Gatacre LC Pty Ltd v Lane Cove Council

Preamble

1. When the development applicant (Gatacre LC Pty Ltd ‑ the Company) and the consent authority (Lane Cove Council ‑ the Council) attended before the Registrar to have this Class 1 development appeal for a residential flat building set down for hearing, the parties estimated that the hearing would occupy a maximum of three days (including a site inspection and hearing objector evidence, informally, during the course of that site inspection).
2. For reasons which it is necessary to explain in some detail and at some length, two major defects in the plans of the proposed development (separately discovered by me during the hearing and not identified by any of the expert advisers to the parties or the legal representatives of the parties) necessitated multiple lengthy adjournments and a protracted set of hearings over six days in court, spread over a period of some five months. When finally concluded, the transcript of the various hearing days ran to a total of 384 pages.
3. What had been expected to be a comparatively "plain vanilla" Class 1 merit appeal had become significantly protracted. The final version of the contentions raised by the Council in its Further Amended Statement of Facts and Contentions ‑ FASOFAC (filed on 20 October 2022 ‑ roughly at the midpoint of the period over which the hearings spread) advanced a total of thirteen contentions which, together with their supporting particularisation, comprised separate reasons why the Council proposed that the Company's development should be rejected. In addition, the Council listed a number of contentions that were proposed could be resolved by conditions of consent and, in addition, a number of further contentions where the Council proposed that insufficient information had been provided in support of the application.
4. It transpires that, in the final analysis, there are three separate and sufficient reasons why the Company's proposed development must be refused development consent. These reasons are: 1. The unacceptable visual impact on the neighbouring residence at 2A Gatacre Avenue; 2. The unacceptable visual impact on the neighbouring residence at 7 Allison Avenue; and 3. The fundamentally flawed and unacceptable design of the lowest elements of the Company's proposed development in its Gatacre Avenue corner adjacent to the site of an approved boarding‑house site, a site which fronts the Pacific Highway (the Highway) upslope.
5. Although this judgment is lengthier than would ordinarily be the case, this is as a consequence of the necessity to set out in sufficient detail the evolution of the complexity of the proceedings and the relevant evidence and submissions leading to the above three briefly noted reasons for dismissal of the appeal and refusal of development consent to the Company's proposed development. However, those conclusions have meant that a range of further elements of the contentions raised by the Council (or additional concerns raised in the public submissions from objectors ‑ written and oral) do not require to be addressed.

Introduction to the site and the proposed development

1. The Highway at Lane Cove runs in a generally north‑west/south‑east direction (convenient to be referenced as west and east for the purposes of this judgment ‑ see Transcript 29 November, page 74, lines 28 to 36) just before it crosses an overpass above the Gore Hill Freeway. At this point, the Highway is running along a ridgeline to the east of this overpass. About 140 metres to the east of the overpass, Gatacre Avenue runs from the Highway to the south, falling steeply into the valley to the south of the ridgeline.
2. About 110 metres to the east of Gatacre Avenue, Allison Avenue similarly falls toward the valley from its intersection with the Highway. Immediately behind the commercial buildings fronting the Highway between Gatacre Avenue and Allison Avenue, at 1 Gatacre Avenue, is the site of a former motel. This motel site has frontages to both streets. The motel site is irregular in shape, having a slightly longer frontage to Gatacre Avenue than to Allison Avenue.
3. On 3 June 2021, the Company applied to the Council seeking development consent to demolish the motel and the dwelling (at 5 Allison Avenue) which sits on the allotment in the elbow of the motel site at its Allison Avenue frontage and to construct, across these parcels of land (the site), a residential flat building.
4. An image of the site is reproduced below. This image has been taken from the State Government's Six Maps website.
5. The site is zoned R4 High Density Residential pursuant to the Lane Cove Local Environmental Plan 2009 (the LEP). Land to the south of the site is zoned R2 Low Density Residential pursuant to the LEP. The objectives for these zones in the LEP's Land Use Table are later reproduced.

The boarding‑house site to the north

1. The parcel of land to the north, at the Gatacre Avenue‑end of the site, has an existing multi‑storey residential development consent for the purpose of constructing a boarding house. Plans for the approved development of the boarding house immediately to the north of the site are in evidence (Exhibit 8, Tab 32). The approved ground floor plan shows, relevantly, a 1.8‑metre‑high lapped and capped fence on the boundary with the site. It also shows that, from approximately 15 metres into the boarding‑house site at its Gatacre Avenue frontage, there is a basement access ramp but, beyond that for the built form on the ground level of the approved boarding house, the setback of that built form is three metres from the boundary with the site. The plans for Levels 1 to 3 of the approved boarding house show that the built form adjacent to the site is set back three metres from the boundary with the site at each of these levels.
2. As the setback of the approved boarding house from the boundary with the site at its northern end is only three metres, this is a factor of relevance in considering the extent of the setback from this boundary proposed for the Company's development on the site.

The determination process

1. Because the value of the project exceeded the triggering reference value for referral to the Sydney North Planning Panel (the Planning Panel) to act as the determining authority on behalf of the Council, the Company's development application, in its then form, was considered by the Planning Panel. The Planning Panel refused to grant development consent to the Company's proposed development.
2. It is not necessary to describe, in any detail, the nature of the Company's then proposed development as its refused design has been revised on a number of occasions (including several times during the course of my hearing of this appeal ‑ for reasons later described).
3. On 24 September 2021, the Company commenced a Class 1 appeal against the Planning Panel's refusal of its proposed development.
4. As is conventionally the case in Class 1 merit proceedings, the matter was referred to a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (the Court Act). This conciliation conference, held on 11 March 2022, was unsuccessful. As there was no agreement from the parties that the conciliating commissioner should hear and determine the Company's appeal, the matter was relisted before the Registrar for the allocation of hearing dates.
5. The matter was initially set down for a three‑day hearing commencing on 16 August 2022 ‑ commencing with a site inspection and the informal hearing of evidence given by seven residents of neighbouring or nearby dwellings who objected to the Company's proposed development.
6. The Chief Judge assigned the Company's appeal to me for hearing and determination.

The pre‑hearing plan revisions

1. The Company subsequently sought and was granted leave by the Registrar to rely on further revisions to the plans of the proposed development. At a pre‑hearing mention before me on 11 August 2022, the parties agreed with my proposal that, in lieu of the conventional starting time for the site inspection of 9.30 am, the commencement time should be delayed for 30 minutes in order to enable the legal representatives of the Council to explain the new plan changes to those objectors attending the site inspection (particularly, but not exclusively, those giving evidence during the site inspection of their concerns about the proposed development).

Representation

1. The Company was represented by Mr M Staunton and Mr J Farrell, barristers, and the Council by Ms K Gerathy, solicitor.

The Statements of Facts and Contentions

1. On 20 October 2022, the Council filed its Further Amended Statement of Facts and Contentions (the FASOFAC). This document responded to the then version of the plans upon which the Company proposed to rely for the purposes of resolution of this Class 1 proceedings. On 4 November 2022, the legal representatives of the Company filed a Further Amended Statement of Facts and Contentions in Reply in response to the Council's document.
2. Many of the contentions raised by the Council in the FASOFAC were resolved through the joint expert conferencing process undertaken in a number of the expert disciplines where joint expert reports arising from the Company's revised proposed development had recorded agreements on matters in dispute. Some of these (for example, agreements between the urban design experts) would necessitate further revisions to the plans.
3. The Council later tendered a further document that set out those contentions which had been resolved, or narrowed, as a consequence of further amendments to the plans (either ones for which leave had been granted or which would be incorporated in finalised plans if consent was granted) or matters which were capable of being addressed by conditions of consent if that position arose.

The Council's "without prejudice" conditions of consent

1. The Council also tendered a set of "without prejudice" conditions of consent which it proposed would apply to the Company's development if approved. Given the stage in the hearing process when these were provided to the legal representatives of the Company and tendered, I deferred any consideration of such disagreements about conditions as might arise until after I had determined the broad merit matters as to whether the Company's proposed development was capable of being granted development consent at all.
2. As it happened, further matters arose during the course of oral evidence which would have required additional responsive conditions to be incorporated in the draft conditions. I proposed that, if there were conditions which remained in dispute or where further conditions were necessary, those matters relating to conditions should be deferred to a short supplementary hearing after my determination of the primary merit issues in dispute between the parties if the Company's proposed development was to proceed to such a stage.

Introduction

1. A number of minor agreed amendments to the plans had been advanced in the Urban Design Joint Expert Report. Further amendments, as later discussed, were also required to the landscaping plans as a result of my questioning concerning impacts on 2A Gatacre Avenue as a consequence of the nature of the landscaping proposed along the boundary of the site in the immediate vicinity of the existing ~2.5‑metre‑high retaining wall between the site and this downslope residence.

Minor matters of detail arising from the Company's amended plans

1. During the course of the hearing, I raised with Mr Staunton a number of matters where I felt that, if the Company's proposed development was to be granted development consent, minor amendments would also be necessary to the plans to address inconsistencies ‑ ones which could be addressed in revised plans by making tidying‑up changes without further merit consideration unless the plan revisions were not considered satisfactory by the Council.
2. I indicated that, in light of matters arising from the agreement between the urban design experts to a number of minor modifications to the plans and the necessity for some further modification of the plans arising out of the landscape architects' evidence, it was appropriate to require, if the Company was to be granted a development consent, that revised plans be prepared so as to enable them to be uplifted to the NSW Planning Portal.

Amendments because of significant defects in the plans

1. As will later be explained, two separate and significant defects were discovered by me during the course of the hearing. Each necessitated changes being required to cure those defects. Plan‑change elements were prepared addressing each of them but fully redrafted plan preparation was not undertaken for the reasons noted below.

Deferral of preparation of plans legally capable of approval

1. I indicated that it was not appropriate to require the Company to go to the cost of preparing revised plans at that time, as such a necessity would only arise if I determined that the proposed development warranted approval after consideration of the major matters in dispute between the Council and the Company.

Introduction

1. The relevant statutory and planning controls requiring consideration in these proceedings are to be found in a variety of source documents. Those documents are:

• Environment Planning and Assessment Act 1979 (the EPA Act);
• the Court Act;
• State Environmental Planning Policy 65 ‑ Design Quality of Residential Apartment Development (SEPP 65);
• the Apartment Design Guide (the ADG);
• the LEP; and
• the Lane Cove Development Control Plan 2010 (the DCP).

The EPA Act and the Court Act

1. Although engaged for the purposes of matters arising for consideration in these proceedings, it is not necessary to reproduce any of the provisions of these statutes other than s 4.15(3A) of the EPA Act.
2. In addition to the guidance given by the Court of Appeal in Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 (Zhang) (as to Zhang ‑ see note below following the relevant DCP provisions), the EPA Act, in s 4.15(3A), is also potentially engaged for the purposes of consideration of whether aspects of the Company's proposed development is acceptable or not. It is appropriate to set out the terms of this provision: 4.15 Evaluation (1)‑(3) … (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria.

SEPP 65

1. The SEPP also contains provisions setting out what elements of a council's local controls are not permitted to act as a barrier for a proposed apartment development and how other local controls may be used for this purpose. The first provision is in the following terms: 6A Development control plans cannot be inconsistent with Apartment Design Guide (1) This clause applies in respect of the objectives, design criteria and design guidance set out in Parts 3 and 4 of the Apartment Design Guide for the following - (a) visual privacy, (b) solar and daylight access, (c) common circulation and spaces, (d) apartment size and layout, (e) ceiling heights, (f) private open space and balconies, (g) natural ventilation, (h) storage. (2) If a development control plan contains provisions that specify requirements, standards or controls in relation to a matter to which this clause applies, those provisions are of no effect. (3) This clause applies regardless of when the development control plan was made.
2. In addition, cl 30 of SEPP 65 is also relevant: 30 Standards that cannot be used as grounds to refuse development consent or modification of development consent (1) … (2) Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to - (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria. (3) …
3. SEPP 65 also identifies, in Sch 1, nine design quality principles to be taken into account in the designing of proposed apartment developments. The elements of design quality principles 1, 5 and 6 relevant for these proceedings are set out below: Schedule 1 Design quality principles Principle 1: Context and neighbourhood character Good design responds and contributes to its context. Context is the key natural and built features of an area, their relationship and the character they create when combined. It also includes social, economic, health and environmental conditions. Responding to context involves identifying the desirable elements of an area's existing or future character. Well designed buildings respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood. Consideration of local context is important for all sites, including sites in established areas, those undergoing change or identified for change. Principle 5: Landscape Good design recognises that together landscape and buildings operate as an integrated and sustainable system, resulting in attractive developments with good amenity. A positive image and contextual fit of well designed developments is achieved by contributing to the landscape character of the streetscape and neighbourhood. … Principle 6: Amenity Good design positively influences internal and external amenity for residents and neighbours. Achieving good amenity contributes to positive living environments and resident well being. Good amenity combines appropriate room dimensions and shapes, access to sunlight, natural ventilation, outlook, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas and ease of access for all age groups and degrees of mobility.

The ADG

1. The ADG provides design criteria and general guidance about how development proposals can achieve the design quality principles identified in SEPP 65.
2. The ADG describes its relationship to SEPP 65 in the following terms: Statutory relationship to SEPP 65 There is a close and integrated relationship between this Apartment Design Guide and SEPP 65. SEPP 65 sets a consistent policy direction for residential apartment development in NSW and provides a uniform statewide framework for more detailed planning guidance. It has a statutory effect on development and, as a consequence, may modify or supplement the provisions of state environmental planning policies, local environmental plans (LEP) and development control plans (DCP). Although this document is a guide, SEPP 65 refers to some parts of the Apartment Design Guide that must be applied when assessing development applications. Objectives, design criteria and design guidance in Parts 3 and 4 of this Apartment Design Guide that are referred to in SEPP 65 will prevail over any inconsistent DCP control. Parts 3 and 4 set out objectives, design criteria and design guidance for the siting, design and amenity of residential apartment development. Certain design criteria referred to in SEPP 65 cannot be used as a reason to refuse a development application, if complied with. SEPP 65 establishes nine design quality principles to be applied in the design and assessment of residential apartment development. This Apartment Design Guide provides greater detail on how residential development proposals can meet these principles through good design and planning practice.

