Hellier v Lake Macquarie City Council

CASES CITED: Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117; 187 Kent Pty Limited v Council of the City of Sydney [2007] NSWLEC 88

APPLICANT Mr A. Pickles, barrister instructed by McDonald Johnson

LEGAL REPRESENTATIVES: RESPONDENT Mr M. Staunton, barrister instructed by Mr G Long of Lake Macquarie Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10464 of 2007 Hellier v Lake Macquarie City Council

JUDGMENT Introduction 1 This appeal relates to Development Application No. 1981/2006, which is for a three storey residential flat building containing 12 dwellings plus a basement containing 18 car parking spaces. The five ground floor dwellings have private courtyards and the remaining dwellings have their own balconies. There is an area of communal open space along the northern, eastern and southern boundaries of the site.

2 The site of the proposed development comprises 63 and 65 Caves Beach Road, Caves Beach, being lots 23 and 22 DP 17632 that are to be amalgamated for the purposes of this application. It has a frontage to Caves Beach Road of 15.24 metres and an area of 1393.5 m². It is presently developed with two detached dwelling houses with no vegetation of any significance.

3 The locality in which the site is situated is predominantly developed with one and two-storey detached dwelling houses. A short distance to the north is a small retail precinct and opposite this on a large site at the corner of Caves Beach Road and Mawson Close the construction of a substantial medium density development is imminent.

4 The appeal was initially commenced as a conference under s 34 of the Land and Environment Court Act 1979 ("the LEC Act") on 29 August 2007. The conference was adjourned to allow the applicant to prepare amended plans ("the amended proposal") in response to concerns raised by the council and neighbours. Amended plans were advertised and subsequent discussions between the parties in an attempt to resolve the matter were unsuccessful. The matter then proceeded to an on-site hearing.

5 This appeal concludes that in most regards the proposed development is satisfactory but because of its excessive building bulk at the zone interface it should not be approved.

Planning controls 6 The site is included in the Residential (Urban Living) Zone - Zone 2(2) ("the Urban Living Zone") under Lake Macquarie Local Environmental Plan 2004 ("the LEP") and in this zone residential flat buildings are permissible with development consent. Clause 16 of the LEP requires that consent must not be granted for development unless the consent authority has had regard to the Lifestyle 2020 Strategy (in Part 2 of the LEP) ("the Lifestyle Strategy") and is satisfied that the development is consistent with the relevant objectives of the zone. Whilst no issue was raised by the respondent in relation to the Lifestyle Strategy, I note that, relevantly, in dealing with zone interface issues it provides for: Ensuring that development of a greater density than adjoining development respects the existing character and amenity, by incorporating a transition area at the interface.

7 The objectives of the Urban Living Zone relevantly comprise: o Provide for medium and high-density housing. o Encourage development of good quality design within the zone. o Encourage amalgamation of existing lots to facilitate well-designed medium and high-density development.

8 To the east and to the rear of the site, the adjoining properties are included in the Residential Zone - zone 2(1) ("the Residential Zone"). The dividing line between these two zones is referred to hereafter as "the zone interface". The objectives of the Residential Zone relevantly comprise: o Permit development of neighbourhoods of low density housing. o Ensure that housing development respects the character of surrounding development and is of good quality design.

9 Also applicable to the site is Lake Macquarie Development Control Plan No 1 ("the DCP"), particularly Part 3.4 Housing - Building Siting, Form and Design and Part 3.5.5 Residential Flat Buildings.

10 Also relevant as a circumstance of the case, a draft development control plan to amend the DCP ("the draft DCP") has been prepared, and adopted by the council for the purposes of exhibition. I understand that as part of its preparation consultations were undertaken with the community and the development industry. The exhibition period has now concluded but the draft DCP has not yet been finalised.

Advertising and council's decision 11 The amended plans (lodged with the council on 12 September 2007) were advertised and over 70 objections (many in an identical form) were received from neighbours and other residents of the locality. Matters of concern to the neighbours in particular include overshadowing, loss of aural and visual privacy (including overlooking and the use of the proposed courtyards and balconies in close proximity to property boundaries) and excessive building bulk. Also of concern is the possible use of the proposed dwellings as short stay accommodation.

