Frangieh v City of Canada Bay Council

The site and context

1. The site has dual frontages to Burnell Street and Henley Marine Parade. To Burnell Street, the frontage is 12.19m. To use a neutral term due to the dispute between the parties, the Henley Marine Drive boundary is 17.705m. The side boundaries are 37.99m (north-west) and 50.83m (south-east). The total site area is 537.5m2 (Survey, Tab 14, Ex A). The site slopes from Burnell Street down to Henley Marine Drive.
2. Existing structures on site include a dwelling primarily fronting Burnell Street with driveway access from Henley Marine Drive.
3. Burnell Street contains a mix of new and established dwellings, as well as garage structures for some dual frontage properties. The same is true of Henley Marine Parade. This part of Henley Marine Parade primarily contains dwellings with an active frontage presence to Henley Marine Parade with a few exceptions including the corner site at 51 Burnell Street. Further to the north east along Henley Marine Drive, the presentation of dwellings is elevated. Most new and older dwellings are setback and generally located above a high front fence and/or garage, elevated rear yard or pool area and provide mixed amounts of landscaping.
4. Henley Marine Drive forms part of a ring road around part of Parramatta River. The site can be viewed adjacent from 'The Bay Run', a recreational walk around this section of Parramatta River.
5. The locality is primarily low density residential, with development being a mix of dual and single frontage dwellings to Burnell Street and Henley Marine Drive. Sites located within the immediate triangle of Henley Marine Drive, Burnell Street and Brent Street are mixed in size and shape.

On site viewing

1. The proceedings included a site viewing of the site and its surrounds. The parties drew the Court's attention to development in Burnell Street, proximity of open spaces and windows to the adjoining properties and setbacks/built form presentation along part of Henley Marine Drive.
2. Oral submissions from an objector were heard on site, which are discussed at [13]-[14].

Public Submissions

1. The original DA as lodged to Council was notified between 15 August 2023 to 5 September 2023. Two submissions were received in objection to the DA (Ex 5, Tab 4). Oral submissions were heard on site, which were consistent with the written submission received (Ex 6).
2. The concerns raised in the written and oral submissions are summarised as follows:

• Elevated rear structure (including the pool) directly overlooking into the front yard/outdoor area which is utilised by occupants and grandchildren for recreation,
• Overlooking impacts to the ground and first floor bedrooms from the pool area (elevated rear structure),
• Reduced natural sunlight to ground and second floor living areas,
• View loss to ground and second floor living areas from the glass balustrade and 1.8m high privacy plants along the elevated rear structure,
• Privacy impacts from the elevated rear structure's proximity to living space windows,
• Impact on property values.

Key Issues

1. Council raised the following contentions in its Statement of Facts and Contentions (SOFAC) (Ex 1) that it says warrant refusal of the application:

• Contention 1 - Breach to FSR and objectives
• Contention 2 - Building planning and design (relationship between the design, site topography and adjoining properties)
• Contention 3 - Solar access to neighbours
• Contention 4 - Visual and acoustic privacy
• Contention 5 - Access to views
• Contention 6 - Building setbacks
• Contention 7 - Building height plane
• Contention 8 - Landscaped areas
• Contention 9 - Stormwater management
• Contention 10 - Vehicle access
• Contention 11 - Public interest and matters raised in objections
• Further information was identified in the SOFAC in relation to flooding (contention 12) and view loss (contention 13).

1. On the basis of the joint expert reporting and amendments/further information provided during the hearing, it was agreed that the contentions in relation to stormwater (contentions 9, 10 and 12) were resolved.

The planning framework

1. As set out in the SOFAC and Council's Bundle of Documents (Ex 5), the following planning legislation, environmental planning instruments and development control plans apply, or are contented to be considered for the proposed development:

• Environmental Planning and Assessment Act 1979 (EPA Act)
• Environmental Planning and Assessment Regulation 2021 (EPA Regulation)
• State Environmental Planning Policy (Biodiversity and Conservation) 2021
• Chapter 6 Water Catchments
• State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
• State Environmental Planning Policy (Resilience and Hazards) 2021
• Canada Bay Local Environmental Plan 2013 (CBLEP)
• City of Canada Bay Development Control Plan (CBDCP)
• Contents
• Part A Introduction
• Part B General Controls
• Part E Residential Development
• Appendix 2 Engineering Specifications

