Billgate Pty Limited v Woollahra Municipal Council And Anor

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97

DATES OF HEARING: 25-26/08/2004, 01-03/11/2004, 26/11/2004, 30/11/2004, 02/12/2004, 20/01/2005

APPLICANT: Mr M Craig QC with Ms J Jagot, Barrister

SOLICITORS Colin Biggers and Paisley

RESPONDENTS: FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr J Bingham, Solicitor SECOND RESPONDENT Mr C McEwan SC

SECOND RESPONDENT Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10179-80 of 2004 BILLGATE PTY LIMITED v WOOLLAHRA MUNICIPAL COUNCIL; TERRY ARCUS

JUDGMENT CORAM: HIS HONOUR A. INTRODUCTION 1 These are two related appeals pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) for the re-development of two adjoining hatchet shaped properties known as Nos 20-22 Roslyndale Avenue, Woollahra (the development site). The appeals initially were "deemed refusal" appeals pursuant to the EP&A Act, s 82(1), but subsequently the Council exercised its statutory right as conferred by the EP&A Act, s 82(2) by determining each of the development applications by refusing consent for the separate reasons stated in the separate Notices of Determination, issued pursuant to the EP&A Act, s 81 (Exhibit A/8). 2 Proceeding No 10179 of 2004 relates to Development Application No 3/2004/1 which proposed a community title subdivision of the development site creating six lots as follows: Lot 1 having an area of 734 square metres (community title lot) Lot 2 having an area of 1,216 square metres Lot 3 having an area of 393 square metres Lot 4 having an area of 311 square metres Lot 5 having an area of 291 square metres Lot 6 having an area of 296 square metres 3 The proposed subdivision reflects the proposed new residential development by accommodating on lot 2 the proposed residential flat building and by accommodating on each of lots 3 to 6 inclusive one of the four separate dwelling-houses. A copy of the plan showing the proposed community title subdivision is annexed hereto and marked "A" 4 Related proceeding No 10180 of 2004 relates to development application No 4/2004/1 proposing the demolition of each of the two existing dwelling-houses erected on the existing two lots (which, together comprise the development site) and the erection of four new dwellings (in two groups of two attached dwellings) and five new dwellings in a residential flat building. A copy of the site plan showing the proposed new residential development is annexed hereto and marked "B". 5 While the present proceedings were pending, the Council raised a preliminary question of law going to the legal permissibility of the proposed new residential development (including the proposed subdivision) based upon the provisions of cl 25(2) of the Woollahra Local Environmental Plan 1995 (the LEP) which provides as follows: The Council must not grant development consent to the carrying out of development on land or the subdivision of land to which this plan applies for any purpose unless it is satisfied that adequate provision has been made for the disposal of stormwater from the land it is proposed to develop. 6 The parties (which at that stage did not include the second Respondent) joined in seeking the Court's determination as a preliminary issue of the following question - Whether the Council or the Court have the power to grant development consent to the proposal having regard to the lack of a relevant downstream drainage easement to dispose of stormwater from the proposed development, given the requirements of clause 25(2) of the Woollahra Local Environmental Plan 1995. 7 The hearing of the preliminary issue took place on 3 August 2004 in circumstances where hearing dates had already been allocated for both appeals from 24-27 August 2004. In my reserved judgment delivered on 9 August 2004 (see Billgate Pty Ltd v Woollahra Municipal Council (2004) NSWLEC 436) and for the reasons therein stated, I determined the preliminary question of law by providing the following answer: The Court may not grant development consent unless it is satisfied that adequate provision has been made for the disposal of stormwater from the land it is proposed to develop in terms of cl 25(2) of the LEP. In the present cases where it is proposed to utilise the existing easement over an adjoining property the question of the adequacy of the provision may legitimately include consideration of the legal capacity or competence to utilise the existing easement (in addition to any consideration of its physical capacity). If on the hearing of the appeals it be held that the existing easement is not legally available for the proposed purpose the requirements of cl 25(2) of the LEP would not be capable of being satisfied by the imposition of a condition of development consent requiring such provision but those requirements would be capable of being satisfied by the making of an order pursuant to the LEC Act, s 40 for the creation of any necessary easement if the Court, on the hearing of those appeals, determines to grant development consent. 8 Thereafter, the Court (i) appointed two Court Experts, Ms D Laidlaw (town planner) and Mr R Staas (heritage consultant); and (ii) joined as a party to the proceedings, and upon his Motion, the second Respondent, who is the owner of the heritage listed property "Struan Lodge", erected on the property known as No 14 Roslyndale Ave, which adjoins the development site on its northern boundary (excluding the access corridor). 9 When the proceedings originally came before the Court on 4 August 2004 for hearing on the merits (in respect of which I have had the assistance of Commissioner Tuor pursuant to the Land and Environment Court Act 1979, s 37(1)) and the reports of the two Court Appointed Experts were received into evidence, the Applicant intimated that it wished to rely upon amended plans which it had caused to be prepared in response to Ms Laidlaw's Report (Exhibit 10) in its attempt to overcome some of the principal criticisms of the proposal expressed in Ms Laidlaw's town planning appraisal of the original development proposal. 10 Although the Council initially objected to the Applicant's request to rely upon the amended plans, following some oral evidence from Ms Laidlaw (which included a brief Report (Exhibit 11) being her initial evaluation of the amended plans) all parties joined in the following consent orders made by the Court on 26 August 2004 - 1. The proceedings be adjourned and re-listed before the Registrar for a call-over on 27 August 2004 for the purpose of fixing further hearing dates. (Note: The Court appointed expert Mr Staas is unavailable before 25 October 2004). 2. The Court-appointed experts Deborah Laidlaw (planning) and Robert Staas (heritage) continue to be retained. 3. The Applicant to file and serve any amended drawings (in response to Ms Laidlaw's original and supplemental reports) upon which it intends to rely by 8 September 2004 , with the amended plans to be delivered to the Court-appointed experts at that time. 4. The First and Second Respondents to provide any further submissions to Court appointed experts in response to the amended drawings by 16 September 2004 . 5. Robert Staas to provide his supplementary report on the amended drawings by no later than 20 September 2004 . 6. Deborah Laidlaw to provide her supplementary report on the amended drawings by no later than 30 September 2004 . 7. Direct the arborist witnesses to provide any supplementary report by 7 October 2004 and confer and provide any further Joint Statement by 14 October 2004. 8. Any report of Mr Tanner on heritage issues, to be filed and served by 30 September 2004. 9. Liberty to restore on 2 days' notice. 10. Question of costs (including in particular the applications made by each Respondent for the costs of the proceedings on 24 and 25 August and the Applicant's application for costs on the preliminary question of law) reserved. 11 By the time of the resumption of the adjourned hearing in November 2004, the Council (as had been contemplated by the consent orders) had itself considered the amended plans (following their public notification which had elicited considerable local residential objection) and had determined each of the development applications by refusing development consent. 12 The reasons stated in the Council's Notice of Determination refusing the proposed residential development were as follows: 1. The proposed development will result in an uncharacteristic form of development on a battle-axe site to the detriment of the amenity of neighbouring properties and the character of the surrounding area. 2. The proposed residential flat buildings do not comply with the provisions of clause 10 of WLEP 1995 as no street frontage to either building. This non-compliance will result in an uncharacteristic and inappropriate form of development to the detriment of the amenity of neighbouring properties and the character of the surrounding area. 3. The SEPP 1 objection submitted in support of the non-compliance with Clause 10 of WLEP 1999 is not well founded and does not demonstrate that compliance with the control is unnecessary or unreasonable. 4. The proposed development does not comply with the minimum floor space ratio requirements as stipulated in clause 11 of WLEP 1995. The proposed density represents a significant overdevelopment of the site that will be of detriment to the amenity of neighbouring properties and the character of the surrounding area. 5. The SEPP 1 objection submitted in support of the non-compliance with Clause 11 of WLEP 1999 is not well founded and does not demonstrate that compliance with the control is unnecessary or unreasonable. 