Drury v North Sydney Council

The site and surrounds

1. The site is Lot 7 in DP 24336 and is situated on the northern side of The Boulevarde with bushland forming part of Tunks Park, which is public open space, adjoining to the north.
2. The site is located around 5m below the level of The Boulevarde. As indicated, there is currently no vehicular access to the site and pedestrian access is via stairs down from the street and upper footpath to the lower footpath adjacent to the front boundary, which also serves the neighbouring properties at 2, 4 and 8 The Boulevarde.
3. The road reserve adjacent to the site and neighbouring properties contains numerous trees and shrubs planted on the battered slope (or embankment) between the upper and lower footpaths.
4. There is a rock outcrop/shelf and cliff face behind the swimming pool and the site drops significantly to the north of the cliff towards Tunks Park and the gully. The lower part of the site is largely inaccessible being heavily vegetated with remnant bushland.
5. The site contains a listed Aboriginal Heritage Site and the application was referred to, and received concurrence from, the Aboriginal Heritage Office accordingly.
6. Development further to the east generally has at-grade vehicular access off The Boulevarde where the topography facilitates this and there is no lower footpath between the street and adjacent dwellings.
7. There are 4 elevated properties diagonally opposite the site on the high side of The Boulevarde which are also constrained from having on-site parking due to their separation from the road carriageway by an existing rock shelf.
8. Views are available from adjoining dwellings and the site, as well as from locations along both footpaths and the street, towards Tunks Park and the suspension bridge as well as to the surrounding district to the north.
9. The site is located in the Low Density Residential R2 zone under the LEP where the proposed development is permissible with consent. Surrounding residential land is also zoned R2 for this part of The Boulevarde, and then High Density Residential R4 in the eastern portion of the street.
10. Given the differences in zoning and topography, residential development in The Boulevarde comprises a variety of forms including dwelling houses, dual occupancies and older style residential flat buildings.

Overview of contentions

1. At the commencement of proceedings, the remaining contentions related to the height, bulk and scale of the proposal and whether it was in keeping with the existing or desired future character of the locality.
2. Specifically, Mr Staunton, counsel for the Council, indicated that the Council had two fundamental concerns: the impact of the proposal itself, including on the character of the local area, and the precedent it would set in terms of changing that local character.
3. The site is located in the Cammeray Local Area (CLA) as designated in section 4.2 of the North Sydney Development Control Plan 2013 (the DCP).
4. In terms of the area character statement for the CLA, the Council referenced the requirements of provision P6, relating to views, which require that views and vistas to Middle Harbour and the suspension bridge over Tunks Park are to be preserved and, where possible, enhanced. Whilst there was no issue with vistas to the harbour, it was disputed that views to the suspension bridge over Tunks Park would be preserved let alone enhanced.
5. In terms of streetscapes within the CLA, these are described to include narrow width roads and split carriageways adjacent to the foreshore and Tunks Park with garages, carports and retaining walls built to the street. At section 4.2.3 Desired Built Form of the DCP, provision P5 is as follows: "P5 Buildings on sloping land should be designed to follow the slope of the land, with minimum cut and fill to be undertaken."
6. Section 1.4. Quality Built Form commences with the following statement: "In response to their local context, buildings need to be designed to respect the existing topography and relate to the rhythm and pattern of characteristic buildings in the prevailing streetscape. A comfortable and memorable street will be one where no one building or feature dominates."
7. The specific objective in terms of section 1.4.1 Context is: "O1 To ensure that the site layout and building design responds to the existing characteristics, opportunities and constraints of the site and within its wider context (adjoining land and the locality)."
8. The objective for section 1.4.3 Streetscape is: "O1 To ensure that footpaths, kerb and guttering and street trees contribute to a consistent streetscape."
9. Objectives for massing and scale, at section 1.4.7, and for built form and character, at section 1.4.8, are respectively as follows: "O1 To ensure that the size of new buildings are consistent with the surrounding, characteristic buildings and they are not significantly larger than characteristic buildings." "O1 To ensure the design of new buildings reflects and reinforces, or is complimentary to, the existing character of the locality."
10. The objective for section 1.4.10 Roofs and relevant provision are as follows: "O1 To ensure the provision of a characteristic roof typology though the use of similar forms, shapes and materials." "P1 Buildings should incorporate a pitched roof, except where another roof form is identified in an area character statement (refer to Part C of the DCP) for the neighbourhood, or as being compatible with the characteristic roof form for the neighbourhood."
11. The Council maintained the form of development proposed did not comply with a number of these objectives and provisions.
12. I will deal with further specific relevant provisions contained within the LEP and DCP shortly. However, the following summarises the contentions raised by the Council which were the subject of expert evidence and submissions: 1. The development exceeds the maximum height permitted by the LEP resulting in unacceptable impacts and the cl 4.6 written request should not be upheld; 2. The development does not step on sloping land to follow the natural gradient, will have an adverse effect on existing views from the public domain (namely the suspension bridge and the two adjoining footpaths), will not be compatible with surrounding development, and is not of an appropriate scale and density given the character of the local area. It will therefore compromise the amenity of the surrounding area; 3. Vehicular access by way of an elevated bridge over the lower footpath to rooftop parking is an inappropriate response to the topographic constraints and to the existing characteristics of this site and its context. In particular, it will be out of character with existing development in this part of The Boulevarde and will set an undesirable precedent for 3 adjoining properties which are in similar circumstances where there is no parking on-site or able to be provided without similar elevated driveways and rooftop parking structures being constructed. 4. If constructed, the proposed driveway will adversely affect the amenity and utility of the lower footpath, including by removal of landscaping in the adjoining road reserve embankment which separates the lower footpath from the upper footpath and the street. 5. The Council had not provided owner's consent to the works proposed in the road reserve including vegetation removal and construction of the bridge. 6. The amended plans, in seeking to address the presentation of the development, result in a reduced and non-compliant side setback which would have unacceptable impacts on adjacent neighbours and on the streetscape. 7. The manoeuvrability within the parking area was unacceptable. 8. There was disagreement about an appropriate design for the bridge. It was agreed that it would need to be solid with adequate drainage and safety balustrading.
13. It was agreed that the experts were not required for cross-examination or to provide oral evidence as their competing positions were summarised in the two expert Joint Reports filed (Exhibits 5 and 6). The proceedings therefore only considered the evidence from the site view and Joint Reports as well as objector concerns and submissions from counsel for the parties.

