Carey V North Sydney Council [1999] NSWLEC 174

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 North Sydney LEP 1989

DATES OF HEARING: 07/19/1999; 07/20/1999; 07/21/1999

DATE OF JUDGMENT DELIVERY: 07/29/1999

APPLICANT: Mr J Bingham (Solicitor) SOLICITORS: Deacons Graham and James LEGAL REPRESENTATIVES: RESPONDENT: Mr D R Parry (Barrister) SOLICITORS: Mallesons Stephen Jaques

A. INTRODUCTION 1-5 B. THE PROPOSED DEVELOPMENTS 6 C. THE DEVELOPMENT SITES AND THE SURROUNDING AREA 7 D. THE APPLICABLE PLANNING CONTROLS 8-29 E. DOES EACH PROPOSAL INVOLVE A BUILDING HAVING MORE THAN TWO STOREYS WITHIN THE MEANING OF THE LEP CL 12(1)? 30-64 F. THE PLANNING MERITS OF THE DEVELOPMENT PROPOSALS 65-85 G. CONCLUSIONS AND ORDERS 86 IN THE LAND AND Matter No . 10403 and 10404 of 1999 ENVIRONMENT COURT OF Coram : Bignold J. NEW SOUTH WALES 29 July 1999

MARION CAREY, MARK CAREY, IAN CAREY AND GRACE CAREY

These are two appeals pursuant to the Environmental Planning and Assessment Act 1997 (the EP&A Act) s 97 (which by consent were heard together) in respect of two proposed attached dwellings developments on adjoining lands known as No 37 Carr Street and Nos 39, 39A and 41 Carr Street, Waverton (No 37 and Nos 39 - 41 respectively). The Applicants are family members, Mrs Grace Carey being the owner of No 37 and Dr Marion Carey and Mr Mark Carey being the joint owners of No 39 and Mr Ian Carey being the owner of Nos 39A and 41.

The appeals were both filed on 3 June 1999 against the Council's deemed refusal of the respective development applications.

Subsequent to the filing of the appeals, the Council exercised the power conferred upon it by the EP&A Act s 82(1) to determine the applications. It did so by refusing development consent to each application for 13 stated reasons (12 of which were common to each determination).

The reasons for refusal are very similar to the issues raised in the Council's amended Statement of Issues (Exhibit 9), a copy of which is annexed hereto.

Because the appeals against the Council's deemed refusals had been set down for hearing on 19, 20 and 21 July 1999 and the Council's determination of the applications did not occur until 12 July 1999, the Council's case was supported by expert evidence obtained from planning and architectural consultants rather than by evidence of the Council's town planners. However, a consideration of the Council's Planner's reports assessing the development application that were submitted to, and were adopted by, the Council (Exhibits 7 and 8) indicates a co-incidence and consistency of expert opinion between the Council's Planner and the expert consultants retained by the Council. However, other than as forming part of the documentary evidence, the Council's Planner's opinions were not the subject of any evidence, the Council relying upon the expert consultants' reports of evidence that had been filed in the proceedings.

