, consistent with the provisions of the WLEP 2011 and the WDCP 2016. Additionally, he opines that there is no "long row" of attached dwellings, as the façade is broken by having 3 dwellings on one side, and 2 on the other side. Further, from within the development, he considers that you will see the row of dwellings down the back and those on the northern side, but that these will not be perceived from the street. 6. With respect to the interface to the R2 zone across the road, Mr Brown considers that a zone interface across the road is not as important as one that adjoins the site on the same side of the road. He notes that the R2 zone allows dual occupancies and secondary dwellings. Further, he points out that the whole of Thirlmere has the opportunity to build to 9m, which could allow up to 3 storeys. As such, he considers that a two storey proposal is sufficiently compatible to provide the transition. 7. With respect to control 20 in Part 3.18, which requires a rear setback of 8m, the only place where there is non-compliance is the rear of the dwellings that are adjacent to the northern side boundary. Mr Brown says that at some point unknown to the parties, the WDCP 2016 was amended to include words in italic that now have the consequence of requiring that part of the side boundary that is to the rear of those dwellings, to be considered a rear boundary. The evidence of Mr Brown is that they were instead designed to meet the side setback controls. 8. Further, with respect to the dwelling facades, Mr Brown points out that the dwellings are articulated, and there is a use of a variety of materials with profile wall cladding, fibre cement cladding, cement rendering, and face brick. He also points out that the WDCP 2016 provides a 6.5m front setback, which was a recent change to reflect the changing character of the area. His evidence is that there are elements and features within the front setback that provide depth to the development. As such, with respect to any controls that aren't considered to be met, the applicants submit that the proposed development meets the objectives (at 1.1, 1.2 and 1.3) to "not detract from the existing landscape character", to "enhance the landscape and streetscape character through considerate and attractive design", and to create "attractive streetscapes and landscapes through quality built form and by ensuring that development does not dominate through excessive bulk, height or inappropriate scale." The proposed development is of acceptable bulk and scale 1. In considering the appeal, the Court's role is to assess and determine the present application on its merits, based on the evidence in the proceedings and in accordance with s 4.15 of the EPA Act. In doing so, the applicable development control plan is to be a "focal point" (see Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472). I am also required to consider the likely environmental impacts of the development. In doing so, based on the applicable controls and for the following reasons, I consider that the proposed development is acceptable in terms of its bulk and scale. 2. Firstly, there is no basis upon which the existing character of the Carlton Road streetscape is required to be replicated by new development, or should be taken as an essential part of the desired future character. Instead, I accept the submission of the applicants that the question of whether the development is appropriate for the location should be resolved through the application of the controls of the WDCP 2016. I accept also that the likely environmental impacts of the development, which is a mandatory consideration pursuant to s 4.15(1) of the EPA Act, should be assessed through the applicable controls. There is no requirement in the WLEP 2011 or the WDCP 2016 for development to retain the current streetscape character. I do not accept that the words "detract from the existing landscape character" in the objectives, or the words "visual interest of the street" in item 8 of the controls, convey such a requirement. 3. In particular, Mr Darroch's opinion that the development should be designed with single storey dwellings addressing the street as a transition to the existing character of the streetscape, or that the roof form should draw on the pitched, hopped and gabled roof forms characteristic of the street, has no basis in the objectives or controls of the WDCP 2016 or in the aims of the WLEP 2011. Whilst single storey dwellings with pitched roofs addressing the street might be more sympathetic to the existing character of the streetscape, it is not the role of the Court to consider whether a better, alternative proposal should be pursued. Instead, the Court's role is to assess the acceptability of the current proposal, as well as to consider its environmental impact. In the absence of any control requiring new development to replicate characteristics of the current streetscape, the failure to do so does not warrant refusal of the development application. 4. Secondly, I do not accept the Council's submission that the interface with the adjoining R2 Low Density Residential land is sufficiently sensitive to warrant a different design to that proposed. That is, I accept the evidence of Mr Brown that the bulk and scale of the proposal is adequate to respect the zone interface and is not unsympathetic to the form of development likely to occur in the adjoining zone. The proposal is for a medium density development that presents as multiple two storey dwellings, and is therefore of adequate relationship with the likely future character of development on the other side of the interface, which I accept allows 2-3 storey dwellings of lower density (e.g. dwelling houses or dual occupancies). Its design allows for a transition from the existing character of single storey dwelling houses in the R2 Low Density Residential zone, to double storeys. 