Objector concerns

1. Several objections were received to the proposal and 6 objectors spoke on-site, all being residents of The Boulevarde and including the residents of all the adjoining lower level properties that, like 6 The Boulevarde, have no vehicular access to their properties.
2. This included Mrs Goldfinch from 8 The Boulevarde who is 93 years old, has lived in her property since 1955, and claimed that the Council had always confirmed to her that they would not permit cars to come off The Boulevarde into the 'downhill properties'. She had planted the jacarandas and other plants in the embankment and maintained them over time but the Council had since taken over maintenance of this area. She advised that she had no difficulty in accessing the upper footpath via the stairs but with assistance if required.
3. In essence, the objections related to the loss of the current amenity of the lower footpath area given the landscaped character. All residents accepted not having parking in order to preserve that amenity, and raised concerns with the impacts of the proposal: from cars and in terms of solar access, views, outlook and privacy. They claimed that many visitors walked the suspension bridge and The Boulevarde at the weekends and used the lower footpath. There was a concern that approval would create a precedent for future developers to seek similar arrangements for the adjoining properties.
4. Objectors referenced a decision of the Court in 1999: Avakian v North Sydney Council (Land and Environment Court (NSW), Brown C, 19 November 1999 unrep) (Avakian), where the Court dismissed an appeal for the redevelopment of 10 The Boulevarde which similarly involved an elevated driveway and bridge over the same lower footpath to an upper level parking area. The appeal was dismissed in part due to the adverse impacts of these works.
5. Mr Avakian still lives at 10 The Boulevarde (in unit 2) and lodged a written objection. It reads in part as follows (Exhibit 2, Tab 13): "Once again this proposed development is attempting to get approval for the very thing that Kerry Gordon (North Sydney Councils' Then Town Planner) successfully fought to have refused in our application at the Land & Environment Court in 1998. Our application did not involve cars having to manoeuvre towards adjoining properties and it was considered to be too dangerous, noisy and have an adverse effect on the landscaping by the L & E Court & Council. The so-called precedent set by the existing bridge at No. 24 The Boulevarde was approved under a completely different LEP & DCP, is a maintenance nightmare and is constantly crisscrossed by cobwebs, walking through at night is quite dangerous & the landscaped bank suffers from a lack of sunlight & rain water. After days of rain the footpath becomes very slippery & therefore dangerous so people walk on the road which is considered less of a risk, even given the narrow road width of The Boulevarde. North Sydney Council representatives made various statements to the effect that another bridge over a Council lower footpath would never happen and that properties that could not obtain on ground vehicle access would not be granted on-site parking. Unfortunately No.'s 4, 6 and 8 fall into the sites encompassed by the statements. North Sydney Council has approved garages for other developments at No 10 & 14 but in both instances it is one (1) vehicle garage per dwelling and in both instances the buildings are only two storeys in height. The access for these garages is on ground and vehicles drive in & reverse out. Access is not via a suspended bridge".
6. A further submission from a new resident of 10 The Boulevarde (Exhibit 3, Tab 4) states in part as follows: "The streetscape running from the Long Gully Bridge Sth Pylon to number 8 is unique and valuable to the residents. Along with many other locals and visitors this strip of natural vegetation is much loved and admired. The paths at street and lower ground level are full of flowering plants that bloom over the year so there is always something to see with local birdlife. On weekends groups walkers are often seen on the lower path and at street level (sic). It forms an integral part of the character of the bridge with the pylons emerging from the bushland. Any development that attempts to degrade this resource is not welcome and the replacement of that streetscape with colour bond garages is a terrible outcome.… Moving to The Boulevarde we thought we were safe from oversize buildings but now we find ourselves in opposition to a developer who wants to disregard the planning guidelines for a R2 residential zoning and build at car park on top of the duplex that in places is 12.4m high (sic). Totally out of character to the rest of the street. The idea that this may get through and we have no certainty of the charm and character of the neighbourhood is stressful indeed… Numbers 2 to 8 The Boulevarde form a wonderful pocket of homes amongst bushland framed by the bridge. Allowing this development to occur forms an ugly precedent as far as the residents are concerned. I understand that the Court is ruling on this development but this judgement will form a de facto planning code for those adjacent homes. How can the Council enforce the planning code on the developments either side when all a developer has to do is point to the property at #6? In the near future we will have 4 buildings all over 12m in height with the streetscape replaced by a row of colour bond garages. That would be a poor outcome for all the local residents. In that scenario the residents of number 10 would loose all their side views of the bridge and streetscape vegetation and a significant amount of afternoon light (sic). The view along the entrance to our house is what sold me the idea of living here. Its beautiful."
7. The issues raised by the objectors were reflected in a number of Council contentions relating in particular to the impact on a unique local area and the precedent that any approval would create given this uniqueness.

Parking and access controls

1. Controls for access and car parking are contained within various sections of the DCP.
2. Section 10 of the DCP contains the specific parking requirements. For dual occupancies, there is a requirement that, for dwellings of 3 bedrooms or more (as has been approved on the site), a maximum of 2 spaces per dwelling are to be provided. No parking has been provided or was required for the approved dual occupancy on the site.
3. Section 1 of Part B of the DCP contains general controls for residential development with vehicular access and parking controls found at section 1.5.4 commencing with the following objectives: "O1 To provide adequate on-site car parking for residents. O2 To ensure adequate access for all vehicles. O3 To maintain garden settings. O4 To minimise adverse visual impacts on the appearance of the street or building."
4. The applicants referenced the first objective at section 1.5.4 as well as the following specific objectives found respectively in the DCP at Section 10 - Parking and Section 12 - Access: "O1 To ensure that sufficient car parking is provided on-site to cater for the users of the development. O3 To provide equitable access within all new developments and ensure that substantial building work carried out on or intensified use of existing buildings provides upgraded levels of access and facilities for all people."
5. However, the Council's position was that the DCP makes it clear, through both objectives and provisions, that there is neither a desire nor a requirement to provide parking on all sites. This is evident from the following access provisions found at section 1.5.4 which were particularly relevant in this appeal: "… P14 Do not compromise streetscape, building form and landscaped area, or heritage significance through the provision of vehicle access. P15 Where there is no parking on an original lot, and on-site parking is not characteristic, do not introduce vehicle access from the street."
6. The Council argued the following additional provisions at section 1.5.4 were also relevant noting that the amended plans demonstrated that a vehicle utilising the fourth car parking space at the rear of the roof required more than two turning movements in order to leave the site in a forward direction. This is not supported by the controls as follows, and less manouvering is not possible given the configuration of the parking: "… P5 Design accessways, driveways and parking areas to: (a) enable vehicles to enter the parking space or garage in a single turning movement; (b) enable vehicles to leave the parking space in no more than two turning movements; … P6 Parking areas must be designed to enable cars to enter and leave the site in a forward direction."
7. The following provision is also relevant in that the applicants advised that the intent of the access bridge was to provide vehicular access only not pedestrian access other that from the parked cars to the lift lobbies: "P7 Driveway and pedestrian access must be separated."
8. The Council also referenced the North Sydney Council Resident Parking Permit Policy (Exhibit 3, Tab 2). Under this policy, which is stated to be intended to provide equitable access to on-street parking in residential areas where there is limited or no off-street parking, each of the approved dual occupancy dwellings would be entitled to up to 3 resident parking permits. In addition, visitor parking permits can be purchased and arrangements made for carer parking permits. Such permits exempt the permitted vehicle from any time limits designated on parking signs in the street.

Works within Council Reserve

1. The proposed development requires works within the Council road reserve in order to provide the elevated bridge from the street to the roof of the approved dual occupancy. In advice provided by a Property officer of the Council, the area below the level of the road leading to the site is described as being "beautifully landscaped with the presence of 2 flowering Jacaranda trees. The pathway and landscaped gardens which forms part of the road reserve uplifts the aesthetics of the area" (Exhibit 2, Tab 10).
2. It was further advised that the construction of the bridge constitutes an encroachment of the Council's road reserve and would be a vehicular air-bridge under the Roads Act 1993. The Council has an Encroachment Management Policy (the Encroachment Policy): Exhibit 3, Tab 1. The purpose of the policy is stated to include ensuring encroachments from private property onto public property are safe for pedestrians and vehicular traffic, are designed and constructed to Council's expectations, and conserve the desirable characteristics of an area.
3. The advice from the Property officer was that the Encroachment Policy did not authorise any new encroachments, and the proposed driveway "would interfere with the aesthetics of the landscaped area" (Exhibit 2, Tab 10).
4. It was acknowledged that the driveway had been angled to retain the jacaranda trees and would necessitate only the removal of relatively minor vegetation. However, the Property officer considered that, whilst the trees to be removed were not significant individually, collectively, they contributed to the greening of the battered slope between the lower and upper footpaths.
5. The real issue for the Council was whether it was appropriate to allow the development across the Council's road reserve (footpaths) including tree removal. Concern was also raised that the proposed bridge appeared to impose a public liability risk to public use of the path below.
6. As a result, it was recommended that the encroachment not be approved and, accordingly, the Council had not issued its consent for these works to comprise part of the application.
7. It was accepted however, that the Court could and should issue such a consent for the required works to comprise part of the application, as the Court is able to do under s 39(2) of the LEC Act, if the Court considered the application ought to be approved: Ipoh Pty Limited v Sydney City Council [2006] NSWLEC 102 at [20].

Height

1. The proposed development does not comply with the maximum permissible height of 8.5m stipulated at cl 4.3 of the LEP. The objectives of cl 4.3 are: (a) to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient, (b) to promote the retention and, if appropriate, sharing of existing views, (c) to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development, (d) to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings, (e) to ensure compatibility between development, particularly at zone boundaries, (f) to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area.
2. The height can be varied under the provisions of the LEP at cl 4.6, with the relevant provisions as follows: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (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. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence. (6) …
3. The objectives of the R2 zone are: • 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 encourage development of sites for low density housing, including dual occupancies, if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area. • To ensure that a high level of residential amenity is achieved and maintained.
4. The experts agreed that the height limit for the site under cl 4.3 was 8.5m, and that the development, as amended, with a maximum height of 12.1m, exceeded this height. A cl 4.6 written request to vary the height had been submitted and amended to respond to the amended application (Exhibit D).
5. The approved dual occupancy on the site also breaches the height. However, this breach was considered to meet the requirements of cl 4.6. The proposed rooftop structures, as amended, at their highest point are a further 2.4m higher than the maximum height of the currently approved development.