I adopt the following descriptions of the two proposed developments from Section 3 of the Report of Mr Terence Byrnes, Architect and Town Planner (Exhibit P): 3.1 The two proposals involve the construction of two similar developments. Both consist of two storey attached dwellings, comprising four dwellings, with attic rooms and basement car parking area for 10 vehicles, 8 resident spaces and 2 visitor spaces accessed off Carr Street via a ramp from the north-western corner of each site. 3.2 The 39 - 41 Carr Street development is orientated to face Carr Street and each dwelling has separate pedestrian access from Carr Street. This proposal would retain the existing sandstone retaining wall fronting Carr Street and consequently, the ground level of the dwellings would be between 2 m and 3 m above the street level. 3.3 With regard to the 37 Carr Street development, due to the narrow frontage to Carr Street, one of the four units would address the street. The three remaining dwellings are orientated to face the side boundaries of the site. All dwellings are accessed from Carr Street via a pathway along the southern boundary of the site. The proposal would include reassembly of the existing sandstone retaining wall along the front property boundary and consequently, the ground level of these dwellings would also be approximately 3 m above street level. 3.4 The three habitable levels of the dwellings consist of living area at ground level, bedrooms at level 1 and an additional bedroom at the attic level. It is proposed to excavate a large proportion of each site to allow for the provision of the basement car park. To the rear of the proposed building it is proposed to excavate to the ground floor living level to allow for a level courtyard area directly accessible from each living area. A retaining wall up 6 m in height would be located along the eastern property boundary. A courtyard area is also proposed to the front of each dwelling to be at the existing ground level. These courtyards are landscaped by way of a grassed area and perimeter planting particularly along the northern and southern side boundaries and within the front setback area adjacent to Carr Street. 3.5 The proposed building at No 39 - 41 Carr Street consists of four attached units. However, the street facade is broken into two distinct elements which are symmetrical. As illustrated on the Carr Street, western elevation, the development would read as a two storey building with a large pitched roof containing attic windows. Each facade element is centred around a protruding entrance to each unit. To either side of the entrance the facade is punctuated by several large windows and juliet balconies to bedrooms at the first floor level. The large roof is pitched at a similar slope to those on adjoining properties and is broken up by a protruding hip feature over each entrance and bay windows to bedrooms on each elevation. The bulk of the building is modulated through the combination of large feature windows, protruding balconies and the use of composite textures and colours of the external finish. 3.6 Similarly the No 37 Carr Street development has three habitable levels consisting of the living area at ground level, bedrooms at level 1 and an additional bedroom at the attic level. It is proposed to excavate the site to allow for the provision of the basement car park. To the rear of the proposed building excavation would occur to allow for a level courtyard area directly accessible from each living area on the ground floor. A retaining wall up to 3 m in height would be located along the northern property boundary and up to 2 m along the eastern property boundary. A courtyard area is also proposed to the front of each dwelling, located at the existing ground level, with the exception of that for the front unit which would require filling to conform with the predominant existing ground level adjacent to the Carr Street frontage. These courtyards are landscaped by way of a grassed area and perimeter planting particularly along the northern and southern side boundaries and within the front setback area adjacent to Carr Street. 3.7 The proposed building on No 37 Carr Street consists of four attached units including one of the units orientated to face Carr Street. As illustrated on the Carr Street, western elevation, drawing No BD07, the development would read as a single, two storey dwelling with a pitched roof. The remaining three units are set back at least 20 m from the front property boundary and are hidden from view behind the front unit. The front facade is symmetrical, a large portion of which is occupied by French doors at both the ground and first floor level. The opening at the first floor level is recessed and a balcony protrudes forward of the facade for access from the first floor bedroom area.

Again I adopt the following descriptions from the Report of Mr Byrnes: 2.1 The applications relate to two sites, one known as No 37 and the other as No 39 - 41 Carr Street, Waverton, described by survey as Lot B in DP 367247, Lots 1 & 2 in DP 749325, and Lot 20 and 22 in DP 315569. The site is located on the eastern side of Carr Street in the dead-end section of the road. 2.2 No 39 - 41 Carr Street is regular in shape, with a site area of 1,115 m2. The frontage to Carr Street (western boundary) is 36.58 m; the rear boundary (eastern boundary) is 30.08 m; whilst both side boundaries (northern and southern boundaries) measure 30.48 m. The land falls from the rear (eastern) boundary to the Carr Street (western) boundary by approximately 7 m over a distance of 30 m, or a grade of approximately 1 in 4. 2.3 The land known as No 37 Carr Street is irregular in shape, with a site area of 1,445 m2. The frontage to Carr Street (western boundary) is 15.24 m; the rear boundary (eastern boundary) is 23.18 m; the southern side boundary measures 52.93 m and the northern side boundary is skewed with measurements of 30.48 m, 6.50 m and 37.93 m. The land falls from the rear (north-eastern) portion of the site to the Carr Street (western) boundary by approximately 7 m over a distance of 40 m, or a grade of approximately 1 in 6. 2.4 On the No 39 - 41 Carr Street site are two single storey, brick and tile dwelling-houses. On the No 37 Carr Street site there is a single storey, brick and tile dwelling-house with a large rear yard area including a former tennis court. Vehicular access to both sites is provided to garages directly off Carr Street, which take advantage of the level difference between the street and the front yard. The front of the sites are linked by a sandstone retaining wall, at a varying height of approximately 2 - 3 m and punctuated by garage openings. 2.5 Immediately adjoining the site to the north, is No 43 Carr Street which accommodates a residential flat building, which has a recent consent for demolition and replacement with attached dwellings. To the east of the site is a townhouse development, known as No 6 - 8 Waverton Avenue, set at a significantly higher level due to the difference in ground level. Two large double story dwelling houses, known as No 10 and 12 Waverton Avenue are likewise well elevated and setback behind No 37 Carr Street. To the east of the site is a single dwelling house known as No 28 Clifton Street. To the south of the site are two single dwellings, set a few metres below No 37 Carr Street, one known as No 35 Carr Street and the other No 26 Clifton Street. 2.6 To either side of Carr Street exists two groups of residential developments which are distinctly different. The area on the western side of Carr Street, directly opposite the site, accommodates several large residential towers up to 13 storeys in height. While conversely, the area on the eastern side of Carr Street, adjacent to the site, consists of a mix of residential flat buildings up to 3 storeys in height, two storey terrace housing semi-detached dwellings and large single dwellings built at widely varying times up to very recently. 2.7 Overall, the character of the area, while predominantly medium to high density, would be regarded as very diverse. The recent construction of a number of contemporary residential flat developments and new dwellings including No 49 Carr Street, and a development on the north eastern corner of Carr Street and Bay Road. 2.8 It is noted that Council has also recently given consent for the construction of an attached dwelling development on the adjoining site at 43 Carr Street, which extends for a greater length than the present building along the common boundary with No 41 Carr Street.

