Brand v Gosford City Council

CASES CITED: Nooramunga Holdings Pty Ltd v Gosford Shire Council [1988] NSWLEC 9 (2 March 1988) Wehbe v Pittwater Council [2007] NSWLEC 827

DATES OF HEARING: 31 August 2009, 1 September 2009 and final submissions 15 September 2009

APPLICANT Mr P Larkin (barrister) SOLICITOR Conditsis & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr P Tomasetti (senior counsel) SOLICITOR Storey & Gough

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10139 of 2009 Brand, Andrew James v Gosford City Council

JUDGMENT 1 The applicant in these proceedings is seeking approval to subdivide a corner allotment of land on the central Coast into two lots and erect a dwelling house on each lot. 2 The subject site is No. 3 Clairvoux Road, Wamberal being Lot 1 in DP 508118. The site also enjoys frontage to Dover Road of some 21 metres with a frontage to Clairvoux Road of approximately 40 metres. The site area is 1010 square metres and proposed corner Lot 11 has an area of 550 square metres and proposed Lot 12 that addresses Clairvoux Road is about 460 square metres. 3 The site is on a hillside with the ocean to the east and the fall of the land is some 5 metres across the site from the northwestern corner to the southwestern corner. Currently on the subject site, proposed to be demolished, is a single storey dwelling house of weatherboard and tile roof construction with vehicle access from Dover Road. An aerial photograph is at figure 1. 4 Lot 11 is the corner allotment where a dwelling house is proposed with the ground floor level consisting of garages accessed from Dover Road, two bedrooms, laundry, bathroom and a sub floor. The next level there is pedestrian access from Clairvoux streets provides for the second bedroom and the lounge, dining and living areas and kitchen. The third level provides for an ensuite and master bedroom with deck to the east. 5 For dwelling two on proposed Lot 12, at the lower-level there is a sub floor area and the second and third bedroom and wet areas. The middle level provides for the garage with access from Clairvoux Road, the entry, courtyards and the living and kitchen areas with a deck to the east. The third or upper level provides the master bedroom, ensuite and deck.

The dwellings present as part three storeys including the sub floor area with a height of 2.7 to 3.5 metres in the section as viewed from Dover Road and the eastern elevations. Refer to figures 2, 3, and 4. 6 The residential development surrounding the subject site is predominately single detached houses with a residential flat building opposite in Dover Road. Immediately adjoining the subject site to the north is a part one and two-storey dwelling and to the east a two-storey dwelling house. Within the vicinity of the site there are a number of dual occupancy developments. 7 The council provided a Statement of Facts and Contentions and the issues are generally as follows: 1. The lots are of an inadequate size having regard to Council's controls and the constraints of the land that is being on a corner and the slope of the land. Proposed lot 12 has an area of 460 metres squared as opposed to 550 metres squared in the Gosford Planning Scheme and because of the slope being greater than 15% the DCP requires 650 metres squared. Similarly Council contends that proposed lot 11 of 550 square metres with a slope greater than 15% requires a minimum of 650 square metres and the DCP requires corner allotments to be increased by 50 squared metres. Council contends that the undersized allotments do not: i. Provide sufficient areas to enable construction of satisfactory dwellings with suitable private open space, vehicle access and parking; ii. Enable a form of residential development which is in character with locality; iii. Enable building design to avoid adverse impact in regards to privacy, solar access and usable outdoor living space. 2. An objection under State Environment Planning Policy No. 1 is required and the SEPP 1 objection submitted to vary the minimum allotment size is not adequate. 3. The subdivision is inconsistent with the character of the surrounding area and contrary to the objectives of the zone and the development control plan. 4. The dwellings proposed are inconsistent with the character of the surrounding area, and do not respect the qualities distinguishing the Wamberal area as detailed in the character statements for the open Woodland hillside localities. And the dwellings would not be compatible or consistent with of the future character desired. 5. The dwellings are not in harmony or sympathetic to the existing streetscapes of Dover Road and Clairvoux Road as required by the development control plan. In particular, the Council contends that the height of the dwellings, the similarity in design and the lack of separation and landscaping would result in structures appearing as a large single form. Council also raises the provision of the courtyard areas within the front seatbacks is not sympathetic with other development in the locality, in particular the heights is excessive and non-compliant with the controls and inconsistent with the established streetscape. 