Kelly v Randwick City Council; Drake v Randwick City Council - [2021] NSWLEC 68 - NSWLEC 2021 case summary — Zoe

NSWNSWLEC

Kelly v Randwick City Council; Drake v Randwick City Council

[2021] NSWLEC 68

Land and Environment Court (NSW)|2021-06-09|Before: Moore J, Mr P

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2021-06-09

Before

Moore J, Mr P

Source

Original judgment source is linked above.

Judgment (29 paragraphs)

[1]

TABLE OF CONTENTS Introduction The site Representation The proceedings The relevant planning controls Introduction The EPA Act The LEP The relevant DCP provisions Introduction Earthworks Car‑parking and access The issues The evidence The site inspection The town planning evidence Introduction Mr Faridy's evidence Mr Faridy's oral evidence Mr Faridy's contribution to the Joint Expert Report Mr Player's evidence Mr Player's oral evidence Mr Player's contribution to the Joint Expert Report The submissions Introduction The submissions for Mr Kelly The submissions for the Council The Applicants' submissions in reply Consideration Introduction Mr Kelly's proposed development appeal Ms Drake's strata subdivision appeal Costs in each Class 1 matter Orders Annexure A

[2]

Introduction

Adams Avenue at Malabar is within the local government area administered by Randwick City Council (the Council). Adams Avenue and the precinct within which it is located are in transition, with older housing stock gradually being demolished and replaced with more contemporary dwellings.
These two Class 1 appeals pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) concern proposed development at 27 Adams Avenue, Malabar (the site). The first Class 1 appeal is against the deemed refusal by the Council of a development application by Mr Kelly to demolish the existing freestanding, single‑storey dwelling on the site and replace it with a two‑storey dual occupancy (attached) proposed to be constructed over basement car‑parking. The second Class 1 appeal is an application by Ms Drake to strata subdivide the proposed resulting duplex dwellings for which consent is sought in Mr Kelly's proceedings.

[5]

The proceedings

As earlier observed, this decision deals with two Class 1 appeals. The first of these appeals, brought by Mr Kelly as an owner of the site, seeks development consent for the construction of dual occupancy (attached) dwellings. This appeal was commenced against the deemed refusal by the Council of the proposed development.
The second Class 1 proceedings, also an appeal against a deemed refusal by the Council, is brought by Ms Drake (also an owner of the property). The development application the subject of Ms Drake's appeal sought consent to strata subdivide the development that is the subject of the proceedings brought by Mr Kelly. Mr Kelly's Class 1 proceedings were commenced on 22 December 2020. Ms Drake's Class 1 proceedings were commenced on 10 February 2021.
Obviously, if Mr Kelly's appeal were to be unsuccessful (as it is), Ms Drake's appeal would be rendered futile (as it is).
However, as it appeared to Ms Drake that there was uncertainty as to the correct interpretation of the provision in the LEP governing the subdivision of developments such as that for which she and Mr Kelly (in combination) sought consent, Ms Drake also commenced Class 4 proceedings seeking a declaration as to the proper construction of the relevant provision of the LEP (cl 4.1A(4)(a)) as it applied to a list of plans (in the Summons as filed) upon which her development application for strata subdivision of Mr Kelly's proposed development was founded.
Mr Kelly's Class 1 proceedings came before me as the List Judge on 26 March 2021 seeking leave to rely on amended architectural plans and to rely on landscape plans. These plans were said to be responsive to matters raised by the Council as being of concern to it in those proceedings. I granted leave to Mr Kelly to rely on those plans; holding the dates set for the hearings; and giving relevant pre‑trial preparation directions.
On 9 April 2021, Ms Drake's Class 4 proceedings came before Robson J, as the List Judge, as a consequence of a Notice of Motion filed on her behalf seeking leave to rely on in Amended Summons. In lieu of the terms in which the original Summons had been couched (referencing various site‑specific plans), the proposed Amended Summons framed the relief sought in abstract terms. Leave to amend was not opposed by the Council and, as a consequence, because Robson J was dealing with the matter as No 41 in a busy Friday List, his Honour granted the leave sought. The relief sought in the now Amended Summons was in the following terms: 1 A declaration that the expressions: a. "size of any lot" where those words appear in clause 4.1A(3) of the Randwick Local Environmental Plan 2012 ("RLEP"); and b. "size of each lot" where those words appear in clause 4.1A(4) of RLEP mean: i. the "floor area" of the relevant lot, as that expression is defined in the Strata Schemes Development Act 2015; and ii. if the relevant lot has more than one part, the aggregate of the "floor area" of each of the parts that make up the whole of that lot."
The two Class 1 proceedings were set down to be heard together over two days on 7 and 8 June 2021. The Class 4 proceedings were set down to be heard on the day immediately following completion of the two Class 1 matters. All three matters were allocated to me by the Chief Judge.
I first read the terms of the Amended Summons in the Class 4 proceedings after the conclusion, on 8 June 2021, of the joint hearing of the two Class 1 appeals. I had reserved my decision in the two Class 1 matters at the end of those hearings.
After reading the terms of the Amended Summons in the Class 4 proceedings, I formed the view that what was now being sought was, effectively, judicial advice in the abstract concerning the interpretation of cl 4.1A of the LEP, an entirely inappropriate course and one not undertaken in proceedings in this Court.
During the joint hearing of the two Class 1 matters, it was revealed that the Council raised no merit objections to Ms Drake's proposed strata subdivision of the development for which Mr Kelly sought consent.
However, the Council did press that its interpretation of cl 4.1A of the LEP precluded the granting of consent to Ms Drake's proposed strata subdivision. The parties had agreed that submissions on this point would be made in Ms Drake's Class 4 proceedings, with my determination of Ms Drake's Class 1 appeal to await positive outcomes in Mr Kelly's Class 1 proceedings and her Class 4 proceedings.
The Court listed Ms Drake's Class 4 proceedings, and her Class 1 proceedings, for Wednesday 9 June 2021. At the commencement of the hearing on that day, I advised Mr Tomasetti that, having read the Amended Summons and concluding that it sought judicial advice in a purely theoretical fashion entirely unrelated to Ms Drake's proposed strata subdivision of 27 Adams Avenue, I was not prepared to hear and determine the Class 4 proceedings on that basis.
I indicated, however, that I proposed to reopen Ms Drake's Class 1 proceedings and hear submissions from him and from Mr Hemmings (now appearing for the Council on what he had understood would be Class 4 proceedings), on the matters of interpretation of cl 4.1A of the LEP.
After a short adjournment, I was advised that the parties agreed to me proceeding on this basis. As consequence, I adjourned the Class 4 proceedings, to be relisted before the List Judge on the Friday after I deliver my decision in the two Class 1 proceedings. The hearing on 9 June 2021 in Ms Drake's Class 1 proceedings then continued. As noted later, limited new evidence was tendered in these proceedings. After hearing from Mr Tomasetti, Mr Hemmings and Mr Tomasetti in reply, I reserved my decision (again) in Ms Drake's Class 1 proceedings.
Each of the three days of the hearings was conducted in person in a fashion complying with the Court's COVID-19 policy.