5. Thirdly, there is no requirement in the applicable controls that new development is to be compatible with the existing development, or with the bulk and scale of existing development. Given that the eastern side of Carlton Road has not yet been developed in accordance with its zoning for R3 Medium Density residential, I accept the evidence of Mr Brown that new development should reflect the current zoning and controls. This is specifically dealt with by Roseth SC in Project Venture, in which he states at [23] that: "It should be noted that compatibility between proposed and existing is not always desirable. ... There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. ..." 1. Fourthly, the proposal complies with the numeric controls in Part 3.18 of the WDCP 2016 with respect to the maximum dwelling yield (item 2), site coverage (item 4), front and side setbacks (items 18, 19 and 24), internal dwelling layout (item 7) and minimum landscaping requirements (item 39). Similarly, it complies with the numeric controls that prevent blank walls along a front façade to be greater than 5m (item 11) and prevent blank walls along a side or rear façade to be greater than 12m (item 12). Section 4.15(3A)(a) of the EPA Act clearly precludes more onerous standards being imposed where these controls are met. It provides that: (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. 1. There is therefore no legal basis upon which the Court, in exercising the functions of the consent authority, can require greater front or side setbacks, less dwelling yield, less site coverage, or greater landscaping. The fact that each of the dwellings are larger in floor space than the surrounding dwelling houses is not a sufficient basis to warrant refusal, given that the proposal meets the controls with respect to the maximum dwelling yield and the site coverage. 2. Fifthly, the height of the proposal is acceptable. The number of storeys of the proposal does not cause a breach of any provision of the WDCP 2016, as there is no storey control. The proposal is well below the height development standard in the WLEP 2011. 3. Sixthly, I accept that the proposed development does not detract from the existing landscape character, consistent with objective 1.1 of Volume 4 of the WDCP 2016. I accept the evidence of Mr Brown that the existing landscape character is confined to the landscaped front setbacks of the existing dwelling houses, which predominantly comprises lawn. The lawn is interspersed with other plantings which vary from one dwelling house to another. The proposed development does not detract from this character, as it similarly proposes landscaping within the front setback that comprises lawn as well as medium sized plantings along the front and side boundaries and a number of 8m and 5m canopy trees. Similarly, within the proposed development there are proposed to be large areas of lawn interspersed with a range of plantings. Some of those plantings are canopy trees of up to 10m in height, which exceed the height of the proposed development and will therefore be perceived from the street. Consistent with objective 1.2, the landscaping across the site will therefore enhance the landscape and streetscape character of Carlton Road. 4. Seventhly, I accept that the proposed development is consistent with objectives 1.2 and 1.3 (quoted at [28]). The development is designed with dwellings that are articulated, and have a variety of materials with profile wall cladding, fibre cement cladding, cement rendering and face brick. The dwellings along the street frontage are divided into two buildings, with a driveway providing a break in the massing of that façade. I accept the evidence of Mr Brown in that regard. The layout then allows five dwellings to be contained within the central building, which is located behind the larger of the two buildings at the frontage. The rear building creates a row of six dwellings, the visual impact of which is mitigated by the central building and landscaping around the communal open space. As a result of this design, the layout allows most of the bulk and density of the development to be located within the development itself and I accept the evidence of Mr Brown that it will not be perceived from the street frontage. This design, together with the compliance with the height development standard in the WLEP 2011 and the numeric controls in Part 3.18 of the WDCP 2016, allows the development to enhance the landscape and streetscape character of Carlton Road and ensures that the development does not dominate through inappropriate scale or excessive bulk or height. 5. Finally, with respect to each of the controls in Part 3.18 that the Council contends are not complied with, I accept that the proposal either acceptably complies with the controls or otherwise meets the objective of the controls, consistent with the flexible approach required pursuant to s 4.15(3A)(b) of the EPA Act. The proposal acceptably complies with item 13, which requires no more than 50% of the front façade of any dwelling to be garage doors, as each dwelling is two storeys at its front façade and therefore the garage door is less than 50% of that façade. Similarly, whilst the dwellings do not technically comply with item 23 for any garage attached to the dwelling to be located 1 metre behind the front building line, I accept the evidence of Mr Brown that they are inset behind the front façade, with a cantilevered floor above, to ensure that they are subservient to the dwelling. I therefore consider that this design is sufficient to achieve the objectives of the control in item 23. 