6. The undersized allotments and the extent of building footprint preclude the ability to provide adequate landscaping . 7. Council contends that the proposal does not provide adequate private open space with courtyard areas within the front setback and, because of the topography, privacy is an issue. Furthermore councils states that the raised courtyard areas are not consistent with the private open spaces of dwellings in the locality and the inadequate private open spaces for the dwellings would result in poor amenity for future residents. In particular the raised courtyards have zero setbacks to the boundary with the road. 8. The issue of unacceptable level of residential amenity for adjoining properties is also raised by the Council, in particular the adjoining properties at No. 17 Dover Road and No 5 Clairvoux Road. 9. The development requires extensive and excessive cut and fill up to 1.5 metres and this does not preserve the existing topography. 10. The council also contends that the proposed subdivision would be an undesirable precedent in the locality and a departure from councils subdivision standards contrary to public interest. Statutory planning framework 8 The subject site is zoned residential 2(a) under the Gosford Planning Scheme Ordinance and clause 10 requires the consent authority to take into consideration the objectives of the zone and the character of the development site and the surrounding area. For the purpose of this character means "the qualities that distinguish each area and the individual properties located within that area". 9 The relevant objective of the 2(a) zone is: a. to make provision for the orderly and economic development of suitable land for a variety of low-density housing forms which are essentially domestic in scale and which have private gardens. 10 Development that needs consent includes dual occupancies attached; dual occupancies detached; dwelling houses and cluster development. 11 Clause 29B relates to floor space ratio and for the 2(a) zone this is 0.5:1. 12 Clause 30AAA requires the council not to grant consent to the subdivision of land within zone 2(a) unless: a. the area of any allotment to be created by the subdivision is not less than 450 square metres; and b. not more than 10% of the allotments to be created by the subdivision have an area of less than 550 square metres. 13 State Environment Planning Policy No. 1- Development Standards allows an objection to be made in respect of development standards. This policy provides flexibility in the application of planning controls in circumstances where strict compliance would be unreasonable or unnecessary or tend to hinder the attainment of the objects of the Environmental Planning and Assessment Act. 14 Clause 7 states that the consent authority can grant consent if is satisfied the objection is well founded and with the concurrence of the director. 15 Clause 8 of the SEPP sets out the matters to be taken into consideration in deciding whether concurrence should be granted, that is whether any matter of significance for state or regional planning or whether the public benefit of maintaining the planning control adopted by the planning instrument. 16 The objectives of the Residential Subdivision DCP No. 112 include: c. To maximise development potential for residential land whilst retaining any significant environmental characteristics that may occur on the land; and d. To encourage a variety of allotments to cater for differing housing needs. 17 The objectives for the arrangement of lots are: to provide a sufficient area and dimensions to enable the construction of dwellings, and out buildings, private open space, vehicle access and parking to ensure that allotments and the resulting residential development is in character with the locality and specific land form features of the site such as slope, aspect, vegetation and position in relation to adjacent building to ensure that elements of the site including size, slope, orientation, etc provide maximum opportunities for future building design, privacy, orientation, solar access and usable outdoor living space on the site to encourage a variety of allotments to cater for different housing needs within the community. 18 The DCP reiterates the Gosford Planning Scheme Ordinance and the minimum area in the 2(a) zone is 550 square metres with 10% of lots in any one application between 450 and 550 in area. 19 The DCP contains a provision that minimum allotment sizes are increased in respect to sites having the following characteristics or locations, to provide sufficient area to accommodate the additional requirement for batters, retaining walls, cut/fill, setbacks etc. With a slope greater than 15% in the residential 2(a) zone a minimum area of 650 square metres and an 18 metre width is required. For sites with a slope of less than 15% 550 square metres and a minimum width of 15 metres. The DCP provides guidelines for measuring the steepest slope perpendicular to the contours. 