Deancliff Developments Pty Limited v Hornsby Shire Council and Ors

APPLICANT Ms H P Irish SOLICITORS Colin Biggers and Paisley

LEGAL REPRESENTATIVES: FIRST RESPONDENT Mr I Woodward (solicitor)

SECOND AND THIRD RESPONDENT Mr B J Preston SC with Mr J E Robson SOLICITOR Adam Darke & Co

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10184 of 2004 DEANCLIFF DEVELOPMENTS PTY LIMITED v HORNSBY SHIRE COUNCIL, MAY HARLOW PTY LIMITED and FELIX FEI CHUI

JUDGMENT 1 Her Honour: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Hornsby Shire Council ("the Council") of development application No 1805/03 lodged with it by Deancliff Developments Pty Limited ("the Applicant"). The hearing of this matter ran for four days. Commissioner Watts and I visited the land in the company of the parties on the first morning of the hearing. On the second day of the hearing I ordered that May Harlow Pty Limited, a company controlled by Mr Tanner, and Mr Felix Fei Chui be joined in these proceedings as the Second and Third Respondents.

2 I have concluded that the application should be refused as, for the reasons set out below, I am of the view that it will not comply with the urban design outcomes of the Orara Street Precinct Plan contained in the Hornsby Shire High Density Multi-Unit Housing Development Control Plan. I thank Commissioner Watts for his assistance in this matter.

The Proposal and its History 3 Development application No 1805/03 was lodged with the Council by the Applicant on 11 September 2003 in respect of Lot 1 DP 211638 and Lot 2 DP 211638, being 24-26 Orara Street, Waitara ("the land"). The development application seeks consent to demolish the existing buildings on the land and to erect a multi-unit housing development containing nine levels of residential accommodation, three levels of basement car parking and one level of basement storage for the residential units ("the proposal"). The plans accompanying the development application have been amended and are contained in final form in Exhibit J.

4 On 17 March 2004 the Council adopted a recommendation that the development application be refused. The two reasons behind the Council's determination to refuse the development application were summarised as being the proposal's failure to amalgamate allotments and comply with SEPP 65 urban design issues.

The Experts 5 Expert evidence was adduced by the parties as follows: (a) Mr N Kennan, a town planner, gave evidence on behalf of the Respondent Council; (b) Mr D McNamara, a town planner, gave evidence on behalf of the Applicant; (c) Mr Lovell, a town planner, gave evidence on behalf of the Second and Third Respondents; and (d) Ms N Sonter, a Court-appointed landscape expert, gave evidence in relation to landscaping issues. The Land 6 The land is situated on the eastern side of Orara Street near the intersection with Alexandria Parade on a section of the street that is being made into a cul-de-sac. The location of the land is indicated by crosshatching on Figure A: Location plan. The land is rectangular in shape and has a (western) frontage to Orara Street of 30.48m, side boundaries (north and south) of 43.89m and a rear (eastern) boundary of 30.48m, giving it an area of 1,337.8m2.

The Issues 7 On 10 March 2004 the Council filed a statement of issues identifying four issues. Ultimately only the following two issues were pursued by the Council: 1. Whether it is appropriate for the Consent Authority to grant Development Consent to the subject proposal having regard to the provisions of Clause 14(4A) of Hornsby Shire LEP 1994 and the "Site Amalgamation" Element of the Council's High Density Multi-Unit Housing DCP.

2. Whether the proposed development is consistent with State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development in that it fails to satisfy the following Design principles: … (c) Landscape: The proposed development fails to provide an appropriate landscape interface with the street, the proposed park to the north and to future development to the south.

8 The Second and Third Respondents raised the following issues, as set out in a report by Mr Lovell, a town planner: (a) whether adequate attempts have been made to amalgamate the Applicant's land with the adjoining land of the Second and Third Respondents to the south; (b) whether any attempt has been made to amalgamate the Applicant's land with the adjoining land of the Second Respondent to the east; (c) whether the proposed development represents an appropriate form of development on the land; and (d) whether the proposed development renders the adjoining allotments to the south of the Second and Third Respondents' land incapable of being properly developed. 9 The issues raised by the Second and Third Respondents, like those raised by the Council, essentially revolve around the extent to which the proposal complies with the amalgamation requirements imposed by the High Density Multi-Unit Housing Development Control Plan ("the DCP") and the built form in the Orara Street Precinct Masterplan ("the masterplan") contained in that DCP.

Relevant Planning Controls Hornsby Shire Local Environmental Plan 1994 10 The land is zoned Residential D (High-Density) under the Hornsby Shire Local Environmental Plan 1994 ("the LEP") and the proposed use is permissible with the Council's consent under cl 7 of the LEP. The LEP provides that the objectives for the Residential D (High-Density) zone are as follows: (a) to provide for the housing needs of the population of the Hornsby area. (b) to promote a variety of housing types and other land uses compatible with a high density residential environment. (c) to provide for development that is within the environmental capacity of a high density residential environment. 11 Clause 14 of the LEP, which contains provisions relating to the density of development, has the following objective: To provide for the development of land at a density that is in accordance with the land's environmental capacity and zone objectives.

