"1.34 To Forest Way, the amended proposal does not comply with the setback requirements. However, the amended proposal has almost doubled the front setback from 8m to 14m. This outcome is acceptable given that the building will in effect not be readily visible from Forest Way due to the site topography dropping significantly from the level of the road. This control (which indiscernibly applies to all properties in the locality along Forest Way or Wakehurst Parkway) should be flexibly applied given the subject site circumstances. This is highlighted by the townhouses/multi dwelling houses to the south of the site (known as 1-39 Childs Circuit) which do not provide a 20m setback to Forest Way (approximate 15m setback to the boundary).
1.35 To Childs Circuit, only ancillary external elements do not comply with the southern boundary setback requirements. The amended proposal has increased the built form setback from 6m to 10m. Whilst some ancillary external elements encroach within the Childs Circuit setback area these ancillary elements do not add significant bulk and scale to the proposed development. Given the subdivision pattern, approximately 130m of the southern boundary will directly front Childs Circuit. It is calculated that a total length of 40m of ancillary external elements encroaches into the 1Om southern setback requirement, which represents 21% of the 190m southern boundary (or 30% of the 130m frontage to Childs Circuit). The amended built form will be visually recessive and modulated to present significantly less building bulk to Childs Circuit when compared to the built form of the dwellings on the southern side of the road.
1.36 To the northern boundary, the amended proposal does not comply with the setback requirements. The amended proposal does not significantly alter the original setbacks from the northern boundary with the built form setback 6-17m from the northern boundary. Ancillary external elements encroach within 5m of the northern boundary but these ancillary elements do not add significant bulk and scale to the proposed development. It is calculated that a length of 57.5m of built form will encroach into the 10m northern side setback requirement, which represents 30% of the 191.4m northern boundary.
1.37 The Particulars ignore the three large insets that increase the southern setback to over 30m (being over 20m in excess of the setback requirement) to Childs Circuit and the three large insets that increase the northern setback to 14-17m (being 4-7m in excess of the setback requirement). Therefore, on average, the proposal easily meets the setback requirements.
1.38 Clause 20(1) of WLEP 2000 provides a mechanism for varying a development standard and stipulates consent may be granted to proposed development even if the development does not comply with one or more development standards, provided the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State Environmental Planning Policy.
1.39 The proposal satisfies each aspect of clause 20(1) as documented throughout this supplementary SEE and the original SEE. Specifically, the proposal is consistent with the General Principles of Development Control (refer to the Compliance Table provided Annexure A of the original SEE), is considered to be consistent with the Desired Future Character statement for Locality B2 Oxford Falls Valley (refer to Section 5.2.4.1 of the original SEE) and has been assessed against the provisions of, and is considered to be consistent with, all relevant State Environmental Planning Policies, including SEPP (Housing for Seniors or People with a Disability) 2004 (refer to Section 5.2.2 of the original SEE).
1.40 The bulk of the building is positioned down the slope and will be largely imperceptible when viewed from Forest Way. The annotated image at Figure 3 (above) demonstrates the extent of the building that will project above the level of the street.
1.41 Despite numeric non-compliance, the front setback of 14m is deep enough to accommodate and support the growth of substantial and dense landscaping. Landscaping in this location will largely conceal the building and contribute to the bushland corridor aesthetic of Forest Way.
1.42 In light of the above, it is argued that the front setback requirement is academic. That is, whether the front setback is 20m and strictly compliant or 14m as is proposed makes no tangible difference when site characteristics and landscaping is such that one will not readily perceive the structure from the street. It is fair to suggest that the large majority of people passing the site will be doing so in a vehicle moving at speed and, if they observe the building at all, they are not likely to from the view that the setback is discordant with prevailing streetscape character.
1.43 As discussed above, the amended proposal has increased the southern boundary setback to Childs Circuit to 10m while generally retaining the northern boundary setback of 6m. However, the setback extends to over 30m for Childs Circuit and 17m to the northern boundary where the recesses are proposed. As a proportion of the northern and southern side elevations, the recesses equate to approximately 33% of the length of each elevation. The building arrangement could be adjusted to achieve strict compliance with numeric setback requirements by reducing recesses and redistributing floor area however such an approach would result in a building with sub-optimal design qualities and one that is less consistent or compatible with area character.
