Land and Environment Court New South Wales Medium Neutral Citation: Gabeti Pty Ltd v Bayside Council [2019] NSWLEC 1471 Hearing dates: 21 February 2019; 21 May 2019; Written submissions on 21 June 2019; 15 July 2019 Date of orders: 02 October 2019 Decision date: 02 October 2019 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders that: (1) The appeal dismissed. (2) The development application is refused consent. (3) The exhibits are returned apart from Exhibits A, C and 4. Catchwords: DEVELOPMENT APPLICATION – whether the location of the site outside the area identified as a hazard risk from the Botany Industrial Park is suitable for residential intensification – (or where the Council "considers" the site to be located adjacent to Denison Street, a mapped Dangerous Goods Route and deemed to be within the identified area) – whether the site is suitable for multi dwelling development – the public interest Legislation Cited: Botany Bay Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Cases Cited: Aristides v Bayside Council [2017] NSWLEC 1248 BP Properties v Lake Macquarie City Council (2004) 138 LGERA 237 Texts Cited: Botany Bay Development Control Plan 2013 NSW Department of Planning, Industry and Environment, "Hazardous Industry Planning Advisory Paper No 4: Risk Criteria for Land Use Safety Planning" (January 2011) Category: Principal judgment Parties: Gabeti Pty Ltd Bayside Council (Respondent) Representation: Counsel: A Whealy (Solicitor) (Applicant) M Staunton (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth (Respondent) File Number(s): 2018/00214923 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings constitute an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) in respect of Bayside Council's (Council) deemed refusal of a development application for construction of a multi-dwelling housing development at 25 Grace Campbell Crescent, Hilldale (site). 2. The proceedings were commenced onsite with a view on 21 February 2019 and adjourned that day to allow for the provision of a contamination report to address Contention 5 of the Council's Statement of Facts and Contentions (Exhibit 4), which was jurisdictional. During the adjournment, Gabeti Pty Ltd (applicant) was granted leave to rely on a third set of amended plans (Exhibit A), and a supplementary joint planning report in respect of the plans, which supersedes the original joint planning report (Exhibit 1). The proposal 1. The development application No 2017/1247 (DA) proposes demolition of the existing dwelling and the construction of 5 x 3 storey (two storey including attic) townhouses with basement parking, a new vehicular cross over at the eastern side of the site, and a new pedestrian pathway along the western boundary allowing for direct access to the town houses. Each of the town houses has 2 parking spaces and storage within the basement level. 2. Following joint conferencing of the parties' planning experts, the application was further amended. In brief, the amendments include the following: * Removal of the splay driveway crossing (based upon the advice of the traffic experts) which increases the opportunity for deep soil planting in the front setback of the site and in the Council's reserve. The waiting bay in the front setback was also deleted. * An updated arboreal report confirming that the tree in the adjacent property to the west at 27 Grace Campbell Crescent can be retained. * Allocation of the car wash bay/visitor space to also be used as a service bay. * At ground level, the eastern side setback has been modified to allow for increased on slab planting adjacent to the top of the basement entry. * At the rear of the site, an integrated landscape outcome has been provided to the subject site and park to the rear. * On the attic level, the dormer windows along the western side have been removed. * The rear of the northern/rear townhouse has been recessed to reduce the scale as it is viewed from the reserve to the north. * The presentation of the built form to the streetscape has been rationalised through the use of more lightweight materials. * An amended landscape plan accompanies the amended plans which reflect the above modifications. * A roller door to the basement entrance combined with increased landscaping within the eastern side setback (900mm) has also been incorporated in the amended design. The Contentions 1. Despite these amendments and the provision of additional information, the Council contends, in summary, that – 1. The Court would not grant consent to the intensification of the population of the site based on risk. 1. It is accepted that the development will result in residential intensification of the site. (A maximum additional population of 15 residents during the night when all residents are expected to be in their homes (Exhibit 3, tab 2, p2)). 2. This increase in the permanent population is near two major hazards being: the Botany Industrial Park (BIP) and the Dangerous Goods (DG) Transport route along Denison Street. This is said to result in an unacceptable risk to the safety of the occupants of the proposal. 3. The two identified risks are toxic injury from the BIP and "societal risk" from the BIP. (The term "Societal risk" is explained in the NSW Government guideline document entitled Hazardous Industry Planning Advisory Paper No 4: Risk Criteria for Land Use Safety Planning dated January 2011 (HIPAP 4) (Exhibit 5, tab 2). The statistical chance that an event might cause so many deaths in or around some location that it might provoke a socio-political response from the public that could have adverse repercussions from the institutions responsible for putting in place the provisions and arrangement for protecting people. It is therefore a risk of an adverse social reaction to the government for example (Applicant's Written Submissions (AWS) dated 12 June 2019 at p3). 