20 The minimum area for corner lots is to be increased by adding 50 square metres to the minimum area. 21 Development Control Plan No. 155 is for single dwellings and ancillary structures. Clause 8 for site occupancy for dwellings has the following objectives: a. to provide adequate private open space on each developed site b. to provide adequate separation between dwellings on separate lots to ensure privacy is retained… c. to provide access to be yard areas d. to provide adequate room on site for open space area. 22 Setbacks for dwellings has the following objectives: b. to provide a consistent view along Street frontage and to promote a more open streetscape. 23 Generally the building line is at a distance of 6 metres. For corner lots the building line on the side street of corner lots will be determined by requiring the proposed building to maintain a 6 metre building line at the rear boundary alignment with the building line diminishing on the side boundary alignment at 1/3 of the length of the side boundary alignment from the rear boundary alignment. 24 For setbacks from rear boundaries the DCP requires a minimum of 900 mm however similar setbacks to adjoining development should be encouraged to maintain amenity, view corridors, privacy etc. 25 The objectives of the height restriction provisions include: a. to maintain existing character in scale b. to preserved landscape and streetscape character c. to preserve views or provides a view sharing d. to preserve privacy and reduce overshadowing e. to preserve the amenity of adjoining properties f. to restrict buildings which may dominate the streetscape, waterfront beachfront character. 26 Specific requirements for height include: c. No point in any structure shall be higher than 10 metres above natural ground level immediately below that point d. The vertical distance from the highest point of the floor of the topmost floor above natural ground level is not to exceed 4 metres 27 Clause 12 refers to residential dwellings and the depth of excavation is not to exceed 1 metre in the depth of fill is not to exceed 1 metre so that the degree of both cutting and filling is minimised. 28 Clause 18 contains provisions for consideration of privacy with the objective being: To maintain the privacy of existing neighbouring properties from all new dwellings…

29 This can be achieved by: c. ensuring windows especially to living areas and balconies do not face directly onto windows balconies or private open spaces of adjoining dwellings; d. avoiding use of elevated terraces or decks that overlook adjoining property. 30 Development Control Plan No. 159 Amendment No. 1 is for character and an aim is to provide detailed statements of desired character that are consistent with those matters for consideration in order to guide future development and the objectives are: a. to protect and enhance environmental character that distinguishes Gosford City's identity; and b. enhance the City's identity by development that displays improved standards of scenic, urban and civic design quality. Development applications must demonstrate consistency or compatibility with applicable statements of desired character. 31 In the explanatory notes on what is character, the DCP states: a. character has two components: i. existing character relates to current patterns of natural and urban geography that can be observed on each development site and surroundings; ii. desired character provides objectives for future development and emphasising important existing qualities or features that should be protected or enhanced; iii. note that desired character also includes best practice approaches to scenic planning, urban design and environmental amenity, and are particularly important for locations where previous development practices have been unsatisfactory. 32 Under clause 3.6 pertaining to height and scale the DCP states: a. neighbourhood character and scenic quality are substantially influenced by the height and scale of buildings viewed from both public vantage points and from neighbouring properties … b. visual proposed development compatible with the height, size and relative scale of surrounding buildings? 33 Under architectural form question posed is: d. could the siting orientation or form of your proposal substantially affect the amenity currently enjoyed by any neighbour… 34 Clause 3.8 refers to gardens and street verges and the DCP states: a. scenic quality and neighbourhood character substantially influenced by the size of gardens and landscape design plus any landscape features of on-street verges b. do the size of gardens and proposed landscaping provide a leafy settings for buildings d. are gardens or courtyards that face rear or side boundaries designed appropriately and do gardens and courtyards promote private recreation. 