Elias v Penrith City Council

Environmental Planning and Assessment Act 1979

1. The objects of the EP&A Act are as follows: (a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources, (b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment, (c) to promote the orderly and economic use and development of land, (d) to promote the delivery and maintenance of affordable housing, (e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats, (f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage), (g) to promote good design and amenity of the built environment, (h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants, (i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State, (j) to provide increased opportunity for community participation in environmental planning and assessment.
2. Section 4.15(1) of the EP&A Act provides as follows: Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
3. Section 4.16 of the EP&A Act concerns the determination of development applications, and relevantly in the current appeal, s 4.16(3) provides: (3) "Deferred commencement" consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.

Penrith Local Environmental Plan 2010

1. Development on the Subject Site is subject to the provisions of PLEP. The following provisions of PLEP are of particular relevance in this appeal: 1. Clause 2.1, which establishes land use zones within the area to which the plan applies as provided in cl 2.2 of PLEP. 2. The Subject Site is zoned R4 High Density Residential, and under the provisions of cl 2.3 of PLEP, the objectives of this zone are to: • provide for the housing needs of the community within a high density residential environment. • provide a variety of housing types within a high density residential environment. • enable other land uses that provide facilities or services to meet the day to day needs of residents. • ensure that a high level of residential amenity is achieved and maintained. • encourage the provision of affordable housing. • ensure that development reflects the desired future character and dwelling densities of the area.

State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development

1. State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP65) aims to improve the design quality of residential flat development in New South Wales, and recognises that the design quality of residential flat development is of significance for environmental planning for the State due to the economic, environmental, cultural and social benefits of high quality design.
2. SEPP65 applies to residential flat buildings, shop top housing and mixed use developments with a residential component, if the building has 3 or more storeys and contains 4 or more dwellings.
3. SEPP65 sets a consistent policy direction for residential flat development in New South Wales and provides a uniform State-wide framework for more detailed planning for residential flat development. It has a statutory effect on development and as a consequence may supplement the provisions of state environmental planning policies, local environmental plans and development control plans.
4. The policy came into effect on 17 July 2015 and applies to development applications for residential flat development made after that date. It is applicable to the development application that is the subject of the current appeal.
5. SEPP65 has a close and integrated relationship with the Apartment Design Guide (ADG) published by the NSW Department of Planning and Environment (see below at [29]).
6. Clause 28 of SEPP65 concerns the determination of development applications, and provides as follows: (1) After receipt of a development application for consent to carry out development to which this Policy applies (other than State significant development) and before it determines the application, the consent authority is to refer the application to the relevant design review panel (if any) for advice concerning the design quality of the development. (2) In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration): (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide. (3) However, if the relevant design review panel fails to inform the consent authority of its advice concerning the design quality of the development to which this Policy applies within 14 days after its first meeting to deal with the application concerned, the consent authority may determine the development application without considering any such advice and a development consent so granted is not voidable on that ground. (4) The 14-day period referred to in subclause (3) does not increase or otherwise affect the period within which a development application is required to be determined by a consent authority. (5) A consent authority is not required to obtain the advice of a relevant design review panel under subclause (1) if an architectural design competition that is consistent with the Design Excellence Guidelines has been held in relation to the proposed development. (6) In this clause: architectural design competition means a competitive process conducted in accordance with the Design Excellence Guidelines. Design Excellence Guidelines means the Design Excellence Guidelines issued by the Director-General in October 2010. Note - A copy of the Guidelines is available on the website of the Department.
7. Clause 30 of SEPP65 concerns standards that cannot be used to refuse development consent for a Standards that cannot be used as grounds to refuse development consent or modification of development consent (1) If an application for the modification of a development consent or a development application for the carrying out of development to which this Policy applies satisfies the following design criteria, the consent authority must not refuse the application because of those matters: (a) if the car parking for the building will be equal to, or greater than, the recommended minimum amount of car parking specified in Part 3J of the Apartment Design Guide, (b) if the internal area for each apartment will be equal to, or greater than, the recommended minimum internal area for the relevant apartment type specified in Part 4D of the Apartment Design Guide, (c) if the ceiling heights for the building will be equal to, or greater than, the recommended minimum ceiling heights specified in Part 4C of the Apartment Design Guide. Note - The Building Code of Australia specifies minimum ceiling heights for residential flat buildings. (2) Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to: (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria. (3) To remove doubt: (a) subclause (1) does not prevent a consent authority from refusing an application in relation to a matter not specified in subclause (1), including on the basis of subclause (2), and (b) the design criteria specified in subclause (1) are standards to which section 79C (2) of the Act applies. Note - The provisions of this clause do not impose any limitations on the grounds on which a consent authority may grant or modify development consent.
8. Schedule 1 of SEPP65 provides the nine design quality principles referred to within cl 28(2)(b) of SEPP65, and of which the following are of particular relevance in this appeal: Principle 1: Context and neighbourhood character Good design responds and contributes to its context. Context is the key natural and built features of an area, their relationship and the character they create when combined. It also includes social, economic, health and environmental conditions. Responding to context involves identifying the desirable elements of an area's existing or future character. Well designed buildings respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood. Consideration of local context is important for all sites, including sites in established areas, those undergoing change or identified for change. Principle 2: Built form and scale Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings. Good design also achieves an appropriate built form for a site and the building's purpose in terms of building alignments, proportions, building type, articulation and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook. Principle 4: Sustainability Good design combines positive environmental, social and economic outcomes. Good sustainable design includes use of natural cross ventilation and sunlight for the amenity and liveability of residents and passive thermal design for ventilation, heating and cooling reducing reliance on technology and operation costs. Other elements include recycling and reuse of materials and waste, use of sustainable materials and deep soil zones for groundwater recharge and vegetation. Principle 5: Landscape Good design recognises that together landscape and buildings operate as an integrated and sustainable system, resulting in attractive developments with good amenity. A positive image and contextual fit of well designed developments is achieved by contributing to the landscape character of the streetscape and neighbourhood. Good landscape design enhances the development's environmental performance by retaining positive natural features which contribute to the local context, co-ordinating water and soil management, solar access, micro-climate, tree canopy, habitat values and preserving green networks. Good landscape design optimises useability, privacy and opportunities for social interaction, equitable access, respect for neighbours' amenity and provides for practical establishment and long term management. Principle 6: Amenity Good design positively influences internal and external amenity for residents and neighbours. Achieving good amenity contributes to positive living environments and resident well being. Good amenity combines appropriate room dimensions and shapes, access to sunlight, natural ventilation, outlook, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas and ease of access for all age groups and degrees of mobility. Principle 7: Safety Good design optimises safety and security within the development and the public domain. It provides for quality public and private spaces that are clearly defined and fit for the intended purpose. Opportunities to maximise passive surveillance of public and communal areas promote safety. A positive relationship between public and private spaces is achieved through clearly defined secure access points and well lit and visible areas that are easily maintained and appropriate to the location and purpose. Principle 8: Housing diversity and social interaction Good design achieves a mix of apartment sizes, providing housing choice for different demographics, living needs and household budgets. Well designed apartment developments respond to social context by providing housing and facilities to suit the existing and future social mix. Good design involves practical and flexible features, including different types of communal spaces for a broad range of people and providing opportunities for social interaction among residents. Principle 9: Aesthetics Good design achieves a built form that has good proportions and a balanced composition of elements, reflecting the internal layout and structure. Good design uses a variety of materials, colours and textures. The visual appearance of a well designed apartment development responds to the existing or future local context, particularly desirable elements and repetitions of the streetscape

