Bird & anor v Parramatta City Council

The proposal and relevant background

1. As stated above, in 2011, in Peter Campton v Parramatta City Council [2011] NSWLEC 1360, the Court approved a three lot subdivision of a large allotment in Epping Avenue and associated works including demolition of an existing dwelling, tree removal, construction of an access driveway, and the implementation of an integrated stormwater drainage system.
2. In the 2011 matter, a number of council's contentions went to the impact of a three lot subdivision on the current and future character of the conservation area and current subdivision pattern as well as the visual impact of the driveway. Council's concerns were that future development on the site would appear from the street as a multi-unit development which would be out of character.
3. In that matter, the applicant's planner and designer responded to that proposition in paragraphs [32] and [40] of that judgment: [32] In their joint report, the planning experts agree on the following: subdivision of the site into 2 lots both having frontages to Epping Avenue is acceptable; only a single storey dwelling can be built on Lot 3 (cl. 3.1 PDCP 2005); and cl. 6.4 of the draft LEP 2010 is applicable. [40] The perception of the overall proposal from the street was further explored in was further explored in cross-examination of the planners. Mr Fearns [applicant's designer] and Mr Boston [applicant's planner] consider that Lot 3 is at least 60m from the street, it can only support a single storey dwelling, and given the distance and the fall in levels, only part of the roof of any future dwelling on Lot 3 is likely to be visible from the street. In addition, intervening landscape will screen the view of any dwelling. Mr Fearns added that the generous area allocated to the indicative footprint for the dwelling on Lot 3 would enable an architect/ designer to respond to the challenges of the topography and so on.
4. The judgment in that matter found at [70] and [72]: [70] The difference between the parties' planners and heritage experts is whether the subdivision will be perceived from the public domain as something other than the predominant pattern of subdivision. In addition, the council's planner and heritage consultant are of the opinion that the site will be perceived as a multi-unit development. The central driveway is also at issue. I note that the demolition of the existing dwelling is not opposed. [72] With respect to the perception of the proposal as a multi-unit development, I agree with the applicant's experts that the combination of the significant drop in level from the street to Lot 3, the distance from the street to any dwelling on Lot 3 of over 60m, the fact that only a single storey dwelling is permitted on battle-axe blocks and the retention of vegetation on the site, will not result in any future dwelling on lot 3 being so prominent as to create a public perception of a multi-unit development. The access to Lot 3 deviates around Lot 2 and will therefore be largely hidden from the street. While the landscape concept plan is indicative of what could be implemented on the site and is not part of the subdivision application, it serves to demonstrate how the visual impact of both the driveway and the distant view of any dwelling on Lot 3 may be mitigated. It is a useful guide to what might be required at the next stage of the development process.
5. The council's Statement of Facts and Contentions records the actions of the council in regards to this proposed development. Amongst other things, the applicants provided additional information as requested by council and a number of public meetings were held including an on-site meeting with councillors, residents, council staff, designer and applicants. Council's Senior Development Assessment Officer prepared a report to council recommending approval of the development application. Council ultimately refused the DA on 13 October 2014.
6. The development application seeks approval for the removal of several trees and the construction of a part one/part two storey dwelling with associated retaining walls.
7. The first floor and entry level includes a double garage, home theatre, bedroom with ensuite, kitchen, family room and a rear deck. The lower floor towards the rear comprises three bedrooms, rumpus room, bathroom and laundry.
8. The front, south-western façade presents as single storey. The rear or north-eastern façade is two storeys.

Contentions and issues

1. The council contends that the proposed development should be refused for the following reasons:

• Contention 1 - Height : the height is excessive and the dwelling does not respond to the natural topography of the property;
• Contention 2 - Setbacks: the rear setback is inadequate; undesirable impact on three trees;
• Contention 3 - Private Open Space: inadequate and not directly accessible;
• Contention 4 - Matters raised by objectors.