35 Schedule 2 provides character statements and the subject site is within the open woodland hillside depicted by the No. 6 on the map. The following is an extract of the relevant section Desired Character These should remain low-density residential areas where the existing scenic quality and amenity of prominent hillsides are enhanced substantially by further "greening" of gardens and street verges in order to screen new development and to complement the open bushland canopy that surrounds most dwellings. Maintain the semi-natural character of hillsides by retaining existing natural slopes throughout gardens and along street verges, and by conserving bushland trees that are visually-prominent features. Complement the established canopy by planting trees and shrubs that are predominantly indigenous throughout all garden areas and along street verges. Do not plant identified noxious or environmental weeds in any garden that is close to a bushland reserve. Facing all boundaries, emphasise a leafy garden character by avoiding tall retaining walls, elevated structures such as terraces or pools, and steep driveways that would visibly compromise the leafy hillside character… Avoid disturbing natural slopes and trees by appropriate siting of structures plus low impact construction such as suspended floors and decks, rather than extensive cut and-fill. On the steeper sites, locate parking next to the street in structures that are designed to blend with their desired bushy setting. Avoid the appearance of a continuous wall of development along any street or hillside by locating buildings behind front and rear setbacks similar to their surrounding properties, and providing at least one wide side setback or stepping the shape of front and rear facades. Minimise the scale and bulk of buildings by stepping floor-levels to follow natural slopes and by using irregular floor plans to create well-articulated forms. For example, divide floor space into linked pavilions that are separated by courtyards and capped by individual roofs. Front or rear facades that are taller than neighbouring dwellings should be screened by balconies, verandahs, stepped forms or extra setbacks. Roofs should be gently-pitched to minimise the height of ridges, and flanked by wide eaves to disguise the scale of exterior walls. Minimise the scale of prominent facades by using extensive windows and verandahs plus a variety of materials and finishes rather than expanses of plain masonry. All dwellings should display a traditional "street address" with verandahs or decks, and living rooms or front doors that are visible from the roadway. Avoid wide garages that would visually-dominate any front facade or block views from a dwelling to the street. Locate and screen all balconies or decks to maintain the existing levels of privacy and amenity that are enjoyed by neighbouring dwellings. Existing Character In a number of separate locations, established residential subdivisions occur upon gentle to moderate slopes retain an open canopy of tall woodland remnants that provide scenically-distinctive backdrops to a coastal lagoon, major thoroughfares or beach fronts. Woodland remnants, varying from open and scattered to dense copses and corridors of tall eucalypts, form a canopy above well-maintained gardens of dense shrubs and trees. Regular subdivisions accommodate small-to-medium sized lots, facing grids of local streets, with filtered coastal views available from elevated lots through the canopy. Some areas include a major district thoroughfare flanked by wide unformed verges studded with tall woodland remnants that provide local landmarks. Local access streets, some with unformed edges, are flanked by very wide sloping grassed verges, often with scattered tall woodland remnants. Established houses are modestly scaled, and include traditional single storey timber-framed bungalows and newer one or two storey brick-and-tile buildings. Recent redevelopment upon elevated lots has produced large two storey brick houses with wide frontages that capture panoramic local views. Surrounding the established houses, substantial gardens provide separation from neighbours and support tall woodland remnants above dense beds of flowering shrubs and ground covers. 36 Other relevant development control plans adopted by the Council include DCP No. 108 energy smart homes for single residences and DCP No. 111 car parking.

Evidence and submissions 37 The Court met on-site the first morning of the proceedings and carried out an extensive view of the subject site and surrounding area. 38 Evidence was given to the Court on behalf of the applicant by Mr Douglas Sneddon, consultant town planner and Mr Michael Neate, a surveyor, and Mr Dean Walker, architect who prepared the photomontage for the proposed development.