12 Clause 14(4A) of the LEP states that: The Council is not to consent to the erection of multi-unit housing on a site area consisting of the whole or part of any of the 9 numbered development sites shown edged heavy black on Diagram 1 in Schedule BA unless the Council has considered whether it should require consolidation of all or some of the allotments comprising the numbered development site concerned. A copy of the diagram contained in Schedule BA of the LEP forms Figure A: Location plan.

13 Clause 15(1) of the LEP states that a Floor Space Ratio ("FSR") of 1.6:1 applies to the Residential D (High Density) Zone. However cl 15(3) states that: Despite subclause (1), the Council is not to consent to the erection of multi-unit housing on any of the 9 numbered development sites shown edged heavy black on Diagram 1 in Schedule BA unless the Council is satisfied that the development will result in a floorspace ratio of not less than 1.6:1 and not more than 2:1. It should be noted that, despite the reference to nine in the LEP, only six numbered development sites are shown in Figure A and that is the number which will be referred to in this judgment.

14 The LEP provides that the FSR must be calculated to include any storage areas. The parties agree that if the FSR for the proposal (based on the amended plans contained in Exhibit J) is calculated in accordance with the LEP by including the storage areas within Basement Level 4 the FSR will be 2.1:1. Accordingly, the proposal exceeds the maximum FSR of 2:1 stipulated in the LEP. The Applicant has filed an objection pursuant to State Environmental Planning Policy No 1 - Development Standards in this regard. Paragraphs 6.2 and 6.4 of a joint report prepared by the parties' town planning experts, Messrs Kennan, McNamara and Lovell, confirm that the expert planners agree that the proposal complies with the FSR limit imposed by cl 15(3) of the LEP, other than in relation to the storage area located within Basement Level 4, and that the variation proposed by the Applicant to the FSR limit is acceptable.

The Hornsby Shire Council High Density Multi-Unit Housing Development Control Plan General 15 The DCP, which applies to the land, has been in force since 29 October 1998. The objectives of the DCP are as follows: · To provide a detailed planning strategy; · To provide guidelines for high density multi-unit housing development; and · To provide measures to enhance the natural and built environment.

16 Under the heading "How does this DCP work?", the DCP states that: … Control elements comprise element objectives, performance criteria and prescriptive measures. The element objective may be implemented by meeting the performance criteria. Meeting performance criteria enables the development of innovative schemes that meet the particular characteristics of any particular site. Prescriptive measures are those requirements that Council considers are likely to meet the objectives of the particular design element. Compliance with the prescriptive measures does not necessarily guarantee approval of an application, the application must also achieve the element objectives and performance criteria. …

The Orara Street Precinct Masterplan 17 An area of land, including the subject land, was rezoned by the Council for high-density residential development in accordance with the Hornsby Shire Residential Strategy. Following this rezoning the Council adopted the DCP. The DCP contains the Orara Street Precinct Masterplan which sets out the form of development which is to occur in the Orara Street Precinct. The DCP provides that the Orara Street Precinct comprises six numbered development sites, bounded by Edgeworth David Avenue to the north, Romsey Street to the west, Alexandria Parade to the south and Waitara Avenue to the east. Each of these six development sites contains a number of separate lots as shown on Figure A: Location Plan. The subject land, comprising two lots, is within Development Site 4 of the Orara Street Precinct. Development Site 4 comprises 16 privately owned individual lots. The land in the vicinity of the subject land is currently being, or has been developed, for high-density multi-unit housing. The Second and Third Respondents each own one lot within Development Site 4 adjoining the Applicant's two lots to the south. The balance of lots in Development Site 4 are owned by Mr Tanner or his companies.

18 The Orara Street Precinct Masterplan indicates that an eight storey building, designated D2, is to be sited on the western side of Development Site 4 on the Applicant's land and extending beyond it. Of particular importance is the presentation of building D2 to the future public domain, being the area the masterplan designates "village green", in the north-western corner of Development Site 4. The location of building D2 is shown hatched in the attached Figure B: Orara Street Precinct Landscape Masterplan.

Site Amalgamation 19 The 'Site Amalgamation' element of the masterplan provides (to be considered with cl 14(4A) of the LEP as set out at par 12 above) as follows: Element Objective To provide for integrated development that achieves the required dwelling yields and equitably distribute the development potential over all existing properties

Performance Criteria Development should be in keeping with the masterplans Development should achieve the maximum potential dwelling yields Buildings are to be integrated into a setting with large areas of open space The development potential of existing campus-like properties should be distributed equitably

Prescriptive measures Sites should be amalgamated into development sites in accordance with the site amalgamation diagram Development proposals should be accompanied by a subdivision plan which achieves a consolidation of allotments in accordance with the site amalgamation diagram

