Force G Pty Ltd & Anor v Penrith City Council

Land and Environment Court (NSW)|2015-03-20|Before: Ms J

Judgment

Ms Olsson is the Sole Director of Force G Pty Ltd (1st applicant) and owner of land at 47 Lakeview Drive, Cranebrook. She contracted Better Built Homes (2nd applicant) to build a 2 storey dwelling with detached garage and secondary dwelling above on that land. Better Built Homes lodged Development Application 14/2012 on August 13, 2014 with Penrith City Council seeking consent to construct the development.
As the council had not determined the application within the prescribed period, the applicants filed an appeal against the deemed refusal of the application.
The main contentions in the case are whether the development can be approved as it is inconsistent with an original development consent issued for a master planned estate and a restriction to user that applies to the land, whether the proposal results in adverse amenity impacts on the locality and whether the development accords to the council's planning controls.

The site and the locality

The site is legally described as Lot 116 in Deposited Plan 286343 and is known as No 47 Lakeview Drive, Cranebrook. The allotment is within a Community Title Subdivision known and the Waterside Residential Estate (estate). It is located on the western side of the road and has a frontage of 8.5m to Lakeview Drive and a rear laneway that runs off Gannet Drive and terminates at the northern boundary of the site. That laneway is community property and provides vehicular access to the site and the five lots to its south. The site has a depth of approximately 30m and area of 258sqm. The site is relatively level with a fall of around 600mm from front to rear.
Lakeview Drive is the main, north/south collector road within the estate. Directly opposite the site is a landscaped foreshore and lake.
The surrounding built form is characterised by two storey dwellings with single storey 'rear lane' double garages adjoining to the south and detached, two storey dwellings with primary street frontage access and open rear yards on larger allotments to the north and west. Dwellings on the southern side of Gannet Drive comprise attached dwellings that have been designed to incorporate acoustic measures to address the noise from industrially zoned land to the south.