[8]

The LEP

The first provision in the LEP is that contained in cl 2.3(2) concerning the approach to be taken to considering the objectives of the zone within which the site is located. That provision is in the following terms: 2.3 Zone objectives and Land Use Table (1) … (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. (3) … (4) …
The second relevant element of the LEP is that setting out the objectives for the R2 Low Density Residential zone set out in the land use table to the LEP. These 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 recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area. • To protect the amenity of residents. • To encourage housing affordability. • To enable small-scale business uses in existing commercial buildings.
It is to be observed that the development sought in each of the Class 1 proceedings is permissible in the R2 zone.
The LEP also includes provisions addressing the topic of subdivision. The critical provision for the purposes of Ms Drake's appeal is cl 4.1A Minimum subdivision lot size for strata plan schemes in Zone R2. A proper understanding of how this provision was to be understood and applied would have been critical to my determination of her Class 1 proceedings seeking the strata subdivision of the proposed development at 27 Adams Avenue. However, as I have determined that the development application for the proposed structure on the site should be refused on a merit basis, it will not be necessary to make any determination concerning the interpretation of this provision. It is, therefore, not necessary to reproduce this provision.
Finally, for completeness with respect to provisions of the LEP, it is appropriate to note that the proposed development for which consent was sought, in Mr Kelly's Class 1 proceedings, is compliant with the floor space ratio (FSR) and the building height provisions imposed on the site by the LEP.
Although the development proposed in Mr Kelly's Class 1 proceedings is compliant with these provisions, the Council makes complaint about the size of the proposed basement area (a basement area to comprise garaging and storage space and proposed to be linked to the primary residential level by an internal staircase). Had it been necessary to address this issue, the definition of "gross floor area" contained in the Dictionary to the LEP would have required consideration. Given that the proposed development is to be refused for other reasons, it is sufficient to note that I would not have concluded that the area of the basement could have contributed to refusal.

[12]

The issues

The dominant issue in Mr Kelly's Class 1 appeal was whether or not it was appropriate to approve a proposed development where the garaging for each of the dual occupancy dwellings was to be in a basement where, at the western elevation facing the street, the uppermost element of the garaging would only be a maximum of some half a metre above the existing natural ground level. The Council considered that this proposed basement garaging would constitute significant breaches of several controls in the DCP and that these breaches warranted refusal of Mr Kelly's development application.
A subsidiary issue arose concerning the dimensions of the proposed garages and the storage space proposed to be located in each garage beyond the nominated stack parking arrangements for two vehicles in each. Although the Council could not nominate any express controls in the LEP with which the dimensions of these garage/storage areas were non‑compliant, the Council proposed that the extent of the excavation necessary for these spaces was in breach of the earthworks' excavation control in the DCP.
Finally, the Council raised an issue concerning additional overshadowing to a number of windows of the dwelling to the south. The Council's position was that this could be cured by increasing the side setbacks of Mr Kelly's proposed development. The subsequent evidence revealed that the maximum additional setback sought for the eaves on the southern side of the proposed development was 25 millimetres. Given the nature of the uses of the spaces in the dwelling to the south, where the additionally overshadowed windows were located (as shown in Exhibit E) and what could only be regarded as the transitory and almost infinitesimally small, incremental nature of this overshadowing, this issue could not contribute either to warranting refusal of the proposed development or to warranting any ameliorative change to its proposed design.
With respect to Ms Drake's Class 1 strata subdivision development application, the Council raised no merit matters in opposition to it. However, the Council did press that, on a proper construction of cl 4.1A(4) of the LEP, a minimum allotment size of 400 square metres was required for each strata allotment that would arise from such a subdivision. This was a development standard. Absent a successful request pursuant to cl 4.6 of the LEP to dispense with compliance with the standard (there being no such objection in Ms Drake's proceedings), the Council submitted that, if Mr Kelly's development application was successful, approval of Ms Drake's proposed strata subdivision was impermissible.
To understand the first and second of the issues noted above as pressed by the Council in Mr Kelly's Class 1 proceedings, it is appropriate to reproduce two images depicting elements of the architectural plans (Exhibit B) of Mr Kelly's proposed development.
The first of these is the western elevation of the proposed structure. This depicts the basement garaging elements for each dwelling, with the two habitable levels above. That which is depicted is taken from a point also depicting a section of the waste bin enclosures on the northern and southern sides, relevantly, of the driveway - a little on the street side of the proposed building. The location of those waste bin enclosures can be seen on the second reproduced plan. The western elevation is reproduced below (from sheet A2 DA06 revision e of Exhibit B):
The second plan appropriate to be reproduced is the basement level plan. This enables an understanding of the Councils complaint concerning what it proposes is the excessive size of the garage/storage spaces proposed to be created. The creation of these is said to breach, significantly, the earthworks' excavation control in the DCP. This plan is reproduced below, (sheet A2 DA 02 revision e of Exhibit B):

[13]

