Kool Family Developments Pty Ltd v City of Ryde Council

The proposal

1. The DA, as amended, seeks development consent for the demolition of the existing buildings on the Site and the erection of multi dwelling housing comprising 24 dwellings (nine of which will be adaptable dwellings) (Proposed Development). These will be constructed in two rows of terrace style apartments over two levels of basement parking which will accommodate 26 car parking spaces, 4 motorcycle parking spaces and a rack for the storage of 10 bicycles.
2. Five of the proposed dwellings will be "affordable housing" within the meaning of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP) which continues to apply to the DA despite its repeal by the State Environmental Planning Policy (Housing) 2021 (Housing SEPP): see Sch 7A, s 2.
3. The Proposed Development will include: 1. 9 x 2 bedroom dwellings; 2. 14 x 3 bedroom dwellings; and 3. 1 x 4 bedroom dwelling.

The disposal of the appeal

1. For the reasons which follow I have decided that development consent to the DA should be refused. In my view a proper consideration of the objectives of the R2 Low Density Residential zone and also the compatibility of the Proposed Development with the character of the local area require the refusal of the DA.
2. For the reasons set out later in this judgment I have found that the Proposed Development would be of a scale that is antipathetic to the first objective of the R2 Low Density Residential zone. That scale would be such that the Proposed Development would not provide for the housing needs of the community within a low density residential environment.
3. I have also concluded that the design of the Proposed Development is not compatible with the low density residential character of the local area. The grant of development consent to the Proposed Development, given its scale, would, in my assessment, result in multi dwelling housing becoming the dominant form of development in the local area, significantly changing the character of the locality.

The Site

1. The Site is rectangular in shape and has an area of 6,878 m2. It is adjacent to Blaxland Rd and falls away from Blaxland Rd by some 16.26 m to the rear boundary. The fall occurs over a distance of 58.37 m resulting in an average gradient of 1:3.6.
2. There are currently five (5) detached, two-storey, brick and tile, dwelling-houses on the Site. The DA seeks consent for the demolition of these dwellings as part of the Proposed Development.
3. An existing drainage easement 2.4 m wide traverses that part of the Site comprising Lots 11 and 12 DP 6367.
4. There are approximately eighty (80) trees on the Site, some of which form part of the Blue Gum High Forest (BGHF) vegetation community. The BGHF vegetation community is listed as a Critically Endangered Ecological Community (CEEC) under the Biodiversity Conservation Act 2016 (BC Act).

Environmental Planning and Assessment Regulation 2000

1. The Environmental Planning and Assessment Regulation 2000 (EPA Regulation) was repealed by the Environmental Planning and Assessment Regulation 2021 (2021 Regulation) on 1 March 2022. However, the EPA Regulation continues to apply instead of the 2021 Regulation to a development application made but not finally determined before that date: 2021 Regulation, Sch 6 Pt 1 s 3. The DA was made before but had not been finally determined by 1 March 2022, so the EPA Regulation continues to apply to the DA.
2. The DA has been made with the consent of the owners of the Site in accordance with cl 49(1)(b) of the EPA Regulation. A copy of each consent is contained in Ex B, vol 2.
3. Clause 2A(1) of Sch 1 to the EPA Regulation requires a development application for any BASIX affected development to be accompanied by a BASIX certificate for the development. The proposed development is a BASIX affected development as defined in cl 3(1) of the EPA Regulation. A BASIX Certificate (Certificate Number 786157M­­_06) prepared by EPS dated 15 November 2021 accompanies the DA.

Zoning

1. The Site is within Zone R2 Low Density Residential under the Ryde Local Environmental Plan 2014 (LEP). The Proposed Development is "multi dwelling housing" for the purposes of the LEP. The expression "multi dwelling housing" is defined in the Dictionary of the LEP as follows: multi dwelling housing means 3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building.
2. When the DA was lodged with the Council, development for the purpose of multi dwelling housing was permissible with development consent on land within Zone R2 Low Density Residential. After the DA had been lodged, the LEP was amended so that development for that purpose became prohibited: Ryde Local Environmental Plan 2014 (Amendment No 28) (the Amending LEP). The Amending LEP, which came into effect on 5 March 2021, does not apply to development applications that had been made but not finally determined before that date: cl 1.8A(3). As the DA was made on 29 July 2020, and had not been finally determined before 5 March 2021, the amendment to the LEP made by the Amending LEP does not apply to the DA.
3. Clause 2.3(2) of the LEP provides that 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. The objectives of Zone R2 Low Density Residential are: • 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 provide for a variety of housing types.
4. My consideration of these objectives is set out in some detail later in this judgment.

Height and floor space ratio

1. Clause 4.3 of the LEP provides that the height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. The Height of Buildings Map prescribes a maximum height of 9.5 m for any building on the Site and the Proposed Development complies with this development standard.
2. Clause 4.3A(2) of the LEP provides that, despite clause 4.3, the maximum height of multi dwelling housing on land in Zone R2 Low Density Residential is five metres for any dwelling that does not have a road frontage. The Proposed Development also complies with this development standard.
3. Clauses 4.4 and 4.4A of the LEP both contain maximum floor space ratio (FSR) development standards. However, cl 4.4A(2) provides that cl 4.4 does not apply to development for multi dwelling housing on land in Zone R2 Low Density Residential. Consequently, the LEP does not specify any FSR development standard for the Proposed Development.

Earthworks

1. Clause 6.2(3) of the LEP provides that, before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters - (a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
2. There is insufficient information before the Court to enable the Court to consider these matters. Had it been otherwise appropriate to grant development consent, additional information would have been required to address the matters set out in cl 6.2(3).

Stormwater management

1. Clause 6.4 applies to all residential land and provides in subcl 6.4(3) that development consent must not be granted to development on land to which the clause applies unless the consent authority is satisfied that the development - (a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and (b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and (c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.
2. There is insufficient information before the Court to enable the Court to consider these matters. Had it been otherwise appropriate to grant development consent, additional information would have been required to address the matters set out in cl 6.4(3).

