Lei Wu v Wingecarribee Shire Council

The site and its context

1. The site is situated in the vicinity of the northern entrance to Bowral in a precinct which contains a mix of low and medium density dwellings. The prevailing characteristics of the locality are single dwellings predominantly with pitched roof forms amongst canopy trees. There are seven existing medium density developments in the Cliff and Clarke Street locality. In addition a medium density development has recently been approved at 13 Clarke Street, adjoining the development site.
2. The site comprises two lots, being Lot 8 in DP702375 (5 Cliff Street, Bowral) and Lot 1 in DP1041999 (11 Clarke Street, Bowral). The total site area is 5262 m² and the site falls some 15m from Clarke Street to the rear boundary at an average grade of 15%.
3. Lot 8 has a 59.6 5m frontage to the southern side of Cliff Street and a depth of 20.1 15m. This lot contains an existing dwelling with the dwelling proposed to be retained.
4. Lot 1 has a 40.2 75m frontage to the western side of Clarke Street and a depth of 100.6 2m. The site is currently vacant.
5. The contours of the existing site and the development pattern of the surrounding properties are demonstrated in the extract below:

The proposal

1. As a result of the amended plans (Exhibit D), the applicant seeks approval for: 1. clearing of the site and removal of existing vegetation and trees; 2. modification of existing site levels to achieve cut and fill as required to accommodate the benching of the site; 3. construction of 12 two storey residential dwellings, associated access way and parking, and implementation of landscaping as detailed on the landscape plan; 4. retention of the existing house facing Cliff Street as Unit nine; and 5. demolition of existing garage associated with Unit nine.
2. The site planning of the proposal is centred along an internal driveway with a central communal open space and Units 1 and 9 fronting the street.

Public submissions

1. The Court heard from a number of objectors on site at the commencement of the hearing. During the assessment of the application it was notified in accordance with the DCP. The Council assessment report (Exhibit 2) identified that 16 individual submissions were lodged with the Council during the notification. Copies of these submissions, as well as a summary of the submission provided by the residents to Court on site, were tendered (Exhibit 12). From this evidence, the central concerns of the community with the proposal can be summarised as: 1. that the design is overpowering in terms of the scale, density of development and site configuration. The proposed number of units are, in their view, too many for a difficult steep block of land and the proposal has a higher yield that the existing medium density developments in proximity to the site; 2. concerns in regard to the management of stormwater on the site and the use of the easement through the adjoining property to the west (1 Cliff Street). In addition to the management of stormwater concerns were also raised about the capacity of the downstream piped easement to take the additional water, and the provision of an overland flow path; 3. the practicality of sewer provision to the site given the difference in level of the low point of the site and Cliff Street, and concern regarding the potential for exacerbation of existing sewer issues in Mittagong Road; 4. the impact of the additional units on street traffic in Cliff and Clarke Street and the practicality of tandem garaging; 5. the potential for overflow parking in the adjoining streets and concerns from the residents that those streets did not have capacity to accommodate any additional on street parking; 6. Potential impact of the development on the privacy of existing residents, particularly those residents adjacent the western boundary of the proposed development, and the privacy impacts between the proposed units from the lack of sufficient separation between the units; 7. Concern that the development proposes the removal of all of the existing trees, in particular the large Golden Elm and Monterey Pine on the west boundary of the existing site; 8. The dominance of the 'gun barrel' form of the development, the provision of a narrow and steep internal access, and as a result the developments poor street presentation; 9. The practicality of the proposed waste collection that would rely on the body corporate providing a service to relocate bins from the dwellings to the street on collection day, as well as the impact visually of the bins on Cliff Street; 10. The impact on adjoining neighbours during construction of the units and the associated stormwater and sewer infrastructure, and potential for the excavation works to intersect existing spring water; 11. The lack of diversity of housing form, in particular the lack of provision of single storey dwellings within the site; 12. Poor solar access to the proposed dwellings; 13. The potential for further subdivision of the retained existing dwelling (Unit 09); 14. The lack of complete documentation and inconsistencies between components of the development application resulting in unclear outcomes and contradictory commitments. In particular the sufficiency of bore holes taken as part of the Geotechnical report; and 15. The effect of the development on the land and property value of the existing adjoining residential properties, and concern regarding the feasibility of the future sale of the completed development. These issues were considered in the proceedings, and were the subject of evidence from the experts, as detailed below.