Green Space Linkages 20 The masterplan provides for green space linkages throughout the precincts established by the DCP, with the objective of making green space more accessible by linking up a series of open space areas, including the "village green" which is located in the centre of Development Sites 1 to 4. As shown in the attached Figure B: Orara Street Precinct Landscape Masterplan, the masterplan identifies the need to provide spaces between the buildings on Development Site 4. The performance criteria specified by the DCP in relation to green space linkages includes that: Pedestrian paths, tree lined walks or linear parks should link one public open space to another, establishing a series of linked public open spaces. 21 The "village green", with its pedestrian linkages to Romsey Street and Waitara Avenue, is a prominent component of the masterplan. The subject land fronts the southern side of the "village green". The Applicant proposes the dedication of nine metres of Lot 26 for public use. This strip adjoins 28 Orara Street (in Development Site 4) and 30 Orara Street (in Development Site 2), which are identified in the masterplan as "village green" and provides a favourable north-facing aspect over it. Public Open Space 22 The public open space element of the DCP has the objective of providing public places that encourage the vitality, and improve the identity of, the town centre and surrounding precincts. One prescriptive measure contained in the masterplan, headed "village green", is that: A central public green space should be created which acts as a gathering space for the immediate residents and for the local community.

23 The "village green" comprises part of the public open space element of the masterplan. Part of the "village green" is within Orara Street. The masterplan provides for the closure of this road and the dedication of that part for the "village green". Once dedicated, this part of the "village green" will link up with the other parts of the "village green" originally located on private land. None of the lots identified as "village green" on the eastern side of Orara Street, within Development Sites 2 and 4, have yet been allocated for public access. The identified lots on the western side of Orara Street have been largely developed and the "village green" component dedicated as public space. The Council considers that 10m should be dedicated by the Applicant, whose land is located on the eastern side of Orara Street, so that the area of land available for public use on the eastern side of Orara Street aligns with the land already dedicated on the western side of Orara Street.

24 The entire Orara Street Precinct is zoned Residential D (High Density) under the LEP so that none of the land identified for public open space in the DCP is zoned for that purpose. Further, there is no provision in the relevant s 94 contribution plan for the acquisition of public open space by the Council. Indeed the mechanism by which the "village green" would be created from private land is not specified in the LEP or DCP at all. The oral evidence of the Council's town planner is that it is to be achieved through negotiation with developers when sites are developed, presumably taking into account the matters identified in the next section on development density.

Density 25 The DCP states that development should have a minimum FSR of 1.6:1 and a maximum FSR of 2:1. The DCP states that the maximum density is only permitted where the other provisions of the DCP are met by the proposed development.

26 The DCP specifies a maximum site coverage of 35 per cent. Site coverage includes all buildings such as dwellings, garages, carports, outbuildings, terraces, verandahs and covered swimming pools. The proposal has site coverage of 24.8 per cent and would accordingly comply.

27 The Council seeks public access to the land identified as the "village green" once development has taken place in each development site. As set out above, the Court was not referred to any specific mechanism in the DCP whereby this would take place. It was the Council's town planner's oral evidence that, as an incentive to the private owners of land to give public access to the "village green", the Council allows the private owners of the land designated as "village green" to include the land designated "village green" in the calculation of the allowable FSR for development carried out by that same private owner within the development site. The FSR multiplied by the site area, including any "village green" land owned by the same private owner, gives the gross floor area of development within the development site. The gross floor area gives an indicative dwelling yield. Landscaping 28 The DCP aims to enhance the quality of the built environment through landscaping, requiring 50 per cent of the site to be landscaped. It is proposed that 61 per cent of the site, including that area dedicated as "village green", be landscaped. The Council's town planner, Mr Kennan, considered that the proposal would comply in this regard.

State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development 29 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development ("SEPP 65") applies to the proposed development. SEPP 65 was gazetted on 26 July 2002 (and was amended on 20 December 2002 to incorporate the Residential Flat Design Code) and came into force after the DCP was made in 1998. Clause 30(2) of SEPP 65 requires a consent authority to consider the following in determining a development application: … (b) The design quality of the residential flat development when evaluated in accordance with the design quality principles, and (c) The publication "Residential Flat Design Code".

30 The design quality principles which are to be considered pursuant to SEPP 65 include principles relating to: · context; · scale; · built form; · density; · resource, energy and water efficiency; and · landscape. 31 The Council objected to the Applicant's proposal on the basis that it does not meet the provisions of SEPP 65 which relate to landscaping. Ms Sonter, the Court appointed landscaping expert, agreed with the Council that the proposal does not comply with the requirements of SEPP 65 in relation to landscaping.

Issue 1 The Proposal's Conformity with the Relevant Planning Controls The Amalgamation and Village Green Components of the DCP (i) The Parties Submissions 32 The LEP does not require the amalgamation of sites as a precondition to the grant of development consent. Rather, the LEP requires the Council to consider whether it should require amalgamation before granting development consent. The DCP is more prescriptive than the LEP in that it states that sites should be amalgamated in accordance with the development sites identified in the master plan as a prescriptive measure.