For the respondent Council evidence was given to the Court by Mr Brett Newbold, consultant town planner, architect /urban designer. 39 Mr Neate was questioned as to the relative levels that he used to calculate the slope of the land, while he agreed that he had not factored in the lowest level at the base of the retaining wall but rather the top of the retaining wall he said, nonetheless, it was representative of the land but he also agreed that this would have the effect of decreasing the slope. 40 Mr Tomasetti referred Mr Neate to his appendix B where he calculated the slope of the land with five sections. With the lower levels at the base of the retaining wall factored in for line one the slope increased from 12.9% to 16.6% and for line three it increased from 14% to 18.1% and for section 4 from 13.2 to 18.3%. 41 Mr Sneddon when questioned on the overlooking from dwelling No. 2 to the east towards No. 17 he agreed that the dwelling is designed to capture the eastern aspect and view and this results in overlooking to No. 17. He did not agree that if the land is not subdivided that there would be less impacts on No. 17 because one could not say where a dwelling would be located on the subject land. Similarly the impact on No. 5 Clairvoux Road with the separation distance of 5.5 to 6 metres from occupancy to proposed dwelling on the subject lands, Mr Sneddon said that this is acceptable for a side boundary. He noted that there had been no objections from a No. 5 or No. 17 to the proposed development. Mr Sneddon considers that the impacts on No. 17 are also not unreasonable. 42 Mr Newbold agreed with Mr Larkin that there is a degree of overlooking of all properties to the east with decks predominantly oriented to the east. However, the proposed development in his opinion in particular from the living spaces is exacerbated by the proposed development. 43 Mr Sneddon considers that the additional 50 metre square required for corner lots is only a guideline to achieve site lines at the intersection of Dover and Clairvoux Roads and in the circumstances of this case it is not required. On the other hand Mr Newbold considers that the additional site area for corner allotments is to allow for greater setbacks and to achieve the same development area of the land. He does not agree that the purpose of the additional site area is for sight lines. 44 When Mr Sneddon was questioned about the predominant lots size within the area he agreed that it was 550 square metres or greater, however, he referred to the residential flat building opposite and dual occupancy development scattered through the area even though the majority are single dwelling houses. Mr Sneddon referred to the trend for large dwellings with a footprint as large as possible many with pools and not gardens, however when he was questioned as to whether they made a positive contribution to the character and streetscape he responded no. 45 Mr Sneddon is of the opinion that the provision for only 10% of lots to be 450 metres squared that is clause 30AAA1(B) has no practical application as it relates to greenfields subdivisions. 46 Mr Sneddon agreed that the courtyard fronting Clairvoux is the principal private open space for the dwellings and he agreed that the area at the rear is only accessible from the bedrooms. Mr Sneddon agreed that landscaping in the road reserve would be required to provide privacy and amenity for the residents of the proposal with the open space in the front setback adjoining the front and road boundary. When he was questioned about the direct line of sight down into the living area Mr Sneddon said there was an ability to provide privacy by furnishings. 47 Mr Newbold says that the front courtyards adjoining Clairvoux are the primary open space areas for the dwelling houses the balconies being secondary and the rear ground level tertiary is only tertiary because this are only accessed through the laundry and bedrooms and it is a narrow space. In his opinion 5 metres wide is more appropriate for the dwellings and that to 2.5 metres in his opinions does not meet the objectives of the zone and is more akin to medium density development. 48 Mr Larkin put to Mr Newbold that council had not applied the Character Statements No. 6 in the assessment of development applications and that on the subject site there is no remnant vegetation and on the verge there is no remnant vegetation because the road had been constructed with cut and fill and the existing vegetation is re-growth and not remnant tall woodland. Mr Newbold said that the character statements had not been prepared with forensic precision that the intent was to generalise for the character and he accepts that there is no distinction between which trees are remnant and those that are not. Mr Newbold said that the purpose of the character statement was to achieve more greenery south of Dover Road. 49 Mr Sneddon said the dwellings comply with the height plane even though he agrees that both dwellings are 3.5 metres, a storey, above the 4 metre height contemplated in the DCP.