The evidence

Before listing the material that was tendered, it is appropriate to observe that there was agreement between the parties that, to the extent relevant, evidence in one proceeding should be evidence in the other. Therefore, except where specifically noted later, that ruling is to be applied to the documentary material in evidence. The evidence tendered on behalf of Mr Kelly and Ms Drake comprised: 1. A bundle of documents (Exhibit A), of which Tabs 1 to 14 were documents relating to Mr Kelly's development application, whilst Tabs 15 to 23 related to Ms Drake's strata subdivision application; 2. The architectural plans for Mr Kelly's proposed dual occupancy (attached) became Exhibit B; 3. The landscape plans for Mr Kelly's proposed dual occupancy (attached) became Exhibit C; 4. The joint expert town planning report by Mr Faridy (for the Council) and Mr Player (for Mr Kelly) concerning Mr Kelly's proposed dual occupancy (attached) was Exhibit D. It is to be noted that Mr Faridy and Mr Player were required to give oral evidence. Their oral evidence is discussed later; 5. Plans of the house on 29 Adams Avenue (immediately to the south of the site) became Exhibit E; 6. A bundle of material concerning developments in or near the precinct of the site where the Council had approved semi‑basement car‑parking under a single dwelling or dual occupancy development in the period since February 2014 was Exhibit F. This bundle of material contained details concerning six different locations, with development consent details for all of them and photographs of five of them (the sixth dwelling not having yet been constructed); 7. A supplementary bundle of material in support of Ms Drake's subdivision application was tendered, becoming Exhibit G. This material comprised the proposed strata plan of subdivision for Mr Kelly's proposed dual occupancy (attached) (if approved); two affidavits from Ms Drake (both dated 24 December 2020) and documents exhibited to the first of her affidavits; 8. A planning proposal from the Council dated April 2018 concerning proposed alterations to the minimum subdivision lot size standard for attached dual occupancy developments. The planning proposal became Exhibit H; 9. A Gateway Determination from the Director, Sydney Region East, of the Department of Planning and Environment, dated 10 May 2018 that the 2018 planning proposal in Exhibit H should be permitted to proceed; and 10. A media release, dated 14 May 2018, from the Hon Anthony Roberts MP, the then Minister for Planning, entitled "Proposed Randwick LEP Amendment fast tracked to cut red tape" became Exhibit K.
A bundle of documentary material (the Council's Court Book) was tendered on behalf of the Council. This bundle became Exhibit 1. The documents in this exhibit comprised a submission from the owner of a neighbouring property to the north of the site. This submission raised matters of front setback, privacy, and natural light impacts. The next group of documents (behind Tab B of this exhibit) comprised documents from council officers concerning Mr Kelly's proposed development. The first of them, dated 14 October 2020, was a request from a senior environmental planning officer employed by the Council requesting further information from Mr Kelly, whilst other documents concerned internal council officer reports. The folder also included relevant extracts from the LEP and the DCP.
The final version of the Council's "Without prejudice conditions of consent" became Exhibit 2. It is to be noted that, had Mr Kelly's appeal been successful, it would have been necessary to resolve several (comparatively minor) matters of disagreement concerning the proposed conditions of consent for his proposed development.

[14]

The site inspection

On the first morning of the hearing, as is customary in Class 1 appeals, a site inspection was undertaken. During the course of the site inspection, I entered the site and was asked to observe, over the southern boundary, the relationship of the site with the contemporary two‑storey dwelling on the adjacent allotment and the location of the fenestration of it on its northern elevation. This was because there was a minor merit issue concerning the shadows which would fall from the proposed development onto the dwelling to the south.
During the course of the site inspection, I was accompanied, relevantly, by the advocates and the town planning experts for the parties.
After leaving the site, we walked to the north along Adams Avenue to its intersection with Nix Avenue. As can be seen from Annexure A, Adams Avenue bends to the west as it approaches this intersection. The distance walked along Adams Avenue to its intersection with Nix Avenue was approximately 200 metres. At that intersection, we turned to the north, walking along Nix Avenue to its T‑intersection with Zions Avenue.
During the walk along Adams Avenue, a number of two‑storey attached duplex dwellings were to be observed on the western side of the street. All of these dwellings had parking provided on site by garages, at grade, inserted into the front façade of each dwelling. At least one similar contemporary pair of dwellings was to be observed in the portion of Nix Avenue we traversed.
None of the contemporary redevelopment along the sections of Adams Avenue and Nix Avenue we traversed had basement or semi‑basement car‑parking. However, at Zions Avenue, directly opposite Nix Avenue at the T‑intersection, there is a substantial contemporary, two‑storey dwelling which does have a semi‑basement garage. This dwelling's garage arrangement (and others broadly similar in street presentation) are of importance in the case advanced in Mr Kelly's Class 1 proceedings seeking development consent for the attached duplex at 27 Adams Avenue. It is, therefore, appropriate to reproduce an image of this dwelling (taken from Exhibit F, Tab 26, folio 1). This image is reproduced below:

[16]

Mr Faridy's oral evidence

Mr Faridy was questioned by Mr Tomasetti. Mr Faridy's oral evidence can be summarised in a series of propositions appropriate to be derived from his responses. His evidence was: 1. He accepted that cl 2.3(2) of the LEP required that it was necessary to have regard to the relevant objectives for the zone, rather than requiring that there needed to be strict satisfaction of those objectives; 2. He agreed that the precinct within which the site is located was one which was undergoing a transition - with this precinct being the area to the east of Anzac Parade, as shown on the extract of the zoning map at Annexure A, and that this was to be regarded as the area for the purpose of considering the R2 zone objectives; 3. Mr Faridy specifically accepted that Adams Avenue was, itself, in transition as was seen during the course of the site inspection; 4. Mr Faridy accepted that the height of the development for which Mr Kelly sought consent complied generally with the height control specified by the DCP and was well below the maximum mapped height in the relevant Height of Buildings map derived from cl 4.3 of the LEP. His sole reservation, as I have earlier noted in my setting out of the issues arising in the proceedings, is of a minor nature (the additional overshadowing of the southern dwelling, an issue which is inconsequential for present purposes); 5. He agreed that the proposed development complied with the relevant FSR requirements in the Council's controls; 6. Mr Faridy accepted that the examples depicted of the six sites in Exhibit F all demonstrated that the Council had approved garages on those sites which were substantially below ground level. However, he had not examined the Council's records concerning any of those approved developments to seek to obtain an understanding of the basis upon which the Council had agreed to approve such garaging arrangements; 7. The proposition was put to Mr Faridy that the scale of the proposed development was comparable for its eastern and western elevations. Mr Faridy rejected this proposition, as I understood his evidence, because the gentle slope of the site, from east‑to‑west, resulted in the eastern elevation being from ground level, whilst the western elevation was readily observable to be one containing basement garages that were substantially, but not completely, below ground level; 8. It is my note that, toward the end of his questioning by Mr Tomasetti, Mr Faridy raised no objection to the extent of the earthworks which would be necessary if Mr Kelly's proposed development was to be approved; 9. Mr Faridy accepted that the design of the proposed development was appropriately contemporary and would otherwise be acceptable in the streetscape of Adams Avenue, absent the objectionable element (the basement garaging); and 10. Finally, he explained that his objection to the proposed strata subdivision sought in Ms Drake's Class 1 appeal was one based on the planning ground that, once subdivided if approval was given for that to occur, the resulting dwellings would be of a different typology and subject to more permissive (as I understood him) controls then would be the case if subdivision was not permitted. This objection was divorced from matters arising in the context of the legal issue concerning interpretation of cl 4.1A of the LEP.