The LEP

1. The first relevant element of the LEP is the extract from the Land Use Table which sets out the objectives of the R4 zone within which the site is located. Those objectives are in the following terms: Zone R4 High Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high 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 high concentration of housing with good access to transport, services and facilities. • To ensure that the existing amenity of residences in the neighbourhood is respected. • To avoid the isolation of sites resulting from site amalgamation. • To ensure that landscaping is maintained and enhanced as a major element in the residential environment.
2. The second element of the LEP is one referenced by the Council. It is the objectives of the R2 Low Density Residential zone. The Land Use Table sets out the objectives of this zone (which is that applying to the land immediately to the south and further downslope from the site). Those objectives are in the following terms: Zone R2 Low Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To retain, and where appropriate improve, the existing residential amenity of a detached single family dwelling area. • To encourage new dwelling houses or extensions of existing dwelling houses that are not highly visible when viewed from the Lane Cove River or Parramatta River. • To ensure that landscaping is maintained and enhanced as a major element in the residential environment.
3. Although Ms Gerathy sought, at least to a limited extent, to invoke the third objective of the R2 zone as a proposition supporting the contention advanced on behalf of the Council concerning the visual impact of the Company's proposed development, as Mr Staunton submitted, such an approach is impermissible. Assessment of development in a zone (here, the R4 zone) must be confined to the objectives set out in the LEP's Land Use Table for that zone and that the objectives of any adjacent zone are not appropriate to be taken into account (Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321, Preston CJ at [30]).
4. The third relevant provision of the LEP is cl 4.3 Height of Buildings, the provision which provides the basis (through the incorporation by reference of the various relevant maps) for identifying the maximum building height development standards for locations within the Council's local government area. It will later be necessary to refer to the objectives of this provision. The terms of this provision are: 4.3 Height of buildings (1) The objectives of this clause are as follows - (a) to ensure development allows for reasonable solar access to existing buildings and public areas, (b) to ensure that privacy and visual impacts of development on neighbouring properties, particularly where zones meet, are reasonable, (c) to seek alternative design solutions in order to maximise the potential sunlight for the public domain, (d) to relate development to topography. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.
5. The mapped height limit for this site is 15 metres.
6. Finally, the LEP contains a conventional provision, cl 4.6, permitting a development applicant to seek dispensation from complying with development standards set in another clause of the LEP. This is a beneficial and facultative provision, one which requires to be satisfied before development which would otherwise be in breach of a development standard can be permitted. Strict satisfaction of the various tests posed by cl 4.6 is mandatory (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118; Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130). As the Company's proposed development would exceed the maximum height standard for the site at a number of locations on its proposed uppermost level, a dispensation request pursuant to cl 4.6 has been made seeking approval for those exceedances. This provision, relevantly, is in the following terms: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows - (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subcl (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) …

The relevant provisions of the DCP

1. Part C of the DCP applies to residential development. The following provisions are potentially relevant to my consideration: Part C C.3 Residential Flat Buildings 3.3 Building Depth Objectives The objectives for building depth are: 1 To ensure that the bulk of the development is in scale with the existing or desired future context. … 3.4 Building Width Objectives The objectives for building width are: 1 To avoid large contiguous building bulk and massing. 2 To ensure that residential flat building responds to the character of the area. 3.5 Setbacks Objectives The objectives for setbacks are: 1 To establish the desired spatial proportions of the street and define the street edge and provide a transition between public and private space. 2 To assist in achieving visual privacy to dwellings from the street. 3 To allow for street landscape character. Provisions: 3.5.1 Front/Street a)‑c) … 3.5.2 Side and Rear a) To the boundary within the R4 zone, the minimum side and rear setback shall be: 6m up to 4 storeys 9m for 5‑8 storeys 12m for 9 storeys and above. b) To the boundary shared with R2 and R3 zones the minimum set back will be 9m if habitable rooms/balconies orient this side. … 3.18 Landscaping Objectives The objectives for landscaping and deep soil zones are: 1 To provide privacy and amenity. 2 To retain and provide for significant vegetation, particularly large and medium sized trees and to provide continuous vegetation corridors. 3 To conserve significant natural features of the site. 4 To assist with management of the water quality and water table. 5 To conserve and create buildings in a landscaped setting. Provisions: a) A minimum of 40% of the site area is to be planted, comprising 25% landscaped area and a further minimum of 15% planting on structures or landscaped area. b) Exceptions may be made in centres for mixed use developments only. In these instances, stormwater treatment measures must be integrated with the design of the residential flat building and sufficient soil depth and volumes to be provided to ensure that mature trees are achievable. c) Landscaping to front boundaries shared with bicycle routes should be less than 900mm in height and should not impede pedestrian and bicycle routes or reduce visibility to these pathways. Part J J.1 Landscaping … 1.4 Objectives for landscaping of new development … The objectives for landscaping of new development are: 1 For medium/high density residential, commercial and industrial development, all substantial trees and that part of the landscaping scheme visible from the public domain shall comprise indigenous plants. 2‑4 … 5 The proposed landscape treatment should be compatible with the existing environmental character of the area and be planned so as not to affect adjoining properties. The use of native trees and shrubs to provide privacy screening is desirable. 6‑8 … 9 The establishment and ongoing maintenance of new plantings should be considered. Plants with low watering requirements are preferred. The use of plants with high watering requirements should be minimised. Where these are used, details of the proposed irrigation system should be specified. Irrigation should be supplied to plantings over slabs and in planter boxes but not areas that are adjacent to bushland. 10‑12 …

The role of a development control plan

1. In Zhang, at [75], Spigelman CJ (Meagher and Beazley JJA agreeing) stated that a development control plan "had to be considered as a 'fundamental element' in or a 'focal point' of the decision‑making process [of the consent authority]". The Chief Justice also said that a provision of a development control plan that was directly pertinent to a development application "was entitled to significant weight in the decision‑making process but was not, of course, determinative".
2. Although Zhang does permit departure from the terms of the DCP in the fashion outlined, nonetheless, serious consideration must be given to the terms of that document's objectives and controls. It is certainly not open to me to express a conclusion that any controls are, as a general proposition, inappropriate (Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338; [2009] NSWCA 226).

Introduction

1. Although the FASOFAC had pleaded a wide range of contentions, only a limited number of them remained to be addressed after the joint expert conferencing process.
2. The critical issues potentially requiring to be addressed in my assessment of the Company's proposed development (grouped by topic ‑ as a number of the contentions were interrelated ‑ these being set out in their order of importance in my assessment) are: 1. Visual impact on immediately adjoining private residences; 2. The design of the north‑western element of the proposed development adjacent to the boarding‑house site; 3. Visual impact on private residences further downslope; 4. Whether the height exceedances could be permitted; 5. Solar access compliance for apartments in the proposed development; 6. The east‑west length of the built form.
3. Given that I am satisfied that the first and second of the above listed topics between them give rise to three separate and distinct reasons why the Company's proposed development should be refused development consent and this appeal dismissed, it is not necessary to address all the remaining issues listed above. However, for completeness, I do consider the fourth of the above listed issues, as my determination that it does not give rise to matters impacting on the adjoining properties at 2A Gatacre Avenue or 7 Allison Avenue is relevant in the context of my conclusion that the visual impacts on those two properties render the proposal unacceptable.
4. However, the third, fifth and sixth of the above listed topics do not give rise to matters relating to visual impacts on 2A Gatacre Avenue or 7 Allison Avenue and, thus, are not necessary to be addressed (given the complexity and length necessary for this judgment to address the three determinative issues).
5. The written and oral submissions on behalf of the objectors to the proposed development also raised matters that were not encompassed within the contentions that were set out by the Council and which had remained unresolved at the commencement the two phases of my hearings. Although some of the informal oral evidence of the objectors canvassed those matters and some other bases of objection were set out in the written public submissions, given that I have concluded that the Company's proposed development should be refused development consent for the three set out reasons arising out of the Council's remaining contentions, it is not necessary to consider, further, the additional matters raised by the objectors.

The documentary evidence

1. For the Company, eleven documentary exhibits (including bundles of documents) were tendered ‑ these becoming Exhibits A to L. For the Council, two USB thumb drives were tendered becoming Exhibits 1 and 3. The two USB thumb drives contained electronic versions of a wide range of documentary material, with the first having been tendered at the August 2022 hearing and the other at the second‑phase hearing. In addition, 27 further documents (including several folders of documents) were tendered on behalf of the Council. It is unnecessary to take the space in what is an otherwise lengthy judgment to reproduce a list of the exhibits. It is sufficient to note that, where necessary, exhibit identifiers are included in the text of this judgment.
2. A range of joint expert reports were tendered addressing contentions raised by the Council, as set out in the Council's FASOFAC concerning the now amended proposal. The evidence concerning the relevant contentions was addressed by the experts in the groupings set out in the table below: Discipline Company Expert Council Expert Visual Impact Mr David Moir Mr Rajiv Shankar Landscape Architects Mr Robert Loughman Mr Ted Webster Civil Engineering on Contention 18 Mr Jesse Wilson Ms Celine Montallana Civil Engineering on Contention 17 Mr Jesse Wilson Mr Maran Muthiah Arboricultural Issues Ms Catriona Mackenzie Mr Louis Putnam Gray Town Planning Ms Julie Horder Mr Rajiv Shankar Urban Design Mr John Stephen (Steve) Kennedy Dr Michael Zanardo Access Mr Richard Seidman Dr Michael Zanardo Structural Engineering Mr Mark Manning Mr Neil Walsh

1. It is to be noted that the second joint report of the urban design experts recorded that several aspects which had been referred to them and addressed in that second report were ones which had not been the subject of those experts' consideration in their first joint report. This was because that first report was based on the earlier version of the plans which had been proposed to be the subject of determination at the first‑phase hearing in August 2022.

The results of the joint expert conferencing

1. It is to be observed that, in a number of the disciplines listed above, the experts had explained, in the relevant joint expert report, why they had concluded that some elements of the contentions relevant to their discipline that had been raised in the Council's FASOFAC were either:

• resolved by the changes which had been incorporated in the final amended version of the plans for which leave had been given in the second phase of the hearing and which were now to be the subject of my determination; or
• able to be resolved by condition of consent; or
• able to be resolved by further design amendment as set out in the relevant expert report.

1. It is to be noted that Mr Staunton indicated, on behalf of the Company, that the various conditions and design amendments proposed in these expert reports were accepted by the Company and had been (or would be) incorporated in architectural plans if the proposed development was otherwise approvable.
2. It is to be observed that, with respect to most of these proposed conditions and design amendments, it is not necessary to pay any further attention to them in this judgment.
3. However, with respect to one aspect of the design amendments proposed by the urban design experts (and other necessary amendments arising from the discovered defects in the plans as later discussed), the question of the acceptability of the proposed setback of the Company's development from the boarding‑house site on the northern boundary of the site at its western end will need to be considered in the context of the relevant setback requirements embodied in the DCP.

The supplementary landscape architects' report

1. On 14 December 2022, a further supplementary landscape architects' joint expert report (dated 13 December 2022) was also filed. The relevant portion of this joint expert report (after the introductory formalities) was in the following terms: For the purpose of this joint conferencing, the landscape experts have reviewed the updated Rothe Lowman architectural documentation dated 1.12.22 (drawings TP 01.03 & TP 03 .20) and the Greenview Consulting structural engineering statement pertaining to the northern boundary wall construction methodology, dated 1.12.2022. Following our review of these documents, the landscape experts are satisfied that there is no change to the soil volume calculation of 187m³ previously tendered in evidence and the 8 proposed deciduous trees (Fraxinus angustifolia) proposed in the northern raised planter box. To ensure the successful establishment of the eight Fraxinus angustifolia proposed along the northern boundary of the development, the landscape experts agree that a judicious maintenance program will need to be implemented. This is to include, but not be limited to, regular watering, fertilising, topping up of mulch and formative pruning for a minimum of three growing seasons to ensure upright growth is promoted and to minimise any likely encroachment on the adjoining building façades.
2. As this was the agreed position of these experts, neither of them felt the need to provide any individual comment in this document.
3. The proposed plantings discussed above give rise to some matters of controversy in these proceedings concerning the range of issues involved with the design of the Company's proposed development at its north‑western end adjacent to the site of the approved boarding house fronting the Highway. These issues are later addressed in the section of this judgment that turns to that portion of the Company's proposed development.

The expert oral evidence

1. All oral evidence given by the experts was given concurrently in their groupings of the areas of expertise. Not all experts were required for cross‑examination as a consequence of the various areas of agreement between experts set out in relevant joint expert reports where issues had:

• been settled as a result of the amended plans that were the basis of the second‑phase hearing; or
• had resulted in agreement as to additions to, or alterations of, proposed conditions of consent ‑ with these resolving matters which had been put in contention by the Council; or
• further information had been provided on behalf of the Company, which information resolved issues in that discipline where the Council had previously indicated inadequacy in the material already provided.

1. The disciplines where it was necessary for the relevant experts to give oral evidence were:

• arboriculture;
• landscape architecture;
• visual impact assessment; and
• town planning.

1. On 29 November 2022, the Council tendered a version of the FASOFAC, a document indicating which of the contentions set out in the FASOFAC of 22 October 2022 were no longer pressed. For present purposes, it is to be noted that contention 3 Building Separation remained pressed with this contention being in the following terms: Building Separation 3. The proposed building separation is unsatisfactory to the northern and southern boundaries, resulting in poor internal amenity and visual privacy for the proposed apartments. The limited separation results in an unsatisfactory transition to the adjoining R2 Low Density Residential zone. See also: Contentions 5, 6, and 7 regarding setbacks, LCDCP 2009, and the Apartment Design Guide.
2. With respect to the relationship between the Company's proposed development and the boarding‑house site, the FASOFAC sets out two relevant particulars (particulars (k) and (k3)) - particulars being in the following terms: (k) To the north, the lack of building separation at the lower levels creates a canyoning effect that adversely impacts the amenity of the proposed apartments. The unit layouts along the northern setback (Storey 1-2) have a very poor outlook into the retaining wall beneath the concrete arbour. … (k3) At the northern boundary, the building separation between the Proposed Development and the building towards the north, is 3.0m as against the Apartment Design Guide's requirement of 6.0m. This provides poor amenity to the residents of the subject property and the property toward the north in terms of visual and acoustic privacy.
3. With respect to side setbacks, the FASOFAC sets out, at contention 7, the contention concerning side setbacks and its pleaded particulars. These are in the following terms: Side Setbacks 7. The Proposed Development does not comply with the LCDCP 2009 requirements for side setbacks, resulting in an inadequate street landscape character and amenity and privacy impacts to residents of neighbouring properties. Particulars (a) The setbacks objectives extracted in Contention 5 are repeated. (b) Clause 3.5.2(a) and (b) in Part C3 of the LCDCP 2009 stipulates a minimum 9m to the southern boundary as it is a boundary shared with R2 zoned land and habitable rooms/balconies orient this side (3.5.2(b)). Clause 3.5.2(a) requires a setback of 6m to the northern boundary up to fourth floor, then 9m to the northern boundary for the fifth and sixth floors. (c) The proposal seeks to provide a 6m side setback from the southern side boundary and 3m side setback to the northern boundary. (d) The resultant spatial proportions of the building as they relate to the side boundaries are not satisfactory contrary to the objectives of the LCDCP 2009. In particular, objective three in cl 3.5 to "allow for a street landscape character" because adequate space for trees is not provided in these setbacks, and therefore cannot contribute to the street landscape character, and objective one in cl 3.5 "to establish the desired spatial proportions of the street". (e) Additionally, the reduced northern side boundary setback of 3.0m is against the requirement in the Apartment Design Guide for 6.0m for buildings of one to four storeys. This provides poor amenity to the residents of the subject property and the property toward the north in terms of visual and acoustic privacy. (f) The southern side boundary at the ground floor and first floor of the Proposed Development are set back 6.0m as against a requirement of 9.0m in the Apartment Design Guide where there is a zone transition. This provides poor amenity to the residents of the Proposed Development, as well as to the residents in the adjoining R2 Low-Density Residential dwellings towards the south, in terms of visual and acoustic privacy.
4. Contention 8 addressed visual impact. The contention and its first two particulars (these particulars being presently relevant) are in the following terms: Visual Impact 8. The Proposed Development will have unacceptable visual impacts. Particulars (a) As amended, the Proposed Development will be part 5/part 6 storey residential flat building with a total gross floor area of 6,183.9m2, on a prominent ridge location with insufficient setbacks to all boundaries. (b) The proportions of the Proposed Development include an unbroken five storey, 80+m southern elevation, which does not positively interface with the adjacent R2 zone and results in a visually dominant structure. …
5. It is to be observed that, on 4 November 2022, a Further Amended Statement of Facts and Contentions in Reply (FASOFACR) was filed. This document provided detailed responses to the above set out elements of the FASOFAC elements which remained pressed by the Council.
6. It is not necessary to set out these responsive elements as they do not, in detail, respond to the matters that are pressed by the Council as relating to visual impact. To the extent that this document addresses matters of privacy in the relationship between the proposed development and the residences at 2 Gatacre Avenue and 7 Allison Avenue, the various measures proposed for the Company appear, prima facie, to be adequate. Certainly, in the context of the visual impact matters on the residences further downslope into the valley to the south, it is not necessary to set out matters from this document.