6. The proposed form design, orientation and proximity of dwellings 1, 2 and 3 will result in a detrimental impact of the setting and amenity of a designated heritage item (Struan Lodge). Accordingly, the proposed development does not satisfy the provisions of clause 27 of WLEP 1995 or Aim (g) of WRDCP 1999. 7. Insufficient geotechnical information has been submitted with regard to the proposed extensive excavation of the natural landform of the site and which is within close proximity to a designated heritage item (Struan Lodge). Accordingly, the proposed development is not considered to comply with the provisions of Clause 18 of WLEP 1999. 8. The proposed residential flat buildings each exceed the maximum site coverage of 30% as specified in section 4.3.3 (P2) of WRDCP 1999 for the Edgecliff Road Precinct. This non-compliance results in an overdevelopment of the site that will be of detriment to the amenity of neighbouring properties and the character of the surrounding area. 9. The proposed form design, orientation and proximity of dwellings 1, 2 and 3 will result in a significant loss of amenity to No. 14 Roslyndale Avenue through loss of privacy, acoustic impact and visual impact. The proposed development therefore does not comply with Aim (c) in Part 1.5 of WRDCP 1999 with regard to minimizing the negative impacts of development on the amenity of adjoining properties. 10. The proposed development will result in the loss of a number of mature trees that are of significant visual amenity value to neighbouring properties and the wider area. The removal of these trees is inconsistent with Aim (b) in Part 1.5 of WRDCP 1999 AND THE Edgecliff Road Precinct provisions contained in Part 4.3.1 (01) of WRDCP 1999 with regard to retaining significant trees and vegetation and preserving existing tree canopy respectively. 11. The proposed development does not satisfy Part 5.2.3 (P3) of WRDCP 1999 with regard to the provision of a rear setback that is a minimum of 25% of the average site length. This non-compliance results in an inappropriate form and scale of development and a detrimental impact on the amenity of neighbouring properties. 12. The width of the proposed driveway and location of visitor parking at the front of the site will result in a detrimental impact on the visual character of the streetscape. This does not comply with Part 5.1.1 (03), Part 5.1.3 (P4), Part 5.10.1 (03) and Part 5.10.3 (P11). 13. The applicant has failed to satisfy Council that adequate provision ahs been made for the disposal of stormwater pursuant to clause 25(2) of WLEP 1995. 14. The proposal is not in the public interest. 13 It is to be noted that the Council's reasons for decision to refuse development consent to both development applications, reflect the Council's own planning evaluation of the proposal in contrast to the Council's planning officer's assessment which although recommending that each development application be refused, had been based exclusively upon the provisions of the LEP cl 25(2) and the legal advice that the Council had obtained from Senior Counsel. Except for adopting this legal advice, the Council's planning officer's assessment was that the proposed development would otherwise be acceptable on the planning merits. Clearly the Council's decision did not adopt its planning officer's evaluation of the proposal on the planning merits. 14 Although the planning officer's assessment report had referred to the legal advice that had been obtained from Senior Counsel it did not refer to my determination of the preliminary question of law, presumably because the officer's report had already been prepared before I had delivered judgment on the preliminary question on 9 August 2004. However, it may readily be inferred that in refusing development consent the Council was fully aware of my determination of the preliminary question. 15 In respect of that determination, it is to be noted that the Council's reasons for refusal included as reason 13, the fact that the applicant had failed to satisfy the Council that adequate provision had been physically made for the disposal of stormwater pursuant to cl 25(2) of the LEP. This is a matter that was strongly pressed in the Council's final argument at the hearing as being determinative to the outcome of both appeals as I will presently relate. 16 Reverting to the reasons for the Council's determination refusing development consent, it is to be noted that these are the very reasons (except for the reason founded on cl 25(2) of the LEP) that had been urged upon the Council by the second Respondent in his letter dated 13 August 2004 written the day after he had become a party to the proceedings. That letter had enclosed copies of expert reports obtained by the second Respondent from Mr Tanner, heritage consultant, Mr Sanders, town planning consultant and Mr Pittendrigh, consultant arborist, the contents of which I infer had provided the foundation for, if not the formulation of, the reasons for refusing development consent urged upon the Council by the second Respondent. In referring to the origins of the reasons notified by the Council for its determination refusing development consent, I imply no criticism of either the Council or the second Respondent. There is no suggestion that the Council abdicated its statutory function to the second Respondent. Rather, the proper inference to be drawn (as I infer), assisted by the legitimate application of the presumption of regularity, is that the Council was persuaded by the case presented by the second Respondent upon the basis of the expert opinions that he had obtained providing the grounds for his objection, than it had been by the favourable planning evaluation of the proposed development undertaken by the Council's planning officer, Mr Wong. 17 It is to be noted that the reasons given by the Council for its refusal of the proposed residential development generally embrace (albeit in a more expansive formulation) the issues that had been raised by the Council at the hearing (Exhibit A/16). That accords with Ms Laidlaw's understanding of the gamut of the Council's reasons and of the issues raised by the Council at the hearing, and my adjudication addresses the issues raised in Exhibits A/16 together with the separate issues raised by the second Respondent. 18 Much of the evidence at the resumed hearing was received during an all day view of the development site and of its surrounding environment, when the various resident objectors were able to give their testimony from the vantage points of their own residences as they viewed, and were related to, the development site and its proposed development. During the day the Court had the benefit of advice from the Court appointed experts, Ms Laidlaw and Mr Staas, whose contributions were of great assistance to the Court and to the parties and to the resident objectors, in gaining an informed appreciation of the proposed development on the development site and its various impacts upon the existing residences that share common boundaries with the development site. 19 Finally, it is to be noted that proceedings have been presented upon the basis that the appeal in respect of the proposed new residential development, should be determined in the first instance upon the basis that the decision in respect of that appeal will generally influence the outcome of the related subdivision appeal (which essentially is contingent upon development consent being granted to the new residential development). I have been content to adopt this approach, although it creates some difficulty in the proper evaluation of the proposed development (which includes the creation of the community title subdivision to physically accommodate the separate components of the development and a strata subdivision of the proposed residential flat building) in relation to its compliance with the relevant planning controls (soon to be advertised). B. THE DEVELOPMENT SITE AND ITS CONTEXT 20 The following brief description of the development site and its context is taken from the Statement of Basic Facts included in the Council's Bundle of Documents (Exhibit A/7). The site, currently consists of two lots known as No. 20 and 22 Roslyndale Avenue and is located on the north-eastern side of Roslyndale Avenue. The site is irregular in shape with a site area of 3,241 m2 and a frontage of 16.56m to Roslyndale Avenue. The site slopes steeply down from the street towards the northeast. The overall height difference is approximately 18m from the front (southwest) to the rear (northeast). Currently on the site, there are two 2-storey single dwellings both with swimming pools to their rear. At No. 20, a vehicular access driveway connects Roslyndale Avenue down to the dwelling with a double garage whereas there is a double garage fronting Roslyndale Avenue at No. 22. The rear of the site is densely vegetated with significant mature trees. Roslyndale Avenue comprises of semi-detached and single dwelling houses. The street is leafy with large mature trees located centrally in the reserve island dividing Roslyndale Avenue. There are also a number of heritage items in the vicinity including the following: Address of the heritage item Description of the heritage item 6 Roslyndale Avenue, Woollahra Hawthornden - house, gardens, gate posts, gate, Bunya Pine 14 Roslyndale Avenue, Woollahra Struan Lodge - house 38 Roslyndale Avenue, Woollahra Roslyndale - house, fence 21 In elaboration of that brief description, the following additional facts should be noted:

(i) Roslyndale Avenue is a short residential street (about 300 metres terminating in a cul-de-sac) which branches off to the east of Edgecliff Road about 700 metres from the intersection of that road with New South Head Road; (ii) the bulk of the area of the development site is contained in a rhomboid shape which is set back distances of 31 and 41 metres respectively from the street frontage measured along the northern and southern boundaries of what I will call the access handle or corridor (the area of which corridor comprises some 525 square metres ); (ii) the development site (excluding the access corridor) shares a common boundary with 13 separate residential properties enclosing it as follows - (a) on Roslyndale Avenue (which I shall call its western boundary (80 m long), Nos 16-18 (semi-detached cottages), 22A (dual occupancy dwellings), 24 (dual occupancy dwellings), 26 (detached cottage), 28 (detached cottage), 30 (detached cottage); (b) on its eastern boundary (70 m long and shared with properties fronting Wallaroy Road) - Nos 30, 28, 26 and 24 (each of which is a detached cottage); (c) on its southern boundary ( 23 m long) - No 22 Wallaroy Road (a detached cottage); and (d) on its northern boundary (46 m long) - a detached cottage (" Struan Lodge ") known as No 14 Roslyndale Avenue; and (iii) measured along the common boundary between the two hatchet shaped lots comprising the development site (82.5 m long), the overall fall in ground levels is some 19 metres from RL 46 m at Roslyndale Avenue frontage to RL 27 m on the eastern boundary - the overall fall in ground levels on the access corridor land being some 8 metres over 40 metres and the fall across the rhomboid shaped section being some 11 metres over 41 metres. By extending the common boundary between the two lots comprising the development site from Roslyndale Avenue to Wallaroy Road the fall in ground levels is some 27 metres over a length of 120 metres. 22 The Report prepared by Stephen Davies (City Plan Heritage) on behalf of the second Respondent that was submitted to the Council in support of the second Respondent's objection to the proposed development contains the following statement providing the historical context for the development that has occurred on the lands situate on the eastern side of Roslyndale Avenue (including the development site): The subject sites are part of an estate of just over 12 acres which was originally part of Captain Piper's grant then was later held on a 99 year lease from Daniel Cooper and Thomas Buckland. The mansion known as Hawthornden was built in 1853 on the northern part of this estate for the Hon Henry Armitage. The Gothic picturesque Roslyndale was built in 1856 to the south. The 1876 Woollahra Rates Assessment shows that the estate (containing 4 houses and large area of vacant land) was owned by Edward Augustus McPherson. In 1909 a small part of the holding was transferred to William McPherson and a larger section to Louis Vincent. McPherson's widow died in 1914, after which her remaining property was converted to Torrens Title by 5 members of her family. The McPherson's transferred Roslyndale Ave (the access road to the houses on the estate) to the Municipality of Woollahra and in 1918 the sales of lots in their Hawthornden Estate subdivision commenced. The unusual shapes of the lots were created by the cliff to the eastern boundary, the alignment of Roslyndale Ave, a row of houses along Roslyndale Ave, William McPherson's house in the centre of the subdivision and most importantly the positions and settings of Hawthornden and Roslyndale. However, the unusual lot configurations provided an opportunity to build new large residences across the Estate, whilst respecting and preserving the views and amenity of Hawthornden and Roslyndale, and ensuring a harmonious relationship between the various houses on the estate. The 1918 lot configuration and the location of the houses remain substantially intact today. C. THE PLANNING CONTEXT OF THE DEVELOPMENT SITE AND ITS ENVIRONS 23 The planning controls governing the development site and its surrounds are principally contained in the Woollahra Local Environmental Plan 1995 (the LEP). 24 The predominant zoning of the land situate between Edgecliff Road (in the west) and Manning Road (in the east) between New South Head Road (in the north) and Attunga Street (in the south) is the Residential 2(b) Zone which is described by the LEP in the following manner: The Residential B Zone applies to areas characterized by existing medium density residential flat buildings and areas where potential has been identified for increased medium density residential development. Floor space and height controls, contained in Part 3, set the maximum permissible density and building heights for new development. Site area and frontage controls, also contained in Part 3, specify minimum site requirements for new development. 25 However, this Residential 2(b) zoning does not include the last 4 properties (including "Roslyndale") situate on the eastern side of Roslyndale Avenue nor does it apply to the land fronting either side of Wallaroy Road and to the land on the western side of Manning Road. These lands (beyond Roslyndale Avenue) which comprise the valley situate below the Edgecliff ridgeline are included in the Residential 2(a) Zone which zone is described by the LEP in the following manner: The Residential A Zone is characterized by dwelling-houses and is the largest zone within the Council's area, applying to suburbs from Watsons Bay to Paddington and covering large sections of the foreshore and conservation areas. Pockets of medium density housing, individual apartment buildings and occasional shops and commercial buildings are scattered throughout the zone, reflecting the historical development of the Council's area. A diversity of residential allotment sizes is provided. 26 In the present case, so far as concerns the development site, the demarcation between the Residential 2(b) and 2(a) Zones coincides with existing property details. But importantly, it also coincides with the physical (topographical) features of the Edgecliff ridge line with the land included in the Residential 2(b) Zone, being located on the ridge and its upper slopes and the land included in the Residential 2(a) Zone being on the lower slopes as they flatten out to merge with the valley floor. 27 Part 3 of the LEP contains "special provisions" and Part 4 of the LEP contains "heritage provisions" some of which are of relevance to the present case. These provisions prevail over any relevant inconsistency with the provisions of Part 2 of the LEP which contains the "Development Control Tables": vide cl 8(4). Those provisions include "zone objectives" which in the case of Zone No 2(b) include the following: (a) to provide for areas of medium and higher density residential development in appropriate locations. 28 In addition to the particular zone objectives, the LEP in cl 2(2) specifies "objectives of this plan", which are also made relevant to the determination of development applications by virtue of cl 8(5) which provides as follows: The Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with such objectives of this plan and of the zone within which the development is proposed to be carried out as apply to that development. 29 Relevant plan objectives "in relation to residential development" include the following: To relate population density to the capacity of the existing road network, the availability of parking the provision of public open space, the capacity of the natural environment to accept change without losing its attributes, the capacity for existing utility networks, the level of service by public transport, and the proximity to the city centre, schools, shops, health services and community facilities. 30 Relevant plan objectives "in relation to landscape" include the following: (i) to protect and enhance the natural landscapes throughout the area of Woollahra, (ii) to promote the retention of trees and the planting of suitable new trees in appropriate locations, (iii) to control or minimize the impact of future development upon natural features such as significant trees or stands of trees, ridgelines or land within view of any waterway. 31 Relevant plan objectives "in relation to heritage" include the following: (i) to identify heritage items and heritage conservation areas and to provide measures for their conservation, protection and enhancement, (ii) to ensure that new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items and their settings and of heritage conservation areas. 32 Relevant "special provisions" contained in Part 3 of the LEP are those relating to (i) site area and frontage standards for residential flat development (cll 10A and 10B); (ii) floor space ratio standards (cll 11AA and 11); and (iii) maximum building height development standards (cll 12AA and 12). These relevant provisions are as follows: (i) site area and frontage standards for residential flat buildings 10A. Objectives of site area and site frontage standards for residential flat buildings (a) to achieve compatibility between the scale, density, bulk and landscape character of buildings and allotment size, (b) to provide sufficient space between buildings, to maximize daylight and sunlight access between buildings, to ensure adequate space for deep soil landscaping and to preserve view corridors, (c) to prevent permanent barriers to sub-surface water flows, (d) to ensure that there is sufficient land for car parking on site, (e) to encourage consolidation of allotments in appropriate locations to enable the development of a diversity of dwelling types. 10B. Site area and frontage standards (1) A site must not be developed for the purpose of a residential flat building containing 3 dwellings or fewer unless the width of the site at the front alignment is 15 metres or more Note . No minimum site area requirements apply (2) A site must not be developed for the purpose of a residential flat building containing 4 or more dwellings unless: (a) the site area is 930m2 or more, and (b) the width of the allotment at the front alignment is 21 metres or more. (ii) floor space ratio standards 11AA. Objectives of floor space ratio standards The objectives of the floor space ratio standards set by clause 11 are as follows:

(a) to set the maximum density for new development, (b) to control building density, bulk and scale in all residential and commercial localities in the area in order to achieve the desired future character objectives of those localities, (c) the minimize adverse environmental effect on the use or enjoyment, or both, of adjoining properties, and (d) to relate new development to the existing character of surrounding built and natural environment as viewed from the streetscape, the harbour or any other panoramic viewing point. Note. The maximum permissible floor space ratio is not as of right . To achieve the maximum permissible floor space ratio, development must satisfy other relevant controls applicable to the land concerned. 11. Floor space ratios (1) A building (other than a dwelling-house or dual occupancy) shall not be erected on land to which this plan applies if: (a) the floor space ratio would exceed the ratio indicated for that land on the density map, or (b) in the case of 2 floor space ratios being indicated for that land on the density map, the floor space ratio would exceed the greater of the 2 ratios. (Note that the density map indicates that the ratio relevant to the development site is 0.625:1 ) (iii) maximum building height standards 12AA. Objectives of maximum building height development standards The objectives of the maximum building height development standards set by clause 12 are as follows: (a) to minimize impact of new development on existing views of Sydney Harbour, ridgelines, public and private open spaces and views of the Sydney City skyline, (b) to provide compatibility with the adjoining residential neighbourhood, (c) to safeguard visual privacy of interior and exterior living areas of neighbouring dwellings (d) to minimize detrimental impacts on existing sunlight access to interior living rooms and exterior open space areas and minimize overshadowing, (e) to maintain the amenity of the public domain by preserving public views of the harbour and surrounding areas and the special qualities of the streetscapes. 12. Height of buildings (1) A building shall not be erected on land within a height zone to a height greater than the maximum height shown on the height map as applicable to land within that height zone. (Note that the relevant maximum height relevant to the development site indicated on the height map is 9.5 metres .) 33 In addition to the LEP provisions, there are provisions of the Woollahra Development Control Plan 1999 (the DCP) that are relevant to the proposed development. These include the Precinct Controls contained in Part 4 relating to the Edgecliff Road Precinct and some of the general controls contained in Part 5 (eg building set backs). 34 According to Section 1.7, the DCP "builds upon the LEP by establishing more detailed criteria for housing design and form". The DCP contains provisions under three separate sections:- (i) Site Analysis Controls; (ii) Precinct Controls (iii) General Controls 35 Section 1.8 of the DCP states that "applicants will need to comply with the requirements of all three sections in order to ensure their developments meet the DCP requirements". 36 The objects of the Precinct Controls as stated at p 9 of the DCP are as follows: The Precinct Controls for each character precinct comprise three basic elements: · A set of desired future character objectives for the precinct; · A description of the precinct's important character elements; and · Performance criteria which apply to individual precincts. The desired future character objectives for each precinct describe the outcomes that housing developments are required to achieve within the precinct. The important character elements describe the characteristics of each precinct that proposed developments are required to preserve or enhance. The important character elements are listed under three sub-headings: · Natural Setting; · Public Domain; · Built Environment; and · Local Business Zones. As not all precincts contain Business Zones, some precincts do not list important character elements for these areas. The performance criteria describe specific ways in which a development proposal can meet the desired future character objectives. In particular, the performance criteria for each precinct establish the maximum building height for individual sites and require developments to preserve or enhance the important character elements for the precinct, where these are relevant to the site. 37 Section 4.3 of the DCP sets forth the following Precinct Controls for the Edgecliff Road Precinct - 4.3.1 Desired Future Character Objectives 01 To ensure development maintains the Edgecliff Road precinct's landscape character by preserving the existing tree canopy. 02 To ensure development maintains the amenity of the public domain by preserving public views of the harbour and surrounding areas and the special qualities of streetscapes. 03 To ensure building height, building form, setbacks, roof shape and finishes contribute to cohesive streetscapes and reflect the heritage context of the street. 04 To preserve and enhance the traditional mainstreet and corner shop qualities of Neighourhood Business zones. 4.3.2 Important Character Elements Natural setting · The Edgecliff Road precinct is located along a ridgeline overlooking Double Bay and Sydney Harbour. The precinct's landform and tree canopy are important visual elements and provide an important green backdrop to views from Sydney Harbour and surrounding land areas. Public domain · The public domain of the Edgecliff Road precinct is characterized by leafy streetscapes formed by grassed verges, street and private yard tree planting and front yard landscaping and gardens. Tree planting in side and rear setbacks provides an attractive green backdrop to streetscapes. · The precinct's ridgetop setting provides views and glimpses of views of the harbour and surrounding land areas from both private houses and public street and open space. · Visual relief within streetscapes is provided by regular separation of buildings, articulation of facades and building mass and intervals of landscaping and tree planting in private yards. Built environment · Areas are characterized by a variety of traditional building types and architectural styles representing historic stages in the precinct's development. Important building types include Victorian mansions set within spacious grounds and Inter War apartment buildings. · Much of the precint adjoins the Paddington and West Woollahra Heritage Conservation Areas defined under the Woollahra LEP 1995 (as amended), necessitating sensitivity in the design of new development to ensure the maintenance of local heritage qualities. · Important elements of notable buildings include an emphasis on the location of buildings within a landscaped setting, the use of articulation in building form and massing, and a positive interface with the street. 4.3.3 Performance Criteria P1 The maximum height of development is determined by the height controls in Woollahra LEP 1995.