The development sites (in common with all lands fronting Carr Street and indeed with most residentially zoned lands in the suburb of Waverton) are included within the Residential 2(c) zone under North Sydney Local Environmental Plan 1989 (the LEP).

The express objectives of this zone provided by the LEP cl 9 are: (a) to permit a form of development which is compatible with the scale and character of the existing locality; and (b) to allow non-residential uses which are compatible with and the character and scale of medium density housing.

Except as otherwise permitted by the LEP, the purposes for which residential development may be carried out in the zone (cl 9(2)) include - attached dwellings; housing for aged or disabled persons; infill development; residential flat buildings.

However, the LEP cl 14A(1) has effect to prohibit the erection of a residential flat building within zone No 2(c) if certain conditions apply, which include the existence of -

any principal building on adjoining land less than 3 storeys…..

It is common ground that this provision applies to each of the development sites. In consequence, the proposed developments are presented as " attached dwellings ", that term being defined by the LEP cl 5(1) as follows:

attached dwellings means a building on a single allotment containing two or more dwellings, each dwelling having an individual entrance and access to a courtyard at natural ground level, being a dwelling no part of which is superimposed on any part of another dwelling (except parking spaces) and includes dwellings in a row of 2 or more dwellings attached to each other such as are commonly known as townhouses; (" Natural ground level " is defined by the same clause to mean " the level of any land to which this plan applies at the 3rd December 1982 ".)

The appeals have been conducted on the basis that each of the proposed developments comprises "attached dwellings" development (no point having been taken that the development site for Nos 39 - 41 presently comprises 3 lots, presumably because they are readily capable of being combined into a consolidated lot).

The LEP Div 2 Pt 3 prescribes a number of special controls in respect of "development in Residential Zones", which relevantly include cl 12(1) prescribing a maximum of two storeys, cl 13 prescribing "a building height plane", and cl 13A prescribing a minimum "landscaped area" requirement.

There is a serious dispute between the parties whether each of the proposed developments complies with the following controls - (i.) two storey maximum; and (ii.) minimum landscaped area.

It is common ground that each of the proposed developments involves a minor breach of the prescribed "building height plane".

The Applicants have lodged objections pursuant to State Environmental Planning Policy No 1 - Development Standards (SEPP 1) in respect of the building height plane requirements and for more abundant caution, in the course of the hearing, in respect of the minimum landscaped area requirement.

However, no SEPP 1 objection has been made in respect of the prescribed two storey limit except for an objection in respect of a small protrusion of the roof of the basement carpark above natural ground level, for a height of some 200 - 300 mm, involving a surface area of some 10 m2

The SEPP 1 objection notes that the non-compliance is the result of the uneven topography of the existing ground level creating a small natural depression.

In addition to the special controls provided by the LEP, there are a number of relevant controls imposed by the North Sydney Development Control Plan No 1 (the DCP).

Section 5 of Mr Byrnes' Report contains a detailed analysis of the relevant controls and of the two development proposals' degrees of compliance and non-compliance therewith.