Findings On behalf of the applicant Mr Sneddon prepared an objection under State Environmental Planning Policy No. 1 to vary the minimum allotment size as contained in clause 30AAA of the Gosford Planning Scheme Ordinance . A further amended objection was also tendered.

It was submitted on behalf of the applicant that I am bound by the decision of the Nooramunga Holdings Pty Ltd v Gosford Shire Council [1988] NSWLEC 9 (2 March 1988) wherein Justice Stein stated : However in order to succeed the applicant also needs to rely upon a SEPP 1 objection in relation to do with the requirement in clause 30AAA(2)(b) of the ordinance that no more than 10% of the allotments in the plan of the proposed subdivision have an area of less than 550 square metres. It is not disputed that this is a development standard to which the policy applies. In my opinion it is both unreasonable and unnecessary for a two lot subdivision to comply. The object of the provision is obviously directed to subdivisions larger than a division of land into two lots. Indeed in this case it appears impossible to comply. No environmental detriment is done by the non-compliance with the requirements. Further compliance tends to hinder the attainment of the objects …of the Act. 50 I note that his Honor accepted that in order for the applicant to succeed a SEPP 1 objection was relied upon and the judgment is in respect of a particular application that was before his Honour at that time and not a question of law. 51 SEPP 1 is clear in that its application is in respect of the circumstances of each case where an objection is made to vary the standard and the circumstances of the specific case must be assessed when determining whether the variation to the standard should be approved. 52 In Nooramunga his Honour had a specific development application for a two lot subdivision. The provisions of SEPP 1 provide in clause 3 "This Policy provides flexibity in the application of planning controls … in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary…". In the particular matter before his Honour he found the objection should be allowed. 53 During the proceedings the planning consultants were required to confer on the underlying objectives of the standard as contained in clause 30AAA(1)(b) of the GPSO. Mr Newbold and Mr Sneddon agreed that the purpose is not expressly stated and they also agree that the 2 (a) zone objective is a useful starting point. That is to " to make provision a for the orderly and economic development of suitable land for a variety of low density housing forms which are essentially domestic in scale and which have private gardens." 54 Mr Sneddon is of the opinion that the provision only has practical effect for subdivisions greater than 10 lots so as to prevent enclaves of smaller lots in larger subdivisions. He also stated that the zone objective (a) is relevant to the purpose. 55 Mr Newbold states that the underlying purpose is informed by clauses 10(3) and 10(4) of the GPSO and he is of the opinion it.relates to: character of site and surroundings amenity of surrounding properties amenity of consequent residential development. 56 In my opinion the words in clause 30 AAA are clear and unambiguous and are not qualified to relate to either 'greenfields' subdivisions or subdivisions in excess of 10 lots. I have determined that the SEPP 1 objection submitted by the applicant is not well founded and the underlying purpose is not satisfied by this particular development for the following reasons. 57 In my assessment I am not satisfied that the proposed development satisfies objective (a) of the 2(a) zone. The proposal before the Court does not provide for private gardens for either the proposed dwellings or the adjoining properties that have common boundaries with the subject site. I am not satisfied that the standard is unreasonable or unnecessary in the circumstances of this particular case and in terms of clause 7 of the SEPP the objection is not well founded. 58 The applicant in my assessment has not persuaded me that the questions provided in the authority of the Chief Judge Preston J in Wehbe v Pittwater [2007] NSWLEC 827. are met. 59 The underlying purpose is relevant to the development application. I do not agree with Mr Sneddon that it does not apply to a two lot subdivision or has no practicable application. In his SEPP 1 objection he referred to a previous case and agreed that the underlying purpose is to "satisfy the zone objective and provide sufficient area for a house and curtilage consistent with the character of the area. In my assessment this cannot be achieved in my assessment by the application before me. Exhibit 8 demonstrates that the subdivision approvals in the area do not suggest the provision has been abandoned. 