Expert Evidence

1. In accordance with its usual practice, the Court directed experts in planning, landscape and stormwater to confer in relation to nominated contentions prior to the commencement of the proceedings.
2. Expert evidence for the landscaping issues was submitted in a joint expert report (Landscape JER) (Ex 2) by Mr John Storch for the Applicant and Mr Barry Curran for Council. Oral evidence by the landscape experts were provided during the hearing.
3. Expert evidence for the planning issues was submitted in a joint expert report (Planning JER) (Ex 3) by Mr Daniel McNamara for the Applicant and Mr Barry Curran for Council. Oral evidence by the planning experts was provided during the hearing.
4. Expert evidence for the stormwater and vehicular access issues was submitted in a joint expert report (SW JER) (Ex 4) by Samir Hakim for the Applicant and Stephen Chow for Council. The experts agreed that based on further flood modelling provided, amended plans and conditions of consent, that the issues had been resolved (contentions 9, 10 and 12).

Issue - Elevated rear structure

1. Council presses contention 6 that the building setback to Henley Marine Drive does not meet the 6m rear setback control (Control C11, Part E4.2 of CBDCP), at 1.7m for the cantilevered pool and rear yard area (prior to the amended DA). The contention says that the cantilevered structure is not recessive as viewed from Parramatta River, is a secondary street frontage and will create an undesirable precedent in a prominent location along Henley Marine Drive.
2. Related is contention 4 in relation to visual and acoustic privacy, which is mostly in relation to the elevated rear structure, inadequate setbacks of this area to the west (104 Henley Marine Parade) and, visual and acoustic impacts to adjoining properties from this area.
3. As set out above, the DA was amended during the hearing and the proposed setback to Henley Marine Parade is now a variable setback between 3m-4.5m. The proposed elevated rear structure is cantilevered over the partly below ground level car port and comprises a pool, deck area, and alfresco. Noting the variable configuration, the depth of this structure to the living/dining/kitchen area is approximately 8m-16m deep, with the above first floor covering approximately half of it.
4. Mr Ward for Council submitted that in the first instance, Control C11 of CBDCP for rear setbacks is the applicable control. In the alternative, Council submitted that Control C5 would apply if the Court found that C11 did not apply.
5. Mr Curran for Council says that the elevated, cantilevered, pool and deck area is excessive in height, bulk and appearance from the streetscape and Parramatta River. Mr Curran says that the cantilevered structure negatively visually interferes with the natural topography and setting of the site and opportunities to provide soft landscaping. He says that the rear setback control of 6m applies.
6. Mr Curran says the proposed elevated rear structure, inadequate side and rear setbacks and expansive width and depth will create increased acoustic impacts to the adjoining dwellings. These have not been overcome by the proposed privacy screens and vegetation, where sound will still travel. Mr Curran says that the proposed development exceeds the controls for balconies, requiring a setback of 2m from the side and allowing a maximum of 1.8m in total depth.
7. Mr Curran says that the size of the elevated rear structure also impacts on views and outlook corridors from 104 Henley Marine Drive.
8. Mr McNamara, for the Applicant, says the elevated rear structure is setback between 3-4.5m and has an appearance of one to 1.5 storeys. The second floor is setback approximately 7-10m from Henley Marine Drive.
9. Mr McNamara says the development is similar in scale as other developments in the local area, such as 110 Henley Marine Drive. Similar elements include setback variations, elevated pool at the first floor and streetscape presentation.
10. Mr McNamara says that the applicable setback is Part E4.2, Control C1 and C5 which set a minimum front setback of 4.5m or the prevailing street setback, whichever is greater. Mr McNamara says that the proposed elevated rear structure is consistent with the established setbacks of adjacent properties. 104 Henley Marine Parade has been approved with a setback of 3.1m - 3.8m for the two-three storey dwelling. 51 Burnell Street has variable setbacks from 3.2m. The proposed variable setbacks are consistent with both established and future development in Henley Marine Parade.
11. Mr McNamara says that the recently approved dwelling at 104 Henley Marine Parade was approved with a side setback of 900mm, the same side setback as sought in the amended DA. The DCP control for balconies does not apply as Henley Marine Drive should be treated as a primary street. Mr McNamara says that established and new dwellings contain large, elevated decks or balconies on upper floors to maximum views and amenity.
12. Mr McNamara says the proposed privacy measures of louvres appropriately provides visual privacy to minimise direct overlooking, stating that there should be an expectation of compromised visual and acoustic privacy for properties to share views.
13. Ms Berglund for the applicant says that the proposed development complies with the development standards of the CBLEP and the objectives have been met for the few CBDCP controls where the Applicant seeks flexibility to the numerical controls.