State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH)

1. On 26 November 2021, the SEPP ARH was repealed by SEPP Housing. However, the provisions of the SEPP ARH continue to apply to the DA: SEPP Housing, Sch 7A, s 2.
2. Clause 13 of the SEPP ARH provides that the maximum FSR for development to which the clause applies is the existing maximum FSR for any form of residential accommodation permitted on the land on which the development is to occur plus a bonus, the size of which depends on the percentage of the development that will be used for affordable housing. Under the LEP, the existing maximum FSR for dwelling houses is 0.5:1. The FSR of the Proposed Development is 0.345:1 which is less than that permitted by the SEPP ARH.
3. Clause 15 of the SEPP ARH provides that a consent authority must not consent to development to which the clause applies unless it has taken into consideration: (a) the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004, (b) for development for the purposes of manor houses or multi dwelling housing (terraces) - the Low Rise Housing Diversity Design Guide.
4. In relation to cl 15(a), the DA is accompanied by a checklist prepared by CD Architects (Ex C, vol 2) which sets out in detail the extent to which the Seniors Living Policy: Urban Design Guidelines for Infill Development (Seniors Living Guidelines) have been taken into account in the design of the Proposed Development. I have taken this into consideration in determining the DA. In relation to cl 15(b), the Proposed Development is not for the purpose of manor houses or multi dwelling housing (terraces) as defined in the Low Rise Housing Diversity Design Guide (Design Guide). Clause 15 of the SEPP ARH therefore does not require consideration of the Design Guide in the determination of the DA.
5. Clause 16A of the SEPP ARH provides that a consent authority must not consent to development to which the clause applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. The parties differed as to whether the design of the Proposed Development will be compatible with the character of the local area and I have set out my consideration of this issue in some detail later in this judgment.
6. Clause 17 of the SEPP ARH provides that a consent authority must not consent to development to which that clause applies unless conditions are imposed by the consent authority to the effect that - (a) for 10 years from the date of the issue of the occupation certificate - (i) the dwellings proposed to be used for the purposes of affordable housing will be used for the purposes of affordable housing, and (ii) all accommodation that is used for affordable housing will be managed by a registered community housing provider, and (b) a restriction will be registered, before the date of the issue of the occupation certificate, against the title of the property on which development is to be carried out, in accordance with section 88E of the Conveyancing Act 1919, that will ensure that the requirements of paragraph (a) are met.
7. I am satisfied that condition 5 of the agreed draft conditions of consent (Ex H) satisfactorily addresses the requirements of cl 17 of the SEPP ARH.

State Environmental Planning Policy (Resilience and Hazards 2021) (Hazards SEPP)

1. State Environmental Planning Policy (Resilience and Hazards) 2021 applies to the Site. Section 4.6(1) provides that a consent authority must not consent to the carrying out of any development on land unless - (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.
2. The DA is accompanied by a Preliminary Site Investigation report prepared by Martens Consulting Engineers dated October 2016 (Ex C, Vol 2, Tab 15) which concludes that the Site has been used for residential purposes since at least 1943. While the report identifies some potential contamination sources (including asbestos, pesticides, heavy metals and contaminated fill), it concludes that, overall, the Site "is considered to have a low risk of contamination and poses a low potential risk of harm to human health and the environment". The report does, however, recommend that a detailed site investigation be carried out following the demolition of the existing buildings to determine whether there are any residual impacts from the past use of the site.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP)

1. Section 2.119 of the Transport SEPP applies to the DA because the Site has a frontage to a classified road, Blaxland Rd. Subsection 2.119(2) of the Transport SEPP provides that a consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that- (a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and (b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of - (i) the design of the vehicular access to the land, or (ii) the emission of smoke or dust from the development, or (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and (c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.
2. I am satisfied that there is no practicable alternative to providing access to the Proposed Development from Blaxland Road. I am also satisfied that the Proposed Development, which will replace the six existing driveways with a single point of entry will not adversely affect the safety, efficiency and ongoing operation of Blaxland Rd. In this regard the Applicant's traffic expert, Mr Chris Palmer gave evidence that (Ex 7 at [11]) that the proposed driveway design and placement will not affect vehicular movements along Blaxland Rd "at all". The Council's traffic expert, Mr Alex Zhu, did not disagree, although he expressed the view (Ex 7 at [17]) that the safety of vehicular access movements to and from the driveway could be improved through appropriate signage, line-marking and other traffic management devices which he said could be required as a condition of consent if the development is granted development consent. Conditions to this effect are included in the parties' agreed draft conditions (Ex H) - see conditions 65, 84 and 137. I also note that Transport for NSW by letter dated 16 November 2021 (Ex 10) has given its concurrence to the construction of the proposed access pursuant to s 138 of the Roads Act 1993.
3. The Proposed Development is of a type that is sensitive to traffic noise. Whether the Proposed Development is appropriately located and designed, or includes measures, to ameliorate potential traffic noise within the Site was the subject of expert evidence by the parties' acoustic experts (Ex 6).

Public submissions

1. The DA was advertised between 10 August 2020 and 4 September 2020 as the result of which the Council received 10 submissions. The issues raised by those submissions were summarised in the Council's statement of facts and contentions as follows: 1. Depth of excavation 2. Building height 3. Inadequate provision of affordable housing 4. Overlooking and loss of privacy 5. Non preferred location for multi dwelling housing 6. Excessive tree removal 7. Flooding and land slip risks 8. Impacts to services and facilities 9. Traffic and parking 10. Stormwater 11. Dwelling density 12. Bulk and scale of the development 13. Acoustic impacts
2. Three of the residents also gave oral evidence on site at the commencement of the appeal on 17 November 2021. Notes of their evidence were taken by the parties' solicitors and became Ex 17. The residents raised concerns about stormwater management, erosion control, flooding, limited open space, tree loss, overdevelopment, excessive slope, inaccessible affordable housing, incomplete geotechnical assessment and overlooking.