33 As set out above, the objective of the site amalgamation provisions of the DCP is to provide for integrated development that: "…achieves the required dwelling yields and equitably distributes the development potential over all existing properties" within each precinct.

34 The Council argued that the Applicant's proposal did not comply with the objectives of its DCP in relation to dwelling yields and the equitable distribution of the development potential over each property in Development Site 4. The Council argues that the objectives of the DCP can only be achieved with greater lot amalgamation than the two lots included in the Applicant's proposal. 35 The Council conceded that it has not required the amalgamation of the whole of any one development site in the Orara Street Precinct as a precondition to the grant of development consent. Rather, adopting a pragmatic approach, the Council has allowed parts of each development site in the Orara Street Precinct to be developed in advance of the remainder of each development site. However, while the Council conceded that it has not insisted on all the lots within each development site being amalgamated and developed together as the DCP's prescriptive measure states, it nevertheless argued that: (a) some amalgamation had occurred ; and (b) as much as possible, the overarching urban design outcomes of the masterplan were adhered to;

within each development site in the Orara Street Precinct. The Council considered that it had, by following this approach, equitably distributed the development potential over existing properties to the extent it was able to so do.

36 The Council initially argued through its town planner, that the best possible outcome in terms of the realisation of the DCP objectives would be, in light of the development that has already occurred in Development Site 4, either: (a) for the residue of Development Site 4 to be amalgamated and developed together; or (b) for 20-26 Orara Street (4 lots) to be amalgamated. Option (b) required that the Applicant's land and the Second and Third Respondents' two lots to the south be considered as one parcel. In the course of oral evidence the Council's town planner agreed after questioning by the Court directed to all the planners that the amalgamation of 20-28 Orara Street (5 lots) would be preferable. This last option would, once again, require the amalgamation of the Applicant's land and that of the Second and Third Respondents with an additional lot of the Second Respondent's land (being no 28 Orara Street). These lots are shown in Figure C.

37 The Second and Third Respondents accepted that cl 14(4A) of the LEP requires amalgamation to be considered rather than requiring it, and similarly, that compliance with the more detailed amalgamation provisions of the DCP is not a necessary pre-condition to the grant of consent. Further, they accepted that the amalgamation components of the DCP and LEP can no longer be strictly complied with as parts of Development Site 4 have already been developed in isolation to the remainder. However, the Second and Third Respondents argued that the provisions of the DCP must still be given significant weight and that the Court should not grant consent to the Applicant's development application unless it is satisfied that: (a) the substantive outcomes of the DCP were met by the proposal (which, on the Council's and Second and Third Respondent's evidence, would require amalgamation); or (b) that amalgamation can no longer occur.

38 The Second and Third Respondents argued that another factor to be taken into account in relation to the equitable distribution of development potential objective of the DCP is that, if the land within Development Site 4 is not to be developed together at the one time, or in a fashion that equitably distributes the dwelling yield, it would lead to the opportunistic exploitation of the prime land. For instance, land which is not designated as "village green" and which faces north and has its outlook over the "village green", such as the land the subject of the Applicant's development application, is favoured when compared to that land which is remote from the "village green" and without a northern aspect. Thus it would be reasonable to expect that the owner(s) of the land designated "village green" would seek to recoup some of the locational benefits afforded by this juxtaposition. Accordingly, the Second and Third Respondents argued that unless the owner of the "village green" land is part of the development venture adjoining the "village green" he or she might not recoup the locational benefits of the adjoining land.

39 In addition, the Second and Third Respondents expressed concerns as to the extent to which the proposed development, if consented to, would overshadow any similar building to be erected next door on their land at 20-22 Orara Street.

40 The Applicant argued that, because of the way the Council had permitted the Orara Street Precinct to be developed, the Council had demonstrated a flexible approach to the site amalgamation objectives contained in the DCP. The Applicant argued that the proposed development achieves the DCP outcomes in so far as is possible, given the way in which the Council had permitted the Orara Street Precinct to develop, and that: (a) relying on the decision of Lloyd J in Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83 and Brown C in Melissa Grech v Auburn Council [2004] NSWLEC 40, the amalgamation requirements of the DCP were not such that the proposed development should be refused as: (i) the Applicant had made a reasonable offer to purchase 20-22 Orara Street and thereby achieve the amalgamation requirements and this offer had been refused; and (ii) the development potential of 20-22 Orara Street would not be impaired if amalgamation did not occur as there was no reason why any similar building to that contemplated by the proposed development could not be erected on 20-22 Orara Street; (b) two smaller buildings erected on the land comprising 20-24 Orara Street would better meet the requirements imposed by SEPP 65 than a single large building such as building D2. 41 Further, the Applicant argued that the Court was confined to considering Development Site 4 rather than the adjoining Development Sites 2 and 6, in determining the development application as the amalgamation required by the DCP in relation to the proposed development was limited to Development Site 4.