Findings

1. The first question to answer is: what is the setback control to Henley Marine Parade?
2. Taking clues from the text of the DCP, Part E4 of the CBDCP provides front setback controls for scenarios including single frontage and dual frontage sites (primary street, parallel road lot, corner lot) and rear setback controls for single frontages and corner lots. The rear setback controls appear to be silent on dual aspect sites except for corner lots.
3. In considering the evidence and text of the CBDCP, I am not able to accept that C11 and C12 apply, as these controls state that they are in relation to rear setbacks for single street frontage sites.
4. I accept Ms Berglund's submissions and Mr McNamara's evidence on the applicable setback control and find that the applicable control is C5 front setbacks for a parallel road lot, as the site has two street frontages as described in C5. Based on the wording of C5, Mr McNamara then refers to C1 which I also accept. For completeness, I accept that C2 and C4 under the same heading of 'front setbacks for primary streets' also apply.
5. Whilst the proposed development has not been designed with an active presence to Henley Marine Parade, an issue I'll return to, that does not preclude the control being applicable for the following reasons: 1. The secondary street is at the rear of the property and is not a lane; and 2. The reference to a dwelling 'facing' a secondary street can be interpretated as referring to both a dual aspect single dwelling and development proposing more than one dwelling on a lot (as the controls in this chapter also apply to dual occupancies and secondary dwellings).
6. C5 of the CBCDP refers back to front setbacks - primary street, being C1-C4 as the applicable controls. The objectives for E4.2 building setbacks and controls for primary street front setbacks states as follows: "E4.2 Building setbacks … Objectives O1. To integrate new development with the established setback character of the street. O2. Preserve significant vegetation which contributes to the public domain and allows for street landscape character to be enhanced. O3. Ensure adequate separation between buildings consistent with the established character and rhythm of built elements in the street. O4. To ensure adequate separation between buildings for visual and acoustic privacy. O5. Maximise solar access to achieve amenity for neighbours. Front setbacks - primary street Controls C1. The front setback of all residential buildings is to be a minimum of 4.5 metres or no less than the Prevailing Street Setback, whichever is the greater. The "Prevailing Street Setback" is the setback calculated by averaging the setback of five (5) adjoining residential properties on both sides of the development. Where there are fewer than five residential properties or a non-residential use property between a street end or corner and the development site, the "Prevailing Street Setback" is the setback calculated by averaging the setback of the five next residential properties fronting the street (if any) on both sides of the property. Note: In many instances, the front setback of buildings in Canada Bay is 7.5 metres or greater and development in these areas will be required to comply with this prevailing setback C2. No balconies, entry porches or verandahs are permitted to encroach within the front setback. The only encroachments permitted within the front setback are restricted to eaves and awnings for weather protection but no supporting columns or posts C3. Secondary dwellings must be located behind the front building line of the principal dwelling; C4. Where a site has more than one street frontage (other than a lane) and a dwelling is proposed to the rear of the site, the development must acknowledge the prevailing setback of both streets. Note: On a site with two street frontages, the primary street is considered to be the one to which the property is addressed."
7. Also in dispute was Part E3.8 visual and acoustic privacy, which restricts the size and location of upper level balconies. For the Applicant, it was not in dispute that the elevated rear structure could be defined as an upper level balcony. However, the evidence was that controls C4 and C5 did not apply as the site did not contain a rear setback.