12 An independent review of the proposal conducted on behalf of the council recommended refusal of the application. This recommendation was adopted by Council at its meeting on 8 October 2007.

13 It is also to be noted that the original proposal was assessed by Council officers and found to be acceptable and that the present proposal has been improved by the provision of increased building setbacks.

Respondent's contentions 14 The respondent identifies the following contentions: 1. Whether the proposal results in unreasonable overshadowing impacts on No 67 Caves Beach Rd. 2. Whether the proposal results in unreasonable privacy impacts on neighbouring properties to the north, northeast and east. 3. Whether the proposal would excessively overshadow the neighbouring site to the south at 67 Caves Beach Road. 4. Whether the proposal has unreasonable building bulk, particularly at the low density/medium density interface. 5. Whether the private open space for units 1 - 5 meet the minimum private open space area requirements of the DCP. 6. Whether it is reasonable to condition the proposed development to ensure a permanent occupation only.

The evidence 15 The Court was assisted by the town planning evidence of Ms H Singh and Ms M Higgins on behalf of the respondent and by Mr P. Grech on behalf of the applicant. Ms Higgins and Mr Grech prepared a joint report.

16 Also when the hearing began on-site the following resident objectors gave oral evidence: o Mrs J and Mr R Booth of 8 North Close, Caves Beach, o Mrs P and Mr D Ollershaw of 61 Caves Beach Road, Caves Beach, o Mr B Ferris of 7 North Close, Caves Beach, o Mr B Gabb of 4 Mawson Drive, Caves Beach

17 These residents' principal concerns comprise adverse impacts on existing residential amenity including: overlooking and loss of privacy; excessive building bulk; and the likely use of the proposed dwellings for non-permanent occupancy.

Impacts in the Urban Living Zone Privacy 18 As referred to above one of the main concerns of the neighbours to the north of the site, at 61 Caves Beach Road is the potential for overlooking from upper-level windows and balconies in the proposed building. I also understand them to be concerned about perceptions of overlooking that would nevertheless remain despite the provision of privacy screening devices.

19 In response to these (and other) concerns the applicant devised various forms of screening devices for the whole building so as to avoid overlooking opportunities whilst at the same time allowing views to the east towards the ocean. These screens include obscure glazing and vertical and horizontal louvres.

20 Ms Higgins was concerned about the overlooking from the balconies units 6, 11 and 12 but accepted that this could be resolved by the imposition of an appropriate condition of consent. This has now been accepted by the applicant who has provided the proposed condition 43 that requires the provision of additional screens. Whilst she acknowledged that the provision of fixed screening devices could mitigate the issue of the overlooking of neighbours she did not believe this approach was ideal, preferring the resolution of this problem with a different design. 21 Mr Grech was of the opinion that the amended proposal reasonably addresses privacy issues having regard to proposed distances of separation and screening devices (including those included in proposed condition 43).

22 But for the proposed screening devices I accept that there would be significant and indeed unacceptable overlooking of the neighbouring property to the north. I also understand the resident's concerns that even with the installation of screening devices, some overlooking could occur and there would remain perceptions of overlooking from the proposed building that would, to varying degrees, be conspicuous from their backyards and from their home.

23 The above-mentioned objectives and provisions of the Urban Living Zone anticipate medium density development in the form of residential flat buildings and the provisions of the DCP provide for such buildings to be up to three storeys. The proposal is in essence consistent with these provisions. In these circumstances and taking into account the proposed screening devices I agree with Mr Grech and accept that loss of privacy for 61 Caves Beach Rd. is not determinative, notwithstanding that perceptions of overlooking will remain Overshadowing 24 Given the east-west orientation of the site and the height and setback provisions of the DCP, the extent of midwinter overshadowing from a development on this site on the neighbouring site to the south at 67 Caves Beach Road is not surprising. This overshadowing as revealed by the applicant's shadow diagrams will affect the rear yard of this property and the north facing living room window of the dwelling house.

25 In relation to the north facing window the applicant has offered to install a sky window in the roof of the dwelling house, an offer accepted by the owner of 67 Caves Beach Road. In this regard Mr Grech pointed out that the living room also has east and west facing windows and taking into account the sky window, midwinter solar access to this room will be satisfactory. He also explained how the rear deck attached to the house and the rear yard met the requirements of the DCP.