1.44 Although non-compliant, the side setbacks proposed will allow for significant and dense landscaping which will serve to ameliorate the visual bulk of the development, and in this regard it cannot be said that the reduced side setbacks will result in a poorer landscaping outcome. In fact, the amended southern side setback of 10m from Childs Circuit is almost double the setback of the majority of dwellings on the southern side of Childs Circuit (2.3-14.5m) and comfortably meets the relevant landscaped area requirements and will therefore maximise opportunities for stormwater infiltration.
1.45 The dwelling on the adjoining site to the north is situated in the north-western portion of the site and is approximately 35m from the northern property boundary of the subject site. A driveway providing access to the cleared paddock area at the rear of the site runs adjacent to the southern property boundary. By virtue of the separation distance between the neighbouring dwelling and the proposed development, the setback to the northern side boundary is considered acceptable. A building with a setback of 6m, as is generally proposed, will have no greater visual impact than a building with a compliant setback of 10m and it allows other parts of the subject site to be entirely preserved, which has ecological benefits.
1.46 The recesses in the southern elevation create a modulated building appearance which reflects, or is at least compatible with, the rhythm of side setbacks of those dwellings opposite. The result is a streetscape appearance that reflects the built form and setback patterns already established, and is therefore appropriate regardless of minor numeric non-compliance for the ancillary eternal elements.
1.47 The proposed setbacks do not result in any adverse shadow, view, or privacy impacts on the adjoining properties to the north, south or east. The insets into the side of the building provide for a high degree of articulation and sense of "openness" for the building form as well as opportunity for additional planting along the northern and southern sides of the building.
1.48 A built form constructed at a uniform 10m from the Childs Circuit and northern elevations would have a far more significant visual impact on the setting of the locality. The proposal is a superior solution to strict compliance with the setback requirements and will permit significant opportunities for landscaping within the northern, southern and western boundaries.
1.49 For the reasons described above, and noting that the proposal satisfies the preconditions of clause 20(1), a variation to the building setback standard is considered to be acceptable in the circumstances. Significantly, the departure from the building setback standards allows for building with a greater degree of articulation and architectural appeal, without any adverse impact on streetscape character of amenity of neighbours. The proposal therefore represents a superior planning outcome when compared to a strictly compliant development."
- I accept the justifications for non-compliance with the development standards in this case for the reasons outlined in the supplementary EIS - noting that the variations to the development standards for height, front set back to Forest way, the front setback standard to Childs Circuit or the setback to the northern boundary are also supported by the Council's experts in this case.
- For the reasons outlined by Mr Mead I accept notwithstanding cl12 (2) (b) that consent can be granted to the proposed development despite the fact that the development does not comply with one or more development standards because the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy based on the evidence before me.
- Clause 12 (3) (b) of the WLEP requires before granting consent that this Category Two development is consistent with the desired future character described in the relevant Locality statement.
- The Desired Future Character Statement for the B2 Oxford Falls Valley Locality is at p127 of the WLEP 2000.
- In considering cl 12 (3) (b) I am satisfied based on the joint evidence of Mr Mead and Ms Morrish and Council's senior planner that the amended development is consistent with the Desired Future Character statement for the B2 Oxford Falls locality. The experts' agreed evidence is summarised at paragraph [30] above. I do not need to repeat it save to note that I accept their joint view that the development will be a "low intensity, low impact" use that will not be incongruent with the character of the locality nor have unacceptable adverse impacts on the amenity of adjoining properties for the reasons they give. Ultimately, as the experts state in order to be consistent with the Desired Future Character of the relevant locality statement "the consent authority only need be satisfied that the use is low impact and low intensity and the permissible development and controls that apply must be used as a significant measure of what intensity and impact of the of use is "low." The proposal is expressly permitted in the zone and complies with the FSR and landscape area requirements".
- Having been to the site and observed the southern side of Childs Circuit at the hearing I can also appreciate, as the experts suggest, how the built form will step down the site and nestle into the site slope. I also accept their assessment that the development will maintain a low profile and be read as 2-3 stories above the existing ground level with four pavilions ( with up to 31m insets ) to modulate the built form which will be compatible with the built form on the southern side of Child Circuit.
- I am also satisfied on the evidence of the experts for the reasons articulated in the joint report that the amended design now achieves the relevant Site and Planning and Building Design Principles in Division 4 and 6 of Part 4 the WLEP which were not adequately addressed in the earlier plans.