60 If I am wrong and the GPSO clause 30AAA is not relevant to the application presently before the Court in my merits assessment the proposed development application also fails under section 79C(1) of the Act. In particular 79C(1)(b) "the likely impact… on the built environment" and (c) "the suitability of the site for the development". 61 I must also make the development control plans that apply to the subject site a central and focal point for my consideration and assessment of the application. In this regard the application also fails in that the proposed dwellings significantly exceed the 4 m height guideline, presenting as three-storey buildings at an elevated level above adjoining properties and this combined with the location of the primary living areas and balconies in my assessment adversely impacts on adjoining properties and is not consistent with the desired character of the area. 62 While the proposal before the Court is for the subdivision of the land and the erection of dwelling houses, it would be open for the Court to approve the subdivision only. However, I am not satisfied that the size and configuration of the lots in their context is appropriate, with or without the proposed dwellings, because the proposed subdivision is not in character with the surrounding area and because of the amenity impacts on adjoining properties as it can not be demonstrated that dwelling houses and private open space areas can be accommodated without adverse impacts. 63 The proposed dwellings on lots 11 and 12 reinforce my determination that the subdivision fails because the dwelling houses with the main open space area with frontage to Clairvoux Road is out of character with the area and the built form of the two dwellings does not provide a satisfactory relationship with the adjoining properties in terms of overlooking and the juxtaposition in particular of dwelling No. 2 to No. 5 where the rear yard of No. 5 is overlooked by 2 and 3-storey components. Similarly for No. 17 Clairvoux Road dwelling No. 2 in its design and relationship creates similar problems. 64 It is not characteristic of the area for the primary open space for the dwellings to be located in the front setback area. Furthermore, the size of the open space area is not commensurate with the size of the dwellings that is three and four-bedroom dwellings on the proposed lots. Dwelling 1 is a part two and part three 3-storey building and dwelling 2 while a 2-storey dwelling I note that the sub-floor area and height is significant which will give the appearance of a 3-storey building and in the context this is out of character with the predominant residential character that exists in the area and the desired future character. 65 For the issue of slope I do not accept that the level of the land should be taken at the top of the retaining wall for the purpose of calculating slope. While I agree with the applicant's submission that a commonsense approach needs to be taken to calculating the slope but if the slope is to be factored in at the top of retaining walls this would not be consistent with the intent of the provision. Such an approach would encourage the random erection of retaining walls that would have the effect circumventing the slope analysis required to guide the allotment size factoring in slope. 66 The retaining wall is contained fully within the subject land and not erected on the boundary, albeit close to same. With a recalculation of the sections during the hearing using the ground level it became apparent that the lines 1, 3 and 4 as detailed above produce a slope greater than 15% (16.6% to 18.3%). As a cross check I have also considered the slope of the land, although not strictly in accordance with the method provided in the DCP that is perpendicular to the contours but nonetheless, on the boundary of Dover Road with the subject site. On this analysis the slope when taken from the top of the retaining wall is slightly greater than 15% and at the ground point of the retaining wall it is close to 18%. 67 At the end of the day irrespective of whether the slope exceeds or is less than 15% the plans for the dwelling houses demonstrate that the proposed lots would be constrained because of the inappropriate relationship of the front courtyard levels with the adjoining street boundary and the relationship of the proposed dwellings with Nos. 5 and 17 in terms of their height and siting of the two footprints on the subject land. 68 From Mr Sneddon's statement at Exhibit H, Annexure G, there is a map analysis of lot sizes within a 200 metre radius. From this it can be seen, as also observed Figure 1, the majority of lots are greater than 550 square metres. Where they are less than 550 square metres, Exhibit 8 shows a history of the smaller lots and this reveals that the smaller lots were generally created under SREP 12 for dual occupancy development except for the three on the eastern side of View Drive. And other smaller lots in View Drive are in a different zone, that is 2(F). It is apparent that the smaller lots were generally created under a different planning regime. 