Background and the proposal

Planning for the Waterside Estate was initially undertaken in the mid-1990s with the gazettal of Penrith Local Environmental Plan 1998 (Lakes Environs) (LEP) and the adoption of Penrith Development Control Plan 1998 (Lakes Environs) (DCP). Those plans made provision for the conservation of remnant Cumberland Plain Woodland, rehabilitation of an identified wetland area, the construction of a residential estate and employment area located around an integrated lake system. The residential portion of the estate will ultimately comprise in excess of 700 dwellings and is nearing completion. The site is one of the few remaining vacant allotments.
The site specific DCP required the preparation and adoption of master plans for the site prior to any application for development. Two masterplans were prepared and have been incorporated into amendments made to the DCP in 1999 and 2000. The site specific DCP was incorporated into Penrith Development Control Plan 2006 (DCP2006).
The estate has been developed in accordance with two major consents, one for the lake construction and earthworks, one for residential infrastructure such as roads, public domain, landscaping and cycleways and a number of other consents that approved roads, integrated housing and dwellings.
The consent relevant to the application is DA11/0602 - Stage 6. That consent authorised 120 dwelling lots, 34 dwellings, 1 secondary dwelling, 50 integrated dwellings (included in Book of Pre-Approved House Plans) and 1 Neighbourhood lot. DA11/0602 created the site, Lot 116 as part of a Community Title subdivision and a dwelling house with detached garage accessed off the rear lane was approved on Lot 116 as one of the 34 dwellings approved under this consent. A secondary dwelling was approved at the southern end of the lane on Lot 121 also under the consent.
Ms Olsson included the Book of Pre-Approved Plans as Annexure F to her affidavit, Exhibit D. Those plans relate to Type B lots.
According to the evidence (Exhibit 3), the dwelling type reflects the size and scale of the site and dwelling, Type A are the largest (i.e. up to 3 storey and greater than 450sqm lots), while Type D are Apartments and E type row terraces (acoustic housing). The variation in lots reflects the diverse mix of housing and density envisaged throughout the estate.
Type C sites are lots 200-299sqm in an area created through an integrated subdivision and dwelling approval. The council has modified DA11/0602 on a number of occasions to amend the design of several individual approved dwellings however these were generally of a minor nature and consistent with the approved designs.
Development Consent DA11/0602 included a condition relevant to the application, condition 82. That condition states: All dwellings must be constructed to a design as specified for each lot in accordance with the plans prepared by J. Wyndham Prince Plan No.8850/DA 12 & 13 Issue C 6/6/11 and an 88B instrument is to be registered against all lots that restricts the construction of any dwelling to be only permitted if in accordance with this development consent and the Waterside Estate Pre-approved Dwelling Designs.
The terms of the Restriction on the Use of the Land in DP286343 that accord to the provisions of the second part of condition 82 are as follows: The owner of the lot burdened must bot erect or allow to be erected a dwelling on the lot burdened unless the construction of the dwelling complies with:- (a)the conditions of Notice of Determination of Development Application No. DA 11/0602 (Development Application) relating to construction of the dwelling; and (b)Waterside Estate Pre-Approved Dwelling Designs which forms part of the Notice of Determination of Development Application No. DA 11/0602 as amended by an Section 96 modification.
The development application seeks consent for the construction of a two storey dwelling house fronting Lakeview Drive. It would be constructed on a building alignment of 3.767m to that road with an entry porch encroaching 1.08m into that setback. Side boundary setbacks vary from 200mm to 1.14m due to the different construction types proposed for the ground and first floors. The dwelling would contain living, dining, media, study, kitchen, bathroom and laundry on the ground floor with four bedrooms, bathroom and ensuite on the first floor. The dwelling has a similar footprint to the adjoining houses to the north and south. Its internal layout and setback from the northern boundary vary from the dwelling house approved under development consent 11/0602.
A two storey building is proposed at the rear of the site to be setback 500mm from the community laneway and 1.81m from the northern boundary and 100mm from the southern boundary. That building would contain one garage space for the proposed dwelling house and one for the proposed secondary dwelling to be constructed above the garages. Both spaces would be accessed from the community laneway.
An external stairway would be constructed along the northern side of the building providing access to that secondary dwelling. That dwelling contains a kitchen, ensuite/laundry and areas designated as a media room and integrated studio however these are effectively the bedroom and living area of the proposed dwelling. It is common ground that the intended use of the upper floor is as a second dwelling. The windows of the bedroom and living room face the laneway and the adjoining community land at the eastern extension of Lapwing Way. A highlight window is proposed on the northern living room wall and frosted windows to the kitchen and bathroom in the eastern elevation would face the proposed dwelling and open space area. No windows are proposed along the southern façade of that building.
A common area of open space is located between the proposed buildings with an area of 53.88sqm. Whilst the plans for which consent is sought do not attempt to separate areas of open space to be used by the residents of each dwelling, the Court notes that a plan has been prepared by the applicants, which does divide the area into two sections with an east/west dividing fence. That would provide an area of 37.8sqm for the main dwelling (including the al fresco area) and 25.35sqm for the secondary dwelling. That plan forms part of Annexure C to Exhibit D. The dining room of the main dwelling would directly adjoin the private open space allocated to the secondary dwelling.
DA11/0602 did not approve any area above the garage and the garage provided parking for two vehicles without any internal partitioning.
The proposed development differs from the plans approved under DA110602 and the terms of the restriction to user are not met.

