Chen v Hornsby Shire Council

The proposal

1. The proposed subdivision of existing Lot 1035 DP 812942 will result in the creation of two new allotments: 1. Lot A, being 911.9m² 2. Lot B being 556.6m²
2. The existing house is to remain if the development is approved, it becomes relevant to the proceedings as it will remain on a smaller allotment.
3. Lot B, if created, would have a 13.11m frontage to Cannan Close and an area of 556.72m².

The site and its context

1. The site contains an existing brick and tile two storey dwelling, a tennis court and is encumbered with an easement to drain water. The existing lot is a trapezoidal shaped lot with a curved frontage to Cannan Close, a total area of 911.89m² and an average slope of 5.7% from the south-east to the north-east corner.
2. Proposed lot B would be predominately located in the position of the existing tennis court, which can be seen in the aerial photo below. The tennis court is proposed to be demolished as part of the proposal.

Public submissions

1. The development application was notified in accordance with the Council's Development Control Plan 2013 (DCP 2013) and 18 submissions were received.
2. At the commencement of the proceedings the Court was addressed by six members of the public. In addition, resident objections received during the exhibition, and Councils assessment of the application, were tendered (Exhibit 2). In summary the residents raised the following concerns with the application: 1. That the proposal would undermine the unique streetscape and subdivision layout that was contained within Cannan Close; 2. That any dwelling on proposed Lot B would not be in compliance with the development controls, or in keeping with the unique consistency of the building design, frontage, materials and landscaping that was a key draw card for residents to purchase in the street; 3. That the uniqueness and intactness of the streetscape character of the development within Cannan Close is worthy of protection by Council (and the Court); 4. The proposed lot sizes that would result from the subdivision are out of character and are not compatible with the subdivision pattern of the remaining lots; 5. Whilst not preferred, a more characteristic subdivision would involve the demolition of the existing dwelling and a more even subdivision of the existing lot into two approximately 750sqm lots. 6. That a dwelling constructed on proposed lot B (that was contained in the proposed building envelope) would have visual amenity, solar access and overlooking impacts to the adjoining residents at 15 Cannan Close. 7. An additional driveway in proximity to the cul de sac head (for proposed lot B) would result in additional risk to pedestrians and impact road safety; and 8. That the development application was not in compliance with Councils controls and would create a precedent for the further subdivision of existing larger lots. These issues were considered in the proceedings, and were the subject of evidence from the experts, as detailed in the following.