The applicants' position

1. Mr Lovell had prepared the cl 4.6 written request which sought to justify the height breach. The request notes that the approved dual occupancy does not provide any off-street parking leading to reliance of future residents on on-street parking along The Boulevarde, which is time restricted.
2. The request notes that access to the approved dual occupancy dwellings are via two separate sets of stairs extending onto the site from the lower footpath. This involves as many as 31 steps down from the road carriageway to the lower footpath and then steps up or down to the entry doors of each dwelling.
3. The request notes the existence of the two footpaths extending along The Boulevarde in front of the site. The upper footpath is adjacent to the carriageway whilst the lower footpath adjoins the site being up to 4.9m lower. The two footpaths merge at the junction of The Boulevarde and Miller Street some 60m to the west and in front of 10 The Boulevarde some 25m to the east of the site. The sloped embankment between the two footpaths is vegetated with trees, shrubs and ground covers and contains two sets of stairs providing access between each footpath.
4. The following summarises the justification for the breach in the cl 4.6 request in terms of the background: 1. The steep topography of the site is such that the highest part of the structure is at the northern edge and has a maximum height of 12.1m. This portion of the structure is setback at least 16m from the southern boundary and 26m from the road. This minimises any visual impact. 2. Given the site circumstances, the only option to provide off-street parking, and accessible pedestrian access, to the approved dual occupancy necessarily involves constructing a driveway extending to and from the road carriageway over the lower footpath. 3. Parking along the northern side of The Boulevarde is restricted to 2 hours without a permit meaning visitors or residents without permits would need to move vehicles after 2 hours. 4. As outlined at [87] in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action), cl 4.6 does not establish a test that the non-compliance have a neutral or beneficial test relative to a complying development.
5. In addressing the specific requirements of cl 4.6(3)(a), the request states that in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe) Preston CJ indicates that there are essentially 5 different tests (or grounds) in which to demonstrate that compliance with a development standard could be considered unreasonable or unnecessary. The request then states "The Applicant relies upon ground 1 in Wehbe to support its submission that compliance with the development standard is both unreasonable and unnecessary in the circumstances of this case"
6. The reference to ground 1 in Wehbe in this regard, is that the objectives and purposes of the standard are achieved notwithstanding non-compliance with the height development standard (or height standard).
7. To demonstrate this, the request deals with the objectives of the height standard, in summary, as follows: 1. In terms of objective (a), the approved building generally adopts a stepped form relative to ground level, and no changes are proposed to the existing ground surface or topographical characteristics of the site. The setback of the garage from the northern (rear) boundary achieves a stepping in the development reflecting the topography to the north. 2. In terms of objective (b), the adjoining dwellings to the east and west are below the level of the approved building so the additional height will not impact views which are, in any event, side views across the site. Further, existing dwellings on the opposite side of The Boulevarde are elevated above the road and the existing embankment vegetation includes trees extending above the level of the proposed structures. At the street front, the proposed structures are height compliant. Therefore, when viewed from the street, the development will not be inconsistent with the height of buildings contemplated by the standard. 3. In terms of objective (c), the proposed structures will only 'very slightly' overshadow the yards of 4 and 8 The Boulevarde, being for less than 2 hours in mid-winter. There will be no solar access impacts on the primary private open space or main habitable rooms of any adjoining existing dwelling, nor any material impact on future redevelopment of adjoining properties. 4. In terms of objective (d), the proposal is for off-street parking and this use is not likely to give rise to any significant privacy concerns. The small areas of glazing in the structures proposed could be of obscure glass and the entries to the lift lobbies have been splayed so that they do not directly overlook 8 The Boulevarde in the event that this property is redeveloped. These entries are also well setback and access to these entries and the storage area will be infrequent. 5. In terms of objective (e), the proposal introduces off-street parking that is generally compatible with the predominant pattern of development along the northern side of The Boulevarde. The access bridge does not breach the height limit and such a bridge would not be a foreign element in the street, as evident in properties to the east. Adjoining properties do not maximise their development potential and their contribution to the character of this part of the street is therefore of diminished value. 6. Finally, in terms of objective (f), the site is within an established residential neighbourhood characterised by a diverse mix of dwelling types and similarly a wide and diverse range of off-street parking arrangements. There are a number of elevated driveways over footpaths in the general vicinity of the site including two driveways at 34 The Boulevarde. Whilst the parking facilities and bridge will be visible from some locations along The Boulevarde, their visibility will be limited including by vegetation on the embankment. In this regard, the access has been located to minimise the impact on this existing vegetation with the majority retained including the two jacarandas. The embankment will also be supplemented with new plantings.
8. The request argues that strict compliance with the height control would effectively eliminate the ability to provide safe and secure parking to serve the approved dual occupancy or to provide pedestrian access via the passenger lifts to the approved dwellings below. Otherwise, future residents would need to use multiple stairs and the footpaths.
9. In terms of the objectives of the zone, the request argues that what is proposed would materially improve the amenity of the approved dual occupancy without imposing any significant or unreasonable impacts on the amenity of the surrounding land.
10. The request references the DCP objective O1 of section 10 in terms of parking sufficiency and objective O3 at section 12 in terms of providing equitable access in new developments. In this regard, there would otherwise be considerable difficulties for pedestrians accessing the approved dwellings from on-street parking.
11. In terms of meeting the requirements of cl 4.6(3)(b), there were 11 environmental planning grounds, or EPGs, put forward in the request in support of the breach of height as follows: 1. EPG 1 - There are no changes proposed to the existing ground surface or the topographical features of the site; 2. EPG 2 - Strict compliance would result in a poorer environmental outcome in terms of safe and convenient vehicular and pedestrian access to the site; 3. EPG 3 - Strict compliance would eliminate the ability to provide pedestrian access via the lifts requiring the use of many internal and external stairs; 4. EPG 4 - Safe and convenient vehicular and pedestrian access promotes good design adding to the amenity of the built environment; 5. EPG 5 - Driveways and off-street parking are a characteristic element of the streetscape and the introduction of an additional driveway and associated structures will not disrupt any clearly established pattern of development where off-street parking is not characteristic; 6. EPG 6 - There will not be any significant or unreasonable impacts on the amenity of the surrounding land in terms of overshadowing, loss of privacy and loss of views; 7. EPG 7 - The scale of the development when viewed from the public domain will not be antipathetic to the existing buildings in the locality or visually jarring when viewed from either the public domain or adjoining properties; 8. EPG 8 - There is a public benefit in providing off-street parking and accessible pedestrian access where it can be provided without unreasonable impacts on surrounding land or the streetscape; 9. EPG 9 - There is a public benefit in minimising the demand for on-street parking associated with new development; 10. EPG 10 - The development is consistent with or not antipathetic to the objectives of the R2 zone; and 11. EPG 11 - The development is consistent with or not antipathetic to the objectives of the height standard notwithstanding the numerical variation.
12. The written request concludes that there are no matters of State or regional significance that would be of concern and no public benefit in maintaining the height control in this instance.
13. In the expert Joint Reports (Exhibits 5 and 6), Mr Lovell essentially reiterated these grounds as the basis for supporting the height breach maintaining what was proposed would be compatible with the character of the area and streetscape. In essence, he considered the broader streetscape of The Boulevarde, not confining consideration only to the 4 adjoining sites, including the appeal site, which did not have off-street parking and could not provide this without elevated access over the lower footpath. He maintained there were examples of such elevated driveways in the street which were typical in the locality.
14. Further, the partial visibility of the parking structures was not an inappropriate design solution to the topography and situation of the site. Any view of the development from the suspension bridge would be minimal with the structures being at least partially screened by vegetation and with a backdrop of diverse development forms and styles in the locality which respond to the topography.
15. In addition, the amendments undertaken reduce the height of the proposed development as a consequence of reducing the length of the garage structure towards the north where the ground level is lower. Further, they reduce the extent to which the parking spaces will be visible from the public domain, including from The Boulevarde, and the reduction in the length of the garage would reduce the bulk and scale of the building when viewed from the suspension bridge. The amendments introduce a form of garage that, when viewed from the public domain, is not inconsistent with the nature of surrounding development including the relatively recent approvals granted at 10, 14 and 20 The Boulevarde where garages are orientated to the street.
16. Mr Lovell argued that the change in the outlook from the upper footpath of The Boulevarde would also be minor and that the flat roof form remained compatible with existing roof forms in the locality including, in particular, of recently constructed and approved buildings.
17. Ms Reid submitted that, even if not stated specifically, I could infer achievement of all zone and height standard objectives from the comments contained within the cl 4.6 written request. She reinforced this with the following comments about the objectives: 1. At the front, as it presents to the street, the development complies with the maximum height. The garage is then setback and the open parking area steps down from there. Clearly the approved development was considered to comprise a design for sloping land or it would not have been approved so adding to it by using the approved roof meant it should continue to meet that objective. 2. It was accepted that, in Rebel MH Neutral Pty Ltd v North Sydney Council [2018] NSWLEC 191 (Rebel MH), Moore J held that a view can include a vegetated outlook. However, what is proposed would largely retain the vegetation as it is and so keep that landscaped view. Further, in terms of impacts on views, there is no suggestion that development could never change an outlook. 3. No solar access concerns were raised in the Amended SFC nor by the Council's expert. Whilst there was a minor increase in overshadowing, this was dealt with in the cl 4.6 request. Objective (c) does not mean you cannot impact solar access but impacts need to be minimised. What is proposed has a minor impact, DCP solar access requirements are met and solar access is maintained to public areas and neighbours. 4. It was disagreed that there would be any impact on vistas to or interface with Tunks Park. The rear setback of the new structures to the E2 zone was greater than 25m and accordingly Mr Lovell concluded there would be no impact in terms of the interface to this zone. Further, what is proposed is no different from other forms of residential development in the street that back onto the E2 zone. 5. In terms of the view from the suspension bridge, as noted in the site view, there is a large tree (which will remain as it is on the applicants' property) which will largely screen the development. Further, the backdrop is of mixed character and the proposed development is consistent with that character. 6. Nowhere does it say the character of an area is confined to its immediately adjacent neighbours, being 2, 4 and 8 The Boulevarde. Further, these properties are agreed to comprise underdeveloped sites Therefore the character of the area is likely to change. These properties could also seek to have off-street parking which would be part of the future character. 7. The reference in the DCP to not introducing vehicle access from streets where on-site parking is not characteristic needs to be looked at beyond the immediate area and adjacent dwellings. On-site parking is characteristic in much of The Boulevarde. Further, the provision applies to the whole of the municipality and there would be some situations, such as a row of terraces in Milsons Point, where no off-street parking is possible or desirable. That is not the circumstance here. 8. In terms of the amenity of the lower footpath and the concerns of the Council and residents, one had to look at a number of factors. Firstly, there is at least a 4m clearance below the elevated structure (bridge) so it would not impede access or limit use of the footpath. Secondly, the width of the bridge is minimised as much as possible. Thirdly, whilst residents say it is widely used, there is both a lower and upper footpath available in this location. The upper footpath extends the full length of the street whereas the lower footpath provides access only to 2-10 The Boulevarde and is not paved, being part grass and part earth. 9. What is proposed will provide equitable access to the site for disabled residents and visitors which otherwise cannot be provided. It will enable ageing in place without unreasonable impacts. There is a public benefit of increasing off-street parking noting the DCP allows up to 4 spaces for a dual occupancy and there needs to be a flexible approach as to how this is provided.
18. If the Court was concerned that the last parking space required more than 2 manoeuves to exit, the applicants would accept a maximum of 3 or even only 2 spaces being provided at the rooftop level.
19. In terms of removal of trees from the embankment, the Council confirmed that the trees are not significant and can be replaced. The applicants have minimised both the extent of encroachment and the landscape impacts.
20. Whilst acknowledging the availability of parking permits, these constrain future occupants and their visitors. The public interest of losing 1 space on-street for the access must be balanced against providing 4 spaces off-street for safe and convenient access for future occupants, who will otherwise be limited to convoluted pedestrian access via an unpaved footpath and stairs.
21. Finally, the height standard is to be flexibly applied. It is a control across a local government area with many different properties. Flexibility is sought given the circumstances of the topography of the land and the desire to achieve the parking required by the DCP.