4. At the hearing, the Council accepted that the risk associated with toxic injury can be resolved by the implementation of an effective emergency plan (draft conditions 92, 93 and 94). However, concern about "societal risk" remained at issue and according to the Council is a relevant consideration under s 4.15 of the EPA Act – under the Botany Bay Development Control Plan 2013 (DCP) (Exhibit 3, folios 383-385 and folios 389-390): s 4.15(1)(a)(iii), the likely impacts of the development including social impacts: s 4.15(1)(b), suitability of the site: s 4.15(1)(c); the public submissions and the public interest: s 4.15(1)(e). 1. The Precautionary Principle; and (3) Inconsistency with the objects of the EPA Act 1. In the alternative, if I do not accept as conclusive the evidence about risk, the Council contends that there is simply insufficient information to satisfy me that the risk is acceptable and in those circumstances invites me to adopt the Precautionary Principle and refuse consent because I cannot be satisfied that the development is consistent with the objects of the EPA Act. 1. Additionally, the Council contends that the DA should be refused for more orthodox planning reasons namely: (1) Overdevelopment (5) Streetscape (6) Height (7) Landscaping (8) Setbacks (9) Roof form and top floor design (10) Lack of effective setback and oversized rooms (11) Public interest (12) Inadequate and inaccurate documentation (13) Undesirable precedent Expert evidence 1. The evidence in this appeal falls into two areas of expertise being risk and town planning. 2. The risk experts are Dr Raman for the Council and Mr Meiers for the applicant. They deal with Contentions 1, 2 and 3 in their written joint report (Exhibit 2). They also gave concurrent evidence at the hearing. 3. The town planning experts are Mr Lawler for the Council and Mr Betros for the applicant. They deal with the remaining contentions in their written joint report (Exhibit 1). They also provided concurrent evidence in Court. Outcome of the appeal 1. For the reasons that follow, I have decided to refuse consent to the development application and dismiss the appeal. Background 1. The issues raised in this appeal relate to the following facts. 2. The site is located in the R3 – Medium Density Residential zone under the Botany Bay Local Environmental Plan 2013 (LEP). Attached dwellings are permissible uses with development consent in the R3 zone. 3. The development, as proposed, is compliant with the maximum height limit of 12m as shown on Exhibit A plans DA13 and DA14 and has a floor space ratio (FSR) of 0.91:1 which is less than the maximum FSR control of 1:1. 4. After lodgement on 20 December 2017, the DA was advertised and notified by the Council and two objections were received during the notification period. The application was also referred to internal and external specialists for comment. 5. The Department of Planning (Major Hazards branch) provided its response on 25 June 2018. It raised concerns about the submitted information dealing with risk as it considered the assessment to be inadequate. In particular, the Department informed the Council that the applicant's risk assessment needed to be updated using BIP 2018 results in respect of injury from toxics and societal risk (Exhibit 4, Amended Statement of Facts and Contentions (ASOFC), Contention 1, p12 (b)). 6. The issue of risk arises because the site is located on the northern side of Grace Campbell Crescent approximately 70m east of the BIP and Denison Street – a route used for dangerous goods transported by facilities in Botany Industrial Park and in Port Botany (Exhibit 2 at 3.1). 7. As stated, the proposed development is considered to be a residential intensification. This term is defined in Part 8 of the DCP to mean: "an increase in the number of dwellings or an increase in the number of rooms providing temporary of permanent accommodation". 8. In this case, it is proposed to increase from 1 dwelling to 5. 9. The immediate development surrounding the site is predominately single storey buildings. The double storey dwelling house at 94 Denison Street can be distinguished by its lot size and orientation, and the nearby residential flat buildings (up to 8 storeys) are physically separated by an open space of about 80m. The surrounding area is also influenced by the encroachment/or expansion of industrial uses into the residential setting along Denison Street. This encroachment is acknowledged in the Hillsdale Character Precinct chapter of the DCP and is described as having "…intensified the industrial and residential land use conflict in this part of the Precinct". 10. The proximity of the site to the BIP and DG Transport route is shown in Figure 1 below. 1. Because of the proximity of the BIP industrial complex to residential areas, there have been a number of safety studies undertaken by the Council and NSW government departments into the cumulative risk of industrial activities in order to quantify and measure the hazard risk associated with such activities. These studies have informed the DCP and resulted in the identification of a "consultation region" intended to protect surrounding lands from the potential for risk from an incident at the BIP. The mapped area below is Figure 2 of Part 8.2 of the DCP – it identifies the extent of the consultation region proximate to the site which is identified with a red star. 1. Under Part 8 of the DCP, any development within the "consultation region" that will result in "residential intensification" requires the concurrence of the Department of Planning and Environment (Exhibit 3, folio 388). (Noting that this is not a statutory concurrence required under the EPA Act or the LEP). 