Planning framework

1. State Environmental Planning Policy No. 55: Remediation of Land (SEPP55) applies to the site. This policy provides for the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment of any existing land contaminants. The Council, in its assessment of the application concluded that given the site has a history of residential use it is not likely that the site has experienced any significant contamination, and further assessment under SEPP 55 is not warranted (Exhibit 2). No specific contentions have been raised in relation to this matter.
2. Hornsby Local Environmental Plan 2013 (LEP 2013) applies to the site. Relevant to this appeal LEP 2013 has the following aims (cl 1.2(2)): To facilitate development that creates (ii) progressive town centres, thriving rural areas and abundant recreation spaces connected by efficient infrastructure and transport systems, and (iii) a well-planned area with managed growth to provide for the needs of future generations and people enriched by diversity of cultures, the beauty of the environment and a strong economy, To guide the orderly and sustainable development of Hornsby, balancing its economic, environmental and social needs; To permit a mix of housing types that provide for the future needs of the community near employment centres, transport nodes and services; To protect and enhance the heritage of Hornsby, including places of historic, aesthetic, architectural, natural, cultural and Aboriginal significance …
3. Pursuant to LEP 2013 the site is zoned R2 Low Density Residential and the proposal is permissible with consent. The objectives of the R2 zone are as follows: ● To provide for the housing needs of the community within a low density environment; ● To enable other land uses that provide facilities or services to meet the day to day needs of residents.
4. The site may be subdivided, with development consent (cl 2.6 of LEP 2013).
5. Relevant to the proceedings cl 4.1 provides the objectives and standards for subdivision, and the minimum lot size requirements. The objectives of this clause are as follows: (a) to provide for the subdivision of land at a density that is appropriate for the site constraints, development potential and infrastructure capacity of the land, (b) to ensure that lots are of a sufficient size to accommodate development.
6. Relevantly sub cl (3) of the clause states that the size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land. By reference to Lot Size Map LSZ_010, the minimum lot size standard for the site is 500m².
7. The following clauses of LEP 2013 are relevant to the application, but it is agreed between the parties that the development meets the required objectives and or standards: 4.3 Height 4.4 Floor space ratio 6.2 Earthworks
8. The following definition in the dictionary of LEP 2013 is relevant to the proceedings: landscaped area means a part of a site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area.
9. The Hornsby Development Control Plan 2013 (DCP 2013) applies to the proposal. DCP 2013 has the following objectives relevant to this appeal: … - To protect and enhance the natural and built environment, and ensure that satisfactory measures are incorporated to ameliorate any impacts arising from development, " - To encourage high quality development that contributes to the existing or desired future character of the area, with particular emphasis on the integration of buildings with a landscaped setting, - To protect and enhance the public domain, …
10. DCP 2013 is structured in such a way that each provision contains a 'desired outcome' and 'prescriptive measures'. Desired outcomes are written as statements that describe the development outcome sought by the Council. The prescriptive measures are described as the specific requirements that are likely to achieve the desired outcome. In accordance with s79C3(a)(b) of the Act, the objective (desired outcome) of the DCP clauses are relevant in considering the flexible application of the provisions.
11. The relevant provisions of DCP 2013 are a mandatory consideration under s79C(1)(a)(ii) of the Act and its provisions are a fundamental element in, or a focal point to, the decision-making process, but are not determinative (see Zhang v Canterbury City Council [2001] NSWCA 167). However, the introduction of the provisions in s79C(3A) has mandated a more flexible approach to the matters the subject of dispute between the parties. As noted by Moore in Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151 at [68] section 79C(3A)(b) of the Act requires flexibility in the application of provisions of a DCP and the consent authority is required to determine whether the alternative solution is capable of meeting the object of the controls, without compliance with the relevant standards (in this case prescriptive measures).
12. Relevant to this appeal, Section 6.1: Subdivision of DCP 2013 has the following desired outcomes: a. Subdivision design that provides usable allotments that relate to site conditions. b. Subdivision design that provides for the retention of significant landscape features and respects site constraints including: " significant trees, remnant bushland, steep topography, watercourses, riparian land and stormwater overland flow paths, and bushfire hazard asset protection zones. c. Subdivision design that provides for all necessary services and facilities, including any required extension or amplification to Council infrastructure. In relation to residential land subdivision (6.2.1): a. Subdivision design should maintain appropriately shaped lots to accommodate a dwelling and associated development that is compatible with a low density residential environment. b. Subdivision design should provide setbacks to developable areas that will: complement the streetscape, provide for landscaping, protect landscape features, and provide separation between existing and future dwellings.
13. The controls relevant to subdivision in DCP 2013 are found at Section 6.1: Subdivision General, and 6.2: Urban Subdivision, and can be summarised as follows:

• Table 6.2 (a) minimum lot size - R2 zone: 500sqm
• Table 6.2 (b) minimum lot width - R2 zone: 12m
• 6.2.1(f) developable area to accommodate:

• A building envelope of 200 sqm with a minimum dimension of 10m;
• Principal private open space area;
• Area for the parking of two cars behind the building line.
  • Table 6(c) - proposed building envelope to comply with:
• 9m front setback to primary frontage;
• 5.5m setback to garage/ carport;
• 0.9m side setback for the first storey, and 1.5m for the second storey element;
• 3m rear boundary setback for the ground floor, and 8m to the first floor.
  • By applying table 6.2(d) which allocates the percentage of landscape area based on the lot size, the minimum landscape areas for proposed Lot A is 40% and Lot B is 30%.

1. Specifically cl 6.2(d) states: lot design should maintain a minimum lot width that is compatible with the subdivision pattern, measured at the building line adjacent the primary street frontage, as detailed in table 6.2(b), as below:
2. Section 6.2: Urban Subdivision at (g) requires that if an existing dwelling is to be retained, the proposed lot should be of sufficient size and design so that the dwelling complies with the 'Dwelling House' element in Section 3.1 of DCP 2013.
3. Relevant to this appeal, Section 3.1 Dwelling Houses has the following desired outcomes: In relation to Scale (3.1.1): Development with a height, bulk and scale that is compatible with a low density residential environment. In relation to Landscaping (3.1.3): a. Landscaping that integrates the built form with soft landscaping and retains and enhances the tree canopy. b. Development that retains existing landscape features.
4. The relevant provisions of Section 3.1:Dwelling Houses includes the following prescriptive measures:

• Table 3.1.1(a) - development to a maximum two storeys and attic. Maximum height 8.5m;
• Table 3.1.1(b) - maximum site coverage of 40%(Lot A) and 50%(Lot B) (note the requirements vary according to lot size);
• Table 3.1.1(c) - maximum floor area of 430m² for a dwelling house and 100m² for out buildings (Lot A) and 330m² and 45m² respectively for Lot B (note the requirements vary according to lot size);
• Table 3.1.2 (a) - minimum front building setbacks - 9m in Cherrybrook;
• Car parking to be provided behind the front building line;
• Table 3.1.3(a) - minimum landscaped area of 40% for Lot A and 20% for Lot B (note the requirements vary according to lot size);
• cl3.1.4 Open Space: minimum area of 24m² with a minimum dimension of 3m. As discussed below, the appropriate weight to be given to Section 3.1 in the consideration of the subdivision application, and proposed Lot A and B, is a matter of dispute between the parties.

Expert evidence

1. The Court hear expert evidence from Mr Jeff Mead (planning) and Mr Rohan Nash (urban design) for the applicant, and Mr Kerry Nash (planning) for the Council. All three experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention as detailed in [3]. As a result of the conferencing process they prepared a joint expert report which was tendered as Exhibit 3.
2. Separate to the confirmation of applicable planning controls, during the proceedings and in the joint report, the experts agreed that: 1. There are no significant site constraints that will affect the density of development on the subdivided lot and infrastructure capacity is not a constraint to development; 2. The frontages to properties within Cannan Close, other than the subject site, range from a minimum of 10.095m to 22.63m. The existing site has a frontage of 40.435m, which is approximately 1.7 times the frontage of the next largest lot and 3.5 times the frontage of the narrowest lot; 3. The western part of the existing frontage of the site, where the tennis court is located, is the only frontage in Cannan Close not occupied by a dwelling; 4. The maximum height permissible is 8.5m, the existing house at 17 Cannan Close complies with this control and there is no impediment to a new house on proposed Lot B complying with the height requirement; 5. The site is not identified as a heritage item or within a heritage conservation area, nor does the site fall within any identified character area or 'overlay' under LEP 2013 or DCP 2013 which provides any additional controls or considerations. 6. That the existing dwelling, remaining on Lot A, will not comply with the maximum floor area control in 3.1.1 of DCP 2013, and that it exceeds the maximum by 80m². However the dwelling is compliant with the site coverage control. 7. That the landscaped area for lot A, based on plan SK002, revision A prepared by Smith & Tzannes Architecture and Urban Planning (exhibit A), will be 323.2m² or 35.5% of the site area. This will be non-compliant with the numeric standard under cl3.1.3, however it is agreed by the experts that the proposal meets the objectives of the relevant controls. 8. That the proposed lot sizes and dimensions comply with all relevant LEP and DCP controls that apply to size and area. 9. That in summary the common characteristics of Cannan Close are: 1. The similarity of architectural presentation of the dwellings as a result of their production by a single builder; 2. Use of a consistent palette of materials (face brick, terracotta tiles, sandstone features, paved driveways, vegetation types); 3. Absence of front fencing; 4. Deep front setbacks creating a consistent street wall that is created by wide building facades that step forward and back of the building line; 5. Fragmented roof forms with multiple gables to the street; 6. Frontage width of houses typically divided into three parts across the length of the façade; 7. Articulation of the street facing façade, and emphasis provided in the facde design to the front entry; 8. Vertical proportion of fenestration in the front façade; 9. Consistent street tree planting in the verge of Cannan Close. 1. That Cannan close is not worthy of listing as a heritage conservation area, or as a special character precinct;
3. The experts disagree in relation to: 1. The weight that should be given to the common characteristics of Cannan Close (described above); 2. Whether the proposed development is: development with a height, bulk and scale that is compatible with a low density residential environment. (section 3.1.1: Scale of DCP 2013) 3. Whether the proposed development meets the test in 6.2.1(g) which requires that if an existing dwelling is to be retained, the proposed lot should be of sufficient size and design so that the dwelling complies with the 'Dwelling House' element in Section 3.1 of DCP 2013. 4. Whether the development meets the objectives of DCP 2013 6.2. 1 (a) Subdivision design, namely that subdivision should maintain appropriately shaped lots to accommodate a dwelling and associated development that is compatible with a low density residential environment (emphasis added); 5. The impact of the creation and development of proposed B on the streetscape of Cannan close; 6. What the weight should be given to the concerns raised by the residents in the assessment of the development.
4. I have reviewed the comments made by experts, and where they have reached agreement, I am satisfied that they appropriately consider the issues raised by the contentions and the appropriate planning controls and I accept their conclusions.