42 In relation to the "village green" the Applicant argued that as: (a) the land designated "village green" in the DCP is zoned "Residential D (High Density)" the owners of that land cannot require the Council to acquire it; and (b) there is no mechanism in either the LEP, the DCP or in any of the Council's contributions plans which allow the Council to require the land designated as "village green" to be developed as same; the extent that the "village green" and the amalgamation elements of the DCP have been achieved in the past, and will be achieved in the future, is dependant on the goodwill and flexibility of developers and the Council. In this case a 9m strip of land is proposed for dedication as public land in general conformity with the masterplan.

(ii) The Evidence 43 Expert evidence was adduced from the three town planners in relation to the application of the DCP and the masterplan contained in that DCP. Exhibit E consists of an aerial photograph of the Orara Street Precinct with various overlays, including an overlay showing the masterplan layout as envisaged in the DCP. The town planning experts retained by each of the parties reviewed Exhibit E and made detailed observations in the joint reports forming Exhibits K and Q in relation to the extent to which the built form of the Orara Street Precinct complies with the masterplan layout contained in the attached Figure B. The joint experts noted that the amalgamation requirements of the masterplan have not been achieved in relation to the whole of any of the six development sites. The joint experts agreed that: … consolidation of all allotments identified by Clause 14(4) and the Site Amalgamation Diagram … of the LEP has not been facilitated by any single developer within the Orara Street Masterplan Precinct …. [and] the elongated form of buildings A1, B2, C1, D3, E3 and F3, depicted in the Proposed Building Location Diagram, have not been realised by any of the approved developments in these locations.

44 The joint experts' report also noted that: The larger elongated buildings have generally been split to provide 2 x smaller more regular buildings, and the smaller more regular buildings have generally been implemented, albeit with some adjustments as to their alignment and/or orientation.

Some amalgamation has occurred to maintain a pattern of the smaller more regular generic building types, again albeit with some adjustments to boundaries and alignments.

45 The Council's pragmatic approach to amalgamation can be seen in relation to Development Site 4. The four allotments in the south western part of Development Site 4 have been developed in advance of the northern lots containing the "village green". The masterplan indicated that a building, designated Building D1, would be located in the south western sector of Development Site 4 (as shown in Figure B: Orara Street Precinct Landscape Masterplan attached). The building form approved in relation to these four south western allotments is similar to that which the masterplan specified and the Council was apparently satisfied that it was generally consistent with the masterplan. There was, however, no contribution of land by the developer of the building located in the south western part of Development Site 4 to the "village green" which is to be located in the northern part of Development Site 4. In other words, the developer of the building located in the south western part of Development Site 4 gained the lot yield of 2:1 calculated by reference to Development Site 4 as a whole, including the "village green" land, without having to make any contribution of land to the "village green" itself.

46 The planning experts agreed in their joint report that there was no need for 20 - 26 Orara Street to be amalgamated with Mr Tanner's land fronting Waitara Avenue to achieve the urban design objectives of the masterplan. They agreed that, in order to achieve the urban design intention of the masterplan, it would be preferable if 20 - 26 Orara Street were consolidated into a single development site. As noted at par 36, the Council's town planner also agreed during the hearing that the amalgamation of five lots (20 - 28 Orara Street) would produce a better outcome again.

47 In order for the DCP objectives in relation to the "village green" to be given effect, the "village green" must be included in a development site the subject of a development application in order for it to be dedicated or made public. As set out above, the Council's evidence is that the (unwritten) incentive applied by the Council to achieve this end is that the dwelling yield/FSR of a given development application is calculated on the whole of the development site the subject of that development application including the "village green". Accordingly, the "village green" would ideally be achieved by developing all the land within any development site at the same time, so that the burden of providing the "village green" would be equitably distributed among the owners of all the allotments in a development site. However, none of the development sites appear to have been developed in this way.

48 The Court was informed that the "village green" sites located within the development sites on the western side of Orara Street (Nos 1 and 3) had been dedicated to the Council as public open space. Within Development Site 4 there are at least one and a half lots, being 28 Orara Street and a 10m strip of 26 Orara Street, the Applicant's land, which are designated as "village green" under the DCP. Mr Tanner or his company, the Second Respondent, owns 28 Orara Street. The only other "village green" land not yet dedicated are two lots in Development Site 2, adjoining Development Site 4, which were not dealt with at the time Development Site 2 was otherwise entirely developed. Mr Tanner or his companies own these lots.

Finding 49 While the LEP does not require amalgamation of a development site before development consent is granted it clearly directs that consideration be given in determining a development application as to whether amalgamation should be required of all or some of the allotments in a development site. An objective of the DCP is to have a built form which achieves the dwelling yields specified in cl 15 of the LEP and equitably distributes the available development potential over all the existing properties. A key issue in this matter is the extent to how the Court applies the equitable distribution of the development potential of Development Site 4 to this application.

