Emerald Retail Pty Ltd v Penrith City Council

The Site

1. The assessment of the site within context of its surroundings is based on observations made during the site view and consideration of the evidence before the Court.
2. The site is a corner lot, which fronts to Pages Road (western boundary) and John Street (southern boundary) for a length of 44.97 m and 63.53 m, respectively. It is not agreed by the experts which of these boundaries forms the primary and secondary frontage for the site. The Applicant adopts Page Street as the 'front' for the purpose of establishing setbacks. The northern and eastern boundaries of the site are 45.76 m and 41.54 m in length, respectively. The total area of the site is 2275.3 m2.
3. The site is currently vacant of structures, relatively flat, and bounded by numerous established and primarily non-native tree species, with the remaining area covered in grass.
4. Cook Park is located adjacent to the John Street frontage.
5. Surrounding the site, are single and two storey detached dwellings, as well as single, two and three storey (attached) multi-dwelling developments. Dwellings in the area are variable in age and style, which appear to be undergoing transition and renewal along both streets that front the site.
6. Located at 31-33 Pages Road, is a brick cottage listed as a heritage item under Sch 5 of the Penrith Local Environmental Plan 2010 (item #801), considered to have historical and aesthetic/technical significance.

The remaining contentions in consideration of the (amended) application

1. At the commencement of the hearing, the Respondent identified the primary contentions remaining as being:

• inconsistency with the existing and desired, future character due to an unacceptable bulk and scale;
• overdevelopment of the site;
• excessive tree removal;
• does not demonstrate a reduction in urban heat island effect in Penrith; and
• adverse residential amenity impact.

1. Based on the amendments made to the application, agreed (draft) conditions of consent and expert conferencing/evidence, the Respondent advises that the other contentions, as raised in the amended Statement of Facts and Contentions (ASoFC, Exhibit 1), have now been resolved or are not pressed. Where I deviate from this position, it is explained in the judgment.
2. Where there are jurisdictional requirements for consideration, in order to grant consent to the application, the Court must form its own opinion of satisfaction based on the evidence, as explained by Preston CJ in Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117.
3. An assessment of the merits and relevant jurisdictional requirements of the amended application is provided below, with the issues raised by residents also informing the Court's consideration, where applicable.

Resident submissions

1. In response to notification of the original application, made consistent with the requirements of the Penrith Development Control Plan 2014, the Council received three submissions from two residents. The (amended) application was renotified, although no submissions in objection were received. The written submission of all objectors is tendered in Exhibit 10, which have been considered by the Court.
2. In addition, at the start of the hearing, one resident provided an oral submission to the Court, with issues raised consistent with those made in previous written submissions.

Experts

1. The Court was provided with written and oral evidence from the following planning experts: Mr Adam Mainey, for the Applicant, and Ms Donna Clarke, for the Respondent. They rely on their joint experts reports in Exhibits 2 and 3.
2. The landscape/arboriculture experts, Ms Catriona Mackenzie, for the Applicant, and Ms Donna Montgomery, for the Respondent, also gave oral evidence, and rely on their joint expert reports, tendered as Exhibits 4 and 12.
3. Written expert evidence was provided by the following experts to address contentions resolved, although which have been considered by the Court:

• Stormwater and water sensitive design - Mr Grant Harlow, for the Applicant, and Messrs Tim Gowing and John Skaf, for the Respondent, who rely on their joint expert report, tendered as Exhibit 7.
• Traffic - Mr Supun Perera, for the Applicant, and Mr Philip Saverimutti, for the Respondent, who rely on their joint expert report, tendered as Exhibit 8.
• Waste - Mr Adam Mainey, for the Applicant, and Ms Aisha Poole, for the Respondent, who rely on their joint expert report, tendered as Exhibit 5. Ms Poole also provided a supplementary statement in Exhibit 6.