[18]

Mr Player's oral evidence

I now turn to Mr Player's oral evidence. I summarise below the matters from Mr Player's oral evidence relevant to the matters in contention concerning Mr Kelly's proposed development. Mr Player was questioned by Mr Astill on a number of topics.
Mr Player specifically agreed that the he was not suggesting the Council had abandoned its control in Pt C1, cl 6, control 6.1(v) of the DCP - that semi‑basement garaging should not be permitted. This agreement was made regarding the material contained in Exhibit F, the exhibit showing other development in the area where the site is located or but a little outside that area (but nonetheless within the Randwick local government area) where semi‑basement garaging had been approved by the Council.
As with Mr Faridy, Mr Player acknowledged that he had not made any such enquiry into the approvals for semi‑basement garages by the Council. He agreed that he had no knowledge as to why Council had approved such garaging arrangements at the various locations about which photographic and/or documentary evidence in Exhibit F evincing approval of such garaging had been given.
Mr Player's responses to Mr Astill's questions can be summarised in the following fashion, to give an understanding of the opinions he expressed in his oral evidence. These were: 1. He relied on the other semi‑basement garages in Exhibit F as exemplifying what the Council considered acceptable in the relevant streetscape context; 2. He agreed that the relevant LEP and DCP controls that applied to the site defined an envelope that the Council considered appropriate for development on the site; 3. He accepted that these controls do not encourage basement car‑parking on flat or gently sloping sites; 4. However, the design for the proposed development, for which Mr Kelly seeks consent, constituted a better design solution which complies with the objectives applicable for development on the site. This design would provide a greater living area for residents of each of the proposed dwellings and would optimise the habitable space which would become available for those residents.

[19]

Mr Player's contribution to the Joint Expert Report

I now turn to set out relevant material from Mr Player's contribution to the Joint Expert Report of Mr Faridy and Mr Player (Exhibit D).
Mr Player first turned his attention to defining the area appropriate to be considered, in the context of Mr Kelly's proposed development, for the purposes of the third of the R2 zone objectives, saying: The R2 Low Density Residential zoned area or precinct of Malabar is clearly delineated by the foreshore public open space area and the Pacific Ocean to the east, north and south; the R3 Medium Density Residential zoned area to the south; Anzac Parade and the correctional centre to the west and to the north.
He noted that this area could clearly be understood from the extract of the Land Use Zoning map attached to the Joint Expert Report. This Land Use Zoning map extract is reproduced as Annexure A to this decision.
He next, relevantly, opined that: Clause 2.3(2) of the Randwick LEP 2012 requires the consent authority "to have regard to the objectives for development in a zone when determining a Development Application". It is not a test of strict consistency of the development with the zone objectives, and in this case, the existing streetscape and character. It is a test of compatibility with the streetscape and emerging desired future character of the area (not sameness).
Mr Player relied on the planning principle in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (Project Venture) (at [22] to [26]) as providing support for his opinion that the design of Mr Kelly's proposed development, with respect to its presentation in the streetscape of Adams Avenue, was appropriate and that streetscape issues did not act as a barrier to its approval. Planning principle: compatibility in the urban environment 22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them. 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. ● Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. ● Is the proposal's appearance in harmony with the buildings around it and the character of the street? 25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity. 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character.
After quoting the above extract from Project Venture, Mr Player's written evidence continued, saying: The physical impacts of the proposal in respect to acoustic and visual privacy, overshadowing, view loss, visual amenity and constraining development potential of neighbouring residential properties is considered to be minimal (if any) and therefore acceptable. The proposal's appearance is considered to be in harmony with contemporary dwelling houses and detached dual occupancies in the R2 zoned area of Malabar, including the character of the street (Adams Avenue) and the surrounding streetscapes, particularly having regard to it being an area in transition. The proposal has a two (2) storey building height compatible with other contemporary dwellings and detached dual occupancies being well below the 9.5 metre maximum building height limit under the Randwick LEP. The front, side and rear setbacks of the proposal are consistent with the rhythm of setbacks of residential buildings on neighbouring properties in Adams Avenue and the surrounding streetscapes and comply with the setback objectives and controls under the Randwick DCP. … Furthermore, whilst there is currently no other dwellings or attached dual occupancies with a ramp driveway access to a basement car‑parking level along Adams Avenue, this building element does not, of itself, make the proposal's appearance in disharmony with the residential buildings around it in the emerging low density residential character of the Adams Avenue streetscape and surrounding streetscapes in the Malabar locality. Indeed, the inclusion of basement car‑parking, rather than at grade car‑parking, achieves a better urban design outcome in that the visual presentation from the public domain of the Adams Avenue streetscape is of a contemporary high-quality architectural landscaped designed two storey dual occupancy (attached) with no garages at grade visually dominating the external appearance of the front façade.
With respect to the third of the zone objectives, Mr Player wrote: The contemporary high-quality architectural and landscape design of the proposed detached dual occupancy will contribute positively to the desired future character of the R2 zoned area of Malabar as a precinct undergoing transition.
Mr Player then wrote (folio 93 of Exhibit D): Attachment E is a table which identifies the key desirable elements that contribute to the desired future character of the R2 zoned area of Malabar and an assessment of the consistency of the proposal with those elements. It is concluded that, overall, the proposal will contribute positively to the desired future character of the R2 zoned area of Malabar, being an area or precinct undergoing transition. The assessment as to whether the proposal has desirable elements that will contribute to the desired future character of the R2 zoned area, being the precinct undergoing transition, should not be limited solely to existing residential development along Adams Avenue. The whole R2 zoned area or precinct of Malabar is the correct site context analysis for compatibility of the proposal with the urban environment.
Mr Player then turned to refer to a number of photographs appended to the Joint Expert Report - photographs that were reflective of, but of a broader range than, the material contained in Exhibit F.
Mr Player's table, in his Attachment E noted above, contained material set out in three columns. The columns were headed: 1. Desirable elements; 2. The proposal; and 3. Consistency.
This table dealt with matters which, for the very large part, are not put in dispute by the Council. It is unnecessary, therefore, to set them out.
The sole matter pressed by the Council as warranting refusal of this proposal relates to the basement garage as earlier noted. In Mr Player's Attachment E, he deals with this, under the heading "Public/Private Domain", saying, relevantly, that the desirable element was: Frontage of residential building lots are diverse being either open (no fences) to solid masonry fences/gates. Entry points from streets to residential buildings are varied being in the majority of properties, driveways and garages at ground level but there are also many examples of ramped driveways and lower levels/basement garages.
With respect to this attribute, Mr Player notes that: The two (2) storey attached dual occupancy has a ramped driveway to a basement car‑parking level.
He assesses that this is consistent by being an element that contributes to the desired future character of the R2 Low Density Residential zone and the relevant area of Malabar.
It was Mr Player's evidence that the design for 27 Adams Avenue, by incorporating the garaging as proposed, would optimise the development potential capable of being achieved for each of the dwellings on the site, whilst complying with the relevant controls in the LEP and the DCP that, in combination, defined the maximum permitted building envelope on the site for a development of the typology proposed by Mr Kelly.