The Report contains the following "summary" with respect to the relevant LEP and DCP controls: 5.23 The proposed developments fail to comply with the statutory and policy controls of North Sydney Council only with respect to very minor non-compliances with the standard for the Soft Landscaped Area for 39 - 41 Carr Street, Number of Storeys for 37 Carr Street, and Building Height Plane and Required Maximum Dwelling Size for both developments is neither complied with nor justified. 5.24 The variation to the Building Height Plane prescribed by North Sydney Local Environmental Plan 1989 relates to a minor portion of No 39 - 41 Carr Street along the southern elevation of the proposed building and to a minor portion of an attic window on the southern elevation of No 37 Carr Street. It is evident, as discussed in Issue No 1 below, that the extent of non-compliance is minor and would not have any adverse impact upon the amenity of the adjoining properties. The variation would be within the provisions of Clause 13(2) of the LEP, however, a SEPP1 Objection has been prepared with respect to this variation, see Appendix C. 5.25 With respect to number of storeys of No 37 Carr Street, the non-compliance relates to a portion of the basement car park area which protrudes above ground level as a result of an existing natural depression. It is evident, as discussed in Issue No 3 below, that the extent of non-compliance is minimal and would not have any adverse impact upon the amenity of the adjoining properties. The necessary SEPP1 objection has been proposed with respect to this variation, see Appendix D. 5.26 Whereas the plans submitted with the development application failed to demonstrate adequate soil depth within the soft landscaped area, amended drawings indicate that adequate soil depth can be provided and, hence, the control in North Sydney Council's Development Control Plan No 1 is satisfied. 5.27 The above variations to the statutory and policy controls of North Sydney Council are considered minor and, as demonstrated below in relation to the issues of the case, the proposal would meet the desired objectives of these numerical controls.

Subject to two matters, I am prepared to accept Mr Byrne's analysis of the extent to which the proposed developments comply with the relevant controls, operating by force of the LEP and the DCP.

The two matters concern the controls governing minimum landscaped area (ie the LEP cl 13A) and maximum number of storeys (ie the LEP cl 12).

In respect of these two matters, Mr Sanders, in his reports (Exhibit 4 in relation to No 37 and Exhibit 5 in relation to Nos 39 - 41) expresses the opinion that both developments fail to comply with both standards. This view accords with the opinions expressed by the Council's Planner in the reports submitted to the Council in respect of both development proposals.

As I have earlier noted, the Applicants, in the course of the hearing, lodged, for more abundant caution, a SEPP 1 objection in respect of the minimum "landscaped area" requirements of the LEP.

However, no SEPP 1 objection was lodged in respect of the prescription of the two storey limit (except for the objection in respect of the small protrusion above natural ground level of part of the roof of the basement carparking accommodation provided for No 37).

Accordingly, it becomes necessary to consider at the outset, whether the proposed developments considered as "attached dwellings" comply with the two storey limit imposed by the LEP cl 12. If they do not comply, they are not permissible developments and the appeals, necessarily must be dismissed.

However, if they do comply, they are permissible developments and the question whether development consent should be granted must be considered as a matter of the exercise of planning discretion based upon the planning merits of the proposals.

E. DOES EACH PROPOSAL INVOLVE A BUILDING HAVING MORE THAN TWO STOREYS WITHIN THE MEANING OF THE LEP CL 12(1)?

I have earlier set forth the definition of "attached dwelling". That definition does not have any direct bearing on the question under discussion except that it qualifies as a "building" (other than the excepted types of building) within the meaning of cl 12(1) which provides as follows:

A building, other than an infill development, a dwelling-house on a small lot, or a residential flat building, shall not be erected on land in Zone No 2(a), 2(b), 2(c), 2(d) or 2(f) having more than two storeys measured vertically above any point at natural ground level.

storey means any floor or part of a floor regardless of use but does not include: (a) an attic contained wholly within the roof space where the roof has a maximum pitch of 36 degrees; or (b) a parking area contained wholly within a basement which is below the natural ground level;

According to the Macquarie Dictionary, its meanings include:

1. that part of a building, espec. a house, directly under a roof; a garret.
2. a room or rooms in that part, frequently used for storage.

According to the Oxford English Dictionary, the meanings of "attic" include: 2. attrib. Quasi-adj. in Attic storey: originally the space enclosed by the structure described in prec. sense; hence, the top storey of a building, under the beams of the roof, when there are more than two storeys above ground. So attic-floor,-room, etc. 3. The highest storey of a house, or a room in it; a garret.

Each of the proposed developments involves a group of four attached dwellings each having four levels. The lowest level in each case is the basement carparking level. This level, being located below "natural ground level" in an underground basement is expressly excluded from the definition of "storey". (In so concluding, I am assuming the upholding of the SEPP 1 objection in relation to the minor protrusion of the carpark roof structure.)