The height maps in Figures 4.14 and 4.15 reflect the maximum height of development shown in Woollahra LEP 1995.

P2 For land shown hatched on the height map in Figure 4.14, building footprints for residential flat buildings are limited to 30% of the site area. P3 Development preserves and enhances the important character elements identified in Section 4.3.2. 38 It should be noted that the properties fronting either side of Wallaroy Road (including the five properties sharing a common boundary with the development site) form part of the "Manning Road Precinct" (as do the four properties situate at the end of Roslyndale Avenue on its eastern side including the heritage item "Roslyndale"). 39 Section 4.4.2 of the DCP includes in its description of "the important character elements" of the Manning Road Precinct the following: · The Manning Road precinct is located along a valley floor which meanders from Cooper Park in the south to the Double Bay Commercial Centre in the north. The valley's tree canopy, comprising street and private yard planting, is a crucial element of the precinct's scenic presentation to surrounding higher land. · Areas located along the valley walls and adjoining ridgelines provide important green backdrop which reinforces the precinct's leafy character. 40 Part 5 of the DCP contains provisions governing "building size and location". Section 5.2 states the purpose of these controls as follows: Applicants may choose where to locate the building footprint, provided that it occurs within the outer limits of the front, side and rear setbacks and subject to the RDCP's other controls. The purpose of the front, side and rear setback controls is to: relate new development to existing boundary lines along the frontage; protect the visual and aural privacy of residents in adjoining buildings; provide side access to the rear of properties where rear lanes do not occur; avoid buildings or parts of buildings encroaching on adjoining properties; enable opportunities for screen planting; protect significant vegetation; avoid an unreasonable sense of enclosure; and safeguard privacy and minimize noise impacts for dwellings 41 Section 5.2.3 specifying "Performance Criteria" includes the following requirement in respect of "rear setbacks" P3. Buildings have a minimum rear setback of 25% of the average site length (see figure 5.9). 42 Figure 5.9 depicts a conventional rectangular shaped street fronting lot with the requirement for a rear setback of 25% of the average site length. 43 Performance criteria P5 empowers the Council to permit a variation to the rear setback requirement of P3 "if it can be demonstrated that this will result in the retention of significant trees or site qualities, has no adverse impacts on neighbouring amenity and is not contrary to the desired future character objectives for the locality described in Part 4. In all circumstances the building footprint must be setback at least 5m from the rear boundary". 44 Section 5.2 of the DCP includes the following requirement - P9 Unless otherwise indicated in Part 4: Precinct Controls , building footprints for residential flat buildings are limited to 40% of the site area (see Figure 5.12). 45 As earlier noted, Part 4 prescribes a maximum building footprint for residential flat buildings at 30% of site area in respect of certain lands shown on Figure 4.14 which lands include all of the lands zoned Residential 2(b) fronting Roslyndale Avenue. D. DESCRIPTION OF THE PROPOSED DEVELOPMENT 46 According to the amended Statement of Environmental Effects (Exhibit A/4), the proposed residential development on the development site involves the following components: (i) the demolition of the existing structures, including the two existing dwellings, swimming pools, garages and retaining walls; (ii) construction of a residential flat building containing five dwellings (each with three bedrooms) in a building containing two separate parallel wings, each of three levels stepped down the slope; (iii) construction of four dwellings in two separate buildings (each containing two dwellings (each with three bedrooms), each building containing three levels and stepped down the slope; (iv) the provision on site of 20 carparking spaces (generally accommodated in garages) with access to Roslyndale Avenue via a single shared accessway; and (v) the provision of on-site landscaping. 47 As earlier noted, it is proposed to accommodate the new residential development in a community title subdivision which will provide four separate lots for each of the four dwellings and a separate lot for the residential flat building. It is also proposed that the residential flat building be subdivided by strata subdivision in the conventional manner. 48 According to the Council's planner's evaluation of the degree of compliance with relevant statutory controls, the proposed development complies with the relevant site area and height requirements but does not comply with the site frontage requirement or the floor space ratio requirement. 49 However, in his opinion, the Applicant's written objections under State Environment Planning Policy No 1 - Development Standards to each of these relevant requirements were supportable. 50 In addition to the statutory requirements imposed by the LEP, the proposed development was also evaluated by the Council's planner in respect of the degree of compliance with relevant requirements of the DCP in respect of which he concluded that the proposed development complied with all relevant requirements except for the 30% maximum building footprint requirement for the residential flat building component, and the rear boundary setback requirement but only in respect of the proposed swimming pools. 51 It is generally recognized by the parties (in common with Ms Laidlaw) that there are difficulties in seeking to apply to the proposed development the relevant LEP and DCP controls and requirements. The difficulty principally derives from the irregular shape of the development site, being the aggregated area of the two adjoining hatchet shaped lots but it is compounded by the prospective community title subdivision of the development site (to accommodate the proposed residential development) which raises the question whether each of the proposed lots itself constitutes the relevant "site area" for each of the residential components of the proposed development rather than to regard the development site and the proposed development "globally" ie as constituting but one overall site area and one overall residential development. 52 Ultimately, I think the parties accepted Ms Laidlaw's approach of considering the proposal "globally" including regarding the development site to be the "site area" for the purposes of the relevant controls. However, this approach does not eliminate all difficulties of application because both the site frontage and floor space ratio requirements of the LEP employ the term "site area" which is defined by the LEP as follows: Site area means the area of land to which an application for consent under the Act relates, including any land on which the development to which the application relates is permitted by or under this plan, other than any long narrow corridor or access way in the case of hatchet shaped or irregular allotments or land which was below the line of maximum tidal reach as at 15 December 1972 or at a date determined by the Council. 53 Although Ms Laidlaw was of the contrary opinion, in my judgment, that part of the development site that has a frontage to Roslyndale Avenue is relevantly excluded from the calculation of the "site area". This is because it relevantly is "a long, narrow corridor or accessway" and the development site is relevantly the combined area of two adjoining "hatchet shaped allotments" or is relevantly "irregular allotment". Moreover, that part of the development site is not land on which residential flat development "is permitted by or under this plan" within the meaning of the definition because of the operation of cl 10B(2) of the LEP (the terms of which have been earlier recited) which requires "a width of the allotment at the front alignment" of "21 metres or more". 54 The consequence of this finding is that the floor space ratio of the proposed development exceeds the maximum prescribed by cl 11 of the LEP. Accordingly, the proposed development may not be carried out (vide cl 11 of the LEP) unless development consent is granted by upholding the Applicant's objection pursuant to SEPP 1. (I shall postpone my consideration of the Applicant's SEPP 1 objection until my evaluation of the planning merits.) 