The Council's position

1. The Council argued that the cl 4.6 request did not demonstrate that the proposed height breach met the objectives of the height standard or for development within the R2 zone, that compliance with the standard was unreasonable or unnecessary, or that there were sufficient EPGs to justify the variation sought. The Court could therefore not be satisfied that the development would be in the public interest.
2. In the expert Joint Reports (Exhibits 5 and 6), Ms Huckstepp argued that the character of The Boulevarde comprises steeply sloping sites. The appeal site is one of 4 properties on the lower (northern) where no on-site parking is provided and where pedestrian access only can be obtained via the lower footpath.
3. Even on some sites elsewhere in The Boulevarde, where off-street parking is provided, occupants are still required to traverse many stairs to their front doors being a topographical constraint of steeply sloping sites. In her view, given the steep topography in the locality, level and direct access from parking to a dwelling entry is not achievable on all sites.
4. She did not consider the proposed elevated driveway to be characteristic of that part of The Boulevarde in which the site is located. Reference was made to 34 The Boulevarde but that site contains a residential flat building within the R4 High Density zone and, in any event, the elevated bridge is no greater than 5m in length.
5. Ms Huckstepp referenced the Court's decision in Avakian. That was an appeal for the redevelopment of duplex dwellings into 3 attached dwellings at 10 The Boulevarde and was the decision referred to in Mr Avakian's objection.
6. The following are relevant extracts from that decision at [69] to [80]: "[69] In terms of streetscape, Mr Nash describes the proposal as modest, stepping down the site and being sensitive to the topography of the site and its constraints. He sees no problems with its presentation to The Boulevarde, nor when viewed from Tunks Park or the nearby suspension bridge. [70] Mr Chambers, however sees the presentation to The Boulevarde as unsatisfactory, principally because of the elevated deck, which he sees as being inconsistent with the form of neighbouring development. He also questions the 40 m length of the buildings which he states will have a significant visual impact. [71] On the issue of streetscape and visual impact, I prefer the evidence of Mr Chambers. The elevated deck will be dominant in The Boulevarde streetscape, despite the applicant's assertions that it will be lightweight and not bulky. Through necessity, it will have to be substantial enough to accommodate a number of vehicles moving on its surface. [72] I am less concerned over the impact from Tunks Park and the suspension bridge, particularly considering the unsympathetic existing dwelling which it seeks to replace and the general stepping down the site of the proposed dwellings. [73] DCP1 requires the provision of five carparking spaces for the proposal. The proposal originally provided four carparking spaces although this was reduced to three carparking spaces for the proposal before the Court. [74] The applicant provided a report from Mr Robert Varga a traffic engineer, who provided justification for the provision of three carparking spaces. His evidence was largely uncontested by the respondents, although Mr Chambers indicated that this difficiency reflects an overdevelopment of the site. [75] On this matter, I concur with the comments of Mr Chambers. [76] The retention of the existing trees was discussed at some length between Ms Sonter and the respondent's arborist, Mr Edgars Stubis. This discussion being principally based on the amount of affectation to the existing jacaranda near the front of the site and a Port Jackson Fig to the north of the site. [77] The general consensus was that both trees would survive the proposal, although in a reduced state than currently exists. As neither tree were identified as having any greater significance than contributing to the overall landscape context, I accept that the proposal is satisfactory in this regard. Conclusion [78] The proposal, in my view, seeks to develop the land beyond its capability. While "attached dwellings" are a permissible use within the zone, this does not necessarily mean that a site can adequately accommodate such a use. [79] The topographical features of the site would make any development difficult, particularly when it is proposed to develop the site for a higher density use than single dwellings. [80] This difficulty manifests itself in the need to provide roof top parking and the lack of acceptable private open space."
7. Similarly, the applicants are seeking to develop a site beyond its capability where topographical features make any development difficult, particularly when it is proposed to develop the site for a higher density use than a single dwelling. This difficulty manifests itself in the need to provide, amongst other things, roof top parking and access to it.
8. Recent applications for 10 The Boulevarde involved a reconfiguration to remove rooftop parking. Further, the Council has taken a consistent approach in resisting elevated structures within the R2 zone.
9. In addition, the maximum height of 8.5m is not an entitlement nor is developing the site to its 'full potential' (Rebel MH) particularly given it is clear that the DCP and LEP only allow dual occupancies in the R2 zone in certain circumstances given the nature of the controls that apply.
10. The Council's evidence and submissions were that the development would be inconsistent with two of the four objectives of the R2 zone and with all of the objectives of the height standard except objective (d).
11. In terms of the zone objectives, the third objective is not met as it only encourages development of sites, including for dual occupancies, if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area. What is proposed compromises amenity due to the particular nature and character of the area.
12. Whilst there is no issue with the ability of people walking along the lower footpath to be able to go under the bridging element, there was concern with the impact on the unique character and experience of using this footpath with its low sandstone wall and vegetated embankment, which all residents spoke highly of.
13. In this regard, there is currently a high level of amenity for the 4 residential properties that adjoin the lower footpath. The cl 4.6 request is deficient in concluding that there is no adverse impact when it does not deal with the specific impact of the development on this amenity. For example, a vegetated part of the embankment is replaced with a concrete structure. Therefore, the fourth zone objective is also not met as the use and height proposed would not ensure that a high level of residential amenity is maintained for neighbours. The amenity referenced is not just for the applicants.
14. In terms of objective (a) of the height standard, the proposed 'stepping' in the development referred to by Mr Lovell occurs above the height control and on this basis is not supported. Further, a 4 level structure is uncharacteristic of the locality. Whilst accepting that 2-8 The Boulevarde may be underdeveloped, recent approved and constructed developments are only 2-3 storeys and follow the existing steeply sloping topography such as at No.'s 10 and 14.
15. In terms of objective (b), the works must impact views even if obliquely. What constitutes a view is a fact. The additional height from enclosing part of the roof level results in further breaches of the height control and will further reduce views from the public footpath on the upper level of The Boulevarde. These views include district outlook to the bushland in Tunks Park.
16. The cl 4.6 request to support the original plans included a photomontage to demonstrate the visual impacts of the development as viewed from The Boulevarde (reproduced in Exhibit 6 p3). This photomontage demonstrates the existing extensive and landscaped outlook from the upper footpath and the extent of the visual impact of the new garage relative to the existing approval. The photomontage demonstrates that the widened garage reduces the views available from this footpath.
17. If the proposed height was repeated in the future in the redevelopment of adjoining properties, these developments would collectively further reduce the outlook and views from this public footpath and detract from the character of the locality. The replacement of this outlook with roof structures involving a breach of the building height control would be inconsistent with the objective.
18. It was also not demonstrated that objective (c), requiring maintenance of solar access, would be achieved as the additional structures contribute to additional overshadowing including of adjoining properties particularly if they were re-developed in accordance with the controls. The plans show increased overshadowing and therefore decreased solar access to the street including the road reserve and public footpath areas. Mr Lovell's assertion that the solar access only needs to be retained in terms of adjoining development is not correct. Objective (c) is to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development, none of which is achieved. It is not about minimising overshadowing it is about maintaining the solar access that exists.
19. Whilst solar access was not a Council contention, residents raised this concern and the shadow diagrams speak for themselves. In terms of reduced solar access to the street, Mr Lovell confirmed there will be additional shading but dismissed this as being of no consequence. However, again, that is not what is required of objective (c).