Expert evidence

1. Mr David Furlong (engaged by the Applicant) and Mr Ben Tesoriero (engaged by the Council), town planners, and Mr Rohan Dickson (engaged by the Applicant) and Ms Gabrielle Morrish (engaged by the Council), urban designers, conferred and prepared a joint report (Ex 4) (Planning JER).
2. Ms Narelle Sonter (engaged by the Applicant) and Mr Greg Tesoriero (engaged by the Council), landscape architects, Mr Chris Moore (engaged by the Applicant) and Dr David Robertson (engaged by the Council), ecologists, Ms Melanie Howden (engaged by the Applicant) and Mr Greg Tesoriero (engaged by the Council), arborists conferred and prepared a joint report (Ex 3) (Ecology JER). Mr Moore and Dr Robertson conferred and prepared a supplementary joint report (Ex 13) (Ecology Supplementary JER).
3. Mr Howard Moutrie (engaged by the Applicant) and Mr Mark Relf (engaged by the Council), accessibility experts, conferred and prepared a joint report (Ex 5) (Accessibility JER).
4. Mr Shahzada Rizvi (engaged by the Applicant) and Mr Linton Speechley (engaged by the Council), geotechnical engineers, conferred and prepared a joint report (Ex 9) (Geotechnical JER).
5. Mr Chris Palmer (engaged by the Applicant) and Mr Alex Zhu (engaged by the Council), traffic engineers, conferred and prepared a joint report (Ex 7) (Traffic JER).
6. Mr Osman Chowdhury (engaged by the Applicant) and Mr Daniel Pearse (engaged by the Council), stormwater engineers, conferred and prepared a joint report (Ex 8) (Stormwater JER).
7. Mr Victor Fattoretto (engaged by the Applicant) and Mr Steven Cooper (engaged by the Council), acoustic engineers, conferred and prepared a joint report (Ex 6) (Acoustic JER).
8. There were no areas of disagreement in the Traffic JER, Geotechnical JER and Stormwater JER and there was no oral evidence given by those experts. The other experts all provided oral evidence to supplement the evidence contained in the various written reports.
9. The Planning JER (Ex 4) included a further set of section plans (Further Section Plans). The Applicant did not seek to amend the DA to incorporate the Further Section Plans and the Council is highly critical of this, arguing that it would be "inappropriate and procedurally unfair" for the Applicant to rely on the Further Section Plans where: 1. The applicant made a deliberate, forensic choice to withhold an amendment application; 2. Not all of the relevant experts have reviewed the version of the proposal (and conditions) referred to in the Applicant's submissions; and 3. The consequence is that the Court and the Council are unable to subject the proposal to appropriate scrutiny.
10. There is no doubt that, in the determination of the appeal, the Court has the power to impose conditions that modify the details of the development the subject of the DA: EPA Act, s 4.17(1)(g). Of course, in doing so, the Court cannot impose a condition that significantly alters the Proposed Development: see Mison v Randwick Municipal Council (1991) 23 NSWLR 734; 73 LGRA 349. In my view, a condition which alters the Proposed Development in the manner depicted in the Further Section Plans would not be a significant alteration.
11. I do not accept that imposing conditions which refer to the Further Section Plans would result in any procedural unfairness for the Council. The Planning JER was filed on 15 November 2021. The hearing of the appeal has, for various reasons, extended over a number of hearing dates since then and the Council and its various experts have had ample time to consider and comment on the Further Section Plans to the extent that they wished to do so.

The contentions in the appeal

1. The contentions ultimately relied on by the Council are set out in its Amended Statement of Facts and Contentions filed on 10 May 2022 (Ex 1). This raised the following contentions: 1. The subject site is unsuitable for multi dwelling housing development as it is in a non-preferred location for multi dwelling housing due to the Site's slope and presence of significant vegetation identified in "Urban Bushland in the Ryde LGA", April 2001. The number and type of dwellings proposed results in a built form outcome that is inconsistent with the objectives of the R2 Low Density Residential zone. 2. The multi dwelling housing development is a poorly planned response to the site's constraints and the low density residential character of the local area. This is evidenced through the proposal's inability to achieve compliance with Council's site planning controls for multi dwelling housing under Section 3 of Part 3.4 of the Ryde Development Control Plan 2014 (DCP). 3. The proposal includes a poor building form as demonstrated by the development's inability to achieve satisfactory compliance with the development controls under Section 4 of Part 3.4 of the DCP. 4. The multi dwelling housing development results in a medium density housing form that is incompatible and unsympathetic with the conventional detached low density residential accommodation that characterise the local area. The proposed development is also incompatible with the desired future character of the R2 zone. 5. Inadequate parking is provided for the number of dwellings proposed on site. 6. The proposed development is not in the public interest. 7. The proposed development is inconsistent with the commitments of the submitted BASIX certificate. 8. The Waste Management Plan states that all bins and bulky waste will be collected from the bin Collection Room, however only the waste and recycling will be serviced on site as the swept path for the collection truck only allows for an 8.8 m Medium Rigid Vehicle. The garden organics bins and the Bulky Waste Cleanup require a 10.8 m Heavy Rigid vehicle to service them. The bulky waste storage room is shown on the plans as 10 m2, however the Waste Management Plan states only 5 m2. 9. The DA does not contain sufficient information in order to determine biodiversity impacts. The DA does not meet the requirements of the BC Act and is likely to significantly affect threatened species, particularly BGHF, such that it is likely to be placed at risk of extinction or the composition of its ecological community may be substantially and adversely modified in composition. The Proposed Development has not been assessed against the Biodiversity Offset Scheme Threshold in cl 7.1 of the Biodiversity Conservation Regulation 2019 and the Arboricultural Impact Assessment provided does not satisfy the minimum requirements for Arboricultural Reports as specified by AS4970 - 2009.
2. The Applicant's written submissions filed on 5 July 2022 (AS) grouped the issues somewhat differently: 1. Character 2. Site slope and suitability 3. Number of storeys 4. Amenity and communal and private open space 5. Accuracy and adequacy of information provided 6. Public interest 7. Ecology 8. Accessibility 9. Acoustic impacts
3. The Council's Written Submissions filed on 24 August 2022 (CS) followed much the same order.

