Conclusion
36For the determination of this matter, I have carefully considered the evidence, the submissions and observations at the view. In particular, I have taken into account the balancing of the site constraints together with the applicant's preference to expand the existing large dwelling from 5 bedrooms to 7 bedrooms with 9 bathrooms (E/S); 3 living areas and 3 food preparation areas, and a large flat rear yard, within the existing neighbourhood context.
37Insofar as Mr Inwood considers the proposed increase in FSR minor, and not applicable because it is within the existing building envelope, nevertheless it does change the density of the development as stated by Mr Tesoriero. I do not accept Mr Inwood's opinion that any density consideration relates to dwelling/lots. In this regard, I accept the respondent's submission that the findings of Roseth SC in Salanitro-Chafei v Ashfield Council [2005] NSWLEC 366 are relevant. In that judgement he expressed to the following planning principle.
Planning principle: relationship of density and residential character
23 The Ashfield planning controls are not unusual in that they do not contain a maximum FSR for dwelling houses; very few planning instruments control the density of detached housing. The question arises: is there an upper level of density above which it is hard to achieve compatibility with the character of typical single-dwelling areas?
24 As early as 1972 a publication of the then State Planning Authority of NSW described the FSR of low-density residential areas as under 0.35:1; the FSR of low medium density areas as between 0.35:1 to 0.55:1; and the FSR of medium density areas as between 0.55:1 and 0.9:1 (Technical Bulletin 3 - Planning Control of Residential Development November 1972).
25 A later publication by the Authority's successor, the Department of Environment and Planning (Technical Bulletin 15 - Residential Development Standards, July 1982) suggested that:
"...a control over building bulk in the form of a floor space ration of the order of 0.5:1 should be included in planning instruments where a suburban open character is sought." (p 16)
26 The standard of 0.5:1 FSR has found expression in numerous planning instruments and policies whose aim is to integrate increased density housing into low-density residential areas without destroying the existing open character. The Seniors Living State Environmental Planning Policy adopts a FSR of 0.5:1 as a "deemed to comply" standard. State Environmental Policy 53 - Metropolitan Residential Development adopts it as the maximum permissible density in relation to dual occupancy. Many local planning instruments and policies guiding dual occupancy development in suburban areas also contain a mixture of FSR control of 0.5:1.
27 The above suggests that there is a general acceptance by the planning profession that an open suburban character is most easily maintained when the FSR of buildings does not exceed 0.5:1. The question raised above may therefore be answered thus:
The upper level of density that is compatible with the character of typical singledwelling areas is around 0.5:1. Higher densities tend to produce urban rather than suburban character. This is not to say that a building with a higher FSR than 0.5:1 is exceeded, it requires high levels of design skill to make a building fit into its surroundings.
38Taking into account the applicant's preferences for the proposal, it seems to me that from the rear of the dwelling, the additional windows and door at basement level will highlight the three distinct levels, with the conversion of the basement area from the existing basement utility area. As there do not appear to be any obvious high level design features to mitigate this visual bulk, I do not consider it satisfies the planning principle outcome and in my assessment it is not consistent with the character of the existing dwellings. Therefore it is likely to have a negative impact on the character of this neighbourhood, as stated by Mr Tesoriero.
39As noted initially, the applicant requires the maximisation of the rear yard area for private recreation. However, this requires the construction of the retaining wall structure, up to 4 m in height, along the rear boundary, which I agree with Mr Tesoriero's opinion is not a characteristic element in this neighbourhood.
40Insofar as the applicant provided details of other relating high retaining wall structures, I think that those located in the front yards along Morrison Road can be distinguished because there is a consistency in these walls to retain the roadway at the front of the property and they are in a different visual context to any similar "high" retaining structures/fences along the common rear boundary. In my opinion the section of retaining wall along the rear of 18 Simpson Street is a different context because it is effectively a rear boundary considering the orientation of the existing dwelling.
41In this regard I give little weight to the existing retaining wall along the side of 1 Regent Street because its approval was not established, the property is subject to redevelopment and the fence is dangerous because it does include any safety fence or railing. As it is inconsistent with the DCP provisions, I give it minimal weight as a precedent.
42Instead it seems to me that the RDCP - 2010 seeks to avoid this type of structure in future development and therefore I consider its provisions should be given considerable weight.