Are the streetscape characteristics of Cannan Close worthy of additional weight?

Evidence

1. In their submission Council provided the Court with a thorough history of the subdivision process that resulted in the creation of Cannan Close (Exhibit 6). The key aspects of this history are: 1. The subdivision as approved, through the various applications, was always envisaged and executed to contain lots of an area greater than 700m². 2. In the final form the lots in the cul de sac head were developed with lots ranging between 1300 and 1500m² for the purpose of accommodating tennis courts. The current lot was a re-subdivision of two previous lots to achieve the current 1468m² site area. 3. The houses in Cannan Close were marketed by Binet Homes as prestigious home sites (Exhibit 5) with a unifying use of fully landscaped gardens, sandstone highlights and period features, paved driveways and English estate lanterns. The intent was that from the street each house looks like a manor house.
2. In the submissions from the public these characteristics, and those contained in 30(9) above, were described as highly valued by the residents.
3. There is no expressed planning intent in the relevant instruments to ensure that future development is consistent with the established streetscape.
4. In 2012 Council sought advice from John Oultram Heritage and Design to assess the feasibility, in heritage terms, of establishing a new conservation area at Cannan Close (Exhibit B). Below is the relevant extracts from that report where it assesses the built environment of Cannan Close against the criteria of significance: Cannan Close is an example of late Twentieth Century subdivision and residential development that was originally part of the Greenway estate that was established and developed from 1978 onwards by Hooker Rex. … Cannan Close is a typical Post War, outer Sydney, suburban development in terms of its subdivision and housing layout. There is nothing of particular significance in the layout of the cul de sac. … The houses are not of a recognisable style in historic terms but have adopted some of the features of interwar California Bungalow development (multiple gables to the street) with Federation embellishments (turrets) and details (joinery and dormers). The houses do not form a matching group and vary in wall and roof materials. … There is a general pattern to the housing in terms of scale, form, materials and detail and they are recognisable as being from the same stable of designs. … There is nothing exceptional in the design of the houses in the Close that would raise them above the general development pattern of the area.
5. The report concluded that the area did not warrant listing of the area as a heritage conservation area. In October 2012 Hornsby Council resolved not to pursue the establishment of a heritage conservation area for Cannan Close (Exhibit 2).

Findings

1. I accept the conclusion of the experts in these proceedings, and the conclusion of the report prepared by John Oultram Heritage and Design, that Cannan close is not an area of specific heritage conservation, or special character value in planning terms.

Is the development proposed appropriate for a low density environment?