Electricity Supply Act 1995

1. The Electricity Supply Act 1995, includes provisions under s 48 that facilitate removal of trees in circumstances where a tree or trees might cause interference to electrical supplies, including: 48 Interference with electricity works by trees (1) This section applies if a network operator has reasonable cause to believe that a tree situated on any premises - (a) could destroy, damage or interfere with its electricity works, or (b) could make its electricity works become a potential cause of bush fire or a potential risk to public safety. (2) In those circumstances, a network operator - (a) may serve a written notice on the owner or occupier of the premises requiring the owner to trim or remove the tree, or (b) in an emergency, may, at its own expense, trim or remove the tree itself.

Apartment Design Guide

1. The Apartment Design Guide (ADG) published by the NSW Department of Planning and Environment, which provides consistent planning and design standards for residential apartments in New South Wales.
2. Part 2 of the ADG explains the application of building envelopes and primary controls including building height, floor space ratio, building depth, separation and setbacks. It also provides tools to support the strategic planning process within local and state government in preparing planning controls.
3. Parts 3 and 4 of the ADG provide objectives, design criteria and design guidance for the siting, design and amenity of apartment development. These objectives, design criteria and design guidance prevail over any inconsistent controls within a development control plan. The ADG states that its design criteria set clear measurable benchmarks for how the ADG objectives can be practically achieved. The ADG also notes that if it is not possible to satisfy the design criteria, applications must demonstrate what other design responses are used to achieve the relevant objectives, and the ADG's design guidance can be used to assist in this.
4. Part 2F of the ADG concerns building separation and identities considerations for local and State government in setting building separation controls, including recommendations for minimum separation distances for buildings.
5. Part 3D of the ADG concerns communal and public open spaces in relation to the design of apartment developments, and it includes: 1. an objective requiring that developments provide an adequate area of communal open space in order to enhance residential amenity and to provide opportunities for landscaping; 2. design criteria requiring that: 1. communal open space has a minimum area equal to 25% of the site; and 2. developments achieve a minimum of 50% direct sunlight to the principal usable part of the communal open space for a minimum of 2 hours between 9 am and 3 pm on 21 June (mid winter). 1. design guidance as follows: 1. communal open space should be consolidated into a well designed, easily identified and usable area; 2. communal open space should have a minimum dimension of 3m, and larger developments should consider greater dimensions; 3. communal open space should be co-located with deep soil areas Direct, equitable access should be provided to communal open space areas from common circulation areas, entries and lobbies; 4. where communal open space cannot be provided at ground level, it should be provided on a podium or roof; 5. where developments are unable to achieve the design criteria, such as on small lots, sites within business zones, or in a dense urban area, they should: 1. provide communal spaces elsewhere such as a landscaped roof top terrace or a common room; 2. provide larger balconies or increased private open space for apartments; 3. demonstrate good proximity to public open space and facilities and/or provide contributions to public open space.
6. Part 4A of the ADG concerns solar and daylight access in relation to the design of apartment developments, and it includes: 1. an objective requiring that developments should optimise the number of apartments receiving sunlight to habitable rooms, primary windows and private open space; 2. design criteria requiring that: 1. living rooms and private open spaces of at least 70% of apartments in a building receive a minimum of 2 hours direct sunlight between 9 am and 3 pm at mid winter in the Sydney Metropolitan Area and in the Newcastle and Wollongong local government areas; 2. in all other areas, living rooms and private open spaces of at least 70% of apartments in a building receive a minimum of 3 hours direct sunlight between 9 am and 3 pm at mid winter; 3. a maximum of 15% of apartments in a building receive no direct sunlight between 9 am and 3 pm at mid winter. 1. design guidance that is of relevance in this appeal, as follows: 1. the design maximises north aspect and the number of single aspect south facing apartments is minimised; 2. single aspect, single storey apartments should have a northerly or easterly aspect.
7. Part 4B concerns natural ventilation of apartments, and it includes: 1. objective 4B-2 in relation to the layout and design of single aspect apartments maximises natural ventilation, 2. design guidance that, amongst other things, identifies that natural ventilation to single aspect apartments can be achieved with design solutions including stack effect ventilation or similar to naturally ventilate internal building areas or rooms such as bathrooms and laundries.
8. Part 4D concerning apartment design and layout, and which includes: 1. Objective 4D-1 that aims to ensure that the layout of rooms within an apartment is functional, well organised and provides a high standard of amenity; 2. Design criteria concerning the minimum internal areas of various apartment types, and requirements in relation to windows within habitable rooms; 3. design criteria, that, amongst other things, states that a window should be visible from any point in a habitable room.
9. Part 4E of the ADG concerns private open space and balconies in relation to the design of apartment developments, and which includes: 1. an objective that apartments provide appropriately sized private open space and balconies to enhance residential amenity; 2. design criteria requiring that: 1. all apartments are required to have primary balconies as follows: 1. Studio apartments a minimum balcony area of 4m2; 2. 1 bedroom apartments a minimum area of 8m2 and a minimum depth of 2m; 3. 2 bedroom apartments a minimum area of 10m2 and a minimum depth of 2m; 4. 3+ bedroom apartments a minimum area of 12m2 and a minimum depth of 2.4m; 5. The minimum balcony depth to be counted as contributing to the balcony area is 1m; 1. For apartments at ground level or on a podium or similar structure, a private open space is provided instead of a balcony and must have a minimum area of 15m2 and a minimum depth of 3m; 1. design guidance that is of relevance in this appeal as follows: 1. increased communal open space should be provided where the number or size of balconies are reduced.
10. Part 4F of the ADG concerning common circulation and spaces, and which includes: 1. an objective requiring that common circulation spaces achieve good amenity and properly service the number of apartments; 2. design criteria requiring that: 1. criteria 1 - the maximum number of apartments off a circulation core on a single level is eight. 1. design guidance that is of relevance in this appeal as follows: 1. where design criteria 1 is not achieved, no more than 12 apartments should be provided off a circulation core on a single level.
11. Part 4O of the ADG concerns landscape design, and which includes: 1. Table 4 which provides guidance in relation to tree planting in deep soils zones in relation to site area; 2. objectives 4O-1 and 4O-2 which aim to ensure that landscape design is viable and sustainable, and that it contributes to streetscape and amenity.

