Edward Listin Properties Pty Ltd v North Sydney Council

In the Court's opinion it is not simply a case of demonstrating, as the applicant seeks to do, that strict compliance with the controls contemplated in the draft LEP could result in a more intense development. If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected.

Mr Nangle, as the applicant's consultant town planner, categorises the council's contention that the proposal is an overdevelopment as defying belief. This brave submission flies in the face of the breaches in the building height plane, the minimum size of the lots to be created (irrespective of questions of compliance with the development standards), the narrow separation between the buildings at the front, the struggle to comply with the council's expectations for landscaping and the use of excavation in an attempt to improve the relationships between the proposed buildings and existing development adjoining.

Mr Green seeks to justify the provision for landscaping by asserting that overall 69 per cent of the site is given over to planting. Mr Green contends that the 69 per cent average is relevant to demonstrate that the lot boundaries could have been adjusted to comply with the LEP control. The inability or unwillingness of the applicant to adjust the boundaries merely reflects, once again, the constraints imposed by overdevelopment. An assessment on this basis would totally ignore the individual requirements of each dwelling.

The Court agrees with Mr Parry that at least three of the proposed 10 dwellings will be deficient in terms of landscaping. It is simply not appropriate to rely on provision of landscaping in pathways to be used for the rear allotments as a contribution to the amenity of the front allotments.

The Court agrees with the respondent that notwithstanding existing anomalies, the future character of the area should properly be regarded as dominated by detached dwellings. The Court agrees that in order to achieve a form of development which appears as a dwelling house, as the specific objective of the duplex controls in the draft LEP contemplate, a redesign is necessary. Each of the semi-detached buildings with separate entrances built at different levels will not bear sufficient relationship to the appearance of three detached separate dwellings.

In general, the scheme of the development suggests a monocular objective to achieve the greatest amount of development on the site without paying due respect to internal and external amenity questions which inevitably arise when medium density housing is proposed on a site in a locality which has been adapted in the past for single detached dwellings.

The attempt to achieve a greater yield from the land by placing the parking underground has the consequence that the area permitted to be covered by the footprint of buildings has increased, thereby placing a significant strain on the capacity of the site to provide satisfactory amenity for future occupants.

On the last occasion I concluded that the development in its then form was either an overdevelopment or had been designed without sufficient consideration or recognition of the amenity of individual properties which caused adverse impact on internal privacy, solar access and a combination of other impacts on the amenity of adjoining properties which justified refusal of consent.

The attempt to comply with the building height plane by excavating into the site and reducing the upper form of the buildings has done little if anything in terms of reducing the occupation of the site by buildings or expanding the areas available for landscaping.

The site remains overcrowded. In the light of the revised approach through the provisions of the pending draft LEP, it is not appropriate in my opinion to allow a development which scarcely complies with the provisions of the existing LEP in some respects and still contains non-compliances in other respects.

The applicant must either be satisfied with a lower yield from the site or attempt to redesign a proposal which is more consistent with the overall objectives reflected by LEP 1989 and the draft LEP.

The development application is determined by refusal of consent.

The formal orders of the Court are:- 1. The appeal is dismissed. 2. Development application No 671/00 is determined by refusal of consent. 3. The exhibits may be returned.

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