Planning controls

1. The site is zoned R2 - Low Density Residential under Parramatta Local Environmental Plan 2011 (PLEP); dwelling houses are permissible with consent.
2. Clause 4.3 Height of Buildings and Map Sheet HOB_016 in PLEP prescribe a maximum height limit of 9m. The objectives in cl. 4.3(1) pressed by council are: 1. to nominate heights that will provide a transition in built form and land use intensity within the area covered by this Plan, 2. to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development. and 3. to reinforce and respect the existing character and scale of low density residential areas.
3. Parramatta Development Control Plan 2011 (PDCP) applies. The following clauses are relevant: 2.4.6 Development on sloping land Objectives O.1 To protect and minimise disturbance to natural landforms. O.2 To encourage buildings that are designed to respond sensitively to natural topography. Design Principle P.1 Buildings are to be sited and designed to take into account the slope of the land to: Minimise the visual bulk of the development, particularly when viewed from down slope Minimise the need for cut and fill by designs which minimise the building footprint and allow the building mass to step down the slope Minimise the impact of development on the privacy of adjoining land 3.1.3 Preliminary Building Envelope Tables [dwelling houses] Height [as per PLEP] 9 metres, maximum 2 storeys On battle-axe allotments the maximum permissible height is 1 storey/ 4.5m, with attic rooms permitted Side setbacks minimum 900 mm Rear setback Generally minimum 30% site length 3.2.3 Roof Design Design Principle P.2 Roof form should minimise the appearance of bulk and scale of a building. 3.3.2 Private and Communal Open Space Objectives O.1 To ensure that private open space is designed to provide residents with quality usable private outdoor living areas… O.2 To ensure that private open space is designed for privacy, solar access, and is well integrated with living areas. Design Principles P.1 Private open spaces is to be: Provided for all dwellings.. Directly accessible from the living area of the dwelling and capable of serving as an extension of the dwelling for relaxation, entertainment and recreation; Designed to ensure privacy of the occupants of adjacent buildings and within the proposed development; Located so as to maximise solar access; and Designed to focus on the quality of the space in terms of its outlook, orientation, relationship to the dwelling, size and shape and its enclosure and landscape treatment. Design Control - Dwelling houses on large lots (>550m2) C.1 A minimum of 100m2 of private open space is to be provided at ground level, with minimum dimensions of 6m.

The hearing and evidence

1. The hearing commenced on site; the owners of several adjoining properties made submissions. Their key concerns are summarised as:

• Non-compliance with the controls in PDCP in regards to dwellings on battle axe lots - including height, number of storeys, setbacks;
• The proposed dwelling will dominate adjoining properties;
• Potential for overlooking and therefore privacy concerns; and
• Not in accordance with some elements of the 2011 judgment and approval.

1. The parties' planners, Mr Adam Piper for the applicants and Mr Neil Kennan for the council, prepared a joint report and gave oral evidence. The planners did not agree on any contention.

Height

1. The council contends that the height of the proposed development is excessive and the dwelling does not respond to the natural topography of the property. In particular, the proposed dwelling is two storeys, is on sloping land, is excessively bulky when viewed from the adjoining dwellings and open space, involves significant cut and fill, provides an elevated balcony close to the boundary, reduces visual privacy of adjoining properties and the proposed roof form over the elevated deck increases the appearance of bulk and scale.
2. In Mr Piper's opinion the council's contention has more to do with building form and massing and to that extent the proposal meets the objectives in cl. 3.2.1 in PDCP. He states that there are several split level/ two storey dwellings within 100m of the site and that the same design has been approved and is under construction on a sloping battle-axe block about 240m away from the site. In this regard he maintains that the form and massing of the building is not uncharacteristic of the area. Mr Piper opines that the dwelling will be generally obscured from the street because of the setback, falling topography and vegetation, and will not have a strong presence within the streetscape.
3. With respect to the response of the building to the topography Mr Piper considers that the development displays graduating eastern and western (side) elevations of one to two storeys. In his view the design addresses the main constraint of the site being the steep slope from south-west to the north-east, and the cross fall from south-east to north-west. Mr Piper maintains that a single storey development would require either more excavation, or present as an elevated form with a large void, or be stepped down across a number of levels that would appear as a multi-storey form; options that would not necessarily provide a better outcome across the lot. In his opinion, the two storey element reduces the overall development footprint and achieves a floor space ratio that is less than that allowed by the controls.
4. In regards to the roof form over the deck, Mr Piper considers it is unlikely to be readily seen from the northern boundary. With respect to the impacts of the proposal, particularly arising from the deck, Mr Piper states that the nearest dwelling is some 33m away. Mr Kennan disagrees and considers the roof form adds to the bulk of the dwelling and the visual impacts are unacceptable.
5. Mr Kennan accepts that the overall height of the building complies with the development standard of a maximum height of 9m as specified in cl. 4.3(2) PLEP. However, in his view, as discussed in Zhang v Canterbury City Council [2001] NSWCA 167, the DCP should be a focal point of the decision making process and therefore the height of a dwelling on a battle-axe lot should be 4.5m and single storey. He also cites relevant paragraphs from the 2011 judgement (see [12] - [13] of this judgment) which he takes to indicate that that the Court, in granting the subdivision, and the experts were clearly of the view that only a single storey dwelling could be established on Lot 3.
6. In regards to the relevant Design Principles relating to the response of a development to topography, Mr Kennan shares the council's position articulated in the particulars of the contention (see [24]). He states that the most pronounced elevation of the proposed dwelling is that which would be seen from down slope and which would have an overall height of 7.7m above natural ground level. In his view, the design does not respond to the topography and promotes a development that would not minimise its impact on the privacy of adjoining land. Mr Kennan considers that it would be possible to design a dwelling as a number of single storey pavilions that stepped down the slope.
7. Mr Kennan cites an early Planning Principal published in Pafburn v North Sydney Council [2005] NSWLEC 444 in regards to the impact development will have on neighbouring properties. Mr Kennan opines that the impacts which result from the proposed development do not arise from "necessary" or "reasonable" development. He considers a skilful designer would achieve the applicants' desire for a dwelling while mitigating the impact that development would have on the amenity of the adjoining residential properties. He cites the former Senior Commissioner in Pafburn [24] in part that "People affected by a proposal have a legitimate expectation that the development on adjoining properties will comply with the planning regime". In Mr Kennan's view, the loss of visual amenity and impact to trees and the natural landform does not justify a development that breaches the single storey and maximum 4.5m height limit prescribed in PDCP.

