Kevin Gregory and Patricia Gregory v Central Coast Council

The Council's position

1. The Council agrees with the local objectors. It submits that the Court should refuse the DA because the development fails the character test in cl30A of the SEPP. In short, the site is not suitable for the development.
2. Clause 30 A of the SEPP provides: 30A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
3. The Council contends that the comparative exercise mandated by cl 30A requires a consideration of the design of the development in its entirety including such things as - density and scale, the number of storeys, the height, the FSR, the setbacks.

The applicants' position

1. The applicants take a different view. They contend that in considering the design of the development for the purposes of cl30A, I am precluded from taking into consideration the density, scale and height. They submit that cl 30A is subject to the non-discretionary standards in cl 29(1) and (2) of the SEPP. Clause 29 relevantly provides: 29 Standards that cannot be used to refuse consent (1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than: (a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or (b) if the development is on land within a zone in which no residential accommodation is permitted - the existing maximum floor space ratio for any form of development permitted on the land, or (c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register - the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus: (i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or (ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1. (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land,
2. The parties agree that the maximum FSR permitted under cl 29(1) (c) for this site is 1.1:1. They also agree that the FSR for the proposed development is 1.04:1.
3. Accordingly by operation of cl29 (1), I cannot refuse consent to this development on the grounds of density and scale when expressed as an FSR of 1:04:1 as it is less than the maximum standard of 1.1:1.
4. However, the applicants take this standard one step further. They contend that the FSR (density and scale of the development) cannot inform my consideration of the design for the comparative exercise under cl30A. They submit that cl 29 is a non - discretionary development standard as defined in s79 C (6) of the EPA Act. Therefore, by operation of s79 C (2) (a) of the EPA Act, I am not entitled to take those standards into further consideration in determining the development application including the consideration mandated by cl 30A of the SEPP. They submit that I must consider whether the design of the development is compatible with the character of the local area, absent any consideration of the FSR or bulk and scale of the development. According to the submission, I must restrict my consideration to such things as setback, and the massing of the development.
5. The applicants apply the same reasoning to the height of the development. By operation of cl29 (2)(a) or s 79C (2) (a) they submit that I am precluded from considering any height standard in my consideration under cl 30A. (That said, the applicants believe that there is no applicable height standard for the development because the Height Map referred to in the Wyong Local Environmental Plan 2013 (LEP) does not prescribe a height limit for this zone. And, as cl 29 (2) (a) only refers to standards in an environmental planning instrument the height/storey controls (relied upon by the Council) contained within the Wyong Development Control Plan 2013 (WDCP) are not applicable. A DCP is not a planning instrument. Consequently, in respect of height controls for the site the applicants submit the "sky is the limit."

A Central Issue

1. The above outline serves to highlight a central issue in these proceedings. Whether on a proper construction of cl30A I am allowed to have regard to the height, bulk and scale of the development. Or, put simply, is cl 30A to be read down by or subject to cl29?
2. If I can consider the design in its entirety for the purposes of cl 30A, as the Council invites me to do, then, on the evidence, it is my view that the development is not compatible with the existing local character. The applicants' planner, Mark Shanahan concedes as much when he describes the development as being "…at the upper end of acceptability". However, the debate then moves to whether the design of the development is compatible with the desired /likely future character of the local area. The applicants submit that the exhibited 2016 draft master plan informs the likely future character of the local area. Whereas the Council contends that the current planning controls direct future development for the local area.

Outcome of the appeal

1. After a consideration of the evidence and the parties' competing submissions, I do not accept that cl 29 of the SEPP constrains the analysis contemplated and mandated by cl30A. The provisions are independent and operate separately. While I appreciate that cl29 precludes me from refusing this development because of its height or bulk and scale alone, these matters remain relevant for the purposes of the consideration required by cl30 A. And, when they are taken into account with other aspects of its design it is my considered opinion that the development is not compatible with the character of the local area. I have also decided, following an evaluation of the relevant matters under s79C (1) of the EPA Act, that the site is not suitable for this particular development: s79 C (1) (e). Accordingly, I have decided to refuse development consent and to dismiss the appeal.
2. The reasons for my decision follow.