55 Coming to the requirements of cl 10B of the LEP I think that when regard is had to the stated objectives (vide cl 10A) and to the headings of both cll10A and 10B, when cl 10B(2)(b) refers to "the width of the allotment at the front alignment", it is referring to the street frontage of the lot. I think that this is a preferable interpretation to that adopted by Ms Laidlaw in her Report (Exhibit 10) when she takes the requirement to be referring to the width of the allotment measured at the front alignment of the residential flat building. Accordingly, again the proposed development may not be carried out (vide cl 10B(2) of the LEP) unless the Court grants development consent by upholding the Applicant's objection pursuant to SEPP 1. (Again, I shall defer my consideration of the Applicant's objection until I provide my planning evaluation of the proposal.) 56 The prescribed maximum height limit of 9.5 m (vide cl 12(1) of the LEP) is complied with by the proposed development which attains the prescribed maximum height at some point of each of the separate buildings comprising the residential developments (ie each of the two buildings comprising the attached dwellings which buildings are stepped down the slope and each of the separate wings of the residential flat building which are also stepped down the slope). 57 Coming to the relevant DCP controls or requirements it is apparent that the proposed development does not comply with the relevant footprint requirement (30 percent maximum) and rear setback requirement (minimum of 25 percent of average site length). 58 The Applicant's footprint calculation of the proposed development (DA 320 Revision B) shows a total building footprint of all residential buildings of 1042 square metres reflecting 32 percent of the development site. However, if the "site area" is calculated in accordance with the LEP definition of "site area" as I have applied it in relation to the LEP floor space ratio control, the total footprint of the residential buildings would represent 38.5 percent of that "site area". 59 In my opinion, it is entirely appropriate to apply the LEP definition of "site area" to the building footprint requirement of the DCP, having regard to the objectives of that control. 60 The DCP requirement for rear building setback poses the question which troubled Ms Laidlaw as to how to calculate the "average site length", given the irregular shape of the development site. In my opinion, it is clear when regard is had to the Figure 5.9 in the DCP that site "length" is referring to the depth of the lot. 61 The question then arises as to how, given the irregular shape of the development site, is its "average depth" to be calculated. In particular, does the calculation include or exclude the access corridor? Consistency of application of the various LEP and DCP controls or requirements, as well as logic and common sense, in my opinion, justifies the exclusion from the calculation of the access corridor. 62 This leaves for consideration and calculation the rhomboid shape where the depth at the northern boundary is nearly 50 m, the depth in the middle of the development site is 40 m tapering to a depth at the southern boundary of 23 m. 63 Faced with this irregular configuration, the average depth of the rhomboid section of the development site can be somewhat imprecisely calculated at something like 40 metres. This means that the rear setback should be in the order of 10 metres minimum. The amended development proposal provides a 7.5 m setback for the residential buildings from the boundary with the Wallaroy Road properties. E. PLANNING EVALUATION OF THE PROPOSED DEVELOPMENT 64 My planning evaluation of the proposed development will be undertaken by reference to the issues that were raised by the parties at the hearing. 65 The Council's issues (Exhibit A/16) may be summarized as follows: (i) whether the Applicant had satisfied the requirements of c 25(2) of the LEP, and in particular whether it had shown that adequate physical provision had been made for the disposal of stormwater; (ii) the detrimental impact on the streetscape of Roslyndale Avenue of the proposed development; (iii) the non-compliance with the DCP of the rear setback requirements of the proposed development; (iv) the detrimental impact of the proposed development on existing trees; (v) the detrimental impact of the proposed development on the setting of the adjoining heritage item, " Struan Lodge "; (vi) the concerns and objections raised by neighbouring residents to the proposed development; (vii) the exceedance by the proposed development of the LEP floor space ratio control; 66 Additional issues raised by the second Respondent (Exhibit B/2) were - (viii) whether the Applicant's SEPP 1 objection to the LEP's floor space ratio control should be upheld; (ix) whether the Applicant's SEPP 1 objection to the LEP's street frontage requirement should be upheld; (x) whether the proposed development's exceedance of the DCP's building footprint is acceptable. (xi) whether the proposal's setback from the common boundary with " Struan Lodge" is sufficient to achieve acceptable levels of visual and aural privacy and an acceptable " setting " to " Struan Lodge ". 67 On town planning issues, the Court had the benefit of expert evidence of Ms Deborah Laidlaw (the Court appointed Expert). It also had the benefit of the written opinions of Mr Neil Ingham proffering the Amended Statement of Environmental Effects and propounding the Applicant's two SEPP 1 objections to the LEP's requirements for (i) lot frontage width; and (ii) floor space ratio. It also had the benefit of the written opinions of Mr Harvey Sanders supporting the second Respondent's town planning objections to the proposed development. 68 Ms Laidlaw prepared three separate planning reports (Exhibits 10, 11 and 12) and gave additional oral evidence as well as significantly participating on the view. Her original planning appraisal found that the proposed development's visual impact on the adjoining residences in Wallaroy Road was unacceptable, principally because of the limited rear setback proposed by the original proposal. 69 Her final planning appraisal of the amended proposal was that the proposal did not constitute an "overdevelopment" of the development site and that the amended proposal "was suitable for approval". 70 In her final Report (Exhibit 12), she maintained her original view that the most sensitive impact of the proposed development was that on the adjoining Wallaroy Road residences located at much lower levels than the levels of the proposed development. 71 In respect of this matter, her Report included the following "concluding comments" at par 6.2: 6.2 The Court will note that the most sensitive boundary, in my assessment, is the eastern boundary, taking into account the difficult circumstance presented by the topographical fall towards this boundary, and the lower density zoning of the single family residences beyond. The proposed development will introduce new bulk and privacy impacts on these properties, however under all the circumstances, I believe these impacts are now reasonably mitigated, having regard to the form of development anticipated by the zoning of the land. The complex topography at this boundary presents considerations relevant to landscape design that are difficult to resolve without detailed working drawings and given the importance of the role of landscape in softening and screening the development here, I believe a condition of consent should be imposed requiring fully resolved plans and sections to be submitted for Council's approval, including full details of all retaining walls and method of facing. 72 Since Mr Ingham's favourable planning evaluation of the proposal contained in the amended Statement of Environmental Effects addressed the proposal in its earlier versions, it is not particularly relevant to the amended proposal and need not be referred to. However, his formulations of the Applicant's SEPP 1 objections remain relevant and these should be noted at this point. 73 In relation to the LEP street frontage requirement, Mr Ingham's written objection includes the following statements: The specified minimum site frontage requirement is considered unreasonable and unnecessary in the circumstances of this case for the following reasons: 1. the proposed development satisfies the objectives of the site frontage standard, as specified in Clause 10A of Woollahra LEP 1995.