Setbacks

1. Contention 2 states that: "the proposed rear setback of the development is inadequate". The particulars state that the rear boundary of the site is the eastern boundary and the proposed setback of 4.7m to 7.42m does not comply with the DCP requirement of 8.7m. In addition, the siting is inconsistent with the building envelope depicted on the plans approved by condition 1 - DA/676/2010 - the subdivision approval. The inadequate rear setback requires removal of three trees required to be retained and protected by condition 2 - DA/676/2010.
2. Mr Piper considers that given the orientation and location of the proposed dwelling on the site, the rear boundary is the northern boundary and not the eastern boundary. He agrees that the setback from the northern boundary does not comply with the prescriptive provisions in PDCP for rear setbacks [generally 30% of site length] but the eastern boundary setback, as a side setback, is compliant. In regards to the impact of a non-compliant rear setback, Mr Piper relies on the considerable spatial separation between habitable rooms of adjoining dwellings and any overlooking from the living areas would be to the north across the rear yards of adjoin properties.
3. Mr Kennan disagrees. He relies on the approved subdivision plans which in his view, establish the eastern boundary as the rear of the site. He also notes that the approved plans show the building envelope on Lot 3 as being a minimum 30% from the eastern boundary and located so as to preserve the three trees in question. In his opinion, the eastern boundary also provides the most useable area of open space.

Private open space

1. Council's contention 3 states that the private open space proposed is inadequate and would not provide adequate levels of amenity for the occupants of the proposed dwelling and adjoining development. In particular, the usable open space is not directly accessible from the living area, the proposed deck is inadequate in size and dimensions to provide a useable open space for entertainment/ recreation, and the deck adds unacceptable bulk to the dwelling and results in the overlooking of adjoining properties to the north and east.
2. Mr Piper states that the development provides a number of areas of open space which exceed the minimum area of 100m2 prescribed by PDCP. He notes that there is access to the principal open space from the rumpus room on the lower ground floor and access through the front door to an area of open space to the west. In his view, the DCP does not prescribe the specific form of the living area. In regards to the deck, it is not sought as the primary area of open space and he maintains his opinion that the deck is not unacceptable in its form or impact. With respect to Mr Kennan's opinion that the area of open space to the south- east is more appropriate, Mr Piper is of the view that this area would be in shade for most of the day and would therefore be unsuitable as the primary area of private open space.
3. Mr Kennan opines that the proposed development has its main living areas on the upper level and as such, the main areas of private open space are not directly accessible and therefore does not meet the objectives or design principles in cl. 3.3.2 of PDCP. In his view, a dwelling designed to comply with the height requirements of PDCP would have the main areas of open space located close to natural ground level and be accessible. It would also reduce the visual bulk of the building and assist in ensuring privacy of adjoining residents. As stated above, Mr Kennan considers the more level area along the eastern/ south-eastern boundary to be more suitable as the area of primary open space.