The planning controls

The application was lodged at the time Penrith Local Environmental Plan 1998 (Lakes Environs) (LEP1998) applied to the site. That plan was repealed on 25 February 2015 and the provisions of Penrith Local Environmental Plan 2010 (LEP2010) now apply to the site however, clause 1.8A contains savings provisions and is in the following form: If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.
The site is zoned 2(g) Residential (Waterways) under LEP1998 and the objectives of that zone are: (i) to enable the development of land for residential, waterway and open space purposes, and (ii) to provide for a variety and mix of housing forms, and (iii) to encourage development which satisfies ecologically sustainable design principles, and (iv) to promote development which safeguards the natural, cultural and historic environment of the area and preserves the residential amenity of surrounding areas, and (v) to encourage the development of an aquatic ecosystem that provides a habitat for a diversity of flora and fauna, and protects the quality of the downstream wetlands, and (vi) to allow for the provision of community services and urban infrastructure, and (vii) to promote visitor accommodation compatible with residential development.
Clause 8(3) is in the following form: Except as otherwise provided by this plan, the Council must not grant consent to an application to carry out development on land to which this plan applies that, in the opinion of the Council, is contrary to any of the aims or objectives of this plan, or any of the objectives of the zone within which the development is proposed to be carried out.
The aims and objectives of LEP1998 are found at clause 2 as follows: (1) The aims of this plan are: (a) to allow a diversity of housing forms, a waterway system, open space and tourist accommodation, (b) to promote development which is consistent with the Council's vision for the City of Penrith contained in its Strategic Management Plan, namely, one of a region having a harmony of urban and rural qualities with a strong commitment to environmental protection and enhancement, (c) to introduce a planning framework for the development of the land to which this plan applies (the Penrith Lakes Environs) having regard to its special characteristics and potential for a unique residential environment, (d) to promote development which observes and maintains responsible and environmentally sound water management practices and which minimises any adverse environmental impact on surrounding localities, and (e) to protect the environmental heritage of the area, whether it is of historic, aesthetic, architectural, archaeological, natural, cultural, Aboriginal or other significance. (2) The objectives of this plan are: (a) to utilise and enhance the natural characteristics of the land to provide opportunities for a unique residential environment, (b) to create a high quality and different living environment that focuses on water design elements, (c) to encourage development which satisfies ecologically sustainable design principles, (d) to encourage development which enhances the land's gateway location in relation to Penrith and the Penrith Lakes, (e) to provide a planning framework which allows development control plans to supplement the controls contained in this plan, (f) to preserve and enhance designated natural wetland areas so as to provide a variety of wildlife habitats capable of supporting a variety of species, (g) to ensure that the waterway system mitigates the impact, on the natural wetland areas, of land uses within the catchment, and contributes to the viability of those wetlands, (h) to promote development which is efficient in terms of transportation, energy and land utilisation, (i) to facilitate the appropriate provision of, or of funding for, special land uses and major infrastructure works, (j) to permit residential development which incorporates features necessary to protect occupiers against adverse noise impacts arising from industrial and traffic noise, (k) to limit the potential risk to life and property from flood events, and (l) to prohibit development of land for any purpose other than opening a public road if, as a result of carrying out the development, there will be direct vehicular access between that land and either Cranebrook Road or Andrews Road.
Integrated development and multi-unit housing are permissible with consent in the 2(g) zone and are defined as follows: integrated development means development that consists of: (a) the subdivision of land into 2 or more allotments, and (b) the erection of a single dwelling house on each of the allotments created by that subdivision. multi-unit housing means a building or buildings containing or comprising 2 or more dwellings, and includes forms of residential buildings commonly known as apartments, cluster housing, dual occupancy, duplexes, integrated housing, residential flat buildings, row houses, terrace houses, town houses, and villas.
Clauses 9A - Residential Development; 10 - Matters for consideration in determining development applications and 20(3) - Development of land - noise requirements are particularly relevant to the determination of the application. Clause 20(3) is in the following form: (3) The Council must not consent to any development of land within Zone No 2 (g) unless it is satisfied that the site of the development will not exceed the following noise level criteria:Outdoor Noise Criteria NoiNoise descriptor Time period Criteria 50% of LA90 15 min 10% of LA90 15 min Industrial noise criteria L90 7.00am-10.00pm 50dBA 55dBA 10.00pm-7.00am 40dBA 45dBA Specific noise criteria Leq, 15hr 7.00am-10.00pm 55dBA Leq, 9hr 10.00pm-7.00am 50dBA