[21]

The submissions for Mr Kelly

Mr Tomasetti commenced by noting that assessment of the merits of Mr Kelly's proposed development was to be undertaken in a fashion compliant with s 4.15 of the EPA Act. I note that I later return to address his specific submission concerning s 4.15(3A) of the Act.
Mr Tomasetti reminded me that cl 2.3(2) of the LEP merely required that regard be had to the relevant zone objectives. He then turned to the third objective of the R2 zone. It is appropriate to set out, again, the terms of this objective: To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.
He then submitted that it was appropriate to "pick apart" this objective in the context of what was able to be observed concerning the character of the emerging development in Adams Avenue. There were several steps in this, he proposed. The first was to identify the positive elements in the streetscape, whilst the second was to identify those that could be regarded as undesirable. He submitted that the desirable elements were: 1. Two‑storey dwellings above natural ground level; 2. Generally uniform front setbacks; 3. Gardens in the front setback (gardens, as I understood his inference, that were pleasant and well-maintained); 4. Appropriate building separations (whether between pairs of dual occupancies or single dwellings); 5. Front doors facing the street; 6. Low or no fencing; and 7. No dominance of garaging in advance of the front façades.
He submitted that the principal undesirable elements were that: 1. As a consequence of many dwellings having single garages at street level and there being the likelihood that there would be more than one vehicle per dwelling, this would result in street parking (resulting in the inability of vehicles travelling in opposing directions to pass without needing to stop and make way - as a result of the limited width of the street) or the parking of second vehicles on driveways in front of the garage doors or otherwise in the front setback of an individual allotment; and 2. Occupants using the second car would not be able to unload people or shopping without being exposed to inclement weather.
It was his submission that these undesirable elements would not be exacerbated in any fashion if Mr Kelly's proposed development was approved, as the basement garaging provided space for tandem parking for two vehicles for each dwelling.
Mr Tomasetti then noted that there was no desired future character statement in the LEP or the DCP to be applied to this area. He submitted that the desired future character is to be inferred from the full suite of controls adopted by the Council as here applicable.
He turned to the fourth objective for the R2 zone. This objective is in the following terms: To protect the amenity of residents.
He submitted that the design of Mr Kelly's proposed development would provide superior amenity for its residents because: 1. The garaging arrangement proposed would enable residents to exit from both vehicles in the garage, and thus out of the weather, with internal staircase access to the living levels; and 2. The provision of significant storage areas securely separated from the garaging (to the east of the car spaces) generously compensated for the otherwise limited storage at the living level of each of the proposed dwellings.
He next turned to what he submitted were the positive features to be seen on the plan for the ground level of each of the proposed dwellings. These were: 1. The courtyards (at approximately the midpoint on the northern and southern façades) had the effect of breaking up the presentation of those façades; 2. The courtyards provided significant opportunity for through-flow ventilation for the primary living areas at the eastern ends of the ground floor levels of the two proposed dwellings (where these courtyards would not be able to be provided if the proposed development was required to have its garage at ground level). The courtyards also meant that only limited storage space could be provided at this level because the additional storage areas in the basement permitted this amenity benefit to be provided; and 3. The basement garaging would remove the necessity for any resident on‑street parking.
Overall, he submitted that all of these factors, when taken together, demonstrated that that for which consent was sought provided not only a superior design in a streetscape sense, but also a superior design in providing amenity to those who would be residents of the proposed dwellings.
At a more general level, he submitted, this result would also follow from the fact that there would be no need to occupy a quarter of the ground level of each proposed dwelling with car‑parking, as would be the consequence if parking at grade was required in lieu of the proposed basement car‑parking. These features, taken together, he submitted, constituted superior satisfaction of the fourth of the zone objectives.
The proposed development would also remove the dominance of garage doors in front façades - a streetscape feature which could otherwise be observed as being the result of the design outcomes of several of the dual occupancies in the vicinity (and, as I understood him, particularly the examples of such developments across Adams Avenue from the site). He submitted that having such garage doors in the front façade should not be accepted as a desirable character outcome.
Mr Tomasetti then addressed the fifth of the zone objectives, being the objective: To encourage housing affordability.
He submitted that this objective encouraged the development of dual occupancies (attached) on sites that were capable of accommodating them and that this promoted housing affordability. This was to be compared with the substantial dwelling on the allotment immediately to the south, which, as I understood him, could not be regarded as contributing to satisfying this zone objective. The design of Mr Kelly's proposed development satisfied this objective, he proposed.