The next two levels of each proposed development comprise living areas and bedroom areas respectively. Each of these levels constitutes a "floor" and hence a "storey" within the definition. Above these levels is the topmost level (described in the proposals as the "attic" floor).

In the case of the proposed development at No 37, the topmost floor of each dwelling ranges in floor area from 60 to 90 m2 (providing accommodation for at least one bedroom and ensuite bathroom), is accessed via the same common stairwell and individual lift servicing each of the four levels within each dwelling, and each dwelling contains two open air balconies recessed in the roof structure.

In the case of the proposed development at Nos 39 - 41, the topmost floor of each dwelling ranges in floor area between 40 - 60 m2 (providing accommodation for at least one bedroom and ensuite bathroom), is accessed via the same common stairwell and individual lift servicing each of the four levels within each dwelling and each dwelling contains one enclosed balcony (in a dormer style).

Mr Sanders expressed the opinion that none of the topmost levels of each of the attached dwellings could be described as an "attic" and hence, do not fall within the exclusion to the definition of "storey" contained in par (a).

In the case of the proposed development at No 37, his Report (Exhibit 4) provides the following reasons for his opinion: 5.19 I say this because it is my opinion that an attic is generally considered to be a room or rooms within the roof space of a dwelling, frequently used for storage or as a small bedroom. Limited head room is generally provided and small dormer windows or skylights provide natural light. Access to an attic is usually by way of a set of stairs which may often be less convenient than the stairs providing access to the lower levels of the building. 5.20 Having regard to the above, it is my opinion that the third level of accommodation, proposed over each of the dwellings, constitutes a storey for the purposes of Council's controls. Each of these areas are accessed via a set of permanent stairs as well as a lift and each contain a large bedroom with an ensuite and two balconies. The third level of dwelling No 1 also contains a study and dwellings 2 and 3 each have a walk-in-robe at this level.

In the case of the proposed development for Nos 39 - 41, his Report (Exhibit 5) provides the following reasons for his opinion: 5.17 I say this because it is my opinion that an attic is generally considered to be a room or rooms within the roof space of a dwelling, frequently used for storage or as a small bedroom with limited head room and small dormer windows or skylights to provide natural light. Access to an attic is usually by way of a set of stairs which may often be less convenient than the stairs providing access to the lower levels of the building. 5.18 Having regard to the above, it my opinion that the third level of accommodation, proposed over each of the dwellings, constitutes a storey for the purposes of Council's controls. Each of these areas is accessed via a lift as well as a set of stairs and each contain a large bedroom with an ensuite and a useable balcony. In addition, on all elevations there is a clear delineation of three levels of windows thus adding to the view that this level of accommodation is configured as an additional storey for each of the dwellings. 5.19 Accordingly, I would characterise the attached dwellings as a maximum of three storeys which does not comply with the two storey maximum height limit set by clause 12 of the Local Environmental Plan. 5.20 More particularly, it is also necessary in the assessment of the number of storeys development standard, to address the objectives of the standard in question. These objectives, while not explicitly stated in the Plan, are taken to include ensuring that new development is of an appropriate bulk and scale, maintains and reinforces existing character, preserves views/outlook and limits overlooking and overshadowing of adjoining properties. 5.21 There are a number of design features of the development which accentuate the bulk and scale of the building and are recognised as being inconsistent with the relevant streetscape, and as such inconsistent with the existing character (these will be considered further below). In addition, this non-compliance also contributes to the adverse impacts that the proposal has on the amenity of the adjoining properties (these amenity impacts are also considered further below).

The Council's Planner's Reports to the Council express similar reasoning for the same opinion that the topmost level of each of the proposed developments constitutes a "storey".

Mr Byrne's Report (Exhibit P) proceeds on the explicit premise that each of the proposals complies with the two storey control imposed by the LEP cl 12(1) .

However, other than to describe the proposals as having "all floor space located within the attic roof", Mr Byrne's Report does not discuss the issue raised by Mr Sanders.

In construing cl 12(1) of the LEP, the first question to be determined is whether the clause adopts the defined meaning of "storey". The parties proceeded on the common assumption that it does and I think this is the correct approach.

The next question to be determined is how the defined term "storey" uses the word "attic". Is it used in any technical sense, or is it used in its ordinary meaning?

Again, the parties proceeded on the common assumption that it uses the term with its meaning as an ordinary word is the English language. The ordinary meaning is a question of fact and dictionary meanings provide principal guidance in the determination of that question of fact.