The size and shape of the majority of the subject site is ample to accommodate the proposed development whilst satisfying the stated objectives. As demonstrated in this Statement of Environmental Effects, the proposed development complies with the statutory controls for height, density and minimum allotment size as specified in the Woollahra LEP 1995. Furthermore, the proposed development generally complies with the relevant controls in relation to landscape area, space between buildings and access to sunlight. Stormwater management and car parking provision have been adequately provided as part of the proposed development. The proposed development is a consolidation of two lots to achieve an appropriate parcel of land to support a range of dwelling types.

2. the effect of the non compliance will not be discernible because the subject site is an existing allotment with an irregular shape that has ample area for development.

A small proportion of the subject site, including the area immediately adjacent to the street frontage, has a width of approximately 16 metres. There are no buildings or structures proposed to be located within this portion of the site, but rather it will accommodate the common driveway and visitor car parking. The remainder of the site has a width greatly in excess of 21 metres. 74 Mr Ingham's SEPP 1 objection to the LEP floor space ratio requirement, made on behalf of the Applicant was prefaced by the comment that he did not consider it appropriate to exclude from the site area the area of the access corridor and that accordingly, the objection was made "for more abundant caution". The written objection includes the following statements: 3. The purpose of the development standard

The development standard has been provided on this part of the site to ensure that the density of development is not unreasonable having regard to its context and to its neighbors. The proposed development has a different floor space ratio standard to the land to its east and which lies below it topographically. The area to the west and north and south of the site is relatively intensively developed, with some of it being utilized in residential flat buildings and townhouses. As seen from Roslyndale Avenue there will be a much more open vista of the site than exists at the present time. This will ensure that no-one from that direction could suggest that the proposed development is unreasonable. From the north the proposed development has been moved further away from the common boundary and opens up a vista from the adjacent Struan lodge. The proposal does not bring about any unreasonable impacts upon its neighbours with adequate regard being given to view issues, to heritage issues and to privacy issues. There is certainly no solar access issue which occurs because of the proposed development.

4. Why compliance with the standard is unreasonable and unnecessary in the circumstances

The development standard which is being set aside, in reality, is a frontage standard for which a SEPP 1 objection was lodged with the development application. The issue which has now arisen relates to an argument that the area adjacent to the road may be excluded from the site area and thus place the development in a position where it does not comply with the floor space ratio standard. The environmental issues which surround this proposal ensure that there are no unreasonable impacts created by the development upon its neighbours and that it does, in matters of principle, satisfy the floor space ratio standard. Indeed having regard to the whole of the site the actual floor space ratio is not exceeded. In reality the Roslyndale frontage is more open than it has been historically. The garage which fronts the street at the present time has been removed in the application and the whole aspect of the site and development on it has opened up vistas which do not exist at the present time form the street. For the reasons set out in this report it is considered that any non-compliance which might be identified by the Council or objectors to this application would be unreasonable in the circumstances.