Character

1. The contention in relation to character has two aspects. One relates to the consent authority's obligation under cl 2.3 of the LEP to have regard to the objectives of the zone in determining the DA. The other, which arises under cl 16A of the SEPP ARH, relates to the consent authority's obligation to take into consideration whether the design of the Proposed Development is compatible with the character of the local area. There is obviously some overlap between the two aspects of the contention and much of the expert evidence is relevant to both even though it is often expressed as relating to only one.
2. Clause 2.3(2) of the LEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within that zone. I have already set the zone objectives out at [21]. The two objectives relevant to the Proposed Development are the first and third: • To provide for the housing needs of the community within a low density residential environment. … • To provide for a variety of housing types.
3. Clause 16A of the SEPP ARH provides that a consent authority must not consent to development to which the clause applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

The expert evidence on character

1. In the Planning JER the planning and urban design experts agreed (at Ex 4 at page 3) that: 1. All multi dwelling housing is now prohibited in the R2 zone and no further development of this type of housing can occur within the surrounding context. 2. There is a savings provision that applies to the DA. 3. There is no other residential development in the surrounding visual context, particularly on the south western side of Blaxland Rd, that has a large, above ground, double ramp, helix structure providing access to large basement car parking. 4. There are no other attached two storey terrace type buildings evident on either side of Blaxland Rd in the visual catchment and certainly not on the south western side of the road.
2. While the Applicant's urban design expert, Mr Dickson, agreed with the statements contained in par [61(3)-(4)] above, he says that "292 Blaxland Rd is a 3-storey development that reads as a 1 storey development from the street".
3. The Applicant's planning expert, Mr Furlong, gave evidence (Ex 4, [0.7]) that the future character of the area will effectively be the same as the current character and "that character includes medium density housing".
4. Mr Dickson gave evidence (Ex 4, [0.8] to [0.10]) that the existing built form in the local area is characterised by front setbacks that range between 5.5 m and 14.5 m, side setbacks that are between 1 m and 6 m and a mix of single and two storey buildings. His evidence was that vegetation at the street frontage is sporadic and that, even when vegetation is dominant at the street frontage, glimpses of built form, typically roof forms, are visible at street level.
5. Mr Dickson's evidence was that along this stretch of Blaxland Rd development comprises "predominantly detached residential dwellings with relatively even spacing between built forms" (Ex 4 at page 7).
6. Mr Dickson's evidence was that the Proposed Development will provide a balance between built form and open space and that landscaping, which will include large deciduous trees, small evergreen trees and screen hedges, will complement the landscaping on adjoining properties. He says that the Proposed Development will provide:

• Varying pitched roof forms;
• Windows that are orientated vertically;
• Verandas for dwellings fronting the street; and
• A mixture of rendered and face brick (Ex 4, [0.11]).

1. Mr Dickson's evidence was that the orientation of the proposed dwellings will be compatible with the existing pattern of development and that the proposed setbacks to the street, side and rear frontages will minimise the apparent bulk of the development. Landscaping within the setbacks, on his evidence, will provide a buffer between the Proposed Development and neighbouring development. Mr Dickson also gave evidence that breaks between dwellings in the Proposed Development will break up the visual bulk of the built from as perceived from the street.
2. Mr Dickson gave evidence that one of the existing multi dwelling housing developments provides a driveway with vehicular access to a basement level (Ex 4 at page 6) and that "Similarly to nearby multi-housing development, the proposal is characteristic of… private driveway into basement car parking off Blaxland Road" (Ex 4 at page 7).
3. Mr Dickson concludes that the Proposed Development is "largely compatible with the existing and desired future character of the area".
4. The Council's planning expert, Mr Ben Tesoriero, takes a different approach. In his opinion, the fact that multi dwelling housing is otherwise now prohibited means that, while the Proposed Development remains permissible with development consent, the proposed multi dwelling housing is a land use that is unrepresentative of the desired future character contemplated by the current R2 Low Density Residential zoning. His evidence (Ex 4, [0.31]) is that the recent prohibition of multi dwelling housing in the R2 zone "is a critical reason why the proposed development is incompatible with the desired future character of the local area".
5. Mr Tesoriero did, however, acknowledge that there are a number of examples of multi dwelling housing in the local area. His evidence (Ex 4 at page 12) was that these developments are "legacies of historic planning instruments", none of which was approved under the LEP or its predecessor, the Ryde Local Environmental Plan 2010 and date back to the Ryde Planning Scheme Ordinance. He says that they are "far removed from, and in no way represent, the 'desired future character' for the R2 Low Density Residential Zone".
6. Mr Tesoriero gave evidence (Ex 4 at page 13) that the proposed two large rows of dwellings along Blaxland Rd will result in a building of more than 30 m in length which he believes will be "overwhelming" and will not respect the existing rhythm of buildings in the streetscape which he says are typically broken up into smaller components. On his evidence, the Proposed Development will result in multi dwelling housing becoming the dominant form of development in the local area and, given its bulk and scale, will "drastically change" the character of the locality.
7. Mr Tesoriero also gave evidence (Ex 4 at page 14) that the basement driveway ramps extend some 29 m across the frontage of the Site and says this structure will be "prominent and unique" in the streetscape and not something one would generally anticipate within a low-density residential environment. He also says that landscaping is an important element of local character, yet the Proposed Development will remove "sixty (60) trees, including large, mature and visually prominent trees that contribute positively to the landscape setting of the area".