The site inspection

1. The site inspection commenced at 10.00 am on 16 August 2022, after the further revised plans had been explained to those objectors in attendance. I heard evidence given informally by seven of the objectors. This evidence was primarily given in the car‑park of the former motel near its driveway entrance from Gatacre Avenue. Evidence given on site in this fashion, to the extent that it is relevant to issues requiring to be determined in the appeal, is given as much weight as would be given had that evidence been heard, under oath or affirmation, in the courtroom. I have considered the objectors' evidence on that basis. It is to be noted that the legal representatives of the Company and the Council later settled agreed notes of that informal evidence, with those notes being tendered.
2. As earlier noted, the site is at the interface between the R4 High Density Residential zone and the R2 Low Density Residential zone. The nature of the existing development in the two zones was able to be observed whilst standing in the element of the motel car‑park on the site where the objectors' informal evidence was heard.
3. Following the hearing of this evidence, I visited the dwelling of one of the objectors at 2A Gatacre Avenue. This dwelling is located below and immediately to the south of the development site. There is a retaining wall, several metres high, between this residential site and the site. As a consequence of the steep slope of the land falling from the site to the south, the existing motel car‑park, where I had heard the objectors' evidence, is at a level approximately at the eaves of this dwelling.
4. From this residence, we walked up Gatacre Avenue to its intersection with the Highway; walked south along the Highway to its intersection with Allison Avenue; and turned west to walk downhill ‑ stopping on the corner of Allison Avenue and Haldane Lane to look back toward the site. I then crossed Allison Avenue and entered 7 Allison Avenue (owned by Dr Leitner), a property also zoned R2 Low Density Residential pursuant to the LEP. During the course of inspecting Dr Leitner's rear yard, looking toward the development site on his eastern and northern boundaries, I observed the presence of a dry‑stone‑rubble retaining wall between Dr Leitner's rear yard (on his northern boundary) and the boundary of the development site. This retaining structure was a little over a metre high. Its importance is later explained.
5. After this element of the site inspection, we walked through the development site, returning to the location from which the objectors' evidence had been heard. The site inspection then concluded.

Introduction

1. It is appropriate to make an observation about the duration of the hearings in this matter. When the Chief Judge assigned this Class 1 appeal to me, in July 2022, it was the expectation of the parties that the matter would take a maximum of three hearing days.
2. As was conventional in such proceedings, the hearing commenced with the site inspection discussed above and informal evidence from the objectors to the proposed development. Before the hearing which followed, my examination of the plans revealed that there was a significant defect in the development for which consent was sought ‑ in that the plans proposed the construction of a critical retaining wall at a location which was not on the site and for which no owner's consent had been obtained (indeed, the relevant owner, Dr Leitner, was one of the objectors who had spoken during the course of the site inspection). This defect necessitated an adjournment of the hearing for several months for preparation of plans which remedied this defect (the delay also being affected by a combination of court and witness availability).
3. When the hearing recommenced in late November 2022, in circumstances where the acceptability or otherwise of the design in its north‑western corner was a significant matter in contention, I discovered a further major defect in the plans ‑ in that there was no accurate architectural plan depiction of the retaining wall necessary to be installed to support the ~4.5 metres of cut that was proposed on the site at the boundary with the approved boarding‑house site to the north. The necessity to address this required a further significant revision of that element of the plans. The consequence of that meant additional evidence and hearing time was required.
4. The above two design inadequacies are matters addressed in more detail later.
5. These two retaining wall design defects in the plans for which the Company sought approval at the commencement of the hearing should not have been present in the plans for which development consent was sought. Put bluntly, the plans proposed were incapable of being constructed for legal and/or technical reasons.
6. Whilst some might consider that these defects should have been discovered prior to the hearing being undertaken and not have required my examination of the detail of the proposal leading to their discovery, the fault (and the unnecessary cost to the Company ‑ both for its own legal representatives and experts and also for the costs which it was required to pay for the additional expenses of the Council in responding to required amendments) resulted from what can only be considered to be incompetence on behalf of those preparing the design for the Company.
7. This incompetence not only increased the costs of the proceedings, but also, in the circumstances where there is considerable listings' pressure on the Court, caused wasted court time in the hearing.

The hearing on 16 August 2022

1. After the site inspection, the hearing recommenced in court at noon. Shortly after the recommencement, I invited Mr Staunton to tender the plans upon which the Company was now seeking to rely. I did so because I had examined the cross‑section plans after the conclusion of the site inspection in order to see how the wall between Dr Leitner's rear yard and the development site was accommodated in the plans. I had observed that the plans proposed, because of the slope of the land and the necessity to level the development site at its eastern end, a retaining wall some metres high, on a substantial footing, was shown on the plans. Importantly, this retaining wall was expressly and precisely marked on the relevant elevation as being constructed on Dr Leitner's property.
2. There was, at that time, no owner's consent from Dr Leitner to the construction of this wall on his property. I suggested to Mr Staunton that it was unlikely (to put it mildly) that Dr Leitner would grant owner's consent for the construction of this structure (as he was an objector to the Company's proposed development) and that there was no application of which I was aware that an easement for this purpose should be granted to the Company.
3. As a consequence, I suggested to Mr Staunton that it would be necessary for the Company to revise its plans to ensure that that retaining wall was accommodated entirely on the site.
4. I also drew to his attention that, on the same boundary between Dr Leitner's property and the development site, at a point further to the east, there was a vertical element several metres high depicted between the site (on the high side) and Dr Leitner's property below. On this cross‑section, no retaining wall was shown at all. This, too, in my assessment, also meant that the plans required further revision to address this problem.
5. The necessity to address these two deficiencies in the plans (one, at least, requiring the setting back of the retaining wall from Dr Leitner's property to be entirely on the Company's site) had potential impacts for the setback of the proposed basement parking excavation from that boundary; potential narrowing of the landscaping corridor on the development site adjacent to the boundary with Dr Leitner's property; and, at least potentially, the setback of any built form, above ground, on the development site at that location. A similar position arose with respect to what would be required to be depicted on the plans at the location further to the east on this boundary where no retaining structure had been depicted at all.
6. After a short adjournment to enable him to take instructions, Mr Staunton accepted that the hearing could not continue on the basis of the plans which had been tendered and that they would need to be revised and some time would be required by the Company and its advisers to address the matters which I had raised.
7. I therefore listed the matter before the Registrar to permit the Company to discuss future timetabling and potential future hearing dates before a Commissioner (if that course was appropriate) or before me. For present purposes, it is sufficient to note that the further hearing of the matter was timetabled (including the ability for the Company to seek leave to rely on amended plans), with a further hearing set for three days commencing on 29 November 2022.
8. Although provision was made in the timetabling of that three‑day hearing for a site inspection (if the matter was not to be heard by me), that further site inspection was rendered unnecessary as a consequence of the Chief Judge allocating the further hearing to me.

The second phase of the hearing

1. The second phase of the hearing commenced on 29 November 2022. Evidence was heard from six of the 55 objectors who had lodged written submissions in response to notification of the revised plans which were now subject to consideration in these proceedings. Five of those objectors gave oral evidence in court and one of them gave evidence via audio‑visual link.
2. A composite bundle of the objections to the Company's proposed development (including the 55 further of objections to the revised plans) was tendered. Notes of the earlier on‑site oral evidence from objectors were also tendered. For the purposes of preparing this judgment, I have read all the written objections and I have refreshed my memory of what was said to me during the informal oral evidence of the objectors given on site.

The further inadequacy of the plans

1. Whilst examining the plans during the course of the third day of the second‑phase hearing, I noticed that there was a further location on the plans (the most western of the north‑south cross‑sections) where, at the northern boundary of the site where it adjoins the boarding‑house site to the north, there is proposed to be significant excavation for the car‑park and, above the car‑park, a retaining wall for the void between the boarding‑house site and the proposed apartments on the ground level and the level above. This portion of the cross‑section plan, I noticed, showed no retaining wall at all on that boundary.
2. Because the functionality of the space between the lowest‑level apartments, whose aspect is into the void (some metres below ground along the northern side of this element of the Company's proposed development), gave rise to a significant contest on the acceptability of this element of the design, it was essential that what was proposed at this location be accurately depicted on the plans. On the boundary where there is proposed to be an exposed wall on the northern side of the void between the boundary and the built form of the proposed development ‑ there is no depiction of any retaining structure whatsoever.
3. I granted Mr Staunton several short adjournments to permit him to obtain instructions as to how this defect might be cured in a fashion that would permit Ms Gerathy and I to be informed, adequately, as to what was proposed at this location.
4. Mr Staunton subsequently advised me that a revised (and more detailed) element of a cross‑section plan would be prepared. I indicated that it was appropriate to defer consideration of matters in contest between the parties relating to that location until after that documentation was available and that I would provide time on the following morning, prior to my commitments as the List Judge on that day, for a short additional special fixture of an hour to hear submissions addressing that element of the Company's proposed design as supplemented by whatever further drawings might be proposed.
5. Prior to the conclusion of the hearing on the third day of the second phase (the time by which it had been expected that the entire hearing would be completed, with me reserving my judgment), Mr Staunton provided two further A3 drawings addressing these matters. The first of them comprised a detailed cross‑section providing detail of the proposed retaining structure that would prevent the boarding‑house site from collapsing into the void between the boundary and the proposed apartments on the ground floor and the level above and also revealed that the planter bed between the retaining wall and the façade of the proposed development would occupy the full width of this separation. The second sheet was a copy of the existing ground floor plan showing, at relevant points in the vicinity of Section G, separation distances between the retaining wall and the face of the proposed built structure.
6. These plans were handed up shortly prior to the adjournment on the third day of the second phase of the hearing on the basis that they would be (as they were) subject to an application the following morning that leave would be sought to rely on these sheets in supplementation of the plans for which consent was sought and to be regarded as, with respect to the first sheet, amending that element of the already amended plans then being relied upon to the extent that the depiction of the relevant retaining wall was to be as now shown on this revised plan dated 1 December 2022. At the short additional hearing on the morning of 2 December 2022, I granted the necessary leave for this purpose ‑ these plans becoming Exhibit L.
7. Because I was satisfied that the supplementary hearing on 2 December 2022 was only required because of the inadequacy of the plans in the respect described above, I ordered that the Company pay the Council's costs of the additional hearing. I expressly noted that, although the amendment to the plans should be regarded as minor and thus did not give rise to any mandated costs order as a consequence of costs thrown away as a result of the amendment, I was satisfied that it was fair and reasonable, as provided by r 3.7 of the Land and Environment Court Rules 2007 to order that the Company pay the Council's costs of the short supplementary hearing to address these issues in the area of the Company's proposed development depicted in the revised plans.
8. It is not necessary to reproduce the revised section plan forming the first sheet of these new plans at this point in the text of my judgment. However, because of the nature of the contest between the parties concerning landscaping and amenity issues arising from this aspect of the design of the Company's proposed development requiring detailed later consideration, a copy of the first sheet of these plans (in portrait format with some the architects' identifiers omitted to permit its reproduction at the scale tendered) is reproduced as Annexure A to this judgment.

General observations concerning the approach to assessment of the proposal

1. It is to be observed that, although there is no formal standard of proof applicable in Class 1 merit appeals, an applicant for development consent bears a persuasive burden to establish to the consent authority (here, the Court) that a development proposal warrants being approved (see Preston CJ in Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2]).
2. This requires the provision of sufficient relevant information, at an appropriate level of detail, addressing matters in contest between the consent authority and the development proponent as to the acceptability or otherwise of relevant aspects of the proponent's development.
3. It is to be acknowledged that the topography of the site and its relationship with the downslope individual residences in the R2 zone to its south create challenges for any development proponent seeking to redevelop the combined area of the existing motel with the addition of the allotment at 5 Allison Avenue. An additional aspect of this challenge arises from the fact that the boundary of the site, following as it does the interface between the R4 and R2 zones, doglegs around 7 Allison Avenue, the allotment upon which the residence of Dr Leitner is located.
4. Before turning to the individual aspects of the Company's proposed development, which individually (let alone collectively) render it incapable of being approved, two further general observations are appropriate to be made.
5. First, as was accepted by Ms Horder during the course of her oral evidence, the maximum development envelope for the site is initially set by the combined operation of the development standards derived from the LEP for the maximum floor space ratio and maximum building height for the site, with such an envelope being a limit and a target rather than an entitlement ‑ a target which is subject to other planning constraints needing to be assessed in the particular circumstances of this site and matters arising from, and with respect to, the interaction between the site and neighbouring development (Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2018] NSWLEC 191 at [53]). Further constraints are imposed, albeit on a less inflexible basis, by the development controls for setbacks from the various boundaries of the site at varying levels of any potential development on the site.
6. Second, although there is power given by the EPA Act to approve only part of a development, such circumstances do not arise in this instance.
7. As a consequence, it is not appropriate to do more than explain why the Company's proposed development is unacceptable. It is not appropriate to give gratuitous advice as to how some alternative development proposal for the site might be made acceptable (Manzie v Willoughby City Council [1996] LEC 26). In what form some future development proposal for the site might be advanced is entirely a matter for the Company and its advisers in how it seeks to respond to, and cure the defects identified in, my reasons as to why its present proposed development is incapable of being granted consent.

Relevant fencing arrangements

1. Two elements of fencing on the site on boundaries with adjacent properties are relevant. Only the second of them requires later consideration. The first is the fence along the southern boundary of the site adjacent to 2A Gatacre Avenue and 7 Allison Avenue. The second is the fence along the northern boundary at its western end, atop the retaining wall with the boarding‑house site to the north.
2. It was agreed that the fence along the southern boundary could be an open, swimming pool fence type. Such a fence would not impose any sense of enclosure on the properties in the R2 zone immediately adjacent to the site. A fence of this nature would also not contribute to any visual impact of the Company's proposed development, whether viewed from those immediately adjacent properties or further to the south in the R2 zone. Specifying the colour of such a fence (black being appropriate, in my assessment) could have been achieved by condition of consent had the Company's proposed development have otherwise been approvable.
3. The fence atop the retaining wall between the site and the boarding‑house site to the north is to be a solid lapped‑and‑capped fence, 1.8 metres high (approved boarding house plans ‑ Exhibit 8, Tab 32). The retaining wall is, from the top of the soil in the planter bed adjacent to units UG01, UG02 and UG08, 4.2 metres as shown on the section later reproduced at Annexure A. The impact of this wall, not merely on the units listed, but also on those above them, is later addressed in the context of my general analysis of the acceptability or otherwise of the related topics of the setback of the proposed building from the retaining wall and the fence; the landscaping proposed for the planter bed adjacent to the retaining wall (including the performance of, and potential impacts arising from, that landscaping); and general amenity issues arising along that northern element of the façade of the proposed building.

Introduction

1. Two aspects of the height of the Company's proposed development require consideration. The first of these, being the extent to which the height contributes to its visual impact, is later dealt with separately. The second is the extent to which portions of the uppermost level exceed the permitted height set by the operation of cl 4.3 of the LEP and the relevant related map. The objects of that clause and the objects of the R4 zone within which the site is located have earlier been set out.
2. I have also earlier set out the terms of cl 4.6 of the LEP. This is the provision by which the Company seeks dispensation from compliance with the height of buildings development standard of 15 metres as the maximum permitted height above ground level. Clause 4.6 sets a number of gateway tests, all of which are required to be satisfied before a consent authority (here, the Court) can grant permission to allow the relevant development standard to be breached in the fashion sought. The necessary state of satisfaction must be held by the consent authority with respect to each of the tests set in the clause.
3. Ms Horder had prepared a request pursuant to cl 4.6 of the LEP seeking dispensation for the Company's proposed development to exceed the 15 metres height limit otherwise applicable to development on site.
4. There were several exceedances of the 15 metres height limit for which compliance dispensation was sought in this cl 4.6 request. These are proposed to occur at locations spread across the uppermost level of the proposed development. Ms Horder's cl 4.6 request included a plan which showed the Company's proposed development (largely shaded pink), with the areas of exceedances encompassed by the dispensation request being shown in white. It is not necessary to reproduce this plan.