The Macquarie dictionary definitions earlier recited appear to me to be apposite. I shall return to this matter shortly.

However, it is to be noted that the exclusion expressly provided in the definition of "storey" contains other specific limitations or qualifications (beyond the dictionary definition of "attic"), namely: (i.) that the attic be "contained wholly within the roof space"; and (ii.) that the roof have a maximum pitch of 36 degrees.

It is common ground that the roof pitch of each of the proposed developments does not exceed 36 degrees. However, what is meant by the limitation that the attic be "contained wholly within the roof space"?

I do not think the limitation can be interpreted as merely repeating what is the essential meaning of the word "attic" since that would involve a tautology.

Rather, properly construed, the limitation is to be understood as qualifying the "attic floor" that is expressly excluded from the definition of "storey". In other words, the exclusion from the definition of "storey" is not merely the floor of an attic, but is such a floor only where it is "contained wholly within the roof space".

The final question for determination is whether as a matter of fact, each of the topmost levels of the proposed developments as I have earlier described them, falls within the exclusion provided in paragraph (a) to the definition of "storey", as I have interpreted that exclusion.

In my judgment, they do not fall within the express exclusion because in the case of each development, there are "parts of the floors" of the topmost levels that are not "contained wholly within the roof space". (This conclusion assumes that the topmost levels comprise "attics".)

In the case of the proposal at No 37, neither of the recessed balconies to each of the dwellings is "contained wholly within the roof space" since the balconies are not roofed at all. The floor to each of the balconies accordingly is "any floor or part of a floor, regardless of use" within the meaning of that expression in the definition of "storey" and hence constitutes a storey, not falling within the express exclusion contained in par (a).

In the case of the proposal at Nos 39 - 41, the dormer style balcony to each of the dwellings (though roofed by the dormer style roofing) similarly is not relevantly "contained wholly within the roof space".

As noted, I have not founded the foregoing conclusions on the meaning of "attic", which was the foundation for Mr Sander's opinion, although I find his opinion and supporting reasoning to be very persuasive.

Moreover, there are contextual and policy (ie the stated and apparent object of the relevant planning controls) factors that support Mr Sander's opinion that "attic is meant to convey something that is significantly different (apart from its proximity to the roof) from other living levels in the proposed dwelling.

Those considerations include the fact that cl 12(1) imposes the two storey limit in respect of a "building" and that an "attic" is something that is generally limited to a house or residential building in contradistinction to "any building" and accordingly "attic" operates as an exception to the absolute two storey limit. Another fact is that although cl 12(1) excepts from the two storey limit "residential flat buildings", as previously noted, the LEP cl 14A(1) expressly prohibits residential flat building in zone No 2(c) if the proposed development adjoins any land upon which any principal building is less than three storeys. As noted earlier, this prohibition applies in the instant case to both development sites. Moreover, where residential flat development is permissible, cl 14A(2) only permits such development which contains not more than three storeys. Finally, it is to be noted that the LEP cl 12(2) limits "infill" development to single storey building.

These contextual factors strongly support Mr Sander's opinion that the two storey limit on "buildings" imposed by the LEP cl 12(1) is not intended to be circumvented by resort to the exclusion of an "attic" floor from the definition of "storey" in circumstances where, as a matter of building form, the so called "two storey plus attic attached dwellings" development is not materially different from a three storey residential flat building building.

Accordingly, if it were necessary to determine the question in issue by reference to the meaning of the word "attic" in the definition of "storey", I would generally prefer Mr Sander's opinion to Mr Byrne's competing opinion, and would find that the topmost level of each of the proposed developments is not relevantly an "attic" because of (i) the physical qualities of the floor space of the upmost levels of each of the proposals as I have previously described them; (ii) the relationship (spatial and functional) with the other levels contained in each of the proposed dwellings; and (iii) the significant contribution made by the existence of the topmost level to the mass and scale of the built form of each of the proposed developments.

For all the foregoing reasons, I find that the topmost level of each of the proposed developments (though described in the Applicant's Architect's drawings as "attics") do not fall within the express exclusion from the definition of "storey" contained in par (a) of that definition. It follows that each of the proposed developments is for a building containing more than "two storeys measured vertically above any point at natural ground level" within the meaning of the LEP cl 12(1) and that in the absence of any relevant SEPP 1 objection, each of the proposed developments falls within the express prohibition contained in the LEP cl 12(1).

In view of the foregoing conclusions, the appeals must be dismissed because they seek development consent for a form of development that is prohibited by the LEP cl 12(1): see the EP&A Act s 76B.

