Clearcut Homes Pty Ltd v City of Ryde Council

The site and the locality

1. The site is located along the south eastern side of Thompson Street, and is legally described as Lot 32 in DP 24052. It has an area of 588.9m2 and is generally rectangular in shape with frontage to Thompson Street of 19.812m, depths of 28.99m at the eastern boundary and 35.655m at the western boundary and a rear boundary width of 17.68 metres. The site has a fall of approximately 2m from the rear toward Thompson Street.
2. The site currently accommodates a two-storey brick and clad dwelling with a detached garage and shed in the rear.
3. The surrounding locality comprises a variety of detached dwellings and dual occupancies varying in age, scale and architectural style. Single dwellings immediately adjoin the site at 41 and 45 Thompson Street, and dual occupancies are located not far from the site at 47 and 47A Thompson Street, 47 and 47A Swan Street, 35 Swan Street, and 16 Gannet Street. An aerial photograph of the site and its surrounds, showing the location of existing dual occupancies, is at Figure 1. Some of the dual occupancies shown therein have been Torrens title subdivided and would consequentially be now characterised as attached dwellings.
4. About 20m to the north-west of the site, a slip road departs from Thompson Street and forms an arc around a nature reserve where a small park is located. Pittwater Road, where the Boronia Park shopping precinct is located, is around 200m to the south-east of the site along Thompson Street.

The planning controls

1. The site is zoned R2 - Low Density Residential, pursuant to Ryde Local Environmental Plan 2014 ("RLEP 2014"), and attached dual occupancies are a nominated permissible use in the R2 zone. Clause 2.3(2) of the RLEP 2014 requires the Court to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The objectives are: 1 Objectives of zone • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for a variety of housing types.
2. Clause 4.1B of the RLEP 2014 sets out minimum lot sizes for dual occupancies, and provides as follows: 4.1B Minimum lot sizes for dual occupancies and multi dwelling housing (1) The objective of this clause is to achieve planned residential density in certain zones. (2) Development consent may be granted for development on a lot in Zone R2 Low Density Residential for a purpose shown in Column 1 of the table to this clause if - (a) the area of the lot is equal to or greater than the area specified for that purpose and shown opposite in Column 2 of the table, and (b) the road frontage of the lot is equal to or greater than 20 metres.
3. The site of the proposed development complies with the minimum lot size of 580m2, but does not have a road frontage equal to or greater than 20m. As set out above, the road frontage is 19.81m and therefore falls short of the required road frontage by 190mm. As such, consent cannot be granted except in accordance with cl 4.6(2) of the RLEP 2014. Clause 4.6 provides, at (3) and (4): (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained.
4. Clause 4.3 of the RLEP 2014 establishes a 9.5m building height development standard in accordance with the Height of Buildings Map, with which the proposed development complies. Clause 4.4 establishes a floor space ratio ("FSR") development standard for the site of 0.5:1. The proposed development has a FSR of 0.49:1 and therefore complies with the FSR development standard.
5. Clause 4.1A of the RLEP 2014 concerns the subdivision of dual occupancies, and provides at (2) that: (2) Development consent may only be granted to the strata subdivision of a dual occupancy (attached) on land in Zone R2 Low Density Residential if the land has an area of at least 580 square metres.
6. The Ryde Development Control Plan 2014 ("RDCP 2014") also applies, and at Part 3.3, Section 2.1, sets out the general controls with respect to the desired future character of the low density residential area. It provides as follows: "2.1 Desired Future Character The desired future character of dwelling houses refers to the complete building, whether this is the result of the construction of a completely new house, or of an addition or alteration to an existing house. The desired future character of the low density residential areas of the City of Ryde is one that: • Has a low scale determined by a maximum 2 storey height limit; • Has a low density with free-standing dwellings; • Has a limited number of dual occupancy (attached) buildings, and these buildings look similar to detached dwellings; • Has dwellings located in a landscape setting which includes a clearly defined front garden and back yard; • Has buildings which are well designed and have a high degree of amenity; • Has streetscapes made up of compatible buildings with regard to form, scale, proportions (including wall plate heights) and materials; • Has streetscapes with dwellings that have a generally consistent front setback and consistent street orientation; • Has garages and other structures which are not prominent elements in the streetscape and which are compatible with the character of the dwelling; • Requires minimal disturbance to the natural topography, which means that excavation is to be minimised; • Has backyards, which are maximised in size; • Has backyards which form a connected strip of vegetation in neighbourhoods and which include large trees; • Has allotments with large deep soil areas which allow rainwater to be absorbed and trees to be planted; • Has mature trees in streets, front gardens and backyards (existing mature trees are retained and new tree plantings encouraged); and • Has character areas where special features are retained and enhanced. Objectives 1. To ensure that development is consistent with the desired future character of the low density residential areas. Controls a. Development is to be consistent with the desired future character of the low density residential areas."
7. Section 2.3 then sets out the controls and objectives for attached dual occupancies. The objectives are as follows: "1. To provide an alternative form of housing that has a low density residential character and is consistent with the appearance of dwelling houses. 2. To protect the existing streetscape by limiting the number of dual occupancy (attached) buildings in a street. 3. To limit an increase in residential densities within low density areas. 4. To ensure that dual occupancy (attached) buildings are similar in appearance to dwelling houses."
8. The controls relevant to those objectives require dual occupancies to meet the controls for new dwelling houses set out in 2.2.1. The proposed development complies with those controls.
9. The RDCP 2014 also contains controls with respect to setbacks, landscaping, building envelope, car parking, driveways, height and floor space, with which the proposed development complies.
10. The development application was notified to the adjoining property owners in accordance with the RDCP 2014 on 1 February 2019, and no submissions were received.