Penrith Development Control Plan 2014

1. The Respondent advised that the following provisions of Penrith Development Control Plan 2014 are of relevance to the appeal: 1. Part C5, concerning waste management, and specifically: 1. Clause 5.2, concerning the siting and design of waste storage areas for residential development; 1. Part C6, concerning landscape design, and within which: 1. table 6.1, identifies the process for preparing and submitting landscape designs for development; 2. clause 6.1 confirms controls relating to landscape design, including requirements in relation to site analysis, arboricultural assessment, tree management plans, landscape concept and details plans required for different types of developments. 1. Part D2, concerning residential development, and specifically: 1. Clause 2.5, concerning residential flat buildings, and more particularly: 1. subclause 2.5.1 in relation to residential character; 2. subclause 2.5.2, in relation to the preferred configuration for RFBs; 3. subclause 2.5.3, in relation to the development site; 4. subclause 2.5.4, in relation to urban form, including gardens; 5. subclause 2.5.5, in relation to landscaped areas; 6. subclause 2.5.6, in relation to front and rear setbacks; 7. subclause 2.5.16, in relation to garden design.

Contentions

1. As a consequence of the Applicant's further amended plans, for which leave was granted on the basis of a notice of motion, and the addenda, prepared by the experts, to the joint reports filed in relation to the Applicant's initial plans, the Parties agreed that the contentions in this appeal had been narrowed, as follows: 1. the waste services experts agreed that the contentions concerning waste could be resolved through the imposition of conditions of consent to be complied with prior to either the issue of a construction certificate or an occupation certificate for the Proposed Development should it be approved. The waste services experts provided specific recommendations in relation to the wording of their recommended conditions of consent; 2. the urban design experts: 1. provided recommendations for resolution of issues concerning the amenity of common areas, and in relation to built form and elevations, and the Applicant tabled, as Exhibit F, further amendments to its plans in response to these recommendations; and 2. agreed that a refined landscape design for the relocated communal open space areas is desirable in order to enhance the amenity of those areas and provide a diversity of recreational settings that are suitable for individuals, families and groups.
2. However, the urban design experts were also unable to agree on means by which contentions concerning the landscaping might be resolved, and their principal differences on this matter related to: 1. the mature canopy dimensions of trees in the front setback of the Proposed Development; 2. the location of building services within the front setback, including the location of a possible substation; 3. the layout of landscaping in the front setback in relation to the final position of building services; 4. landscaping in the western side setback; 5. whether a comprehensive amendment of the landscape plans is necessary; and 6. whether the amended landscape plans are satisfactory and whether the proposed canopy landscaping would be viable.
3. The Applicant sought leave to rely on its further amendments to plans, which had been tendered into evidence as Exhibit F, and leave was granted without objection.
4. As a consequence of the advice of the experts, and the Applicant's further amendments to its plans within Exhibit F: 1. the remaining contentions were said by the Respondent to focus on the following matters: 1. the effectiveness of the Applicant's landscaping proposals for the Proposed Development; 2. the adequacy of the residential amenity of the Proposed Development; and 3. the architectural cohesion of the Applicant's elevations of the Proposed Development. 1. the questions requiring resolution to address the remaining contentions in this appeal are as follows: 1. are the Applicant's landscaping proposals for the Proposed Development acceptable? 2. will the Proposed Development provide adequate residential amenity to its future residents? 3. do the Applicant's plans demonstrate acceptable level of architectural cohesion?
5. In addressing these questions, the Parties agreed that: 1. the urban design experts, Mr Geoff Baker for the Applicant, and Mr Brett Newbold for the Respondent, had documented, with clarity, their differing perspectives concerning the Applicant's landscaping proposals such that there was no need to take further oral evidence from them during the hearing; and 2. there was no need to cross examine the waste services experts at the hearing as they had recommended conditions of consent that would resolve contentions concerning waste services; and 3. there would only be utility in taking further oral evidence from the town planning experts, Mr Anzellotti for the Respondent and Mr Byrnes for the Applicant, in relation to the residual contentions identified above at [44].
6. I will address each of the questions identified above at [44(2)] in turn.

Are the Applicant's landscaping proposals for the Proposed Development acceptable?

1. The Parties agreed that the principal difference between them concerning the acceptability of the Applicant's landscaping plans related to the character and functionality of the landscaping proposed for the front setback of the Proposed Development.
2. The Respondent noted, and I agree, that resolution of the character component of the contention requires consideration of the relevant requirements of SEPP65, the ADG and PDCP including: 1. Clause 28(2) of SEPP65, which requires consideration of the design quality principles of SEPP65, and relevantly in this appeal concerning landscaping, that includes: 1. Design Quality Principal 1, which concerns context and neighbourhood character, and which states that context consists of the key natural and built features of an area, their relationship and the character they create when combined. It adds that: 1. responding to context involves identifying the desirable elements of an area's existing or future character. 2. well-designed buildings respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood; 3. consideration of local context is important for all sites, including sites in established areas, those undergoing change or identified for change; 1. Design Quality Principal 5, which concerns landscaping and which states that a positive image and contextual fit of well-designed developments is achieved by contributing to the landscape character of the streetscape and neighbourhood. 1. the relevant provisions of the ADG which include: 1. Part 4O of the ADG, which concerns landscape design and provides more specific guidance in relation to achieving the outcomes sought under SEPP65. Relevantly for this appeal, Part 4O provides guidance concerning recommendations for tree planting within deep soil zones, and in relation to the numbers and selection of trees of different sizes at maturity within those areas. 1. the relevant provisions of Part D2 of PDCP which includes: 1. subclause 2.5.1 concerning the character of residential areas, which requires that in established areas new development should be planned and designed to reflect the character of traditional neighbourhoods established prior to 1970. 2. subclause 2.5.2 concerning the preferred configuration for residential flat buildings and which: 1. has the following objectives: "1) new residential flat building development should adopt key features of established suburban design. 2) dwellings, their entrances and private courtyards look towards the street, or to the rear boundary." 1. requires that any new residential flat building development should incorporate the traditional configuration of the cottages and cottage gardens that define the character of Penrith's established neighbourhoods. 1. subclause 2.5.16 concerning garden design and which: 1. has the following objective: "Gardens should be landscaped according to the function of each area, and should provide a backdrop that is appropriate to each adjacent room." 1. states that gardens should be landscaped according to the function of each area, should provide a backdrop that is appropriate to each adjacent room, and street frontage plantings should provide: "a) private gardens for street-front dwellings; b) a civic garden frontage appropriate to the established neighbourhood character; and c) mixed species of trees, shrubs, and accent plantings including flowers and ground covers; d) level areas of well-drained turf. …"
3. Each of the identified relevant controls in SEPP 65, the ADG and PDCP require consideration of the responsiveness of the Proposed Development's landscaping plans to the character and context of its neighbourhood, and I will consider this aspect of the contention first.
4. I will then consider the functionality of the Applicant's landscape plans, including their responsiveness to the provisions of s 48 of the Electricity Supply Act 1995 (see above at [28]).

Are the Applicant's landscaping plans acceptable in terms of character and context?