Consideration

1. The position advanced for the Council is that this dispensation request does not satisfy the mandated tests set out in cl 4.6(3) and (4) of the LEP. In essence, the proposition advanced is that, amongst other things, additional overshadowing of the residence at 7 Allison Avenue would lead to an inappropriate and unacceptable diminution of the solar access for that dwelling and that the request does not adequately explain why this should be permitted.
2. It is unnecessary to undertake any detailed analysis of the cl 4.6 request prepared by Ms Horder, given the conclusions I have otherwise reached that there are three unrelated separate and substantive grounds, each warranting refusal of the Company's proposed development.
3. It is sufficient for present purposes to note that the height exceedances impact on the solar amenity of 7 Allison Avenue is not satisfactorily justified by the cl 4.6 request.
4. However, had it been a question of assessing whether cumulative impacts of the various lesser matters pleaded in the Council's contentions warranted refusal of the Company's proposed development, this impact on 7 Allison Avenue would have contributed to, but not been determinative in, such a process.
5. It is to be noted that the height exceedances would not make any contribution of significance to the visual impact matters discussed later.

Introduction

1. The evidence given by the objectors on site and, in the second‑phase hearing, in court, had a common theme of the adverse visual impact that would be created if the Company's development was approved. A similar broad common theme ran through the written objections submissions made to the Council concerning the original proposal and in the subsequent objections submitted to the Council in response to the revised proposal. The adverse visual impact was said to arise as a consequence of the combination of the east‑west length of the proposed development, with its prominent location upslope from the R2 zone residences down Gatacre Avenue and Allison Avenue and the steepness of the slope falling away from the site, the site being near but not at the peak of the ridgeline upon which the Highway is located.

Setbacks on the southern side of the proposed building

1. There are three aspects of the setbacks along the immediate southern side of the proposed building that were pressed by the Council. Those aspects are: 1. the setback of the western end of the southern façade of the building from the boundary of the site with 2A Gatacre Avenue; 2. the setback of the eastern facing elements of the southern side of the building, a façade which is oriented to the rear private open space of the property owned by Dr Leitner at 7 Allison Avenue; and 3. the south‑facing façade of the building, in its eastern portion, where that façade is also oriented toward Dr Leitner's property, facing his dwelling with this element addressing the full length of the common boundary between his property and the site for the full length of his rear private open space.
2. It is particularly to be noted that what is addressed in this section of my judgment are only matters of visual impact arising from setbacks for the above described three elements of the Company's proposed development on the R2 residential developments at 2A Gatacre Avenue and 7 Allison Avenue.

The setbacks to 2A Gatacre Avenue

1. With respect to the discussion in the first Town Planners Joint Expert Report, it is to be observed that the discussion between Mr Shankar and Ms Horder concerning the six‑metre setback from the boundary with 2A Gatacre Avenue concentrated on a discussion of the adequacy of privacy protection for the residents of 2A Gatacre Avenue. In the present context, I am satisfied that this setback is adequate for privacy protection purposes. However, having made that observation, that does not obviate the necessity to consider, as I do below, the visual impact of the Company's proposed development, as a consequence of its presentation across all levels able to be observed from the residence at 2A Gatacre Avenue, both internally and in that residence's private open space.
2. The following setbacks are proposed for the development from the boundary of the site with 2A Gatacre Avenue:

• at ground level and Level 1, 6.2 metres;
• at Level 2, nine metres with a planter box of variable width between the façade of the proposed building and the boundary;
• at Level 3, nine metres with no planter box;
• at Level 4, 12 metres, also with a planter box within that distance; and
• at Level 5, a 12‑metre separation from the boundary with 2A Gatacre Avenue to the balustrading for the various communal open spaces proposed to be provided on the southern side of the uppermost level of this western end of the proposed building.

The setbacks to 7 Allison Avenue

1. The setbacks from the east‑facing façade of the proposed building oriented toward a significant portion of the rear boundary of Dr Leitner's private open space are set out below:

• for the ground level and Levels 1 to 3, the setback from the boundary is nine metres;
• at Level 4, the setback is 10.8 metres; and
• at Level 5, the setback is marginally further increased beyond that proposed for Level 4.

1. Finally, it is appropriate to set out the setbacks along the northern boundary of Dr Leitner's property:

• for this portion of the proposed building, there is a slightly differential setback at the lowest level with a setback of six metres from the façade of unit UG13 (the easternmost unit at this level) with a uniform setback of seven metres from the façade at this level for the remainder of the length of this ground level of the proposed building;
• Levels 1 and 2 are proposed to have a setback of six metres to their façade from the boundary with 7 Allison Avenue; and
• at Level 3, the minimum setbacks from the boundary with 7 Allison Avenue along this element of the proposed building is nine metres.

1. In this context, it is to be observed that, in the Supplementary Urban Design Joint Expert Report filed on 22 November 2022 (Exhibit 14), the urban design experts considered that, from the point of their expertise, matters of visual impact were adequate, but noted, in paragraph 6.3(b) that: The experts agree that the exercise of undertaking visual impact assessment is more properly the role of a view impact assessment consultant which is our understanding of why contention 8 was not the subject of urban design conferencing previously.
2. To the extent that it is relevant, in subparagraph (d), the report repeated an element of their earlier Urban Design Joint Expert Report (2 August 2022), a response in the following terms: With regard to particular 1(b), the experts agree that the proposed southern elevation is not unbroken but an articulated form which steps in both plan and elevation and is comprised of two buildings joined together. The experts consider that the proposal now provides an acceptable interface with the adjacent R2 zone, particularly the immediate neighbours to the south at 2A Gatacre Avenue and 7 Allison Avenue inclusive of a zone of deep soil landscape planting for the extent of the shared boundary. The experts consider that the proposal will not be visually dominant from the street frontages from an urban design perspective.

The Council's visual impact contention

1. The Council's contention concerning visual impact was set out in the FASOFAC in the following terms: Visual Impact 8. The Proposed Development will have unacceptable visual impacts. Particulars (a) As amended, the Proposed Development will be part 5/part 6 storey residential flat building with a total gross floor area of 6,183.9m2, on a prominent ridge location with insufficient setbacks to all boundaries. (b) The proportions of the Proposed Development include an unbroken five storey, 80+m southern elevation, which does not positively interface with the adjacent R2 zone and results in a visually dominant structure. (c) The surrounding residential areas have a distinct landscape character informed by consistent street setback, significant canopy coverage and mid‑block tree clusters. The zone interface along the southwestern side boundary of the Site therefore requires a sensitive built form response to ensure contextual fit and minimised adverse impact. (d) The Proposed Development, due to its height, bulk and scale, does not appropriately respond to the existing and desired future context of the Site (as required by C3.3(1) of the LCDCP 2009), contrary to the LCLEP 2009 in terms of height and also the LCDCP 2009 in terms of setbacks, built form and landscaping: (i) The Proposed Development has large and continuous building bulk and massing: objective 1 of C3.4 of the LCDCP 2009; (ii) The Proposed Development does not respond to the character of the area: objective 2 of C3.4 of the LCDCP 2009; (iii) The Proposed Development does not relate to the street level and the topography: cl C3.8(a) and objective 3 of C3.8 of the LCDCP 2009; (iv) The proposed uses at ground level do not respond to the slope of the street by stepping frontages and entries to follow the slope: cl C3.8(d) of the LCDCP 2009. (e) The breach of the height of buildings control contributes to the unacceptable visual impact because: (i) The objective in cl 4.3(1)(b) is not met. The visual impact of the Proposed Development to the wider R2 Low Density Residential zone is not acceptable. (ii) The objective in cl 4.3(1)(d) is not met. The proposed development seeks to over‑excavate (creating subterranean units) and then also breach the height standard. The Proposed Development therefore does not appropriately respond to the underlying topography and a more skilful design could have clearer delineated stepping from the 15m height limit of the northern Pacific Highway blocks; (iii) The fifth objective of the R4 zone is not met. It is apparent that there will be adverse impacts on the neighbouring community given significant downslope visual catchment, as well as give rise to issues connected with visual privacy and overshadowing and will present as overbearing; and (iv) There is a significant visual catchment from the residential properties to the south down Gatacre Avenue, Allison Avenue and beyond, and the assertion there is no adverse impact from the height breach is unfounded.

The visual impact assessment evidence

1. As earlier noted, visual impact assessment evidence was given on behalf of the Company by Mr Moir and by Mr Shankar on behalf of the Council. They had produced two joint expert reports on this issue. The first joint expert report had been produced in response to the Company's proposed development in the form engaged for the first‑phase hearing. No further attention needs to be paid to that first joint expert report.
2. The second joint expert report addressed a revised visual impact assessment undertaken by Mr Moir. That document formed part of the exhibit containing the second joint expert report on this contention.
3. The methodology utilised by Mr Moir for the purposes of the development of his visual impact assessment report is that known as Transport for NSW, Guideline for landscape character and visual impact assessment, Environmental impact assessment practice note EIA‑NO4 (2020) (EIA‑N04). The appropriateness of the use of these guidelines for such a purpose was accepted by Preston CJ, in Stannards Marine Pty Ltd v North Sydney Council [2022] NSWLEC 99, to be appropriate.
4. Mr Moir's visual impact assessment document contained not only an explanation from him as to the methodology which he had adopted for his analysis but also how the visual impact of the Company's proposed development should be regarded from seven identified public domain viewing points divided between Gatacre Avenue and Allison Avenue. One of the Allison Avenue viewing points identified by Mr Moir was at the top of that street looking north along the Pacific Highway. The remainder of the viewing points were, to varying extents, downhill from the site. Two were looking up to and across‑slope toward the site (viewpoint 1) from the western side of Gatacre Avenue at its intersection with Mafeking Avenue or (marginally more obliquely) from the intersection of Allison Avenue and Haldane Crescent (viewpoint 5). The remainder of the downslope viewpoints were further away from and, thus, more directly oriented toward the site.
5. The photographs from each of the viewing points and the relevant photomontages derived from them in Mr Moir's visual impact assessment were in a panorama format running across the full width of an A3 page in landscape format.
6. The photographs and photomontages from viewpoint 1 in Gatacre Avenue and viewpoint 5 in Allison Avenue included elements in the panorama, in my opinion, not necessary for understanding visual impact matters in my assessment process. During the course of his oral evidence, I asked Mr Moir whether, if I was to reproduce the base photographs and his photomontages depicting the Company's proposed development from each of these viewing points, it would be appropriate to crop those photographs to remove elements of the panorama not necessary for visual impact assessment. I identified to Mr Moir, for each of the photographs and photomontages from the above identified locations, the cropping points that I proposed would be appropriate. He indicated that cropping in that fashion would be acceptable to him for the purposes of my consideration. I have had those images scanned and cropped in the fashion indicated. The Gatacre Avenue images from viewpoint 1 are reproduced at Annexure B in landscape presentation and those from viewpoint 5 on Allison Avenue are reproduced as Annexure C in landscape presentation.
7. It is to be observed that each of the viewpoints adopted by Mr Moir was in the public domain. As a consequence, there is no photographic or photomontage evidence from any of the downslope properties (whether from within dwellings or from rear yard private open space) toward the site to enable an appreciation of what can be seen of the present motel development on the site or of the Company's proposed development.
8. Mr Moir was questioned by Ms Gerathy on the absence of any private domain photographs and photomontages. Mr Moir's evidence was that he was not asked to address matters on that basis, and, as a consequence, had not sought access to any of the downslope residences for this purpose.
9. In his visual analysis report, Mr Moir explained the two matrices which he utilised in his analysis. These matrices were used to determine how a potential view might be categorised depending on the nature of the viewing point and the distance of the viewing point from that which was the subject of the analysis. These measures were visual sensitivity and visual magnitude.
10. Relevant to matters arising for consideration, it is to be noted that the locations on Gatacre Avenue and Allison Avenue were identified as local roads in this matrix, whilst private residences fell within a category entitled "township".
11. Utilising his professional expertise applied to the relevant factors he derived from these matrices, he conducted a sensitivity analysis in order to determine where, in his opinion, the visual impact of the proposed development should be located, on an impact continuum running from high impact through moderate impact to low impact.
12. For each of the viewing points in the public domain from which he had derived his source photographs and prepared his photomontages, his analysis concluded that the impact from the various viewing points would be, at its highest, only moderate at the viewpoints reproduced in Annexures B and C, and reducing to low at the more distant viewing points to the south in Gatacre Avenue or Allison Avenue.
13. It is to be noted that, in his matrix that identified land use of the viewing point and distance from that which was being viewed, viewing from a public domain location would necessarily lead to a lesser sensitivity outcome than a viewing point on a private residential property. I did not understand that there was any dispute between him and Mr Shankar on this point.
14. Mr Moir's view impact analysis in the Second Visual Impact Joint Expert Report incorporated an air photo of the locality of the site identifying the seven locations from which he had taken photographs for the purpose of his analysis and, for some (but not all) locations, preparations of photomontages depicting the Company's proposed development inserted into what is currently able to be observed.
15. It is to be noted that, from viewpoint 7 (slightly to the south of the intersection of Allison Avenue and Haldane Crescent), Mr Moir had not prepared a photomontage depicting how the Company's proposed development would appear from that location. He was questioned on this omission by Ms Gerathy during the concurrent oral evidence on visual impact issues. Mr Moir conceded that, from that public domain viewing point, the visual impact was at least moderate.

The Company's position on visual impact

1. The evidence and submissions advanced on behalf of the Company as supporting the conclusion that the visual impacts of the Company's proposed development are acceptable can be summarised in comparatively short compass. The elements relied upon are:

• Mr Moir's visual impact assessment;
• the agreement of the urban design experts concerning the articulation and modulation of the proposed design across its east‑west length;
• the ascending setting back to the north as the proposed design rises;
• although the proposed development extended to the maximum height permitted by the LEP (and in limited areas proposed to rise beyond it ‑ these exceedances were minor and subject to what should be accepted as a justified dispensation request made pursuant to cl 4.6 of the LEP), the height of the buildings were appropriate;
• Ms Horder's town planning evidence proposing that the setbacks, although non‑compliant, were adequate in the circumstances of the site and its topography; and
• the position was that the proposed development was not a single building but would be two joined but separate buildings.

1. All of these factors, in combination, it was submitted for the Company, render such visual impact as might be occasioned on the properties immediately adjacent to the south and beyond that down the valley was acceptable under the circumstances.

The Council's position on visual impact

1. Although accepting the agreements of the urban design experts and Mr Shankar's agreement that the proposed development should not be regarded as advancing a single monolithic built form (Mr Shankar resiling from his earlier opinion on this point), the submission from the Council was that:

• the non‑compliant setbacks on the southern side of the building, in combination with its height (including the breaches of the height limits set by cl 4.3 of the LEP); and
• the extent of modulation and articulation of the proposed built form do not, in combination, adequately resolve adverse visual amenity impacts, in particular, on the immediately adjacent properties to the south and on those properties (especially rear private open spaces) further down the valley, meant that the visual impact of the proposed development was not acceptable.

1. In this regard, Ms Gerathy addressed each of the viewing points discussed by Mr Moir in his visual impact assessment report. She submitted, as a general proposition, that Mr Moir's failure to undertake any visual impact assessment from within the residences to the south (having confined his assessment to public domain viewing locations) was a significant defect in the potential reliability of his evidence.
2. Taken overall, the Council's position was that the combination of the failure to undertake any visual impact assessment from within the downslope properties, combined with setback non‑compliances and the breaches of the otherwise applicable height limit control, meant that the visual amenity impact (particularly, but not confined to, the properties at 2A Gatacre Avenue and 7 Allison Avenue) were unacceptable and warranted refusal of the proposed development.