Statutory construction

1. The starting point for statutory construction is to construe legislative provisions in accordance with the ordinary grammatical meaning of the language used: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; at [78]. It is also necessary for legislative provisions to be read in the context of the instrument as a whole "so as to provide that each of its terms are intended to give effect to harmonious goals " : Heatscape Pty Ltd V Mahoney [2017] NSWCCA 135 at [36] and Project Blue Sky at [70];
2. A plain reading of the text of cl30A, in context, illustrates that the comparative character test required involves the "design of the development" in its entirety. The text does refer to separate elements of the design of the development. Nor does the text refer to compliance with standards. In fact, there is no limitation in the text as to what I may have regard to in considering 'the design of the development' for the comparative exercise under cl30A. The principles of statutory interpretation do not allow the importation of words into the text to derive a meaning from unambiguous words that is otherwise not available.
3. Whereas the text of cl 29 focuses on compliance with standards. It is also explicit and unambiguous. The clause states that I cannot refuse the development on the grounds of density and scale or height if it complies with the maximum FSR standard in an LEP or DCP (see definition of maximum FSR cl4 of the SEPP includes DCP) or height standards in an environmental planning instrument (which on the Council's interpretation includes the controls in DCP - there is no definition of height in the SEPP). The text in the cl 29 does not refer to the 'design of the development' but only aspects of the building by identifying numerical standards. Based on the text, it does not follow that compliance with the standards referred to in cl29 requires density , floor space and height to be disregarded for the purposes of a consideration of the 'design of the development' required under cl30A.
4. Putting aside s79C (2) (a) for the moment, there is no basis in the text for the submission that cl30A should be read down by cl29 . The clauses clearly operate separately and there is no inconsistency between the two clauses on the Council's interpretation.
5. If I were to adopt the applicants' interpretation of clls29 and 30A then, before undertaking the compatibility consideration under cl30A, the consent authority would need to determine which parts of the design of the development were to be considered. Clause 29 does not only deal with standards for FSR or height but landscape area, solar access, private open space, parking and accommodation size. The applicants' interpretation requires the excising of different elements of the design of the development in any given case before any consideration under cl30A. It also results in an apparent irrational outcome in some instances. For example, if the design of the proposed development was derived by reliance upon a maximum height standard under cl29 (2) (a) - and happened to be compatible with the existing character in terms of height- the applicants' interpretation of cl30A would preclude the consent authority from having regard to height in the compatibility analysis. Such an approach does not allow for a harmonious reading of the provisions so as to void inconsistency.
6. In my opinion new affordable rental housing in the form of a boarding house development is not frustrated by the Council's interpretation of clls 29 or 30 A. Clause 29(1) allows for development which achieves maximum standards (no doubt to encourage affordable housing; cl3 (b)) by precluding refusal of such development on the grounds of density and scale of the buildings when expressed as a floor space. It does not refer to the design of the development but refers to a ratio of an element of the building or buildings. Whereas cl30A requires a consideration of the compatibility of the design of development for a new boarding house with the character of the local area before development consent is granted. It does not refer to the 'buildings' as does cl29 (1), but rather the 'design of the development'.
7. The phrase 'design of the development' is not defined in cl 4 of the SEPP or the EPA Act. If I break up the phrase, the EPA Act defines 'development' in s4 to include the erection of a building but does not define the word 'design'. However, the Oxford Dictionary defines the word 'design' as 'the general form or arrangement'. In my opinion, the phrase in cl30A requires a consideration of the compatibility of the arrangement of all aspects of the development on its site including the form of the buildings proposed with the character of the local area. Not requiring 'sameness' but 'harmony' as discussed in Project Venture Development v Pittwater Council [2005] NSWLEC 191. Relevantly, refusal of a DA is not mandated if the design of the development is incompatible with the local character. The clause operates to require a consideration of compatibility - no more. It does not compromise or override the independent operation of cl29 (1) which mandates that the consent authority cannot refuse consent because of density and scale if it complies with the numerical maximum standard for FSR and height.
8. No doubt there will be circumstances where the consent authority may decide that an approval of the design of a development which is not compatible with the existing character of the local area is, after a merit assessment under s79C, warranted. For example, where there are new planning controls in place which support the proposed design and the area is in a state of transition. (Mr Shanahan believes this is the current case - I will deal with this matter in due course). However, the Council's interpretation of cl30A allows for this. Such an interpretation is also consistent with the purposive approach endorsed by Project Blue Sky; Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [36]; Tovir Investments Pty Ltd V Waverley Council [2014] NSWCA 379 at [54] to achieve the aims of the SEPP.
9. With respect to the applicants' submission that s79C (2) (a) of the EPA Act is relevant in this case I make the following observations.
10. I believe that cl 79C (2) (a) has no application to cl30A because it is not directed to a consideration of standards. Clause 30A directs the consent authority to consider the compatibility of the design of the development with the local character. This is a qualitative assessment of the design of the development and not a quantitative assessment of compliance with numerical development standards allowed under cl29. I well appreciate that I cannot refuse this development because of its FSR or height alone. But equally before I grant development consent to the DA I must consider the compatibility of the design of the development with the character of the local area from a qualitative perspective.
11. For those reasons I find that the qualitative assessment invited by cl30A is not in any way restricted by cl29. There is nothing to preclude a consideration of the location, distribution or arrangement of the FSR on the site, the design and articulation of the building, its physical impacts including its height and bulk and scale for the purposes of cl30A.
12. The applicant and the Council have handed up several decisions by Commissioners of the Court some of which address cl30A. I have read them but no not consider myself bound by them. They are factually different: Succar v Burwood City Council [2012] NSWLEC 1255, and the decision of Tuor C in Peninsular Development Australia Pty Ltd v Pittwater Council [2011] NSWLEC 1244. In any event, my findings in respect of cl 29 and 30 A of the SEPP as outlined do not appear to be inconsistent with the general view that the development standards and design consideration clauses in the various Divisions of the SEPP operate independently. Having determined this issue for present purposes, I will now deal with the consideration required under cl30A.