2. The risk assessment invited by Part 8 of the DCP is intended to determine the level of risk to the potential future occupants of any proposed development which may be adversely impacted by incidents at the BIP and the DG Transport. The risk assessment is then used to determine whether a site is suitable for the proposed development where that development would result in "residential intensification". This methodology, the Council submits, has been consistently applied and is evidenced in the assessment reports for the DA approvals contained in Exhibit F tendered by the applicant in this appeal. 3. There is no dispute that the site is physically located outside the "consultation region". However, the Council "considers" the site to be located adjacent to Denison Street, a mapped Dangerous Goods Route (a defined term in the DCP) (Exhibit 3, folio 389) and thereby deemed to be within the region. It relies on the provision of the DCP which states: "where a site is considered by the Council to be located … adjacent to a dangerous goods route defined in this plan, any development on the site will be assessed and viewed as though it was within the area…" 1. As it happened, the applicant did lodge Risk Assessments Reports with the original DA (Exhibit 5, tabs 1 and 2) based on the report by SHERPA 2012 (Exhibit 5, tab 10). Within this first risk assessment report (Exhibit 5, tab 1), the applicant's risk consultant, Mr Meiers, made recommendation for the applicant to consult with SHERPA to confirm that the risk impacts from the BIP are insignificant in risk terms and specifically that the societal risk criteria had been met. This consultation did not happen. 2. The Council was critical of the methodology used in the risks reports provided by the applicant with the DA (Exhibit 5, tabs 1 and 2) because they had not been updated to take into account the latest SHERPA 2018 (Exhibit 5, tab 3). The Council also took issue with the fact that the reports had combined the risk of the BIP and the DG transport. 3. The risk experts addressed this in their joint report. They carried out an assessment using the latest data from SHERPA 2018. They agreed on the risks (Exhibit 2, par 3), agreed on the quantitative risk criteria (Exhibit 2, pars 4.5, 4.6 and 4.7) and agreed on the qualitative risk criteria (Exhibit 2, par 4.19). They adopted these criteria from HIPAP 4 (Exhibit 5, tab 4) and HIPAP 10 (Exhibit 5, tab 5) which are referred to in the DCP (Exhibit 3, folio 389). Their conclusions are set out in Exhibit 2 on pages 18 and 24 and are agreed. 4. In summary, their conclusions confirmed two areas of concern being toxic injury for the BIP and societal risk from the BIP. After it was accepted that the risk associated with toxic injury could be managed by the agreed draft conditions the focus turned to "societal risk". This risk, as analysed by the risk experts, is depicted graphically in Figure 10 of Exhibit 2. It is referred to as the F/N curve. Put simply, the graph seeks to address the risk of an incident at the BIP killing 1000 people. If the risk of that occurring exceeds a 1 in 10 million chance, it is said to fall into the intolerable region. The point where the BIP QRA crosses the 1000 fatality point is 1 in 100 million. 5. The agreed evidence of the risk experts is that if the existing approvals identified in the SHERPA 2018 report (excluding the subject development) are constructed, then societal risk from the BIP will not be satisfied (Exhibit 2, p14). This is because on the F/N curve (Exhibit 2, Figure 6 p20) the number of fatalities is capped at 1,000. This cap recognises that any risk of an event that could result in more than 1,000 fatalities is intolerable. And, after taking into account the identified approvals in Exhibit 6 – (not taken into account in the SHERPA 2018 – being Stage 2 of the British American Tobacco site which would result in additional 2015 dwellings), the risks experts said that the projected population is likely to result in a further intrusion into the intolerable region of the F/N curve – although they could not be certain as no modelling had been carried out. 1. During his oral evidence, Mr Meiers conceded that he was the person who identified that incremental societal risk should be assessed having regard to the proposed development. This recommendation is at p16 of the risk report dated 19 December 2017 which provides: "The societal risk result for the BIP is presented in Figure 10. The result shows the FN curve is towards the middle of the ALARP ("As Low As Reasonably Practicable) zone. This means that there is some "risk budget" available for an increase in population around the BIP. In accordance with HIPAP 4 , the incremental societal risk will need to be assessed and reference should be made to SHERPA Engineering in this regards to compute the societal risk FN curve for the population of the new development at 25 Grace Campbell Crescent , with a population of around 20 persons. HIPAP4 suggests that if the new development on its own does not present a risk greater than the "negligible" zone the development should not be precluded. The incremental in societal risk will need to be computed by SHERPA, but it is anticipated that the results will show a small exceedance for the combined case and that the proposal should not be excluded on societal ground" The Applicant's position 1. The applicant submits that I can avoid the DCP risk issue completely by accepting that the DCP provisions referred to in Part 8 are inconsistent or incompatible with the LEP and by operation of s 3.43(5) of the EPA Act should be rejected. In support of this, the applicant submits that the site is zoned R3 Medium Density Residential under the LEP. Permissible uses include amongst other things: "… dwelling houses, multi-unit dwellings, child care centres …" – all forms of housing including some more sensitive land uses than the single dwelling house. 