Introduction

1. The conceptual lens through which the visual impact of the Company's proposed development is to be assessed is set by the fifth of the objectives for the R4 High Density Residential zone in the LEP. Although set out earlier, it is appropriate to reproduce, again, this objective. It is in the following terms: • to ensure that the existing amenity of residences in the neighbourhood is respected.
2. At this point, it is appropriate to make some general observations concerning Mr Moir's evidence. The first, I am not to be taken to be criticising, in any fashion, the technical competence of the photography undertaken from the various public domain viewing points he identified nor am I to be taken to be critical of the photomontages which he prepared derived from those photographs. His photomontages were supported by the necessary certification mandated by the Court's Practice Note.
3. However, the assistance to be derived from his evidence is very significantly diminished by the fact that no attempt was made, in the preparation of his visual impact assessment report annexed to the second joint expert report (Exhibit 15), to obtain any evidence from any of the private property viewing locations that would be potentially impacted at locations downslope in the R2 zone. Such viewing locations would be not only from north‑facing windows in some of those residences but also from the corridor of back‑to‑back private open spaces to the rear of those dwellings (whether decks or similar outdoor entertaining areas or merely general green space in those private open spaces being a matter of irrelevance).
4. The concessions extracted from Mr Moir by Ms Gerathy during her questioning of him concerning how his analysis would necessarily change had he undertaken such analysis from private viewing locations in the vicinity of a number of the public domain viewing locations makes it clear that, relevantly, the general conclusion to be drawn is that the visual impact of the Company's development will be higher from private residential viewing points than from any public domain viewing point at a similar and generally topographically equivalent viewing point included in Mr Moir's detailed visual assessment analysis.
5. As a consequence, although Mr Moir's written and oral evidence (and his photomontages from the various public viewing points) sought to demonstrate that there will be a limited but acceptable degree of adverse visual impact if the Company's proposed development was to be approved, those impacts are only ones which might not be in breach of the above set out objective because he did not address impacts on residences ‑ merely impacts on the public domain.
6. As such visual impacts from such public domain viewing points would be transitory (either from vehicles or pedestrians travelling up Gatacre or Allison Avenues, principally), such adverse visual impact in those circumstances, although objectionable as a matter of general principle, cannot contribute significantly to any adverse conclusion concerning the Company's proposed development.
7. However, the same cannot be said with respect to the adverse visual impact of the Company's proposed development when assessed in two separate contexts as discussed below. It is to be observed that, for the two adjacent residences, the visual impact of the Company's proposed development is unacceptable. In each instance, it is sufficiently unacceptable to warrant refusal as a consequence of that impact.
8. The failure of Mr Moir to seek instructions to undertake visual impact assessment analysis from any of the residences downslope of the Company's proposed development (whether the two relevant immediately adjacent properties at 2A Gatacre Avenue and 7 Allison Avenue) or, more generally, further down the valley (particularly from the rear private open spaces of those residences) is incomprehensible. However, it is appropriate to note that the two images reproduced as Annexures B and C provide some limited assistance in understanding the impact on these two immediately adjacent residences (although the precise extent of the impact can only be drawn, in each instance, as an inference from the relevant image).

General observation on non‑compliant setbacks to 2A Gatacre Avenue and 7 Allison Avenue

1. Although it is to be observed that the proposed development is, for its façades to both 2A Gatacre Avenue and 7 Allison Avenue, designed with additional setbacks from the relevant boundary as the proposed building levels ascend, nonetheless, some setbacks are not compliant with the setbacks proposed by the DCP.
2. Whilst providing a degree of amelioration to the dominance of the proposed built form over each of these neighbouring properties, that amelioration does not offset sufficiently, as explained below, the overbearing presentation of the proposed development to those neighbouring properties (in light of the topographic differences ‑ particularly with respect to 2A Gatacre Avenue).

The impact on 2A Gatacre Avenue

1. I visited the property at 2A Gatacre Avenue during the course of the site inspection, including climbing to the top of the stairs to the landing at the rear of the western built element of the residence on this allotment. In this context, it is to be observed that the current ground level of the site is almost exactly at the eaves' level of this element of the built form on 2A Gatacre Avenue.
2. The viewing position toward the site from this landing replicated the viewing position that would arise from the windows on the upper level of this dwelling when looking to the north toward the site. The likely visual impact of the proposed building requires to be addressed in the context of both its proposed height; the landscaping proposed to be installed on the site along the element of the site's boundary with 2A Gatacre Avenue; and the proposed non‑compliant setback of the proposed building from this boundary with 2A Gatacre Avenue.
3. The Company's proposed development will dominate the skyline to the north of this residence and the primary exacerbating feature is the dominance of its rear private open space. The fact that there is a significant drop from the level of the site to the ground level of this property, would cause, at ground level, the Company's proposed development to overwhelm this space.
4. Although, at the lower levels, there will be landscaping softening of the presentation of the proposed development to 2A Gatacre Avenue, that cannot offset, in any significant fashion, the overall, overwhelming dominance of the proposed built structure ‑ a dominance which is not sufficiently ameliorated by any of the setting back of the various levels above the lowest levels of the proposal. Although such minor height exceedances of the 15‑metre height limit set by cl 4.3 of the LEP do not exacerbate this overwhelming dominance, it is that dominance which renders this impact on the adjoining property a significant and adverse impact on the amenity of the lower residential property. The breach is, in my assessment (having regard to what can be seen in Mr Moir's photomontage reproduced at Annexure B), an egregious breach of the fifth objective of the R4 High Density Residential Development zone's objectives in the Land Use Table of the LEP.
5. The extent of the visual impact of the proposed building on the amenity of the residents of 2A Gatacre Avenue is one which, on Mr Moir's assessment matrix basis, is to be regarded as "high" (noting that his matrix adopts only a three‑step one of "low", "medium" and "high" impact). This impact, being a combination of two factors, arises not merely because of the height of the proposed development but also because of its non‑compliant ground floor setback from this element of the site's southern boundaries.
6. To some extent, what had been an additional adverse impact which would have been occasioned had the landscaping, as originally proposed along this boundary not been modified (at my suggestion) by moving the taller canopy tree elements a little away from the interface between the two properties, means that that landscaping softening element (which would otherwise have been significantly contextually dominant at the location of those trees) has now been diminished. The consequence is that the perception of the built form of the proposed building on the site would become more visible, particularly (but not exclusively) as to its upper levels. Any setback compliances could not resolve this impact.
7. In this context, it is to be noted that the impact on the residence at 2A Gatacre Avenue does not arise as a consequence of any non‑compliance with the applicable building height development standard, but as a consequence of the visual impact of the leading edge of the southern side of the building at its uppermost level.
8. I am satisfied that this presentation of the proposed built form to the residence of 2A Gatacre Avenue would be overwhelmingly dominant and unacceptable. The proposed combination of setback and height would create an unacceptable impact on the occupants of that property. In this respect, this element of the proposed development is in clear conflict with the earlier set out specific objective in cl 4.3(1)(b) of the LEP. It is also in conflict with Design Principle 1 of SEPP 65.
9. The extent of the adverse impact on the amenity of 2A Gatacre Avenue, if the proposal was to be approved, warrants refusal of the Company's proposed development on this basis alone.

The impact on 7 Allison Avenue

1. The impact on 7 Allison Avenue is also able to be discerned, to sufficient extent, from the element of Mr Moir's photomontage reproduced at Annexure C. Although the height difference between the rear private open space of this property and the ground level of the site is significantly less than that at 2A Gatacre Avenue, the enfolding of this private open space, by virtue of it being in the elbow of the Company's proposed development, would also create an overwhelming dominance of the private open space of this residence.
2. Again, it is to be observed that this adverse impact would not be contributed to significantly (if at all) by any breach of the 15‑metre height limit imposed by cl 4.3 of the LEP. However, the setbacks would bring the built form of the Company's proposed development close to, relevantly, the uphill boundary between this residence and the site.
3. Although there are differences in the setback and height relationships between the proposed building and the residence at 7 Allison Avenue, compared to the impact on 2A Gatacre Avenue, the unacceptability on the amenity of this property also arises for the same reasons as have been described concerning 2A Gatacre Avenue.
4. Indeed, because the proposed building follows the dogleg in the boundary of the site, extending along the western boundary of 7 Allison Avenue as well as running along virtually the entirety of the northern boundary of this allotment, the visual impact of the proposed development would also impose a significant visual sense of partial enclosure (particularly for the rear private open space of this property).
5. As a consequence, I am satisfied that the adverse amenity impact on 7 Allison Avenue is greater than that which would arise for 2A Gatacre Avenue. This adverse impact, which would arise if the Company's proposed development was approved, is also, in itself, sufficient to warrant refusal of the proposal.
6. The breach is, in my assessment (having regard to what can be seen in Mr Moir's photomontage reproduced at Annexure C), an egregious breach of the fifth objective of the R4 High Density Residential Development zone's objectives in the Land Use Table of the LEP and of Design Principle 1 of SEPP 65.
7. The extent of the adverse impact on the amenity of 7 Allison Avenue, if the proposal was to be approved, warrants refusal of the Company's proposed development on this basis alone.

The impact on residences further to the south

1. For present purposes, given the conclusions I have set out above as to why the impact on the residences at 2A Gatacre Avenue and 7 Allison Avenue are unacceptable, with those impacts each separately warranting refusal of the Company's proposed development based on a factual assessment of those impacts, it is not necessary to undertake any detailed analysis of the visual impact on other residences further downslope or on the visual impact from the public domain.
2. However, one observation should be made concerning the downslope residences.
3. During the course of the hearing, I had a brief exchange with Mr Staunton where I indicated my tentative conclusion that the visual impact on residences downslope beyond 2A Gatacre Avenue and 7 Allison Avenue was not likely to lead to the refusal of the Company's proposed development. I indicated he could deal with that issue in his response to such matters as might be raised by Ms Gerathy concerning that issue. Although Ms Gerathy did address that topic at some length in her closing submissions (and Mr Staunton addressed those submissions in his reply), it is not necessary for present purposes that I revisit my tentative conclusion in light of the conclusions I have drawn as to the unacceptability of the impact on the residences immediately adjacent to the site. Had I needed to do so, I would have concluded that there were significant visual impacts on the residences further to the south (particularly from their rear private open spaces).
4. However, excluding the impacts on 2A Gatacre Avenue and 7 Allison Avenue, these impacts would not have warranted refusal of the Company's proposed development alone.

Closing observation on visual impact

1. I observe that, even if I am wrong in concluding that each of the individual impacts of the visual presentation of the proposed development on 2A Gatacre Avenue and 7 Allison Avenue would warrant refusal in its own right, there can be no doubt that, in combination, the presentation of the proposed development would be so overwhelmingly dominant when viewed from both these properties that the proposed development at its proposed height must be rejected. The significant visual impacts on all the residences further to the south (particularly from their rear private open spaces) would add to the overall total visual impact on the residences downslope, including 2A Gatacre Avenue and 7 Allison Avenue, in a fashion to render it impossible to approve the Company's proposed development (that is, if my individual/cumulative visual impact conclusions concerning 2A Gatacre Avenue and 7 Allison Avenue are in error).

The north‑western corner of the proposed development

Introduction

1. Plans for the approved development of the boarding house immediately to the north of the site are in evidence (Exhibit 8, Tab 32). The approved ground floor plan shows, relevantly, a 1.8‑metre‑high lapped and capped fence on the boundary with the site. It also shows that, from approximately 15 metres into the boarding‑house site from its Gatacre Avenue frontage, there is a basement access ramp but, beyond that, for the built form on the ground level of the approved boarding house, the setback of that built form is three metres from the boundary with the site. The plans for Levels 1 to 3 of the approved boarding house show that the built form adjacent to the site is setback three metres from the boundary with the site at each of these levels.
2. As earlier outlined, the final version of what is proposed by the Company for the north‑western corner of the development at its interface with the boarding‑house site is as depicted in the section at Annexure A from Exhibit L (Drawing TP 03.20 of 1.12.2022), a revised element of the proposal responding to my identification of the significant defect caused by the lack of provision of detail for the necessary retaining wall structure along this boundary.

The town planning evidence concerning the 1 December 2022 plan revisions for the planter bed

1. Mr Shankar and Ms Horder provided a second Supplementary Town Planning Joint Expert Report addressing matters arising from the major change to the planter bed proposed, now, to be full‑width between the retaining wall to the boarding‑house site and the façade of the Company's proposed development. This Second Supplementary Town Planning Joint Expert Report became Exhibit 26. For present purposes, it is appropriate to set out extracts from the comments of Mr Shankar and Ms Horder on this revised planter bed position. First, I turned to Mr Shankar's position ‑ setting out paragraphs 7 to 9 and 13 of this report: RS's position: 7. A review of the drawings indicate that after the construction of the retaining wall along the northern boundary, the usable area available within the northern side boundary setback gets further reduced at places to 2437mm, 2066mm, 4069mm, 2334mm and 6310mm (dimensions taken from the drawings)Reduced usable area within the side boundary setback would provide a further reduction in the ability to provide light and ventilation to ground floor dwellings particularly from the northern side which would adversely impact upon the amenity of the future residents. 8. The 1.2m high planter box will restrict the ability to provide any window facing the setback or planter any more than highlight windows as shown is the provided section, with the exception of those opening into the verandahs. With the ability to provide only highlight windows, would compromise the amenity of the these habitable rooms with regard to light and ventilation and outlook. The outlook from any of the habitable windows through the varanhah would first be a 1.2m high blank planter box wall which provides reduced amenity in terms of visual outlook. 9. The whole of the northern side setback has been converted into a 1.2m high one large planter box. This effectively creates an artificial ground level 1.2m high above the floor level of the dwellings towards the northern side. This would make the dwellings, in particular UG01, UG02 & UG08, 1.2m below the ground and even more subterranean and reduce the amenity in terms of light and ventilation even further. … 13. UG01 & UG08 do not get any solar access to habitable rooms. Any plants growing within the planter box would further reduce reflected or ambient light, making the habitable rooms damp and moist, which would further reduce the amenity of the dwellings.
2. Ms Horder's response to these changes and, relevantly, Mr Shankar's above commentary extracts concerning them were addressed in the context of her reproduction of a series of section diagrams relevant to her comments (it is not necessary to reproduce any of these diagrams).
3. She commenced by observing that these revised plans did not alter her earlier evidence that the treatment of the proposed boundary between the boarding‑house site and the façade of the Company's proposed development was acceptable ‑ a position to which she also adhered in her oral evidence. It is not necessary to reproduce her detailed response at paragraphs 22 to 29 with respect to Mr Shankar's concerns about the reduction of private open space areas at the lowest level in this setback. I am satisfied that her conclusion, that this reduction is negligible given the overall provision of private open space for the relevant units, is correct in the context of the overall proposed design of those units and their various areas of private open space.
4. With respect to Mr Shankar's comments in paragraphs 8, 9 and 13, it is appropriate to set out the entirety of her observations at paragraphs 35 to 42 of this report. These paragraphs were in the following terms: C. Outlook from habitable windows 35. In regard to outlook from the ground floor to the northern boundary I make the following observations. 36. UG08 has no habitable full height windows on the northern elevation. 37. The ground floor western most bedroom of UG08 has a west facing door to a courtyard which adjoins the planter box. 38. In my opinion the outlook from the bedroom through to this courtyard and landscaped planter box will be a pleasant outlook. 39. Additionally, UG08, is a dual aspect, 2 storey unit with opportunities for outlook to the south looking onto this courtyard and the landscaped area beyond. 40. UG01 has west facing full height windows and doors which allow access from the bedroom to the courtyard. Additionally, UG01 has a north facing door from the bedroom to the courtyard. As per my comments above in regard to UG08, the courtyard adjoins the landscaped planter box and when viewed from either bedroom the outlook to the terrace and planter beyond is a pleasant outlook. 41. UG01 is also a dual aspect unit with a courtyard to the south, as per UG08 this allows for an outlook onto this courtyard and the landscaped area beyond. 42. UG02 is a 2 storey, dual aspect unit with highlight windows to the north and its primary outlook to the west including a large ground floor terrace and a first floor terrace off the bedroom. As such there are multiple points of outlook from this unit.
5. Mr Shankar subsequently provided supplementary commentary on the above quoted elements from Ms Horder's observations. These comments were contained in paragraph 59 of the report in the following terms: C. Outlook from Habitable Windows Dwelling UG08 has no full height windows towards the north, that is because it is incapable of doing so which compromises amenity of the dwelling. Not only that, dwellings UG01 and UG02 do not have full height windows facing north for the same reason that they are incapable of having full height windows given that the 1.2m high planter abuts the northern setback of the three dwellings, with the exception of the windows facing the verandah. There is very restricted out look. The two bed rooms of unit UG02 have only high light windows which result in no outlook. In addition any thing seen throught the high window would be a blank wall about 2.5m away. UG01 bed room also have highlight windows facing the north with no outlook. Again anything seen through the high light window would be a blank wall about 2.5m away. Half the width of the window/door face blank walls of the other bedroom. The bedroom windows at right angle to each other, of two bedrooms will permit overlooking among themselves which is a compromise of visual privacy. Overall the visual amenity of the three dwellings is compromised.