Applicant's submissions on character

1. The Applicant submits that the local area is defined by its eclectic mix of development which includes several medium density housing developments, the heritage listed water towers, the Sovereign Grace Bible Church, a 7-Eleven service station and a number of single dwelling houses.
2. The Applicant submits that the fact that other multi dwelling housing was approved or constructed some 20 years ago does not negate the fact that such development exists and will continue to exist for the foreseeable future, as will other development such as the water towers. When considering the desired future character for the local area, the Applicant argues that the Court should not ignore the existing multi dwelling housing and other existing development in the area.
3. The Applicant submits that the Proposed Development is not the only development in the local area that has access by way of a ramp to basement car parking and points to the existing development at 335 - 337 Blaxland Rd as another example of multi dwelling housing that has a ramp to underground parking. It also points out that the provision of a single driveway was a requirement of Transport for NSW and that the ramp is a consequence of the Council's requirement for a garbage truck to be able to enter and exit the Site in a forward direction.
4. The existing single dwellings are, the Applicant submits, not the highest and best use of the Site and a significant proportion of the existing single dwellings is likely to be replaced with multi dwelling housing (if the DA is approved) or dual occupancies.
5. The Applicant submits that the very broad range of development types in the local area gives the Court more latitude to find that the Proposed Development is capable of existing in harmony with that other development, "because of the apparent disharmony that already exists".
6. The Applicant also submits that cl 16A of the SEPP ARH does not preclude the grant of development consent if the Court finds that the Proposed Development is not compatible with local area: Fandakis v Canterbury-Bankstown Council [2021] NSWLEC 1166 ("Fandakis") at [51]; Madss Properties No 2 Pty Ltd ATF Newtown Property Trust v Blacktown City Council [2021] NSWLEC 1053 ("Madss") at [38].
7. In relation to consistency with the zone objectives, the Applicant submits that, in accordance with the planning principle enunciated in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 ("BGP Properties") planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted and that, in most cases, it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned if the design results in acceptable environmental impacts (BGP Properties at [117] and [118]).
8. The Applicant also refers to the more recent decision of the Chief Judge in Jeffrey v Canterbury Bankstown Council (2021) 250 LGERA 340; [2021] NSWLEC 73 (Jeffrey) and in particular His Honour's explanation at [64]) that: "…The classification in the Land Use Table for a zone of the purposes of development that are permitted with consent creates a presumption that development for any of those purposes is consistent with the objectives of the zone. If development for any of those purposes inherently is inconsistent with the objectives of the zone, it would not have been classified as being permitted with consent. For this inquiry, there is no warrant to look at the particular features of any proposed development for that purpose to ascertain whether the development is consistent with the objectives of the zone - the second point made in BGP Properties - because the inquiry is only concerned with the consistency of development for a purpose permitted with consent with the objectives of the zone."
9. Relying on this passage, the Applicant submits that, in circumstances where multi dwelling housing is taken to be permissible in the R2 zone, it is to be expected that the Proposed Development is consistent with the objectives of the zone and the Court will approve the DA because it relates to a permissible purpose. This is subject to an assessment of the Proposed Development confirming that its environmental impacts are acceptable.
10. The Applicant also submits that, in any case, the Proposed Development is consistent with the zone objectives. It observes that the third objective is "to provide for a variety of housing types" and submits that "it can be assumed that each of the permissible uses in the R2 zone is to be considered as one of the "compatible land uses": see Ingenia Communities Pty Ltd v Mid-coast Council [2021] NSWLEC 1131 at [38]".
11. Finally, the Applicant submits that there is no requirement for the Proposed Development to achieve or comply with each and every one of the objectives of the R2 zone: Codling v Central Coast Council [2019] NSWLEC 1158 ("Codling").

Council's submissions on character

1. The Council accepts that cl 16A of the SEPP ARH does not contain an outright prohibition but merely requires that development consent not be granted unless the consent authority has taken into consideration whether the proposed development is compatible with the character of the local area. Accordingly, the Council says that it would be within the power of the Court to grant consent to a "highly meritorious proposal" notwithstanding a finding that the development will be incompatible with development in the local area. However, it submits that in the usual case such a finding of incompatibility should be understood to "point away from" consent being granted.
2. The Council submits that the analysis of compatibility with character should include both existing character and future character. The Council submits that its expert evidence contemplates both the existing features of the local area and also the intended future character of the area which will be achieved by the recent amendment to the LEP to prohibit multi dwelling housing.
3. The Council relies on the evidence of Ms Morrish who concluded that the Proposed Development is not compatible with either the existing or desired future character. While her evidence was that there is a varied character along Blaxland Rd, she said that there is a variation in the spacing between dwellings which differs from the "cluster" of the Proposed Development. By contrast, the Council submits that the Applicant's experts did not consider the desired future character rendering their analysis deficient.
4. The Council also relies on Part 3.4, section 4.1 of the DCP which requires multi dwelling housing to be designed and constructed to complement and enhance the existing streetscape and to include elements such as pitched roofs, eaves, vertically oriented windows, verandahs, rendered and face brick. It submits that the Proposed Development is discordant with the surrounding area including in relation to the significance and character of the ramp and the slope of the Site.
5. In relation to consistency with the zone objectives, The Council argues that the Applicant's reliance on BGP and Jeffrey is misplaced because multi dwelling housing can take place "in some form" on the Site. The Council submits that multi dwelling housing is possible to achieve in a low density form but that the Proposed Development is an overdevelopment of the Site with adverse impacts which are inconsistent with the zone objectives.
6. In oral submissions, the Council accepted that, at a broad level of generality, multi dwelling housing (being a permitted land use) is consistent with the zone objectives but argued that it does not follow that any and all multi dwelling housing is consistent with the zone objectives. The Council points out that, when the whole of the LEP is looked at, it is apparent that each of the residential zones contain an objective framed in terms of providing for the housing needs of the community within a low (Zone R2), medium (Zone R3) or high (Zone R4) density environment. The Council submits that weight must be given to the different zone objectives regarding the density of residential development in each of the zones. In context, the Council submits that the third zone objective needs to be read together with the first, i.e. "To provide for a variety of housing types" but within a low density residential zone.
7. The Council submits that the "mere permissibility" of multi dwelling housing in the zone does not imply that it is to be expected that the form of multi dwelling housing contemplated by the DA is consistent with the objectives of the zone and argues that nothing in BGP or Jeffrey supports such an approach. Indeed, the Council submits that BGP and Jeffrey acknowledge that "there can be no expectation that consent will be granted to development, notwithstanding that it is for a purpose that is permitted and consistent with zoning": BGP at [118] and Jeffrey at [63].
8. Finally, the Council accepts that the Proposed Development need not comply with every one of the objectives of the R2 zone but submits that the Court should attach weight to the objectives that are not met and not approve the DA.