2. In terms of identifying inconsistency, the applicant submits that the starting point must be the zone objectives. In this case, all the objectives of the zone promote housing and associated uses. And, as the site has not been rezoned to allow commercial and industrial uses (they are presently prohibited), the applicant contends that the site can only be redeveloped for residential. Residential intensification is an express purpose of the zoning, yet the Council seeks to preclude it on that basis in this case (AWS at par 47). 3. Alternatively, the applicant submits that the Court need not "trouble itself" with the question of whether, under the DCP controls or under s 4.15(1) of the EPA Act, risk is an issue because there is nothing about the site or about the development which gives rise to any substantive risk issue for the proposed occupants of this site or for any other person off-site (AWS at pars 4-12). The site location places it outside of areas that might be subject to risks as shown on the contour maps at (Exhibit 2, pp 20-21). The site is located 45m away from the mapped Dangerous Goods Route. 4. In exercising the functions of the Council, the applicant submits that, unless I consider the site to be adjacent to Denison Street, I cannot rely on this provision of the DCP to import the site into the "consultation region" and that assessment process. It contends that in exercising the functions of the Council on appeal, I will not be satisfied that the site is adjacent to the dangerous goods route in order to rely on the provision. 5. The applicant submits in the absence of any unacceptable risk to the occupants of the site that the Court would not refuse this DA only on "societal risk" – which is the statistical chance that an event might cause so many deaths in or around some location that it might provoke a socio-political response from the public (AWS at par 4). While the new data relied upon by the Council (obtained by the applicant under subpoena from the Department of Planning and Environment) may give rise to concerns about "societal risk" levels having already been exceeded by other approvals for other sites, the applicant maintains that this cannot preclude an approval of this DA under the current planning controls. It repeats the submissions accepted by the Court in Aristides v Bayside Council [2017] NSWLEC 1248 (Aristides) that the issue of risk is "inherently unsuitable" to be dealt with on a DA by DA basis. 6. And, if the new data about societal risk levels having been met are correct, then the Council and the Department of Planning and Environment can at any time initiate a strategic planning exercise under Part 3 of the EPA Act to determine whether, and to what extent and in what locations, land around the BIP should be rezoned. There are obvious implications for the housing and economic targets of the state, which would need to be considered as part of that strategic planning exercise. Community consultation would be required and taken into account "…particularly of it is proposed to prohibit residential development of their land as the Council is effectively seeks to be done to the applicant via these proceedings" (AWS at par 5). 7. The NSW Government Guidelines are said to repeatedly emphasise that risks should be managed by, and at, the source of the risk and should not sterile land owned by others. The recommendations in the HIPAP 10, set out at par 32 of the AWS, are submitted as evidence of the fact that a facility such as the BIP should not sterilise the surrounding land and that where risks occur, the operator, in fact, should be responsible. The buffer envisaged in Council's study about risk between the industrial area and the surrounding residential zones has never formally eventuated. 8. The Council commissioned "Review of planning Controls, Denison Street Hillsdale Study" (Study) under taken by Arriscar Pty Limited dated 16 August 2016 is also said to be relevant. This Study undertook a review of land use safety planning controls due to the proximity of the BIP and the transport of dangerous goods along Denison Street. The risk-based planning control map from Arriscar's review of Planning Controls is shown in Figure 3 below. 1. The Arriscar study used the risk criteria established by HIPAP 4 and maps areas to require specific risk based planning controls. The applicant relies on BP Properties v Lake Macquarie City Council (2004) 138 LGERA 237 to invite the Court to approve the DA because this is consistent with the zoning and significant weight should be given to this fact on the evidence as presented. 