Relevant planning controls and legal framework for assessment

1. The requirements of s 4.15(1) of the EPA Act are relevant for the Court's consideration of the application, as described below: 4.15 Evaluation (cf previous s 79C) (1) 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.
2. Pursuant to cl 49 of the EPA Reg, the Applicant has satisfied the Court with the provision of written consent from the current landowners of the land that relate to the amended application. This is provided in Exhibit A.
3. Pursuant to s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience), the Council has relevantly assessed the contamination status of the site, based on the application's detailed site investigation, DSI (prepared by Foundation Earth Sciences, dated December 2021) and Remediation Action Plan, RAP (prepared by Foundation Earth Sciences, dated December 2021), tendered in Exhibit A. This assessment demonstrates that the site can be made suitable for the proposed (residential) use, which together with the agreed conditions of consent, address the relevant requirements of the SEPP Resilience. It is noted that the areas subject to the (actions described in the) RAP are not currently covered by existing trees and that site remediation, as per the RAP, was not originally sought by the application (as it was addressed in the Prior Consent). However, the Applicant now seeks that the application be amended to include site remediation, to satisfy s 4.6.
4. The site is located within areas described in s 2.3 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity), being within the Hawkesbury-Nepean catchment. The proposed development is assessed as complying with the relevant provisions of the SEPP Biodiversity, and specifically, that the proposed stormwater management (originally in contention) is designed to protect the water quality in the catchment, pursuant to s 6.6. The proposed development seeks removal of all vegetation on the site, which remains in contention, and is addressed later in this judgment. Removal of vegetation on the site requires approval upon the grant of consent, pursuant to s 2.6.
5. The site is located within land subject to the State Environmental Planning Policy (Precincts - Western Parkland City) 2021. No relevant provisions are engaged for consideration of the application.
6. Pursuant to s 6 of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, the application must be supported by a BASIX certificate relevant to the proposed development. The amended application relies on a BASIX Certificate (1261343M_04), tendered in Exhibit C, and which relates to the buildings described in the proposed development, as amended.
7. The site is situated over land zoned R3 Medium Density Residential, pursuant to cl 2.3 of the Penrith Local Environmental Plan 2010 (PLEP). The proposed development is deemed permissible with consent in the R3 zone. The Court must have regard, in consideration of the application, to the R3 zone objectives, as described in cl 2.3, below: Zone R3 Medium Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for a concentration of housing with access to services and facilities. • To enhance the essential character and identity of established residential areas. • To ensure that a high level of residential amenity is achieved and maintained. • To ensure that development reflects the desired future character and dwelling densities of the area.
8. The provisions of the PLEP relevant to the proposed development and site are considered satisfied, except those relating to cl 7.30, described below, which remain in contention and are addressed later in the judgment: Cl 7.30 Urban heat (1) The objectives of this clause are to - (a) ensure development incorporates planning and design measures to reduce the urban heat island effect in Penrith, and (b) ensure buildings and outdoor spaces are thermally comfortable for people living and working in Penrith, particularly during summer, and (c) promote the cooling benefits of green infrastructure and water in the landscape. (2) This clause applies to land in the following zones - (a) Zone RU5 Village, (b) a residential zone, (c) an employment zone, (d) a mixed use zone, (e) a special purpose zone, (f) a recreation zone, (g) Zone C4 Environmental Living. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that planning and design measures are incorporated to reduce the urban heat island effect that - (a) maximise green infrastructure, and (b) retain water in the landscape, and (c) use design measures to ensure the thermal performance of the development achieves a high degree of passive cooling, and (d) use building, paving and other materials that minimise heat impacts, and (e) reduce reliance on mechanical ventilation and cooling systems, to conserve energy and to minimise heat sources. (4) In this clause - green infrastructure means the network of green spaces, natural systems and semi-natural systems including waterways, bushland, tree canopy, green ground cover, parks and open spaces, that - (a) supports sustainable communities, and (b) is strategically designed and managed to support a good quality of life in an urban environment. urban heat island effect is a result of conditions that contribute to higher temperatures in urban areas, including - (a) use of roads, car parks, pavements, roofs, walls and other hard and dark surfaces, and (b) activities that generate heat, including waste air from mechanical cooling systems, and (c) reduction in green infrastructure.
9. The provisions of the Penrith Development Control Plan 2014 (PDCP) are a relevant consideration in the Court's merit assessment of the application, particularly those sections described below, as referenced by the experts: 1. Part C2 - Vegetation Management 2. Part C3 -Water Management 3. Part C14 Urban Heat Management 4. Part D2 - Residential Development, Section 2.4 Multi Dwelling Housing

Does the proposed development propose sufficient landscaping and reduce the urban heat island effect in Penrith?