Under LEP2010 the site is now zoned R1 General Residential with clause 2.3 requiring a consent authority to have regard to the zone objectives when determining a development application. Those objectives are: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that a high level of residential amenity is achieved and maintained. • To ensure that new development reflects the desired future character and dwelling densities of the area.
Residential accommodation is permissible with consent in the R1 zone and includes dwelling houses, dual occupancies and secondary dwellings.
Clause 5.4 contains controls relating to a range of uses including secondary dwellings. The proposed secondary dwelling satisfies these controls as it has a floor area of 38.54sqm is less than the 60sqm maximum permissible.
Clause 7.22 applies to the site and contains specific provisions to the Waterside estate with the following objectives: (a) to provide an acoustic, physical and visual buffer between industrial and residential development, (b) to require a built form that protects the amenity (particularly with respect to noise) of residential development at Waterside.
Clause 7.22(4) is in the following form: The consent authority must not consent to development on: (a) land in Zone R1 General Residential to which this clause applies unless the consent authority is satisfied that the noise levels outside the development will not exceed the outdoor noise level criterion shown in the following table: Noise descriptor Time period Criterion Industrial noise 50% of LA90 15min 7:00 am to 10:00 pm 50 dBA Industrial noise 50% of LA90 15min 10:00 pm to 7:00 am 40 dBA Industrial noise 10% of LA90 15min 7:00 am to 10:00 pm 55 dBA Industrial noise 10% of LA90 15min 10:00 pm to 7:00 am 45 dBA Traffic noise Leq 9hr 7:00 am to 10:00 pm 55 dBA Traffic noise Leq 9hr 10:00 pm to 7:00 am 50 dBA (b) land in Zone R1 General Residential that is part of the land to which this clause applies unless the consent authority is satisfied that the noise levels inside the buildings will not exceed the noise level criterion shown in the following table: Noise descriptor Time period Criterion Recreation areas Leq 24hr 24 hours 40 dBA Sleeping areas Leq 8hr 10:00 pm to 6:00 am 35 dBA Sleeping areas 10% of LA1 15min 10:00 pm to 7:00 am 60 dBA (c) land in Zone IN2 Light Industrial that is part of the land to which this clause applies unless the consent authority is satisfied that the noise levels inside the buildings involved in the development will not exceed the noise level criterion shown in the following Table: Noise descriptor Time period Criterion Sleeping areas 10% of LA1 15min 10:00 pm to 7:00 am 60 dBA (5) In this clause: 10% of LA1 15min means the noise level which is exceeded by 10% of all of the valid LA1 15 min noise levels within the specified period. 10% of LA90 15min means the noise level which is exceeded by 10% of all of the valid LA90 15 min noise levels. 50% of LA90 15min means the noise level which is exceeded by 50% of the valid LA90 15 min noise levels. Leq means the energy average of a valid 15 minute noise level in any specified time period. non-valid noise level means the noise level recorded when: (a) wind gusts exceed 15 metres per second, or (b) average wind speed exceeds 3 metres per second, or (c) it is raining. outdoor noise level means the noise level measured at any point outside a building (including on balconies, in courtyards, terraces and garden areas) that does not include any correction for facade reflection. valid noise level means the measured noise level excluding any non-valid noise level.
Penrith Development Control Plan 2006 (DCP) applies to the site and is a 6 Part document. Parts 1 - Introduction; 2 - City Wide General Controls; 4 - Land Use Based Controls and 6 - Site and Area Specific Controls are relevant to the application. In Part 6 the Waterside Controls are particularly applicable.
The site is a C Type dwelling in the Residential Density map in the DCP. This is defined in the Glossary of Terms as: 'C' type Dwelling - Terrace & Courtyard Lots Lots 200m2 or greater, but less than 300m2, which have had the final house design submitted and approved at the subdivision stage. The house will be either attached (i.e. one of two terraces) or detached on a zero lot line with a courtyard.
Whilst the provisions of State Environmental Planning Policy - Affordable Rental Housing (SEPPARH) applies to the site, the development would not be subject to the secondary dwelling provisions of Division 2 of that plan as the definition explicitly excludes lots within a community title scheme.

The issues

The contentions in the case are that the development is inconsistent with the staged development consent that applies to the site, LEP1998 and the DCP2006; is contrary to the Restriction to User that applies to the site; overshadowing of adjoining land; inadequate provision for carparking; privacy impacts; urban design; site is unsuitable for the proposed use; inadequate information in relation to acoustics and the application is not in the public interest.

The evidence

The hearing commenced on site with evidence heard from a number of residents, including representatives of the Community Association, all of whom objected to the application. The following is a summary of the issues raised:

Inadequate provision for parking, increased traffic along community land;
Loss of privacy;
Contrary to the consent and the restriction to user that applies to the site and the terms of the Community Development plan;
Non-compliance with the council's planning controls;
Excessive bulk and scale of garage/secondary dwelling;
Out of character with the locality;
Inadequate open space for two dwellings;
Adverse amenity impacts including noise, overlooking and overshadowing;
Higher density than envisaged for the site under the Masterplan, DCP and consent.