Issues for consideration

1. Multiple matters of an interlinked nature require to be considered concerning this element of the Company's proposal. Those elements are, in the order addressed below:

• tree species selection and planting locations in the planter bed;
• achievable tree height and canopy spread;
• landscaping maintenance;
• other landscaping issues in the north‑western corner;
• amenity impacts on apartments UG01, UG02 and UG08;
• boundary setback width;
• soil volume of the proposed planter bed.

Fenestration and the urban design agreement/extended planter bed

1. It is first appropriate to note some general matters arising from the evidence concerning this portion of the Company's proposed development before turning to address the range of specifics noted above. During the course of the joint reporting of the urban design experts, agreement had been reached about alterations to fenestration on the northern side of the lowest level apartments (UG01, UG02 and UG08). These proposed amendments were accepted by the Applicant. They proposed, amongst other things, the incorporation of additional full‑height (floor‑to‑ceiling) windows on the western‑facing (Gatacre Avenue) elements of the saw‑tooth configuration of bedrooms along that element of the façade of the proposed building.
2. As a consequence of my discovery of the second defect in the architectural plans (the absence of appropriate retaining wall structures at the boundary to the boarding‑house site), the Company was granted leave to rely on the Exhibit L plans which addressed this issue and which required the extension of the planter bed within which Narrow Leaf Ash trees are proposed to be planted to the full width of the space between the now depicted retaining wall and a relocated planter bed wall which would be flush with (and, in addition to) the façade of the proposed building. This proposed planter bed retaining wall would be 1,250 millimetres high and, therefore, would preclude incorporation of any of the floor‑to‑ceiling windows agreed upon by the urban design experts, where these were to be located where the planter bed now directly abutted the proposed façade of the Company's development.
3. It was accepted by the town planners during their oral evidence on 10 January 2023 that these additional windows would now require to have a sill height of a minimum of 1,250 millimetres above floor level. As none of these additional proposed windows were depicted on the plans now before me for the purposes of determination of the Company's appeal (and did not incorporate any of these windows ‑ of whatever height), I indicated to the advocates that, if the Company's proposed development was otherwise acceptable, this matter could be addressed in revised plans which would be necessary to be provided before development consent could be granted.

Soil volume in the planter bed

1. The soil volume in the planter bed is defined by three spatial limits imposed on it by the design of the proposed building. These are: 1. The width of the setback from the retaining wall to the boarding‑house site; 2. The height above the RL of the top of the slab forming the roof of the underground car‑park of the window sills and terrace barriers of the apartments at the lowest level; and 3. The length available from the eastern car‑park entrance structure to the western retaining wall in the setback from Gatacre Avenue.
2. The soil depth of the planter bed is to be 1.2 metres. The agreement between the landscape architects is that, having regard to the varying widths of the planter bed, the total soil volume to provide the growing environment, for the proposed eight Narrow Leaf Ash trees and additional understorey and wall‑climbing vegetation, will be 187 cubic metres.
3. In the context of the planter bed dimensions and the calculated resultant soil volume, two matters arise for consideration. These matters arise as a consequence of the ADG and the DCP both specifying, for landscaping as is here proposed to be constructed on top of the roofing slab for the first level of the basement car‑park (and thus not being subject to the differing provisions that would apply if this was deep soil planted vegetation), linear and volumetric specifications to apply.
4. Two controls relevantly apply and are not satisfied. The first of those is that the minimum soil volume for a planter bed of the width and length here proposed would need to contain 270 cubic metres of soil rather than the 170 cubic metres that would be the actual result of the planter bed if constructed in accordance with Exhibit L.
5. The Landscape Architects' Joint Expert Report of 22 November 2023 (Exhibit 17) addresses, inter alia, soil volume, species selection and anticipated height at maturity of the Narrow Leaf Ash tree. The portion of this exhibit, explaining why these experts consider that the significant non‑compliance with the otherwise mandated soil volume required by the ADG and the DCP for the planter bed is unnecessary, does this by reference to a soil volume calculator from a different, professionally relied upon publication. This extract of Exhibit 17 is dealt with below.
6. Mr Webster commented, under the heading "Northern Setback, deep soil & landscaped area" that: Although the proposed landscape response is providing amenity to the UG units and communal spaces, it does not help mitigate the visual obtrusiveness of the building when viewed from the north as the raised, on structure planter boxes are only designed to support the growth of a tree of up to 8 metres which only allows the top of the tree to reach natural ground level. The northern setback area can be counted as landscaped area as part of the allowable maximum amount of 15% on structures.
7. This was followed by a passage setting out Mr Loughman's view in the following terms: … the proposed tree planting along the northern boundary will successfully mitigate the scale of the proposed development by attaining a mature height of up to 12 metres as indicated by the appended northern landscape elevation provided in this Joint Report. Mr Webster suggests that the species proposed will not be visible above the existing ground level which is contested below. The submitted landscape plans that the above contentions are based on propose 6 ornamental, deciduous tree species (Pyrus 'Chanticleer' more commonly known as Ornamental Pear Trees) along the northern boundary of the site. These trees are proposed to be planted in a formed raised planter box which will contain a soil profile with a minimum depth of 1200mm. The Apartment Design Guide (ADG) suggests a soil depth of 1000mm for medium‑size trees (8 to 12 metres high) and 1200mm for large trees (12 to 18 metres high). The current trees proposed are expected to reach a mature height of up to 8m and would therefore be classified as a medium‑size tree with respect to the ADG. … To substantiate the proposed tree planting along the northern boundary, it is important to analyse the available soil volume provided in the raised planter box scenario. When reviewing the ADG, medium‑size trees are recommended to have a 1000mm soil profile and 35m³ of soil. The proposal in this development is to have 1200mm of soil equating to a total soil volume of 187m³ provided for the 8 trees proposed. A common industry resource used in the landscape industry, in addition to the ADG, is a publication titled the Landscape Soils Handbook, A Practical Guide to Soils for Landscape Development. This book was published by fellow industry professionals, Simon Leake, and Elke Haege in 2017 by the CSIRO. Elke is a Registered Landscape Architect and consulting arborist and Simon is a certified professional soil scientist. In Part 2 Section G of this publication, it refers to shared root systems, and states: 'When designing for multiple trees of the same species in the same continuous soil zone, it is possible to reduce the total amount of soil needed per tree. The reason for this is that the trees will share the soil zone, and sometimes will fuse their roots and share resources across the soil zone, and utilise more efficiently, the soil nutrients, water, air and soil ecosystem (mycorrhizae / fungi, and beneficial soil bacteria).' It provides a link to an online Soil Volume Simulator to work out the necessary soil volume for trees planted in a shared planter bed scenario such as this. Appended to this Joint Report is a calculation based on this Soil Volume Simulator. As part of the calculation it proposes a total recommended soil volume of 76m³ to support the 8 proposed ornamental tree species in this development. We acknowledge that this calculation is substantially less than that suggested by the ADG. However, the ADG does not take into account trees of the same species co‑inhabiting a garden bed. We would, again, outline that the proposal in this development equates to 187m³. If we were referring to the ADG which calls for 35m³ per tree, we would require 280m³ of soil to facilitate the eight proposed trees. We believe when considering both the ADG and the Landscape Soils Handbook as described above, the 187m³ provided will be sufficient to support the healthy establishment and longevity of the medium‑sized trees proposed. We would expect the proposed trees to mature successfully with a judicious maintenance regime which will lead to a green northern perimeter with the trees attaining a mature height of up to 12 metres. The illustration provided below provides an indicative artistic impression of the trees at maturity.
8. Following the above passage, Exhibit 17 then records that: Mr. Webster now accepts that the 187M3 of soil volume in a contiguous planter box with a depth of 1200mm will be a sufficient soil volume to allow the selected Fraxinus angustifolia to attain a height of 12 metres and therefor providing screening to the northern façade of the building.
9. The second dimensional non‑compliance of the proposed planter bed arises from the requirement that all medium‑sized trees (it being accepted that the Narrow Leaf Ash trees satisfy the definition of this tree type for present purposes) should each have identified growing spaces that are six metres by six metres in horizontal dimension. However one views the dimensions of this proposed planter bed, it is clear that a growing space of those dimensions is simply incapable of achievement in a north‑south direction between the façade of the building and the retaining wall of the boarding‑house site. The width of the planter bed obviously prevents achievement of a six‑metre north‑south space for each tree (with the exception of the easternmost of them).
10. Similarly, given the total length of the proposed planter bed is some 50 metres, a six‑metre lateral dimension for each of the Narrow Leaf Ash trees (and thus a 12‑metre spacing between adjacent trees) would only permit, for east‑west dimension assessment purposes of the planter bed, the planting of three trees in that proposed structure (allowing a six‑metre space from each of the eastern- and western‑end walls).
11. A supplementary landscape architects' joint expert report, dated 13 December 2022, addressed the revised plan element showing the details of the necessary structural retaining wall to support the boarding‑house site and the widened planter bed made necessary as a consequence of the narrowing of the space between that retaining wall structure and the façade of the lower levels of the Company's proposed development. This supplementary report (Exhibit 28) is, relevantly, in the following terms: For the purpose of this joint conferencing, the landscape experts have reviewed the updated Rothe Lowman architectural documentation dated 1.12.22 (drawing TP 01.03 & TP 03.20) and the Greenview Consulting structural engineering statement pertaining to the northern boundary wall construction methodology dated 1.12.22. Following our review of these documents, the landscape experts are satisfied that there is no change to the soil volume hundred and 87 m³ previously tendered in evidence and the eight proposed deciduous trees Fraxinus angustifolia proposed in the northern raised planter box.
12. To ensure the successful establishment of the eight Fraxinus angustifolia proposed along the northern boundary of the development, the landscape experts agree that a judicious maintenance program will need to be implemented. This is to include, but not be limited to, regular watering, fertilising, topping‑up of mulch and formative pruning for a minimum of three growing seasons to ensure upright growth is promoted and to minimise any likely encroachment on the adjoining building façades.
13. As can be seen from the above extract from Exhibit 17, the exhibit had annexed to it an "indicative artistic impression of the trees at maturity". That "artistic impression" is reproduced below:
14. It is to be observed that the above illustration does not depict the retaining wall with the boarding house (4.2 metres high above the soil level in the planter bed ‑ scaled from Exhibit L), nor does it depict the 1.8‑metre‑high lapped and capped fence required to be erected on the boundary as part of the boarding house development consent.
15. The ADG, in Chapter 4 Building, Part 4P, sets out matters to be addressed under the heading "Planting on the Structures". These provisions are relevant for addressing matters arising in the north‑western corner of the Company's proposed development, where a lengthy, narrow planter bed is proposed, the primary and important vegetation proposing to be planted at this location being eight Narrow Leaf Ash trees. Table 5 in this portion of the ADG sets out relevant soil volume and growing area requirements, with those specifications being defined by the expected height at maturity of the plantings proposed to be effected. Table 5 is set out below:
16. Making the assumption, as I do, that s 4.15(3A) of the EPA Act is here engaged for my consideration of whether or not the ADG and DCP soil volume inadequacy should be set aside, I am satisfied that the reliance on the soil volume calculator in the CSIRO publication (cited with approval by the landscape architects in the joint report earlier quoted) provides an adequate reason why the planter bed in the north‑western corner falls short of the required soil volume otherwise mandated by Table 5 in Part P of the ADG (a requirement mirrored in the DCP) and is not complied with.
17. However, this is not the only element of the growing environment of the eight Narrow Leaf Ash trees proposed to be planted in this planter bed. The table in the ADG also prescribes that trees with the expected full maturity height of those here proposed should have a growing space of a minimum of six metres by six metres. What is here proposed is (with the exception of the eighth tree at the eastern end of the planter box) a variable width north‑south growing space of less than three metres with, at maximum (assuming, as the landscape diagram in Figure 3 to Exhibit 17 demonstrates) gaps of five metres between trunks ‑ giving an individual growing space for each tree, in an east‑west dimension, of 2.5 metres.
18. Even making an allowance for the issue of the beneficial interlacing of root systems between adjoining trees, the growing space prescribed for each tree of 36 square metres is, here, replaced by a growing space of (making the most beneficial assumption for the proposed planter bed and its trees) less than half the minimum area required to satisfy the ADG and the DCP.
19. Whilst I have earlier explained why, for the purposes of the soil volume requirements of the ADG and the DCP, s 4.15(3A) of the EPA Act can be invoked as a basis to assume effective compliance of the soil volumes, no such basis is established for the significant reduction in the growing area that will be permitted for each of the Narrow Leaf Ash trees in the proposed planter bed.
20. As I have earlier explained, there is no formal burden of proof falling on the Company in these proceedings. However, as Preston CJ explained, a development proponent (here, the Company) has a persuasive burden to explain to the consent authority (here, the Court) why the proposed development is acceptable. With respect to the growing area proposed to be available to each of the Narrow Leaf Ash trees, it is the position that the Company has not provided any evidence which could satisfy me that that persuasive burden has been discharged. Whilst this, in itself, might not be sufficient to warrant refusal of the Company's proposed development, it is yet another of the very many inadequacies of the design in the north‑western corner of the site manifested by a proper consideration of all the elements of the plans and of the evidence provided (or here not provided) concerning that aspect of that for which approval is sought in these proceedings.