Submissions

1. Ms Reid for the applicants contends that the context of the single storey discussion in the hearing and determination of the subdivision application went to impact on streetscape. She submits that the proposal is for a single dwelling some 60m from the street, and which from the street, presents as a single storey.
2. The applicants' position is that the site is constrained by the downslope and the cross-fall. Ms Reid maintains that rather than increase the amount of cut and fill the second storey is in the under croft beneath the living areas which are appropriately orientated to the north. In this regard, this is an appropriate response to the difficult topography of the site with the bulk of the building to the north/rear - a form she contends is consistent with existing dwellings. Ms Reid contends that any development will necessitate cut and fill and while Mr Kennan maintains it could be stepped down the slope in a series of pavilions, this would result in a dominance of roof forms.
3. Ms Reid draws the Court's attention to the assessment report prepared by council's planning assessment officer that recommended approval of the proposal. In that report, the officer supports the applicants' justification for the non-compliance with the number of storeys on the basis that the site is constrained by its topography, easements and significant vegetation and that the split level design does not adversely impact on the amenity of the adjoining properties.
4. Further, Ms Reid contends that s 74C(5) of the Act applies and post-dates Zhang. This states: (5) A provision of a development control plan (whenever made) has no effect to the extent that: (a) It is the same or substantially the same as a provision of an environmental planning instrument applying to the same land, or (b) it is inconsistent or incompatible with a provision of any such instrument.
5. Ms Reid asserts that the 9m height control in PLEP has precedence and that the storey and height controls in PDCP for battle-axe blocks are fundamentally different from and inconsistent with the LEP. Ms Reid notes that the battle-axe provision in the DCP is found in cl. 3.1.3 - Preliminary Building Envelope Tables - for which there are no specific objectives and therefore the objectives for height of buildings in PLEP must be considered. While she agrees that a DCP should still be a focal point of consideration, and there may be circumstances where 4.5m is appropriate, in these particular circumstances the overall 9m height limit is appropriate and the height objectives in PLEP are met.
6. Further, in response to a submission made in regards to the finding in North Sydney Council v Ligon 302 Pty Ltd (No. 2) 93 LGERA 23 at 31 that a DCP, as a more detailed plan, which contained a provision which is more restrictive or prohibitive unless certain conditions are met, would not necessarily be contrary to the wider plan, in this case the LEP, Ms Reid contends that the way in which LEPs and DCPs interact has been dealt with through changes in the Act and that the proper process is to consider the matters in s 79C.
7. In regards to Mr Kennan's suggestion that the primary area of open space should be the flatter portion to the southeast, Ms Reid presses Mr Piper's opinion that this would be unsuitable because of overshadowing. She also asserts that to locate the open space in that area would have a potentially greater impact on the adjoining property to the east.
8. In considering the amenity impacts arising from the proposal, Ms Reid maintains that the view from the adjoining dwelling to the east will be of a single storey dwelling and the two storey element will only be visible from the lower part of the garden. The applicants will agree to a condition requiring appropriate landscaping to aid in screening the dwelling. Ms Reid also presses Mr Piper's statement that the dwelling on the property to the north is some 33m away and any overlooking would be onto the rear portion of that garden. However, Ms Reid agrees that privacy screens on the deck could be conditioned.
9. Ms Reid also notes that the Planning Principle in Pafburn has been superseded by Davies v Penrith City Council [2013] NSWLEC 1141 with 'necessary' removed and 'reasonable' retained. She submits that the proposal is reasonable as are the impacts that arise from it.