However, lest I be wrong in these conclusions, and for completeness, I propose to consider the planning merits of the development proposals on the assumption that the proposals do not infringe the two storey limit imposed by the LEP cl 12(1). However, I shall do so only briefly and by reference to my evaluation of the principal issues raised at the hearing, rather than considering all 15 issues raised by the Council.

F. THE PLANNING MERITS OF THE DEVELOPMENT PROPOSALS

My consideration of the planning merits has been greatly assisted by the considerable body of expert and lay evidence adduced at the hearing, together with a comprehensive view taken of the development sites and their relevant environs involving the whole of Carr Street and Waverton Avenue and Clifton Street. The view included inspection of the development sites from the vantage point of the premises of various objectors who claimed to be adversely affected by the proposed developments.

Expert evidence was given by Mr Sanders (Town Planner) and Mr Stapleton (Heritage Architect) on behalf of the Council and by Mr Byrnes (Town Planner/Architect) and Mr Staas (Heritage Architect) on behalf of the Applicants. Each is a distinguished practitioner and each gave impressive and cogent testimony. However, since the two sets of opinions were diametrically opposed to each other, obviously I cannot accept all the competing opinions. Ultimately, I must evaluate them and choose between them.

Three fundamental conflicts in opinion arose from the expert evidence concerning the following issues: (i.) whether the proposed developments would involve an overdevelopment of the respective development sites, by virtue of their size, scale, height and mass; (ii.) whether the proposed developments would adversely impact upon the streetscape of Carr Street; and (iii.) whether the proposed developments would involve significant adverse external impacts on the amenity of existing proximate developments and in particular, the dwelling-house at No 35 Carr Street, the dwelling-house at No 26 Clifton Street and the three affected townhouses in the development at Nos 6 - 8 Waverton Avenue.

It is my evaluation of the competing cases that these three issues were the dominant issues raised at the hearing and their resolution will significantly influence and inform the exercise of the planning discretion conferred by the EP&A Act s 79C.

My evaluation of the competing evidence has led me to conclusions in respect of each of these issues that are adverse to the Applicants' case.

In so concluding, I have ultimately preferred the opinions of Mr Sanders and Mr Stapleton to the competing opinions of Mr Byrnes and Mr Staas.

In elaboration of these conclusions, I find the proposed development at Nos 39 - 41 to be an overdevelopment, especially in its physical impact on Carr Street and upon the streetscape. It is a much bigger development in its presentation to Carr Street than any other development (existing or proposed and approved) fronting on the eastern side of Carr Street. I accept that this is chiefly a product of the Applicant's decision to amalgamate the three lots that currently comprise Nos 39, 39A and 41 and to develop the amalgamated lot by a single attached dwellings development. I accept that site amalgamations are generally common (if not necessary) in redevelopment. However, there is no compulsion for site amalgamation, which has not previously manifested itself in the development of lands on the eastern side of Carr Street. I also accept that the existing built form of development reflects the existing old subdivision pattern of lands fronting on the eastern side of Carr Street. However, it is this feature of the development on the eastern side of Carr Street that gives that aspect of the street its distinctive and attractive character. I accept the expert evidence led in the Council's case that the proposal for Nos 39 - 41 Carr Street scale and bulk would have a significantly adverse effect on that existing character (whether it be regarded as a streetscape or a townscape character) by virtue of its uncharacteristically large scale, bulk and side boundary separations.

My finding that No 37 also involves an overdevelopment of the site does not focus on its presentation to Carr Street because the mass and bulk of the proposed building is focussed in its length along the block, where it extends for some 45 metres traversing the site of the former tennis court at the rear of the dwelling-house situate at No 37.

It is to be noted that No 37 is an uncharacteristically deep block in this mid section of the properties located on the eastern side of Carr Street. It is this fact, combined with the fact that the development proposal virtually traverses the entire depth of the lot that results in its massive and overbearing presence on the two small adjoining cottages on its southern boundary. This linear emphasis of the proposal is entirely uncharacteristic of existing nearby developments in Carr Street. By way of comparison, any "infill development" of the rear section of No 37 would need to be single storey development in terms of the LEP cl 12(2), which would be far less overbearing in its physical form.

This leads me to state my finding that the external impacts of No 37 on the amenity of adjoining residences is, in my judgment, significantly and unacceptably adverse, both in terms of overbearing the two cottages on its southern boundary (involving overshadowing, overlooking and physical domination) and in terms of entirely blocking out pleasant harbour and water views enjoyed from the three affected townhouses located above the development site at Nos 6 - 8 Waverton Avenue.