1. A contention raised by Council relates to the proposed removal of all trees from the site and the effectiveness of replacement plantings to provide sufficient effective landscaping achieves residential amenity and can address the urban heat island effect in Penrith, as well as enhancing the character of the streetscape. I address the character related part of the contention later in the judgment as there are other elements that require consideration in the character assessment.
2. In part, this contention relates to the satisfaction of cl 7.30 of the PLEP, which is raised in the ASoFC, Exhibit 1, as an insufficient information contention. This issue was considered by the planning experts in their joint expert reports, Exhibits 2 and 3. The planning experts also address this issue in their oral evidence.
3. The Council assesses that the Applicant has not sufficiently demonstrated satisfaction of cl 7.30 of the PLEP, because of the extensive removal of existing canopy trees on the site and the lack of effective replacement of (medium-large) canopy trees. It is assessed that there is a reduction in green infrastructure, as defined in cl 7.30(4) of the PLELP below: green infrastructure means the network of green spaces, natural systems and semi-natural systems including waterways, bushland, tree canopy, green ground cover, parks and open spaces, that - …(Emphasis added.)
4. The Applicant accepts that all trees are proposed to be removed from the site. However, relies on the proposed placement of large canopy trees along the street frontages and centrally in the site, and small canopy trees along the site boundaries, as being sufficient to offset any loss of existing canopy trees. Together with the proposed consent conditions to protect an existing tree and new plantings, and the proposed grassed driveway area, the Applicant considers the design of green infrastructure, as described in cl 7.30 of the PLEP is sufficiently addressed. The Applicant considers there is no requirement for medium-large canopy trees to be planted along the northern boundary of the site, as sought by Council to reduce the heat island effect for Penrith.
5. The planning and arboricultural experts do not agree whether it is appropriate to extensively remove the existing trees from the site and rely on the replanting of a greater number (of less mature and generally smaller) canopy trees to provide residential amenity, as described in Part D2 of the PDCP, or reduce the urban heat island effect in Penrith, as described in cl 7.30 of the PLEP and Part C14 of the PDCP.
6. Part D2, section 2.4.8 of the PDCP requires a minimum 40% of the site area to be landscaped. Ms Clarke does not agree that numerically the 'landscape area' has been satisfied, in consideration of the definition in the PLEP, below: landscaped area means a part of a site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area.
7. Mr Mainey accepts the minimum landscaped area proposed is 38.4%, without including the Surepave proposed on the driveway. However, considers that the inclusion of the permeable, grassed surface along the driveway is consistent with the definition above, thereby providing a sufficient landscaped area of 45%.
8. The experts agree that the existing Washington Palm (tree 9) should be transplanted and relocated on the site. Whilst the landscape plan in evidence does not currently reflect this, it was agreed by the experts that the new location of tree 9 should be in the south-east corner of the site, which can be addressed by condition of consent.
9. It was also agreed by the arboriculture experts that medium (to large) canopy trees along the northern and western boundaries are sought to address the urban heat effect in Penrith. These experts agree that the proposed pear trees along the northern boundary are a small canopy tree, unlikely to provide an interlocking canopy, and that based on the area of the PoS, could be subject to removal as shown in the landscape plan. They agree that an effective 'interlocking canopy' is sought along the northern and western boundaries to address solar impact, and to reduce the urban heat island effect being experienced in Penrith, as described in Part C14, section 1.4 of the PDCP.
10. The experts agree that to provide an interlocking canopy on the site, medium-large canopy trees with a spread of 8 to 10 m is required along the boundary. It was also agreed that the proposed 4 m (side) setback along the northern boundary is not sufficient for a tree to attain a medium-large canopy in the PoS's, and that the proposed pear trees cannot achieve this canopy spread. The experts suggested that a 5 m (northern side) setback, as shown in Attachment A of Exhibit 12, would be more appropriate.
11. A greater depth of PoS would support (canopy) growth, and also ensure the pear trees are planted >3 m from the proposed buildings (and therefore not removable without Council approval).
12. Based on the landscape plans in evidence before the Court, the proposed pear trees on the northern boundary would need to be planted less than 0.9 m from the fence to ensure their trunks are >3 m from the proposed buildings. It was suggested by Ms Montgomery that a condition could be imposed restricting the removal of the pear trees from the PoS.
13. Misses Clarke and Montgomery assess that the proposed landscaping does not achieve the objectives and controls of Part D2, sections 2.4.16 and 2.4.17, and Part C14, section 1.4 of the PDCP. The proposed replacement trees on the site, although agreed as numerically more than proposed to be removed from the site, are not suitable for the areas nominated on the landscape plan and not strategically placed on the site. It is assessed that these plantings will unlikely provide sufficient benefit to residents on the site, and the long-term viability of these plantings is questionable, due to the potential for removal by future residents.
14. These experts consider that the proposed removal of all canopy trees on the site, except for the Washington Palm (tree 9), will result in an effective loss of green infrastructure, and that new plantings cannot provide an interlocking canopy along the northern boundary. To address residential amenity and reduce the urban heat island effect, the retention of some existing canopy trees along the northern (and western) boundaries, specifically identified as trees 4, 6 and 16, that are supplemented with new (medium-large canopy) plantings along the boundaries, capable of achieving an interlocking canopy, is required.
15. Ms Mackenzie notes that the trees preferred to be retained by Council are either exempt (from approval) under the PDCP, not retainable based on the current architectural design or likely to cause a nuisance to future residents (specifically tree 4, a mulberry tree). She agrees that, by condition, several of the new tree plantings shown in the landscape plan could be amended to include larger canopy trees, as shown in Exhibit 12. This could be dealt with by condition of consent.