6. With respect to items 8 and 16, I accept that there are some aspects of the controls that the proposed development does not comply with. I accept Mr Brown's evidence that the design ensures that the development contributes to the visual interest of the street by introducing a new contemporary design within the street, which uses a range of different materials. I also consider that the design of the development avoids long rows of attached dwellings by breaking the massing into four buildings in a layout that provides for variety, with the dwellings at the street frontage divided into two buildings. However, contrary to item 8 of the controls, the development comprises a long straight driveway and adopts uniform roof designs. 7. Item 8 has objectives 1.1, 1.2, 1.3, 4.1 and 12.5. Objective 12.5 concerns development in a low density residential zone, and is therefore not applicable. Objective 4.1 is to "reduce the onset of entrapment areas and other public areas that have poor passive surveillance". The Council did not raise objective 4.1 as one in relation to which there was no compliance, and I consider that objective 4.1 is achieved by the large area of communal open space within the centre of the development, and with the orientation of the central dwellings (units 6 to 10) and of the rear dwellings (units 11 to 16) toward the driveway and the communal open space. Further, as set out above in [51]-[52], I consider that the development is consistent with objectives 1.1, 1.2 and 1.3. Rather than achieving these objectives through avoiding uniform roof design and avoiding a long driveway, the design of the proposed development instead achieves these objectives by using a parapeted roof form on buildings that are well articulated and have a variety of materials, and are designed in a layout that conceals the massing of the bulk within the development. 8. Similarly, contrary to item 16, the dwellings on the street frontage have facades that are repeated across other dwellings, such that the three dwellings to the left (north) on the street frontage each have a similar façade, and the two dwellings to the right (south) on the street frontage each have a similar façade. The central building also has some of the façade designs of the dwellings within it repeated, as does the building to the rear. Most of the repetition is confined to an appearance of repetition, as close inspection shows slight differences in each façade, save for repetition in the facades for units 8 and 9, and units 12 and 16. Nevertheless, item 16 of Part 3.18 has objectives 1.2 and 1.3, discussed above in [52]. Notwithstanding the appearance of repetition of the façade of individual dwellings, the two buildings that present to the streetscape are designed with different façades. That is, the building containing the three dwellings on the street frontage has a different façade to that containing the two dwellings. The difference in façade of the two buildings, together with the small number of dwellings within each building, the use of different materials within each facade, the articulation of the facades and the fact that the bulk of the development at the street frontage is broken by the width of the driveway, provides adequate variety in the design of the development at the street frontage to achieve objectives 1.2 and 1.3. The slight differences across the façades along the central building containing 5 dwellings and along the building to the rear containing 6 dwellings, together with the design of the development to allow its bulk to be largely concealed from the streetscape, is sufficient to achieve the objectives of item 16 notwithstanding non-compliance. 9. The remaining control in relation to which there is a non-compliance is item 20. It requires that the setbacks at the rear of the central building, which are to the side boundary of the adjacent property, be considered rear setbacks. The control therefore requires a 3m setback at the ground floor, and an 8m setback at the upper storey. The central building does not comply at the upper storey, with a setback of 4.92m at the ground floor and around 6.22m at the upper storey. The objectives for item 20 are objectives 1.2, 1.3, 5.1 and 5.2. Objectives 5.1 and 5.2 concern privacy, and the parties' experts agree that no issue is raised with respect to privacy. I consider that the setbacks proposed are adequate given that the ground floor setback is larger than the minimum setback control, that the breach is along the side boundary of the site, and that I have otherwise determined that the proposal is consistent with objectives 1.2 and 1.3. Further, any adverse amenity resulting from the location of the private open space of those dwellings along the side boundary is sufficiently ameliorated through the provision of a communal open space opposite the central building (which is not a requirement of the controls, as discussed below). 