50 The first issue which requires clarification is what does "equitable distribution of development potential" mean. It certainly includes the distribution of dwelling yield. Does it relate to dwelling yield only or, as the Second and Third Respondents submitted, does it extend to locational advantage whereby prime land adjoining the village green has a greater value than land not so located? I accept the Second and Third Respondents' submission that, in order to achieve the urban design objectives of the DCP, it is necessary to take locational advantage into account in considering the "equitable distribution of development potential". This is particularly so because unless each landholder within the development site benefits through their landholding, the participation and co-operation of various land holders necessary to achieve the urban design outcomes of the DCP, particularly those relating to the "village green", cannot be achieved. The locational advantages attaching to the land within Development Site 4, would be likely to be equitably distributed if all the land within that development site were developed at the same time in a related way. As the development sites are reduced in area there is a greater likelihood that locational inequities will result. In the present case if the subject land is developed it will overlook the "village green". Consequently, Mr Tanner or his companies, who own the land designated as "village green" within Development Site 4, would not receive the locational advantages associated with the provision of the "village green" despite the expectation under the DCP that they dedicate their land for the purpose of the "village green".

51 The Second and Third Respondents relied on various authorities, including Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291, Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472, Parramatta City Council v Hale (1982) 47 LGRA 319, Zhang v Canterbury Council (2001) 115 LGERA 373 and 7-Eleven Stores Pty Limited v City of Sydney Council [2004] NSWLEC 154 as support for the proposition that the Court is required to give proper, genuine and realistic consideration to the provisions of development control plans in assessing development applications.

52 In Zhang the Court of Appeal held that the provisions of a development control plan "must be considered as a "fundamental element" in or a "focal point" of the decision making process" and, where they contain provisions directly pertinent to the determination of a development application these provisions are "entitled to significant weight in the decision making process but [are] not, of course, determinative" (per Spigelman CJ at 75). In Zhang, Spigelman CJ said at par 62: The test was whether the Commissioner had given "proper, genuine and realistic consideration to the provisions of the DCP". This formulation is derived from the judgment of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (Gummow J, 11 December 1987, unreported) and see Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 483 per Gummow J. As indicated by this Court in Ligon (supra) at 28, this formulation was in substance the equivalent of the test of "real consideration" applied to the predecessor section of s79C of the Environmental Planning and Assessment Act in Parramatta City Council v Hale (1982) 47 LGRA 319 at 331 and 335-336 and 339-339. See also Bruce v Cole (1998) 45 NSWLR 163 at 185-186. A number of equivalent formulations appear in the case law. (See Aronson & Dyer Judicial Review of Administrative Action (2nd ed) at 225). Care must be taken that this category of judicial review or appeal on question of law is not elided into a review on the merits or an appeal on the facts (Bruce v Cole supra at 186).

53 At par 43 - 44 above I set out the views of the town planners as to the conformity, or lack of, between the masterplan and the actual development which has occurred in the Orara Street Precinct. It is clear that the Council has not approved development throughout the Orara Street Precinct in complete accordance with the masterplan. Indeed there are a number of noticeable departures, demonstrating that the Council has applied a substantial degree of flexibility in the application of the DCP. I consider that the Council has nevertheless sought to implement the urban design outcomes of the DCP, to the extent it has been able to do so, given the nature of development it has been asked to approve. The Council has, for example, been generally successful in having land dedicated for the "village green".

54 I must apply the LEP and I consider that I should give significant weight to the wording of the provisions of the DCP and its diagrams. This DCP is unusual in that great reliance has been placed on the diagrams contained in the DCP to communicate what is intended. I am satisfied, on the basis of the oral evidence of the planning experts retained by each of the parties, that the greater the area of land amalgamated within Development Site 4, the greater the likelihood that the objective of providing "for integrated development that achieves the required dwelling yields and equitably distributes the development potential over all existing properties" will be achieved.

55 The Applicant's town planner submitted that an equitable distribution of the dwelling yield in Development Site 4 would be achieved by: (a) excluding the remaining vacant lots within Development Sites 2 and 6; (b) developing Development Site 4 in the following two or three amalgamated sub-areas: (i) the seven lots fronting Waitara Avenue and 28 Orara Street; and (ii) Nos 20 - 22 and 24 - 26 Orara Street; or (iii) Nos 20 - 26 Orara Street This would achieve a FSR of 2:1 for each development. However, the locational advantages of placing a building to the south of the "village green" would not be equitably distributed to the Second and Third Respondents. I am satisfied that the evidence indicates that the best way of achieving an equitable distribution of both the dwelling yield and the locational advantage would be to develop the five remaining lots being Nos 20 - 28 Orara Street in Development Site 4. I am also satisfied that this option is more likely to ensure that the "village green" would be provided as the developer, Mr Tanner, who owns the land designated "village green" in Development Site 4 would get the locational advantage of land adjoining it as well. 56 I therefore consider the application should be refused.

The Built Form/Landscape Components of the DCP 57 As stated above, the masterplan envisages that a new building, designated D2, will be located along the Orara Street frontage on and beyond the Applicant's land. If built according to the scale depicted in the masterplan, building D2 would be about 35m in the east/west direction and about 23m in the north/south direction. The proposed building the subject of these proceedings is 28.89m in the east/west direction and 14.315m in the north/south direction. Accordingly, the Applicant's proposal does not conform with building D2 in plan dimensions because it is not as deep in the north/south direction as D2, and therefore is inconsistent with the masterplan.