Applicant's submissions in reply

1. In reply, the Applicant disputes the Council's submission that to warrant the approval of an application for development that is not compatible with the local area the proposal must be for a "highly meritorious proposal". Nor does the Applicant accept that incompatibility "points away" from granting consent. It submits that the determination of a development application involves a polycentric problem: see Bulga Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48 ("Bulga") at [31]. The Applicant submits that the criteria to be considered are numerous, cannot be objectively weighted and are interdependent, and it is a matter for the decision maker to determine the weight to be given to each matter: Bulga at [35]. The Applicant therefore submits that, even if the Court finds that the Proposed Development is incompatible with the character of the local area (which the Applicant denies), the Court may still grant development consent having regard to all the relevant matters and applying appropriate weight to each of those matters.
2. The Applicant accepts that cl 16A of the SEPP ARH is not confined to the existing character of a local area and may extend to its desired future character, referring to cases including Kohler Bros Property Group Pty Ltd v Penrith City Council [2020] NSWLEC 1364 ("Kohler Bros") where Gray C accepted that, in circumstances where the parties agreed that the relevant local area was undergoing a transition toward higher density development, the desired future character must be considered. However, the Applicant submits that this is not the case here, where the LEP has been amended to prohibit multi dwelling housing but a savings provision requires the DA to be determined as if the amendment had not been made. It would be inconsistent with and antithetical to the purpose of the savings provision in the amending instrument, the Applicant argues, if the amendment is given force by reason of its consideration as part of the desired future character. Further, the Applicant submits that the Court would not accept that the local area is undergoing transition. It says that, with the exception of the Site, the character of the local area has been set for the foreseeable future by the existing development.

Consideration of the zone objectives

1. Clause 2.3(2) of the LEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within that zone.
2. The objectives of the R2 zone have not changed even though multi dwelling housing is now prohibited on land within the zone.
3. The content of the duty to consider something was considered by Biscoe J in Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83 at [98] to [100]: "[98] The content of a statutory duty to "have regard to" or "to consider" something has been expressed in various ways. In Tickner v Chapman (1995) 57 FCR 451 at 462 Black CJ said that a duty to "consider" required an "active intellectual process" directed at the matter required to be considered. In Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 71 FCR 265 at 277 Finn J said: ...the "have regard to" formula has been interpreted consistently as requiring that the decision-maker subject to the formula must "take into account" the matter or consideration to which regard is to be had, and must "give weight to" that matter or consideration "as a fundamental element in making his determination": R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 328-330 per Mason J; see also R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333, 338; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 623. [99] In Zhang v Canterbury City Council [2001] NSWCA 167, 51 NSWLR 589 Spigelman CJ, who delivered the leading judgment, held that a matter which a statute required the decision-maker "to take into consideration" must be considered as a fundamental element in, or focal point of his deliberations. A "mere formalistic reference" does not satisfy a statutory requirement to have regard to a matter: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) [2007] FCA 493, 240 ALR 135 per Lindgren J at [29]. [100] The High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48, 85 ALJR 306 at [26] approved the formula of Gummow J in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457, 14 ALD 291 that the statutory duty to "consider" means to "give proper, genuine and realistic consideration to the merits of the case…"
4. The zone objectives must therefore be taken into consideration in the determination of the DA as a fundamental element in, or focal point of the Court's deliberations.
5. The first and third objectives for the R2 Low Density Residential zone are relevant to the DA. In relation to the third objective, I am satisfied that the Proposed Development will further the objective of providing for a variety of housing types. However, in my view, the Proposed Development is not development of a type that is contemplated by the first objective: it will not provide for the housing needs of the community "within a low density residential environment".
6. This zone objective may be contrasted with the comparable objectives in the R3 Medium Density Residential zone: "To provide for the housing needs of the community within a medium density residential environment" and the R4 High Density Residential zone: "To provide for the housing needs of the community within a high density residential environment". In its context, it is clear enough that, while multi dwelling housing remains permissible with development consent on the Site, the objective of the zone is (and since the LEP was made) to permit such development within a low density residential environment. While a multi dwelling housing project consisting of 3 dwellings on a single lot might be said to provide for the housing needs of the community within a low density residential environment, the Proposed Development, comprising 24 dwellings constructed in two rows of terrace type dwellings over two levels of basement parking with a substantial driveway entrance, in my view, cannot.
7. I accept that, because of the savings provision in cl 1.8A(3) of the LEP, development for the purpose of multi dwelling housing remains permissible with development consent on the Site and that, as the Applicant submits, ordinarily "planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted" (Emphasis added.): see BGP at [117]. The italicised words, however, make it plain that not every form of development for a permitted purpose will necessarily be permitted. "Multi dwelling housing" is defined in the LEP to mean 3 or more dwellings (whether attached or detached) on one lot of land. There is no upper limit in the definition on the number of dwellings that can be developed as multi dwelling housing but it is obvious that multi dwelling housing above a certain size will not achieve the zone objective of providing for the housing needs of the community within a low density residential environment.
8. The Applicant also relied on the decision of the Chief Judge in Jeffrey. I agree, with respect, that development which is classified as being permissible in the land use table should generally be presumed to be consistent with the objectives of the zone in which the development is to be carried out. In Jeffrey, the decision the subject of the appeal was that development for the purpose of a funeral home, a purpose expressly nominated in the land use table as being permissible with consent, was nevertheless development for a purpose that was inconsistent with one of the objectives of the zone. It was in that context that the Chief Judge referred to the presumption that development for a purpose that is specified as being permissible should be taken to be consistent with the objectives of the zone.
9. In the present case, however, while at a broad level development in some form for the purpose of multi dwelling housing must be taken to be consistent with the zone objectives, that development must, in my view, be multi dwelling housing which is of a scale that is consistent with being located in a low density residential environment. In this regard, in closing submissions, the Applicant accepted my suggestion that a logical way of reconciling the permissibility of multi dwelling housing with the first of the zone objectives was to read the provisions as permitting multi dwelling housing that is appropriate in a low‑density residential environment.
10. Clause 2.3(2) of the LEP requires the consent authority "to have regard to the objectives for development in a zone when determining a Development Application". It does not require a positive finding of consistency or strict satisfaction with those objectives. The obligation imposed by cl 2.3 was succinctly described by Commissioner Gray in Codling at [84] as follows: "It is clear from the terms of cl 2.3(2) that there is no requirement for development within the zone to comply with, or to achieve, each of the objectives of the zone. Nevertheless, the clause requires that the consent authority "have regard to" those objectives. They are therefore a mandatory consideration in the assessment process and a proposed development ought not be antipathetic to those objectives."
11. In my view the Proposed Development is of a scale that is antipathetic to the first objective of the R2 Low Density Residential zone. It is of such a scale that it will not provide for the housing needs of the community within a low density residential environment. While that, of itself, is not necessarily fatal to the approval of the DA, it is a significant factor for me to consider in deciding whether the DA merits approval.