2. Even accepting the concessions made by the risk experts at Court that the applicable criteria for societal risk is potentially already exceeded as a result of other approvals, a position that cannot be confirmed without further modelling, the applicant submits, in any event, that the SHERPA 2018 report offers a conservative approach and covers a larger area than would be required (AWS at pars 14-18). It includes population estimates of more than 20,000 people in the area. On that basis, debates of what approvals have been counted, as raised by the Council (Exhibit 1, p 121), are misplaced because SHERPA 2018 has already conservatively estimated the population numbers in any case. Accepting that the SHERPA 2018 report has found "societal risk results are in the ALARA region which indicates the risk is not unacceptable but that it is not negligible" (p 13), the report states that "no recommendations have been made as a result of the QRA update" (p 13). On this basis, the applicant submits that, in the 6 months from the issue of the report, no particular action is required because the risk level generated from the BIP facilities remain very similar to previous years. There is no evidence of any initiative to review either local planning controls or the operations at the BIP. 3. Even on a plain reading of the DCP, the issue of risk from the BIP has been known for 34 years. The zoning has not changed from Medium Density Residential under the LEP or the earlier version in 2013. The applicant impresses on the Court the need to "give effect" to the strategic housing targets that form part of the plan making regime under Part 3 of the Act. 4. The applicant submits that the 2018 QRA social risk analysis and other analysis relied upon by the Council are simply "guidelines" or tools covering a large area for measuring societal risk in order to understand at what point the risk of a large scale incident should be on the radar of the government authorities who might be responsible (AWS at par 21). Refusing this DA will simply make no difference to the status quo – this is a strategic planning matter (AWS at par 22). It submits at AWS par 23: "To summarise, all that is really happening here, in terms of societal risk, is that by adding more numbers of people (15) to an educated guess of a total population number (20,736) the statistical odds of a large scale fatality event occurring somewhere else, closer to the BIP, are increased, albeit to an extent that the risk experts agree is not material". Council's position – risk 1. The Council submits that the Court's decision in Aristides can be distinguished on its facts. The SHERPA 2018 was not available and new data obtained under subpoena from the Department of Planning and Environment gives rise to concerns about "societal risk" levels having already been exceeded by other DA approvals for other sites which were not counted in the SHERPA 2018. The applicant's risk expert, Mr Meiers, confirmed this when he said that the incremental "societal risk" associated with an approval of this development and the projected populations of other approved developments (including Stage 2 of the British Tobacco site with an additional 2015 dwellings) have not been assessed – despite his recommendation for that assessment at p16.24 of the Dangerous Goods Risk Assessment Report dated 19 December 2017 (Tcpt, 21 May 2019, p 81 (45-50); p 82 (5-10)). 2. In those circumstances, the Council invites me to accept the adopted risk criteria HIPAP 4 (Exhibit 5, tab 4) and HIPAP 10 (Exhibit 5, tab 5) referred to in the DCP, the assessment carried out by the parties' risk experts using the latest data from SHERPA 2018 (Exhibit 5, tab 3) and their conclusions at pages 18-20 about two areas of concern namely toxic injury contour from BIP and on the basis of societal risk from BIP refuse this DA. 3. At the time of writing his report, Mr Meiers did not have the SHERPA 2018 and his forecast that "risk budget" would be available was based on the modelling contained in the SHERPA 2012 report. The Council contends that it is now apparent from SHERPA 2018 that there is no risk budget available, noting the only way to be certain that the development would not cause the F/N curve to move vertically out of the ALARP region into the intolerable region is comply with Mr Meiers original recommendation and have SHERPA carry out the modelling including the projected increase in population resulting from the propose development. 4. The evidence is that the SHERPA 2018 report provides the latest and most up-to-date reported data however; it does not take into account relevant approvals that the experts agree with will increase the population and influence the incremental increase in societal risk. 5. After separating out the societal risk contributions from fixed installations (the BIP) and from the DG transport, and in the absence of modelling by SHERPA, the risk experts attempted to update the F/N curve in Figure 10 (Exhibit 2) to assess the impact of an approval of this DA. That estimate shows a breach of the intolerable risk curve both in terms of frequency of risk by numbers of fatalities and by the number of fatalities exceeding 1000. As the experts explained in Court, the purple line (which guesstimates the incremental increase in societal risk as a result of the development) was calculated by placing 15 additional persons at "every point of the curve" for the purposes of trying to assess the impact of the development of the F/N curve (Exhibit 2, p14). 