58 In order to achieve an equitable distribution of development potential over four lots in the amalgamation sub-area within Development Site 4 which are identified by the masterplan as being covered by building D2, being Nos 20 - 26 Orara Street, a second building of similar dimensions to that proposed would need to be constructed about 16m to the south of the proposal on land owned by the Second and Third Respondents. This was presented by the Applicant to support its case. Thus in place of a single building D2 there would be two narrower buildings. This is not what is sought by the masterplan and thus would be inconsistent with it.

59 In addition, the larger the development site the fewer the vehicular ingress and egress points that are required. As inferred from the DCP diagrams a linked basement car park shared between the buildings is preferred, reducing the total amount of land required for vehicular ingress and egress points. This in turn would increase the amount of landscaped area, meeting the DCP's stated performance criteria by assisting in the establishment of a campus-like setting throughout the precinct with large areas of green space.

60 I am of the view that, as the Council has generally adhered to the built form and masterplan in the DCP in relation to the Orara Street precinct, despite not requiring amalgamation of sites within each development site as originally envisaged in the DCP and despite approving several developments not in conformity with the built form in the masterplan, it is appropriate that the general built form of D2 be maintained if at all possible. 61 I therefore consider the application should be refused on this basis also.

62 For completeness I should note that since this DCP was made, SEPP 65 has been gazetted. There was suggestion by the Applicant that a building such as D2 may not comply with the solar access "rule of thumb" provisions contained in the Residential Design Code called up by SEPP 65. This is because there is likely to be a greater number of units facing east, west or south. Such units are unlikely to achieve three hours of direct sunlight between the hours of 9am and 3pm. There are a number of factors to take into account apart from solar access under SEPP 65 and the Court does not otherwise have any evidence before it as to the extent to which a building such as D2 would be able to comply with SEPP 65.

63 If, after further consideration and amendment of the DCP, the Council concludes that two tower buildings in this vicinity are preferable, as suggested by the Applicant, the evidence I have heard suggests that two integrated buildings, considered over five lots being 20 - 28 Orara Street, are preferable to two separate developments because of the following benefits resulting from the amalgamation of lots: (a) even distribution of the locational advantages attaching to the five lots; (b) the construction of a single basement area, reducing driveways and increasing landscaping space; (c) comprehensive landscaping over a larger area; and (d) a greater ability to achieve the village green.

Ultimately of course, this is a matter for the Council to determine. Issue 2 - SEPP 65 Urban Design Issues - Landscaping 64 In a joint statement the town planners Messrs Kennan and McNamara, reached agreement that there was no basis to refuse the application on the basis of SEPP 65 issues, apart from landscaping. Accordingly I will confine my consideration to the landscaping components of SEPP 65. This states that: Good design recognises that together landscape and buildings operate as an integrated and sustainable system, resulting in greater aesthetic quality and amenity for both occupants and the adjoining public domain.

65 In a statement of evidence dated April 2004 Ms Sonter, the Court-appointed landscaping expert, expressed criticism of the landscaping plans which accompanied the original development application on the grounds that the plans failed to provide an appropriate landscape setting for the proposal brought about, in particular, by the: (a) location of the driveway adjacent to the southern boundary; (b) lack of landscaped buffer on the northern side adjacent to the "village green", and (c) lack of opportunity for entry planting.

66 The amended indicative landscape plan, prepared by Mr S Menzies, addressed a number of the issues raised by Ms Sonter in her statement of evidence of April 2004. However, Ms Sonter identified that the following two outstanding landscape matters remain for the Court's determination: · Whether the lack of an appropriate landscape setting within the southern setback of the proposed building is acceptable in relation to the likely development of the amalgamated lot to the south, to the extent that it is defined by the Master Plan; and · Whether the minimal setback to the public open space to the north of the site and the resultant lack of an appropriate landscape buffer to protect the amenity of future residents is acceptable in terms of the "campus" style interpretation of the intent of the Master Plan, regarding the alignment of buildings to the public open space and in terms of the pattern of approved development within the precinct. 67 Further, Ms Sonter recommended the following conditions, which seek to compensate for the lack of detail in the landscape plan, be imposed on any consent issued: 1. The 4 landscape canopy trees indicated in the amended indicative landscape plan should be endemic species capable of reaching 30m in height; 2. The detailed landscape plan prepared for construction certificate should incorporate 5 trees capable of reaching 4-6m in height within the common open space area to the south of the proposed building; 3. The detailed landscape plan should incorporate 5 proposed indigenous trees capable of reaching 6-8m in height along the eastern boundary of the site; 4. There should be at least 4 trees capable of reaching 4-6m in height located within the northern setback of the proposed building. Where these trees are located within 3m of the building, species selection should be such as to ensure that the root system of the trees will not adversely impact upon the building; and 5. The proposal should incorporate the planting of 2 street trees. Species are to be to Council`s selection.