The external impacts of the proposal at Nos 39 - 41 are not nearly so adverse and in themselves would not justify refusal.

However, they do have some lesser impact on the amenity of at least one of the affected townhouses at Nos 6 - 8 Waverton Avenue. They also have an adverse impact on the streetfront dwelling in the proposal for No 37.

My findings on the three principal issues raised in the appeal are to the effect that both proposals, as a matter of planning evaluation, involve significantly adverse and unacceptable consequences for the built environment (including the streetscape on the eastern side of Carr Street and the amenity of nearby residences).

Accordingly, as a matter of planning judgment, in the exercise of the planning discretion conferred by the EP&A Act s 79C, I would refuse development consent to each proposal.

In so concluding, I have given consideration to the submissions advanced on behalf of the Applicants that the proposals generally conform to the applicable planning controls imposed by the LEP and the DCP and that any form of redevelopment would inevitably have some adverse environmental effects, especially for the small cottage situate on the adjoining land to the south, No 35 Carr Street.

Section 79C(1)(a) of the EP&A Act requires consideration of the provisions of the LEP and the DCP in the evaluation of the development applications and I have considered these matters in my overall evaluation of the development proposals. That consideration is favourable to the Applicants to the extent that the developments comply with the relevant standards and as noted earlier, they generally do comply.

However, the Council has successfully put in contention the question of compliance with the two storey limit, and it also contended that the minimum landscaped requirement had not been satisfied. As to the former question, although my evaluation of the proposals is proceeding on the assumption that the proposals comply with the two storey limit, that assumption does not pre-empt or reverse my evaluation that the proposals are nonetheless overdevelopments of their respective sites. I have not had to determine this latter question because of my decisions on more fundamental issues. However, the fact that the Applicants have had to rely upon SEPP 1 objections in respect of (i) the building height plane limits, (ii) the two storey limit in respect of part of the basement garage roof and (iii) the minimum landscaped area (albeit for more abundant caution) indicates that the proposals, at least to those extents, did not comply with the applicable planning controls. Moreover, the proposals do not comply with all requirements of the DCP. In particular, the size of each of the dwellings greatly exceeds the maximum size of 135m2 floor area prescribed by the DCP cl 12. These facts reduce somewhat the consideration that has been favourable to the Applicants' case, of the relevant planning instruments.

There is another observation that I think needs to be made in respect of the Applicants' submission, namely that I do not think it correct to assume the inevitability of adverse environmental impacts in consequence of any form of redevelopment of the development sites, and especially of No 37 in its impact on No 35. No such inevitability was proven and I do not think it is to be simply assumed.

Finally, I think I should say that compliance with applicable planning controls is, generally speaking, a prerequisite to the grant of development consent under the EP&A Act to a proposed development, but in no way is it predeterminative or determinative of such an outcome. The evaluation of a planning proposal that is called for by the EP&A Act s 79C(1) is classically an exercise in discretionary judgment based upon the planning merits of the proposal, evaluated by reference to the relevant statutory criteria prescribed by that section. In this sense, the EP&A Act perpetuates the fundamental principle that it is the exercise of discretionary judgment that is required in the determination of a development application, in respect of which principle Else-Mitchell J in Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) (1971) 28 LGRA 314 at 379 said: that the fact that a type of development was designated a "permissible" purpose by a planning scheme "is really a neutral matter because the (planning) ordinance does not give any prima facie or presumptive right to a development which comes within col iv".

However, I should also note that the EP&A Act now expressly provides for circumstances that significantly modify the scope of the planning discretion otherwise conferred by s 79C(1). Since 1996, when s 90A was introduced into the Act, compliance of a proposed development with "non-discretionary development standards" has limited the planning discretion, and since 1 July 1998, a special regime in respect of "complying development" by-passes that discretion. What I have earlier said in respect of the evaluation of a development application in accordance with the EP&A Act s 79C (1) obviously does not apply to "development complying with non-discretionary development standards" or "complying development" as those terms are employed by the EP&A Act.

Neither of the proposals before the Court qualifies as "complying development" or "development complying with non-discretionary development standards".

For all the foregoing reasons, I make the following orders in each of the proceedings:

1. The appeal be dismissed.
2. Development consent be refused.
3. Exhibits be returned.
4. No order as to costs.

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