10. For the above reasons, I am satisfied that the bulk and scale of the proposed development is responsive to the applicable controls and therefore reflects the character of the area as envisaged by the controls. Contrary to the first contention raised by the Council, the proposed development is therefore not antipathetic to the objective in cl 1.2(2)(b) of the WLEP 2011 to "protect, conserve and enhance the built, landscape and Aboriginal cultural heritage" on account of its bulk and scale. As such, I do not accept that the proposed development will adversely affect the existing and future streetscape character of the area. There is also no evidence to support the Council's assertion that the proposed development is inconsistent with the aim of the WLEP 2011 to "maintain the separation between towns and villages". 11. Similarly, for the above reasons, I do not accept the Council's contention that the visual character of the proposal is poor (contention 5) or that the building design results in an unacceptably poor outcome (contention 6). The design in the context of heritage items and the heritage conservation area (contentions 1, 2 and 4) 1. The Council also contends that the proposal is inconsistent with the aims of the WLEP 2011 and with the requirements of cl 5.10(5)(c) as a result of its relationship to the heritage items and the heritage conservation area. Clause 5.10(5)(c) provides as follows: (5) Heritage assessment The consent authority may, before granting consent to any development: (a) on land on which a heritage item is located, or (b) on land that is within a heritage conservation area, or (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. 1. Similarly, the Council contends that the proposed development is inconsistent with the objectives concerning heritage conservation in the WDCP 2016. Those objectives are contained in Part 5.1 and Part 6.5 of Volume 1. The objectives at 5.1 are: "The objectives of heritage conservation are: (a) To establish good design principles to guide development to and around heritage items, (b) To ensure development is sympathetic to the overall heritage values and characteristics of the area, (c) To identify local heritage character and heritage elements of the built environment, and (d) To ensure the retention and management of heritage values identified for each conservation area and specific precinct." 1. Within Part 5 of the WDCP 2016, to which the objectives in 5.1 relate, there are no controls that apply to the proposed development. 2. The objectives at 6.5 relate to the Thirlmere Heritage Conservation Area, and are as follows: "(a) To ensure development is sympathetic to the heritage character of the Thirlmere Heritage Conservation Area, including a Landscape Conservation Area, (b) To ensure that the design and materials used in new buildings, restoration and renovation of existing buildings is appropriate in scale and form to the character of the Thirlmere Heritage Conservation Area, including a Landscape Conservation Area, (c) To encourage the removal or upgrading of non-contributory elements in the area so as to enhance the setting of contributory elements, (d) To encourage the development of new commercial buildings that are sympathetic in design to existing heritage buildings incorporating skillion verandahs to the edge of the street, and (e) To retain the historic association of Thirlmere and the former great southern railway line with any new development." 1. Within Part 6.5 of the WDCP 2016, to which these objectives relate, there are no controls that apply to the proposed development or to the site on which it is located. 2. Notwithstanding that there are no relevant controls concerning heritage conservation that apply to the site the subject of the proposed development, the Council submits that these objectives do not just apply to heritage items or heritage conservation areas, but also apply to development within the vicinity of heritage items or heritage conservation areas. 3. The Council also contends that the desired future character of the broader Thirlmere village is informed by the character description of the Thirlmere Heritage Conservation Area. That description is as follows: "The Conservation Area contains local significance as a village centre and a relatively intact late 19th century streetscape relating to the construction of the southern railway line. Many of the residences particularly along Thirlmere Way, relate directly to the construction of the line and the commercial buildings in the main street generally reflect the railway village character of Thirlmere. Thirlmere is known to railway enthusiasts as the home of the NSW Rail Transport Museum (otherwise identified as Thirlmere Rail Heritage Centre). Further significant themes contributing towards the heritage of Thirlmere include the timber industry, early pastoralist and agricultural pursuits in the surrounding district, the building of the Queen Victoria Hospital for sufferers of tuberculosis in 1886, and the post World War I and II migration of Estonians who settled west of the village and were significant contributors towards the development of poultry production in the Shire. The first major impetus to development was the 1882 subdivision of Creighton's 1850 grant and a total of three main subdivisions completed during the 1880s, which formed the basis of Thirlmere's settlement pattern today. This minor land boom led to the construction of several substantial buildings including shops, the Welcome Inn, the public school (1888) and the railway station. Thirlmere railway station, originally called Redbank was opened in 1883." The evidence in support of the Council's contention 1. Mr Darroch opines that the proposed development is within the visual catchment of the heritage item at 50 Carlton Road and the heritage conservation area. As such, he opines that the design of the proposed development should respond to the