68 The issues raised by Ms Sonter, as set out at par 66, I consider should be determined on the basis that the impacts are unacceptable. While not decisive, my finding on these issues confirms my decision to refuse consent.

69 A further consideration in favour of refusal is that the Applicant is only prepared to donate a 9m strip, not 10m, for the public open space indicated in the Landscape Masterplan.

Negotiations to Purchase Land Within Development Site 4 70 The Court was provided with evidence about the course of commercial negotiations between the parties regarding their respective efforts to come to an arrangement whereby Nos 20 - 26 Orara Street could be developed as a single development. Because of my decision to apply the provisions of the DCP and the masterplan contained in that DCP it is unnecessary that I determine the issue of whether reasonable offers were made by the Applicant to the Second and Third Respondents or vice versa.

71 This case may be distinguished from the facts in Grech as here both competing interests, the Applicant and Mr Tanner, are developers seeking to commercially develop sites within Development Site 4. In Grech the issue was avoiding left over sites within an amalgamation area. The evidence of offers and counter offers to purchase and/or enter into a joint venture arrangement between the parties does not suggest that the possibility of amalgamation is at an end. Unlike Grech, it is clear that the Applicant in this case is seeking substantial flexibility in the application of the DCP in a way I consider is contrary to its objectives.

The "Isolated" Lots 72 I have refused this application based on a consideration of Development Site 4 only. It became clear on the evidence that the most appropriate planning approach to development in this area should take into account lots adjoining Development Site 4. How these matters are approached is ultimately a matter for the Council in the future but, as this is a significant issue in terms of the development of the balance of the Orara Street Precinct, I consider that it is important to set out this evidence here. 73 The Orara Street Precinct, made up of six development sites, is at this stage almost fully developed. The lots remaining to be developed largely fall within Development Site 4 and those adjoining in Development Sites 2 and 6. If Development Site 4 were developed alone, isolated lots would remain in Development Sites 2 and 6. Those which would remain isolated in Development Site 2 are earmarked in the DCP as "village green".

74 When the Council approved the development of Development Site 2, located to the north of Development Site 4, it did not require those lots designated "village green" in Development Site 2 to be dealt with at the same time as the rest of the development site was developed. This was because, according to the Council's town planner's evidence, the Council was aware that Mr Tanner's companies owned these sites. As a result, two lots, being 30 Orara Street and 39 Waitara Avenue, were left undeveloped in Development Site 2. These two lots, which are identified for "village green" in the masterplan, have not been dedicated for public access. These lots are partly shown in Figure C. In answer to questions posed by the Court, it was the view of all the town planners that those two lots should now be included as part of the development of the Waitara Avenue lots in Development Site 4.

75 Further, when the Council approved development within Development Site 6, which is to the south of Development Site 4, it left another two lots adjoining Development Site 4, being 21 and 23 Waitara Avenue, undeveloped. These two lots are also owned by Mr Tanner or his companies. The masterplan indicates that these lots were to provide open space for communal facilities forming part of the development of Development Site 6 to the south. The Court was informed the provision of those communal facilities has now been abandoned. The planners also concluded, in answer to the questions put by the Court, that these two allotments should now also be included in any proposal to develop Development Site 4.

76 From a town planning point of view and in order to achieve the goals of the DCP, the town planners agreed that the isolated lots in Development Sites 2 and 6 should be included in any development of Development Site 4. At this stage the DCP has not been amended to change the boundaries of Development Site 4 to take into account the isolated lots on adjoining land. The planners were asked by the Court to advise as to the most equitable distribution of dwelling yield which could be achieved in relation to the undeveloped land in Development Sites 2, 4 and 6. The town planners agreed that an equitable dwelling yield would be achieved if two amalgamated areas consisting of: (a) five lots, being 20 - 28 Orara Street, located within Development Site 4 were amalgamated and developed together; and (b) ten lots, being 21 - 39 Waitara Avenue, located in Development Sites 2, 4 and 6 were amalgamated with 30 Orara Street and developed together, with each contributing to the "village green". The floor space ratio for each of these two developments would be of the order of 1.6:1. This would be less than the 2:1 FSR achieved in the development of the building identified as D1 on the masterplan (see Figure B: Orara Street Precinct Landscape Masterplan) but this is explained by the fact that that the D1 development did not contribute to the "village green". Further, it is clear that, were the remainder of the lots within Development Site 4 and the four adjoining vacant lots from Development Sites 2 and 6 included in any one amalgamated development, there would also be an equitable distribution of development potential, expressed as dwelling yield, over the lots remaining to be developed. This would also result in a fair distribution of the locational advantages attaching to this land.

Conclusion 77 For the above reasons I consider that the Applicant's appeal should be dismissed.

Orders 78 The Court makes the following orders: 1. The Applicant's appeal is dismissed. 2. The exhibits are to be returned.

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