Mr Tomasetti next addressed the landscaping plans (Exhibit C). He submitted that the proposed landscaping, when properly implemented and maintained, would mean that the existence of the basement would only be able to be observed by a pedestrian or a person in a vehicle when traversing directly across the driveway mouth. He submitted that this potential viewing would be sufficiently brief so as not to be discordant in the streetscape context of Adams Avenue. Although there was a disagreement as to wording, it is to be noted that Mr Kelly accepted that it would be appropriate to impose a condition requiring the landscaping be maintained for the life of the development.
Having completed his addressing of the above described individual design aspects of Mr Kelly's proposed development, Mr Tomasetti next turned to addressing the terms of the relevant elements of the LEP and the DCP.
After adverting to the definitions of "dual occupancy" and "dwellings" in the LEP (matters to which it is not presently necessary to advert), Mr Tomasetti submitted that the fact that Mr Kelly's proposed development complied with the FSR requirements in cl 4.5 of the LEP stood in its favour. This compliance was as a consequence of the exclusions in the calculation of gross floor area of the proposed development as a consequence of the proper application of elements (e)(i) and (g) of the definition of "gross floor area" in the Dictionary to the LEP.
Mr Tomasetti submitted that it was appropriate to conclude that the podium effect of the basement garage was modest and, as a consequence, it would not contribute to any adverse streetscape impact in the context of Adams Avenue.
He submitted that, as could be seen from s 3.42 of the EPA Act, the purposes of the controls in DCP were as provided for in that provision. In this context, he submitted that parking in driveways in the front setback was contrary to the second of the objectives in cl 4.3 of Pt C1 of the DCP, an objective in the following terms: To ensure parking facilities do not dominate the street elevations of dual occupancy dwellings but present as an integrated architectural element.
I understood this submission as being consistent with one which he had earlier advanced - that Mr Kelly's proposed development would positively contribute to compliance with this objective by removing any potential for second vehicles of the occupants of either of the proposed dwellings being parked in the front setback. This was because there would be space within the basement garage for two of them. This was to be compared with the position which we had seen during the course of the site inspection, with a number of vehicles parked in driveways within the front setbacks.
He then submitted, with respect to cl 4.6 Earthworks, that the four objectives set out for this element of the DCP were satisfied by Mr Kelly's proposed development and thus there was no necessity for compliance with the controls that were mandated by the DCP to ensure compliance with these objectives.
He noted that the extent of the excavation necessary for the construction of the proposed basement car‑park had been described in the Witt Consulting report (Attachment H to Exhibit D) which disclosed (at folio 156) that: The anticipated excavation volume for the site of 670 m3 (unbulked) or 1500 tonnes of material. It is estimated that, of the total 670 m³ of material to be removed, approximately 200 m³ will comprise topsoil and fill. The remaining 470 m3 of material is virgin excavated material consisting of sandstone bedrock.
The Witt Consulting report continued by noting that 12‑tonne rigid trucks would be used to remove the material with typical truck movements being five loads per day for a period of four to five weeks. Mr Tomasetti submitted that this was a minimal impact during the construction period if Mr Kelly's proposed development was approved. He submitted that such an impact would not warrant contribution to refusal of the proposed development.
Mr Tomasetti next turned to the provisions in the DCP, in Pt C1, 6 Car Parking and Access. He submitted that Mr Kelly's design was consistent with the fourth of the objectives in this portion of the DCP, this objective being in the following terms: To ensure the location and design of parking and access facilities do not pose undue safety risks on building occupants and pedestrians.
He submitted that this objective was specifically satisfied, as the proposed development would increase safety for the residents of the building by having internal stair access from garaging of two vehicles for each of the proposed dwellings, thus removing any risks that would have arisen from a development where the second vehicle would be parked in the front setback.
He submitted that, although the proposed basement garaging did not satisfy the third and fifth of the controls for location of parking facilities, the nature of Mr Kelly's proposed development was not unreasonably in breach of these controls in circumstances where: 1. A relevant objective had been satisfied; and 2. The scale of Mr Kelly's proposed development meant that the breach of the controls was not excessive; and 3. An examination of the material in Exhibit F showed that the Council had accepted that such basement garaging could be acceptable in an appropriate context.
In this regard, Mr Tomasetti submitted that the designs at 20 Zions Avenue; 7 and 7A Bay Parade and 125 and 125A Bilga Avenue were examples of how a design for such garaging was not disrespectful of the streetscape in which it was located. He submitted that the design of Mr Kelly's proposed development was similarly respectful of the streetscape in Adams Avenue.
For all these reasons, he submitted that Mr Kelly's proposed development should be approved.