character of the heritage conservation area and the heritage item. In this context, his evidence is that the proposal to address the streetscape with two storey, row housing of parapeted roof form, repetitive detailing, small front setback, unsympathetic materiality and extensive building length fails to respond to its location in the vicinity of the heritage item and the heritage conservation area. The applicants' position 1. Conversely, the applicants submit that in circumstances where the site does not contain a heritage item and is not in a heritage conservation area, cl 5.10(5) of the WLEP 2011 does not apply and the objectives of the WDCP 2016 have no work to do. 2. With respect to cl 5.10(5), the applicants submit that it is directed to the relevant consent authority, and therefore to the Council, to require a heritage management document to be provided. The applicants say that it does not impose any requirement on the applicant for development consent, unless the Council exercises its discretion to require such a document. In circumstances where the Council has never required a heritage management document on the present application, the applicants submit that they cannot be criticised for not doing something which they did not need to do, or that the Council never required. Further, the applicants submit that cl 5.10(4) only applies if consent is sought in accordance with cl 5.10(2). Therefore, they say that cl 5.10(4) is not relevant in the present case because development consent is not sought under clause 5.10. 3. Further, the applicants submit that the objectives in Part 5 of Volume 1 of the WDCP 2016 are not relevant given that Part 5 relates to development of heritage items or in heritage conservation areas, as can be seen clearly in cl 5.2 General Controls which apply only to such development. Similarly, the applicants submit that Part 6 relates to development within a heritage conservation area, and again contains a control that does not apply to the proposed development. The applicants submit that s 4.15(3A) of the EPA Act establishes the interrelationship between the objectives and controls of a development control plan, such that the controls are designed to achieve the objectives. In circumstances where the controls in Parts 5 and 6 of Volume 1 of the WDCP 2016 do not apply to the proposed development, the applicants submit that it is difficult to see how the objectives might be relevant. 4. The applicants submit that the Council relies on a strained meaning of the phrase "in and around heritage items" in objective 1 of Part 5 in order to make the objectives relevant. The applicants submit that, contextually, the word "around" relates to the area immediately around and within the curtilage of a heritage item. Similarly, the applicants submit that the word "area" in objective 2 relates to a heritage conservation area. 5. As such, the applicants submit that any issue concerning the impact on the heritage conservation area or the heritage item can be relevant only by reason of s 4.15(1) of the EPA Act, which requires consideration of "the likely impacts of that development including environmental impacts on both the natural and built environments". In determining those impacts, the applicants rely on the controls, which do not require the development to be constrained by its proximity to the heritage conservation area or the heritage item. 6. Further, the applicants rely on the evidence of Mr Brown. He opines that the proposed development is not within the visual catchment of the heritage conservation area, given the width of Carlton Road and the positioning of buildings in the conservation area. Similarly, he considers that the proposed development is not within sufficient proximity to the heritage item at 50 Carlton Road for the heritage item to be considered part of the context of the site. Further, he considers that there is no predominant building form in the heritage conservation area and that the conservation area does not have any form that is easily recognisable as characteristic of the conservation area. As such, he opines that the proposed development will not have any impact on the heritage item or the heritage conservation area. The design is not required to be sympathetic to the heritage items or the heritage conservation area 1. I am satisfied that the proposed development is not located in sufficient proximity to the heritage item or the heritage conservation area to affect their heritage value or interfere with the retention of their heritage significance. Given the limited elements of the proposed development that will be visible from the heritage item or from the heritage conservation area, I am not persuaded by Mr Darroch's evidence that the design of the proposed development should respond to the character of the heritage conservation area or the heritage item in any way. 2. Additionally, I accept Mr Brown's evidence that there is no predominant building form within the heritage conservation area that characterises the conservation area or that is easily recognisable as an element of the conservation area. Therefore, there is no identifiable building form that would guide future development in the area outside the heritage conservation area. 3. For those two reasons, I consider that, in exercising the functions of the consent authority pursuant to cl 5.10(5), there is no basis upon which the Court ought to require a heritage management document to be provided. 