Evidence

1. Relevant to the consideration of the appropriateness of the scale of the development section 3.1.1 of DCP 2013 has the desired outcome (objective) that development with a height, bulk and scale that is compatible with a low density residential environment. This is supported by the desired outcome (objective) in 6.2.1 Residential Subdivision in the DCP which, in part, states: Subdivision design should maintain appropriately shaped lots to accommodate a dwelling and associated development that is compatible with a low density residential environment (emphasis added).
2. In the proceedings there was a difference of view between the experts as to the bounds of the low density residential environment that forms the basis of the assessment of compatibility referred to in the above controls.
3. Mr Nash considered that the test should be 'does the new development fit into the consistency of development in Cannan Close', and it was his view that is was warranted due to the strong consistency of high quality built form.
4. On the basis of Mr Nash's evidence consideration of the provisions of 3.1 of DCP 2013 (Dwelling Houses) are central to the assessment of a subdivision of an existing allotment in an established urban area in order to properly consider the likely built form outcome to be achieved on both of the resulting lots.
5. It was his evidence that the proposal will result in Lot A that has a large house on a small lot, and that such an approach will result in non-compliances with two key factors that are characteristic in the residential precinct of Cannan Close, namely floor area and landscaping.
6. Mr Nash argues that the minimum lot size standard of 500m² (cl 4.1 LEP 2013) applies across the majority of the R2 zoned land within the Hornsby Shire, including greenfield land. It is his view however, that in urban infill situations weight is to be given to the provisions of 6.2.1 of DCP 2013 which may require a larger lot size to accommodate landscape features or site constraints or greater lot width to provide a compatible subdivision pattern.
7. Mr Nash's preferred subdivision of the existing lot (Lot 1035), if it was to proceed, is to create two equal lots of 734m² with frontages in the order of 18-20m. This proposal would involve demolition of the existing dwelling. It is his evidence that such a subdivision approach would enable two dwellings to be erected on the new lots that are likely to be compatible with the streetscape of Cannan Close.
8. In support of this position Mr Nash references 6.2.1(c) which identifies an increase in lot size may be required in order to achieve minimum setbacks required from significant landscape features or to address site constraints. His evidence is that such a relevant constraint is the specific context of the site and its relationship to the existing development and subdivision pattern of Cannan Close.
9. Mr Mead does not agree that the retention of the existing dwelling on a smaller lot results in a dwelling that is excessive in regards to the size of the allotment on which it is proposed to be located.
10. He also relies on the Council assessment report of 13 July 2016 (Exhibit 2) that states that a review of Building Approvals for the adjacent dwelling houses in Cannan Close found that neighbouring properties would also exceed the maximum floor area controls.
11. Mr Mead does not support the alternative subdivision option of Mr Nash for the following reasons: 1. It is his view that the development outcome under the current application is acceptable and does not warrant the demolition of a dwelling that is compatible with the streetscape and the low density residential environment; 2. That due to the framing for the controls in DCP 2013 the alternate subdivision would be permitted increased and site coverage, a reduced landscaped area and a greater dwelling floor area, which is a poorer urban design outcome than that proposed; 3. Given the fact that site coverage and landscaping are significant to the character of the locality a proposal that cumulatively provides a better outcome in these parameters should be preferred.
12. In Mr Mead's view the scale relationship of the existing dwelling and its contribution to the character of the locality will not significantly change as a result of the proposal. This view is based on the following: 1. The existing dwelling will not be altered and therefore its existing relationship with the street is retained and any amenity impacts resulting from its relationship with the neighbouring properties is unchanged; 2. The fact that the area that is proposed to be used for lot B (the existing tennis court) is actually already perceived in character terms as a separate lot (and a different use) rather than providing a large garden setting in which the current dwelling is set; 3. The existing lot does not contain any outbuildings, other than a 5m² awning over the barbeque area and therefore does not take up the total 'floor area' available in DCP 2013 to the lot of 430m 4. Cumulatively if the development proceeds Lot A and Lot B will provide a greater amount of landscaped area that currently exists on the site.
13. In contrast to Mr Nash, Mr Mead's interpretation of 6.2.1(c) in relation to landscape features and site constraints refers back to the Desired Outcomes of cl 6.1.1 (b) which state: Subdivision design that provides for the retention of significant landscape features and respects site constraints including: " ● significant trees, ● remnant bushland, ● steep topography, ● watercourses, ● riparian land and stormwater overland flow paths, and ● bushfire hazard asset protection zones.
14. In his evidence Mr Mead noted that the proposal meets these objectives and that the experts agree that there a no significant site constraints that will affect the density of development on the subdivided lot and infrastructure capacity is not a constraint to development.
15. In his assessment of the proposal Mr Mead relies on s79C(3A) which in his view mandates the consent authority to consider alternative designs that meet the objectives (or Desired Outcomes) where the standards are not met.
16. In contrast to Mr Nash's evidence that the development does not meet the test in cl 6.2.1 (g) of DCP 2013, Mr Meads evidence is that the Lot B development concept plan (SK004, appended to the joint report) demonstrates that there is no basis for requiring a larger lot size than that provided in LEP 2013 and that there is no need for Lot B to be larger or wider to accommodate a dwelling that is in character with the locality, complies with the front setback requirements of HDCP, complements the streetscape and provides for appropriate levels of landscaping.
17. Mr Mead notes that it in the joint report it is agreed between the experts that all planning controls could be complied with on Lot B when it is developed for a dwelling. It is Mr Mead's evidence that the fundamental objective for the subdivision controls in Section 6.1 and 6.2 is to allow for subdivision of land that will allow development to meet DCP standards in Section 3.1, whilst talking into account site constraints. He supports this view with the following analysis: 1. 6.1.1(a) which states as a desired outcome 'subdivision design that provides useable allotments that relate to site conditions'. It is demonstrated in Plan SK004 that Lot B is eminently 'useable' taking into account all site constraints and planning controls. (He) does not agree with Nash that there are any constraints envisaged under 6.2.1(c) that would require a larger lot as minimum setbacks are met and it is agreed there are no other site constraints to development. 2. 6.2.1(d) requires that lot width is 'compatible with the subdivision pattern'. Cannan Close comprises a range of allotment sizes and frontages ranging from 11.7m in width to 40m. The existing lot has frontage width that is 1.7 times the next widest lot and 3.5 times the width of the narrowest lot which cannot be said to be consistent. The tennis court on the site, in his view, reads as a different lot to that which the house is on and in any case is a streetscape and character anomaly for Cannan Close. 3. Due to the variation in lot sizes in Cannan Close, noting that 'compatibility' does not require 'sameness', and that the character of the subdivision in the street must to a large extent be informed by the planning controls that applies it is (his) view that the proposal meets the intent of 6.2.1(d).
18. It is the conclusion of Mr Mead's assessment that the "Lot B development concept plan" (annexed to the joint planning report) for a future dwelling on Lot B demonstrates is capable of complying with the controls and objectives of Section 3.1 of DCP 2013, thus satisfying the requirements of 6.2.1(g) of the DCP.
19. Mr Dickson provided urban design evidence to the court in relation to the scale relationship of the existing dwellings and the visual catchment of the locality. His conclusion in the joint expert report was that the scale relationship of the existing dwellings will fit within the character of the locality.
20. It was Mr Dickson's evidence that the perceptibility of the reduced lot width of proposed Lot B with depend on the presentation of the future dwelling not the lot width, and that compatibility of a new dwelling with the existing urban environment of Cannan Close could be achieved by: 1. The front façade of the new dwelling being located at a setback that is consistent with the existing street wall; 2. Landscaping in the front setback; 3. The building form having a materiality that is consistent with the material palette in use in Cannan Close; 4. Absence of front fencing; 5. Enhancement of street tree planting, and retention of the majority of the existing trees in the lot frontage; and 6. The use of fragmented roof forms.