Planning framework

1. State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 applies to the site as it is located within the bounds of the Sydney drinking water catchment. Clause 10 of this SEPP provides that "a consent authority must not grant consent unless it is satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on water quality". Pursuant to clause 11 the development requires the concurrence of the Chief Executive of Water NSW.
2. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate has been submitted with the development application. The submission of the respondent in the proceedings is that the current BASIX certificate is inconsistent with the plans before the Court and contains commitments that are not evident in the application. It is the applicants view that this can addressed by appropriate direction from the Court if it is determined that it is appropriate to consent to the development.
3. The development is integrated development and requires approval from the Rural Fire Service. Concurrence was provided subject to conditions on 9 September 2016.
4. Wingecarribee Local Environmental Plan 2010 (LEP 2010) applies to the site. Relevant to this appeal LEP 2010 has the following aims (cl 1.2(2): … (c) to encourage the efficient use and development of urban land, minimising the spread of urban areas into rural and native vegetation environments, thereby increasing the accessibility of the population to urban facilities and services, (d) to provide opportunities for development and land use activities that: (i) make an effective contribution towards the economic well-being of the community in a socially and environmentally responsible manner, and (ii) do not adversely impact on natural systems and processes and the overall quality of Wingecarribee's natural environment, (iii) retain the critical natural, rural and built environmental landscape elements that make up the scenic and cultural heritage value of Wingecarribee (e) to provide opportunities for a range of new housing and housing choice in locations that have good access to public transport, community facilities and services, retail and commercial services and employment opportunities, including opportunities for the provision of adaptable and affordable housing, (f) to provide a range of living opportunities that address differing lifestyle needs without compromising the environmental quality of Wingecarribee, and the value of its natural resources such as water biodiversity and agricultural land …
5. Pursuant to LEP 2010 the site is zoned R3 Medium Density Residential and the proposal is permissible with consent. The relevant objectives of the R3 zone are as follows: to provide for the housing needs of the community within a medium density residential environment to provide a variety of housing types within a medium density residential environment. …
6. LEP 2010 does not set development standards for the height of buildings, or floor space ratio. The site does not contain or adjoin a heritage item, and is not within a heritage character precinct.
7. Pursuant to Clause 7.3 of LEP 2010 consent is required for earthworks. The relevant objective of this clause is as follows: to ensure that earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses or heritage items and features (of) surrounding land …
8. At sub cl 3 of clause 7.3: Earthworks it states that: before granting development consent for earthworks, the consent authority must consider the following matters: (a) the likely disruption of, or detrimental effect on, existing drainage patterns and soil stability in the locality, (b) the effect of the proposed 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 proposed development on the existing and likely amenity of adjoining properties, (e) the source of any fill material or the destination of any excavated material, (f) the likelihood of disturbing Aboriginal objects or other relics, (g) proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area.
9. Satisfaction of Clause 7.3 is a precondition to the provision of consent. The applicability of this clause to the proceedings is a matter of contention between the parties. If I accept the submission of the Council the clause is of direct relevance and the satisfaction of the proposal with Clause 7.3 of the LEP is a precondition to consent for the application before the Court.
10. Pursuant to clause 2.7, of LEP 2010 demolition requires development consent.
11. The Bowral Town Plan Development Control Plan 2010 (DCP 2010) is relevant to the proposal. DCP 2010, at A2 .1, requires development to make a positive contribution either directly or indirectly to the intended objectives of the plan.
12. Relevant to these proceedings at cl 2.2.4, Residential Amenity the plan has the following objectives: (a) Conserve the unique characteristics of existing residential areas of the Bowral township. (b) Encourage new residential development that is sympathetic to existing or desired future streetscapes and neighbourhood character. … (d) Contribute to the enhancement of the urban amenity …
13. DCP 2010 also contains objectives in relation to the provision of a diversity of residential dwellings as follows: (a) Promote a mix of housing types to increase residential choice within the town, particularly around bus and rail connections. (b) Encourage appropriate site amalgamation and redevelopment to provide a range of residential opportunities throughout the town.
14. The Councils objectives in relation to the visual amenity of the precinct are contained in A2.2.6. Specifically in the DCP states Council is not necessarily seeking the duplication of the existing form and states that new development should respond to the essential elements that make up the character of the surrounding urban environment. To achieve this the objectives of this clause are: (a) Demonstrate an appreciation of the existing streetscape. (b) Enhance the character of individual streets within the town through appropriate built form design. (c) Provide areas of private open space which can make a positive contribution to the overall visual amenity of the locality.
15. Relevantly at A3.3.3 DCP 2010 mirrors the requirements of the SEPP (Drinking Water Catchment).
16. The applicable controls for private open space are contained in A5.2 of DCP 2010. This clause has the following objectives: (a) Provides a pleasant, vegetated environment for users of the site (workers or residents). (b) Contributes to the urban streetscape. (c) Provides a visual buffer between development and the surrounding neighbourhood. (d) Contributes to existing tree canopies and wildlife habitats. (e) Provides adequate ground cover to prevent erosion and assist storm water infiltration. (f) Contributes where possible to the enhancement of key vegetation and topographical features.