Expert evidence

1. Expert opinion evidence was given by Mr Momo Romic, a town planner engaged by Clearcut, and Mr Ben Tesoriero, a town planner engaged by the Council. Mr Romic and Mr Tesoriero agree that cl 4.1B of the RLEP 2014 is a development standard capable of being departed from pursuant to cl 4.6, and that the numerical value of the variation is minor.
2. However, Mr Tesoriero opines that the site is not suitable for development for the purpose of a dual occupancy, largely on account of the site not meeting the minimum road frontage of 20m but also because the RDCP 2014 sets out a desired future character with a limited number of dual occupancy (attached) buildings. He considers that the request lodged pursuant to cl 4.6 of the RLEP 2014 does not satisfactorily address what is required by cl 4.6. He argues that if the development was surrounded by dual occupancies, or located adjacent to a medium density residential zone, then there may be a character argument to support the dual occupancy on the site.
3. Mr Romic instead opines that cl 4.6(4) is satisfied by the request, and that the bulk and scale of the dual occupancy is acceptable given compliance with the setback controls in the RDCP 2014, and the FSR and height development standards in the RLEP 2014. As such, he opines that the proposed development is compatible with the character of the local area and consistent with its planned density. He also considers that the revised development application would be consistent with the streetscape character and its form, architectural appearance, bulk and setbacks would be at a reasonable scale along the streetscape.

The breach of the road frontage development standard

1. As set out above at [13], the proposed development has a road frontage that falls 190mm short of the development standard for the minimum road frontage for a dual occupancy, which is 20m. Development consent cannot be granted except in accordance with cl 4.6(2) of the RLEP 2014, and can only be granted if the consent authority reaches the state of satisfaction required by cl 4.6(4).
2. Consistent with the decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 ("Initial Action"), for there to be power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that the written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)) and adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)). The Court must also be satisfied that the proposed development will be consistent with the objectives of the zone and with the objectives of the standard in question, which is the measure by which the development is said to be in the public interest (cl 4.6(4)(a)(ii)).
3. In accordance with the decision of the Court of Appeal in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130, the Court, in exercising the functions of the consent authority, must "in fact" be satisfied of the above matters. The state of satisfaction that compliance is "unreasonable or unnecessary" and that there are "sufficient environmental planning grounds" to justify the contravention must be reached only by reference to the cl 4.6 request. The evidence in the proceedings cannot supplement what is in the request, although the evidence may assist in understanding the request and in considering its adequacy. On the other hand, the state of satisfaction that the proposed development is consistent with the relevant objectives, and therefore in the public interest, can be reached by considering the evidence before the Court and is not limited to what is contained in the cl 4.6 request.