The character test in cl 30A

1. The parties agree that the decision of Roseth SC in Project Venture at [22] provides assistance in evaluating whether the design of the development is compatible. Below is a long quote from the planning principle -it usefully sets out the matters that may be considered when determining compatibility in a particular local context. 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. 27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape. 28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way. 29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings; in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees.
2. To undertake the comparative exercise mandated by cl30A I need to understand from the evidence the design of the development, the extent of the local area and the existing and desired /likely future character of the local area.

The design of the development

1. The Council's Statement of Facts and Contentions (Exhibit 1) describes in general terms the design of development. The detail is fleshed out in the plans (Exhibit A), the Statement of Environmental Effects (SEE) (Exhibit B) and the planners' oral and written evidence - joint report (Exhibit 4).
2. The development includes:

• 77 single rooms,
• 10 double rooms,
• 4 accessible rooms
• 9 executive suites

1. Each of the rooms contains kitchen facilities and there are no communal kitchens proposed. A communal open space is provided on the Ground floor, Level 1 and Level 2. A communal outdoor space is provided adjacent to the recreation room on the Ground Floor Level. An elevated terrace for communal recreation is provided on Level 3. Common laundry facilities are provided on the Ground Floor Level adjacent to the car parking area for 21 cars.
2. The building is generally 4 storeys with a roof height of 37.3m above ground level and a length of 67m. The building runs parallel in length with the adjoining shopping strip. The setback on this eastern boundary is between 4.5m and 6 m - there is some articulation with balconies included.
3. The building addresses Glen Road and has a front setback at ground level of 6.5m. Although the design incorporates a stepping back of the built form at the third and fourth levels providing for a greater setback to Glen Road and the some articulation of the built form. Between the building and the western boundary/stormwater drain there will be a cantilevered driveway and hard stand car park for 21 cars within an area which is 20.9m wide. The car spaces are built to the drainage reserve and will be landscaped. There are bike spaces adjacent to the bedroom windows on the western side of the development.
4. The property will have a front fence - the design of which is yet to be finally settled. A paved 15m wide driveway entry is located next to three mature Tallowwood trees (one tree is on the road reserve and the other two trees are growing in the frontage of the site). This driveway access is the only access to the at grade car park. An auto sliding gate is incorporated into the design. The SEE describes the development in the following terms: Generally, the construction of the proposed development will be supported by reinforced concrete columns and reinforced concrete floor plates. It will be clad using brickwork, Styropanel wall panels and select F.C. weatherboards. The roof will be Colourbond metal with insulation… Extensive landscaping is proposed within the setback to the Glen Road as well is in the communal open space areas the site. The 970.3 m² or 32.7% of landscaping will be predominately low maintenance native species appropriate to the location and climate…. A circulation isle 6.2 m wide has been provided. As the car parking spaces are screened by the decorative front fence and appropriately positioned landscaping there is no adverse visual impact caused by the parking area. …The facility is serviced by an accessible lift which is located adjacent to the resident's entry in the mid part of the building. Three sets of stairs are also located within development for circulation and egress.