26 However, Ms Higgins was of the opinion that the overshadowing of the living room window was unsatisfactory. This is because the DCP's performance criteria that adjacent dwellings receive adequate daylight and the acceptable solution requiring that the overshadowing of north facing windows be limited, were not met. To overcome this deficiency and to achieve some direct sunshine for this window she prepared a three-dimensional midwinter solar access model. This model indicates that satisfactory solar access for this window would be achieved if a central and southern portion of the second floor of the proposed building were to be removed.

27 Ms Higgins nevertheless agreed with Mr Grech that the overshadowing of 67 Caves Beach Road by the proposed building would be acceptable, (if the existing house is disregarded) considering the possibility of future medium density development of this property as permitted by the Urban Living Zone.

28 In relation to overshadowing I have been persuaded by the evidence of Mr Grech. Taking into account that the Urban Living Zone anticipates the demolition of the existing dwelling house at 67 Caves Beach Road and the development of that site in a manner similar to the proposal, greater weight should be given to this as against the protection of an existing dwelling. This is not to say that the impacts on the existing dwelling house should be disregarded. In this instance the loss of solar access to the affected living room, taking into account the east and west facing windows and the proposed sky window, is not sufficient to conclude that the proposal is unacceptable. In this context I have taken into account that those southern elements of the proposal that generate the shadows generally meet the setbacks and height requirements of the DCP and that an entirely complying development would have essentially the same effect.

Setbacks and building height 29 Ms Higgins and Mr Grech also agreed that the north and south building setbacks, taking into account the articulated building footprint, variously do not comply with, meet or exceed the DCP requirements.

30 They also agreed that technically the inclusion of a gymnasium in the basement means that this level comprises an additional storey resulting in the building being four storeys in height, in contravention of the three-storey height limit in the DCP. Mr Grech did not believe this to be of any significance, having noted that this is not a development standard and that the building complies with the overall height limit of 10 m. Also the gymnasium does not cause the building to exceed the building envelope and taking into account proposed landscaping, the relevant part of the building will not be seen and will not read as an additional storey.

31 Ms Higgins was of the opinion that the failure to comply with the building setback requirement of the DCP made the development unacceptable for a number of reasons. First, the reduced setback to the northern boundary impacts on the development potential of land to the north (in the Urban Living Zone) for the purposes of a residential flat building. Second , the protrusion of the proposed development into the northern and southern setback requirements (especially towards the front of the building) will result in an unacceptable building bulk in the streetscape particularly as these non-compliances will result in a wider building than would otherwise be the case. Third, the failure to satisfy the 6-metre setback requirement (for habitable rooms) in the Residential Flat Design Code particularly in relation to the living areas/balconies associated with units 1, 6 and 10 at the northwest corner of the proposed building.

32 Mr Grech explained that the above-mentioned 6-metre requirement is not a building setback but instead is a criteria for determining appropriate separation between residential flat buildings, relevantly 12 m between habitable rooms in buildings up to four storeys in height. As for the non-compliance with the setback requirement of the DCP at the north west corner of the proposed building he accepted that this would impose a constraint on any future development of the site to the north but argued that this was something that could be taken into account in a future building design for that site. Otherwise the remainder of the building on the north side mostly exceeds the setback requirements of the DCP.

33 Mr Grech was not concerned that the non-compliance with the side setbacks would adversely affect the likely future streetscape of the Urban Living Zone, particularly taking into account the proposed articulation of the building.

34 In relation to the proposed side setbacks, an examination of the plans (including the diagrams prepared by Ms Higgins) reveals that on average the setback requirements of the DCP are exceeded on all three levels of the building. In my opinion an interesting articulated design need not necessarily be constrained by the strict application of simple straight-line setback requirements. Provided that the DCP requirements are carefully considered, particularly in the light of any consequences for neighbouring properties (such as overshadowing and overlooking) and more generally (such as streetscape) I see no reason why an averaging approach cannot be utilised. In this case, given that I have no concerns in relation to privacy and overshadowing and accepting Mr Grech's evidence in relation to streetscape (an issue not pressed by the council) I am satisfied that the intent of the DCP is met and that the non-compliances would not unreasonably constrain or impact upon the likely future development on neighbouring properties to the north and south.