The written request on the development standard

1. The written request was amended to reflect the amended development application, and is dated 21 May 2020. It seeks to justify the contravention of the development standard on grounds that can be summarised as follows:

• The numerical variation is negligible, being only 0.95% less than the site frontage required.
• Compliance with the development standard is unreasonable and unnecessary in circumstances where the objectives of the standard are met notwithstanding non-compliance with the standard, where the underlying objective or purpose of the standard is not relevant, where the underlying objective or purpose of the standard would be defeated if compliance was required, and where the Council has on many occasions varied the development standard.
• The site has sufficient depth and size to accommodate the attached dual occupancy development, and the shortfall in the site width is accommodated by the larger site area.
• The built form is compliant with the controls in the RDCP 2014 concerning setbacks, private open space, landscaped areas, deep soil areas, parking and access. This means the variation to the road frontage development standard does not impact on the ability of the proposed development to accord with all other controls and development standards.
• The proposed development is compatible with the streetscape character in circumstances where it complies with the relevant controls, it has a pitched roof, and is in a context where there are other dual occupancy developments.
• The proposed development does not have any adverse amenity impacts.
• The proposed development is consistent with the objectives of the standard and of the zone.

1. The Council's position is that Clearcut has not demonstrated that the proposed development satisfies the objective of cl 4.1B of the RLEP 2014 or the first objective of the zone. It also contends that the cl 4.6 request has failed to demonstrate that, firstly, complying with the road frontage development standard is unreasonable and unnecessary and that, secondly, there are sufficient environmental planning grounds to justify the contravention. The Council submits that the variation is not just to be considered as a numerical departure from the standard, as it enables a dual occupancy to be built on the site that ought not accommodate a dual occupancy, and therefore involves a change in use from its current use that would be perceptible. As such, the Council submits that it is this outcome for the land use that must be justified in the cl 4.6 request. The Council says that the cl 4.6 request does not demonstrate sufficient environmental planning grounds that justify a dual occupancy on the site, and that the request does not demonstrate why it is acceptable to vary the standard to allow a dual occupancy. Similarly, the Council submits that in demonstrating that compliance is "unreasonable or unnecessary", the request is required to demonstrate why it should be permitted to have a use that otherwise could not be achieved on the site. Further, the Council submits that the objective of cl 4.1B is not met by the proposed development, because it enables a dual occupancy to be constructed where it should not be.
2. Finally, the Council contends that the proposed development is not consistent with the first objective of the zone, to "provide for the housing needs of the community within a low density residential environment". Mr Tesoriero's evidence is that this objective concerns the character of the low density residential environment, in which the Council seeks to limit the number of dual occupancies. As such, Mr Tesoriero opines that the dual occupancy use is not compatible with the low density residential environment. With respect to character, Mr Tesoriero opines that if the development was surrounded by dual occupancies, adjacent to a R3 zone where higher densities are a good outcome, or in an area transitioning to higher density, there would be a town planning argument that a dual occupancy is consistent with the character of the local area. As these factors do not exist, Mr Tesoriero opines that a dual occupancy is not consistent with the character and is therefore inconsistent with the first objective of the zone.