The extent of the local area

1. The town planning experts Daniel McNamara (retained by the Council) and Mark Shanahan (retained by applicant) agree that the relevant local area for the purposes of cl30A of the SEPP include: - the site, the whole of Glen Road (beyond the roundabout), Jaques Street, Albert Street, the Ourimbah commercial shopping strip, the heritage item on the southern side of Glen Road, the real estate development on the corner with the Pacific Highway, the railway line opposite the Pacific Highway and the area up the hill to the north of the site.

The site and local area

1. The site comprises Lots 18, 19 and 20 DP 20723 with an area of approximately 2966m2. The southern boundary has approximately 47 m frontage to Glen Road. The site narrows as it extends to a northern boundary of approximately 28 m, with the eastern boundary being 79.5 m and the western being approximately 80 m. The site has a slope of approximately 3.5 m from the north-western corner to the south-western corner on the drainage line on the western side of the property. A narrow watercourse (with easement) extends along the western boundary to 600 mm pipe under Glen Road.
2. There are presently two single-storey older style dwelling houses on the land setback from Glen Road with an open garden frontage to Glen Road. Two large mature Tallowwood trees stand at the front of the site. A third Tallwood tree is located in the nature strip immediately adjacent to the trees on the site. The three trees are proposed to be retained in this development.
3. The land is zoned R1 General Residential under the Wyong Local Environmental Plan 2013 (WLEP 2013). The objectives of the R1 zone include providing for a variety of housing types and densities, and to ensure that development is compatible with the scale and character of the local area and complements the existing streetscape.
4. Development along Glen Road to the west of the site is characterised by single and double storey detached dwelling houses with open front gardens.
5. Across the road to the south of the site at no 1A Jaques Street is a single-storey Nissen Hut, identified by schedule 5 of WLEP 2013 as a 'utility structure' and an item of local heritage significance. This site, and much of the land within Jaques Street and Albert Street, is zoned R2 Low Density Residential. Existing development within this zone comprises either one or two storey dwellings. The objectives of the R2 zone are to provide for the housing needs of the community within the low-density residential environment; to maintain and enhance the residential amenity and character of the surrounding area; and to provide a residential character commensurate with the low-density residential environment.
6. The Ourimbah town centre to the immediate east of the site is zoned B2 Local Centre. The objectives of the B2 zone include to provide a range of retail, business, entertainment and community uses that serve the needs of the people who live in, work in and visit the local area; to permit residential accommodation while maintaining active retail, business and other non-residential uses at street level: and to minimise conflict between land uses within the zone and land uses within adjoining zone. The centre is distinguished by a strip of single-storey shops. The shopping strip fronts the Pacific Highway and the M1 is proximate. On the other side of the highway about 350m from the site is the Central Coast and Newcastle Railway line and station.
7. There are a range of residential uses permitted on the site, including attached dwellings, boarding houses, dwelling houses, dual occupancy, multi-dwelling housing, senior housing and residential flat building.
8. WLEP 2013 does not prescribe a maximum floor space ratio to any form of residential accommodation on the land.
9. As residential flat buildings are permitted in the R1 General Residential Zone the Council contends that Part 5.1 in Chapter 2.4 of the Development Control Plan 2013 - Development Controls for Wyong Shire (DCP) is relevant. It specifies a maximum FSR of 0.6: 1 for multiple dwelling residential developments including residential flat development.
10. It is accepted that the proposed development, at four storeys in height exceeds the DCP, if that control is applicable. That said, the applicants submit on the evidence of Mr Shanahan that the apparent height of the development has been mitigated by stepping back of the building so that it presents a two storey façade to Glen Road. Furthermore, the apparent height from the Pacific Highway will be masked by the existing commercial development over time, and this is likely to be obscured by higher development in the B2 zone. Mr Shanahan believes that the existing character of the Ourimbah township will change over time as the town centre is redeveloped in accordance with the draft master plan and that the adjoining land to the east zoned B2 - Local Centre, has the potential to be redeveloped with multi storey commercial buildings of any height and FSR (there are no FSR or height controls applying in that zone under the LEP or DCP).