17. The private open space controls in DCP 2010 relevant to these proceedings are: … d) Particular provision is be made for the landscaping of uncovered parking areas, with adequate screening from the street where appropriate. (e) All plantings are sufficiently advanced to provide an immediate landscaping effect. (f) Provision is made to ensure that adequate landscape management systems are available to ensure that plantings can be properly maintained to allow them to not just survive, but flourish. … (h) Where no street tree is currently in the footpath or verge area adjoining the site, a street tree compatible with the predominant street tree species in the street is provided at the applicant's expense. This will assist in softening the appearance of new development while also improving the aesthetic appeal of the public space.
18. DCP 2010 at A6.3 requires every land use application which involves significant alteration to the site whether through development of currently vacant land, extensive renovation of an existing building, or demolition, must be accompanied by an appropriate Site Analysis Report.
19. At A6.4 Cut and Fill DCP 2010 states cut and fill is not considered an acceptable alternative to responsive site design. The DCP has the following objectives in relation to Cut and Fill: a) Encourage stepping of buildings in response to existing topography. b) Minimise disturbance to existing landforms and soil profile. c) Minimise use of retaining walls. The relevant controls for these proceedings in relation to cut and fill are: b) For allotments equal to or greater than 4,000 m2 of area, cut and fill is not to exceed 750 mm of cut and 750 mm of fill, measured over the building footprint. … d) If the cut/fill is to be retained is over 600mm then a retaining wall designed by a Professional Engineer is required.
20. DCP 2010 provides consideration of the complexity of infill development in C1.7 Infill Development on Difficult sites. This clause states that some development sites in Bowral are suitable for infill development but offer significant challenges for appropriate site design and building. In order to fulfil Council's objectives of encouraging infill development, it is appreciated that the controls within the DCP may need to be relaxed to allow any development at all to occur on our site.
21. In section 3: Medium Density Development the DCP has the following objectives: (a) encourage the efficient use of existing residential land in urban areas; (b) provide a higher level of amenity for dwellings in medium density development; (c) design the position and orientation of dwellings to maximise the integration of higher density development into the existing neighbourhood character; and (d) minimise the loss of mid-block tree canopy and other vegetation on the site.
22. Relevant to these proceedings these overall objectives are supported by a range of relevant site planning, density and amenity objectives and development standards.
23. DCP 2010 at C3 .3 Site Planning has the following objectives: To provide a high level of amenity for new medium density residential development To maintain the amenity of existing residential development … To provide continuous areas of deep soil planting in residential areas to provide and maintain mid-block street canopy
24. These objectives are supported by controls that require Council to be satisfied that the proposal is such that it: (a) maximises the number of dwellings that address a public street rather than internal driveways (b) minimises the dominance of areas set aside for the vehicle circulation and storage (c) maintains existing patterns of dwelling fronts and backs (d) avoids long unbroken building forms greater than 25 m in length (e) limits the proportion of dwellings which are more than 50 m from a public street. (f) locates dwellings, driveways and open space so as to allow for the retention of existing natural and cultural features on the site (g) orientates and configure dwellings to respond to opportunities for good solar access . (h) uses landscape plantings to reduce the apparent bulk of new buildings when viewed from the street or adjoining land.
25. At C3.5 Street Presentation the DCP states that Council does not want to the current practice of locating dwellings on site so that they address a common driveway to continue. The DCP states that Councils reason for this is that such a layout usually results in a high site coverage, loss of vegetation, poor quality open space and negative streetscape impacts.
26. The DCP at C3.6: Dwelling Mix states that medium density developments should seek to provide a range of dwelling sizes, both in terms of the number of bedrooms and the overall size of rooms, and the size and configuration of private open spaces associated with development. This objective is supported by control that requires developments of more than eight dwellings to achieve a mix of dwelling sizes in terms of both number of bedrooms and size of the rooms.
27. The requirements for separation of the proposed development from the adjoining properties are detailed in C3.9: Side Setbacks and C3.10 Rear Setbacks. The relevant objectives of the side setback controls are: to provide adequate building separation between new and existing development for privacy, ventilation, fire safety and solar access; and to provide breaks between dwellings that give identity and visual interest, and maintain a detached housing character. The minimum standard for side setbacks are 3.5m where the development is more than 3m in height above natural ground level. The relevant objectives of the rear setback control are: (a) Provide opportunities for active and passive open space that are both private and allow good solar access. (b) Ensure sufficient area on the site for mature trees and vegetation. (c) Ensure mid-block tree canopy can be established or conserved.
28. C3.13 Private Open Space: states that useable private open space is an essential requirement for all dwellings. Relevant to these proceedings all dwellings must provide a minimum private open space area of 50 m², with a minimum length of 5m, in a location that maximises solar access.