Findings

1. In considering the different conclusions of Mr Nash and Mr Mead, I prefer the evidence of Mr Mead that the low density environment envisaged by the desired outcome of cl 3.1.1 in DCP is the R2 zone. This conclusion is supported by cl 4.1 in LEP 2013 which sets a minimum lot size that provides no distinction to urban infill subdivision, and the recent consideration, and rejection by Council, of the creation of a separate layer of controls which sought to create a precinct based assessment of context. For Cannan Close therefore there is no overarching planning control that would provide a restraint within Cannan Close to the aim of the LEP to permit a mix of housing types, and specifically under cl 4.1 the provision of lots of 500m² site area.
2. During the proceedings evidence was provided by both planning experts in relation to the variation between the proposed lot B and the existing lot parameters in Cannan Close. Given the conclusion in [55] this analysis is not reproduced as the test is compatibility with the low density residential development within the R2 zone, not Cannan Close. It is noted however that both experts agreed that the current lot [1035] is a non-conforming lot having a double frontage and a significantly larger site area.
3. In considering this proposed development I have adopted the meaning of compatible, for 3.1.3 of DCP 2013, as set out in Project Venture Developments v Pittwater Council [2005] NSWLEC191 where (at [22]) where it states: There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as these differences in these attributes increases, harmony is harder to achieve.
4. Given the findings in [58] the test of compatibility needs to be read broadly to encompass not just Cannan Close but the low density residential environment of the R2 zone created by LEP 2013.
5. As the lot size control is contained in the LEP, BJ Properties Pty Limited v Lake Macquarie Council [2004] NSWLEC399 is relevant to these proceedings. The judgement at [118] states: [118] In most cases it can be expected that the Court will approve an application to use a site for the purpose for which it is zone, provided of course the design of the project results in acceptable environmental impacts. [119] However, there will be cases where, because of the history of the zoning of the site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project.
6. Hornsby Council, in the mapping of lot size controls, provided no differentiation to this site, and as such in creating the 2013 LEP anticipated the creation of 500sqm lots in this R2 zone, subject to such development being appropriate on its merits. The controls in DCP 2013 provide the articulation of those merit considerations.
7. In relation to cl 6.2.1 of DCP 2013 I concur with the evidence of Mr Mead and I find that there are no landscape features or site constraints that would warrant an increase in lot size beyond this standard, or a need for greater lot width to provide a compatible subdivision pattern.
8. Section 1B.2 of DCP 2013 states that prescriptive measures are requirements that are likely to meet the desired outcomes. This accords with the requirement of s79C(3A). There is no requirement under the circumstances to 'overlay' a higher order of planning controls for the proposed subdivision due to a heritage conservation or special character area. I accept the evidence of Mr Mead's that the scale relationship of the existing dwelling and its contribution to the character of the locality will not change significantly as a result of the proposal due to: the retention of the dwelling on lot A; the reading of the existing tennis court as a different lot and a different use, rather than providing a large garden setting for the house; and the cumulative increase in landscaping across Lot A and B that will result from the development.
9. I am satisfied that the proposal, despite requiring a variation of development controls, has adequately demonstrated that the proposed development meets the test in 6.2.1(g) and the objectives of 6.2.1 in DCP 2013. As a result I find that proposed lot A is of sufficient size and design so that the dwelling complies with the objectives of the 'Dwelling House' element in Section 3.1 of DCP 2013.
10. As part of the joint conferencing process the experts adduced evidence that detailed the range of lot sizes, widths and configurations within Cannan Close. A review of relevant aerial photography indicates this variation in subdivision form is more evident in the surrounds of the site, which is also zoned R2 Low density. I accept the evidence of Mr Dickson that the scale relationship of the existing dwellings will fit within the character of the locality and are compatible with the low density environment.
11. I am satisfied that the development meets the objectives of DCP 2013 6.2.1 (a) Subdivision design, namely that the proposed subdivision will maintain appropriately shaped lots to accommodate a dwelling and associated development that is compatible with a low density residential environment.
12. I am satisfied on the basis of the evidence of the experts and the site view that the overall development is capable of compatibility with a low density environment as required by the relevant planning controls.