11. On the basis of Mr McNamara's expert assessment the Council contends that where the LEP Map does not prescribe a maximum height it is appropriate to go the DCP controls for height. The height controls in chapter 2.4, Part 3.1.2 of the DCP state that the height of multiple dwelling residential developments within the R1 zone shall not exceed two storeys, and not have a ceiling height greater than 7 m. The objective of the ceiling control as pointed out by Mr McNamara is to encourage development that is not visually intrusive; that is consistent with the objectives of the zone; and that enhances privacy and amenity of the neighbouring residents. Part 2.1 B of the DCP 2013 prescribes a maximum height building height of 10 m for dwellings where there is no height limit prescribed by the WLEP 2013. Part 2.1(d) of Chapter 2.1 of the DCP 2013 further states that building height shall generally not exceed two storeys and three storeys dwellings will only be supported on steeply sloping sites.
12. The planners agree that the front two storeys of the development comply with the height control and that the 4 storey height of the building behind that exceeds the limit by some 4.4m. Accepting that the property to the north in King Street contains a building consisting of three storeys (with a height of 10.5m to the peak of the roof), and the real estate development on the corner is part 1 and 2 storeys the planners agree that the existing development to the west of the site in the R1 zone is consistent with the maximum prescribed 2 storey building height limit.
13. The proposed setback to the residential development to the west is greater than the required 6m with distances of between 9.5 and 20.9 m from the building to the common boundary. This is necessary in the design to accommodate the large area of hard stand car parking and driveway. The rear setback is 5m from the private open space area, again less than the minimum setback under the DCP.
14. Mr McNamara is of the opinion that each of the development controls prescribed by Chapters 2.1,2.3 and 2.4 of the DCP 2013 are reflected in the established development found within the local context of the site, and illustrate the likely future character of the locality. As there are no prescriptive standards for the building height or density contained in Chapter 5.1 of the DCP 2013 - which apply to development in the adjacent retail centre - Mr McNamara believes that it is important to have regard to the controls in Part 5.2 of Chapter 5.1 of DCP 2013. Theses controls concern the desired architectural character of the development in retail centres. They provide in respect of large building, including multi-storey mixed use buildings, that the treatment of the façade should be designed to provide character, visual legibility and a human scale. Therefore, it can be anticipated that any redevelopment of the commercial strip will incorporate façade treatments to provide character, visual legibility and a human scale. Mr McNamara is of the opinion that it is difficult to assess on the limited information provided by the applicants about the colour and materials in this development how it will respond to any future redevelopment in the commercial strip .
15. Having regard to the former Senior Commissioner's guidance in the assessment of compatibility in Project Venture, Mr McNamara is of the opinion that the proposed development is not compatible with the character of the local area which is demonstrated in part by the established character and in part by the desired future character of the locality permitted under the LEP and relevant controls applicable to these forms of development under the DCP.
16. In his assessment there are inadequate setbacks provided by the design of the development. As a result the development footprint impedes appropriate circulation space around the building and constrains the opportunity for appropriate landscaping in scale with the proposed development. The result according to Mr McNamara is a development which is jarring when compared to the established character of the locality and the character anticipated in the future under the current controls. He believes this is best demonstrated in the updated photomontage image issue F dated 12 April 2017 submitted in support of the proposed development and reproduced below.
17. Given the fact that the proposed development is considerably longer and larger than any adjoining development Mr McNamara is of the opinion that the development cannot be described as sitting in "harmony with the existing development". On the contrary. It entirely inconsistent with the objectives of the zone which seek to ensure that development is compatible with the scale and character of the local area and complements the existing streetscape. It is unsympathetic and visually intrusive and will not enhance the privacy and amenity of neighbouring residents.
18. In fact, Mr McNamara was adamant in his view that the monolithic form of the proposed development is not consistent with the existing or desired future character of local area. The DCP requires multi-dwelling residential development of this scale to be articulated in height and length and not to present with long unbroken walls. While some attempt has been made to articulate the building's length and relieve the built form with balcony elements and a stepped front setback Mr McNamara still believes that the scale of the development is overwhelming and uncharacteristic of the development in the locality. Assessment is further hampered by the limited details provided regarding the proposed building colours (including contrasting colours) and the quality of building materials that might be used to relieve the proposed development.