A view of the locality was undertaken including along Lakeview Drive, part of Waker Street, Lapwing Way, Pipet Way and Gannet Drive. The Court and the parties then inspected properties at No 1 Knot Street and the adjoining community laneway and No 28 Nightjar Street.
This matter is heard under the provisions of S34AA of the Land and Environment Court Act 1979. A conciliation conference was conducted at the council offices following the site view however no agreement was reached by the parties and the conference terminated and the matter was heard in Court the following day.
Ms Olsson did not rely on any expert reports. She filed an Affidavit that provided a background to the application and details of consents for other sites within the estate on which she relies. That affidavit was read (Exhibit D) and Ms Olsson was not required for cross examination. Ms Olsson did not choose to give evidence in the proceedings, relying on her submissions.
Mr P Wood provided expert town planning evidence for the council and had prepared an individual expert report, Exhibit 3. He says the proposal is inconsistent with development consent 11/0602 and the restriction to user that applies to the site. It does not represent at C Type dwelling under the DCP as the application is for two dwellings and is therefore inconsistent with the DCP and the planning framework that underpinned that plan.
Over 600 dwelling have been constructed in the Waterside Estate and Mr Wood says the DCP has been consistently applied by the council. He acknowledges one approval issued for a site at No 28 Nightjar Street which he says should not have been approved and is contrary to the restriction to user that applies to the land. The other development cited by the applicant as varying from the DCP controls is at No 1 Knot Street. Mr Wood says this development does represent an appropriate form of (habitable) studio above a garage detached from the principal two storey dwelling. That development was an integrated approval of a C-Type dwelling with a detached studio above garage as a study/workspace only. That site is 432sqm with the studio more removed from adjoining courtyards and a sloping pitched roof to a single storey appearance at the street frontage. The design maintains solar access, privacy and visual amenity of surrounding residents.
Mr Wood notes that there are no specific provisions in the DCP for secondary dwellings and says the dual occupancy provisions would apply. These are not met, particularly the requirements for the second dwelling to be single storey where it is behind the primary dwelling, lack of articulation, no landscaping to provide effective separation between neighbouring dwellings, no private open space for each dwelling, the external wall height exceeds the 3.5m maximum wall height and development overshadows the adjoining property so that it does not receive the required 3 hours solar access.
Mr Wood says the proposal is inconsistent with objective (iv) of the 2(g) zone of LEP1998 which is to 'preserve the residential amenity of surrounding areas'. Due to the limited site area, the mid-block location of the site and the relative scale of two storey built form, the proposal will have detrimental impacts on the existing residential amenity of adjoining residents through overshadowing, loss of privacy and visual impact.
Development consent 04/1679 is an overall consent for the estate which is in accordance with the Masterplan adopted by council under the DCP. It sets out the various roads and stages. Development consent 11/0602 approves the subdivision to create lots and include approved house designs for each lot within Stage 6 of the overall consent and Masterplan. Mr Wood says the development is inconsistent with these consents which were approved for lots 116-121, a series of two storey house designs with zero lot line and detached single storey garage and reflected in consent conditions and the terms of the restriction on the use of the site. He says the existing residents and landowners have an expectation of certainty around built form outcomes consented to on adjoining lots being consistent with that approved and prescribed by the 88b restriction. Consideration of the interrelationship between dwellings occurred at subdivision stage such that the small lot sizes could accommodate suitable built forms without impacting on residential amenity.
Mr Wood has assessed the solar diagrams and says that the adjoining lot to the south, Lot 117, would only receive 2 hours solar access as the result of the second storey on the garage and this is well below the 3 hours required. As the proposal is for two dwellings on the land, parking for two cars per dwelling is required where the dwelling contains 2 or more bedrooms (DCP requirement) and under the C Type dwelling controls in Appendix A of the Waterside DCP provisions. All dwellings require parking and therefore at least one space is required for the secondary dwelling. Ms Olsson had relied on the provisions of SEPPARH that do not require parking for a secondary dwelling however conceded during the hearing that the policy did not apply.
The proposed living area windows to the western and eastern elevations in the secondary dwelling would, according to Mr Wood's evidence, overlook the rear courtyards, living and habitable areas of the dwelling on the subject site directly to the north and to the northwest. The location of the stairs and landing to the entry of the 1st floor dwelling permits direct overlooking into the adjoining rear courtyards of the lots to the north and north-west.
Mr Wood says the purposes of the acoustic report is to ensure that impacts from and to this development are assessed and meet the designated criteria. No acoustic report has been prepared and therefore he says that no assessment of the impacts can be made.