Development consent should be granted notwithstanding the breach of the road frontage development standard

1. For the following reasons, I find that each of the matters required by cl 4.6(4) are satisfied, and that there is, therefore, power to grant development consent notwithstanding the breach of the road frontage development standard.
2. Contrary to the submission of the Council and the opinion of Mr Tesoriero, I do not accept that the state of satisfaction that is required by cl 4.6(4) requires satisfaction that there is a justification for the proposed use of the site for the purpose of a dual occupancy. The proposed use is permissible pursuant to the zoning provisions in cl 2.3 of the RLEP 2014, and cl 4.1B is a development standard that is a provision "in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development" (emphasis added), as per the definition of "development standards" in s 1.4 of the EPA Act.
3. As such, the focus of cl 4.6(3)(a), which requires demonstration that "compliance with the development standard is unreasonable or unnecessary in the circumstances" is on whether the compliance with the requirement specified for that aspect of the development (i.e. minimum road frontage) is unreasonable or unnecessary, and is not concerned with establishing why the use for the purpose of a dual occupancy should be permitted on the site. Similarly, the focus of cl 4.6(3)(b), which requires demonstrating that "there are sufficient environmental planning grounds to justify contravening the development standard", is on that part of the development that contravenes the requirement specified for that aspect of the development, and not on the prospective use of the site.
4. Therefore, in considering what is properly required by cl 4.6(4), I am satisfied that each of the matters required by cl 4.6(4) are met, for the following reasons.

The request demonstrates that compliance is unreasonable or unnecessary

1. I am satisfied that the request adequately demonstrates that compliance with the road frontage development standard is unreasonable and unnecessary, given the negligible departure from that standard. As outlined in the request, the departure is only by 190mm, which is less than 1% of the 20m standard. As acknowledged by the Court of Appeal in Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94; [1999] NSWCA 19 at [9], a modest departure from a development standard is a basis upon which compliance with the standard can be seen to be unreasonable or unnecessary. I accept that, in the circumstances of the present case, the negligible departure from the standard renders compliance with the standard unreasonable and unnecessary. As set out in the request, it would be unreasonable to make boundary adjustments to the site to achieve the road frontage in circumstances of such a small departure.
2. Similarly, the request addresses that compliance is unreasonable and unnecessary in circumstances where the proposed development results in a satisfactory level of residential amenity and complies with all other requirements of the RDCP 2014 with respect to dual occupancy designs, as well as the requirements for front and side setbacks, landscaped areas, deep soil areas, parking and access, and building separation. The request outlines that the proposed development achieves this compliance with the RDCP 2014 even with the shortfall in the road frontage. I accept that this, together with the negligible departure from the road frontage development standard, adequately demonstrates that compliance with the standard is unreasonable and unnecessary in the circumstances.
3. For these reasons, consistent with cl 4.6(3)(a) and cl 4.6(4)(a)(i) of the RLEP 2014, I am satisfied that the written request adequately justifies the contravention by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

The request demonstrates that there are sufficient environmental planning grounds