19. Mr McNamara is of the opinion that the scale of the development will be readily visible in the public domain and is capable of being viewed from the shopping /commercial centre, the Pacific Highway and the main northern railway line. Despite the significant setback from the site's western boundary there's very little opportunity afforded for landscaping along the western boundary or on the sites frontage. In his assessment the limited screen planting along the sites periphery will mean the visual bulk of the building will be apparent from many viewpoints and alien within the local context.
20. Mr McNamara is the view that the proximity of boarding rooms, balconies and common living areas to the sites northern and eastern boundaries and the proposed setbacks are not appropriate and may impact on the visual privacy of any future shop- top housing development on the adjoining site. He did not accept opposing Senior Counsel's proposition that any future development of the commercial development would turn its back on the Pacific Highway such as to provide for a greater setback with the subject site. Mr McNamara said that setbacks to adjoining buildings and common boundaries will determine the visual privacy of residents within the boarding rooms and potential future shop top housing development within the town centre. Part 4.3.3 of Chapter 2.4 of DCP 2013 prescribes that multiple dwelling residential allotments of three or more storeys should be set back a minimum of 6 m from side and rear boundaries to maximise building separation and protect the visual and acoustic privacy and solar access of adjacent properties.
21. The setbacks on the eastern boundary of this development are generally non-compliant with the minimum 6m setback requirement under the DCP - despite the length and height of the building. Mr McNamara is of the opinion that the reduced setback on the eastern boundary at 4.5 m at the manager's residence and generally 5m to 6m elsewhere may prejudice potential future development upon adjoining sites or compromise visual privacy. The limited landscaping and impervious area within the front setback adjacent to the Glen Road frontage is also considered to be incompatible with the existing garden streetscape. The proposed landscaping to the entry gates and hard stand parking area in Mr McNamara's opinion are inconsistent with the established residential development in the locality. Existing residential development within the R1 zones are characterised by setbacks between 5m and 7 m and a single access crossing and an open landscape frontage. Mr McNamara does not believe that the proposed landscaping and treatment on the western half of the site frontage is compatible with the streetscape in which the building is located.
22. The proposed car parking design with a concrete parking slab cantilevered over a revegetated watercourse will have an inappropriate relationship between the built form and the natural environment. The proposed hard stand area, used for vehicular access and manoeuvring, parking and bin storage, located within 2.5 m of the site frontage, and within 1.25 m of the site's western boundary, cantilevered across an existing natural watercourse is uncharacteristic of any other element in the local area. Its footprint severely constrains the opportunities for the establishment of deep soil zones and for planting in scale with the proposed development along the site's frontage and western boundary.
23. As stated earlier Mr Shanahan believes the design of the development is at the "upper end of acceptability" in terms of it compatibility with the existing character of the local area. And, while Mr Shanahan describes the development as 'substantial" he believes "…the building form is by no means unrelieved and presents an interesting and attractive precedent for future more intensive development of the town centre"( p15 Exhibit 4).
24. Mr Shanahan supports the arrangement of the massing of the development vertically rather than spread horizontally over the site. He believes a lower, wider building - accommodating the allowable floor space - would be bulkier. In maintaining his position - and relying on the use of the term 'bulk' in Veloshin v Randwick Council [2007] NSWLEC 428), Mr Shanahan said that the SEPP anticipates a higher boarding house than existing development and this does not make it incompatible. To his mind the proposed development is still capable of existing in harmony which is the relevant compatibility test in Project Venture. He referred to the fact that the Council has approved three storey commercial developments in the vicinity of the site and suggested this evidenced some inconsistency by the Council in the application of the two storey control. He put this down to the fact that the area is in a state of transition. With that in mind Mr Shanahan said that the proposed development provides for a graduated transition in height from potentially higher development in the B2 zone to lower development in surrounding areas.
25. In the ultimate, Mr Shanahan suggested that significant weight should be attached to the compatibility of the development with the future character of the local area under the draft master plan rather than the existing character under the current controls..