Findings

1. I understand that the Prior Consent was assessed before cl 7.30 of the PLEP was introduced. Any reliance by the Applicant on the Prior Consent approving the removal of all existing vegetation on the site, in my assessment, has minimal weight. The (Prior) consent to the removal of all vegetation from the site, should not form the baseline assumption for the application now before the Court. Each application is assessed on its merits and my consideration relates to the existing conditions on the site.
2. It is also acknowledged that the Prior Consent relates to a different development that relied on an extensive basement. This is not proposed by the application. It is also noted that the Applicant has not removed all the trees as approved under the Prior Consent.
3. It is an accepted jurisdictional fact that the application before the Court must satisfy cl 7.30 of the PLEP. The experts have had sufficient opportunity to address this issue raised in contention, as described in their evidence and Counsel has had the opportunity to address the Court in their written submissions provided on 3 November 2023, 13 November 2023 and 15 November 2023.
4. With regards to the proposed dimension of the landscaped area, I accept Mr Mainey's approach to include the grassed (Surepave) section of the driveway, as being consistent with the definition provided in the PLEP. The proposed development therefore complies with the numeric requirement for landscaped area, as described in Part D2, section 2.4.8 of the PDCP. Surepave, as explained to the Court, is designed to allow grass to grow within segmented grids, that can be driven over, and which support 'green infrastructure', consistent with cl 7.30(4) of the PLEP.
5. I find that on balance, there is excessive hard surface (paving) proposed in the driveway combined with the communal open space (CoS) and parts of the PoS. I accept there are no specific controls that relate to the surface treatment of a CoS and PoS. However, the effect of the proposed treatment of the CoS, minimal landscaped area of the PoS and the driveway is to increase the area of hard surface on the site, without the benefit of providing medium-large canopy trees.
6. I acknowledge there are pockets of large canopy trees proposed, by condition, on the site and along the street frontages. However, on balance, the application does not maximise green infrastructure on the site, as described cl 7.30(3)(a) of the PLEP.
7. I agree with the experts that the proposed dimension of the (northern) side setback is not sufficient to sustain small or medium-large canopy trees that could provide an interlocking canopy, as described in Part C14, section 1.4 of the PDCP. The proposed location of new plantings relative to the building (unit) enclosing walls, as shown on the landscape plan, would not require approval (from Council) to be removed, pursuant to Part C2, section 2.1(D)(3) of the PDCP. This is not cured with sufficient certainty by the proposed condition of consent, as explained by Ms Montgomery and provided in the draft conditions of consent.
8. The proposed extensive removal of established (medium-large) canopy trees on the site has not been demonstrated as necessary nor reasonable. I am not satisfied that at least some of the existing trees could be retained on the site, as discussed by the experts, with a more effective site design. The retention of at least some of the existing (canopy) vegetation, supplemented with strategically placed/designed new plantings, has the capacity to provide an effective interlocking canopy that reduces the urban heat island effect, and provides residential amenity. I consider that the proposed development is inconsistent with objectives (i), (ii) and (iii) of Part C14, section 14.2A and controls (b) and (c) in Part D2, section 2.4.8B, of the PDCP. In consideration of Part C14, section 14.2, I find that objective (c) is not sufficiently addressed.
9. I accept Ms Mackenzie's evidence that tree 16 (an avocado tree) is an exempt species under the PDCP. I however prefer Ms Montgomery's evidence that the retention of this established and mature canopy tree (16) would provide an immediate and suitable tree to support an interlocking canopy along the northern boundary. The reliance on new plantings, rather than augmenting with existing trees is inconsistent with Part C14, section 14.2 and Part D2, section 2.4.8. Retention of tree 16, together with other trees on the adjoining (northern) property, supported by effective new plantings of medium-large canopy trees, would reasonably provide residential amenity and facilitate the reduction in the urban heat effect in Penrith.
10. The proposed removal of all (canopy) trees on the site without effective canopy tree plantings result in a 'minimisation of green infrastructure'. The proposed new plantings, as described by the experts along the northern boundary, are not strategically designed nor located to provide sufficient canopy coverage.
11. I am not satisfied that the proposed (small canopy) plantings along the northern (and western) boundaries, without the retention of any existing trees is reasonable nor capable to achieve an effective (interlocking) canopy coverage, as described in Part D2, section 2.4.16(B)(2) of the PDCP.
12. Whilst I am satisfied that there are no assessed adverse residential amenity impacts to adjoining properties, I consider, based on the evidence, that the application has potential to result in adverse residential amenity in the summer months for the north (and likely also the west) facing PoS's. Objective (b) in cl 7.30(1) of the PLEP is not sufficiently addressed.
13. I also consider that objectives (a) and (c) of cl 7.30(1) of the PLEP are not sufficiently addressed. It is agreed by the experts that the new plantings will take time to establish, there is no benefit of an existing canopy, and the plantings along the northern boundary are not suitable in the area as planned.
14. I acknowledge that the proposed grassed 'Surepave' surface over the driveway is a positive contribution to addressing the urban heat island effect, pursuant to cl 7.30(3)(d) of the PLEP, and forms part of the green infrastructure. However, a combination of effective strategies is required to maximise green infrastructure on the site, including ensuring suitable (interlocking) tree canopy cover is sustainable in the long term. Effective action to reduce the urban heat island effect in Penrith is likely achieved through strategic planning and design of buildings, landscaping and open spaces. I find there is an effective minimisation (and likely reduction to what is currently on the site) in green infrastructure, that does not support a good quality of life in this urban environment, pursuant to cl 7.30(4). The site is currently covered in grass and has numerous medium-large canopy trees. These are proposed to be replaced by hard surfaces with small areas of Surepave, limited area of small to large canopy trees and grass.
15. On balance, after consideration of the evidence, I assess that the application does not achieve the 'maximisation of green infrastructure', as described in cl 7.30(3)(a) of the PLEP, and cl 7.30(4).
16. I acknowledge that cl 7.30 of the PLEP seeks action at the local scale to effect a regional outcome, to address the urban heat island effect across Penrith. I also recognise that the site is but a small part of the Penrith area. However, when assessed within the context of cl 7.30, maximising green infrastructure on the site has the potential to make a difference (cumulatively) to reduce the urban heat island effect in Penrith. The many (individual land holdings), make the whole (Penrith area).
17. I find that the relevant provisions of the PLEP and PDCP that support the reduction in urban heat in Penrith are not achieved. In consideration of s 4.15(1) of the EPA Act, I find that the application does not satisfy s 4.15(1)(a)(i) and (ii).