10. With respect to the proposed removal of four trees, Ms Reid notes the internal referral to council's Tree/landscape Officer in the assessment report. Subject to conditions requiring the incorporation of STIF species into the landscape plan, no objections were raised by the council officer.
11. Ms Reid presses council's planning assessment officer's response to public submissions made concerning setbacks. The officer accepts that the rear setback is to the northern boundary and is non-compliant, however, the officer recommends the imposition of a range of conditions to minimise overlooking. The officer also considers the setback from the eastern boundary is sufficient to maintain privacy between the dwellings, especially given the nature of the rooms and the dimensions of the windows on the south-eastern elevation of the proposed dwelling. With the exception of a condition requiring the reduction in width of the proposed elevated deck from 2.2m to 1.8m, the applicant agrees with the other conditions - a highlight window of the meals room on the northern elevation, and the installation of privacy screens to 1.8m high on both sides of the deck.
12. In summary, Ms Reid contends that on merit, the application should be approved on the basis that the proposal complies with the 9m height limit and FSR controls in PLEP and the impacts on adjoining properties are minor.
13. Mr Gough for the council agrees that while the proposal complies with the 9m height control in PLEP, he contends that the LEP does not deal with the number of storeys or with battle-axe blocks, therefore the finding in North Sydney v Ligon applies and to that end, PDCP is not inconsistent with PLEP. Mr Gough maintains that apart from the constraint of the site being a battle-axe block, it is also a sloping site and thus required by cl. 2.4.6 PDCP to be sited and designed to: minimise visual bulk when viewed from down slope, minimise cut and fill, and minimise impacts on neighbours. It is his contention that the proposal is numerically non-compliant with the height and storey standards in PDCP and fails to meet the specific requirements for development on sloping land. Mr Gough presses the finding in Zhang and maintains that the relevant clauses in the DCP be given significant weight.
14. In regards to s 79C(3A)(b) of the Act, Mr Gough agrees that a consent authority must be flexible in applying standards within a DCP and allow reasonable alternative solutions that achieve the objects of those standards - in this case of cl. 2.4.6 and cl. 3.1.3 of PDCP. However, he submits that the applicants have not provided a reasonable alternative that meets these objectives. Mr Gough maintains that the design is unreasonable in the circumstances, maximises floor area at one level, and results in elevated windows and decks close to boundaries that provide a highly visible structure with the potential for extensive overlooking of adjoining properties. He contends that rather than have a dwelling designed to respond to the particular characteristics of the site, a project home has been imposed upon the site. In this way, Mr Gough asserts that the Planning Principle in Davies is relevant in that the impacts could be reduced through an improved design and the impacts essentially arise because of the non-compliance with the controls in the DCP.
15. With respect to the setbacks, Mr Gough notes that the proposal is non-compliant with the rear setback provisions regardless of whether the rear of the site is the northern or eastern boundary. He maintains that apart from overlooking, another consequence of the non-compliance is the need to remove trees that were to be retained. This, he says, is counter to the objective in PDCP c. 2.4.7 - Biodiversity - to minimise the removal of indigenous vegetation. Mr Gough contends that the site is not constrained to prevent a building platform which enables the retention of indigenous flora.
16. In his written submission, Mr Gough presses the definition of 'Private Open Space' in PDCP as "The portion of private land which serves as an extension to the dwelling to provide for relaxation, dining, entertaining and recreation." In addition, he maintains that "private open space is to be directly accessible from the living area of the dwelling". Mr Gough contends that the rumpus room is not the living room of the dwelling and in any event, the outside area adjoining this area could not be considered private open space as its excessive slope and minimal width is unsuitable for the purposes listed in the definition. Similarly, the first floor deck is unsuitable because of the limited area.