1. I am also satisfied that the request adequately demonstrates that there are sufficient environmental planning grounds to justify the contravention of the road frontage requirement. It does so by demonstrating that the additional 8.9m2 of site area above the minimum site area in cl 4.1B, and the additional depth of the lot (as an average) beyond the depth that would be envisaged by applying cl 4.1B, appropriately offsets the shortfall in the width of the site and enables an outcome for the site that is consistent with the controls in the RDCP 2014.
2. Specifically, the request outlines that the requirement in cl 4.1B for a minimum site area of 580m2 and a minimum road frontage of 20m results in a desired depth of 29m. The site has depths of 28.99m and 35.655m, and an average depth of 32.32m. As such, the site exceeds both the minimum site area, as well as the desired depth of 29m. The request then goes on to outline that the additional depth and size makes up for the shortfall of 0.19m in the road frontage, and is an appropriate offset. As a result of the site's size and depth, the request outlines that: "the size and depth of a site is more important than its frontage requirement as attached dual occupancies are designed to be elongated down the depth of a site for economic and standard construction span purposes. The development does not unreasonably compromise the amenity of surrounding properties with respect to privacy or overshadowing in the face of the site's orientation and positioning of the rear private open space areas to the southerly aspect. The proposal would be compatible due to the presence of dual occupancies in the area and the proposal's physical impacts such as noise, overlooking and overshadowing are within acceptable limits. The development of the site does not constrain the adjoining properties to the east and west. … The revised proposal would be consistent with the streetscape character and its form, architectural qualities and bulk would be at a reasonable scale along the streetscape. …the proposal is compliant regarding key provisions in the DCP such as: ▪ Private open space, ▪ Landscaped areas, ▪ Deep soil areas, ▪ Parking and access; and ▪ Setbacks and separation."
3. I accept that the additional site area of 8.9m2 above the minimum site area in cl 4.1B, and the additional depth of the lot (as an average) beyond the depth that would be envisaged by applying cl 4.1B, justify the negligible non-compliance with road frontage development standard. This means that there is sufficient site area and depth to achieve an appropriate outcome for the dual occupancy on the site, as one that is compliant with the key provisions of the RDCP 2014, is consistent with the streetscape, and does not compromise the amenity of surrounding properties. It also means that the road frontage, although contravening the development standard, is adequate to achieve those compliant outcomes. As such, I am satisfied that the additional site area and depth, and the acceptable outcomes achieved through the proposed development, are sufficient grounds to justify the contravention of the road frontage development standard.
4. Therefore, I consider that the written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard, in satisfaction of cl 4.6(3)(b) and cl 4.6(4)(a)(i) of the RLEP 2014.

The proposed development is consistent with the objectives of the zone

1. I am also satisfied that the proposed development, for the purpose of a dual occupancy and in the design proposed, is consistent with the objectives of the zone. The objectives of the zone are outlined above at [11], and following the amendments to the design, the Council agrees that the proposed development is consistent with the second and third objective. On the basis of what is contained in the written request, I accept the parties' position in that regard.
2. Contrary to the submissions of the Council, and, on the basis of what is outlined in the written request and the evidence of Mr Romic, I also find that the proposed development is consistent with the first objective, to "provide for the housing needs of the community within a low density residential environment". In the low density residential zone in which the site is located, a range of housing forms are permissible, such as boarding houses, multi-dwelling housing, dwellings and dual occupancies. A dual occupancy provides for housing needs of the community in a context in which it is one of the lower density uses permitted in the zone. It therefore provides a low scale and appropriate form of housing in the low density residential zone.
3. Further, insofar as this objective concerns maintaining "the low density residential environment", I accept the evidence of Mr Romic that the built form of the proposed development and its use as a dual occupancy is consistent with the character of the low density residential environment. I do not accept the evidence of Mr Tesoriero that dual occupancies would have to be more prevalent, or the site located adjacent to a park or R3 zone, for the proposed development to be compatible with the character of the low density residential environment. Instead, I accept the evidence of Mr Romic that both the proposed built form and the use is consistent with the existing local character, which comprises both dwellings and dual occupancies, as it is of consistent form, architectural qualities, 2-storey appearance, bulk and setbacks as what exists along the streetscape. I also accept his evidence that the desired built form outcome that establishes the character of the low density residential environment is set by the controls in the RDCP 2014 concerning setbacks and landscaping, and by the RLEP 2014 development standards, with which the proposed development complies.
4. For all of these reasons, I am satisfied that the proposed development is consistent with the objectives of the R2 low density residential zone.