[22]

The submissions for the Council

Mr Astill commenced his submissions on behalf of the Council by submitting that the fundamental problem with Mr Kelly's proposed development was that there should not be basement garaging as proposed. Such an arrangement, he said, was fundamentally contrary to the objectives and controls in cll 4.6 (Earthworks) and 6.1 (Location of Parking Facilities) of the DCP.
With respect to the approach to be taken to an appropriate degree of reliance on the provisions of the DCP, Mr Astill took me to the recent decision of the Chief Judge in Tomasic v Port Stephens Council [2021] NSWLEC 56 (Tomasic), where his Honour summarised the position concerning the weight to be given to development control plans and to Council policies, at [34] and [35], where he said: 34 It is well established that the provisions of a development control plan need to be taken into consideration, in determining a development application, as a "fundamental element" in or a "focal point" of the decision-making process: Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 at [75], [77]. The Court, exercising the function of the consent authority to consider and determine the development application, is required to "take into consideration" any development control plan of relevance to the development the subject of the development application: s 4.15(1)(a)(iii) of the EPA Act. A provision of the development control plan that is "directly pertinent" to the development and the development application is entitled to "significant weight" in the decision-making process, although it is not determinative: Zhang v Canterbury City Council at [75]. 35 Other factors will also increase the weight to be given to a development control plan. Three factors were identified in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 at [87]: - A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation. - A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied. - A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies.
Mr Astill submitted that, in the context of the Adams Avenue streetscape, the Council had consistently applied the relevant controls in the above cited provisions in the DCP. The DCP, he noted, was a modern, comprehensive and professionally drafted instrument. There was no reason, he submitted, therefore, why the appropriate weight should not be given to it.
He submitted that the basement garage and storage area: 1. Does not try to comply with the control in the Earthworks provision of the DCP proposing that such excavation should not be permitted; 2. Breaches the first control of the Earthworks provision limiting excavation to a maximum of one metre at any point on an allotment; 3. Does not provide the minimum extent of excavation (2.4‑metre height which would be compliant with the Building Code of Australia provisions) but does propose a 2.7‑metre height, thus proposing an increased and unnecessary extent of excavation and potentially create habitable space; and 4. There was no attempt to comply with control 6.1(v) of the DCP, a control which says: On flat or gently sloping sites, any basement garage must NOT be situated substantially or completely below ground level (existing) in order to minimise excavation and apparent scale of the front elevation.
Mr Astill submitted that the only reason why the basement garage was proposed was in order to optimise the extent of the development which could be accommodated on the site consistent with the building envelope that would otherwise be derived from the Council's controls. He submitted that the DCP's controls were not directed to optimising development but, as I understood him, were directed to ensuring that development was appropriately consistent with the entirety of the suite of controls proposed by the DCP.
He submitted that, for compliance with the overall scheme of controls in the DCP, car‑parking must be integrated into such a development and must not be: 1. In front of such a development; or 2. Underneath such a development.
He submitted that parking was intended to be integrated within the ground level of the building.
He proposed that I should conclude that the desired future character for Adams Avenue, in the context of the third objective for the R2 zone, was for two‑storey residential development and not for two‑storey residential development with basement car‑parking. As there was no desired future character statement for the area generally, he proposed that the desired future character should be discerned from an understanding of the controls in the DCP, as these were an integrated suite of controls that acted together to define what the Council proposed was the future character for the area.
He submitted that the two pairs of dual occupancies (attached), on the opposite side of Adams Avenue from the site, were entirely reflective of that desired future character and were also completely compliant with the DCP's controls.
In this context, although he accepted that the relevant broad area for the purposes of the applicable zone objective was the area east of Anzac Parade, the relevant streetscape within which this objective was to be assessed was the street within which the proposed development was sought to be located. Thus, he proposed, when considering the impact of the proposed development in a streetscape context, it was to have regard to it by considering the impact of the proposed development in Adams Avenue. Context for this streetscape was to be discerned from examining the contemporary development in Adams Avenue across and up the street in the direction we walked during the course the site inspection.
Viewed in this fashion, Mr Astill submitted Mr Kelly's proposed development would constitute an undesirable and unacceptable precedent in Adams Avenue.
As a fallback position, he submitted that, even if a basement car‑park could possibly be regarded as acceptable in the Adams Avenue context, the proposed basement sought by Mr Kelly's development application was not acceptable because it was "just too big".

[23]

The Applicants' submissions in reply

Mr Tomasetti commenced his response to Mr Astill's submissions by drawing attention to s 4.15(3A)(b) of the EPA Act, a provision in the following terms: 4.15(3A) If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) …, 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) …. In this subsection, standards include performance criteria.
In this context, he submitted that Mr Kelly's proposed development was a reasonable alternative design which achieves the objectives of the car‑parking provisions of the DCP in an overall sense. He submitted that these were circumstances where these objectives are met and where the streetscape objectives are met.
With respect to the submission advanced that the basement was "too big", he rhetorically asked: How big is too big for the basement as to both its area and height?
He submitted that there were no relevant site constraints that would require the proposed basement to be any smaller than that for which consent was sought and there was no legitimate basis upon which any requirement could be imposed to make the basement any smaller.
He reiterated his primary submission that the approval of Mr Kelly's proposed development was consistent with the fifth of the R2 zone objectives - this being for promoting housing affordability.
The proposed garage, he submitted, could be seen to be integrated appropriately into the architectural structure proposed for Mr Kelly's development. In circumstances where the LEP did not say that it was not appropriate to have basements, the appropriate approach was to conclude that, although contrary to the DCP, the design was not a fundamental breach but was merely reflective of good design.
He submitted that there were no external impacts of the proposed basement and that this was a factor in favour of accepting the design.
Whilst he accepted that the streetscape included Adams Avenue, as I understood his submission, it was that, for present purposes, it was not confined to Adams Avenue and that, in a desired character sense, contextual cues were also able to be drawn in support of the design proposed for Mr Kelly's development from the other basement garage examples given in Exhibit F.
Finally, with respect to matters of merit concerning Mr Kelly's proposed development, Mr Tomasetti submitted that the Council's position in submitting that the size of the basement was excessive was capricious and lacked proper foundation.
This concluded Mr Tomasetti's submissions concerning Mr Kelly's appeal against the deemed refusal of his development application for the proposed dual occupancy (attached) at 27 Adams Avenue.

[25]