4. Further, I do not accept that the desired future character of the general Thirlmere area can be taken from the character description for the heritage conservation area. The description outlines the history of the area, describes it as having a "railway village character" and outlines key themes and events that contributed to the history of Thirlmere, but does not set out any description of the predominant built form of buildings in the conservation area or identify the desirable physical features of built form in the conservation area or beyond. The control that applies to development in the conservation area relates only to the development of commercial buildings. As such, there is nothing in the heritage conservation area character description that can inform the desired future character of the town of Thirlmere. 5. Finally, I accept the submissions of the applicants that the objectives contained in Part 5.1 and Part 6.5 of Volume 1 of the WDCP 2016 are not relevant in circumstances where there are no applicable controls within those parts, and where the proposed development is on a site that does not contain a heritage item or is not in a heritage conservation area. The objectives within each part of the WDCP 2016 inform the controls for that part, and the controls are one of the means by which those objectives are achieved. If there are no applicable controls within a specific part of the development control plan, then the objectives of those parts are not relevant. Given that none of the controls within Parts 5.1 and 6.5 apply to the proposed development, the objectives of those parts are not relevant to the assessment of the development application. 6. For all of the above reasons, I consider that the proposed development is not antipathetic to the objective in cl 1.2(2)(b) of the WLEP 2011 to "protect, conserve and enhance the built, landscape and Aboriginal cultural heritage" on account of its location near a heritage conservation area and a heritage item. Objectives of the zone (contention 3) 1. The Council contends that the proposed development is inconsistent with the objectives of the R3 Medium Density Residential zone as it does not provide a variety of housing types. This is supported by the evidence of Mr Darroch, who opines that to be consistent with that objective, the development should provide a mix of unit sizes and types between one, two and three bedroom range with occasional four bedroom units. His evidence is that in providing 16 three to four bedroom units, it does not provide a mix of unit sizes. 2. Further, he considers that the proposed development does not provide "for the housing needs of the community" as the proposed development provides for only 1 adaptable unit. He also considers that the uniform size and specification does not suggest that the proposal is responding to the objective of encouraging "the provision of affordable housing". 3. Contrary to the Council's position, there is no requirement for each proposed development within a zone to be consistent with, or to achieve, all of the objectives of the zone. Nevertheless, cl 2.3(2) requires that the consent authority "have regard to" those objectives. They are therefore a mandatory consideration in the assessment of a development application and a proposed development ought not be antipathetic to those objectives. 4. I am satisfied that the proposed development is not antipathetic to the objectives of the R3 Medium Density Residential zone. It introduces strata-titled multi-dwelling housing in an area currently dominated by single dwelling houses. Further, consistent with the Council's controls, 3 of those dwellings are adaptable (Units 1, 4 and 16). By doing so, it contributes to a variety of housing types in the zone. Further, there is no evidence that the proposed development is antipathetic to the objective to encourage the provision of affordable housing. Communal open space, private open space, and other design issues (contentions 7 and 9) 1. The Council contends that the siting of the private and communal open space is inadequate, and that the amenity of the proposed dwellings for future occupants is unacceptable based on two of the bedrooms of Unit 3 having inadequate dimensions. Communal open space 1. Its contention with respect to the siting of the communal open space is founded upon Part 3.18, Item 28 of the WDCP 2016, which provides as follows: "The size of the principal area of private open space for each dwelling may be reduced to 10 square-metres if an area of common open space is provided for the development with the following characteristics: a. Gradient no steeper than 1:20 (Rise:Run) b. Width no less than 6 metres in any direction c. At least 3 hours of solar access to 50% of the area (ignoring shadowing caused by trees). d. Provided with suitable fixed embellishment comprising a minimum of: I. Seating and tables at the rate of 6 seats and one table per 3 dwellings rounded up to the nearest whole number. II. Barbeque facilities at the rate of 1 barbeque per 3 dwellings rounded up to the nearest whole number III. Children's play equipment e. Have a total area no less than 8 square-metres per dwelling f. Must not be located in the front building setback g. Not be used for effluent disposal or garbage storage h. Be secured from public access but available to all occupiers in the development." 1. As such, the characteristics set out at (a) to (g) are required of communal space only to allow the "size of the principal area of private open space for each dwelling [to be] reduced to 10 square-metres". 