29. DCP 2010 also has an overarching site planning control that requires 50% of any site developed for multi dwelling housing to be landscaped to the satisfaction of Council (C3.14 Landscaping and Communal Open Space).
30. The DCP at C3.15 Privacy seeks to encourage medium and high density developments to be designed so as to safeguard the privacy of existing or future dwellings. This objective is supported by the following controls: (a) Windows are to be designed and located so as to reduce direct overlooking into an adjoining dwelling. (b) Where a transparent window in a second storey is to be located less than 9 metres from an adjoining dwelling, the window must: (c) be offset from the edge of any windows in the adjoining dwelling by a distance of 0.5 metres; or (d) have a sill height of at least 1.7 metres above the floor or have fixed obscure glazing in any part of the window less than 1.7 metres above the floor.
31. At C3.17 Car Parking Garaging and Driveways the DCP acknowledges that the treatment of driveways and garages can have a significant impact on streetscape. It states that developments which have internal driveways can become dominated by spaces and structures set aside for the vehicle storage and this tendency should be avoided. This clause has the following objectives: (a) To provide adequate off street parking for residents and visitors. (b) To minimise the dominance of garages and driveways in the streetscape. (c) To minimise the impact of garages, parking areas and areas for vehicular circulation with medium density developments.
32. These objectives are supported by the following controls relevant to these proceedings: … (c) The width of driveways will be limited to 25% of the frontage to a public street but meet the minimum requirements of standard drawings SD107 for single driveways and SD168 for other driveways as shown in Part A of this Plan. (d) Garages will be located so they do not dominate the streetscape. (e) Where garages form part of the dwelling, they shall be located at least 1.2 metres behind the main building façade and should not exceed more than 40% of the dwelling frontage. (f) Double garages to the street frontage shall be avoided in preference to tandem parking or single garage and car port options. (g) Unrelieved 'gun barrel' driveways will not be permitted. If the alignment of internal access ways cannot be varied, visual relief will be provided by appropriate planting. (h) Where possible, changes in level across a site will be used to provide basement or sub-basement garaging.
33. Waste collection requirements for the development, as raised by the residents in submissions, are contained in Clause 3.19 and are as follows: (a) Waste and recycling materials storage facilities shall be provided for either individual bins or larger communal (or shared access) bins. (b) Waste and recycling materials storage areas must be located behind the front building line. (c) Waste and recycling materials storage areas must be adequately screened to minimise impacts for residents and neighbours. (d) Where on-site collection is possible, provision for on-site manoeuvrability to enable vehicles to enter and leave the site in a forward motion.
34. At Section 5 of DCP 2010 the requirements for the provision of adaptable dwellings is provided. The objectives of these controls are to recognise and provide for Adaptable Housing in all new medium density developments and to provide a safe and comfortable home suitable for any occupants. The relevant control is that for all medium density developments, not less than one for every three dwellings, or part thereof, will be constructed to comply with not less than Class C level of Australian Standard 4299 - Adaptable Housing.
35. The site is located in the Northern Entrance Medium Density Precinct as mapped in DCP 2010 at C17.1. The DCP states that the precinct forms the northern entry to the town and it is important that redevelopment, especially that facing Mittagong road, present a view which reflects the scale and style of development found elsewhere in the town. Council seeks the following preferred outcomes in this precinct: (a) achieve a sensitive approach that reflects the architectural form and scale of surrounding existing development. (b) maintain the mature landscape character so distinctive of Bundanoon including both street trees and private gardens.
36. These objectives are supported by the following controls relevant to these proceedings: (a) ensure that the layout of future development complies with the objectives and guidelines set out within the Site Analysis section in Part A of this Plan. (b) ensure that the extent, scale and configuration of new residential development reflects a discrete and unobtrusive architectural outcome, to remain compatible with the established spatial pattern of development within the precinct. (c) ensure that the visual prominence, landscape setting and public vistas to and within the precinct are maintained. (d) retain existing buildings, structures and landscape features that contribute positively to streetscape quality and the overall garden character of the neighbourhood. (e) avoid large and unarticulated massing of walls and roofs. (f) incorporate architectural features, (including, but not limited to, roof forms, window positioning and proportioning, verandah treatment, fencing, and building proportions) that are reflective of any existing development, to be retained on the land or compatible with other existing architecture (including heritage and other contributory buildings) occupying adjoining or nearby land. (g) incorporate simple architectural design treatments, materials, colours and finishes that result in a harmonious relationship with existing development on adjoining and nearby land.
37. The relevant provisions of DCP 2010 are a mandatory consideration under s79C(1)(a)(ii) of the Act and its provisions are a fundamental element in, or a focal point to, the decision-making process, but are not determinative (see Zhang v Canterbury City Council [2001] NSWCA 167). However, the introduction of the provisions in s79C(3A) in the Act has mandated a more flexible approach to the matters the subject of dispute between the parties. As noted by Moore in Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151 at [68] section 79C(3A)(b) of the Act requires flexibility in the application of provisions of a DCP and the consent authority is required to determine whether the alternative solution is capable of meeting the object of the controls, without compliance with the relevant standards where a variation is proposed.