1. SEPP65 requires that any development should be evaluated against its design quality principles and Principle 1: 1. requires that the Proposed Development be evaluated against its response to context and neighbourhood character. 2. states that responding to context involves identifying the desirable elements of an area's existing or future character.
2. I note that in undertaking an evaluation in respect of a similar provision within cl 33 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the Seniors SEPP) in Catholic Healthcare Limited v Randwick City Council [2019] NSWLEC 99 (at [19(5)]), Robson J observed that the Court must form a subjective opinion with the assistance of expert evidence as to whether the Proposed Development recognises the desirable elements of the current character of the area and whether it would contribute to the quality and identity of the area.
3. In relation to the evaluation of the Proposed Development, the Parties submitted as follows: 1. the Applicant said, and I agree, that: 1. there is no desired future character statement available for the area of the Subject Site, including within PDCP; 2. the Proposed Development is not situated within an established area but rather is located within an area in transition, and so the provisions of subclause 2.5.1 of Part D2 of PDCP, concerning development within established areas (see above at [48(3)(b)]), are of no relevance in relation to the current appeal.
4. As a consequence of my conclusions at [53], the focus of Design Principle 1 the falls to the identification of elements of the existing character of its local neighbourhood.
5. The Respondent noted that Part 1B of the ADG identifies that the neighbourhood scale, which should be considered in the planning of small groups of apartment building sites, has a radius of 400m to 1 km, and in my view, this is the appropriate scale for assessment of the Applicant's landscaping plans.
6. The town planning experts, Mr Anzellotti and Mr Byrnes, provided further oral testimony during the hearing, in relation to the evaluation of the Applicant's landscaping plans for the front setback at the neighbourhood scale: 1. Mr Anzellotti referred to the requirements of subclause 2.5.16 of Part D2 of PDCP and said that, in his opinion: 1. gardens within the local neighbourhood of the Subject Site were characterised by clusters of trees; and 2. the Applicant's landscaping plans should include clusters of trees in the front setback as this was characteristic of developments within 1km of the Subject Site. 3. any canopy trees proposed for the Proposed Development's front setback should be selected such that they would cause minimal interference with any proposed electrical supply within the street. 4. the trees currently proposed for the landscaped areas in the east and north of the Subject Site would overhang neighbouring lots; and 5. the areas of hard landscaping in the front setback, in part related to the requirement for collection of waste from the Proposed Development and other services in that area, would reduce the relief in the streetscape that may otherwise have been achieved by the Applicant's proposed landscaping; 1. Mr Byrnes submitted that: 1. the soil depth in the front setback was adequate to achieve the required landscaping outcomes in the front setback; 2. the tree species identified in the joint report of the town planning experts would provide an appropriate canopy width within the required planting locations; and 3. if the Court were minded to grant consent to the Proposed Development, a further condition of consent should be imposed to ensure that the tree species selected for planting in the front setback of the Proposed Development were of an appropriate canopy width, as follows: "The four (4) trees proposed in the front setback are to be amended to ensure that the mature canopy spread of the trees is fit for the dimensions of the front setback. This may include trees with a lesser spread such as Liriodendron tulipifera 'fastigiata' (Upright Tulip Tree) and Elaeocarpus reticulatus (Blueberry Ash); or trees that are capable of being pruned without loss of their aesthetic integrity such as Waterhousea floribunda (Weeping Lilly Pilly)."
7. I have considered the submissions of the Parties, together with the evidence of the town planning experts concerning the responsiveness of the Applicant's front setback landscaping plans to the character and context of the local neighbourhood, and I have concluded that: 1. the absence of a clear statement of the desired future character of the Subject Site's local neighbourhood hinders resolution of matters concerning the acceptability or otherwise of the Applicant's landscaping plans; 2. the requirement to resolve multiple, and sometimes competing, outcomes within the Proposed Development's front setback, including resident amenity, local character and streetscape, electrical supply, and waste collection, and simultaneously satisfy the relevant provisions of SEPP65, the ADG and PDCP would present a significant challenge to any proposed scheme for the Subject Site; 3. if the refined condition proposed by Mr Byrnes in relation to the selection of suitable trees for planting the front setback, were adopted, the Applicant's proposed landscaping plans would be acceptable and should not form a basis for refusal of its Proposed Development. I arrive at this conclusion for the following reasons: 1. the Proposed Development does provide for a group of trees within its front setback, which, in my assessment, would form a satisfactory cluster of trees in the circumstances of the Subject Site, and Mr Anzellotti has identified this as an element that is characteristic of the local neighbourhood; 2. the Applicant's selection of proposed canopy trees, as identified within the condition proposed by Mr Byrnes, will ensure that the width of tree canopies in the front setback would be suitable for their proposed circumstance and the constraints of the Subject Site; 3. in my assessment, the Applicant's landscape plans are responsive to the relevant provisions of PDCP, particularly those of subclauses 2.5.2 and 2.5.16 of Part D2 concerning neighbourhood character, which were of particular concern to the Respondent, and adequately address the objectives of those relevant sections of PDCP (see above at [48(3)]); 4. they satisfy the relevant provisions of the ADG, including those within Parts 4O concerning landscaping design, and in particular: 1. the numeric guidance provided within Table 4 of that Part of the ADG; 2. the objectives 4O-1 and 4O-2 such that the landscape design will be viable and sustainable, and it will contribute to the streetscape and amenity.

Are the Applicant's landscaping plans acceptable in terms of functionality?

1. In relation to the functionality of the Applicant's landscaping plans for the front setback, including their responsiveness to the provisions of s 28 of the Electricity Supply Act 1995, I note that: 1. as observed above at [57(3)(b)] the Applicant's selection of proposed canopy trees, as identified within the condition proposed by Mr Byrnes, will ensure that the width of tree canopies in the front setback would be suitable for their proposed circumstance and the constraints of the Subject Site; 2. the Respondent has proposed a series of deferred commencement conditions (proposed conditions 3.a to 3.g) within its proposed/draft conditions of consent, filed with the Court following the conclusion of the hearing. These conditions were not opposed by the Applicant in its reply to the draft conditions.
2. I am satisfied that should the Proposed Development be approved, the Respondent's proposed/draft conditions 3.a to 3.g would resolve, to my satisfaction, any residual contentions concerning landscaping associated with the Proposed Development.

Conclusion in relation to the acceptability of the Applicant's landscaping plans

1. As noted above at [48(1)], cl 28(2) of SEPP65, which requires consideration of the design quality principles of SEPP65 and the ADG. I have considered the relevant provisions of both SEPP65 and the ADG with respect the Applicant's landscaping plans, and I conclude that they are acceptable, and are consistent with SEPP65 Design Quality Principle 1 in relation to context and neighbourhood character.
2. I note, for completeness, that the assessment report dated 30/1/2019 provided to the Penrith Local Planning Panel in support of its determination of the Applicant's development application (DA) number DA18/0240 included a note that the DA had been to Council's Urban Design Review Panel (UDRP) member. In relation to this, the report had been noted that "the current proposal improves when compared to the preceding application however, the proposal contains a number of shortcomings". It also notes that, in relation to context and character, the landscaping is unsatisfactory, minimal deep soil along the frontage, lack of canopy tree planting, extensive paving in front setback.
3. The Applicant noted at the hearing that cl 21 of SEPP65 requires that a design review panel is to consist of 3 or more persons appointed by the Minister, one of whom is to be appointed as chairperson of the panel, and it submitted that the comments of one individual, as recorded within the assessment report, did not constitute advice obtained from a design review panel for the purposes of cl 28 of SEPP65.
4. While I accept the submission of the Applicant in relation to the standing of the comments recorded from a single UDRP member rather than from the panel as a whole in terms of the provisions of cl 28(2) of SEPP65, I nonetheless note that I have considered them in arriving at my conclusion recorded above at [60].