What weight should be given to the draft master plan?

1. Based on the planning principle in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at [92] Mr Shanahan is of the opinion that that the draft master plan is a relevant consideration under s79C (1) (e) - public interest . He believes that it informs the future character of the local area for the character test in cl30A: Stockland at [87]. At pp15 and 16 of his statement, Exhibit K, he sets out the community consultation and research undertaken to date and concludes that: Given the extensive research and community consultation on which it is based, its implementation of broader strategic policy, the inconsistency of DCP with that broader policy and the likelihood of it having been adopted by now were it not the Councils intervening amalgamation, it is appropriate that it be given significant weight, at least in terms of the overall extent and type development proposed to the town centre.
2. Mr Shanahan is of the opinion that the proposal is consistent in terms of the general positioning and its overall bulk and scale with the draft master plan. While it does not propose commercial uses on the ground floor, its provision of a substantial amount of student accommodation close to the centre of the town will generate a large amount of pedestrian activity, support local businesses with additional custom and contribute strongly to the town's integration with the tertiary campus. The proposal will thereby achieve the activation objectives of ground floor commercial and, overall, will act as a catalyst for the substantial redevelopment envisaged by the draft master plan.
3. Mr McNamara has the opposite opinion. He believes that no weight should be given to the draft master plan in determination of the desired future character of the locality or in relation to planning controls or principles that may apply to the site.
4. Although the draft master plan was exhibited by Council between 18 April and 16 May 2016 no report following the exhibition has been returned to the Council such as to elevate its status. Mr McNamara said that a number of concerns have been raised in submissions received in the notification period and that Council officers have sought additional information from consultants to enable them to respond to these concerns. Section 5.2 of the draft master plan identifies that amendments to the existing planning controls within the Town Centre would be required to support the changes proposed by this draft master plan. These may include amendments to Council's LEP to allow for a high density of commercial and residential development, and the application of built form guidelines through, for example, amendments to Council's DCP. The overall objectives of these amendments would be to give effect to the desired future character for the Town Centre.
5. Indicative built form guidelines have been developed to support the structure and desired future character proposed by this draft master plan. These may form the basis of a more comprehensive DCP that is consistent with the Council's other planning controls and relevant State legislation such as the State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) and associated Apartment Design Guidelines.
6. Section 6.1 of the draft master plan identifies how change will be implemented and notes that once finalised, the Land Use Strategy and Town Centre Masterplan will guide Council decisions relating to land use planning and the future development of lands within the Ourimbah Study Area. The changes recommended in the Land Use Strategy and Town Centre Master plan may lead to:

• The rezoning of land, which Council will consider as an amendment to the LEP;
• The application of place-specific development guidelines, which Council may consider is an amendment to the DCP;
• The application of funding mechanisms, which Council may implement through a Local Development Control Plan. Any changes to the planning controls were subject to further investigations, engagement with key stakeholders and public consultation, to consider the range of issues affecting growth potential. This will include more detailed investigations were flooding, biodiversity, transport, heritage etc.