Consideration and findings

1. The principal issue is the permissibility and appropriateness of the proposed split level dwelling on this sloping battle-axe block. The starting point in determining this development application must be s 79C of the Act.
2. The relevant environmental planning instrument is PLEP 2011. It is common ground that the proposal complies with the height and FSR controls. The proposal meets the only relevant objective of the R2 zone in that it provides for the housing needs of the community within a low density residential environment.
3. The difference between the parties is the extent to which the proposal complies with PDCP and the relationship between PLEP and PDCP. Section 79C(1)(a)(iii) requires the consent authority to consider the provisions of any development control plan. Section 79(C)(3A)(b) applies to DCPs. It states: (3A) Development control plans. If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development. In this subsection, "standards" include performance criteria.
4. Clause 3.1.1 PDCP considers Height and references the height controls in PDCP - in this instance 9m. Clause 3.1.1 states that there are circumstances/exceptions where site conditions require consideration of a lower height limit. The exceptions are noted in the tables and elsewhere in the DCP. The relevant exception is in cl. 3.1.3 - Preliminary Building Envelope Tables - Dwelling houses - height - battle-axe blocks - 4.5m and single storey.
5. There are no accompanying objectives or design principles that specifically apply to height or number of storeys. As Mr Piper identifies, perhaps the most applicable objectives and design principles are found in cl. 3.2.1 - Building Form and Massing.
6. The relevant objectives (O) and design principles (P) are: O.1 To ensure buildings are compatible in form relative to the spatial characteristics of the local area. O.2 To ensure building mass and form reinforces, compliments and enhances the visual character of the street. O.3 To ensure the distribution of building height and mass preserves and enhances neighbourhood amenity, site characteristics and environmental constraints. P.1 Buildings are to be of a height that responds to the topography and the shape of the site. P.2 The proportion and massing of buildings is to relate favourably to the form, proportions and massing of existing and proposed building patterns in the street. P.3 Building height and massing should not result in unreasonable loss of amenity to adjacent properties, open space or the public domain.
7. While the council and the objectors rely quite heavily on elements of my findings in the 2011 subdivision approval, the proposed development the subject of these proceedings must be considered on its own merits. I agree with Ms Reid that in the 2011 subdivision matter, the discussions and referencing of a single-storey dwelling on Lot 3 were in the context of the streetscape. In this respect, my opinion has not changed: as a consequence of the distance from the street, the fall of the land, and the intervening vegetation, the proposed dwelling will appear as a single storey dwelling from the street, and therefore will have little impact on the streetscape. While streetscape not an issue raised in these proceedings, the proposal is consistent with the relevant objectives and design principles in cl. 3.2.1 PDCP given above.
8. It was clear from the site inspection that because of the sloping topography of the locality, a significant number of nearby dwellings have a split level design - single storey at the front and two-storey at the rear. Therefore I agree with Mr Piper that the form and massing of the proposed dwelling is not uncharacteristic of the area. It is also interesting to note that council has approved the same style of dwelling in a situation not dissimilar to this site, although the particular circumstances of that approval are unknown and cannot be relevant in these proceedings.
9. While it may be possible to build a series of single storey pavilions down the slope as Mr Kennan suggests, considering the fall of the land in two directions, such a proposal would quite possibly require more cut and fill. It seems that providing internal access within such a dwelling would be more complicated unless a two storey element was incorporated into the design. The design as it stands is split level being part single - storey at the front and part two-storey at the rear.
10. I note the assessment report of council's assessing officer and her comments in regards to the non-compliances with PDCP. The officer supports the non-compliance on the basis that: given the complex slope, accommodating a functional single storey dwelling on the site would involve substantial excavation; the proposal limits excavation by providing a split-level design; the stepping of the dwelling down the slope minimises the bulk and scale and associated impacts of overlooking and overshadowing; and it does not adversely affect the amenity of the adjoining properties or any future dwelling on the lots facing Epping Road. The officer notes the significant spatial separation between adjoining properties.
11. Given the primacy of the height control in PLEP and the absence of any specific objectives or performance criteria in PDCP that provide a rationale for the 4.5m height limit on battle-axe blocks, the main issue arising from the height of the proposed development must be the likely impact of the dwelling on the amenity of the neighbouring properties - especially the adjoining properties to the north and east.
12. It is appropriate to consider the revised Planning Principle published in Davies: criteria for assessing impact on neighbouring properties. The following questions are relevant: How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained? There is no issue with loss of sunlight to any adjoining property or any loss of views from those properties. Concerns have been raised about privacy and visual impact. In regards to the property to the south-east, the south-eastern façade contains no full-sized windows; the windows of habitable rooms are high-light windows and a privacy screen is proposed to be installed on the side of the deck. Any view from this elevation is onto the rear yard of the adjoining property. The rear of the dwelling on the property to the south-east is some distance away and no part of it adjoins the proposed dwelling on the site; the closest element of the proposed dwelling is the garage. With respect to the visual impact of the proposal on the property to the south-east, the proposed new dwelling will be visible from the adjoining property to the east and will appear as a singly storey dwelling from the rear of the dwelling on that property. The two storey element will be visible from the rear garden. Notwithstanding the dispute between the parties as to the setback from the boundary, there is sufficient room for appropriate landscaping and screening. In regards to the adjoining property to the north-east, the views are primarily of the gully and private open space at the rear of that property and several other properties. A privacy screen is proposed to be installed on each side of the deck and the north-easterly facing window of the 'meals' room is proposed to be changed to a highlight window. No windows on the upper section of the north-western façade are full-size. Given the difference in levels between the two properties, in particular the quite steep slope down to the adjoining property, any development - be it principally single storey or two-storey will have the