35 As for the issue of the building technically comprising four storeys I do not find this to be a matter of concern for the reasons given by Mr Grech. Impacts at the zone interface 36 The issue of the greatest significance in this appeal involves the question of whether the proposal has unreasonable impacts at the zone interface mainly as a result of non-compliance with the setback requirements in the draft DCP. It mainly involves excessive building bulk and overlooking, matters of considerable concern to the residents occupying the close by dwelling houses in the Residential Zone. Those residents were also concerned that should this excessively bulky building be built this could establish an undesirable precedent that, if followed, would compound the impacts and adversely affect other homes in the Residential Zone along the zone interface.

37 As indicated above, one objective of the Urban Living Zone is to provide for medium and high-density housing. This zone applies to those properties fronting Caves Beach Road extending to Mawson Drive to the north and some distance to the south. To the rear and to the east of the zone interface the Residential Zone similarly extends to Mawson Drive to the north and continues past the site some distance to the south. The objectives of this zone facilitate neighbourhoods of low-density housing that respects the character of surrounding development and is of good quality design.

38 The purpose of the draft DCP is mainly to amend the DCP to provide controls for multiple dwellings and residential flat developments that are proposed in the Urban Living Zone and where the site under consideration adjoins the Residential Zone i.e. at the zone interface. These proposed controls are intended to protect the residential amenity of properties in the Residential Zone from inappropriate development in terms of overshadowing, privacy and building bulk by variously increasing the otherwise applicable setback requirements.

39 Section P2 of the DCP deals with building setbacks and Acceptable Solution A 2.5 as amended by the draft DCP provides that: For residential flat buildings and multiple dwellings over one storey in the Residential (Urban Living) Zone, side and rear setbacks are determined through the application of the setback diagram at Diagram 4.

40 Section P 9 of the DCP as amended by the draft DCP requires that building bulk be distributed to reduce impacts on neighbours and the street. Acceptable Solution A 9.4 provides that: For residential flat buildings and multiple dwelling housing over one storey in height, a building envelope is prepared and lodged for the site, which: o Complies with the heights identified in Table 3 - Building Heights of part 3.4.2 - building heights; o Complies with diagram 4; o …

41 Section 3.4.2 of the DCP as amended by the draft DCP also deals with building heights, setting performance criteria that deal with the likely future character of the locality and transitions between building heights. The acceptable solutions provisions make reference to the above building heights, setbacks and building envelopes, particularly those at the zone interface/transition. Acceptable solution A1 requires: An additional 3 m setback and a minimum recession angle of 45° applies to 2(1)/2(2) zone boundaries.

42 Table 3 sets a maximum height of 10 m (three-storey) for housing in the Urban Living Zone.

43 The above-mentioned setback diagram in Diagram 4 is referred to as the compass tool and comprises a diagram that can be utilised, depending upon the orientation of the site under consideration, for determining recession angles and the building envelope. The notes accompanying the compass tool explain how the recession plane angles are to be used: The recession angles are based around ensuring that new development does not excessively overshadow the adjacent lot in midwinter. At the same time, the recession angles ensure that new development is sufficiently setback from the lot boundaries to ensure that its apparent bulk and scale are kept at an acceptable level. The recession angles have the effect of shifting the development to the north reducing overshadowing whilst at the same time maintaining a similar development intensity.

The recession plane compass shows these angles with the 55° aligned with the true north, 45° on the east and west, and 35° on the south directions. The true north of the compass aligned with the true north of the lot to identify recession angles at side and rear boundaries of the lot as shown in diagram 4.2. These recession angles are used to construct the building envelope for the site. Note that the recession angles do not apply at the street frontage. To draw the building envelope, a vertical plane is taken up to a height of 1.5 m corresponding with a notional fence height on all sides. From the top of this vertical plane corresponding angles are projected from the horizontal on each face respectively, until they reach the height limit for the sites (10 m for 2(2) zoned sites), as shown in Diagram 4.3. This allows for varying setbacks depending on the orientations of the block and the likely shadow impact.