1. Putting aside the reliability or relevance of the draft master plan Mr McNamara pointed out that the draft shows the site and immediate environs as having retail and commercial development on the ground floor to activate the public domain and shop top housing above. If that were the future then in his assessment the proposed development would not be consistent with that vision for development of the site. Development of the site as illustrated in the draft master plan would include activation of the Glen Road in the Jaques Street extension, with the ground floor than any proposed development constructed to these respective boundaries, and comprising non -residential uses. On that basis Mr McNamara believes that the proposed development might well detract from the character of the future town centre by potentially depriving its core of activated street frontages.

Finding on weight to be given to the draft master plan

1. Given the uncertainty of the draft master plan's future content, the timing for its adoption, the impact upon individual properties - in the nature of more detailed investigations that might inform the future built form through amendments to the LEP in DCP I agree with Mr McNamara that it should be given little weight in informing the desired or likely future character of the local area for the purposes of cl30 A of the SEPP. Its only relevance in the assessment of this application is as a matter of public interest pursuant to section 79C (1) (e).

Consideration/findings

1. After careful consideration of all of the evidence including my own observations while standing in the local area (as defined by the planners) I have decided that the design of the development is not compatible with character of the local area. Put simply, the development is not harmonious with the existing low-density residential development or the adjoining single-storey commercial strip or the anticipated future development in this local area under the current planning controls.
2. I agree with Mr McNamara that the massing of the built form in the design of the development is not appropriately distributed over the site. It has been arranged vertically rather than spread horizontally over the site to produce a tall narrow building that is entirely incompatible with the existing development in Glen Road and the anticipated likely /future development for the surrounding low-density residential area under the current planning controls and that anticipated in the adjoining commercial area. The built form is "monolithic and lacking in articulation and appropriate setbacks to adjoining development". The stepped front facade - which quickly extends abruptly to 4 storeys in height - behind a 47m long front fence with a 15 m wide driveway entry (and automatic gate) - even with the proposed landscaping and retention of the trees - is entirely out of character with the existing streetscape in Glen Road and other dwellings in the R2 zone opposite. So too is the large at grade hard stand car park cantilevered over the existing open drainage reserve. It will not be softened or hidden by the proposed fence or the landscaping in the reduced frontage to Glen Road.
3. The building is as long as the adjoining commercial/retail strip and in my opinion inadequately setback from that eastern boundary. I accept Mr McNamara's evidence that any future redevelopment of the commercial site on the east will be compromised by the minimum setback of the proposed development from that boundary. It is reasonable to expect at least a 6 metre side setback on this site to ensure visual and acoustic privacy from any future 3 storey residential flat building or shop top housing on the adjoining sites within the commercial centre. The proposed development provides a minimum setback of 4.1m to the manager's residence. The development is consistently less than 6 metres from the boarding rooms, balconies and common living rooms to the sites' northern and eastern boundaries. The DCP requires a 12m separation for buildings of 3 storeys and there is no satisfactory reason why the proposed design fails to achieve its share of the minimum side setback on the eastern boundary of the site.
4. The objective of the ceiling height control of the DCP in Chapter 2.1 is to encourage development that is not visually intrusive, that is consistent with the objectives of the zone and that enhances privacy and the amenity of neighbouring residents. The proposed design is jarring in the landscape at four storeys when considered against the existing commercial development which is also part of the local area even after a consideration of the three-storey commercial building in King Street to the north.
5. While I accept that the test of compatibility with the existing or desired future character does not require sameness, and in some circumstances, a large more dominant building on a landmark site is acceptable I do not believe that the proposed development falls into that category. The substantive, largely unrelieved building form - some 67 m in length - the same length as the shopping strip, is in my opinion uncharacteristic of any other development in the relevant local area presently or anticipated in the future under the existing controls.
6. I have considered the material in the Council's bundle including the objectors concerns and the comments and assessments by the JRPP in respect of earlier incarnations of the redevelopment of this site for a boarding house under the SEPP. They are relevant background information but I must assess the proposal on the evidence as presented before me in respect of the current design. I agree entirely with Mr McNamara's expert assessment and the local residents and find that the site is not suitable for this development; s79C (1) (e).

Orders

1. For the above reasons, as indicated at the outset of my judgment, I have decided to refuse development consent and dismiss the appeal. Susan Dixon Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 August 2017