43It is quite obvious that the proposed retaining wall/fence structure and associated building has little regard, if any, for the provision of the part 3.3, s 2.5.2 controls because:
- The retaining wall substantially exceeds the maximum 900 mm height
- The height of fill significantly exceeds the maximum specification of 500 mm
- In my assessment the filling and wall height will have an adverse impact on neighbours as opined by Mr Tesoriero.
44Therefore, I consider that the non-compliance with the DCP provisions is a negative as part of the proposal, notwithstanding the some discretion can be exercised in the application of these guidelines.
45But the overriding provisions of cl 2.3(2) of the RLEP require the consent authority to have regard to the zone objectives, whereby I consider the following is particularly relevant.
- To ensure that land uses are compatible with character of the area and responsive to community needs.
46In this regard I have carefully considered the applicant's submissions on the following aspects of the development:
(1)Vegetation removal: I accept that there are several weed species within the mature vegetation corridor along the back boundaries of the properties. However the approval of this DA is not necessary to remove these weeds, which is apparently a neighbourhood concern.
(2)Privacy: It appears that the extensive (4m) retaining wall/fence structure is required to provide a high level of privacy between the subject dwelling and the kitchen window of 18 Simpson Street. But considering that there is some 30 m separation between the two buildings, this proposed privacy mitigation measure seems extraordinarily high in this context. As the applicant has provided no landscaping details to mitigate the impact of the structure, I do not consider the introduction of this foreign element is sympathetic or harmonious with the character of the area. In the circumstances, there are alternate good design options such as privacy screens on the subject property that could probably address this issue and concurrently allow for a more acceptable transition between the neighbouring property, which is consistent with neighbourhood character.
(3)Landscaping: The contentions identified the issue of landscaping. However the applicant has not addressed this in detail because his expectation is that the entire reclaimed and elevated backyard is to be filled and turfed. Whilst somewhat belatedly there was an indication that some replacement vegetation may be provided, the absence of any landscaping plan causes some concern to the Court.
47As noted there is a mature landscaped strip along the rear boundaries that provides a filtered privacy barrier and is an attractive feature of this neighbourhood. This was observed at the site and is confirmed in the photo in exhibit 7. In my assessment the removal of this vegetated strip and replacement with 3 m - 4 m high retaining structures and fully turfed yard area does not adequately satisfy the DFC elements, especially taking into account the exposure of the 3 level south/west elevations of the dwelling.
48I note the applicant has not implemented the approved landscaping plan associated with the dwelling, which approved landscaping within the rear yard context to achieve a more consistent transitioning to neighbouring properties.
49According to Mr Gough's submissions, the proposal results in an unsatisfactory impact on the natural topography and is noncompliant with the DCP's desired outcomes. His submission is that the extent of the external works is unacceptable and unreasonable based on the provisions of the following planning principles stated in Super Studio v Waverley Council [2004] NSWLEC 91:
5 Several planning principles are relevant to the determination of this appeal. The first is that the acceptability of an impact depends not only on the extent of the impact but also on reasonableness of, and necessity for, the development that causes it. For example, the privacy impact of a second-storey side window in an area of two-storey buildings should be accorded a higher threshold of acceptability than the impact of a second-storey side balcony in a house that already has three other balconies. Applying this principle to the present case, I note that the approved proposal already has three outdoor areas. The surrounding houses do not have roof terraces, so a roof terrace would be a new element in the area. This does not mean that it is inappropriate, only that its impact should be assessed with heightened sensitivity. A roof terrace would be acceptable only if its impact were minor or negligible.
50Applying this principle to the subject application, it seems to me that the aforementioned applicant's expectations for the exceedence of the numerical controls of FSR, height of fill and retaining walls in this relatively large development requires heightened sensitivity. In the circumstances, I do not consider the applicant's subjective opinion that as the various qualitative objectives are achieved, then the proposal merits consent. Instead, I consider the overall impact proposal is unreasonable, particularly the external works, which are not compatible with the character of the area and responsive to community expectations as expressed in the RLEP and RDCP.
51Accordingly, I give diminished weight to the personal interests of a small group of neighbours who agree on substantial variations to the RDCP development control guidelines that represent the desired public interest outcomes.