The proposed development is consistent with the objective of the standard

1. The objective of the road frontage development standard in cl 4.1B of the RDCP 2014 is "to achieve planned residential density in certain zones". The relationship of this objective to the development standard is not readily apparent. The Council submits that the objective is to limit the number of dual occupancies by ensuring that only a certain number of dual occupancies are permitted in the zone, limiting that number to the number of sites that meet the road frontage and size requirements. In support, it relies on the desired future character statement in the RDCP 2014 that seeks to limit dual occupancy developments in the low density residential zone. Clearcut, on the other hand, submits that the objective is to ensure that the density of the proposed use can be accommodated on the site.
2. In understanding the objective, the principles of statutory construction apply equally to an environmental planning instrument (Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [36]). This entails considering the text of the objective itself, and its context within cl 4.1B and within the instrument. In doing so, it is clear to me that the objective in subcl (1) is explanatory of the outcome that is achieved by the development standards described in cl 4.1B(2) concerning the minimum lot size and minimum road frontage for dual occupancies and multi-dwelling housing.
3. The words "planned residential density" is not a defined term, and there is no indication in the RLEP 2014 as to the quantitative planned residential density for the low density residential zone, to which the clause applies. The plain meaning of "Residential density", in the context of a planning instrument, can be understood as, firstly, the size and number of residential uses within a given area, where a higher density residential area will have smaller sized uses in larger numbers, such as units in a residential flat building. Secondly, it can refer to bulk and scale, where the more bulk and scale you have on a property results in an area that is denser in bulk and scale. The development standards in cl 4.1B(2) concern the former, and not the latter. As such, in this context, the words "planned residential density" refer to the desired size and number of residential uses within a given area and consequentially, across the zone. It is apparent, therefore, that by fixing minimum road frontage widths and lot sizes, the clause operates to "achieve planned residential density".
4. The broader context, in which the uses to which cl 4.1B apply are permissible uses in the zone and cl 4.1B is a development standard that regulates an aspect of carrying out development for the purpose of those permissible uses, is not inconsistent with this interpretation of the objective.
5. In reaching this view, I do not accept the Council's position that the exercise of statutory interpretation allows me to have regard to the desired future character description in the RDCP 2014 to create an inference as to the meaning of the text, where that inference does not arise from its plain meaning. That is, I do not accept that the words "achieve planned residential density" can be understood to mean that the objective of cl 4.1B is to limit dual occupancy developments.
6. Given the minor departure from the road frontage development standard, I am satisfied that the proposed development is consistent with the objective of cl 4.1B. As set out in the evidence of Mr Romic, the deficiency of 190mm in width for the entirety of the site's depth results in a shortfall of 2.8m2, whereas the land size is 8.9m2 greater than the minimum lot size. Accordingly, the shortfall in the road frontage does not adversely affect, and is consistent with, the objective to achieve the planned residential density.
7. I am therefore satisfied that the proposed development is in the public interest because it is consistent with the objectives for development within the zone and the objectives of the road frontage development standard, consistent with cl 4.6(4)(a)(ii) of the RLEP 2014.

The remaining matters for consideration on cl 4.6

1. Clause 4.6(4)(b) of the RLEP 2014 also requires that the concurrence of the Planning Secretary be obtained for development consent to be granted to development that contravenes a development standard. Whilst the Secretary's concurrence can be assumed for certain development standards as a result of written notice dated 21 February 2018 attached to the Planning Circular PS 18-003, it is also the case that s 39(6) of the LEC Act gives the Court the power to grant development consent without obtaining the concurrence of the Secretary. Nevertheless, in Initial Action at [29], Preston CJ stated that the Court should "consider the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard".
2. The Council has not raised any of the matters in cl 4.6(5) as a basis upon which the power in cl 4.6(4) ought not be exercised. Given that the departure from the road frontage development standard is negligible, that the site has sufficient additional area above the minimum lot size to accommodate the area lost in the smaller road frontage, and that the development otherwise complies with all of the relevant controls and standards, I am satisfied that none of the matters in cl 4.6(5) warrant refusal of the development application.
3. As a result, for all of the reasons set out above, I am satisfied that each of the matters required by cl 4.6(4) of the RLEP 2014 are satisfied, and that none of the matters in cl 4.6(5) warrant the refusal to exercise the power in cl 4.6(4) to grant development consent notwithstanding the non-compliance with the road frontage requirement of cl 4.1B.