69 The slope of the site, while not severe or extreme is nonetheless a constraint that must be factored in and having genuine regard to the DCP this requires an increase allotment size. Similarly the DCP guidance for corner lots requires an additional 50 square metres to accommodate appropriate setbacks for the built form for consistency in the streetscape while providing a developable footprint area proportional to other lots. For sites with a slope of 15% or more 650 square metres is the guideline and in the circumstances of this case the objectives are not achieved by the allotment sizes proposed. 70 The slope and context of the subject land and its juxtaposition with other dwellings and sites does not favour lots in this location below the DCP guidelines if the overall character and urban design objectives articulated, not only in the character statement of DCP 159 amendment 1 cited above, but the objectives of specific provisions for example height and scale and in DCP 155 to provide adequate room for private open space and separation between buildings on separate lots to ensure privacy is retained. In my assessment the design of the dwellings proposed are not consistent with either the existing general character or desired character. 71 Furthermore, the emphasis in the applicants evidence and submissions to existing developments approved under previous controls and the more recent intrusive development, that Mr Sneddon agreed did not represent a satisfactory outcome, do not support approval of the application before me. The approval of this application is not justified on this basis and it could be a precedent and cumulatively this would serve to undermine the intent and direction of the current planning regime. 72 In my merits assessment of the proposed development I have had regard to all the evidence to the Court including that of the experts, both written and oral, the architectural and landscape plans and I have been informed by the site inspection. I have concluded the proposal does not warrant approval because the lots are not of a sufficient size to accommodate dwellings without creating adverse impacts on the streescape and adjoining properties by reducing the privacy and amenity of same by the erection of dwellings that present as 3-storeys because of significant sub floor areas. The objective of the zone for dwellings to be in scale and with private gardens is not satisfied in particular the design that relies on private open space within the front setback area is not consistent with the character of the area and would be an undesirable precedent. 73 My assessment concurs with council's officers report and I prefer Mr Newbolds evidence to that of Mr Sneddon's on this occasion. I agree with Mr Newbold's general analysis including his comments that: - Non-compliant top storeys are indicative of excessively-tall exterior walls which contribute to inappropriately-scaled buildings. - Due to elevation of the proposed dwellings above neighbouring properties, combined with the location and primary orientation of living areas, which are the inevitable consequences of proposed allotment sizes and dimensions. - Due to limited allotment dimensions, the primary areas of sunlight private open space are provided as built-up terraces within the Clairvoux Road… retaining structures or walls which would not be consistent with the informal landscape character of sloping street setbacks with areas of open turf and trees. - Also, the configuration of proposed allotments result in a significant departure from this street-block's established built-form pattern, with dwelling 2 located in an area that is traditionally occupied by backyards and as a consequence, overwhelming the backyard of No. 17 Dover Road. 74 My merits assessment confirms that the application is not worthy of approval even if I am wrong that the SEPP 1 objection should not be allowed because it is impossible to comply with the relevant standard in the GPSO for a two lot subdivision. As for all SEPP 1 objections the standard is capable of being satisfied for other applications less than 10 lots with a reduced area if it can be demonstrated that the underlying objectives of the standard can be satisfied. 75 Accordingly from my assessment above the formal orders of the Court are: 1. The appeal in respect of the property known as No. 3 Clairvoux Road, Wamberal is dismissed. 2. The State Environmental Planning Policy No. 1 objection to vary clause 30AAA of the Gosford Planning Scheme Ordinance is not allowed. 3. The development application submitted to Gosford City Council is determined by the refusal of consent. 4. The exhibits are returned to the parties.

      J S Murrell
      Commissioner of the Court
      ljr

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