Expert evidence

1. The joint conferencing process sought to address the remaining issues in contention as detailed in [7].
2. Garry Chapman (for the applicant) and Deborah Laidlaw (for the respondent) provided a joint report on planning issues (Exhibit 4). Expert evidence in relation to stormwater, traffic and sewer was also provided to court in the form of joint reports and evidence, however these issues are agreed between the parties as detailed at [4] and I accept the findings of the experts in these matters.
3. As a result of the planning controls, the contentions between the parties and the expert evidence the relevant issued to be addressed in the evaluation and determination of the appeal are: 1. The appropriateness of the siting of the development; 2. Whether the internal amenity of the development is satisfactory; 3. The likely impact of the development, in particular on the adjoining properties; 4. The consideration of submissions made by residents; and 5. The certainty of the development proposed.

Evidence

1. Relevant to this query the planning experts agree that: 1. the overall site has a moderate slope with some steeper sections adjacent Cliff Street and Clarke Street and that this has resulted in dwellings that are part excavated and part elevated as well as numerous retaining walls; 2. The most significant cuts within the dwelling foot print are at Unit 1, 2, 3, 6, 11 & 13 with cuts of 1.8m, 2m ,3m and 1.5m respectively and that for the most part dwelling and terrace floor levels are less than one metre above natural ground (Exhibit 4); 3. During the proceedings it was agreed that cut, within the terraced private open spaces, that exceeds the DCP was able to be approximated as follows: Unit 1: 2m Unit 2: 1.8m Unit 3: 2m Unit 4: 0.9m Unit 6: ranging from 0.5 to 1m Unit 8: ranging from 0.5 to 0.8m Unit 11: 1.5m Unit 12: 1.3m Unit 13 ranging from 1.5 to 2m
2. Principally the planners disagree on whether the extent of cut and fill in the development is responsive to the topography, complies with the objectives and controls of the DCP, and whether the outcomes that arise from the benching of the site are acceptable.
3. It is Ms Laidlaw's evidence that the extent of cut and fill, and the numerous retaining walls and benched areas that result, are unacceptable as they: 1. are uncharacteristic of the area; 2. are not compliant with the objectives and controls of the DCP (Cl 6.4); and 3. Given the depth of excavation will exacerbate the concern that sustainable landscaping is able to be achieved due to the soil quality.
4. In the absence of meeting the development standard (maximum 750mm) for cut and fill the development also fails to meet the objectives of the control (cl. 6.4 DCP 2010) as the design doesn't: respond to the existing topography; minimise disturbance to the existing landform or minimise the use of retaining walls.
5. It is her view that the extensive use of retaining walls and stepping of levels result in amenity impacts of overlooking, fragments the landscaping approach to the development, and as a result of the reduced width and depth of the planters, precludes the establishment of mid-block trees as required by the objectives of Section 3: Medium Density Development. In the absence of meet
6. It was Ms Laidlaw's opinion that the development placed a disproportionate reliance on street tree plantings at natural ground level and the existing open space provided in the curtilage of the retained dwelling (Unit 09) to provide the required open space area, a landscape contribution to the street. It was her conclusion that this approach, and the limited planting within the development, will not meet the objective of DCP 2010 to utilise landscaping to reduce the apparent bulk of new buildings when viewed from the street or adjoining land (cl C3 .3).
7. Further Ms Laidlaw identified that the proximity of the dwellings, one to the other, will limit the opportunity for the bulk of the development to be broken down and softened by significant landscaped elements that is by interspersing canopy trees throughout the built form (Exhibit 4) as required by cl 3.3 of DCP 2010.
8. In the alternative, it was Mr Chapman's evidence that the building platforms created by the development step with the site slope, and that the cut and fill amounts detailed in the architectural plans are required to establish private open spaces that are close to level with the proposed living areas. In response to Ms Laidlaw's concerns regarding landscaping Mr Chapman detailed the landscaping proposed along the front setback of Clarke and Cliff Street which is to include trees of 5-8m in mature height, and in the proposed communal open space which has the capacity to accommodate 3 canopy trees. It is his conclusion that with appropriate landscaping along the site's frontages, the significant cut on the site will not be readily apparent from public spaces, including Clarke and Cliff Streets (Exhibit 4).
9. In relation to site planning he identified in his evidence that the significant fall from Clarke Street dictates the location and level of the internal driveway with access from Cliff Street…further the driveway gradient dictates the building platforms and the surrounding retaining walls ensure usable open space is provided at ground level … and that the topography of this of the site is not conducive to street presentation, however where possible it has been achieved by the development, for example Unit 1, and Unit 9 have pedestrian access to Cliff Street and a pedestrian access is provided to the development from Clarke Street.
10. It is Mr Chapman's evidence that the communal open space will achieve mid-block planting of 6 to 8 m in height and screen the development, as required by the DCP. To ensure the success of the landscaping he notes that the proposed conditions include a landscaping maintenance condition that requires ongoing management of landscaping in the communal spaces for the life of the development, and private open spaces for three years (Exhibit 8).
11. A matter of contention between the experts was the suitability of the site planning in relation to the location and length of the driveway and its relationship to the proposed residential dwellings. It was Ms Laidlaw's view that the limited at landscaping, coupled with the narrowness of the driveway and the regularity of the arrangement of the dwellings, create a 'gun barrel' appearance to the development as a whole. It was her evidence that this is exacerbated by the siting of two-storey units at 6.4 m separation, the length of the driveway, and the narrowness of landscaping able to be achieved given the amendments to the planter boxes required to achieve vehicle manoeuvrability.
12. It was Mr Chapman's view that the driveway has been designed with planters forward of the dwellings, and appropriate articulation of the front facade of the proposed units. It was his conclusion that both of these elements achieve a break in the visual length of the driveway, and an appropriate landscape separation between the driveway and dwellings opposite.
13. In terms of the effect of the driveway configuration on the presentation of the development it was Mr Chapman's evidence that the linearity of the driveway would not be perceived from Cliff or Clarke Street given the streetscape planting proposed, and that the wall articulation and modulation of the height of building mass between the garages and dwellings as well as the landscaping provided at the termination of views provide a satisfactory outcome.
14. The DCP at C3.14 Landscaping and Communal Open space requires that 50% of any site developed for multi dwelling housing is to be landscaped. The plans provided to the Court (Exhibit D) do not indicate the percentage of landscaped area proposed, however the calculation was provided for the earlier version (Exhibit A) of the plans as part of the tendered documents. For these plans the open space provided was 50.6% of site area. By reference to the changes listed, and the drawings, the following are the relevant material changes between the two versions can be approximated: 1. The creation of the temporary bin storage area (excluded from open space calculation) [13.2m²]; 2. Demolition of the existing garage to Unit 09, retention of driveway and paving, therefore excluded from open space calculation [no change]; and 3. The addition of 3000L water tanks to the individual units [23.3m²].
15. At the conclusion of the traffic expert's evidence, amendment was required to the curve of the driveway at the intersection of the north/south and east/west sections to accommodate the swept path of the required vehicle (Exhibit H). This resulted in the reduction of the communal open space by 3.8m².
16. The site area of the proposal is 5262.64m², meaning that the following changes equate to 40.3m² or a 0.8% reduction in landscaped area. This would mean that with these changes the proposal may, in its final form, be marginally non-compliant with this control.
17. Ms Laidlaw was critical of the distortion that results from the maintenance of the curtilage of Unit 09 as it 'over contributes' to the percentage and does not provide a direct amenity to the remaining dwellings in the development. A more even distribution of open space across the site would provide improved amenity. She noted also that the calculation includes the area provided at the roof top terraces, which in her view should not be included as they don't assist in achieving the objectives of A 5.2in DCP 2010. It is her conclusion that the control is likely to be breached and the proposal does not meet the objectives of the relevant control.
18. It was Mr Chapman's view that the percentage of landscaped area could be achieved by the development with minor amendment, and that the DCP does not exclude the upper floor terraces from the calculation of the standard. It was his evidence that the development of the site necessarily creates some south facing units and the addition of the second private open space at the first floor provides additional amenity to these units, which is sought by the objectives of c3.13 of the DCP 2010.