Desired future character

1. The Council also contends that the proposed development is incompatible with the desired future character of the low density residential area, as the desired future character is one that has a "limited number of dual occupancy (attached) buildings". The Council says that to permit a contravention of the minimum 20m road frontage development standard "would give rise to additional allotments accommodating dual occupancy developments and therefore erode the low density character of the City of Ryde, being one that has a limited number of dual occupancy (attached) buildings". This is required by Part 3.3, Section 2.1 of the RDCP 2014, which requires at (a) that "Development is to be consistent with the desired future character of the low density residential areas."
2. The evidence of Mr Tesoriero in support of this contention is that although there are some dual occupancies in the area, they are not prevalent and that "if the development was surrounded by dual occupancies, then there may be a character argument to support the proposed development on the subject site".
3. I do not find that Mr Tesoriero's evidence supports the Council's contention, particularly in circumstances where the desired future character principles seek to have limited numbers of dual occupancies. Instead, I accept the evidence of Mr Romic that the proposed dual occupancy is not different in scale from the dwellings to the east and the west, and that there is no reason why a smaller land frontage marginally less than 20m would result in a poorer streetscape presentation of a dual occupancy. I accept Mr Romic's evidence that the proposed development will be compatible with the character of the area, which already contains several dual occupancies. I also accept his evidence that the desired built form outcome that establishes the character of the low density residential zone is set by the controls in the RDCP 2014 concerning setbacks, landscaping and building envelope, and by the RLEP 2014 development standards, with which the proposed development complies. Any future development application for dual occupancies will be required to be assessed on its merits and against the same controls and standards, and the question of whether a particular development will erode the character of the low density residential area can be considered in that context. I also consider that there is no evidence that the approval of the proposed development will be the tipping point that will cause the streetscape to go from one that has an acceptable number of dual occupancies, to one that exceeds the acceptable number of dual occupancies. For these reasons, and given the proposed development is compatible with both the current streetscape and also the future desired character as expressed through the numeric controls in the RDCP 2014, I consider that it complies with control (a) of Part 3.3, Section 2.1 of the RDCP 2014, which requires development to be consistent with the desired future character of the low density residential areas, and the negligible departure from the road frontage development standard does not cause a contravention of that control.

Site compatibility and the public interest

1. In contentions 4 and 5, the Council contends that, by virtue of the proposal not meeting the road frontage development standard, the site is not suitable for the development and the development is not in the public interest.
2. For all of the reasons expressed above, I do not accept these contentions. A dual occupancy is a permissible use in the zone and the proposed development has no discernible or measurable adverse impact. The shortfall in the road frontage development standard, by 0.95%, causes no adverse amenity impact and the development is compliant with all the relevant controls in the RDCP 2014 concerning front, rear and side setbacks, deep soil planting, parking and access, building envelope controls, and landscaping. It is clear, therefore, that the site is suitable for the proposed development, the departure from the development standard is both negligible and adequately justified, and there is nothing objectionable about the development that could cause it to be contrary to the public interest.

Outcome of the appeal

1. As set out above, I am satisfied of the matters required by cl 4.6(4) of the RLEP 2014, and that the power pursuant to cl 4.6(2) should be exercised in favour of granting development consent even though the development would contravene the minimum road frontage required for a dual occupancy in the low density residential zone. Given that the other planning controls of the RLEP 2014 and RDCP 2014 are met, there is no basis to refuse the development application and it is granted accordingly, subject to the conditions of consent as agreed between the parties.
2. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted for the demolition of existing structures and the construction of a dual occupancy (attached) at 43 Thompson Street, Gladesville, subject to the conditions of consent in Annexure A. 3. Exhibits 1 and 2 are returned.

Amendments 12 June 2020 - Typographical error identified. Representation details for the Respondent corrected. 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: 12 June 2020