In many cases, a recession angle of about 45° will apply. In these cases the building envelope can achieve a 4.5 m (single-storey) high building element at a setback of 3.0 m, a 7.5 m (two-storey) high building element at 6.0 m setback and 10.0 m (three-storey) high building element at a setback of 8.5 m. Along the 2(1) - 2(2) zone interface ("transition"), one adds another 3.0 m to the setback in recognition of the need to reduce the building bulk and to maintain the comfort and amenity of residents in the 2(1) zone. However, a minimum recession angle of 45° applies along the transition boundary. The reason for this is that excessive midwinter overshadowing is unlikely to occur due to the additional setback at the transition. 44 There was some dispute as to whether the compass tool and the resulting recession angles have the dual purpose of managing overshadowing and building bulk at the zone interface. Plainly, by decreasing the recession angles from 55° down to 45° (above the horizontal) for sites facing east and west and down to 35° (above the horizontal) for sites facing south and thus shifting buildings away from the zone interface, the compass tool is designed to manage the overshadowing of the Residential Zone. Importantly, when using the recession plane angles derived from the compass tool, one adds another 3.0 m to the setback in recognition of the need to reduce the building bulk and that a minimum recession angle of 45° applies along the transition boundary.

45 Taking these matters into account I am satisfied that, at the transition boundary, the purpose of the envelope controls is to protect neighbouring development both from unreasonable overshadowing and from excessive building bulk as well as from unreasonable overlooking. This is achieved partly by the provision of the variable building envelope that varies depending upon the orientation of the site. Superimposed upon this envelope is a further envelope based on a minimum 45° recession angle also with the additional 3 m setback. The 45° recession angle only comes into effect where the compass tool indicates a recession angle greater than 45°.

46 According to Mr Grech the draft DCP is neither certain nor imminent and he questions of the fairness of a process which he says seeks to retrospectively apply controls that are yet to be finalised and adopted, to a development application conceived, discussed with Council, assessed by Council officers and recommended for approval prior to such controls being made aware to the applicant. Hence the draft DCP controls should be given little weight. He nevertheless added that the proposal has been amended specifically to address the bulk and scale of the building, particularly at the zone interface.

47 Whilst I cannot give the same weight to a draft development control plan that I am required to give to a development control plan I have decided to give significant weight to the DCP as proposed to be amended by the draft DCP. I have reached this conclusion notwithstanding that the draft DCP could be construed as being responsive to the issue of building bulk at the zone interface that has arisen as a result of this development application. The fact that the draft DCP had been the subject of public and industry consultations as part of its preparation is an important consideration. Just as important is my acceptance that the provisions in the draft DCP comprise a sensible town planning approach to dealing with development at the zone interface especially having heard no suggestion to the contrary. It is also consistent with the objective of the Lifestyle Strategy as to the provision of a transition area at the interface. 48 In reaching this conclusion I have also taken into account Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 ("Seaside Developments"), regarding development at zone interfaces. In essence the principle provides that: … any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. And: … impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. And: … in considering the likely future character of development on the other side of the interface it may be that the development of sites … may not be able to achieve the full potential otherwise indicated by applicable development standards and the

49 The Court's planning principles are intended to provide assistance in relation to particular issues in the absence of planning controls to deal with those issues. In this case the application of the Seaside Development principle is unnecessary because the controls in the draft DCP are consistent with the principle in that they prevent the development of sites at the zone interface from achieving the full development potential that would otherwise have been available for the higher density site so as to reduce but not eliminate adverse impacts on the lower density adjoining land.

50 I thus conclude that it is in the public interest that what I accept as an appropriate town planning approach in the form of the draft DCP should be applied to the proposed development.

51 Ms Higgins and Mr Grech agreed in relation to a number of matters involving setbacks and the presentation of the building's bulk at the zone interface: o There are a number of locations where the proposed building setbacks do not comply with performance criteria in part 3.4.1 of the DCP and the draft DCP. o Greater setbacks from the zone interface than required by the DCP are desirable to reduce the mass of the building visible from the Residential Zone.

52 They also agreed that the building setbacks from the zone interface all exceed the DCP envelope requirements. However they variously do not comply with, meet or exceed the draft DCP requirements. More particularly certain elements of built form at the first floor project beyond the setback envelope by up to 2.5 m and at the second floor into the setback requirement by up to 3.25 m. Ms Higgins and Mr Grech disagreed as to whether these non-compliances made the proposal unacceptable.