Findings

1. It is clear that in relation to the development controls for: Cut and Fill (cl 6.4(b)(c)); Site Planning (cl3.3 (a)(f)(h)); and Car parking, garages and driveways (cl3.17(g)), the proposal relies on a variation to the standard. As a result, in accordance with S79C 3B I am required to apply flexibility and consider whether the alternative proposed is capable of meeting the objectives of the control. This flexibility is also provided in cl 1.7 of DCP 2010 which provides flexibility for infill sites, such as this location.
2. Clause A6.4 Cut and Fill DCP 2010 states cut and fill is not considered an acceptable alternative to responsive site design. The DCP has the following objectives in relation to Cut and Fill: a) Encourage stepping of buildings in response to existing topography. b) Minimise disturbance to existing landforms and soil profile. c) Minimise use of retaining walls.
3. In assessing the merit of the proposal approach to site planning, which varies controls c 3.3(a)(f)(h), it is also important to consider how the variation to the standard affects the achievement of the Site Planning objectives of DCP 2010 at C3.3, as follows: To provide a high level of amenity for new medium density residential development To maintain the amenity of existing residential development … To provide continuous areas of deep soil planting in residential areas to provide and maintain mid-block street canopy
4. Clause 3.17 of the DCP addresses Car parking, Garaging and Driveways. The proposal relies on a variation to control (g) which states: (g) unrelieved 'gun barrel' driveways will not be permitted. If the alignment of internal access ways cannot be varied, visual relief may be provided by appropriate planting. The relevant objectives of this control are: To minimise the dominance of garages and driveways in the streetscape To minimise the impact of garages, parking areas and areas for vehicular circulation in medium density developments.
5. With the benefit of the site inspection and the evidence, I prefer the evidence of Ms Laidlaw, and I find that the siting of the development is not acceptable in its current form for the following reasons: 1. The variation to the cut and fill control does not meet the stated objectives of the relevant clause in the DCP (cl A6.4) and is not an alternative solution that is capable of meeting the object of the controls; 2. That the development, in its current form, does not provide sufficient deep soil planting and mid-block planting areas, within the development to achieve the objectives of cl 3.3 of DCP 2010. 3. DCP 2010, in particular at C3 .3 and C3.05, has a clear objective of moving away from a form of development that is internally focussed and results in a high site coverage, loss of vegetation, poor quality open space and negative streetscape impacts. These objectives are supported by C3.17 which seeks to minimise the impact of garages, parking areas and areas for vehicular circulation with medium density developments. 4. the development in its current form results in an unsatisfactory urban form outcome, especially when considered internally to the development. I am not persuaded that the site is so constrained that the current site plan (Exhibit D) is the only feasible approach to its development to appropriately address those constraints.
6. For these reasons I find it is not appropriate to vary the DCP controls and the application should be refused.
7. For completeness I will briefly deal with the other matters in dispute.