Will the Proposed Development provide adequate residential amenity?

1. An evaluation of the adequacy or otherwise of the Applicant's Proposed Development in relation to residential amenity requires a consideration of its response to specific controls concerning various aspects of the development that, taken together, contribute to the totality of residential amenity afforded by the proposed residential flat building on the Subject Site. Those controls fall within the following areas of design, each of requires consideration: 1. Solar access 2. Common open space 3. Natural ventilation 4. Internal apartment design 5. Character/bulk and scale

Will the Proposed Development provide adequate solar access amenity?

1. Clause 28(2) of SEPP65, requires consideration of the design quality principles of SEPP65, and relevantly in this appeal concerning solar access, that includes: 1. Design Quality Principle 4, in relation to sustainability (see above at [27]; and 2. Design Quality Principle 6, concerning amenity (also see above at [27]).
2. Part 4A of the ADG (see above at [34]) provides objectives, design criteria and design guidance with respect to solar and daylight access that should be achieved in the design of a residential flat building such as the Proposed Development.
3. The performance of the Proposed Development's design against these objectives, design criteria and design guidance was the subject of evidence from the town planning experts during the hearing, and in respect of which: 1. Mr Anzellotti submitted that, in his expert opinion,: 1. the living rooms of 55% of units in the Proposed Development would receive the minimum of 2 hours of direct sunlight between 9am and 3pm at mid-winter whereas design criteria 1 of Part 4A-1 of the ADG required that 70% of units should achieve this level of solar access to their living room; 2. the private open spaces of 66% of units in the Proposed Development would receive the minimum of 2 hours of direct sunlight between 9am and 3pm at mid-winter, whereas design criteria 1 of Part 4A-1 of the ADG required that 70% of units should achieve this level of solar access to their private open space areas; 3. seven, or 16%, of all units (units 6, 14, 22, 31, 38, 40 and 45) within the Proposed Development would receive no natural light to their living spaces, and would only receive light from secondary sources between 9am and 3pm at mid-winter, when design criteria 3 of that Part of the ADG required that a maximum of 15% of units in the development should receive no direct sunlight at the time. 1. Mr Byrnes, in response to points raised by Mr Anzellotti, stated that: 1. he agreed with Mr Anzellotti that Proposed Development did not comply with provisions of Part 4A-1 of the ADG in relation to the provision of direct sunlight to living spaces and private open spaces of units, but he said that, notwithstanding these facts, the Proposed Development did, in his opinion, achieve the objective of Part 4A-1 of the ADG as, in his view, the design of the RFB did optimise the direct sunlight to living rooms and balconies in the circumstances of the Proposed Development which he said was situated on, and constrained by, a north/south oriented site.
4. However, Mr Anzellotti noted that the Proposed Development could, in his view, ensure than no more than 15% of units received no direct sunlight by the removal of one single aspect unit on the south side of the Proposed Development. He also noted that the Applicant's design included at least single aspect units on the south side of the Proposed Development.
5. In providing his further response, Mr Byrnes agreed that a reduction in the yield of the Proposed Development by one unit would ensure that the Proposed Development would achieve design criteria 3 of Part 4A of the ADG. He also noted that such an amendment to the Proposed Development would improve the amenity afforded by its design.
6. Having considered the evidence of the experts, I agree with Mr Anzellotti that on the basis of the numeric requirements within the design criteria in Part 4A-1 of the ADG, the Proposed Development is not consistent with the provisions of that section of the ADG, and its design does not maximise the apartments of the north aspect, and does not minimise south facing apartments, and it does not ensure that single aspect, single storey apartments have a northerly or eastern aspect.
7. Further, given the non-compliances of the Proposed Development with the design criteria, and inconsistency with the design guidance, of Part 4A-1 of the ADG, and given that evidence of Mr Byrnes at [69], I conclude that: 1. the Proposed Development does not achieve Objective 4A-1 of the ADG; 2. the Proposed Development is not consistent with SEPP65 Principles 4 (Sustainability) and 6 (Amenity) as it does not provide the required levels of solar access amenity to apartments within the proposed residential flat buildings.

Will the Proposed Development provide adequate common open space?

1. Clause 28(2) of SEPP65, requires consideration of the design quality principles of SEPP65, and relevantly in this appeal concerning solar access, that includes: 1. Design Quality Principle 6, concerning amenity (also see above at [28]).
2. Objective 3D-1 within Part 3D of ADG provides that residential flat buildings, such as the Proposed Development, should provide an adequate area of communal open space is provided to enhance residential amenity and to provide opportunities for landscaping.
3. Design criteria one of part 3-D provides that communal open space within a residential flat building development should have a minimum area equal to 25% of the site area.
4. The performance of the Proposed Development's design against these objectives, design criteria and related design guidance within the ADG was the subject of evidence from the town planning experts during the hearing, and in respect of which: 1. Mr Anzellotti said that: 1. the common open space (COS) within the Proposed Development occupied 251m2 or 15% of the site area, and 2. the proposed northern common open space was the better of the two common open spaces within the Proposed Development but even that area lacked items of interest such as facilities and furniture the details of which should be provided. 3. the proposed eastern COS should not be included in the calculation of common open space area within the Proposed Development as it has a small size and was of poor utility. He added that the eastern common open space was not well conceived because: 1. use of that COS area would impact on the amenity of proposed unit 4; 2. it included no facilities; 3. its landscaping in this area would be, in his opinion, unattractive; 4. it had no direct access to and from the street; 5. it had a complicated fire egress; 6. it was serviced by a narrow pathway. 1. Mr Byrnes said that, while he agreed with Mr Anzzellotti that the eastern common open space was not well dimensioned, nor well located, for use by groups of people, it was, nevertheless, adequate as a contribution to common open space within the Proposed Development. He added that this area would make a positive addition to the development as it would provide a smaller, quieter space for use by individuals or smaller groups.
5. He recommended that the following condition of consent be imposed to improve the functionality of eastern common open space: "The area along the eastern boundary of the site be landscaped and generally be made available as a secondary passive communal open space area. A pathway that allows people to traverse from the rear basement exit stair to the front boundary be provided. The eastern edge of the private open space area of Unit 5 be distinguished through the use of a fence and/or planter box with landscaping"
6. Mr Anzellotti commented that: 1. achieving improved functionality within the proposed eastern common open space would "not be an easy fix" and may require landscaping on that side of the Proposed Development; and 2. the requirement for 25% of the site area to be dedicated to common open space could be achieved through a reduction in yield from the Proposed Development, and that this would represent an improvement in the amenity of the Proposed Development to future residents.
7. In response to the shortfall in the allocation of common open space within the Proposed Development: 1. Mr Byrnes noted that Part 3D-1 of the ADG provided that where developments are unable to achieve the design criteria, such as on small lots, sites within business zones, or in a dense urban area, they should, inter alia, demonstrate good proximity to public open space and facilities. 2. the Applicant pointed out that the Subject Site was located some 200-300m from Lawler Park, and 600m from Spence Park which both provided public open space and facilities in good proximity to the Proposed Development.
8. Mr Anzellotti, in response, said that he did not agree with Mr Byrnes that the Proposed Development was located in good proximity to public open spaces and facilities because: 1. Spence Park located at 600m could not be described as being in close proximity; 2. Lawler Park, while much closer than Spence park, was: 1. inconveniently located, as a future resident of the Proposed Development would need to walk 200m along a relatively uninteresting route and cross High Street, a busy local road, at two sets of traffic lights before accessing the park; 2. and of limited amenity, as it provided no play facilities, nor any BBQ facilities.
9. I've considered the submissions of the parties and the evidence of the experts in relation to the provision of common open space within the Proposed Development and have concluded that: 1. the Proposed Development does not provide the minimum area of communal open space required under Part 3D-1 of the ADG; 2. the Subject Site is not in a business zone and nor is located on a small lot; 3. the Subject Site and surrounds are all zoned R4 High Density Residential, and the R4 zone is the most dense level of residential development available for zoning of land and is only applied in urban areas; 4. the Subject Site is located within an area intended to be a dense urban area and so the design guidance within Part 3D-1 concerning the proximity of the Proposed Development to public spaces and facilities is relevant to the Proposed Development; 5. I agree with the conclusions of Mr Anzellotti, for reasons provided by him above at [79], neither Spence Park nor Lawler Park are located such that they would provide good proximity to public open space and facilities for the Proposed Development; 6. the Proposed Development is inconsistent with design criteria one of Part 3D-1 of the ADG, and also does not achieve the objective of that part of the ADG and it does not provide an adequate area of communal open space for the purposes of residential amenity and landscaping; 7. the Proposed Development is not consistent with SEPP65 Principle 6 (Amenity) as it does not provide the adequate common open space amenity to potential future residents of the Applicant's proposed residential flat building.