2. However, given that the principal area of private open space for each dwelling meets the requirements of the WDCP 2016 in Item 27, including for it to be at least 24m2, item 28 has no operation. Indeed, there is no requirement in Part 3.18 of Volume 4 for any communal or common open space to be provided in medium density development. As such, the provision of the communal open space provides additional amenity to the future residents of the development. Further, I accept the evidence of Mr Brown that it provides good amenity by its size, its northerly aspect and the provision of playground and other equipment. 3. I therefore consider that the communal open space is acceptable. Private open space 1. The Council contends that the siting of the private open space does not demonstrate satisfaction with Item 29 of Part 3.18 of the WDCP 2016, which requires that: "Sunlight is to be available to at least 50% of the dedicated private open space area of all dwellings in the development for at least 3 hours between 9:00am and 3:00pm on 21 June." 1. The shadow diagrams clearly demonstrate that the private open space complies with this requirement for solar access. However, I accept that they do not take into account the shading from the 1800mm boundary and dividing fences around each private open space. The Council contends that this particularly relates to the private open space for units 6-10, however I consider that each primary private open space would be affected by shadowing caused by either the fences between adjoining private open spaces or the dividing fence along the northern site boundary. 2. Whilst I accept that this overshadowing caused by the fences (and the adjoining structure on the property to the north) should have been depicted on the shadow diagrams, I consider that any such overshadowing does not warrant refusal of the application. Firstly, each of the primary private open spaces is oriented with an easterly or northerly aspect, with no built form to the north of those spaces (other than from adjoining properties). That is, the only overshadowing of those spaces from the north from within the development is from fencing, which is provided for privacy. Indeed, for units 6-10, the only overshadowing of the primary open space that it will experience from the proposed development arises from the fencing. Further, for units 1-5, each has an additional area of private open space with a westerly aspect within the frontage. Secondly, any adverse amenity resulting from additional overshadowing of private open space occasioned by internal and boundary fencing is sufficiently ameliorated through the provision of the communal open space, which receives solar access from 10am to 3pm on 21 June. Size of two bedrooms 1. The Council contends that the amenity of the proposed dwellings for future occupants is unacceptable, because dwellings 1 and 3 have two of their three bedrooms with dimensions that are below 3m on one side (room dimensions are 2710 x 3400mm). In his evidence, Mr Darroch sought to extend this contention to a number of other dwellings (dwellings 6-10), which have two of their three bedrooms with dimensions 3000 x 3000mm. He opines that once stud-work, insulation and linings are complete the internal width would be less than 3000mm for those dwellings. 2. The contention is based on the Draft Medium Density Design Guide, published by the Department of Planning in 2017. The final version of the guide is the Low Rise Medium Density Design Guide for Development Applications (Department of Planning, 2018). The design guide does not appear to be a mandatory requirement pursuant to s 4.15 of the EPA Act, nor is it required to be considered under any applicable instrument. 3. Nevertheless, I consider the bedroom sizes adequate. Firstly, the bedrooms that are 2710 x 3400mm (and less than the 3m minimum) have an area greater than what the bedroom size would be that meets the minimum dimensions. Secondly, the bedrooms that are 3000 x 3000mm on the plan clearly meet the minimum dimensions. They are the internal dimensions that the development consent seeks. Whilst I appreciate that there might be slight variations that occur during the construction, there is no evidence (other than the speculation of Mr Darroch) that such variations would be so significant that the dimensions would be so reduced to render the bedrooms unacceptably small. Sustainability measures (contention 8) 1. The Council contends that the proposal does not incorporate sustainability measures such as solar power generation, solar heating, water sensitive urban design or appropriate shade tree locations to reduce heat effects of sun on paved areas. It contends that this is contrary to objectives 6.1 to 6.2 and 9.2 of Volume 4 of the WDCP 2016, which provide: "6. Water Sensitive Urban Design 6.1. To encourage the retention of land as "deep soil" exposed for infiltration of rainwater. 6.2. To retain, as far as practicable, natural stormwater flows. … 9. Ecologically Sustainable Development … 9.2. To ensure that the development of land for residential purposes is carried out in a way that makes efficient use of natural resources." 1. However, each control that seeks to achieve those objectives is met by the proposed development. Those controls are set out at Items 4, 5, 6, 27 and 39 of Part 3.18, and concern site coverage, cut and fill, the minimum requirements for private open space and the minimum landscaping requirements. The proposed development complies with each of those controls, proposes permeable surfaces to allow for better retention of rainwater and, consistent with item 39, the agreed conditions of consent include the provision of an automatic irrigation system for common areas. There are no applicable controls within Part 3.18 that relate to achieving objective 9.2. There are no controls that require the provision of solar power generation or solar heating. 