Ms Olsson's submissions

Ms Olsson submits the development is generally consistent with the C Type dwelling. That is because the lot size is between 200 and 299 sqm and there is no requirement that only one dwelling can be erected on an allotment of that size.
There are numerous examples in the estate where developments do not satisfy all of the DCP2006 criteria, including Nos 7 and 9 Lapwing Way, No 45 Lakeview Drive. Ms Olsson submits the DCP requirements of privacy, carparking, overshadowing are consistent with the pre-approved lots and now generally meet those requirements whereas the aforementioned properties do not. The development incorporates highlight windows and could incorporate further screening devices if required to address privacy concerns. She submits that there are adequate separation distances to ensure privacy is maintained.
In terms of solar access, Ms Olsson submits that the variation to the control is not well under that required and retains an acceptable level of impact based on the planning principals in Parsonage v Ku-ring-gai [2004] NSWLEC 347, in particular the amount of sunlight retained. The planning principle published in that Parsonage is in the following terms: 8 Numerical guidelines dealing with the hours of sunlight on a window or open space usually leave open the question what proportion of the window or open space should be in sunlight, and whether the sunlight should be measured at floor, table or a standing person's eye level. Numerical guidelines should therefore be applied with the following principles in mind, where relevant: • The ease with which sunlight access can be protected is inversely proportional to the density of development. At low densities, there is a reasonable expectation that a dwelling and some of its open space will retain its existing sunlight. (However, even at low densities there are sites and buildings that are highly vulnerable to being overshadowed.) At higher densities sunlight is harder to protect and the claim to retain it is not as strong. • The amount of sunlight lost should be taken into account, as well as the amount of sunlight retained. • Overshadowing arising out of poor design is not acceptable, even if it satisfies numerical guidelines. The poor quality of a proposal's design may be demonstrated by a more sensitive design that achieves the same amenity without substantial additional cost, while reducing the impact on neighbours. • To be assessed as being in sunlight, the sun should strike a vertical surface at a horizontal angle of 22.5o or more. (This is because sunlight at extremely oblique angles has little effect.) For a window, door or glass wall to be assessed as being in sunlight, half of its area should be in sunlight. For private open space to be assessed as being in sunlight, either half its area or a useable strip adjoining the living area should be in sunlight, depending on the size of the space. The amount of sunlight on private open space should be measured at ground level. • Overshadowing by fences, roof overhangs and changes in level should be taken into consideration. Overshadowing by vegetation should be ignored, except that vegetation may be taken into account in a qualitative way, in particular dense hedges that appear like a solid fence. • In areas undergoing change, the impact on what is likely to be built on adjoining sites should be considered as well as the existing development.
Ms Olsson submits that in higher densities the amount of sunlight lost should be taken into account. She relies on Roseth C's observation in para 7 of Parsonage where he states: The Court must, of course, take into account whatever guidelines are relevant to an application. However, numerical guidelines should be applied with a great deal of judgment. Consider a dwelling that now receives sunlight all day. Taking away that sunlight from 9am till noon would satisfy most guidelines; and yet the occupants of such a dwelling are likely to perceive it as a devastating impact on their dwelling's amenity. The other side of the coin is that the impact on a neighbour's sunlight must be assessed in the context of the reasonable development expectations of the proposal and the constraints imposed by the topography and the subdivision pattern. Preserving 3 hours of sunlight on a neighbouring site may require an unreasonable reduction in the development potential of the proposal.
It is Ms Olsson's submission that the reasonable development potential of the site should be recognised.
It is also submitted that the landscaped open space proposed in the development is satisfactory and in keeping with the surrounding neighbourhood.
In regard to the need for an acoustic assessment, Ms Olsson submits that the major focus of the LEP is on industrial and traffic noise and this has been addressed through the barriers that have been constructed and the siting of the secondary dwelling would not result in noise impacts to adjoining properties.
In terms of streetscape, Ms Olsson submits that the development meets C Type construction and the concept site plan and the urban design provisions of the DCP, providing varied streetscapes. The design is similar to others cited, particularly Lot 121 and No 28 Nightjar and if the development approved on Lot 121 were constructed it would obscure the view of the studio from Gannet Drive. The proposal has less non-compliance than other approved development and is in the public interest. The council has not consistently applied the DCP and is not flexible in its approach. The development meets the LEP objectives as it provides a mix of housing types and is like other development in the estate. No further subdivision of the site is proposed and therefore, if the integrated subdivision of land into lots of less than 300sqm met the objectives, so too would the proposed development.
In relation to the issue of condition 82, Ms Olsson submits its provisions have been met by the registration of the restriction to user and the Court should allow the variation because the development meets the objectives of the LEP.
Ms Olsson concedes that approval of the application would provide a precedent to other owners of land within the estate who could seek to add a secondary dwelling above the detached garages to the rear and accepts, consistent with the decision of O'Neill C in McDonald v Randwick City Council [2012] NSWLEC 1175 that similar consideration to vary the planning provisions would be appropriate.