Will the Proposed Development provide adequate natural ventilation?

1. Clause 28(2) of SEPP65, requires consideration of the design quality principles of SEPP65, and relevantly in this appeal concerning natural ventilation, that includes: 1. Design Quality Principle 4, in relation to sustainability (see above at [28]; and 2. Design Quality Principle 6, concerning amenity (also see above at [28]).
2. Part 4B of the ADG includes Objective 4B-3 that the number of apartments with natural cross ventilation is maximised to create comfortable indoor environment for residents.
3. Design criteria 1 of Part 4B-3 provides that at least 60% of apartments are naturally cross ventilated in the first nine stories of residential flat building, and apartments at ten stories or greater are deemed to be cross ventilated only if any enclosure of the balconies at these levels allows adequate natural ventilation and cannot be fully enclosed.
4. Part 4B-2 provides the following further design guidance in relation to the natural ventilation to single aspect apartments, which it says can be achieved with the following design solutions: 1. primary windows are augmented with plenums and light wells (generally not suitable for cross ventilation); 2. stack effect ventilation/solar chimneys or similar to naturally ventilate internal building areas or rooms such as bathrooms and laundries; 3. courtyards or building indentations have a width to depth ratio of 2:1 or 3:1 to ensure effective air circulation and avoid trapped smells.
5. The expert town planners, Mr Byrnes and Mr Anzellotti, agreed during the hearing that this would require that 27 of the Proposed Development's 45 apartments should be naturally cross ventilated.
6. In a supplementary joint report of the urban design experts, those experts had agreed that the Proposed Development met the cross-ventilation criteria 'target' of the ADG, but they did not provide a more detailed narrative to explain the basis upon which they had reached this conclusion.
7. Notwithstanding this, Mr Anzellotti provided oral evidence during the hearing that, in his opinion, the Proposed Development did not satisfy the design criteria that at least 60% of apartments are naturally cross ventilated because: 1. cross ventilation of two-story single aspect units via staircases was not an acceptable response to this design criteria; 2. units 9, 26, 37 and 44 had been designed as single aspect apartments over two levels and in his view the design features identified in Part 4B-2 of the ADG (see above at [84]) were not included in the design of those apartments, and so he has concluded that those units should not be assessed to be adequately cross ventilated; 3. as a consequence of points (1) and (2) above, he now calculated that only 54% (or 24 out of 45) of the apartments within the Proposed Development achieved natural ventilation against the 60% minimum required under the Part 4B-3 of the ADG.
8. Mr Byrnes, in response, said that 1. the definition of natural cross ventilation within the ADG, while referring to the path of air movement through a building in terms on flow paths between the windward side of a building and the lee side of the building, did not exclude that air flow across two levels within an apartment should be excluded from the calculation of natural cross ventilation of a residential building. He also he agreed with the Applicant that the definition of natural cross ventilation in the ADG does not state that natural cross ventilation can be achieved successfully via staircases; 2. the design guidance provided within Part 4B-2 of the ADG (see above at [84]) was that natural ventilation to single aspect apartments can be achieved through several design solutions including stack effect ventilation/solar chimneys or similar which can be used to naturally ventilate internal building areas or rooms such as bathrooms and laundries; 3. as a consequence of the points above at (1) and (2), it was his opinion that units 9, 26, 37 and 44 can be included in the calculation of units that are adequately ventilated, and as a consequence he calculated that 28 of 45 units, or 62% of all units, were naturally cross ventilated, and so the proposed development was compliant with the provisions of Part 4B-3 of the ADG.
9. I have considered the submissions on the Parties and the testimony of the experts in relation to the provision of natural cross ventilation in apartments within the Proposed Development and I have concluded that: 1. I agree with Mr Anzellotti that at least 54% of all apartments in the Proposed Development are adequately cross ventilated within the Proposed Development; 2. notwithstanding that the ADG definition of natural cross ventilation suggests a preference for the use of a pressure differential between the windward leeward sides of buildings to achieve cross ventilation outcomes, I also accept the submission of Mr Byrnes that the four single aspect apartments are designed to provide a form of stack effect ventilation via staircases to naturally ventilate internal building areas, and that this is consistent with the provisions of Part 4B-1 as drafted noting that the ADG: 1. provides for the application of a stack ventilation design solution in single aspect apartments; 2. is silent on the means by which the stack ventilation effect is to be achieved; and 3. does not exclude that a staircase can be a means to achieve a stack ventilation effect and provide cross ventilation in a single aspect apartment such as is proposed for apartments 9, 26, 37 and 44 of the Proposed Development. 1. I am satisfied that the Proposed Development: 1. does provide that at least 60% of apartments are naturally cross ventilated, in satisfaction of the provisions of design criteria 1 of Part 4B-3 of the ADG; and 2. is consistent with SEPP65 Principle 4 (Sustainability) and Principle 6 (Amenity) insofar as these relate to natural ventilation as it does provide adequate levels of natural ventilation within the Applicant's proposed residential flat building.
10. Finally, I note that, while the conclusion above at [89(3)] was not an agreed position of the town planning experts, it is consistent with the conclusion of the urban design experts in their supplementary joint report tendered as evidence at the hearing.