Clause 7.3 LEP 2010

1. The parties disagree as to how cl 7.3 of LEP 2010 applies to the development. The applicant is of the view that the Clause does not apply directly to the development as the proposal is more appropriately characterised as being for the purpose of 'residential development', and that therefore earthworks are ancillary to that use, and would utilise the exception at 7.3(2)(c). The applicants submission is that the Clause would more appropriately apply to development that was seeking approval for earthworks alone, and that in the current application the seven points of consideration contained in cl 7.3 are addressed by other provisions of the relevant planning controls. If the Court took an alternative view it was applicants submission that the proposal met the requirements of c7.3(3) and that therefore the precondition was met. It was respondents submission that cl 7.3 was relevant and that the effect of the drafting of the clause at 7.3(2)(c) below is only to exclude the consideration of earthworks where a previous consent has been granted which is not the case in these proceedings. The relevant sections are reproduced below. 7.3(2) Development consent is required for earthworks unless: (a) the work does not alter the ground level (existing) by more than 800 millimetres, or (b) the work is exempt development under this Plan or another applicable environmental planning instrument, or (c) the work is ancillary to other development for which development consent has been granted
2. I relation to this clause I prefer the respondents submission that the intent of cl 7.3(2)(c) is to exclude the operation of the clause where consent for earthworks has been granted. The following consideration of the factors in 7.3(3) that I must be satisfied of prior to the grant of consent: (a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality, (b) the effect of the proposed development on the likely future use or redevelopment of the land, (c) the quality of the fill or of the soil to be excavated, or both, (d) the effect of the proposed development on the existing and likely amenity of adjoining properties, (e) the source of any fill material or the destination of any excavated material, (f) the likelihood of disturbing Aboriginal objects or other relics, (g) proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area.
3. A geotechnical report was tabled with the court as part of Exhibit C, the findings and conclusion of that report that the: site is assessed to have an overall very low to low risk of slope instability and residential development is considered to be appropriate, pending compliance with geotechnical recommendations. This conclusion was not contested by the Council. On the basis of the additional modelling and evidence provided by the stormwater engineers and their agreement that the proposal, when implemented, will have a net positive impact on the management of stormwater from the site and through downstream properties, as well as the conclusions of the geotechnical report, I find that (a) and (g) of cl7.3(3) are satisfied.
4. As approval for the use is being sought concurrently (b) is not applicable in this case. No concerns were raised by the geotechnical investigation regarding the quality of the fill or soil to be excavated, and although concerns were raised by the respondent about the suitability of the soil to sustain the proposed planting this is not sufficient to find that (c) and (e) of cl7.3(3) are not satisfied.
5. As detailed Exhibit 2 relevant mapping does not indicate evidence of Aboriginal items or relics on the land. Subject to an appropriate condition identifying appropriate safeguards and requirements should such artefacts be encountered during the works I find that cl7.3(3)(f) is satisfied.
6. Therefore subject to satisfaction that the impact from the earthworks on the existing and likely amenity of adjoining properties is unsatisfactory, the precondition is met. This is reinforced by the objective of the clause which is to ensure that any earthworks will not have a detrimental impact on neighbouring uses. Such an effect, for example, could be an increase in stormwater run-off, increased instability of the land or the like. On the basis of the evidence before the Court I am satisfied that the proposed earthworks, in and of themselves, will not have a detrimental impact on the amenity of the adjoining properties

Findings

1. As detailed in (81) through (86) I find that the precondition at cl 7.3(3) of the LEP is met.

Is the internal amenity of the proposed development satisfactory?