Conclusion and findings

Ms Wauchope, for the council, submits that a number of the submissions made by Ms Olsson were not supported by evidence. The Court accepts this fact noting the applicant is a self-represented litigant and therefore, the weight to be given to those submissions is a matter for consideration.
Having regard to the council's evidence and the submissions made by the applicant, there are a number of threshold issues that are determinative. The first is the provisions of clause 8(3) of the LEP that requires the Court to ensure the development is not contrary to any of the aims or objectives of LEP1996 or any of the objectives of the 2(g) zone. I am not satisfied that the development satisfies objective (iv) of the 2(g) zone as it adversely impacts the amenity of adjoining properties in terms of overshadowing. I will address this impact later in the judgment.
Similarly, I am not satisfied that aim (c) if the LEP is met as the planning framework for the development of the land is well established and the Masterplan, DCP2006 and supporting documents have regard to the special characteristics and potential for a unique residential environment envisaged. The planning that underpins those documents has been the subject of extensive review and public input and is not encapsulated into not only the council's strategic planning documents but also into the Community Statements and Title documents that apply to the land. I am not satisfied that there are any reasons why those documents should not be given significant weight when determining whether the site is suitable for two dwellings. The development is inconsistent with the character prescribed in those controls.
The second threshold test is the provisions of clause 20(3) of the LEP. I have been provided with no evidence that the noise level criteria set by that clause will not be exceeded. Whilst I accept that there are a number of dwellings in the vicinity of the site of similar design to the primary dwelling, there are no such developments that incorporate a secondary dwelling in a location similar to that proposed. Even if there were, I would need to ensure the criteria will not be exceeded and because I have no such evidence I cannot form that conclusion.
The third issue is to determine whether the development of the site in the manner proposed by the applicant involves a contravention of condition 82 of Development Consent DA11/0602 and if it does, is the application capable of approval without prior modification of that consent.
DA 11/0602 applies to the site and has approved a dwelling with detached single storey garage accessed off the community laneway, four of the six dwellings approved have been constructed as has the majority of the development approved under the consent. The applicant has not sought to modify that consent.
Guidance has been provided by Bignold J in Moss v Kiama Municipal Council [2003] NSWLEC 165 where he determined a number of similar preliminary questions. Having regard to his decision in relation to Question 2, I find that the development of the site in the manner proposed would involve a contravention of condition 82 of Development Consent DA11/0602 because it involves development contrary to that approved on the site.
In view of my findings in these three threshold issues, consent cannot be granted.
Because of the conclusion I have reached concerning these threshold issues is one which might be challenged pursuant to s 56A of the Land and Environment Court Act 1979, I also consider it appropriate, consistent with the objectives set by s 56 of the Civil Procedure Act 2005 for the just, quick and cheap resolution of the issues in dispute between the parties to consider the remaining merit aspects relating to the overall development.
I do not consider that the Book of Plans is a relevant consideration as the site is a C Type lot and Development Consent 11/0602 has approved one dwelling house on the site. The book is only relevant in circumstances where dwellings are not approved as part of that consent. I cannot accept Ms Olsson's submission that the Type C lots contemplate two dwellings. The lot size is what determines the classification however all lots, other than the apartment lots contemplate only one dwelling.
Whilst the applicant has not submitted an application to modify consent 11/0602, it would be necessary to be satisfied that the development proposed is substantially the same development as that approved under the consent. Whilst I do not intend to make findings on that issue, given the extensive planning undertaken for the estate, it would be a difficult exercise to show that the development was substantially the same as that approved on the site.
The application is contrary to the 88b Instrument that applies to the site. I have no evidence that supports the variation to that instrument and for that reason, would not be prepared to stand in the shoes of the council and allow the development. That is because of the fact the site has been identified in the Masterplan and the DCP which is called up under the LEP1998 as being suitable for one dwelling. It is the expectation of the community that only one dwelling will be constructed on the land. I have not been provided with any evidence that supports the construction of two dwellings on the land. The fact that there are two other sites that have approvals for second dwellings is not grounds to vary the instrument. Similarly, the studio constructed at No 1 Knot Street, is not a second dwelling and does not impact on adjoining properties in the manner that the proposed development would. To approve the development as proposed would not be in the public interest.
Whilst I accept that the DCP includes a provision to encourage secondary dwellings, the location of those dwellings was considered when the integrated development was approved and was placed at southern end of row on Lot 121. The site was not considered suitable for a second dwelling at that time and having regard to the evidence, I do not consider that it is capable of supporting a secondary dwelling. It would be an intrusive element in the mid block location and out of character with the locality.