20. Objective (e) requires compatibility between developments, particularly at zone boundaries. In this instance, the site at the rear adjoins the E2 Environmental Conservation zone which comprises bushland. The maximum height is at the rear resulting in a 4 level structure which will have an overbearing impact on the E2 zone and will be an intrusive built form unduly dominating this bushland interface. The development would be viewed from various locations within the local government area across the bushland, including from the suspension bridge, and also from adjoining properties. The building height is exacerbated by the fact that no residential structures are permitted in the E2 zone. The increased height will therefore not be in visual harmony with the adjoining E2 zone presenting as a full storey and dominating this interface. It will be visible from the suspension bridge. What you will see will be parking structures on a roof even if only partially.
21. Maintaining a compliant building height at the rear of the building which follows the topography is critical to ensuring compatibility at the zone interface as is transitional stepping reflecting surrounding characteristic development.
22. In terms of objective (f), recent approvals in the vicinity are for development that is generally 2 and 3 storeys in height stepping down with the topography, particularly at the rear interface with the E2 zone. The proposed development does not reflect this form. It therefore does not meet the objective of being development of an appropriate scale that is in accordance with, and promotes, the existing or desired future character of the area.
23. Whilst accepting that flat roofs are characteristic of approved developments in the locality, including on the site, the use of the proposed roof level is not. It will contain 4 car parking spaces, 2 within a double garage and 2 open, a double garage door on the street front elevation, a double lift core, and the raising of the parapet height to accommodate vehicle safety rails. This is a roof form and use not characteristic of, nor desired in, the locality.
24. Further if the proposed roof form and use is repeated as part of the redevelopment of adjoining properties at 2, 4 and 8 The Boulevarde, as was agreed by both the residents and experts would be likely, this built form outcome would detract from the local character, particularly given the likely visibility of roof level parking from surrounding public places and properties, contrary to DCP provisions.
25. The structures proposed within the south eastern corner with no recess from the levels below would result in overbearing height and scale particularly when viewed from the lower footpath. The lack of recess for this upper level was considered uncharacteristic within the streetscape and overbearing.
26. Mr Staunton submitted that the proposed elevated bridge could not be justified, as was sought in the cl 4.6, by comparison with an older elevated bridge that exists in the R4 zone to the east of the site. The lower footpath in the location of that bridge has a completely different environment. There are high retaining walls on either side of the footpath and no landscaped embankment in the adjoining road reserve. All that bridge demonstrates is the validity of residents' concerns in terms of the appearance, cobwebs, maintenance issues and generally poor amenity associated with such structures.
27. Irrespective of whether equitable access is provided from the proposed rooftop to within the approved dwellings, once within these dwellings, access is only provided via steps to the adjoining footpath. Therefore, the design of the approved dual occupancy does not maximise level or direct access from the footpath to either dwelling, as distinct from, say, 4 The Boulevarde where there is ramped access from the footpath to the front entry.
28. The cl 4.6 request states that the applicant(s) relies on the first test in Wehbe, namely that the development meets the objectives of the height standard. However, this first test relates to the whole of the development not simply that part of the development which causes the breach. Therefore, consideration must be had to the bridging structure which services the area the subject of the height breach. This bridge would not eventuate if there was no development breaching the height to accommodate parking structures, as is proposed.
29. In response to the local context, buildings need to be designed to respect existing topography and relate to the rhythm and pattern of characteristic buildings in the prevailing streetscape so that no one building or feature dominates.
30. The proposed development is not responsive to its local context or topography as it does not relate to the rhythm and pattern of characteristic buildings in the prevailing streetscape, that being the immediately adjacent streetscape, where bridges and rooftop structures are not characteristic and where a new bridge would dominate.
31. This would be exacerbated by the proposed non-compliant eastern side setback, dealt with in more detail shortly, but where there are DCP setback objectives to reinforce the characteristic patterns of setbacks within the street and to control the bulk and scale of buildings. Whilst recognising that adjoining sites are likely to be redeveloped and are currently underdeveloped, regard must also be had to the existing character and the amenity of these adjoining dwellings that exist today. What is proposed in bulk, scale and height is well in excess of the form and height of development adjoining.
32. What is proposed also does not meet the DCP objectives for massing and scale at section 1.4.7 or of 1.4.8 for built from and character which are to ensure that the size of new buildings are consistent with the surrounding, characteristic buildings and are not significantly larger than such buildings and also to ensure the design of new buildings reflects and reinforces, or is complimentary to, the existing character of the locality.
33. As in Wehbe at [77], there is nothing unreasonable or unnecessary about requiring the development to remain at the approved height, which has already received the benefit of additional height. Not requiring on-site parking has already been agreed by the Council and does not restrict the use of the land for dual occupancy, which has already been approved. All relevant issues, including the inability to provide off-street parking, were considered in approving the original application.
34. It is a consequence of the nature of the site not to be able to provide vehicular access to it and the residents that purchased and live adjoining in the same circumstance accept this and support that outcome. This includes Mrs Goldfinch who, at the age of 93, is still prepared to use stairs and the lower footpath to gain access to and from The Boulevarde rather than having off-street car access.
35. On merit, given the character in this location of The Boulevarde it is questionable as to whether even an 8.5m height is acceptable to the street. Yet the Council has already enabled a breach and approved the dual occupancy. This was because a portion of the structure was under and a portion over the height control. Now what is proposed is almost all of the new development above the height control. This fails the unreasonable and unnecessary test.
36. In terms of the EPGs claimed in the cl 4.6 request, Mr Staunton submitted that: 1. EPG1 is a fact not an EPG; 2. EPG2 is illusory but there is already a consent without such access; 3. In terms of EPG3, the approved dwellings have this form of access now objected to and it is not uncommon given the circumstances, character and topography of the sites. To get access otherwise, the standard must be breached; 4. EPG 4, that what is proposed is good design, is disputed. What has been approved constitutes that good design; 5. In terms of character, EPG5 is plainly wrong on the facts of what it is. As was observed at the site and across the road, there is nothing of this nature with an elevated bridge to an open parking area and open roof deck in the street. If other development proceeds in a similar vein and rely on this approval, it will change the character to this outcome; 6. Contrary to claimed EPG6, there will be additional overshadowing of the road reserve and the cl 4.6 does not deal with the impacts of providing this structure on the amenity of the streetscape nor on the pleasant experience that all objectors referred to; 7. The Council does not agree with EPG7 as car parking on the rooftop is a foreign element which will be visible from adjoining properties and the public domain; 8. EPG 8 is questionable given structures such as safety rails will impact on the streetscape contrary to DCP requirements. There is a loss of a positive streetscape without overhead bridges potentially repeated four times in the future if adjoining lots similarly redevelop. 9. EPG9 may be right but providing private parking on this site is not sufficient to justify the impacts. 10. EPG 10 is not an EPG it is a separate consideration. 11. EPG 11 is the same as the unreasonable and unnecessary argument which is wrong in any event as what is proposed is antipathetic to the objectives which are therefore not achieved.
37. The public interest consideration includes the precedent concern as it is highly likely that others will follow seeking similar approvals on adjoining properties.
38. In summary, Mr Staunton submitted, one should not look at the whole of the street as you otherwise would never look at a special part of a street and its circumstances. This part of The Boulevarde is unique along with parts of the street opposite. It is just not achievable to have parking on such sites. This was recognised by the Court in Avakian in rejecting a similar proposal and the Council has consistently prevented such structures. The applicants cannot rely on an existing bridge in the R4 zone which in any event was approved under previous controls. Finally, Mr Lovell cannot assume that the lower footpath is little used given adjoining residents indicated they prefer to use this footpath over the upper one and that the public use it regularly.
39. If I supported the development but only with the deletion of 2 spaces, the Council questioned what would happen to the balance of the rooftop area which would need to be redesigned. It was not appropriate to use an 'Amber light' approach in such circumstances.