6. That said, they agreed that the suggested breach of the F/N curve may or may not be breached by the development and suggested that the stepping in the F/N curve was most likely caused by the approval of the industrial subdivision to the north of the BIP (Quarry Circle). Both experts confirmed that the only was to be certain that the development would not cause the F/N curve to move vertically out of the ALARP region into the intolerable region is to carry out the modelling recommended by Mr Meiers including the projected increase in population resulting from the proposed development. Finding – Risk 1. The matter of toxic injury is addressed by the conditions (Exhibit 7, conditions 92, 93, and 94). And, I accept that the site is physically located outside the "consultation region" that might be subject to societal risks (Exhibit 9). The contour maps in Exhibit 2 at pages 20-21 confirm as much. 2. However, I reject the applicant's submission that the DCP provisions about risk are inconsistent with or incompatible with the LEP by operation of s 3.43(5) of the EPA Act and should not be considered in this case. The DCP does not prohibit the development in the R3 zone. It requires a risk assessment to determine the level of risk to the potential future occupants to be undertaken to determine the level of risk to potential occupants of any proposed development which may be adversely impacted by incident at the BIP and DG transport. On any view, the matter of 'societal risk' is a relevant consideration in the assessment of this DA under s 4.15 of the EPA Act if only under the heading of public interest. 3. The latest information provided in the SHERPA 2018 report has shown a significant reduction in the risk budget for societal risk and I accept in that circumstance there is a need for careful assessment against the societal risk criteria. The evidence in this case demonstrates that the societal risk may be at the intolerable level and the proposed development needs to be assessed taking into account this latest information. This has not happened. 4. Although the applicant has sought to discount the use of societal risk, the experts have agreed that use of criteria was best practice. It was on this basis that the experts attempted to update the F/N curve in Figure 10 in Exhibit 2. In the absence of modelling by SHERPA, the experts have undertaken an estimable which shows a breach of intolerable risk curve in both frequency of risk by the number of fatalities and by the number of fatalities exceeding 1000. 5. Ultimately, the only way to be certain that the development would cause the F/N curve to move vertically out of the ALARP regions into the intolerable is to comply with the original recommendation of Mr Meiers and have SHERPA carry out the modelling including the projected increase in population resulting from this development. 6. In those circumstances, based on the evidence of the risk experts, I am not in a position to make any final assessment of the incremental societal risk until the updated modelling recommended by Mr Meiers is undertaken. I am not satisfied on the evidence that the development is consistent with the objects (a), (b), (c), (e), (j) of s 1.3 of the EPA Act or for that matter, that an approval of the DA is in the public interest under s 4.15(1)(e). Planning evidence 1. The planners have assessed the amended plans in their joint report dated May 2019 and in Court. 2. As noted earlier, it is accepted that the development is below the height limit of 12m and has an FSR of 0:91:1. And, while the planners have agreed that the amendments partially addressed some of the contentions and represent an improved outcome from the original proposal (Exhibit 1, par 11), Mr Lawler remained of the view that the development is an overdevelopment of the site. In that regard, he emphasised that these development standards are maximums and as such, there is no entitlement for a development to achieve these standards. 3. Having regard to the constraints of this particular site including its context and location, land size and width, the Council contends on the evidence of Mr Lawler that the site is constrained and cannot achieve the maximum development potential under the planning controls. The Council distinguished the other multi-dwelling developments visited on the site view within different parts of the Precinct where there are many other two storey developments. This small pocket of the zone contains single storey developments. This area has a particular character and streetscape which must be considered in the ultimate design of the proposal. The Council refers the Court to the DCP control which invites appropriate transitions in built form and land use intensity: clause 4B.2.5 C2 and a design response which enhances the streetscape. 4. Mr Lawler believes that the two adjoining sites to the east and west which have similar dimensions, orientations and forms of development (multi-dwelling) both of which are single are the relevant context for this development site. The DCP design excellence provisions require development to take into consideration the characteristics of the site and adjoining development by undertaking a site analysis. In that regard, Mr Lawler does not support the orientation of the dwellings and the presentation of Unit 1 to the street. He is of the opinion that the front setback will be dominated by built structure in the form of the driveway and basement entry, the planter boxes at the street, the retain wall and fence and the paved side entry and fence. The presentation of the development to the street is contrary to the existing open streetscape and uncharacteristic of the area. 5. Even allowing for the DCP's acknowledgment that deep soil may be constrained by the provision of basement car parking, the Council submits that the landscaping outcome on the site is inadequate. In that regard, the development only achieves 24% of deep soil planting, well short of the 35% required under clause 4B.2.8 Control 25 (Exhibit 3, folio 333). The development proposes a planter with a soil width of 300mm to 1500mm for about one half the length of the eastern boundary however; the area for the planting is limited to on slab planters that the Council contends are interrupted by the undersized private open space areas of the town houses. (Noting that ultimately, Mr Lawler agreed that this private open space met the DCP minimum area required). 