Compatibility with character of the local area

1. Clause 16A of the SEPP ARH precludes the granting of development consent to the DA unless the consent authority, in this case the Court, has taken into consideration whether the design of the development is compatible with the character of the local area.
2. In Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191, the then Senior Commissioner began by asking what was meant by "compatible". He said (at [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."
3. He then went on to propose a methodology for assessing whether a development is compatible with other development in the area: "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."
4. I accept that the character of the local area includes both the existing character and the desired future character: see Steel v Liverpool City Council [2019] NSWLEC 1049 at [33] per O'Neill C; Al Ali v Canterbury-Bankstown Council [2019] NSWLEC 1115 at [43] per Walsh C and Bindon AC; Lizard Apple Pty Ltd v Inner West Council [2019] NSWLEC 1146 at [55] per Walsh C; Kohler Bros at [61] per Gray C.
5. The local area is principally the visual catchment in which the development will be viewed, although the wider catchment is also relevant: see Peninsula Development Australia Pty Limited v Pittwater Council [2011] NSWLEC 1244 at [61]. There was no real dispute between the parties about the area that makes up the local area in this case which I find is the area bounded by: 1. The intersection of Blaxland Rd and Melville St to the east; 2. The intersection of Blaxland Rd and Anzac Ave to the west; 3. The properties on Blaxland Rd between Rickard St and the Sovereign Grace Bible Church at 327 Blaxland Rd to the north; and 4. The properties between 3 and 23 Benson St to the south.
6. The existing character of the local area includes the large heritage listed water towers, a church and a 7-Eleven service station. There are several multi dwelling housing developments in the local area and it could not be said that development of this type is not already represented in the local area. However, despite the presence of these other types of development in the local area, the existing character of the local area is, in my view, predominantly low density residential comprising mostly single and two-storey dwelling houses. This conclusion is consistent with the evidence of the Applicant's urban design expert, Mr Dickson (Ex 4 at page 6), that "along this stretch of Blaxland Rd are predominantly detached residential dwellings with relatively even spacing between built forms" and the Council's expert, Ms Morrish, whose evidence was that that the existing character is predominantly of "dwelling houses on large lots" (Ex 4, [0.42]).
7. The desired future character of the local area is apparent from the objectives of the R2 Low Density Residential zone which applies to the local area. Relevantly, these objectives contemplate a variety of housing types to meet the housing needs of the community but within a low density residential environment. In other words, the desired future character of the zone (and necessarily also the local area relevant to this appeal which comprises land within that zone) is a low density residential character. This is the character that was envisaged when the LEP was made in 2014 and has not changed as a result of the amendment to the LEP prohibiting multi dwelling housing on land within the zone.
8. The Applicant submits that it would be "inconsistent with and antithetical to" the purpose of the savings provision if the amendment is given force by reason of its consideration as part of the desired future character. I agree. However, the savings provision has no bearing on the zone objectives which, in my view, clearly describe the desired future character of the R2 zone and would have been just as relevant if the Amending LEP had not been made. While, absent the prohibition of multi dwelling housing, there may have been additional multi dwelling housing development in the local area in the future, it would necessarily have been of a scale that was compatible with the low density residential character envisaged for the zone.
9. The parties' experts agree (Ex 4 at page 3) that there are no other attached two storey terrace type buildings evident on either side of Blaxland Rd in the visual catchment and certainly not on the south western side of the road. They also agree (Ex 4 at page 3) that there is no other residential development in the surrounding visual context, particularly on the south western side of Blaxland Rd, that has a large above ground, double ramp, helix structure providing access to large basement car parking.
10. Mr Dickson's evidence that the Proposed Development would be "largely compatible" with the character of the local area appears to have been largely based on his view that the orientation of the proposed dwellings would be compatible with the existing pattern of development and that the apparent bulk of the Proposed Development would be minimised by the proposed setbacks to the street, rear and side boundaries and the provision of landscaping to complement the landscaping on adjoining properties. That evidence, in my assessment, does not address what I find is the fundamental incompatibility of the proposed building form with the low density residential character of the local area. In my view, the Proposed Development, comprising 24 dwellings constructed in two rows of terrace type dwellings over two levels of basement parking with a substantial driveway entrance, is simply not compatible with the low density residential character of the local area.
11. Similarly, Mr Furlong's evidence (Ex 4, [0.7]) that the future character of the area will effectively be the same as the current character "and that character includes medium density housing", in my view, does not address how the Proposed Development would be compatible with the low density residential character of the local area. I accept that the existing medium density housing in the local area is likely to remain a part of the character of the local area. However, as Ms Morrish said in her evidence, that housing is generally in the form of single or two storey villas with pitched roofs and traditional driveways. It is, in my view, not comparable to the Proposed Development. While there is a multi dwelling housing development with basement car parking opposite the Site, this is the only development of this type in this section of Blaxland Rd and I accept Ms Morrish's evidence that it is not typical of the local area.