8. As set out above, I have found that the site does not have a rear setback boundary. However, C4 and C5 also apply to side setbacks and balcony depths. I accept Council's evidence and submissions that the controls apply, but to the side setbacks and for depth only. The relevant parts of Part E3.8 are set out below: "E3.8 Visual and acoustic privacy O1. Ensure the siting and design of a building provides a high level of visual and acoustic privacy for residents and neighbours in dwellings and private open space. O2. To provide personal and property security for residents and visitors. … Controls C2. Balconies should be located so as to face the front or rear of the building. No balconies are permitted on side elevations. C4. Upper level balconies to the rear of a building should be set back a minimum of 2.0 metres from any side boundary and should have a maximum depth of 1.8 metres. C5. Upper level balconies that face side or rear boundaries will not be permitted when the upper level setback is less than 6.0 metres. … C7. Ground floor decks, patios and the like should not be greater than 500mm above natural ground level. If structures such as these are expansive and are sought on sloping ground, they should be designed to step down in relation to the topography of the site. C8. Where the visual privacy of adjacent properties is likely to be significantly affected from windows, doors and balconies, or where external driveways and/or parking spaces are located close to bedrooms of adjoining buildings, one or more of the following alternatives are to be applied: a) Fixed screens of a reasonable density (minimum 85% block out) should be provided in a position suitable to alleviate loss of privacy; b) Where there is an alternative source of natural ventilation, windows are to be provided with translucent glazing and fixed permanently closed; c) Windows are off-set or splayed to reduce privacy effects; d) An alternative design solution is adopted which results in the reduction of privacy effects; and e) Suitable screen planting or planter boxes are to be provided in an appropriate position to reduce the loss of privacy of adjoining premises. Note: This option will only be acceptable where it can be demonstrated that the longevity of the screen planting has been provided for eg. Automatic watering systems."
9. I firstly accept Mr McNamara's evidence that the design of a development on this site requires a sensitive design approach. The site is located adjacent to Parramatta River. The orientation of properties in the block result in development seeking to obtain water views, both directly to the rear and over side boundaries. The properties orientation also means they often overshadow and overlook each other. Some impacts from new development should therefore be anticipated.
10. Setbacks along Henley Marine Parade vary. The architectural plans, drw SA-01 revision E, provides a streetscape analysis with front setbacks along Henley Marine Parade. C1 of the CBDCP requires a setback of 4.5m or the prevailing street setback by averaging five adjoining properties on both sides of the site - whichever is the greater.
11. In oral evidence, it was considered that properties further east from the adjoining 51 Burnell were of little assistance in considering the prevailing street setback given their elevated location (transcript, pages 59-60, lines 15-5). I accept this because of the different character exhibited.
12. In applying C1 and based on drw SA-01 revision E, the relevant five adjoining properties would therefore amount to an average setback of 4.59m (from 51 Burnell Street to 77 Burnell Street, excluding 57 Burnell Street and substituting the setback number shown for 104 Henley with the setback within the planning JER at (71) as a variable one starting at 3m). These setbacks are all variable on each property and represent the closest setback to the front boundary.
13. The minimum setback to Henley Marine Parade for the purposes of C1 is therefore approximately 4.59m, being the greater of 4.5m or the prevailing setback. C2 does not allow encroachments into the setback area by balconies, porches or verandahs.
14. The proposed variable setback of the dwelling is between 3m to 4.5m and does not comply with the minimum setback control. The Applicant does not dispute that they seek flexibility to the setback control.
15. I turn to the merits of the setback. In applying s 4.15(3A)(b) of the EPA Act, I am unable to accept that the reduced setback to Henley Parade achieves the objectives of E4.2 in order to provide flexibility, namely objectives 01 and 04 for the reasons that follow.
16. I accept the Applicant's evidence that the proposed development is similar to new developments in proximity to 110 Henley Marine Drive (as shown in Figures 2, 3 and 8 in the Planner JER). However, whilst located nearby the site, I consider that these sites are different in that:

• Those developments are consistent with the elevated character of that area that relates to the rocky interface adjoining those sites and established high fence or garage presentation that have a minimal relationship with the public domain;
• Those developments have a less sensitive orientation as they primarily squarely front Henley Marine Parade, and are not angled towards Parramatta River; and
• 110 Henley Marine Parade itself is different, appearing to be designed to take advantage of its location directly adjoining a reserve and has the benefit of orientating itself to both the east and south towards Parramatta River.

1. I observed from the site view that there is a change in character from 51 Burnell Street onwards to the south/west on Henley Marine Parade towards Brent Street. These properties are shown in the streetscape analysis dwg SA-01 between 51 Burnell Street to 81 Burnell and reflect a generally consistent character that I accordingly consider to be the appropriate visual catchment. This is also consistent with the CBDCP's contextual approach to front setbacks.
2. The dwellings in this visual catchment are not elevated and have a ground floor relationship with the public domain. Most incorporate both garages and separate pedestrian access, whilst a few dwellings present some form of readily identifiable pedestrian access with vehicular access provided from Burnell Street. The majority of properties, but not all, include soft landscaping for around half of the frontage. With the exception of the corner lot of 51 Burnell Street, which primarily presents vehicular access and fenced private open space area to Henley Marine Parade, the character of this visual catchment is relatively consistent in these features as viewed from the public domain.
3. In accepting the submissions of the Applicant and the evidence of Mr McNamara on the applicable setback control and the approach to how a development would need to sensitively address its constraints through design, I am unable to accept the conclusions of the Applicant that the proposed development does so in a way that achieves the objectives of the control.
4. I accept and prefer Mr Curran's evidence on the visual and acoustic impacts of the elevated rear structure. I find that the size of the proposed elevated rear structure is a distinctively different design element in this area. It's size, cantilevered nature, and variable reduced setbacks to both the side boundary (north-west) and Henley Marine Parade (less than the minimum 4.59m) overwhelm the façade presentation to the public domain and streetscape.
5. With respect to Part E3.8 and controls C4, C7 and C8, I accept the evidence of Mr Curran that the proposed elevated rear structure would also result in unreasonable privacy and acoustic impacts to the adjoining neighbours due to its size and reduced setbacks. The exception to this is the side setback to 51 Burnell Street, which complies. The proposed 900mm setback to 104 Henley Marine Parade, instead of 2m, and depth beyond 1.8m at approximately 8m-16m has not been adequately mitigated through the proposed glass balustrades.
6. I accept that the Applicant has sought to balance competing demands of privacy, acoustics and view sharing. I also accept the agreement of the planners that larger elevated areas are characteristic in this location. The approved development at 104 Henley Marine is only located 900mm from the Site's boundary and has located living area windows in a manner that impacts the Site. I accept that any proposed development on this Site will have impacts on these areas. However, in seeking a large dispensation to Part E3.8, C4 for balcony depth, the proposed development has not sought to mitigate its impact but instead, seeks to emulate what has been approved for a smaller adjoining site that does not benefit from a dual frontage. I accept Council's evidence and find that the proposed development does not provide a high level of visual and acoustic privacy to 104 Henley Marine Drive due to the reduced proximity between these living and outdoors spaces.

Issues - Landscaping and solar access

1. Council pressed that contentions 3 and 8 for solar access and landscaping warranted refusal of the amended DA.
2. Part E4.6, control C4 seeks 35% landscaping. It was contended that approximately 20% was proposed. The key areas of disagreement between the experts were in relation to calculations, the landscaped character of the area, quantity of that landscaping relying on planter boxes, the elevated rear structure and other areas that might be considered as landscaping to achieve the 35%.
3. Distinct from the contested issue of what landscaped areas could be included in the calculations, during oral evidence it emerged that the calculations on the architectural plans were inaccurate. In cross examination, Mr Storch for the Applicant was unable to confirm the amount of landscaping proposed. Due to the reliance on the calculations provided by the architect, it was apparent that there were errors in the landscaping calculations. The errors on the architectural plans and the proposed amount of landscaping was not able to be quantified during the hearing.
4. It was submitted by the Applicant that the proposed landscaping was close to the 35% requirement. Notwithstanding the numerical requirements and dispute about the landscape calculations, the Court could rely on the amended DA meeting the objectives of the CBDCP control.
5. In relation to solar access, Council contended that the Applicant had selected a principal private open space of a decked area for the adjoining 51 Burnell Street. Mr Ward submits that a grassed, lawn area open to the sky and adjoining a rumpus room would be the usual principal private open space for a dwelling. Mr Ward also submitted that the solar access information before the Court was incomplete and the lawned area of 51 Burnell Street was not shown on the architectural plans.
6. In cross examination it was conceded by Mr McNamara that the solar access diagrams did not show the entire private open space for the lawn area of 51 Burnell Street.
7. Notwithstanding this, Mr McNamara relied on the principal private open space of the elevated balcony of 51 Burnell Street. He said this area was sizeable, accessed off a living room, achieved solar access, and obtained expansive views of Parramatta River.
8. Ms Berglund submitted that whilst there is some overshadowing to 51 Burnell Street, there is ample private open space that achieves solar access.
9. Mr Ward submitted that the Court had inadequate information to make a decision about solar access to the private open space for 51 Burnell Street and the adequacy of the proposed landscaped area for the site.