Does proposed Lot A contain sufficient landscaped area?

Evidence

1. As a result of the joint conferencing of the experts the applicant tendered an amended site plan for Lot A that accommodated an increase in the landscaped area of the lot (Exhibit A). This increased landscaped area was achieved by a reduction in the hard paved area that currently exists on the site.
2. It was agreed in the evidence that Lot A and Lot B at the end of the proposed development would provide an increase in landscaping from that of existing lot given the extent of hardstand in the existing tennis court.
3. The proposal before the court will provide a compliant landscape area on Lot B and 35.5% landscaped area on Lot A, less than the 40% required by DCP 2013.
4. Mr Mead noted that were Lot A to be 12m² smaller in total area that DCP 2013 would require only 30% of site area for landscaping, and therefore if the plan in Exhibit A was implemented it would be compliant.
5. It was Mr Meads evidence that given Lot A and B will cumulatively provide more landscaping than the existing situation even when Lot B is development, and more than would be required if the site was subdivided into two equal lots the proposal is acceptable in landscape terms.
6. Mr Nash provided evidence to the Court that the retention of the landscape was uncertain as the future residents may increase the area of paving or the like to provide functional outdoor living areas as an extension of the existing living area zone of the dwelling.
7. Whilst the landscaped area provided in Lot A is less than the control detailed in DCP 2013, Mr Nash and Mr Mead both agreed in evidence that the proposed landscaped area of Lot A meets the objectives of the relevant control in DCP 2013 (3.1.3).

Findings

1. In relation to the issue raised by Mr Nash of future compliance, I note that the plan detailed in Exhibit A, in response to his concerns, provides a consolidated paved area, adjacent the living zone, to provide for outdoor dining or the like. I accept the submission of the applicant, that the court should approach the decision making process with the view that conditions will be complied with, as detailed in Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99 at [35].
2. Section 79C(3A)(b) of the Act requires flexibility in the application of provisions of a DCP and the consent authority is required to determine whether the alternative solution is capable of meeting the object of the controls, without compliance with the relevant standards (in this case prescriptive measures). I accept the evidence of the experts that the proposed landscaped area of Lot A meets the objectives of the relevant control in DCP 2013 (3.1.3) and is appropriate in this instance.

Is impact the on the streetscape of Cannan close acceptable?