Does the proposed development enhance the existing and reflect the desired, future character within the R3 zone?

1. A primary contention of Council is that the proposed development, as designed and sited on the land, does not have sufficient regard to the objectives that relate to the existing and desired, future character of the R3 zone. This issue relates to the proposed bulk and scale of the buildings/structures, setbacks and design of landscaping.
2. It is agreed by the experts that there is no descriptive character statement in the PDCP that relates to the R3 zone or to multi-dwelling developments. However, the experts draw their assessment of the existing character from their observations made in the streetscape, noting the area is under (development) transition. The desired, future character is considered primarily relative to the existing streetscape and application of the relevant controls of the PLEP and PDCP. With regards to multi-dwelling developments, it is agreed that the provisions described in Parts C14 and D2, and specifically, section 2.4 of the PDCP are relevant for consideration in the character assessment of the proposed development.
3. Relevantly Part D2, section 2.4.1 of the PDCP, explains that the residential character (for a multi-dwelling development) is assessed by consideration of the following: "1) Location and density of development: a) proximity to busy centres or major roads; b) residential density and mix of housing types; c) proximity to heritage precincts; d) frontage to public parks. 2) The local landscape and its configuration: a) flat or sloping; b) well-vegetated or cleared; c) frontages to streams or the Nepean River. 3) Predominant patterns of planning and design a) displayed by local buildings and their gardens; b) setbacks and building separation; c) height, scale and bulk; d) garaging; e) articulated forms and varied plantings"
4. Further to this, Part D2, section 2.4.2 of the PDCP explains that new multi-dwelling developments should aim to address the following objectives: "a) New multi dwelling housing development should adopt key features of established suburban design. b) Dwellings, their entrances and private courtyards look towards the street, or to the rear boundary."