potential to overlook this property, however, an increased elevation will enable a greater field of view. In terms of the visual impact of the proposal on this property, it will inevitably appear as a somewhat bulky and imposing structure when viewed from immediately below the site. Deleting the roof of the deck and the use of recessive colours will reduce the visual impact of the rear of the dwelling when viewed from further away but not eliminate it. As considered above, given the position on the slope relative to the rear of the adjoining property, any dwelling will have a visual impact. How reasonable is the proposal is the proposal causing the impact? The construction of a dwelling on the site is permissible and reasonable. How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact? As previously mentioned, the dwellings on the adjoining/ affected properties are some distance away. There would be some loss of development potential to avoid any impacts however, as considered above, the impacts are not unreasonable in the circumstances but can be mitigated by some modification of the design. Does the impact arise out of a poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours? In regards to the issue of overlooking, the design is such that the potential is limited. The possible modifications are given above and further discussed elsewhere in this judgment. Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal? The visual impact is largely due to the non-compliance with the DCP requirement for a single storey dwelling on a battle-axe block. However, if the LEP prevails, the dwelling complies with the 9m height control in that instrument. It is also conceded that the rear setback control is offended.
13. While the DCP must be a focal point of any consideration, s 79C(1)(a)(iii) of the Act promotes a flexible approach in the application of DCPs. In the particular circumstances of this site, I find that the proposal is generally consistent with and not antipathetic to the height control objectives in cl 4.3(1) PLEP. In particular I find that the potential impacts on the privacy of the affected properties are acceptable and do not constitute sufficient grounds for outright refusal of the application however some modifications of the design are appropriate in order to reduce the visual impact. That said I have no doubt that in other circumstances, the single storey control for development on battle-axe blocks could be entirely appropriate.
14. With respect to setbacks, while I agree that for the purpose of the subdivision, the rear of the original site was the eastern boundary, I agree with Mr Piper that for this particular lot, given the approved indicative building envelope and the orientation of the proposed dwelling, the rear of this site is most logically the northern boundary.
15. It is agreed that the proposal does not comply with the rear setback provisions in the DCP, that is - generally 30% of the length of the site. The roughly centralised location of the dwelling on the lot provides side setbacks that are more than compliant with the controls. In the circumstances, given the topographic and drainage constraints of the site, requirements for on-site manoeuvring of vehicles, and the acceptable level of impact on adjoining properties, I concur with council's assessing officer who supported the non-compliance that the proposal should not be refused on this basis.
16. Although the setback from the eastern boundary will require the removal of three trees, this was not opposed by council's internal staff. It was agreed that replacement planting, including the use of deciduous trees, would provide a visual screen and not unduly compromise the garden of the adjoining property to the east. The more than compliant side setback from the eastern boundary will assist in maintaining the amenity of the rear garden of the adjoining property, which unlike the rear portion of the adjoining lot to the north, is flatter and more intensively used for a range of recreational purposes.
17. During the hearing it was drawn to the parties' attention that a batter is proposed along the rear/ northern elevation. This will have a detrimental impact on Tree 5 - described in the applicant's arboricultural report, as a Eucalyptus bicostata. This is an Australian native but not an indigenous species. While the arborist who undertook the assessment noted its health as good, they did not assess the impact of the batter on the tree. The planners discussed the merits or otherwise of a drop-edge beam to limit the need for battering. Mr Kennan, while maintaining his opinion that the dwelling should be set back further from the boundary, is of the opinion that for visual and practical reasons a batter would be preferable.
18. With the arboricultural expertise I bring to the Court, the most sensible approach would be to remove and replace the tree with a species from the Endangered Ecological Community - Sydney Turpentine Ironbark Forest, consistent with the conditions of consent for the original subdivision. I agree with Mr Kennan's preference for a batter.
19. Overall, I find there is sufficient provision of open space in a range of locations. In regards to Mr Kennan's view that the site plans show the south-eastern portion of the site has a gentler gradient than the western portion of the site, I agree with Mr Piper that the shadow diagrams illustrate that area would be in shade for a considerable period of time on the winter solstice. It would also locate the principal area of open space close to the adjoining property to the east. However, that said, the space is useable although not directly accessible from the living area of the dwelling.
20. I find the weakest element of the proposal is the failure of the design/ internal configuration of the dwelling, to provide reasonable access to the area of outdoor open space to the north-west from the upper level - which is the principal living area of the dwelling. Having to access the space via the front door is a less than desirable option. I note that there is a door from the level below but as discussed below, there is insufficient detail to show how the open space is to be accessed given the slope and the proposed retaining wall.
21. Given the proposed batter and the general fall of the site, the area of open space accessible from the rumpus room may be less useable than the plans show. While the deck is currently the only readily accessible area of open space from the upper living area, it is a secondary space and of an appropriate size for outdoor dining.
22. The landscape plan and the architectural plans do not adequately detail how access to open space is to be achieved and how the changes in levels are to be resolved. The landscape plan is particularly deficient in showing levels and does not appear to include the batter at the rear of the dwelling.
23. Therefore I am not satisfied that the proposal achieves the objectives in PDCP for private open space. However, rather than refuse the application on this basis, directions will be made requiring the applicants to amend the design and prepare more detailed landscape plans that address the issues raised in [72] - [74]. In addition, the landscape plans are to show the removal of a small Camphor Laurel observed during the site view. The landscape plans must also be consistent with any relevant provisions of the Vegetation Management Plan prepared by SLR Consulting Australia Pty Ltd prepared for the sub-division [condition 57(c) - DA/676/2010 - matter 10868 of 2010]. These amendments should be considered as minor.