1. As outlined in the preceding there is no specific expressed planning intent for future development in Cannan Close to be consistent with the established streetscape. However the assessment framework outlined in s79C of the Act requires the consideration of other matters, in addition to the planning instruments, in assessment of development including the likely impacts of the development, the suitability of the site, submissions made and the public interest.
2. During the notification of the application a number of submissions were received by the Council from nearby residents. These submissions had consistent concerns in relation to the impact of development on the streetscape of Cannan Close. This was reiterated in their verbal evidence to the Court. Such submissions are required by s79C(1)(d) of the Act to be considered in the assessment of the application.
3. During the conciliation phase discussion was held in relation to the means, if the subdivision was approved, of addressing the residents' concerns in relation to the certainty of the built outcome on Lot B and its compatibility with the architectural characteristics of Cannan Close.
4. The intent of this discussion was also to consider how to provide certainty to the delivery of the building envelope developed by the applicant in SK004 (appended to the joint planning report) which formed part of the assessment of the experts in the proceedings.
5. Mr Dickson provided evidence [at 57] that detailed the parameters for a future dwelling design that would achieve compatibility with the existing urban form, that is highly valued and is a key concern for residents.
6. Following conciliation an set of agreed conditions were tendered to the Court that included an additional condition at 25 as follows:
7. This additional condition, which gives effect to the building envelope, and provides parameters to define the architectural presentation of any new dwelling on proposed Lot B, was offered by the applicant in response to concerns of the residents.
8. In submissions Mr Gadiel, for the applicant, indicated that there is no dis-benefit to the applicant in the imposition of the condition even though the need for the condition may not have a basis in the planning controls.
9. Fortunate Investments v North Sydney [2001] NSWLEC 70 establishes [at 11] that the Court has the power to impose a restrictive covenant, but that the relevant question is if it is appropriate to do so in the circumstances.
10. The purpose of such a covenant envisaged in the proposed condition 25 would be twofold, firstly to alert any new buyer of the land to the appropriate building envelope that will achieve compliance with Councils planning controls, and secondly to address the concerns raised by residents in submissions to the subdivision application in relation to the impact of the development on the streetscape of Cannan Close.
11. Importantly the effect of the proposed 88b instrument is not that development could not be approved that is not in accordance with its parameters. As the Council retains the right to vary or release the restriction an alternative could, subject to merit assessment, be approved. De Hong Yu v Ku ring gai Council [2004] NSWLEC 569 at [52] states: it is possible to grant development consent, concurrent with or contingently upon the appropriate variation of the s 88B instrument to as to avoid all of the suggested inconsistencies.
12. In his evidence Mr Nash concluded that the proposed condition 25 would bring about a built from that reflects the existing form of development in Cannan Close, and whilst the reduced width of the lot will result in a greater presentation of garaging in the front façade than is typical in the street, the condition provides an improvement and will provide greater certainty in the outcome of future development of Lot B.
13. S80 of the EP&A Act provides that the consent authority, if granting consent, can do so unconditionally or subject to conditions. Conditions may be imposed, of relevance to this proposal, if they relate to a matter in s79C(1) or modifies details of the development the subject of the development application.
14. I am satisfied on the basis of the evidence of the experts and the site view that the imposition of proposed condition 25 to address the issues raised by members of the public is a matter in s79C(1)(d) and is appropriate in the circumstances of the case.

Other Matters Ground Level of Lot B

1. During the proceedings it became apparent that the development application material did not provide certainty in relation to the finished site level of Lot B, following the demolition of the tennis courts.
2. During the concurrent expert evidence Mr Mead and Mr Nash agreed it would be appropriate for this level to be the same as the existing ground level of Lot A along the new common boundary as shown on Survey plan A004 drawn by Greg Pickworth dated 21/2/12.
3. As this is not contained in the development application, and therefore not captured in proposed condition 1, to give this effect I have ordered the inclusion of an additional condition to the consent as follows: 7A: Following the completion of demolition of the tennis court structure the ground level of Lot B is to be made level with the existing ground level of Lot A along the common boundary as shown on Survey plan A004 drawn by Greg Pickworth dated 21/2/12.

Findings

1. For the reasons set out in the judgment, after considering the relevant matters under s 79C(1) of the EPA Act, the amended plans, the expert reports, the proposed conditions of consent and taking into consideration the issues raised by the resident objectors, I am satisfied that it is lawful and appropriate to grant the consent, having regard to the whole of the circumstances.

Orders

1. The orders of the Court are: 1. The appeal is upheld 2. Consent is granted to development application DA/314/2016 for torrens title subdivision of Lot 1035 DP 812942 (17 Cannan Close, Cherrybrook) into two lots, and the retention of the existing dwelling on proposed Lot A, subject to conditions in Annexure A, including the addition of new condition: 7A: Following the completion of demolition of the tennis court structure the ground level of Lot B is to be made level with the existing ground level of Lot A along the common boundary as shown on Survey plan A004 drawn by Greg Pickworth dated 21/2/12. 1. The exhibits may be returned with the exception of A, D, I and the survey and subdivision plan contained in exhibit 2. ……………. D M Dickson Commissioner of the Court 165887.16 - Annexure A (41.4 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: 10 May 2018