It is therefore submitted that to require the area adjacent to the street to be excluded fro the site area for the purposes of floor space ratio calculation would be both unreasonable and unnecessary. We therefore lodge this objection to ensure that there is no impediment to Council granting consent to this application which would result from the area adjacent to the street being excluded. 75 Mr Harvey Sanders made a number of written planning objections to the Council on behalf of the second Respondent. His final planning assessment of the amended proposal was expressed in a written submission to the Court Appointed Expert Ms Laidlaw made on behalf of the second Respondent. In that submission, he argued that the admitted exceedance by the proposal of the DCP building footprint limit of 30 percent was in truth a much greater exceedance if the access corridor were excluded from the site area. 76 Whichever manner that the exceedance be assessed, Mr Sanders opined that it was an important indicator of the proposal's "overdevelopment of the site" and resulted in "significant harm to the character of the Edgecliff Road Precinct" (as described in the DCP). 77 Mr Sanders expressed the opinion that neither of the Applicant's SEPP 1 objections was well founded. In relation to the objection made in respect of street frontage requirement (cl 10B of the LEP) his submission states the following: We believe that the requirement for a street frontage for residential flat buildings is to preclude this form of development from being located on battle-axe sites due to the many adverse impacts that inevitably result to the amenity of neighbouring properties and the character of an area from this form of development. Accordingly, the conclusion of the SEPP1 objection that the proposed development complies with the objectives stipulated in clause 10A is considered not to be well founded as it does not acknowledge the fact that the proposed residential flat buildings have no street frontage or that this form of development will result in various detrimental impacts on the character of the area and the amenity of neighbouring properties. As such, we believe that compliance with the control is therefore reasonable and necessary and the SEPP1 objection cannot be supported. 78 In relation to the objection made in respect of the floor space ratio requirement (cl 11 of the LEP), Mr Sanders' submission states: We contend that as the proposed development includes the subdivision of the site, the FSR for each Lot should be calculated separately. Given Lot 1 does not contain any development whilst all the other Lots contain a residential flat building, it is reasonable and logical to exclude Lot 1 for the purposes of FSR calculations for this development and for the combined FSR for the remaining Lots to constitute the FSR for the development. This method of calculation results in a more appropriate and accurate measure of the overall intensity of the development. We consider that an FSR of 0.808:1 represents a significant overdevelopment of the site which is uncharacteristic of the surrounding area and will be detrimental to the amenity of numerous neighbouring properties. As such, we believe that the SEPP1 objection is not well founded, compliance with the control is reasonable and necessary, and therefore the SEPP1 objection cannot be supported. 79 In addition to the foregoing expert planning evidence, I had the benefit of a considerable body of evidence from most of the objector residents whose residences share a common boundary with the development site. 80 I also had the considerable advantage of an extensive view of the development site and of the neighbouring residences, which enabled me to fully appreciate the relationships between the development site and its neighbouring properties and of the proposed development and the existing developments on the neighbouring properties. 81 My evaluation of this extensive evidence leaves me in no doubt that the proposed development is an overdevelopment of the development site in the sense that it concentrates all of the residential buildings on the rhomboid shaped area of the development site, which is significantly sloping land, forming an essential feature (physical and visual) of the Edgecliff ridgeline, with the intrinsic capacity to be visually dominating of the adjoining residences in Wallaroy Road situate well below (but nonetheless well within the viewing catchment, of the development site and the proposed development). 82 This concentration of the proposed development, at the scale and intensity proposed (which far exceeds the existing development on the development site) within this topographically significant and visually prominent part of the development site which is far removed from the Roslyndale Avenue frontage and streetscape, is entirely uncharacteristic of the development in this discrete section of the Edgecliffe Road Precinct formed by Roslyndale Avenue and the residential development on its eastern side that has resulted following the 1918 subdivision of the Estate that contained "Hawthornden". The two existing houses on the development site were built in the early 1920's about the same time that "Struan Lodge" was built and all three developments involve large dwelling houses located well removed from the Roslyndale Avenue frontage but nonetheless considerably set back from the rear of the lots, the boundaries of which are shared with the adjoining Wallaroy Road residences. 83 This uncharacteristic nature of the proposed development involves detrimental consequences not only for the development site (in terms of its significant topography, existing vegetation and visual prominence viewed from the valley floor comprising the Manning Road Precinct) but for adjoining properties and most especially for the heritage item "Struan Lodge" and for the Wallaroy Road residences (particularly in terms of visual and privacy intrusiveness). 84 These significant environmental impacts are not relieved or displaced by an appeal to the Residential 2(b) zoning of the development site. That zone applies to all but the last four properties fronting Roslyndale Avenue and none of these properties within the 2(b) zone has been developed anything like what is proposed for the development site. Most of the properties in Roslyndale Avenue are relatively small sized residential lots which have been developed by housing that addresses the street frontage. The pattern of the existing development is well established. 85 There are only three properties on the eastern side of Roslyndale Avenue that involve "hinterland" lands, namely the development site (which is created by amalgamating the two existing hatchet shaped lots) and "Struan Lodge" and "Hawthornden", each of which is developed by a substantial dwelling-house which is set well back from Roslyndale Avenue and from the rear property boundary, thereby (in the case of the rear boundary setback) preserving the significant topographical and vegetation features of this part of the Edgecliffe ridge line and coincidentally but nonetheless fortuitously providing a de facto visually significant buffer setback from the Residential 2(a) zone that applies to the Wallaroy Road residences. Since both "Struan Lodge" and "Hawthornden" are listed heritage buildings, it may be expected that their existing spacious and well vegetated grounds and settings will continue to be preserved, not only for the benefit of those houses, but also for the benefit of the wider visual catchment enjoyed by the community by virtue of these open topographically and visually significant and prominent settings. 86 In these circumstances, the prospect of the isolated development of the development site for higher density development is inevitably jarringly uncharacteristic, discordant and unacceptable. 87 The foregoing evaluation has proceeded along the same lines (ie a global appreciation of the proposal) as adopted by Ms Laidlaw's evaluation, albeit reaching a very different conclusion. 88 If the evaluation had proceeded more strictly by reference to the relevant planning controls, the same conclusion would have been more readily and emphatically reached, namely that the exceedances of relevant controls, were symptomatic and suggestive of a significant overdevelopment of what is an intrinsically sensitive site (not only by virtue of its inherent internal qualities but also by virtue of its physical relationships with many potentially adversely affected neighbouring residences). 89 My planning evaluation of the proposed development means that it is not strictly necessary to consider the Applicant's SEPP 1 objections. If I were to have considered them I would have held in particular that the objection to the floor space ratio requirement of the LEP, had not been substantiated and was not well founded. 90 Even if I were to have upheld the SEPP 1 objections, that outcome would not have undermined my earlier expressed planning evaluation of the proposed development. 91 Similarly, had I adopted Mr Ingham's opinions that the relevant requirements were not exceeded in the present case (because for example "site area" included the area of the access corridor) that outcome would not have undermined my earlier expressed evaluation of the proposed development, because physically the entirety of the proposed residential buildings are concentrated on the most sensitive hinterland area of the development site. 92 For all the foregoing reasons, I would refuse development consent to the proposed residential development. 93 Since this conclusion is determinative of the present appeal, it is not strictly necessary to consider the remaining issues debated at the hearing. In particular I do not think it necessary to determine the issue raised by the Council based upon cl 25(2) of the LEP. The reasons for my preliminary determination, I think, have said enough on this issue. Since my decision on the planning appeal is not favourable to the Applicant, it is not necessary to further explore any future phase of the present case which relies upon the grant of an easement pursuant to the Land and Environment Court Act 1979, s 40. 94 So far as concerns the issue (raised by both the Council and the second Respondent) of the impact of the proposed development on the setting of "Struan Lodge", I think that I have said sufficient on this matter in the course of my planning evaluation. The proposal visually intrudes upon that setting. 95 So far as concerns the multiplicity of issues raised by the resident objectors, again I think that I have said sufficient in my planning evaluation commencing on the principal issues raised by those objectors, which focused on the uncharacteristic nature of the proposal and its overdevelopment by virtue of attempting to exploit the maximum development potential under the Residential 2(b) zoning of the LEP on a site highly constrained by its irregular shape, its sensitive topographical and physical features and its relationship with many adjoining residences. F. CONCLUSIONS AND ORDERS 96 For all of the foregoing reasons, the development consent is refused for the proposed new residential development. Since it is agreed that this outcome is determinative of the related community title subdivision application, development consent to that application is likewise refused. 97 Accordingly, I make the following orders in each of the related proceedings - 1. Appeal dismissed. 2. Development consent refused. 3. Exhibits be returned. 4. No order as to costs.

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