6. The Council submits that the disparity in bulk and scale is not assisted by the non-compliance with the side setbacks. The development does not comply with the 3m side setbacks and control C10 (iii) in which no part of a building or structure is to encroach. The western side setback has no deep soil. The eastern side setback as I said has only a 1.2 m of deep soil for about one half of the boundary. The applicant takes issue with the Council's strict interpretation of the setback control in this case. It submits on the evidence of Mr Betros that the proposal does not need a greater side setback and that the Council's interpretation of the setback requirement in section 4B2.10 for a 3m setback on all sides is not the intent of this control for a 13.75m wide site. It is unworkable on such a narrow and long site. Instead, Mr Betros' evidence is that it is only the portion of the building above 7m than needs to be set back 3m. In any event, the applicant submits that the control needs to be applied flexibly and in this case, the development more than complies on the east. On the west, the development now has a minimum ground floor setback of 1.5m for Unit 1 but increasing to 2.2m through the middle of the site and presently 1m at level 2 and raking it at level 3 via the pitched roof form and providing this 3m as required. 7. With respect to the form of the building Mr Betros, describes the building as 2 storeys with an attic, despite the fact that the attic is not contained in the roof but includes side walls and then a steep pitch in order to accommodate the bedrooms: Section DA 18 and DA19 and DA 20 (Exhibit A). 8. However, the Council contends that the proposed built form is not the attic form contemplated by the DCP or the roof form or pitch in the immediate area. Because the site is surrounded to its east and north by a public reserve and adjoins a single storey villa development, the Council submits that the development as proposed will stand out and have the appearance of a 3 storey building. The small indents and separation between the townhouse modules will not break up the 40m length of the building (at odds with the 25m DCP Control) and as a result, the Council believes that the disparity in scale and bulk will be readily apparent. The building will be uncharacteristic in this particular part of the zone which is predominately single storey development. And this disparity in the bulk and scale will be exacerbated by the non-compliance with the side setback and landscape controls. 9. Mr Lawler is of the opinion that a compliant setback would allow for improved setbacks, appropriate relief to the length of the building and promote a more sensitive design to the surrounding development. The DCP provides a specific example of how to orientate dwellings. Mr Betros seeks to justify the orientation of the proposal based on the existing older adjoining single storey townhouses alongside the open space. However, Mr Lawler said that the orientation of this existing development does not provide justification for the current proposal. An orientation to side boundaries results in reduced setbacks and inadequate landscaping and an uncharacteristic built form. It will not be read as a dwelling in the streetscape when one appreciates the length of the form from that vantage point. 10. The residents who objected to the development are concerned that an approval of the development with an orientation to the side boundary contrary to the DCP will set an undesirable precedent. The objectives of the zone encourage site amalgamation and the approval of this DA would prevent any future amalgamated site from being oriented in accordance with the DCP. The Council is also concerned that an approval of this development is an overdevelopment of the site and this will result in the site being unlikely to be amalgamated with the adjoining underdeveloped lots in the future. 11. The applicant's planning evidence focussed on the existing character of the precinct as observed at the view and the desired future character as outlined in the DCP to support a submission that the proposal reflects the development envisaged by the planning controls "residential flat buildings within the R3 Medium Density zone within the Precinct with maximum 4 storeys (12 metres) height limit". Given that the DCP envisages four storeys on sites having 12m height limit, it submits that it is hard to understand Mr Lawler's evidence that the subject proposal should instead reflect or respond to the existing character of single storey dwellings adjacent to the site. 12. The applicant believes that the proposal complies with the DCP orientation controls by addressing its two frontages to the street and the park and that this is consistent with the DCP. Both end dwellings – Units 1 and 5 address the street and the rear park respectively. 