Expert evidence

1. The experts agree that the proposed development complies with relevant height development standards and controls, established in the PLEP and PDCP, and that there are no numeric floor space ratio development provisions. The experts also agree that there are no numeric density provisions in the PLEP or PDCP that relate to the site.
2. The experts agree that the character assessment relating to development on the site should be considered within the visual catchment, and specifically of the R3 zone. The visual catchment is considered to include the streetscape of Pages Road, John Street and across to Cook Park, and specifically of the multi-dwelling developments. This forms the relevant area for the character assessment.
3. With regards to the elements of the character assessment relating to the proposed development, there remains dispute between the experts regarding density of units, setbacks, amenity to POS's, landscaping and bulk/scale.
4. The experts do not agree that the proposed (unit) density and building form will present to the streetscape that enhances the existing character of the R3 zone (within the visual catchment) nor reflects the desired, future character.
5. The planning experts agree that there is only one relevant adjoining neighbouring property, at 14 Pages Road, that could establish the average front setback, pursuant to Part D2, section 2.4.5(B)(3)(a) of the PDCP. Ms Clarke assesses that 14 Pages Road establishes the average front setback for the site at 9.08 m. The proposed development seeks a front setback of between 4.5 m and 5 m.
6. Mr Mainey, however, adopts the numeric requirement established in section 2.4.5(B)(3)(b) of Part D2 of the PDCP, requiring a minimum front setback of 5.5 m, which allows for encroachment of verandahs at 2.4.5(B)(4)(a). The proposed development therefore complies with section 2.4.5.
7. The experts agree that the numeric controls relating to rear and side setbacks for multi-dwelling developments, described in Part D2, specifically in sections 2.4.5 and 2.4.6 of the PDCP, respectively are relevant for consideration. The proposed rear (eastern) setback is 2.4 m, rather than 6 m (for a two-storey building) as described in section 2.4.5(B)(1)(b). The proposed side setback (northern) at 4 m complies with the control section 2.4.6(B)(7). The experts however do not agree that the proposed rear and (northern) side setbacks are sufficient to achieve residential amenity or reduce urban heat island effect.
8. With regards to considering residential amenity, the experts agree that four out of the proposed 11 units satisfy the control to receive 3 hours of sunlight (on 21 June) for 40% of the PoS, as described in Part D2, section 2.4.9(B)(1)(f) of the PDCP. The units that fail to receive sufficient sunlight, typically receive less than one hour of sunlight to the PoS on 21 June. The experts disagree that this is the result of overdevelopment of the site and poor spatial arrangement of the units.
9. The experts do not agree whether the proposed buildings, as designed and sited, establish an appropriate bulk and scale in the medium-density residential context, or are compatible with the existing and desired, future character of the R3 zone.
10. The experts do not agree whether the density of the proposed development achieve the R3 zone objective, is reasonable with respect to other similar developments in the streetscape, or results in an overdevelopment of the site. They do agree that there are no numeric density controls described in the PLEP or PDCP.
11. Ms Clarke calculates the proposed (unit/building) density as approximately 206 m2 per unit. The density of 'similar' multi-dwelling developments in the surrounding R3 zone have an average 270 m2 per unit. The higher density (lesser square meterage per unit) proposed on the site is considered uncharacteristic and inconsistent with Part D2, section 2.4.1 of the PDCP. The proposed density does not reflect the R3 zone objective in cl 2.3 of the PLEP. The result is overdevelopment of the site.
12. Mr Mainey explains that the PLEP or PDCP do not establish a (numeric) density control and it is not appropriate to use the approach adopted by Ms Clarke to assess the density related zone objective. As the proposed development complies with most of the numeric setbacks described in the PDCP, and all relevant provisions of the PLEP, the application does not demonstrate an overdevelopment of the site.
13. The experts agree that the proposed length of buildings exceeds the 20 m building length control established in Part D2, section 2.4.4(B)(3)(a) of the PDCP.
14. With regards to the presentation of (unit) buildings on the site and to the streetscape, Ms Clarke considers that the lack of articulation of the first-floor elements, particularly those adjoining the driveway entrance (between units 3 and 4), corner of the site (unit 5) and along the eastern boundary (units 1 and 11), is inconsistent with that observed and intended for the R3 zone, and she references Part D2, section 2.4.12 of the PDCP. She assesses that together with the excessive building length, the poorly articulated wall elements and a lack of variation in the materials in the building form, there is an inconsistency with the relevant PDCP controls, which results in an unacceptable bulk and scale.
15. Mr Mainey, however, considers that the articulation of the buildings is informed by the proposed landscaping, balconies within the front setback and a material (band) separating the ground and first floors, being consistent with Part D2, section 2.4.12(B)(2) of the PDCP.
16. With regards to fencing, Ms Clarke assesses that the proposed 1.8 m (black) steel blade fencing along John Street and Pages Street frontages will be more than 50% of its length. It is acknowledged that the fence is required at this height to protect the (privacy) amenity of the PoS in units fronting to the street. The proposed fencing is however considered uncharacteristic in the existing streetscape and inconsistent with the desired, future character as described in Part D2, section 2.4.18(B)(2) of the PDCP.
17. Mr Mainey however considers that the proposed landscaping along the front fence will effectively soften the bulk of the fence within the front setback. He does not consider that the proposed metal blades of the fence are viewed as 'solid' metal panels, although acknowledges that this fence feature is not currently seen in the streetscape. The proposed fence style is envisaged in the desired, future character, consistent with Part D2, section 2.4.18 of the PDCP.