Dwelling appearance

1. Relevantly for this appeal, cl 6.6(1)(a) of the LEP applies and states: (1) Development consent must not be granted for the erection of a dual occupancy unless - (a) the form of the building will appear as a dwelling house, …
2. The Council had accepted that the approved dual occupancy over 2-3 levels adequately addressed the requirements of cl 6.6 as it is still appeared as a dwelling house. However, the proposed rooftop parking for 4 cars at a fourth level with turning areas and associated structures, including an elevated access bridge, modifies the approved dual occupancy to the extent that it no longer meets the requirements of cl 6.6 as it would fail to appear as a dwelling house. Accordingly, there was no power for consent to be granted.
3. In considering whether or not the development as now proposed appeared as a dwelling house, Ms Huckstepp noted the DCP controls relating to dwellings. These include a maximum of 2 parking spaces for dwelling houses with 3 or more bedrooms. However, a dual occupancy allows 4 parking spaces, distinguishing it from a dwelling house in terms of this extent of parking and how it might be accommodated.
4. In her view, the proposed development fails to meet the requirement at cl 6.6 given the inclusion of the following elements and their visibility: 1. The elevated driveway and double garage door on the street front at the southern roof end. 2. Rooftop parking for an additional 2 vehicles at the northern roof end. 3. Open rooftop driveway and manoeuvering areas. 4. Extension of the approved roof parapet to incorporate vehicle safety rails. 5. The provision of a dual lift core with adjacent pedestrian entries.
5. She argued that these features would be visible from a number of locations including from surrounding properties and collectively indicate that the building provides for a form of development other than a dwelling house. Setting aside the non-compliance with the height control, in her view it is not the size of the building or the configuration of the lower levels in this instance that results in the building being inconsistent with cl 6.6. Rather it is the design and use of the rooftop area for 4 cars and associated structures.
6. Mr Lovell referenced the definition in the dictionary of the LEP of a dwelling house, being a building containing only one dwelling. He queried that the proposed parking facilities had the effect of changing the form, appearance or characterisation of the approved dual occupancy development from that which appears as a dwelling house to another form of residential accommodation.
7. In his view, size is not indicative of whether a building has the form of a dwelling house or some alternate form of residential development. A dwelling house can be relatively large yet still clearly retain a dwelling house form. Conversely, other forms of residential accommodation, including dual occupancies, can be relatively small but still clearly have an alternate form.
8. Mr Lovell cited the dual occupancy at 7A The Boulevarde as an example of a development with features that appear inconsistent with the form of a dwelling house. This differentiates it from what is proposed in the application before the Court, including that it appears as two dwellings.
9. By contrast, the proposed parking facilities comprise a double garage with capacity for further parking within an open stand area. The open stand parking spaces will have very limited visibility and, to the extent that they may be visible, Mr Lovell did not consider the appearance of additional vehicles or safety rails would suggest the building has the form of anything other than a dwelling house.
10. Further, the lift cores are located together and, in his opinion, it would not be possible to visually discern from the structure that there were two lifts.
11. Ms Huckstepp noted that 7A The Boulevearde was approved under the previous LEP which did not contain cl 6.6 and in any case it did not have roof top garages, with only 2 on-site parking spaces in ground level garages.
12. In submissions, Mr Staunton re-iterated that the portion of the structure 12.1m in height takes the form of an additional storey which is not characteristic of dwelling houses in the area. Further, it is not helpful for the Court to be directed to look at other developments, as Mr Lovell suggests, as the clause relates to this building on this site appearing as a dwelling house form. What is proposed will not result in a development that appears as a dwelling house and Mr Lovell did not provide evidence to demonstrate that it did.
13. Further, Mr Lovell accepted that the additional storey would be visible but argued that this visibility would be limited. That is irrelevant to the fact that it would still not appear as a dwelling house from some points. Interpretation of cl 6.6 is that the dual occupancy should be in the form of a dwelling house. It does not distinguish where that form can be viewed from. It could be viewed from anywhere such as the suspension bridge. From that bridge what will be visible will not appear as a dwelling house.
14. It is not only rooftop parking that results in the proposed development not appearing as a dwelling house, it is the fact that there are two entries to two lifts. The proposed structures have the effect of changing the approved dual occupancy to one which is now more visible and appears as more than one dwelling.
15. Ms Reid submitted that, in terms of cl 6.6, whilst I must form an opinion that it will appear as a dwelling house, there is no guidance in this regard. Mr Lovell had tried to identify what the elements of a dwelling house are and what they are not. This is why he referenced 7A The Boulevarde. What is proposed does not present as two dwellings and it is inappropriate to apply dwelling house controls for a dual occupancy as the Council appeared to be doing in referencing the parking provisions. From The Boulevarde, the development will still appear as a dwelling house with an elevated double garage. Further, the Council did not identify where the 4 spaces would be visible and, if I was concerned with that element, I could limit the approval to 2 spaces.
16. Finally, the Council did not say what the characteristics of a dwelling house are but focused on the negatives of what is proposed. There is nothing of this development that would lead me to conclude that it is not a dwelling house.

The eastern setback

1. The DCP objectives for setbacks and separation at section 1.4.6 are as follows: "O1 To reinforce the characteristic pattern of setbacks and building orientation within the street. O2 To control the bulk and scale of buildings. O3 To provide separation between buildings. O4 To preserve the amenity of existing dwellings and provide amenity to new dwellings in terms of shadowing, privacy, views, ventilation and solar access."
2. The amendments to the application raised a new Council concern that the eastern wall of the roof level failed to comply with section 1.4.6 which requires a 2.5m side setback for a third storey or building over 7m in height. The wall height is up to 9m yet an eastern side setback of only 1.5m is proposed.
3. The Council contended that this would result in unacceptable and excessive bulk and scale and inadequate separation from the eastern boundary. This would be exacerbated if the adjoining building at 8 The Boulevarde was re-developed with a similar building envelope given the decreased separation.
4. There was therefore also a concern that approval would set a precedent for 1.5m setbacks for upper level elements which would result in additional amenity impacts in terms of solar access, the streetscape and loss of views from The Boulevarde.
5. Mr Lovell argued that the eastern setback reflected the approved setback at the lower levels below. Further the length of the wall proposed at this level is only some 11.8% of the total length of the common boundary with No. 8.
6. In his opinion, the proposed setback was not inconsistent with the objectives of the DCP control given it is consistent with the levels below and does not significantly contribute to the overall bulk and scale of the building as a whole. He considered that the proposed setback would not impact the amenity of the surrounding properties to the extent of being determinative of the application. Further, it would not introduce a form of development that is inconsistent with the recent approvals in the locality which typically provide garage structures extending across the site frontage and orientated towards the street.
7. In his view, the 'relatively minor' non-compliance primarily arises due to the topography of this site and in particular the level of the road carriageway relative to the level of the main portion of the site.