13. The applicant submits that the site is 708m2 but only 13.75m wide. These dimensions dictate the form of the building, particularly when coupled with the side setback requirements. It means that only one dwelling will ever present to the street not three dwellings as the Council suggests. As explained by Mr Betros in the joint report DCP Figure 4 in C6 depicting 3 dwellings side by side on one allotment is just not applicable in this case. Despite that, the intent and objectives of the DCP are nevertheless met. Furthermore, the applicant submits that the complaint about the 40m length of the building ignores the articulation and breakup of the dwellings above ground floor. When those aspects of the design are taken into account, the proposal achieves the streetscape objectives of the Control C3 of Section 4B.2.4 of the DCP. Given the fact that the lot is long and narrow, the applicant submits that a better design response is difficult to imagine. Findings – Planning contentions 1. Clause 2.3 of the DCP (Exhibit 3, folio 323) requires the preparation of a site analysis (Control C1). The objectives of this control are to ensure that development is sensitive to its environment, positively contributes to context, minimises adverse impacts on adjoining properties: facilitates an acceptable relationship with neighbouring dwellings and the wider street context; to ensure that the applicant can accurately identify the opportunities and constraints of the site, identify existing site conditions, location of buildings on adjoining sites and identify the existing streetscape and a development response that enhances the streetscape. 2. I agree with the Council that the larger buildings at 94 Denison Street and the residential high rise apartments opposite the adjoining open space do not visually form part of the small pocket of single storey dwellings within which the site is located. More relevant are the two adjoining sites to the east and west which have similar dimensions, orientations and forms of development (multi dwelling) both of which are single storey. I accept that the development on these sites constrains the proposed development and that they are more relevant than the multi-unit developments that I was taken to on the view. I accept that the adjacent developments both adopt the same north-south orientation. 3. In my opinion, the reduction in yield offered by the amendments to the plans does not go far enough. Accepting that compliance with the maximum development controls alone does not make the development acceptable; after considering the impacts, it is my considered opinion that the proposal needs to be rationalised in size to better integrate with the adjoining sites which is in part dictated by its 13.75m width. The design excellence provisions of the DCP in clause 4B.2.1 (Exhibit 3, folio 321) expressly require development to take into consideration the characteristics of the site adjoining development by undertaking a thorough site analysis (C19i)). It is a specific control at C1 (v) to ensure that development is consistent in height scale with surrounding development. Control C1 (ix) requires good landscaping. I accept Mr Lawler expert view that the two storeys with attic design will exacerbate the bulk and scale of the building through the use of a steep angled roof which presents as high and heavy development within the localised context of single storey. 4. I do not accept, as suggested by Mr Betros, that the proposed roof form as two storeys with an attic is consistent with the attic form envisaged in the DCP. While the pitch of the roof from is an improvement in the design it remains as Mr Lawler states in his evidence uncharacteristic, reinforcing that the design is excessive for the site and context resulting in an inharmonious development (par 101 of the Joint Report (Exhibit 1)). 5. Moreover, the removal at the attic level of the dormer windows along the western side has not satisfactorily overcome the issue of bulk and scale from that perspective. Nor has the recessing of the rear of the northern/rear townhouse satisfactorily reduced the scale of the development when viewed from the reserve. 6. I accept Mr Lawler's assessment that the design response is inappropriate for the site. In short, the development, if approved, will sit out of context – it is closer to the surrounding development than appropriate because of its minimal setbacks with limited deep soil planting or landscaping and provides for a long 40m carriage of dwellings which do not address the street or relate to the neighbouring buildings. 7. It is my considered assessment that the design fails in regard to clause 4B.2.4 Street Presentation Control C3 as to building length and C6 as to siting to the street and the minimal setbacks for the reasons articulated by Mr Lawler and submitted by the Council. The site is surrounded to its east and west by a public reserve and the adjoining villa development is single storey. I accept Mr Lawler's expert assessment that the development, if approved, will stand out and have the appearance of a three storey building – which will present as an overdevelopment of the site. After a consideration of the parties' oral and written submissions, the site is simply not suitable for the development after assessment under s 4.15(1)(c). Orders 1. Accordingly, the Court orders that: 1. The appeal dismissed. 2. The development application is refused consent. 3. The exhibits are returned apart from Exhibits A, C and 4. ………………………… S Dixon Senior Commissioner of the Court ********** Amendments 09 October 2019 - Correction to typographical errors at [13], [48] and [53]. 01 November 2019 - Correction to typographical error at [31] - removal of "not". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 November 2019