Findings

1. His Honour, Preston CJ stated in Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2] that: "…an applicant for development consent always bears a persuasive burden of proof: the applicant must persuade the consent authority, whether it be the council at first instance or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed."
2. In order to make findings on whether a control is met, or if flexibility should be shown for a proposed development that meets the objectives, sufficiently accurate information is required. As shown through the evidence and submissions, some of the information before the Court is either incomplete or inaccurate. I am therefore unable to quantify the extent of impact or what the variation is, in order to determine if either the control or its objectives have been achieved or the acceptability of its environmental impact.
3. It follows that the Applicant has not been able to demonstrate that the controls or their objectives have been met in relation to the issues of solar access and landscaping.

Issue - Objectives for FSR and the building height plane

1. Council presses that notwithstanding numerical compliance, the objectives for FSR have not been met as a result of the void area along the southeastern part of the first floor (contention 1). Related is the building height plane issue (contention 7), with small sections of the void area and other roof elements encroaching into the building height plane.
2. Given my findings about the elevated rear structure and insufficient information accompanying the amended DA as well as noting that the building height plane issue also related to solar access, it is unnecessary to make findings about these contentions.

Conclusion

1. The amended DA sought flexibility to the CBDCP setback controls to Henley Marine Parade and balcony setbacks and depth. In considering the evidence, I have found that the proposed variable setback, presentation of the elevated rear structure and the impacts to the streetscape, public domain and adjoining dwelling do not meet the relevant objectives of the controls for the reasons set out further above.
2. The contested issues of solar access and landscaping were not able to be overcome on the basis of the insufficient or inaccurate information accompanying the amended DA.
3. I therefore conclude that these issues warrant refusal of the amended DA.

Orders

1. The Court orders that: 1. The appeal is dismissed. 2. Development application No. 2023/0168 for the demolition of the existing dwelling and construction of a new dwelling at 53 Burnell Street Russell Lea is determined by refusal of consent. 3. The exhibits are returned except for A, B, C, 1 and 6.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2024

appropriate position to reduce the loss of privacy of adjoining premises.

Note: This option will only be acceptable where it can be demonstrated that the longevity of the screen planting has been provided for eg. Automatic watering systems."