Precedent

1. As has already been outlined, the Council was concerned that approval to the proposal would create an undesirable precedent in that it would result in the properties at 2, 4 and 8 The Boulevarde applying to construct similar structures, further impacting the amenity of the area.
2. Specifically, Ms Huckstepp opined that, the cumulative impact of this would be the further loss of the tree lined vista and canopy trees within the landscaped embankment adjoining the lower footpath, and therefore a reduction in the amenity of this area, a concern raised by all objectors to the development.
3. The Council referenced the decision of the Court in Avakian where the proposal involved an elevated driveway above the same lower footpath. As indicated, Commissioner Brown found that proposal sought to develop the land beyond its capability where the site's topographical features would make any development difficult, particularly when developed for a higher density than a single dwelling. This difficulty resulted in the need to provide elements such as rooftop parking.
4. The Council argued that a number of observations by Commissioner Brown remain relevant. Firstly, as with the current site, there is no provision for off-street parking for the existing dwelling(s) on the site. Secondly, the site is located in a residential precinct with a mixture of dwellings. Finally, many residences on both sides of The Boulevarde, with the exception of the residential flat buildings, do not have off-street car parking.
5. Approval of the development would therefore create an undesirable precedent which would not reflect the site constraints or the sensitivity of the adjoining land.
6. In summary, Mr Staunton submitted that the precedent concern is about having more driveways and amenity impacts for the lower footpath with the inability to stop others in almost identical situations immediately adjoining from seeking a similar development. Precedent is therefore a relevant consideration in this appeal.
7. In contrast, Mr Lovell did not consider it problematic if the properties at 2, 4 and 8 The Boulevarde sought to construct similar driveway, parking and pedestrian facilities as there is no reason why appropriately designed structures could not be accommodated which would be similarly acceptable.
8. Whilst such facilities might change the visual context to some extent, he would not regard car parking facilities and driveways of the general type proposed to be unacceptable in terms of their contribution to the streetscape.
9. In summary, in Mr Lovell's words (Exhibit 5, page 16): "the provision of appropriately designed car parking and associated facilities could potentially reduce the demand for on-street parking, address the obvious pedestrian constraints, contribute appropriately to the streetscape and reasonably maintain the amenity of surrounding properties".
10. Finally, Ms Reid submitted that, in terms of precedent, there are constraints for the development of each site which may mean it is not possible for them to re-develop. Applications for their redevelopment will be assessed on their merits.

The Council's position

1. In terms of merit arguments, there was much overlap with the factors considered: in dealing with the cl 4.6 request; in considering precedent and the eastern side setback non-compliance; and in terms of amenity impacts on adjoining properties and on the upper and lower footpaths.
2. In summary, the Council had supported approval of the dual occupancy through the s 34 agreement with no on-site parking. This was having regard to the parking requirements of the DCP and specifically provision P15 at section 1.4.5 that, where there is no parking on the original lot and on-site parking is not characteristic, do not introduce vehicular access from the street.
3. In this regard, car parking is not provided to the existing dwelling on the site nor to adjoining sites at 2, 4 and 8 The Boulevarde on the lower, northern side of the street. Similarly, on the opposite higher (southern) side at 17-21A The Boulevarde, there is no on-site parking with access confined to pedestrian access from an elevated footpath. These factors collectively indicate that, where dictated by steeply sloping topography, for some sites in The Boulevarde which are developed with setbacks away from the road, car parking is not characteristic nor required or desired.
4. As the Council had already argued, the elevated bridge element would be an intrusive and overbearing structure in the street and would compromise the streetscape in this section of The Boulevarde which is characterised by landscaping and natural features. It would be visible within The Boulevarde, from surrounding properties and from elsewhere in the public domain such as from the suspension bridge and residential properties to the north.
5. Further, the amenity of the lower footpath would be reduced by the overbearing bridge structure and reduction in landscaped setting. The footpath's embankment provides a tree-lined vista within the streetscape reflecting a unique local character. This vista will be disrupted by the proposed access.
6. The proposed bridge would also likely obscure sightlines from both footpaths and not maximise views from these footpaths contrary to the provisions of the DCP, in particular P14 in section 1.5.4, that streetscapes, building forms and landscaped areas are not compromised through the provision of vehicle access. Further, the lower footpath provides the only means of access to the 3 adjoining dwellings whilst also being publicly accessible and utilised.
7. The rooftop parking structures are uncharacteristic in the vicinity of the site and would therefore detract from the amenity of the locality. Further, the non-compliant eastern setback did not meet DCP setback objectives of reinforcing the characteristic patterns of setbacks and buildings within the street.
8. Whilst recognising that adjoining sites are likely to be redeveloped and are currently underdeveloped, regard must be had to the existing character and amenity of these adjoining dwellings that exist today. What is proposed in bulk, scale and height well exceeds that of adjoining development, and consequently will have adverse impacts on that development.

The applicants' position

1. The applicants argued that the proposed parking facilities will be only partially visible from The Boulevarde, through landscaping, were not inappropriate, and would not disrupt any clearly established streetscape character or introduce a form of development incompatible with the existing pattern of development.
2. In terms of the vegetation removed from the embankment, whilst accepting that the area available to plant trees would be reduced, the driveway had been carefully positioned to retain the two important trees, being the jacarandas, and five replacement trees were proposed.
3. In terms of the amenity and utility of the lower footpath, the bridge had a clearance height of at least 4m so the use of this footpath by pedestrians would not be restricted. This use by other than immediately adjacent residents was questionable given its limited utility. The upper footpath was of better physical quality and more continuous.
4. Use of the elevated access bridge would be limited and the applicants were amenable to consider alternate materials for its construction providing it was safe and met design requirements. The lower footpath would receive adequate light irrespective of the nature of its construction.
5. Finally, on-site parking is characteristic of the area and is provided in the substantial majority of properties along both sides of The Boulevarde which have parking structures at or near street frontages. What is proposed would provide safe and secure access to the site to a much better standard than has been approved.