Findings

1. My findings have considered the evidence of the experts, observations made during the site view, documents/plans supporting the (amended) application and draft conditions of consent provided by the parties.
2. In assessment of character as it relates to the proposed development, I adopt the visual catchment agreed by the experts, being primarily along Pages Road and John Street, and confined to the R3 zone. I reference this as the streetscape. In my assessment, I take in the surrounding multi-dwelling developments along Pages Road and John Street, with a focus on those without basements.
3. I acknowledge there is a heritage item located along Pages Road, however, consider that this building is located in a different planning zone and not adjacent to the site. It is not affected by the proposed development, pursuant to cl 5.10 of the PLEP. I accept the planning experts' evidence that this site is unlikely to be developed due to its heritage significance. The site does not form part of a heritage conservation area, pursuant to cl 5.10 of the PELP.
4. All the objectives of cl 2.3 of the PLEP relevant to the R3 zone are a consideration of the Court. Those relating to character are a focus of my consideration below, because they remain in contention.
5. I am informed in my consideration by the planning principle adopted in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 by Roseth SC at [22]: "22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve."
6. On the balance of the evidence, I am not satisfied that the proposed development enhances the existing character of the streetscape or R3 zone. In addition, I am not satisfied that the proposed development reflects the desired, future character. My reasoning is provided below.
7. I assess that the proposed multi-dwelling development on the site is uncharacteristic in the streetscape, due to: unreasonable/unacceptable bulk and scale of the proposed buildings, as sited and designed; and ineffective use of landscaping within limited and poorly designed open spaces.
8. I find that the proposed development does not enhance John Street, particularly when viewed at the driveway entry between units 3 and 4, and along the rear boundary; or to Pages Road at the south-western corner at unit 5 and along the side (northern) boundary.
9. There is an assessed dominance of an extensive brick wall façade on the buildings, that have insufficient modulation or material differentiation. This I find is inconsistent with the objectives of Part D2, section 2.4.12 of the PDCP. The poorly articulated walls unreasonably rely on landscaping to soften their bulk and scale. The proposed street trees and the site landscaping is not sufficient to 'soften' the dominance of structures.
10. I adopt Mr Mainey's assessment that the front setback (along Pages Road) should be a minimum of 5.5 m, consistent with Part D2, section 2.4.5(B)(3)(b) of the PDCP. This allows for balconies in the front setback. It is not reasonable to 'average' the adjoining neighbour front setback with one property, as described in s 2.4.5(B)(3)(a). The proposed development therefore satisfies the numeric requirements for the front setback, as described in the PDCP.
11. The proposed orientation of PoS's towards the street frontages is consistent with the provisions of the PDCP in Part D2, section 2.4.14(B)(2)(a). However, when the front setback is minimised, as proposed in this development, there is an unreasonable reliance on a minimum width of landscaping. The landscaping has much work to do to soften hard surfaces, such as the proposed fences and poorly articulated buildings.
12. This application relies on extensive lengths of a fence (>50% of site frontage) with metal blades at 1.8 m high. I assess that this is inconsistent with the PDCP and not sought for the desired, future character. The PDCP seeks a 1.2m high fence at less than 50% of the frontage, as described in Part D2, section 2.4.18(B). I am not satisfied that the desired effect to soften the fence protecting the PoS's has been demonstrated by the landscape plan or the design of the fence.
13. The proposed canopy tree plantings along the street frontages are a positive contribution to the streetscape and relate well to the (Cook) park adjacent to the site. However, as demonstrated by other similar developments viewed in the local area (specifically the R3 zone), a reliance on plantings in the front setback to soften hard structures, such as walls and fences around PoS's, has had limited success. It is unclear why this is the case, however I am not satisfied that this application had demonstrated a likely better outcome. It is accepted that Units 1 to 5 have their PoS oriented towards the front setback, and will not receive sufficient sunlight, as sought in Part D2, section 2.4.9 of the PDCP.
14. I observed during the site view that other multi-dwelling developments in the rely on medium-large canopy trees distributed across their land and along their boundaries, which adds to the character of the R3 zone. I find that the medium-large canopy trees within and along the boundaries of a site form part of the established landscaped character of the R3 zone.
15. The proposed high fencing along the two street frontages, together with the assessed excessive bulk and scale of the external (unit) walls, does not enhance the character nor reflect the desired, future character of the R3 zone. The reliance on plantings to soften the buildings/fence has not been demonstrated as being effective nor reasonable. The relevant controls and objectives in Part D2, section 2.4.1 of the PDCP that inform the desired, future character of the (R3 zone) residential area are not sufficiently addressed.
16. I prefer the evidence of Council's experts that suggest that the rear (eastern) and side (northern) setbacks are not appropriately dimensioned to: provide sufficient sunlight to PoS's for residential amenity; allow appropriately sized canopy trees to be positioned and provide for residential amenity; or ensure trees will optimally thrive to achieve an (interlocking) canopy that reduces the urban heat island effect in Penrith.
17. The constrained dimension of PoS's along the rear (eastern) and side (northern) boundaries does not effectively provide a corridor of habitat, or a green backdrop that is visible from the street, namely Pages Road and John Street. This is sought in Part D2, section 2.4.16(B)(1)(b) of the PDCP.
18. The arboriculture experts agree that the proposed (PoS) dimension along the northern boundary will likely constrain the growth of canopy of trees, and medium-large canopy trees cannot be placed in these areas, contrary to Part D2, section 2.4.16(B)(1)(d).
19. It is acknowledged that Part D2, section 2.4.14(B)(2) of the PDCP does prohibit side setbacks being a location for a PoS. However, I consider that any reliance by this application on a considerable proportion of units (7-11) having their PoS's oriented to the northern (side) boundary, should demonstrate there is appropriate functionality to provide residential amenity and large canopy trees that reflect the character of the zone, consistent with the relevant controls and objectives of the PDCP.
20. With regards to the effectiveness of the proposed (4.02 - 4.67 m) side setback along the northern (side) boundary, whilst numerically complaint with the side setback control (pursuant to Part D2, section 2.4.6 of the PDCP), it has not been demonstrated that the dimension is appropriate for the proposed small canopy trees, consistent with the objective of this provision. The arboriculture experts agree that to support the proposed (small canopy pear trees), a minimum of 5 m setback would be appropriate and beneficial. I am not satisfied that the proposed PoS's along the northern boundary provide effective residential amenity to future residents, consistent with the objectives in Part C14(F), section 14.2. Further to this, it has not been demonstrated that the proposed landscaping can provide an interlocking canopy, as described in Part D2, section 2.4.16(B)(1)(d).
21. I recognise there is a (residential amenity) balance sought by the PDCP, seeking to provide sufficient shade in the summer months and sunlight exposure in the winter months. Effective solar planning therefore requires the appropriate dimension and orientation of units, their PoS, and effective landscaping. There is insufficient sunlight (at 21 June) to the PoS's oriented along the eastern boundary that results in poor residential amenity.
22. The proposed rear (eastern) setback does not comply with the controls established in Part D2, section 2.4.5(B)(1)(b) of the PDCP. The result is a constrained width for the PoS of units 1 and 11, that impedes the selection, location and growth of appropriate canopy trees, as desired in section 2.4.16.
23. I also consider that the inadequate dimension of the rear (eastern) setback presents challenges to the effective growth and protection of canopy trees that provide residential amenity, mitigate urban heat and are characteristic for the streetscape. Trees along the rear boundary are characteristic when viewed from the streetscape along John Street, as sought in Part D2, section 2.4.16(B)(1)(b) of the PDCP.
24. Having regard to the density objective described in cl 2.3 of the PLEP for the R3 zone, and as described in Part D2, section 2.4.1 of the PDCP, I find that the proposed (unit) density is not reflective of the (residential) character of the streetscape. I prefer the assessment made by Ms Clarke, that the proposed development seeks a considerably higher density than observed in similar multi-dwelling developments (excluding those with basements) along Pages Road and John Street. I am satisfied that the proposed development density does not need to be (numerically) the same as surrounding multi-dwelling developments. However, the unit density should seek to compliment the density of other surrounding developments without constraining other factors on the site, such as setbacks, landscaping and residential amenity. The proposed development does not reflect the desired dwelling densities of the area, and also results in non-complaint setbacks, that constrains landscaping.
25. Having regard to the objectives of cl 2.3 of the PLEP for the R3 zone, I am not satisfied that the objectives of the R3 zone have been addressed as the proposed development does not enhance to the existing character or reflect the desired, future character.
26. The proposed development does not address the relevant objectives and controls described in Part D2, section 2.4 of the PDCP. The proposed 11 units, as sited and designed on the site, do not provide for effective landscaping, along all boundaries. The PoS in the front setback relies on high fencing (1.8 m height) along an extensive (>50%) length of the site frontages. There is insufficient material difference to provide visual relief of the buildings and fences. On balance, the proposed development does not demonstrate an acceptable bulk and scale, and does not enhance the existing character of the residential area nor reflect the desired, future character.
27. Therefore, in consideration of s 4.15(1) of the EPA Act, I find that the application does not satisfy subss 4.15(1)(a)(i) and (iii). Based on my assessment, I find the proposed development is an overdevelopment of the site, and not suitable for the site, pursuant to s 4.15(1)(e) of the EPA Act.