1. I firstly accept Mr McNamara's evidence that the design of a development on this site requires a sensitive design approach. The site is located adjacent to Parramatta River. The orientation of properties in the block result in development seeking to obtain water views, both directly to the rear and over side boundaries. The properties orientation also means they often overshadow and overlook each other. Some impacts from new development should therefore be anticipated.
2. Setbacks along Henley Marine Parade vary. The architectural plans, drw SA-01 revision E, provides a streetscape analysis with front setbacks along Henley Marine Parade. C1 of the CBDCP requires a setback of 4.5m or the prevailing street setback by averaging five adjoining properties on both sides of the site - whichever is the greater.
3. In oral evidence, it was considered that properties further east from the adjoining 51 Burnell were of little assistance in considering the prevailing street setback given their elevated location (transcript, pages 59-60, lines 15-5). I accept this because of the different character exhibited.
4. In applying C1 and based on drw SA-01 revision E, the relevant five adjoining properties would therefore amount to an average setback of 4.59m (from 51 Burnell Street to 77 Burnell Street, excluding 57 Burnell Street and substituting the setback number shown for 104 Henley with the setback within the planning JER at (71) as a variable one starting at 3m). These setbacks are all variable on each property and represent the closest setback to the front boundary.
5. The minimum setback to Henley Marine Parade for the purposes of C1 is therefore approximately 4.59m, being the greater of 4.5m or the prevailing setback. C2 does not allow encroachments into the setback area by balconies, porches or verandahs.
6. The proposed variable setback of the dwelling is between 3m to 4.5m and does not comply with the minimum setback control. The Applicant does not dispute that they seek flexibility to the setback control.
7. I turn to the merits of the setback. In applying s 4.15(3A)(b) of the EPA Act, I am unable to accept that the reduced setback to Henley Parade achieves the objectives of E4.2 in order to provide flexibility, namely objectives 01 and 04 for the reasons that follow.
8. I accept the Applicant's evidence that the proposed development is similar to new developments in proximity to 110 Henley Marine Drive (as shown in Figures 2, 3 and 8 in the Planner JER). However, whilst located nearby the site, I consider that these sites are different in that:
   • Those developments are consistent with the elevated character of that area that relates to the rocky interface adjoining those sites and established high fence or garage presentation that have a minimal relationship with the public domain;
   • Those developments have a less sensitive orientation as they primarily squarely front Henley Marine Parade, and are not angled towards Parramatta River; and
   • 110 Henley Marine Parade itself is different, appearing to be designed to take advantage of its location directly adjoining a reserve and has the benefit of orientating itself to both the east and south towards Parramatta River.
9. I observed from the site view that there is a change in character from 51 Burnell Street onwards to the south/west on Henley Marine Parade towards Brent Street. These properties are shown in the streetscape analysis dwg SA-01 between 51 Burnell Street to 81 Burnell and reflect a generally consistent character that I accordingly consider to be the appropriate visual catchment. This is also consistent with the CBDCP's contextual approach to front setbacks.
10. The dwellings in this visual catchment are not elevated and have a ground floor relationship with the public domain. Most incorporate both garages and separate pedestrian access, whilst a few dwellings present some form of readily identifiable pedestrian access with vehicular access provided from Burnell Street. The majority of properties, but not all, include soft landscaping for around half of the frontage. With the exception of the corner lot of 51 Burnell Street, which primarily presents vehicular access and fenced private open space area to Henley Marine Parade, the character of this visual catchment is relatively consistent in these features as viewed from the public domain.
11. In accepting the submissions of the Applicant and the evidence of Mr McNamara on the applicable setback control and the approach to how a development would need to sensitively address its constraints through design, I am unable to accept the conclusions of the Applicant that the proposed development does so in a way that achieves the objectives of the control.
12. I accept and prefer Mr Curran's evidence on the visual and acoustic impacts of the elevated rear structure. I find that the size of the proposed elevated rear structure is a distinctively different design element in this area. It's size, cantilevered nature, and variable reduced setbacks to both the side boundary (north-west) and Henley Marine Parade (less than the minimum 4.59m) overwhelm the façade presentation to the public domain and streetscape.
13. With respect to Part E3.8 and controls C4, C7 and C8, I accept the evidence of Mr Curran that the proposed elevated rear structure would also result in unreasonable privacy and acoustic impacts to the adjoining neighbours due to its size and reduced setbacks. The exception to this is the side setback to 51 Burnell Street, which complies. The proposed 900mm setback to 104 Henley Marine Parade, instead of 2m, and depth beyond 1.8m at approximately 8m-16m has not been adequately mitigated through the proposed glass balustrades.
14. I accept that the Applicant has sought to balance competing demands of privacy, acoustics and view sharing. I also accept the agreement of the planners that larger elevated areas are characteristic in this location. The approved development at 104 Henley Marine is only located 900mm from the Site's boundary and has located living area windows in a manner that impacts the Site. I accept that any proposed development on this Site will have impacts on these areas. However, in seeking a large dispensation to Part E3.8, C4 for balcony depth, the proposed development has not sought to mitigate its impact but instead, seeks to emulate what has been approved for a smaller adjoining site that does not benefit from a dual frontage. I accept Council's evidence and find that the proposed development does not provide a high level of visual and acoustic privacy to 104 Henley Marine Drive due to the reduced proximity between these living and outdoors spaces.
15. During oral evidence, Part E4.3 street orientation and presentation of the DCP was ventilated. In particular objective O2 which seeks to present appropriate frontages to adjacent streets and the public domain.
16. In this regard, I accept the evidence and from my observations, that the site is reasonably visible from the public domain, adjacent to a highly utilised public domain area/walkway (the Bay Run) and can be viewed from nearby parts of Parramatta River.
17. The proposed development does not contribute to the activity or quality of Henley Marine Parade and the public domain. When viewed from the street, the façade primarily features a dominant elevated rear structure with a pool and ground floor/basement vehicular access. Also lacking pedestrian access, I consider that the proposed development presents to Henley Marine Parade as if it were a rear setback and not as a secondary street frontage. I am unable to accept that the proposed façade interface to Henley Marine Parade appropriately addresses, or adequately responds to, the public domain in this location.
18. A related issue with the elevated rear structure that was pressed by Council and one of the objections was in relation to views (contention 5). I accept the Applicant's evidence that views from 104 Henley Marine Parade, over a side boundary, are difficult to maintain. Figures 9 and 10 within the Planning JER show that views are maintained from one of the living areas and terrace areas for 104 Henley Marine Parade. This element does not form a basis for refusal.
19. The proposed development seeks flexibility to Part E4.2 C1-C4 and C5 of the CBDCP. Based on the above, I find that the proposed setback to Henley Marine Parade does not achieve the objectives for E4.2 building setbacks as it does not adequately integrate with the established setback character of the street (objective O1) or provide adequate separation for visual and acoustic privacy (objective O4).
20. I find that the proposed development does not provide adequate visual and acoustic privacy to 104 Henley Marine Parade as sought by Part E3.8, C4, C8 and objective O1.
21. I find that the proposed development does not adequately address both street frontages as sought by Part E4.3, C1-C3 and objectives O1 and O2.