Will the Proposed Development provide adequate internal design amenity?

1. Clause 28(2) of SEPP65, requires consideration of the design quality principles of SEPP65, and relevantly in this appeal concerning internal design amenity, that includes: 1. Design Quality Principle 6, concerning amenity (see above at [28]).
2. The Respondent, supported by the evidence of Mr Anzellotti, said that the Proposed Development did not comply with a range of further provisions of the ADG in relation to internal amenity, including: 1. 4E Part of the ADG, concerning private open space, which requires that two-bedroom apartments should provide a primary balcony with a minimum area of 10m2, and in relation to which the Proposed Development includes two such apartments (units 14 and 22) which were proposed to have primary balconies of less than 10m2. The Respondent said that the balconies in these units had an area of 8.8m2. 2. Part 4F of the ADG, which concerns common circulation and spaces, and which requires that the maximum number of apartments of a circulation core on a single level is eight, and in relation to which levels 1, 2 and 3 of the Proposed Development do not comply; 3. Part 4D of the ADG, concerning apartment size and layout, in relation to which the Proposed Development includes twelve so-called 'snorkel bedrooms' in which the only window in the room is not visible from some positions within the room; 4. Part 4A of the ADG concerning solar access that includes design guidance that high level windows should be used only as secondary light sources within any habitable room, and in relation to which the Proposed Development included seven bedrooms (in units 6,14, 22, 31, 38, 40 and 45) with a highlight window as their primary light source.
3. In response to these assessments by the Respondent and its expert town planner, the Applicant, supported by the evidence of its expert, Mr Byrnes, said that: 1. the balconies in units 14 and 22, which the Respondent said were not compliant with the minimum area requirements of the ADG, were located on the south east corner of the Proposed Development, and could be extended westward to address any shortfall in area if they were indeed of an area less than 10m2; 2. it was not unusual to find examples of apartment buildings with more than eight units associated with a single lift core. In support of the Applicant's proposed design, Mr Byrnes also noted that, in his opinion, the proposed lobby areas, which he said were of generous proportions, included openings to light and air, provided acceptable levels of amenity wherever more than 8 units were proposed to be associated with any single lift core. 3. the so-called 'snorkel bedrooms' referenced by the Respondent were not "classic" snorkels as the snorkel element was relatively short, and the widths and lengths of those bedrooms were acceptable; 4. the rooms that had highlight windows as their primary light source secondary light sources were designed so that they had openings on three sides and, in his opinion, were acceptable, complied with the design guidance in Objective 4A-2 of the ADG, and did not require amendment.
4. Having considered the submissions of the Parties and the evidence of the experts, I have concluded that: 1. the functional areas of those balconies is indeed less than the 10m2 required for a two bedroom apartment under the provisions of Part 4E of the ADG, but I agree with the Applicant's expert town planner, that the area of the balconies could be increased by a small extension to their proposed design such that compliance would be achieved; 2. the proposed design of the circulation areas within the Proposed Development is acceptable, noting that Part 4F of the ADG also provides that where the design criteria in Objective 4F-1 is not achieved, no more than 12 apartments should be provided off a circulation core on a single level, and the Proposed Development is consistent with this design guidance; 3. the inclusion of up to 12 snorkel bedrooms within the Proposed Development is not acceptable. I do not embrace the evidence of Mr Byrnes that the design of these rooms is acceptable even in circumstances where, as he suggests, they are not 'classic' snorkels. In my assessment, the design of the rooms is such that they are not consistent with the design guidance in Part 4D of the ADG, and this limits the functionality of the rooms, unnecessarily reduces the amenity of those rooms, and leads to an outcome that the Proposed Development does not achieve objective 4D-1 of the ADG; 4. the inclusion of seven bedrooms with highlight windows as their primary light source is contrary to the design guidance in Part 4A of the ADG, which requires that high level windows should only be used as a secondary light source in habitable rooms, is not an acceptable design outcome within the Proposed Development, and leads to an outcome where the Proposed Development does not achieve objective 4A-2 of the ADG.
5. I also conclude that the Proposed Development is inconsistent with SEPP65 Principle 6 (Amenity) insofar as these relate to the design of the snorkel bedrooms and the use of highlight windows as primary light sources within the Applicant's proposed residential flat building.

Is the bulk and scale of the Proposed Development acceptable?

1. Clause 28(2) of SEPP65, requires consideration of the design quality principles of SEPP65, and relevantly in this appeal concerning bulk and scale, that includes:
2. Design Quality Principle 2, concerning built form and scale (see above at [28]).
3. The Respondent's contention concerning the bulk and scale of the Proposed Development included reference to the following matters: 1. the streetscape presentation of the Proposed Development and its acceptability in terms of the character of the local area, which I have already addressed (see above at [60]); 2. the design and articulations of various elevations of the Proposed Development, which I will address in relation to the question concerning the acceptability of the architectural cohesion of the Applicant's elevations (see below at [108]); 3. whether the Proposed Development would create an overbearing presence on the neighbouring lots, in particular in relation to the neighbouring dual occupancy at 39 and 39A Barber Avenue, which I now consider.
4. Part 2 of the ADG provides tools to support the strategic planning processes of government, in particular local government, when preparing planning controls.
5. Part 2F of the ADG, concerns building separation, and provides guidance in the setting of separation controls, and this guidance is reflected within objective 3F-1 along with its design criteria and design guidance.
6. Objective 3F-1 identifies building separation distances that, if adopted in the design of apartment buildings, would achieve reasonable levels of external and internal privacy, and it requires that separation distances should be shared equitably between neighbouring sites.
7. The Applicant submitted that: 1. the principal side setback of concern was the eastern side setback to 39 and 39A Barber Avenue; 2. it had adopted a design approach of placing the Proposed Development at its ground floor level and up to level 3 at a distance of 6m from its eastern side boundary, and siting the building at 9m from the eastern side boundary at levels 4 and 5, noting that at these higher levels there were non-compliances in relation to the balconies of unit 37 to the east, and unit 41 to the west; 3. any residual overlooking impacts from habitable rooms had been mitigated through the use of highlight windows and/or screens to prevent overlooking towards the dual occupancy currently occupying 39 and 39A Barber Avenue.
8. The Respondent submitted, supported by the evidence of Mr Anzellotti, that: 1. the Proposed Development contained excessive density for the Subject Site, and that this resulted in potential overlooking impacts; 2. the Applicant's design response to the potential overlooking impacts of the Proposed Development was to provide highlight windows that had resulting impacts on the Proposed Development's compliance with solar access controls in the ADG (see above at [94(4)]).
9. Having considered the submissions of the Parties and the evidence of the town planning experts, I have concluded that: 1. the side building separations provided within the Proposed Development are acceptable and are generally consistent with the provisions of Part 3F-1 of the ADG. Also, where non-compliances occur these are minor and, in my assessment, the Proposed Development achieves objective 3F-1 of the ADG as it provides reasonable levels of external and internal visual privacy. 2. that the Proposed Development is consistent with SEPP65 Principle 2 (Built form and scale) insofar as they relate to the alignments and proportions of the Applicant's residential flat building.
10. In reaching the conclusions above at [104], and notwithstanding the observations I have made above at [60] to [63] in relation to advice obtained from a design review panel, I have taken into consideration the comments by the RDRP member noted in the assessment report of Penrith City Council of 30/1/2019 in relation to built form as scale.
11. However, as noted by the Respondent, and notwithstanding my satisfaction with the side setbacks of the Proposed Development in terms of objective 3F-1 of the ADG and Design Quality Principle 2 of SEPP65, the design responses required to achieve this outcome have resulted in other non-compliant outcomes of the Proposed Development in relation to the provisions of the ADG, most notably in relation to the provisions solar access to apartments within the proposed building.