Tree species selection, numbers and planting locations

Introduction

1. The landscape architects provided a joint expert report on 22 November 2022 (Exhibit 17). Relevant to matters concerning the northern setback area between the façade of the Company's proposed development and the boarding‑house site to the north, it is to be noted that the comments set out below were given in the context of the planter bed in its original proposed form rather than in the form depicted in the plans in Exhibit L. However, to the extent that there are changes in the planter bed as a consequence, my reading of the relevant portion of this joint expert report leads me to the conclusion that the commentary contained in it is not impacted in any materially relevant fashion by the changes in Exhibit L (particularly as the overall soil volume of the proposed planter bed remains unchanged and, to the extent that there is some narrowing of the width of the planter bed, that narrowing does not, I am satisfied, significantly impact on the conclusions otherwise reached by Mr Webster and Mr Loughman).
2. Although it is not completely clear, from the extract from Exhibit 17 reproduced below, whether Mr Loughman uses the word "we" as encompassing himself and Mr Webster or whether it is used as an "imperial plural" referring to how matters are addressed in the practice with which he is involved, the following extract is relevant to the species selection for the trees to be placed in the planter bed and their anticipated height at maturity. The below extract was located in the middle of the portion of Exhibit 17 reproduced above addressing soil volume in the planter bed. This extract is in the following terms: Based on the joint conferencing that has occurred with my expert landscape counterpart at Lane Cove City Council, and in response to the contention around the northern boundary tree planting, the proposed tree species have been substituted for a taller ornamental specimen being a Fraxinus angustifolia that is expected to reach a mature height of up to 12 metres. We have also increased the density of the tree planting to further mitigate the scale of the subject development when viewed from the north. The revised proposal contains 8 medium‑sized trees and an indicative illustration has been provided below, indicating the trees at their expected mature height of 12 metres.
3. As can be seen from the earlier reproduced element of Exhibit 17, in the middle of which the above passage was located, Mr Webster's subsequent comment agreeing with the use of the soil volume calculator was in response to the entirety of the passage, by inference, so it also can be taken that, by similar inference, if the use of the word "we" was not referring to Mr Loughman and Mr Webster jointly, Mr Webster did not demur from the conclusions concerning species selection and anticipated growth at maturity of the Narrow Leaf Ash trees set out in this passage.
4. A supplementary joint expert report from the arborists, dated 9 December 2022, was filed on 12 December 2022. The contributions by the arborists are set out below.
5. Mr Putnam Gray wrote: In response to contention 11 particular (n), the Applicant contends that there is ample landscaping on all boundaries and on the building façade to respond to the landscape character of the area and soften the visual impact of the Proposed Development. The retention of trees 13 and 14 will soften the building façade on the northern (Gatacre) aspect. Proposed planting on the western and southern boundaries will aid in softening built form. It is understood that an agreement is been made between Council and the Applicant regarding the species selection of Pyrus calleryana (Chanticleer) within the on‑structure planting beds in the North Eastern Setback. Regardless of species selection, the likelihood that any tree planted on structure within a garden bed in this location will soften the built form is low. This is due to the restrictive growing conditions some 5m below existing grade, available light and site constraints between two structures and the need for said trees to attain a height in excess of 8m. Firstly, it is unclear with regards to the number of proposed trees within the Northern Setback. Landscape Documentation Revision Set J dated 9 November 2022 shows 6 trees to be planted along the northern setback. The Joint Report compiled by the Landscape Experts (filed 22/11/22) mentions 8 trees within the setback, while existing tree plan LDA‑02 rev J dated 22 November 2022 contained within the Joint Report shows 10 trees within the northern setback. Clarification from the applicant is required addressing the number of proposed trees within this location. It is understood, through Landscape Joint Conferencing, tree species has been amended to Fraxinus angustifolia (Narrow Leaf Ash) from Pyrus calleryana (Chanticleer). The Narrow Leaf Ash is a medium sized deciduous tree that requires full sun. I have reviewed drawings TP 01.0 3 Z and TP .03 .20 dated 1.12.22 which show the garden bed within this northern setback has been extended to the building. Setback distances within this garden bed range from 2066mm at its narrowest point and 6310mm its widest. The distance between the top of the soil level in the garden bed to the top of the boundary fence is approximately 5m. The likelihood that the proposed species will attain the desired dimensions and provide the proposed screening depicted in figure 1 showing the Northern Elevation within the Landscape JER is low.
6. Ms McKenzie wrote: Amended plans show the increase in deep soil area and retention of trees 13 and 14 will result in a landscape setting that will visually reduce the development from Gatacre Avenue. The provision of 54 new trees ranging from large (12m+) and medium (6m ‑ 12m) around the building will contribute to the softening of the built form. The trees on the NE setback will have less hospitable conditions for growth and may not attain their mature dimensions. It is my opinion, based on the calculated, contiguous soil volume of approximately 187m³ (156 m² x 1200mm depth) on the northern boundary, there will be sufficient soil resources and space to accommodate between 6‑8 medium trees. The species Pyrus (Chanticleer) is an appropriate species for this location, which will inevitably be between two buildings that will be taller than the species. The cultivar 'Chanticleer' is tolerant of part shade and despite it having a projected crown spread of 6m (3m radius), the tree will adapt to its smaller space and grow to suit the space. This is often observed with trees growing next to buildings and roadsides for example, where contact between the tree's growing points in nearby structures, effectively 'air prunes' the foliage. The tree has a naturally conical form and an ascending branch habit. Growth will naturally be concentrated vertically, and the trees will continue to seek light from above. The Narrow‑leaved ash has a broader, more spreading form and, in my opinion, is less suited to the location, then the Pyrus 'Chanticleer'. It is also not an uncommon feature of multi‑storey residential developments for landscape areas to be below natural ground level to provide amenity to the lower apartments. In regard to the visual amenity the trees will provide, in terms of ameliorating the visual impact of the building, the 9‑11m mature height of these trees will not reach the building height. The approved boarding house facing Pacific Highway also be taller than the trees. The trees will not be readily visible to the public, except directly opposite in Gatacre Avenue and a small section of the Pacific Highway to pedestrians and traffic travelling south. The majority of the visual reduction of the proposed development from the public domain will be provided by the large site trees (T13 and T14) which are now to be retained, and new tree plantings facing Gatacre Avenue and along the site's southern boundary with 2 Gatacre and 7 Allison. It is also noted that the proposed rooftop plantings are intended to provide tree canopy which would contribute to reducing the perception of built form over landscape.
7. The joint report then recorded the following as the agreed position between the arborists: The planting of trees on the northern boundary will have very little contribution to screening from the public domain due to the proximity of the approved boarding house and the proposed development.

Species selection

1. I have earlier noted that the landscape architects had proposed that the tree species to be used in the planter bed adjacent to the boarding‑house site was to be the Narrow Leaf Ash tree and it can be seen that Mr Putnam Gray agreed with this. I have earlier set out the terms of the evidence in the supplementary joint expert report of the arborists in which Ms McKenzie proposed that a tree species, an ornamental pear known as a Chanticleer, should be used in the alternative.
2. As I explained to the legal representatives of the parties, I had undertaken my own research (consistent with s 38(2) of the Court Act) in order to understand this difference in opinion. This research had resulted in me providing each of the legal representatives with a set of three photographs which included photographs of the Narrow Leaf Ash tree and of the Chanticleer Ornamental Pear (photographs which Ms Gerathy tendered, becoming Exhibit 29). As a result of my research, I questioned the arborists concerning Ms McKenzie's proposal that the Chanticleer Ornamental Pear was a more appropriate species to be selected for planting in this planter bed. My questioning and the responses were in the following terms (Transcript 10 January 2023, page 68, line 38 to page 71, line 37): HIS HONOUR: There is a distinct difference between you, as I understand it, as to whether or not the Chanticleer pear is the preferable species to be planted along the northern setback at the sorry the eastern setback along the northern end of the building. For those purposes, there is in evidence now a copy of each of the trees that are discussed in leaf and there is a copy of the Chanticleer in blue [bloom]. Is it the understanding of each of you that after shedding their leaves for the purposes of their annual deciduous leaf drop, when they re leaf, the narrow leaf ash goes straight to a budded and leafed form, whilst the Chanticleer pear goes through a bloom and then re‑leaf process? WITNESS MACKENZIE: Yes, your Honour, my understanding of the species is the Chanticleer will flower and bloom and the narrow leafed ash will flower, but they are inconspicuous. HIS HONOUR: Mr Putnam Gray? WITNESS PUTNAM GRAY: I would agree with Ms Mackenzie. HIS HONOUR: In the year since the commencement of the Trees Dispute Between Neighbours Act in 2007, the matters that I've sat with former Commissioner Fakes, there was often reference to Claus Mattheck's Body Language of Trees. Is there any equivalent body of academic work with respect to what I would describe as ornamental trees, such as these two? WITNESS MACKENZIE: Yes. There's David Lonsdale called Evaluation of Trees and Defects, I believe. Sorry, it's been a while since I've looked at my reference books at home. WITNESS PUTNAM GRAY: There would be mention of them in the general arboriculture book by Matheny and Clark. HIS HONOUR: Have either of you consulted if any of those reference works with respect to the trees here involved? WITNESS MACKENZIE: Not WITNESS PUTNAM GRAY: I have not, sorry. WITNESS MACKENZIE: No, your Honour. I've referenced different material. So, not those books. HIS HONOUR: Mr Putnam Gray? WITNESS PUTNAM GRAY: I have not, no. HIS HONOUR: Is it reasonable to assume that with respect to the proposed plantings in the what is now wider proposed planter bed that we're discussing this morning, is your position, Ms Mackenzie, that the Chanticleer pear is sufficiently superior to the narrow leafed ash that it renders the narrow leafed ash inappropriate to be planted in that space? WITNESS MACKENZIE: Yes, your Honour. The reason is the Pyrus is actually more shade tolerant than the narrow leafed ash species. The Fraxinus, the narrow leafed ash actually has another common name, which is the Desert Ash. So, it gives you an idea of its highlight requirements, whereas the common pear or the Chanticleer pear does actually tolerate part shade. HIS HONOUR: Mr Putnam Gray, what do you want to say about the comparison between the two? WITNESS PUTNAM GRAY: I would agree that from a species selection stand point that the Chanticleer would be a more appropriate species than the narrow leafed ash in that location. HIS HONOUR: What do you say to the proposition that absent considering information from typical reference books, such as those to which you have referred, but neither of you have consulted on this point, that it is appropriate to give some consideration to what commentary might be made about either of those species on what are horticultural websites on the internet? WITNESS MACKENZIE: Your Honour, I actually refer to landscape management materials when it comes to selection and planting rather than the Mattheck book or the Matheny and Clark arboriculture books. They deal more with managing trees that are there, that are in situ, whereas the landscape management material that I refer to deals with the planning selection management of trees in the landscape and I believe also that, looking at trees and landscapes and working in landscapes, gives you an experience of how trees behave in certain situations within a landscape. So, a lot of this is really based on personal management of trees as well. HIS HONOUR: Mr Putnam Gray? WITNESS PUTNAM GRAY: I would agree with my counterpart that a lot of my summation of this has come from personal experience and that, for instance, with the Pyrus, just the general genetics of the leaf of the tree being larger than that of the ash, obviously, it would absorb sunlight than that of the narrow leaf ash and, therefore, would be more appropriate due to the amount of, I guess, available light within that location. HIS HONOUR: What experience do you both have the physical attributes of these trees? WITNESS PUTNAM GRAY: From mine, it would just be a management perspective. I've been in the horticultural industry, outside of being an arborist, being a gardener, so, pruning, maintaining these sorts of trees as well. HIS HONOUR: Ms Mackenzie? WITNESS MACKENZIE: Your Honour, the particularly the pear is commonly used as a street tree. Unfortunately, it's quite often placed under power lines, but I have managed residential landscapes in the past, sometime ago now, of course, but, for more than ten years, and one particular property had about five of these in their rear garden in Mosman. So, I was quite familiar with managing the species. HIS HONOUR: Are any of those planted in confined places? WITNESS MACKENZIE: Well, this garden I managed in Mosman was between a pool and a fence, but, admittedly, beyond the fence, there was some contiguous soil beyond that, but they were quite close to an in ground concrete pool. HIS HONOUR: Vertically confined places? WITNESS MACKENZIE: Vertically, not so much. HIS HONOUR: Mr Putnam Gray? WITNESS PUTNAM GRAY: In my experience, I haven't dealt with this tree species that would be in an area as such. HIS HONOUR: How do you respond to comments on a range of horticultural websites that I've found over the last few days that address the odour of Chanticleer pears when in blossom and describe the odour variously as "smelling like rotten fish", "smelling like dry semen", and things of that nature? How do those comments reflect on the appropriateness of planting these trees in the space proposed in this development next to a number of residential apartments in a confined canyon? … WITNESS MACKENZIE: I beg your pardon, your Honour. I haven't actually experienced that smell when they've been in flower, but HIS HONOUR: Do you have any reason to doubt the observations WITNESS MACKENZIE: No, I don't. HIS HONOUR: what I conveyed to you? WITNESS MACKENZIE: No, I don't, your Honour. HIS HONOUR: Mr Putnam Gray? WITNESS PUTNAM GRAY: I have no reason to doubt those observations.
3. All three of the photographs in Exhibit 29 are reproduced as Annexures D, E and F to this judgment. The third of them, that of the Chanticleer Ornamental Pear in full bloom, demonstrates why, given the malodorous nature of that tree during its flowering, it would be entirely inappropriate to have eight of these trees planted in the canyon between the proposed building and the retaining walls of the boarding‑house site as there are windows and terraces or balconies that would be located immediately adjacent to these trees.
4. Under the circumstances, where it would have been appropriate to have made enquiries about all relevant potential attributes of the tree species she was advocating, and Ms McKenzie had clearly not done so in circumstances where even basic horticultural research would have revealed the inappropriateness of the Chanticleer Ornamental Pear for use in a confined space adjacent to residential apartments (including outdoor terraces of such apartments), this gives me little confidence in the accuracy of her evidence.

Planting locations for the Narrow Leaf Ash trees

1. Although, early in the proceedings, there was some controversy as to the number of such trees that were proposed to be planted in the planter bed along the northern setback adjoining the boarding‑house site, it was made explicitly clear in Exhibit 17, the joint expert report of the landscape design experts of 22 November 2022, that there were to be eight such trees, rather than six which had been originally depicted on an earlier landscape plan, or 10 trees, as had earlier been the subject of some evidentiary discussion. However, there was no plan which depicted precisely where within the now revised planter bed it was proposed that these eight Narrow Leaf Ash trees would be planted.
2. The agreed position, as I understood it from the oral evidence of the landscape design experts on 10 January 2023, was that each of these eight trees would be planted in the middle of the planter bed (that is, equidistant from the northern retaining wall and from the planter bed retaining wall adjacent to the façade of the proposed building). There remained the position that there was no evidence, in an east‑west linear alignment along the ~50 metres of the planter bed from its Gatacre Avenue end to the end adjacent to the driveway to the basement car‑park, as to where each of the trees would be planted.
3. I indicated to the advocates that I intended to undertake my merit assessment on the assumption that the trees would be evenly spaced, this being necessary in order to minimise any potential for significant canopy overlap and conflict if the trees grew to a height in canopy spread as envisaged by Ms McKenzie's written and oral evidence. It is also consistent with Figures 1 and 3 to Exhibit 17. This would require the identification of nine spacing intervals of equal length (approximately five metres) along the planter bed for this purpose. Neither of the advocates raised any objection to me adopting this approach in my merit assessment of the amenity and screening issues arising with respect to these proposed trees.

Consideration

1. It follows that I am satisfied that the proposed Narrow Leaf Ash trees are an appropriate tree species to be located in this planter bed and that their planting intervals do provide a potential (if limited) basis to permit them to grow adequately in the planter bed. This conclusion, for reasons later explained, is quite separate from the questions of what heights might be achieved by these trees and with what canopy spread; the acceptability of the soil volume in the proposed planter bed; the overall impacts arising from these trees; and the overall acceptability of this design element of the Company's proposed development.

The competing positions concerning the heights achievable by the Narrow‑Leaved Ash trees

1. In their oral evidence, the arborists were questioned as to what they considered was the appropriate expectation of the height to which the eight Narrow Leaf Ash trees could reasonably be expected to achieve and the timeframe within which this might occur. It is to be noted that, for these purposes, the assumption was made that the trees which were planted would be ones in 200‑litre pots (being significantly advanced nursery specimens) with a planting height of three or four metres (Mr Putnam Gray) or four to six metres (Ms Mackenzie). Mr Putnam Gray's evidence was (Transcript 10 January 2023, page 83, lines 43 to 46): WITNESS PUTNAM‑GRAY: My recent street tree plantings of a eucalyptus which is, you know, it is a different species, they were 400 litres, and they were 6 metres in height. So I would assume that a 200‑litre tree would be closer to that, to that, between that 3 and 4 metres.
2. Ms Mackenzie's evidence on this point was (Transcript 10 January 2023, page 83, lines 32 to 39): WITNESS MACKENZIE: Your Honour, it would really depend on the size of the tree when you purchase and plant. I'll just go back to the section. Again, it really depends on the container size of the tree when you plant it. So 5.5 and the fence, presumably about 1800, 6, 7 metres if they were planted, I'm not sure, I'll just have to remind myself, your Honour, the size that was proposed. I don't think it actually gives the size on the landscape. I don't know if it's another page. So where are we. So 200, they would probably be anywhere between 4 to 6 metres, I would think as a maximum at planting.
3. I have earlier set out the evidence of the landscape architects concerning the expected height at maturity of the Narrow Leaf Ash trees. This conclusion is entirely consistent with the evidence given by Mr Putnam Gray and Ms McKenzie. The earlier reproduced "artistic impression" from Figure 1 of the Landscape Architects' Joint Expert Report is, I am satisfied, a consistent and appropriate basis (subject to the earlier noted qualification that it has stripped out the structures on the boundary between the site and the boarding‑house site) for considering and assessing the impacts that the Narrow Leaf Ash trees at maturity would have on the apartments in the lowest level of the Company's proposed development and the two levels immediately above.
4. It is also to be observed that the arborists' evidence agreed that the maintenance regime which would be required to be established would require pruning of the branches as the trees grew. This pruning would be to keep the branches of the trees away from the façade of the Company's proposed building. There was no suggestion that there would be any pruning of the evolving canopy of these trees in any other fashion. The clear intention is that, as the trees grow upwards and their canopy spread extends in their unpruned dimensions, given that the gap between the planted location of each of the trees will be ~five metres and their expected canopies are ones which will extend beyond 2.5 metres in a radial fashion from the primary vertical orientation of growth, the canopies can be assumed to attain a near‑interlocking position at the time of full maturity (if not, in fact, an actual interlocking canopy).
5. At this point, it is to be observed that the first of the photographs in Exhibit 29, being a photograph of a significantly mature (if not completely mature) Narrow Leaf Ash tree shows its likely future appearance. Although in autumnal colours (as this tree is a deciduous one), the overall shape of the expected tree can be observed. A copy of that photograph is reproduced below:
6. During the course of their oral evidence on 10 January 2023, when the question of understorey planting and wall‑climbing plant treatment for the retaining wall was addressed, neither Mr Putnam Gray nor Ms Mackenzie raised any concern that the above photograph was not generally typical of what might be expected of the performance of these trees. That arose in the context of consideration of the fact that the primary trunk of these trees at maturity would contribute little or nothing to an amenity outlook from the fenestration to the north or north‑west of the lowest level proposed apartments.
7. It is therefore to be assumed that, except during winter when the trees will be leafless as a consequence of their being deciduous, there will be, at maturity, full‑leafed, near‑interlocking (or interlocking) canopies to a height of up to eight metres or so above the ground (a conclusion drawn from Exhibit L and the "indicative artistic impression of the trees at maturity" earlier reproduced) before the canopies taper toward their crowning points. Those full‑width canopies will, therefore, be close to, but pruned away from, the façade of the proposed building as a continuous, vegetated outlook from all north‑facing windows and balconies of the apartments on the two levels immediately above the lowest residential level (as also shown in the "indicative artistic impression of the trees at maturity" earlier reproduced).
8. Unless the pruning to be undertaken to keep the trees clear of the façade of the building is to be far more significant (and continue beyond the three years proposed by the landscape architects) than was suggested arising from the arborists' evidence, the outlook from those north‑facing windows and balconies will be, for some eight or nine months of the year, virtually completely of the close canopy of the trees with, at the most optimistic, potentially limited upward viewing toward what would be only a small strip of sky.