2. Given that the controls of the WDCP 2016 are met concerning the objectives identified by the Council, s 4.15(3A)(a) of the EPA Act precludes more onerous standards being imposed. Accordingly, there is no basis upon which to refuse the proposed development on account of the above objectives. Concerns raised by the resident objectors 1. For the above reasons, I have determined that the proposed development is consistent with the zoning of the land in the WLEP 2011 and the Council's controls in the WDCP 2016. Any breaches of the controls in the WDCP 2016 by the proposed development are only minor in nature, and where there is such a breach I have determined that the objectives of controls are met notwithstanding that breach. Where the zoning permits multi-dwelling housing and the WDCP 2016 permits it in the density proposed, I cannot accept the residents' concerns that the proposal is an overdevelopment of the site. As stated by Preston CJ of LEC in Nessdee Pty Limited v Orange City Council [2017] NSWLEC 158 at [77]: "The reasonableness of the expectations of residents concerning the type and scale of development that can be carried out in an area is influenced by the zoning and the range of uses permitted." 1. Similarly, McClellan CJ in BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [118] stated that: "In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts." 1. Further, as outlined above, despite the concerns of the residents, the Council's controls do not require new development of multi-dwelling housing to be designed to reflect the current character of the single dwelling houses along Carlton Road. 2. The resident objectors also raised concerns about contamination of the stock piles located on the site, and the adequacy of the parking provided by the development. Contamination of stockpiles 1. In considering potential site contamination for the purposes of determining a development application, cl 7 of the State Environmental Planning Policy No 55—Remediation of Land requires consideration as to whether the land is contaminated and requires remediation. 2. In a Phase 1 (Preliminary) Environmental Site Assessment conducted by Envirotech, two small stockpiles of unvalidated fill were identified on the site. The remainder of the site was classified as low potential for contamination. In a targeted Phase 2 Environmental Site Assessment, samples were taken from the stockpiles and tested. The results of that testing are contained in the report dated 10 August 2015, and demonstrate chemical concentrations below the relevant health investigation levels. Similarly, the report clearly states that asbestos was not detected within any of the soil samples, and there was no visible asbestos or building materials within the area of investigation on the site. The report therefore reaches the conclusion that the site is suitable for the proposed development. 3. As a result of this analysis, I accept that there is no evidence of contamination and the site is therefore suitable for the proposed development. Parking 1. The proposed development provides 1 parking space for each dwelling, and one visitor parking space for every 3 dwellings. This is consistent with the controls in Items 31 and 33 of Part 3.18 of Volume 4 of the WDCP 2016, which provide: "31 A minimum of one (1) parking space shall be provided on the site for each dwelling. Such a space, or spaces may be an open hard stand space or a carport or garage, whether attached to or detached from the dwelling ... 33 A minimum of one (1) visitor parking space per three (3) dwellings (rounded up) must be provided wholly on the site. Such a space or spaces may be an open hard stand space or car port or a garage, whether attached to or detached from the dwelling. Visitor parking must be appropriately signposted on the site." 1. As set out above, s 4.15(3A)(a) of the EPA Act prevents more onerous standards being imposed where the standards are met. Therefore, whilst the residents have concerns about whether there is adequate parking provided within the proposed development (and therefore whether the parking will overflow and cause problems for kerbside parking in Carlton Road), it complies with the provisions of the WDCP 2016 and therefore s 4.15(3A)(a) of the EPA Act precludes more onerous standards being imposed. The parking provided is therefore adequate. Other concerns 1. There are no other concerns raised by the resident objectors that warrant refusal of the application. Outcome of the appeal 1. I therefore find that the site is suitable for the proposed development and that the development is an appropriate response to the applicable controls. There is no basis to refuse the development application and it is granted accordingly, subject to the conditions of consent as agreed between the parties. 2. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted for the demolition of existing structures, the removal of trees and the construction of a two-storey multi-dwelling housing development containing 16 dwellings at 56-58 Carlton Road Thirlmere, together with associated stormwater drainage and civil works, landscaping and strata subdivision, subject to the conditions of consent in Annexure A. 3. Exhibits 1, 2, 3, 4, 6, G and L are returned. ________________ Commissioner Gray 353603.17 Gray C Annexure A (275 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: 23 May 2019