Mr Kelly's proposed development appeal

I accept Mr Player's evidence that the proposed design would optimise the amenity of the proposed development for the future residents of each of the proposed dwellings. However, as I raised with him, "optimise", in this context, could also properly be regarded as a synonym for "maximise".
I also accept the submission advanced by Mr Tomasetti that an advantage of the design proposed, with its midpoint courtyard spaces proposed for the lower habitable level, meant that each of the proposed dwellings would have the benefit of availability of cross-ventilation to the principal living areas of the proposed dwellings. As he submitted, the incorporation of this aspect of the design would satisfy the fourth of the objectives for the R2 zone by providing enhanced amenity for the residents of each proposed dwelling. This amenity aspect of the design, he correctly submitted, would not likely be available if it was necessary that at‑grade parking be provided by the insertion of garaging into the façade of the lower habitable level of any dual occupancy which might be approved on the site if Mr Kelly's proposed development was rejected.
I accept that these factors do weigh in favour of granting approval to Mr Kelly's proposed development. However, it is necessary to consider what are the countervailing elements, pressed by the Council, arising from the DCP as warranting refusal of Mr Kelly's proposal.
I have earlier noted that Mr Player relied on the planning principle in Project Venture as supporting his opinion that the design of Mr Kelly's proposed development was contextually acceptable in its streetscape presentation.
In Revelop Projects Pty Limited v Parramatta City Council [2014] NSWLEC 1167, the Commissioners confirmed that the planning principle in Project Venture remained valid. In this context, there are two observations to be made. The first, here relevant, concerns the nature of the role that planning principles are intended to serve. Essentially, they are designed to provide assistance in understanding how development proposals might be approached in circumstances where there was an absence of detailed controls in the suite of planning documents adopted by the relevant consent authority. In those circumstances, a relevant planning principle could assist to fill a lacuna arising from a consent authority's controls to give guidance as to how that aspect of an assessment should be approached. In this instance, as earlier noted in Mr Astill's submissions, there are two specific controls in the DCP (as set out at [33] to [35]) that are here applicable. On the Council's case, as I understand it, there is no relevant gap in the Council's controls.
Second, however, as I understood Mr Player's written evidence on this point, the planning principle in Project Venture was to be used to assist in addressing the third of the zone objectives in circumstances where there is an absence of a desired future character statement in the Council's planning documents or policies.
I have earlier set out the planning principle in Project Venture as extracted in Mr Player's contribution to the joint expert town planning report (see [65]). It is to be noted, particularly, that, at [24] in Project Venture, Roseth SC set out two questions to be addressed for the purposes of the compatibility assessment process arising when the planning principle was to be invoked. Those two questions are in the following terms: ● Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. ● Is the proposal's appearance in harmony with the buildings around it and the character of the street?
There is no suggestion that the first of the above questions should not be answered "yes" - that is, favourably to Mr Kelly.
I now turn to considering Mr Kelly's proposed development for the purposes of answering the second question and addressing the third of the zone objectives for the R2 Low Density Residential zone (this objective not being in identical terms to the second question posed in [24] of Project Venture).
I have earlier set out, in my description of what was observed during the course of the site inspection, the nature of the streetscape in Adams Avenue. It is, in the context of my consideration of Mr Kelly's proposed development, necessary to describe, in a little more detail, this streetscape.
Adams Avenue, to the south of the site, bends a little to the east, some 50 or so metres from the front of the site. It was not possible to view the nature of the streetscape beyond that bend. I was not requested by either Mr Tomasetti or Mr Astill to walk in that direction. However, from the front of the site, it was to be observed that, in addition to the contemporary two‑storey single residence on the allotment adjacent to the site to its south, there were many other contemporary dwelling elements in Adams Avenue in that direction on both sides of the street (this is consistent with what is shown on Attachment D, folios 122 and 123 of Exhibit D).
None of these appeared to have parking which was other than at grade with, for the contemporary residences at least, garage doors integrated into the front façade of the building.
Directly opposite the site were two pairs of dual occupancies (attached). All four of these dwellings had parking at grade with the garage doors integrated in each dwelling's front façade. As we walked toward the intersection of Adams Avenue and Nix Avenue, then turning to the north to walk along Nix Avenue to its intersection with Lyons Street, it was to be observed that all of the contemporary dwellings in Nix Avenue were ones with parking at grade, with the garage doors integrated into the front façade of the dwelling.
On the eastern side of Adams Avenue, between the site and the small neighbourhood park at the bend in the road, there were a number of dwellings which had seen better times and would appear to be ripe for redevelopment if economically viable. Several of these had vehicles or boat/jetski marine conveyances parked on the grass in the front setback. Several dwellings on each side of the street in Adams Avenue had vehicles parked in their driveways.
Although Mr Kelly's basement garage proposal would permit the removal of on‑street and/or in‑driveway parking by occupants of the proposed dwellings, such parking must be regarded as being considered by the Council to be a minor (and acceptable) impact arising from the implementation of its DCP controls banning basement garages in circumstances such as are here applicable.
I now turn to the examples of semi‑basement garages depicted in Exhibit F. There are a number of matters to be noted with respect to this material.
First, although there were six locations with respect to which material was provided of semi‑basement garages arising that had been approved by the Council, it is to be observed that two of them (Exhibit F, Tabs 29 and 31) were significantly outside the area defined by Mr Player (see [62]) as being the geographic context for consideration of the third of the objectives for the R2 zone.
Second, neither Mr Faridy or Mr Player had made any enquiries that would permit them to give evidence of, and for me therefore to have an understanding about, the reasons why the Council approved the four semi‑basement parking examples in Exhibit F that were within the relevant area for the consideration of this zone objective.
Third, to the extent that these four examples might have some potential relevance, no material is available in Exhibit F that provides any context, in a local streetscape sense, for any of these developments.
Fourth, both Mr Faridy and Mr Player expressly disavowed any suggestion that this material could be regarded as demonstrating abandonment by the Council of pursuing implementation of this zone objective or of enforcement of the relevant DCP provisions on any general basis.
Fifth, with the possible exception of the Zions Avenue site, the sites that are within the area accepted by Mr Faridy and Mr Player as being relevant for the purposes of the third of the zone objectives for the R2 zone are remote from the site that is the subject of Mr Kelly's proposed development and thus have no influence in any relevant streetscape context.
Finally, given that there is no suggestion of abandonment, it is to be observed that the four sites within the accepted area are but four locations in an area which, as can be seen from the extract of the zoning map at Annexure A to this decision, are amongst many hundreds of dwelling sites within the accepted area.
The above matters mean that Exhibit F does not provide me with anything other than very minor support for Mr Kelly's proposed development. Of very much greater significance (and determinative, I am satisfied on a factual basis) is the necessity to have regard to Mr Kelly's proposal in the more confined context of the streetscape of Adams Avenue as observed during the course of the site inspection.
In the final analysis, Mr Kelly's proposed design, if approved, would be completely alien in a streetscape sense, as the desired future character of Adams Avenue takes its necessary cues from the newer, contemporary duplex developments such as those immediately opposite.
Although the terms of s 4.15(3A) of the EPA Act are beneficial and facultative, importing some flexibility in the approach to be adopted to application of the DCP's controls, that flexibility cannot provide a basis to permit what would be the complete setting aside of a control designed to achieve compliance with the third objective for the R2 zone. Whilst the LEP also makes it clear, by cl 2.3(2), that the zone objectives are also not carved in stone and immutable, having regard to them (particularly the third of them), when understood in light of the fashion in which the Council has applied the DCP objectives, particularly its consistent application in defining the desired future character streetscape for Adams Avenue by not departing from control 6.1(v) of the DCP, is to be given significant (indeed, in my opinion on the facts, determinative) weight.
For this element of the DCP, approving Mr Kelly's proposed design would not constitute taking a flexible approach to that control; it would constitute, for the site, an abandonment of it. In the circumstances, I am satisfied that, to do so would be entirely contrary to the approach to provisions of development control plans as required by the decision of the Court of Appeal in Zhang.
Although I have determined to reject Mr Kelly's proposed development and dismiss his Class 1 appeal for the reasons outlined above, it is not appropriate that I offer any specific commentary as to the nature of what might constitute an acceptable dual occupancy (attached) design for the site (Manzie v Willoughby City Council [1996] LEC 26).