Landscaping maintenance in the north‑western corner

Introduction

1. From both the oral and written further joint expert evidence of the arborists on 10 January 2023 and the oral and written evidence of the landscape design experts on 10 January 2023, there was agreement that, should the proposed development be approved with the planting of eight Narrow Leaf Ash trees in the planter bed between the northern façade of the proposed building and the retaining wall with the boarding‑house site to the north, there would need to be established a prescribed mandatory maintenance regime for this landscaping (including the trees).
2. This would be required in order to ensure that, particularly, the trees were appropriately mulched and fertilised to promote growth and, second, pruned so that they did not impact any of the building façade of the Company's proposed development. Four matters arose out of this evidence and the subsequent submissions concerning the location and maintenance of these trees. These issues were separate from, and not related to, issues in contention as to planning and amenity issues concerning these proposed trees. The four matters were: 1. Establishment of a maintenance regime for this landscaping (including the trees); 2. How access was to be effected to this area of the common property (along the northern boundary where the trees would be located), it being the agreed position that the planter bed which would incorporate these trees and wrap around the front of the private open space of the unit UG01 would be part of the common property for which the Owners Corporation would bear responsibility (including maintenance responsibility); 3. Where, within this planter bed between the proposed building and the boarding‑house site, the trees would be planted; and 4. The absence of detail of understorey plantings and climbing plants on the northern retaining wall

Preparation and approval of a landscape maintenance plan.

1. During the course of the hearing on 10 January 2023, I made expressly clear to the legal representatives of the parties that, if the Company's proposed development was otherwise acceptable on broad matters of merit assessment, I would require the preparation of a landscape management plan to be the subject of a hearing and submissions before me as to its adequacy. In this regard, I said (Transcript 10 January 2023, page 140, lines 28 to 32): HIS HONOUR: But I would require the maintenance plan to be an annexure to the conditions of consent if there's going to be a consent so that I'm satisfied as to the terms of the maintenance plan but you don't need to address it further now unless it arises in matters that Miss Gerathy wishes to raise. I still don't have knowledge, at least as I understand it, as to what the floor‑to‑ceiling is.

Access to the planter bed for maintenance purposes

1. As a consequence of the extension of the width of the planter bed to the façade of the proposed building, what had been originally proposed on the earlier architectural plans but which was no longer possible, on the basis of the second plan in Exhibit L, was an access door to the previously proposed (and now necessarily removed) pathway along the southern side of the planter bed. As a consequence, to obtain access to the planter bed from the corridor leading to the earlier proposed door (a corridor which has two rows of storage spaces ‑ one row of such spaces on each side of the corridor ‑ in order to meet the ADG's minimum storage requirements for the various apartments), considerable discussion took place in the questioning of the arborists and the landscape design experts during the course of their oral evidence on 10 January 2023 as to the appropriateness of the revised access via a hatch at this location.
2. Whilst the revised access for maintenance of the landscaping in the planter bed is rendered far from optimal as a consequence of the necessity to bring the edge of the planter bed to the south to abut the wall of the proposed building, I am satisfied that the proposed access at the end of the storage locker corridor can be adequate.
3. It is unnecessary to address this matter further. As I indicated to the advocates, I was satisfied that I had the power to order the northern end of that corridor to be converted into an external space by the relocation of a full‑height door a little to the south in that corridor and require the construction of a short set of steps to permit access through an opening which would be at least 1.5 metres high into the planter bed at the location where the original door had been located. Such a minor modification could be imposed by condition and would remove any necessity to use a stepladder for such an access purposes. The advocates indicated that they accept that that I had the power to mandate such a change and, as I understood it, Mr Staunton indicated that the Company would embrace such a change if the proceedings are led to that outcome as part of an approval for the Company's proposed development.
4. As a consequence, there are no landscape maintenance issues arising from this element of the Company's proposed development which could contribute to warranting refusal of the proposal.

Other landscaping issues in the north‑western corner

1. I have, above, addressed the question as to how tree location is to be presumed for the purposes of my general merit assessment relating to amenity issues and visual screening matters arising from those trees.
2. Although the landscaping plans showed that there is proposed to be groundcover plantings between the trees in the planter bed and that there is proposed to be climbing planting up the retaining wall, no detail is provided of this in either the landscape plan depictions of this area or in the architectural plans in their revised section form.
3. I am concerned that, given my conclusions elsewhere explained, the interlocking tree canopies of the Narrow Leaf Ash trees will, for at least more than two‑thirds of the year, effectively block all sunlight and natural light into this area ‑ raising potential issues of viability of any understorey or wall‑climbing plantings.
4. Although Section C of the original landscaping plans had depicted understorey planting and wall‑climbing plants in the area between the northern façade of the proposed building and the northern retaining wall with the boarding‑house site, Ms Horder accepted, during questioning from Ms Gerathy, that the architectural plans provided the appropriate dominant plans for the purposes of my consideration and that the landscaping plans would be subordinate. In addition, the landscaping plans did not accurately provide a depiction of, and lateral dimension for, the full elements of the now proposed retaining wall structure in Exhibit L upon which the Company now relied in support of its appeal.
5. It is clear, as Ms Gerathy submitted would be necessary, such additional planting would need to be provided in order to act as a basis for the proposition advanced by Ms Horder for the Company that such plantings, both understorey and up the northern retaining wall, would be necessary to contribute to what was said on behalf of the Company to be adequate amenity of outlook to the bedrooms of the three apartments whose bedrooms at the lowest level looked into the void between the Company's proposed building and the retaining wall to the north with the boarding‑house site.
6. This lack of any specific landscape evidence that such groundcover and wall‑climbing vegetation could be planted and would survive in this area, when subjected to such extent of shade as would fall on the planter bed and the wall from the canopy of the Narrow Leaf Ash trees (except during the winter period), is a matter of concern. The establishment of, and long‑term survival of, such vegetation would be a critical part of offsetting the visual impact on residents of the lowest level apartments in this vicinity when looking out the windows of the rooms adjacent to the planter bed.
7. Although not providing a determinative reason as to why this element of the Company's proposed development is unacceptable, the absence of this evidence, nonetheless, provides a modest contribution towards such a conclusion of unacceptability.

Amenity impacts on apartments UG01, UG02 and UG08

1. The Ballad of Reading Gaol is a lengthy poem written by Oscar Wilde in 1896. It is in six parts with multiple stanzas in each part. The third stanza of the first part is in the following terms: I never saw a man who looked With such a wistful eye Upon that little tent of blue Which prisoners call the sky, And at every drifting cloud that went With sails of silver by.
2. This sentiment is appropriate to be invoked in my consideration of the amenity (or lack thereof) of the northern elements of the proposed apartments at the lowest residential level, at the western end of the Company's proposed development.
3. Mr Shankar and Ms Gerathy both used the descriptor "subterranean" to describe apartments UG01, UG02 and UG08 (the sobriquet being applied to the lower level of those two that were split‑level apartments). Ms Gerathy also described the space between the façade of the Company's proposed development and the retaining wall to the boarding‑house site (including, by inference, the 1.8‑metre lapped and capped paling fence required by the boarding house development consent) as a "canyon". It, too, is an apt description of this space.
4. The overall impact on those apartment elements at the lowest level in the northern corner of the Company's proposed development have unacceptably impacted amenity for the reasons described above. In addition, on the assumption that the Narrow Leaf Ash trees grow to the height and formation postulated by both the landscape architect experts and by Ms McKenzie, that growth of what amounts to a hedge of substantial canopy trees whose interlocking canopies will extend above the ceiling height of the ground, first and second level apartments with aspects to the canyon will be significantly adversely affected in their spaces (whether rooms or balconies) immediately adjacent to these trees.
5. Taking the total of all the adverse amenity impacts on these spaces into account, these provide a third, separate basis upon which it is necessary to refuse approval for the Company's proposed development. It is to be observed that the effective separation of the setback‑less vertical façade to the boarding‑house site retaining wall and the fence required on the boundary above exacerbates this. It is simply incapable of countering the claustrophobic canyon created by the proposed space ‑ a space which is, effectively, only three metres wide.
6. In this context, I have paid no heed (as the reasons from the northern corner of the proposal requiring its refusal are otherwise so overwhelming) to the fact that the Company's proposed development adopts no additional setting‑back at levels above the lowest two. Because of the otherwise engaged reasons founding the necessity to refuse the Company's proposed development, it is not necessary to explain why there has been no adequate reason given for this absence of upper‑level setbacks. Had the conclusion that the north‑western corner as proposed was only marginally deficient in a fashion warranting refusal (self‑evidently, this is not the position), consideration of this lack of setback at higher levels would have reinforced such a marginal conclusion.
7. Although apartments UG01 and UG02 are dual‑level, dual‑aspect proposed apartments, the impact on the habitable spaces of these two units is significantly compromised by the adverse impacts of the narrowness of the setback from the retaining wall for the boarding‑house site and the fact that the consequent near obliteration of natural light to the rooms facing into the canyon so created for the majority of the year is unacceptable. A similar unacceptable impact arises for those elements of apartment UG08 that face into the canyon.
8. It is also to be observed that those elements of apartments on Level 1, other than the upper element of apartments UG01 and UG02, would also have the amenity of their rooms and balconies facing into the canyon adversely affected over time as the proposed Narrow Leaf Ash trees grew to maturity.
9. In this regard, although the landscape architects proposed that pruning away from the façade of the Company's proposed development would only be needed for three years, pruning away from these balconies and windows would likely need to be maintained for longer, given that the canopies of the trees would, when viewed in profile consistent with the artistic impression of the trees' canopies earlier reproduced and consistent with the photograph of a mature Narrow Leaf Ash tree, otherwise brush the windows of these apartments and intrude into the balconies of them. Although potentially able to be rectified through the maintenance plan elsewhere discussed, it is but a small additional symptom of the inappropriateness of the limited setback proposed on this boundary.
10. It is also to be expected that, if the Narrow Leaf Ash trees grow to maturity as described in the evidence of the landscape architects, there would also be some (perhaps more limited) impact on the amenity of those rooms and balconies of apartments on Level 2 facing into what will still be the upper reaches of the canyon space at this level, given that the top of the lapped and capped fence required for the boarding‑house site will be above ceiling height for apartments on this level of the proposed development.

The justification provided by Ms Horder for the three‑metre setback from the northern boundary with the boarding‑house site

1. In the first Town Planning Expert Joint Report, Ms Horder said: In regard to the northern boundary setbacks, I note that Clause 3.5.2(a) requires a setback of 6m to up to fourth floor, then 9m the fifth and sixth floors. The proposed development provides a setback of 3m for what is effectively non‑habitable portions of the building (due to orientation of windows perpendicular to the boundary high‑level windows wills and balcony screening) and 6m where any habitable windows face the boundary. I am of the opinion that the setbacks will achieve the implicit objective of Clause 3.5.2 due to the treatment of this façade which will assist in achieving visual privacy to adjoining development. Notably, the approved boarding house to the north has a 3 metre setback that has been matched by the proposal.
2. In her oral evidence, Ms Horder repeated her view that, in light of the three‑metre setback of the approved boarding house development to the north, a three‑metre setback for the Company's proposed development along the north‑western boundary of the site was appropriate.
3. In the first Town Planning Joint Expert Report, Mr Shankar said, with respect to this northern side boundary setback that: Proposed northern side boundary building setback is 3m all throughout the 6 storey which is non‑compliant, compromises amenity of the residents within the subject property and the adjoining properties. Habitable rooms towards the north are proposed with blank walls or with high highlight windows with reduced access to light and ventilation. There is no justification for a reduced northern side boundary setback for southern wing of the proposed building which has an interface with the service station and not the boarding house. With regard to the DCP side boundary setback objectives, The desired spatial proportions are informed by setbacks, height and other controls. Reduction on side boundary setback does not justify achieving any of the above objectives. In an attempt to achieve the objective of Clause 3.5 being privacy, the reduced setbacks, compromise the amenity of the proposed development.
4. The northern façade of the proposed building is one with a generally consistent (but a little variable as a consequence of its sawtooth nature) setback from the northern boundary with the boarding‑house site. As is shown on Sections B and G of the architectural plans, there is no differential setback at any level between the façade of the proposed building and the boundary with the boarding‑house site to the north.
5. As there is no justification, other than mimicry, for the non‑compliance with the otherwise required six metres' setback from the boundary with the boarding‑house site for the lowest four residential levels of the proposed building, nor any different reason advanced as to why the otherwise additional setback at the fifth residential level and the one above should not be required, there is no valid planning reason that provides an excuse for this aspect of the Company's proposed development.
6. In the complete absence of any social housing contribution being provided by the Company's proposed development, the only conclusion available to be drawn is that, with respect to this aspect of the proposed built form and its significant departures from what would otherwise be the reasonably expected dimensions of its permissible and expected building envelope, this simply provides a further aspect demonstrating that this proposed building would be an overdevelopment of the site reflecting an unacceptable desire to maximise development yield in a fashion that ought not be tolerated by granting consent to this proposal.

Conclusion on the north‑western element of the proposal

1. For the reasons set out above, I am satisfied that the north‑western element of the proposed development is also unsatisfactory and that its deficiencies are such as to warrant refusal of the Company's proposed development on this basis alone.

Orders

1. The orders of the Court are: 1. The appeal is dismissed; 2. Development Application No DA65/2021 for the construction of a residential apartment building at 1 Gatacre Avenue and 1‑5 Allison Avenue, Lane Cove, is determined by the refusal of development consent; 3. The exhibits, other than Exhibit L, are returned; and 4. Costs, other than costs already subject of existing costs orders, are reserved.

Amendments 16 August 2023 - Table of disciplines and expert witnesses at [54] amended at Civil Engineering on Contention 18 and Contention 17, and adding Access and Structural Engineering.

Amendment in accordance with r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW). 16 August 2023 - Additional amendment to the discipline of Landscape Architects and the experts for that discipline.

Amendment in accordance with r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW). 17 August 2023 - Structural Engineering expert for the Company corrected to Mr Mark Manning. 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: 17 August 2023