Other/ conditions

1. Although not raised as a contention, the council presses a condition requiring a schedule of materials and finishes to be submitted to council for approval prior to the issue of a Construction Certificate. The reason for the condition is to comply with the Epping/Eastwood conservation area guidelines and appear to arise from the internal referral to council's heritage advisor.
2. The assessing officer's report to council notes that the heritage advisor raised no issues with the proposed development subject to conditions being incorporated into the development consent. Condition 20 proposed by the council requires:

• The proposed house walls to be clad in dark red face bricks with the timber cladding to be weatherboard;
• The proposed roof is to be dark red terracotta tiles in a low glare finish;
• The proposed windows and door frames are to be lacquered timber; and
• The garage door is to be clad in natural timber or timber finish in a natural colour.

1. The other condition in dispute is whether the proposed timber deck should be reduced in width from 2.2m to 1.8m in order to protect the privacy of adjoining properties (condition 23).
2. Ms Reid presses the deletion of these conditions, however the parties agreed to me determining the contested conditions.
3. In regards to council's condition 20, the planner's report to council identifies the proposed condition concerning heritage. Consistent with my findings in regards to reducing the visual impact of the proposed dwelling in [63], conditioning the use of dark red brick or a suitably recessive colour and a timber finish for the windows, doors and garage door is appropriate. In regards to the roof, there was some evidence that the imposition of a tiled roof may have implications for the structural design of the dwelling. As no submissions were made in regards to the roof cladding, the requirement for roof tiles should be deleted but the requirement for the roof to be a low glare finish should remain. In addition, the roof colour should be recessive. The condition is to be amended accordingly.
4. With respect to the deck, again consistent with my findings on visual impact and privacy, if the roof of the deck is removed and the privacy screens are of opaque/frosted glass rather than timber or similar, the visual impact will be reduced and the privacy of the adjoining residents will be protected without the need to reduce the width of the deck. The roof of the deck could be replaced with a retractable awning or something similar. An appropriate condition is to be drafted or alternatively, the details are to be shown on amended architectural plans.

Conclusions and directions

1. Having considered the requirements of s 79C of the Act, the expert evidence, the positions of the nearby residents, and the submissions of the parties' advocates I am satisfied that the development application is capable of approval. However, approval is contingent on the applicants providing amended plans that address the issues raised in this judgment.
2. Specifically, the applicants are to provide amended architectural plans that:

• delete the roof of the deck,
• detail the type and extent of the privacy screens on the deck,
• change the window of the meals room to a highlight window,
• identify the materials and finishes to be used,
• reconfigure the upper level of the dwelling to provide secondary external access from the living area or from that floor to the adjoining outdoor area of open space,
• detail the means by which access is to be achieved to the areas of outdoor private open space from both levels.

1. The applicants are to provide a detailed landscape plan that includes all elements in council's draft condition 21 but should also include finished levels and details of access from the dwelling to the areas of private open space. The landscape plans must be consistent with the amended architectural plans. The plans are to take into account the Vegetation Management Plan mentioned in [75].
2. The parties are to prepare and agree on conditions of consent that reflect these findings.
3. On receiving the final agreed conditions of consent and the filing and serving of the amended plans, I will make the final orders in chambers upholding the appeal and granting consent to Development Application DA/83/2014 for tree removal and the construction of a split-level dwelling on Lot 3 DP112522, 54A Epping Avenue, Epping, in accordance with the amended plans and subject to the agreed conditions of consent. The exhibits will be returned.

Conclusions and Orders

1. The parties have complied with the directions and I am satisfied that the conditions of consent and the amended plans address the matters raised in this judgement. Accordingly, the orders of the Court are: 1. The appeal is upheld. 2. Development Application DA/83/2014 for tree removal and the construction of a split-level dwelling on Lot 3 DP112522, 54A Epping Avenue, Epping is determined by consent in accordance with the conditions annexured to this judgment. 3. The exhibits except A, B, C, D, E, F, J and 1 are returned.

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Judy Fakes Commissioner of the Court 10785 of 2014 conditions (105 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 March 2015