Ms Olsson relies on particular instances where she submits the council has not applied all of the DCP provisions. She had put the council to considerable cost in obtaining information to support her case. Having regard to the evidence and in particular the history of the masterplanning of the estate and the council's assessment of the subsequent development applications, whilst I agree that some variation to controls has been allowed, those variations have been made in a holistic manner as part of an integrated development approval. Such decision in no way shows the council has abandoned its controls, particularly having regard to the number of dwellings in the estate that are compliant with the plan. The DCP must remain the focal point of assessment.
In terms of impacts to adjoining properties, it is clear from the evidence that the secondary dwelling would reduce the solar access to the adjoining property to the south. Whilst I agree that the secondary dwelling will only impact on Lot 71 Lapwing Way around 9am and have no impact at 10am, the details include in Exhibit G depict an unsatisfactory impact on Lot 117 Lakeview Drive
Parsonage was reviewed by Moore SC in The Benevolent Society v Waverley Council [2010] NSWLEC 1082. The planning principle on solar access is now in the following terms: Where guidelines dealing with the hours of sunlight on a window or open space leave open the question what proportion of the window or open space should be in sunlight, and whether the sunlight should be measured at floor, table or a standing person's eye level, assessment of the adequacy of solar access should be undertaken with the following principles in mind, where relevant: • The ease with which sunlight access can be protected is inversely proportional to the density of development. At low densities, there is a reasonable expectation that a dwelling and some of its open space will retain its existing sunlight. (However, even at low densities there are sites and buildings that are highly vulnerable to being overshadowed.) At higher densities sunlight is harder to protect and the claim to retain it is not as strong. • The amount of sunlight lost should be taken into account, as well as the amount of sunlight retained. • Overshadowing arising out of poor design is not acceptable, even if it satisfies numerical guidelines. The poor quality of a proposal's design may be demonstrated by a more sensitive design that achieves the same amenity without substantial additional cost, while reducing the impact on neighbours. • For a window, door or glass wall to be assessed as being in sunlight, regard should be had not only to the proportion of the glazed area in sunlight but also to the size of the glazed area itself. Strict mathematical formulae are not always an appropriate measure of solar amenity. For larger glazed areas, adequate solar amenity in the built space behind may be achieved by the sun falling on comparatively modest portions of the glazed area. • For private open space to be assessed as receiving adequate sunlight, regard should be had of the size of the open space and the amount of it receiving sunlight. Self-evidently, the smaller the open space, the greater the proportion of it requiring sunlight for it to have adequate solar amenity. A useable strip adjoining the living area in sunlight usually provides better solar amenity, depending on the size of the space. The amount of sunlight on private open space should ordinarily be measured at ground level but regard should be had to the size of the space as, in a smaller private open space, sunlight falling on seated residents may be adequate. • Overshadowing by fences, roof overhangs and changes in level should be taken into consideration. Overshadowing by vegetation should be ignored, except that vegetation may be taken into account in a qualitative way, in particular dense hedges that appear like a solid fence. • In areas undergoing change, the impact on what is likely to be built on adjoining sites should be considered as well as the existing development.
Given the size of the adjoining private open space on Lot 117 and the limited amount of sunlight it receives, it is not considered appropriate to allow a development that would further reduce the solar access of that area. The submission that the area is high density and therefore sunlight is harder to protect and should be balanced against the development potential of the site cannot be supported. Further, I have regard to the fourth point and consider that no regard has been had to the design of the secondary dwelling and how it could have more sensitively retained the solar access that is currently enjoyed. The site is not suited to the development proposed.
The Masterplanning process that has been undertaken in relation to the estate and the planning documents that have been underpinned by that process and are now realised in the development of Waterside is what determines the development potential of the site. The consent 11/0602 also informs that potential. I do not agree that it would be appropriate to allow a form of development that increases the density of development on the site where it has adverse impacts on adjoining properties.
In terms of privacy impacts, a proposal to add screening devices would increase building bulk and therefore add to the amenity impacts of the proposal.
The amendments to LEP 2010 that apply to Waterside have now been made and the draft plan is now imminent and certain and must be given weight. My views on the application would be the same if determined under that instrument.
For these reasons, I am not satisfied that the application should be approved on its merits.
The Orders of the Court are: 1. The appeal is dismissed. 2. Development Application 14/2012 to build a 2 storey dwelling with detached garage and secondary dwelling above at 47 Lakeview Drive, Cranebrook is refused consent. 3. The exhibits, other than exhibits A, B and 2, are returned.

Sue Morris Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 April 2015

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