Findings

1. In determining this appeal, it is first necessary to deal with any pre-conditions to the granting of consent.
2. In this regard, those pre-conditions comprise meeting the tests set by cl 4.6 of the LEP to exceed the height control for the site established by cl 4.3, and demonstrating that the building form requirements of cl 6.6 are met.
3. In Initial Action, Preston CJ addressed the decision‑making approach required to be undertaken by the Court when assessing a requested non-compliance with a development standard reliant on cl 4.6 of a local environmental plan.
4. In this regard, in order to grant development consent for this development as it contravenes the height standard, I am required to be satisfied on all of the following, namely that: 1. The written request adequately demonstrates that compliance with the height standard is unreasonable or unnecessary in the circumstances of this proposed development (cl 4.6(3)(a) and cl 4.6(4)(a)(i)); and 2. The written request adequately establishes sufficient environmental planning grounds to justify contravening the height standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)); and 3. The proposed development will be in the public interest because it is consistent with the objectives of the height standard (cl 4.6(4)(a)(ii)); and 4. The proposed development will be in the public interest because it is consistent with the objectives of the R2 Low Density Residential zone (cl 4.6(4)(a)(ii)).
5. I am not satisfied in terms of these requirements.
6. Specifically, I am not satisfied that the written request adequately demonstrates that compliance with the height standard is unreasonable or unnecessary, nor that it adequately establishes sufficient environmental planning grounds to justify contravening the height standard. Nor am I satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the height standard or of the R2 zone.
7. I will deal, firstly, with the adequacy of the request to demonstrate that compliance with the height development standard is unreasonable or unnecessary in the circumstances of the proposed development. To demonstrate this, the request states that the applicant(s) rely on the 'first ground in Wehbe', namely that the development meets the objectives of the height standard.
8. There are 6 objectives of the height standard which need to be met and the request does not satisfy me that they are all met. This is largely for the reasons advanced by the Council and, in particular, the failure of the request to demonstrate that what is proposed accords with and promotes the character of the area (objective (f)).
9. The failure is that the request does not recognise the unique local character in which the site is situated and consequently the impact the development will have given the topographical circumstances that exist which create that character. Namely, that the site is one of 4 adjoining sites below street level whose dwellings are only accessed by a lower footpath and where, unlike much (but not all) of The Boulevarde, at grade off-street parking facilities cannot be provided due to the topographical constraints. This has resulted in a unique character in the immediate vicinity of these properties created by the adjoining lower footpath which is informally constructed, only accessible by stairs from the road and upper footpath, and separated from the road and upper footpath by a landscaped embankment dominated by trees.
10. Given the location of these 4 dwellings below the road and beneath the height limit, views are available from the upper footpath across the lower footpath and these sites through the landscaped embankment to Long Gully and Tunks Park beyond, and to the suspension bridge. These views and the amenity of the area are reasonably retained by the approved redevelopment of the site given the design and the lack of onsite parking or vehicular access.
11. The 4 properties therefore derive amenity from the absence of vehicles and vehicular access to them and from the resultant vistas and views available from and over an open landscaped footpath free of bridging structures in the immediate vicinity. This amenity is also experienced by pedestrians using this section of the lower and upper footpaths.
12. I accept the Council's evidence, and the concerns of adjacent residents, that this character will be adversely impacted, as will existing views and vistas, by the height and nature of the rooftop structures proposed and by the elevated access to this area. Objective (b) of the height standard is to promote the retention (and sharing) of views. The request did not demonstrate to my satisfaction how this would be reasonably achieved from either of the footpaths and I instead accept the Council's evidence that the existing available views will (and must) be reduced.
13. I also agree with the Council that, by proposing an additional level almost all of which breaches the height control, in the form proposed without any stepping, that this is not development on sloping land reflecting the natural gradient (objective (a) of the height standard) as the request purports. The proposed new structures do not step at all albeit the site does as does the approved development.
14. The suggestion in the request that solar access would be maintained to existing dwellings, public reserves and streets and would be promoted for future development, as required by objective (c) of the height standard, is not supported by the applicants' own evidence. The proposed structures will reduce the solar access to the public reserve, and therefore could not be said to maintain such access as the objective requires. Nor do they promote solar access for future development on adjoining properties with additional overshadowing to portions of these properties occurring as a result of the breaching structures.
15. I am also not satisfied that the request demonstrates that what is proposed will be compatible with the E2 zone which adjoins the site to the rear (objective (e)). Based on the site view and evidence of Ms Huckstepp, the E2 zone contains bushland where dwellings are not permitted. Any development adjoining it should not dominate that bushland or views of or across it from the public domain, such as from the suspension bridge. What is proposed will be more dominant at the interface with the E2 zone than other adjoining development in the R2 zone.
16. This is the relevant consideration not, as the request largely relies on, the backdrop created by the interface of the E2 zone and R4 zone to the east, where development forms are denser and more diverse.
17. Further, objective (e) requires compatibility between development, not just at zone boundaries. In this regard, the request fails to demonstrate how what is proposed is compatible with adjoining development which is substantially lower than the height of development proposed, and would continue to be so even if these properties were redeveloped in accordance with the controls.
18. In summary, the request fails to acknowledge the different character in different parts of The Boulevarde which has resulted from differing topography and zones and has led to the unique character of the area in which the site is situated.
19. Whilst relying on DCP provisions which support on-site parking, the request does not address the specific DCP controls which recognise that some sites, such as this site, through such topographical constraints, cannot and should not have off-street parking. In this regard, the Council's evidence was that the dual occupancy was approved on the site in the absence of parking given these very controls and the need to preserve the local character of the low density area in which the site is situated.
20. Contrary to the claim in the request, the development proposed would not promote but rather adversely alter this character. Approval to it would establish a reasonable presumption of precedence to facilitate adjoining properties to redevelop in a similar manner, as was acknowledged (and in fact promoted) by the request, irrevocably changing that character.
21. I will deal now with whether or not I am satisfied that the written request adequately establishes sufficient environmental planning grounds (or EPGs) to justify contravening the height standard as is required by cl 4.6(3)(b) and cl 4.6(4)(a)(i).
22. In this regard, spread across several of the 11 EPGs is the argument that the development would facilitate the provision of off-street parking for the benefit of the future occupants of the dual occupancy dwellings, including providing safe and equitable access to those dwellings from cars via lifts. Further, that it would provide off-street parking reducing demand for on-street parking. I am satisfied that these are EPGs which could support the breach proposed.
23. However, I consider that these are the only EPGs that could be considered as such in the request and they are insufficient grounds to warrant the height breach sought.
24. I also do not accept that they are necessarily valid EPGs.
25. Firstly, there was no evidence in the request or otherwise that there is a need to provide off-street parking to offset demand for on-street parking in The Boulevarde.
26. Secondly, the request fails to address the lack of equitable access for any residents seeking to live in either of the approved dual occupancy dwellings, other than by car. There is no equitable pedestrian access to the lower footpath as only stairs are provided and should, for any reason, the lift or car access be unavailable there would be no ability for disabled residents to access or leave the site. This is distinguishable from an adjoining property where ramp access from the dwelling to the lower footpath is provided. Further, it does not address equitable access for visitors who do not have parking at the rooftop and who cannot otherwise therefore access the approved dwellings.
27. Further, and contrary to statements in the request, in order to achieve equitable access and reduce demand for on-street parking, there are adverse environmental planning outcomes, namely the adverse changes I have already referred to: to the local character including the precedent it would establish for the erection of other similar elevated structures to rooftop parking spaces on adjoining land all of which would likely breach the height control and none of which would contribute positively to the amenity or character of the local area.
28. I agree with the submissions of the Council that the other claimed EPGs are either not in fact environmental planning grounds or do not justify the breach.
29. For instance, it is irrelevant that there are no changes proposed to the existing ground surface or the topographical features of the site (EPG1 in the request). There was also no evidence that compliance would result in a poorer environmental outcome simply because there is no vehicular access to the site (EPG2). Occupants may have the benefit of access by lifts from car parking but would still be required to use many internal and external stairs if they chose to be occupants of either of the approved dual occupancy dwellings (EPG3).
30. There was simply no evidence that what is proposed constitutes good design (EPG4). There is nothing particularly attractive or reflective of good design in the form of rooftop structures proposed. At-grade driveways and off-street parking are not a characteristic element of all of The Boulevarde (EPG5), and specifically not in the area in which the development is proposed, and there was no evidence that they would not be unreasonable impacts on the amenity of the surrounding land in terms of overshadowing (EPG6).
31. Further, contrary to claimed EPG7, the scale of the development when viewed from the public domain (particularly from the suspension bridge and footpaths) and from adjoining properties will be antipathetic to existing buildings in the immediate locality and will therefore be visually jarring.
32. The claim that the development is consistent with the objectives of the zone and the standard (EPGs 10 and 11) are not EPGs but statements that are not borne out by the evidence. In any event, they are separate tests to be met. They do not justify the breach as the written request claims.
33. In this regard, and finally, I turn to whether or not the development would be in the public interest because it is consistent with the objectives of the (height) standard and of the (R2) zone: cl 4.6(4)(a)(ii).
34. I have already indicated why I am not satisfied that the cl 4.6 request demonstrates that 5 of the 6 objectives of the height standard are met.
35. In particular, the development does not meet objective (f) of the height standard which is to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, the area. The area in this instance is distinguishable by properties on the lower side of the road adjoined by a landscaped and informal footpath used by residents and visitors alike where overhead bridges and rooftop parking structures do not exist.
36. The scale of development proposed does not promote and will detrimentally change this local character in a manner opposed by the residents who live there. It was agreed by the parties that, if approved, a precedent would be established for the other 3 adjoining properties to seek similar structures. This would unavoidably and adversely change the local character.
37. I therefore do not accept the applicants' argument that the character of the area should be considered as being the diverse character of all of The Boulevarde. There are difference zonings in the street and the topographical variations of properties in it reflect the ability or otherwise for properties to have off-street parking at-grade.
38. For similar reasons to those given in considering the height standard objectives, I agree with the Council that the proposed development does not meet the third and fourth objectives of the R2 zone. It would compromise the amenity of the surrounding area and it does not ensure that a high level of residential amenity will be achieved and maintained for adjoining residential properties, either in their current form or should they be re-developed in the future.
39. Specifically, the objectives of the R2 zone encourage development of sites for low density housing, including dual occupancies, only if such development does not compromise the amenity of the surrounding area and ensure that a high level of residential amenity is achieved and maintained. Whilst a higher level of amenity may be achieved for the future residents of the dual occupancy, this would be at the expense of the existing residential amenity of the remaining residents who adjoin the lower footpath in this section of the street.
40. In summary, I am therefore not satisfied, as I am required to be under cl 4.6(4)(a)(ii), that the proposed development will be in the public interest.
41. In this regard, my decision reflects the findings of the Court in 1999 in Avakian for a neighbouring site, namely that the topographical constraints and context of the site are such as to restrict the development able to be accommodated, and what is proposed is overdevelopment beyond the site's capability. This manifests itself in, in essence, undesirable elements such as rooftop parking and access bridges which would have adverse amenity impacts on the locality and be dominant features in this part of The Boulevarde.
42. These undesirable elements would exist whether 2, 3 or 4 car parking spaces are provided.
43. For all of these reasons, and noting the objections of neighbouring residents to the height breach proposed, I believe that there is public benefit in maintaining the height standard and not to exceed it in this instance. In any event, as I have found that the objectives of the zone and standard are not met, the development cannot be in the public interest.
44. As I am not satisfied that the requirements of cl 4.6 are met, I also cannot approve the development given the breach of height.
45. However, even if I am not correct that the cl 4.6 should not be upheld, on merit grounds I would not support the application for the same reasons that I do not consider that the objectives of the height standard or zone are met.
46. In addition, I do not accept that there is any justification for the reduced eastern setback proposed having regard to the height, bulk and scale of the development and the impact it could have on the existing and future development at 8 The Boulevarde.
47. Given my findings, it is not necessary for me to address the other jurisdictional issue in terms of the requirements of cl 6.6 of the LEP.

Orders

1. The Court makes the following orders: 1. The applicants are granted leave to rely on amended plans. 2. The clause 4.6 request for a variation to the height standard is not upheld. 3. The appeal is dismissed. 4. Development consent to Development Application No. 334/18 for the construction of an elevated vehicular driveway and car parking including lift lobbies on the rooftop above an approved dual occupancy at 6 The Boulevarde, Cammeray is refused. 5. The exhibits are returned other than Exhibits 1, A and B.

---

Jenny Smithson Commissioner of the Court

---

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: 26 November 2019