53 The application of the 45° recession angle plus the 3 m setback from the zone interface to the proposed building together with the 10 m maximum building height ("the building envelope") is shown on the north and south elevations and cross-sections in Exhibit D. Taking also into account the floor plans in Exhibit A it is clear that the following elements of the proposed building (as appearing in the east elevation) extend variously beyond the building envelope: o About half of the two second floor master bedrooms that have a total width of about 7.7 m. The roof/ceilings of these rooms infringe by a distance of about 4 m. (All by scale.) o The second floor balcony balustrades, the privacy screens and their supporting structures comprising at least 8 m. The privacy screens infringe by about 3 m. (All by scale.) o A small proportion of the two first floor master bedrooms that have a total width of about 8 m. The ceilings of these rooms infringe by about 800 mm. (All by scale.) o A small proportion of the two first floor deck edges comprising a total width of about 8 m. These deck edges infringe by about 800 mm. (All by scale.) o The two first floor privacy screens including their supporting structures comprising a total width of at least 10 m. The privacy screens infringe by about 1.8 m. (All by scale.)

54 I have also estimated that when viewed from the Booth's rear deck at 8 North Close the non-compliance with the draft DCP building envelope would result in the second floor of the proposed building appearing about 1.5 metres higher (ie projecting a further 1.5 metres into the skyline) than would be the case for a building complying with the building envelope. It is also to be noted that, taking into account that the site is, by comparison with 8 North Close somewhat elevated, the proposed building will appear from that property, above the fence and disregarding proposed vegetation, as almost three stories. In this regard, some weight can be given to the proposed landscaping (in the communal garden area) that will soften the appearance of the building when viewed from the northeast, east and southeast, particularly at the lower level. However I do not expect that it will achieve very much at the upper levels taking into account the inevitable wishes of the owners to maintain views towards the ocean.

55 In supporting the proposal Mr Grech emphasised its compliance with the DCP. Whilst acknowledging that increased setbacks were appropriate at the zone interface he did not accept that these needed to be in accordance with the draft DCP. Instead the setbacks now proposed, notwithstanding that the building will still have some visual impact, is sufficient, taking into account the Seaside Developments principle, to maintain an appropriate level of amenity for the properties in the Residential Zone. He also emphasised the substantial articulation of the northern and southern elevations of the building, meeting the requirements of the DCP in relation to its performance criteria for visual bulk.

56 It was Ms Higgins opinion that the protrusion of the proposed building, including the fixed privacy screens beyond the building envelope of the draft DCP demonstrates that this part of the building would have an unacceptable bulk and will adversely affect the residential amenity of neighbouring dwellings, especially that of 67 Caves Beach Road.

57 As concluded above I have decided to give significant weight to the DCP in its proposed amended form particularly in relation to the building envelope. Having accepted that this envelope is part of a sensible town planning approach to dealing with amenity impacts at the zone interface I agree with Ms Higgins and the residents that the non-compliances are excessive. Even disregarding these non-compliances I agree with the concerns of the neighbours that the building as proposed will be excessively bulky. Also, given its proximity to the neighbouring properties (especially 8 North Close) and its height I can understand their concerns about perceptions of overlooking. Whilst the landscaping scheme as proposed will, to a degree, mitigate some of these impacts I do not accept that this can be relied upon as a complete answer to the problems associated with this proposal at the zone interface. For these reasons the proposed building should not be approved. Private open space 58 It was not in dispute that the private open space provided for units 1 - 5 does not meet the minimum private open space area requirements (having deficiencies of up to 10 m2) of the DCP that requires an area of 35 m2 with minimum dimensions of 4m x 4m. Conversely the provided 200 m2 of communal open space far exceeds the minimum requirement of 50 m2 .

59 According to Mr Grech the courtyards are of a practical size and are significantly larger than the DCP's requirements for aboveground balconies. They could nevertheless be enlarged by utilising some of the surplus communal open space but in his opinion this is unnecessary.