Conclusion in relation to the adequacy of the residential amenity of the Proposed Development

1. Having evaluated the Applicant's Proposed Development in relation to the components of residential amenity identified above at [64], I have concluded that: 1. the residential amenity of the Proposed Development is acceptable in relation to: 1. natural ventilation, for reasons provided above at [89]; 2. internal apartment design, insofar as they relate to balconies and the proposed design of the circulation areas, for reasons provided above at [94(1)] and [94(2)], respectively; 3. character/bulk and scale, for reasons provided above at [104]; 1. the residential amenity of the Proposed Development is not acceptable in relation to: 1. solar access, for reasons provided above at [70] and [71]; and 2. common open space, for reasons provided above at [80]; 3. internal apartment design, insofar as they relate to the inclusion of snorkel bedrooms, for reasons provided above at [94(3)], and the use of highlight windows as primary light sources in habitable rooms, for reasons provided above at [94(4)].

Do the Applicant's elevations of the Proposed Development demonstrate acceptable architectural cohesion?

1. The architectural cohesion of the Applicant's elevations for the Proposed Development were the subject of written evidence of the urban design experts, Mr Geoff Baker for the Applicant, and Mr Brett Newbold for the Respondent, provided within their joint expert report tendered as evidence at the hearing.
2. The urban design experts had agreed that the mass and scale of the Proposed Development had been moderated by a more pronounced of the front and side elevations contained within the Applicant's further amended plans.
3. However, the urban design experts had also agreed that those further amended elevations had not incorporated a number of important design elements proposed by Mr Baker in an earlier expert report, and, as a consequence, the scale and bulk of the Proposed Development had not been sufficiently moderated. They also agreed that further amendments to the elevations of the Proposed Development were desirable.
4. On the final day of the hearing the Applicant tendered as evidence its so-called version F architectural plans, supporting solar access and cross ventilation plans and an amended schedule of finishes, which it said responded to the agreed conclusions of the urban design experts.
5. On the basis of the Applicant's further amended plans I am satisfied that the Applicant's elevations of the Proposed Development demonstrate acceptable architectural cohesion, and any residual matters could be satisfactorily addressed through conditions of consent, should the Applicant's Proposed Development be subject to the grant of consent.
6. I also conclude that the Proposed Development is consistent with SEPP65 Principle 2 (Built form and scale) insofar as they relate to the articulation and manipulation of elements of the Applicant's residential flat building.

Impact on the adjacent dual occupancy

1. The neighbouring properties to the east of the Subject Site at 39 and 39A Barber Avenue are owned by the Aboriginal Housing Office.
2. The Respondent within its amended statement of facts and contentions had identified that the Proposed Development would have potential impacts of that adjoining property. Additionally, the owner of those lots had identified that if approved, the Proposed Development would isolate 39 and 39A Barber Avenue.
3. The Applicant advised that it had written to the owners of 39 and 39A Barber Avenue conveying an offer to purchase those lots at market value. That letter of offer, which was tendered as evidence at the hearing, had been based on an independent market valuation of the lots, and that offer had not been accepted by the owners of the adjoining lots.
4. Notwithstanding the non-acceptance of this offer by the owners of the adjoining lot, the Respondent advised that it was satisfied that the offer was consistent with market value, and the Applicant had made reasonable efforts to purchase the lots at 39 and 39A Barber Avenue.
5. I acknowledge that should the Applicant's Proposed Development be subject to a grant of consent, a consequence of that grant of consent would be the isolation of lots at 39 and 39A Barber Avenue.
6. Notwithstanding this potential isolation of these adjoining lots, I am satisfied that the Applicant has made a reasonable offer to purchase those lots from their owner.
7. As a consequence, the potential isolation of the neighbouring lots at 39 and 39A Barber Avenue, would not, in my assessment, be a reason for refusal of the Applicant's Proposed Development.

Conclusions

1. Having considered the submissions of the Parties, the testimony of the experts, and the design quality of the Proposed Development, in accordance with the design quality principles of SEPP65 and the provisions of the ADG, as required under cl 28(2) of SEPP65, I have concluded that: 1. the Applicant's landscaping plans for its Proposed Development are acceptable, particularly in relation to the character and functionality of the landscaping proposed in the front setback for reasons that it is consistent with: 1. the objectives and provisions of PDCP concerning neighbourhood character, particularly those of subclauses 2.5.2 and 2.5.16 of Part D2, and the relevant provisions of the ADG, including those within Parts 4O concerning landscaping design, and in particular the numeric guidance provided within Table 4 and the objectives 4O-1 and 4O-2 of that Part of the ADG, for reasons provided above at [57]; 2. SEPP65 Design Quality Principle 1 in relation to context and neighbourhood character for reasons provided above at [60] and Design Quality Principle 5 in relation to landscape, also for reasons provided above at [60]; 1. the architectural cohesion of the elevations of the Proposed Development are acceptable for reasons provided above at [112] and [113]; 2. the Applicant's Proposed Development does not provide adequate residential amenity because it is inconsistent with: 1. the solar access provisions of Part 4A of the ADG and SEPP65 Design Quality Principle 4, concerning sustainability, and Design Quality Principle 6, concerning amenity, for reasons provided at [70] and [71]; 2. the common open space provisions of Part 3D of the ADG and SEPP65 Design Quality Principle 6, concerning amenity, for reasons provided above at [80]; 3. the provisions of Objective 4D of the ADG concerning the design of rooms with respect to the visibility of windows, for reasons provided above at [94(3)]; 4. the further provisions of Part 4A of the ADG, and in particular, objective 4A-2, in relation to the use of highlight windows as a primary light source in habitable rooms, for reasons provided above at [94(4)]; 1. notwithstanding my conclusions above at [(1)] and [(2)], the Applicant's Development Application should not be approved because it has not satisfied the provisions of SEPP65 and the ADG, for the reasons provided above at [(3)].

Orders

1. The orders of the Court are: 1. The Applicant is granted leave to rely on amended plans and amended reports; 2. The Applicant is to pay the Respondent's costs thrown away, pursuant to the provisions of s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed; 3. The appeal is dismissed; 4. The Applicant's development application DA18/0240 for demolition of two existing dwellings and construction of a six-storey residential flat building containing 45 apartments and with two levels of basement car parking at 41 and 43 Barber Avenue, Penrith, is determined by refusal; 5. The exhibits are returned, with the exception of Exhibits A, D and F.

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: 21 September 2020