Findings
41 In assessing the SEPP 1 objections the key question before the Court is whether the proposal is too big for its site and whether it fits into the existing and future context. In answering these questions I accept that the underlying purpose of the above controls can be summarised as being to ensure sites are adequate in size to accommodate the built form. The controls, including the setback controls, seek to provide sufficient separation between the built form for the provision of driveways, utilities areas etc within a landscaped setting. This separation between built form enables privacy, outlook and solar access to existing and future developments to be maintained. The balance between built form and open space also provides for a streetscape of buildings in landscaped settings.
42 The controls do not emulate the existing pattern of development, which is largely two and three storey residential flat building on approximately 600sqm sites separated by side driveways with ground level parking and landscaping. Rather the controls envisage larger sites with greater separation between buildings with landscaping.
43 The controls also seek to ensure that the built form is compatible with surrounding development. The proposal is of a similar height, size and front setback to other buildings in the area, both new and old. The relationship of the built form to its open space is also similar to older developments in the area and redevelopments of single allotments. These developments were approved under previous planning controls and, particularly the earlier flat development, are not what the planning controls are seeking to achieve as they provide for a built form and hard surfaces which dominate their sites.
44 Of the more recent development, there are no examples of sites where three lots have been amalgamated. I recognise that it may be difficult to achieve this amalgamation pattern given the density of development that already exists in the area and the lack of incentive to redevelop existing flat buildings with new flat buildings of a similar yield. However, there are a number of examples where two sites have been amalgamated and developed under the previous controls. This site size and frontage provides sufficient space for driveways etc, separation between buildings and landscape areas. Although, the overall bulk of these developments is not what the current controls are seeking to achieve.
45 It may not be feasible to amalgamate this site in the short term. The planning controls recognise this but also that smaller sites cannot accommodate the same level of development as larger sites and achieve a satisfactory outcome. For example, while the provision of underground parking is a positive feature of this development, the area occupied by the driveway to provide access to this basement would be the same whether on a larger site or a smaller site. The extent to which the driveway dominates the site, restricts opportunities for landscaping and can be screened are different between larger and smaller sites. On this site due to the constraints of relocating the Telstra pit, the driveway has been placed off Marlo Road. Due to the narrow width of the site, the driveway is largely outside the footprint of the building and leaves little open space between the building and its western and northern boundary.
46 The narrow width of the site means that the side setbacks are less than those required in the DCP. This reduces the opportunity for landscaping and separation from the adjoining building. To prevent privacy impacts the northern façade has few windows and is within the shadow of the adjoining building and therefore the units do not take advantage of their northern aspect. The front setback of the building is consistent with the adjoining building and provides sufficient space for landscaping, however, the height and proximity of the two buildings will create a canyon effect. The sites corner location and the adjoining drainage reserve to the west compensate to some extent for its size and width by providing space and borrowed amenity but not to the extent that it is of sufficient size to accommodate a development of the size proposed.
47 The existing building on the site is smaller in footprint and height than what is proposed. Although its open space is poorly landscaped and occupied with large areas of hardstand it does provide space between it and other buildings in the street and an appropriate balance between the built form and open space.
48 A larger building than the existing could be accommodated on this site, but I find that the proposal is too big for its site and while it fits into the existing context of early flat buildings, this context is not what the planning controls seek to achieve and is not an appropriate model for redevelopment of single allotments, particularly those not on corner sites. I therefore find that the applicant has not shown why the variation to the development standards cls 37, 38 and 39(a) and (b) is reasonable in this instance and consequently the SEPP 1 objections are not well founded and the appeal must fail.