12. Overall, I prefer the evidence of the Council's experts to that of the Applicant's experts as to whether the design of the Proposed Development would be compatible with the low density residential character of the local area. Mr Tesoriero's evidence, which I accept, was that the two large rows of terrace type dwellings along Blaxland Rd will result in a building of more than 30 m in length which will be "overwhelming" and will not respect the existing rhythm of buildings in the streetscape which he says are typically broken up into smaller components. This is consistent with Mr Dickson's evidence that side setbacks of the existing buildings are generally between 1 m and 6 m and that the existing built form comprises predominantly detached dwellings with relatively even spacing between them. I also agree with Mr Tesoriero that the Proposed Development would result in multi dwelling housing becoming the dominant form of development in the local area and that, given its bulk and scale, that it would significantly change the character of the locality.
13. Mr Tesoriero's evidence mirrors that of Ms Morrish, who gave evidence that the Proposed Development will present long lengths of mainly two storey terraces for much of the road frontage, which she says is not in character or compatible with either the existing or the desired future character of the area (Ex 4, [0.53]-[0.56]).
14. I also prefer the evidence of the Council's experts on the impact of the proposed driveway entrance on the character of the local area. While Mr Dickson sought to justify the driveway to the basement car park by reference to the existence of the driveway entrance to basement car parking at the multi dwelling development opposite the Site, Mr Tesoriero's evidence (Ex 4 at page 12) was that the other multi dwelling housing in the area "are legacies of historic planning instruments, dating back 20 years or more" and do not represent the desired future character established by the current planning controls. Similarly, Ms Morrish gave evidence that this type of development is "not typical of the street" (Ex 4, [0.39]). In my view, the existence of one other development, apparently approved more than 20 years ago under different planning controls, should be given little weight in deciding whether the proposed driveway is compatible with the character of the local area. In this regard I prefer Mr Tesoriero's evidence (Ex 4 at page 14) that the basement driveway ramp will be "prominent and unique" in the streetscape and not something one would generally anticipate within a low density residential environment.
15. I conclude that the Proposed Development, which will replace five existing single two storey dwellings with a development comprising 24 dwellings constructed in two rows of terrace type dwellings over two levels of basement parking with a substantial driveway entrance is not compatible with the low density residential character of the local area.
16. The Applicant submits, and I accept, that this finding is not necessarily fatal and does not mandate the refusal of the DA. In support of this proposition, the Court was referred to two previous decisions of the Court, Fandakis and Madss. However, in both of these cases, the Court found that the proposed development was, in fact, compatible with the character of the local area, and, consequently, did not have to deal with the situation facing the Court as to whether development consent should be granted notwithstanding a finding of incompatibility.
17. In this case the Council submits that, while it would be within power to grant consent to a "highly meritorious proposal" despite a finding of incompatibility, in the usual case such a finding should be understood to "point away from" the grant of development consent. The Applicant, however, points to the polycentric nature of the assessment of a development application (as described by the Chief Judge in Bulga) and submits it is a matter for the decision maker to determine the weight to be given to each matter in determining whether to grant development consent.
18. I prefer the Applicant's approach to this issue. In my view, the determination of the DA by the granting of development consent does not require a finding that the Proposed Development is "highly meritorious". I have discussed the content of the duty to consider something at [108] above. In the circumstances of this DA, I have decided that my finding that the Proposed Development is not compatible with the low density residential character of the local area is entitled to significant weight and should be a "fundamental element" or "focal point" of the Court's determination. To do otherwise and to grant development consent to the DA, given the scale of the Proposed Development, would, as Mr Tesoriero said, result in multi dwelling housing becoming the dominant form of development in the local area, significantly changing the character of the locality.

Conclusion

1. I have decided that the inconsistency of the Proposed Development with the objectives of the R2 zone, which cl 2.3 of the LEP requires the Court to take into consideration (see [116]), and the incompatibility of the Proposed Development with the low density residential character of the local area, which cl 16A of the SEPP ARH requires the Court to consider, mean that the DA should be refused.
2. In those circumstances it is unnecessary for me to consider the other contentions raised by the Council as to why the DA should be refused.

Orders

1. The Court orders that: 1. The appeal is dismissed. 2. Development Application LDA2020/0247 for the demolition of six existing dwelling houses and the erection of multi dwelling housing on the land described as Lots 8 to 12 (inclusive) DP 6367 and Lot D DP 322336 known as 298 - 312 Blaxland Rd, Ryde is refused. 3. Exhibits A, E, G, H, 1, 10, 11, 12, 14, 15 and 16 are returned. Exhibits B, C, D, F, 2, 3, 4, 5, 6, 7, 8, 9, 13 and 17 are retained. A Bradbury Commissioner of the Court

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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: 27 January 2023