1. Council pressed that contentions 3 and 8 for solar access and landscaping warranted refusal of the amended DA.
2. Part E4.6, control C4 seeks 35% landscaping. It was contended that approximately 20% was proposed. The key areas of disagreement between the experts were in relation to calculations, the landscaped character of the area, quantity of that landscaping relying on planter boxes, the elevated rear structure and other areas that might be considered as landscaping to achieve the 35%.
3. Distinct from the contested issue of what landscaped areas could be included in the calculations, during oral evidence it emerged that the calculations on the architectural plans were inaccurate. In cross examination, Mr Storch for the Applicant was unable to confirm the amount of landscaping proposed. Due to the reliance on the calculations provided by the architect, it was apparent that there were errors in the landscaping calculations. The errors on the architectural plans and the proposed amount of landscaping was not able to be quantified during the hearing.
4. It was submitted by the Applicant that the proposed landscaping was close to the 35% requirement. Notwithstanding the numerical requirements and dispute about the landscape calculations, the Court could rely on the amended DA meeting the objectives of the CBDCP control.
5. In relation to solar access, Council contended that the Applicant had selected a principal private open space of a decked area for the adjoining 51 Burnell Street. Mr Ward submits that a grassed, lawn area open to the sky and adjoining a rumpus room would be the usual principal private open space for a dwelling. Mr Ward also submitted that the solar access information before the Court was incomplete and the lawned area of 51 Burnell Street was not shown on the architectural plans.
6. In cross examination it was conceded by Mr McNamara that the solar access diagrams did not show the entire private open space for the lawn area of 51 Burnell Street.
7. Notwithstanding this, Mr McNamara relied on the principal private open space of the elevated balcony of 51 Burnell Street. He said this area was sizeable, accessed off a living room, achieved solar access, and obtained expansive views of Parramatta River.
8. Ms Berglund submitted that whilst there is some overshadowing to 51 Burnell Street, there is ample private open space that achieves solar access.
9. Mr Ward submitted that the Court had inadequate information to make a decision about solar access to the private open space for 51 Burnell Street and the adequacy of the proposed landscaped area for the site.

1. His Honour, Preston CJ stated in Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2] that:

"...an applicant for development consent always bears a persuasive burden of proof: the applicant must persuade the consent authority, whether it be the council at first instance or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed."

1. In order to make findings on whether a control is met, or if flexibility should be shown for a proposed development that meets the objectives, sufficiently accurate information is required. As shown through the evidence and submissions, some of the information before the Court is either incomplete or inaccurate. I am therefore unable to quantify the extent of impact or what the variation is, in order to determine if either the control or its objectives have been achieved or the acceptability of its environmental impact.
2. It follows that the Applicant has not been able to demonstrate that the controls or their objectives have been met in relation to the issues of solar access and landscaping.

Issue - Objectives for FSR and the building height plane

1. Council presses that notwithstanding numerical compliance, the objectives for FSR have not been met as a result of the void area along the southeastern part of the first floor (contention 1). Related is the building height plane issue (contention 7), with small sections of the void area and other roof elements encroaching into the building height plane.
2. Given my findings about the elevated rear structure and insufficient information accompanying the amended DA as well as noting that the building height plane issue also related to solar access, it is unnecessary to make findings about these contentions.

1. The amended DA sought flexibility to the CBDCP setback controls to Henley Marine Parade and balcony setbacks and depth. In considering the evidence, I have found that the proposed variable setback, presentation of the elevated rear structure and the impacts to the streetscape, public domain and adjoining dwelling do not meet the relevant objectives of the controls for the reasons set out further above.
2. The contested issues of solar access and landscaping were not able to be overcome on the basis of the insufficient or inaccurate information accompanying the amended DA.
3. I therefore conclude that these issues warrant refusal of the amended DA.

(1) The appeal is dismissed.

(2) Development application No. 2023/0168 for the demolition of the existing dwelling and construction of a new dwelling at 53 Burnell Street Russell Lea is determined by refusal of consent.

(3) The exhibits are returned except for A, B, C, 1 and 6.