60 Ms Higgins saw no reason why the requirements of the DCP should not be complied with to ensure that the affected dwellings have an appropriate amenity, especially as this is capable of being achieved taking into account the excess provision of communal open space.

61 In my opinion Ms Higgins is correct. The DCP's requirements are not to be set aside lightly and the extent of the non-compliance is significant. The presently proposed configuration of private and communal open space is such that it would be very difficult to increase the area of private open space for each of the dwellings in question without interfering with the necessary common access to the communal open space. If a development similar to this proposal is to be proceeded with the matter of private open space will need to be reconsidered.

Permanent occupation 62 At least one of the resident objectors expressed considerable concern as to the use of one of the existing dwellings on the site for short stay holiday style accommodation and how the behaviour of the occupants and adversely affected residential amenity. Ms Higgins whilst noting that council does not have a policy in regard to holiday lettings in residential areas supported a condition of consent that would prevent the use of the proposed dwellings for tourist accommodation or the like. Residential amenity could be protected by requiring either owner-occupiers or tenants with a residential lease under the Residential Tenancy Act 1987 to occupy the dwellings.

63 Mr. Grech did not believe that potential amenity/compatibility issues between future residents of the 12 proposed dwellings and their neighbours was likely to be a problem due to the design of the building. He acknowledged that persons on holidays could behave differently by comparison to permanent residents but emphasized that this does not main that such behavior would be unruly or result in unacceptable amenity impacts in the locality. The planning controls anticipate a mixture of short and long-term occupancies and there is no appropriate planning purpose for the imposition of a condition as sought by the council.

64 In 187 Kent Pty Limited v Council of the City of Sydney [2007] NSWLEC 88 ("187 Kent"), Brown C agreed that there is likely to be a difference in behavior, living and activity patterns between short and long-term occupants when comparing residential accommodation and serviced apartments. He acknowledged that whilst they are both residential in nature they have different characteristics. Also the greater frequency of short-term occupants moving in and out of the building could be potentially disruptive for long-term occupants. He concluded that there is a fundamental incompatibility between a mix of residential and serviced apartments that share the same floor and access points.

65 There was no suggestion that the potential amenity/compatibility issues are of concern for dwellings within the proposed building, hence 187 Kent can be distinguished because it dealt with two different land uses within the same building. However the characteristics of these different land uses are very similar to the different land uses under consideration in this case by virtue of the likely length of occupation of the dwellings and notwithstanding that they are on adjacent sites as distinct from being within the same building.

66 However even recognizing the different characteristics I do not accept that this comprises a reason for the imposition of the condition proposed by the respondent. Notwithstanding that nonpermanent occupants of the dwellings, such as holidaymakers, are likely to behave differently they are required, and should nevertheless behave reasonably and I have not been persuaded that on the whole they would be likely to behave so unreasonably as to deny the use of these dwellings for such purposes.

67 If the council, upon reflection, is satisfied that in this or any other locality there is a need to control the nature of the occupancy of dwellings then perhaps it would consider the preparation of planning controls to this effect. Conclusions 68 In my opinion the proposed building is, for the most part of good design. It would have been able to be appropriately landscaped and considering its modulated built form it would have been a satisfactory building in the streetscape, taking into account the likely future character as indicated by the Urban Living Zone. I am also satisfied that there are no impacts that it would have caused to the properties to the north and south that would have been sufficient to warrant refusal of the application considering the likely future development of those lands as anticipated by the Urban Living Zone.

69 However because of the extent of the non-compliance with the draft DCP and the consequential impacts on neighbouring properties to the east I have decided that the application in its present form should not be approved. In my opinion the draft DCP comprises an appropriate means of managing development at the zone interface by reasonably restricting development In the Urban Living Zone and thus limiting but not entirely eliminating amenity impacts in the Residential Zone. The private open space arrangement is also of concern.

70 Whilst it is not determinative of this development application I am nevertheless concerned to ensure that a precedent is not established that would undermine the draft DCP, especially as this is the first development application for a residential flat building in this part of the Urban Living Zone.

71 It is therefore my decision that whilst the proposed development is generally satisfactory, the development application should not be approved mainly because of its excessive building bulk at the zone interface. The appeal is thus dismissed.

      T. A. Bly
      Commissioner of the Court
      ljr

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