Have the resident objections been considered?

1. The residents were given the opportunity, during notification of the original and amended application, to provide written submissions regarding the application. These submissions have been tendered in evidence and considered by the Court.
2. In addition, one resident provided oral submission at the start of the hearing, which was also considered.
3. I am satisfied that the residents have had sufficient opportunity to assess the application and address the Court, pursuant to s 4.15(1)(a)(ii) of the EPA Act. I am also satisfied that the issues raised by objectors have been considered, pursuant to s 4.15(1)(d).

Is the (amended) application in the public interest?

1. After consideration of the evidence before the Court, and matters of relevance to this amended application, I find that the amended application is not in the public interest, pursuant to s 4.15(1)(e) of the EPA Act. The amended application, as assessed: has the potential to cause adverse residential amenity; does not enhance the existing or reflect the desired, future character of the R3 zone; and does not provide appropriate design measures to reduce the urban heat island effect in Penrith.

Conclusion

1. The amended application has been assessed, based on the evidence before the Court, including the (amended) supporting plans, documents, conditions of consent, expert reports, submissions from residents and the Court's observations in the streetscape. Evaluation of the amended application is made in consideration of the provisions described in s 4.15 of the EPA Act.
2. In determining to refuse to grant consent to this amended application, I find that the proposed development does not satisfy the requirements of the relevant regulatory instruments, namely and as assessed in this judgment, the EPA Act and PLEP, in addition to the provisions of the PDCP. The proposed development: does not enhance the existing character nor reflect with the desired, future character of the residential area within the R3 zone; does not reduce (or effectively mitigate) the urban heat island effect for Penrith; likely results in adverse residential amenity to future residents; and is not in the public interest.
3. I determine to refuse consent for Development Application DA 21/0937, pursuant to s 4.16(1)(b) of the EPA Act.

Orders

1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application DA 21/0937, which seeks site remediation, tree removal, construction of 11 townhouses with at grade parking, landscaping, associated civil works and strata subdivision into 12 lots on Lots 1, 2 and 3 Deposited Plan 1432, also known as 16, 18 and 20 Pages Road, St Marys, is refused. 3. The exhibits are returned, except for Exhibits 1, 12, A, B, C, D, E and J.

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