Evidence

1. As part of the joint conferencing process it was identified by the planning experts that it was necessary for the applicant to demolish the existing shed/garage structure adjacent the retained dwelling (unit 09) to ensure adequate solar access to Units 10 and 11. This has been incorporated in the plans before the Court at Exhibit D.
2. The planners agreed that the ground level private open spaces at the rear of units 4,5,6, and 7 will have poor solar access.
3. To provide additional amenity to units 4-8 and 11- 13 have a first floor private open space located above the garage.
4. It was Ms Laidlaw's evidence that the solar performance of the overall development is poor as a result of the site orientation and shape and the number of dwellings proposed for the site. It was her view that it was inappropriate that to achieve satisfactory solar performance the development relies on the use of the upper floor private open space, and that this is in part due to the proximity of dwellings across the internal driveway which creates internal overshadowing.
5. Ms Laidlaw gave the following reasoning for her conclusion that it is an inappropriate outcome to rely on the upper level terrace and living areas for compliance in these circumstances: 1. Such a form of development (an elevated terrace over garaging) is incompatible with the character of the built environment of Bowral; 2. The principal private open space should be at ground level, adjacent the primary living area and the secondary living area is only required because the principal living area doesn't achieve solar compliance; 3. The poor solar amenity would not have occurred if the site planning had been completed more appropriately. She identifies the site planning deficiencies that have impacted amenity as: the gun barrel driveway design; the number of dwellings; the two storey nature of the development; and the difficulty in providing ground level areas given the site benching.
6. Mr Chapman's evidence was that the development proposal achieves 3 hours of solar access at mid-winter to living areas, meeting the requirements of Part C3.11.2 of DCP 2010. In addition dwellings 1-3, 10, 12 and 13 receive a minimum of three hours of solar access to the ground floor living room windows and open space in mid-winter. Unit eight receives solar access to the north-east of the private of space between 9 am and 12 noon at midwinter, and units 4-7 will receive solar access to the first-floor terrace at midwinter. Overall the solar access to the ground level open space and additional for first floor open space in the development meets the requirements of Part C3.11.2 of the DCP.
7. It was his evidence that the secondary space provides additional amenity to the future residents and that the development is of a density that is under the Councils controls. It was his view that it is inevitable, due to the width of the site and the constraints, that there will be dwellings created on the southern side of the development and that the additional first level open space is an appropriate response to this constraint.
8. The experts also provided evidence in relation to internal privacy impacts within the development. In particular the potential for overlooking due to the proximity of dwellings across the internal driveway. Ms Laidlaws evidence was that the privacy impact of direct viewing between the bedroom and study of unit 5 and unit 10, unit 6 and unit 11 and unit 7 and unit 12 was inappropriate and difficult to ameliorate. It was Ms Laidlaw's view that the landscaping will not achieve a height that will provide screening or privacy between the adjacent or opposite units due to the limited capacity of the planter boxes. In the alternate Mr Chapman's view was there was no direct visual relationship between these units as the view was downwards and at an oblique angle, but if the Court did not accept his conclusion it was an issue that was able to be addressed by the addition of the screen to the upper windows.

Findings

1. Relevantly the overall DCP objective for medium density development in relation to amenity is to: (b) provide a higher level of amenity for dwellings in medium density development;
2. This is supported at C3 .3 Site Planning, which has, as one of its objectives, to provide a high level of amenity for new medium density residential development. And at A 2.2.4, Residential Amenity: objective (d) Contribute to the enhancement of the urban amenity.
3. In considering the different conclusions of Ms Laidlaw and Mr Chapman, I accept the conclusions of Ms Laidlaw that the privacy impacts internally to the development, and the reliance on the upper level terrace for compliance with solar access controls, is unsatisfactory. I concur with her conclusion that the amenity impacts detailed in the preceding evidence result in part from the site planning and the form of development proposed for the site.
4. The proposed development relies heavily on the provision of screening and landscaped planters to resolve overlooking and privacy impacts between the units of the development. These additional elements, required to resolve conflicts in amenity, should not replace appropriate site design and planning. Whilst in some circumstances they are an appropriate solution as identified in Super Studio v Waverley Council [2004] NSWLEC91 at [6] their long term effectiveness is uncertain: .. where proposed landscaping is the main safeguard against overlooking, it should be given minor weight. The effectiveness of landscaping as a privacy screen depends on continued maintenance, good climatic conditions and good luck.
5. It is clear that the DCP seeks a high level of amenity for medium density residential development. In considering the different evidence from the experts and with the benefit of a site inspection, I am not satisfied that the internal amenity of the development is acceptable in the form presented to the Court and the application should be refused.

Is the impact of the development, in particular on the adjoining properties, acceptable?

Evidence

1. The Court heard evidence from the public in relation the bulk and scale of the proposed units 1,2 and 3 and the potential impacts of the future residents overlooking their dwellings in 1 Cliff Street. Cross sections through the development and the adjoining dwellings are included as part of the set of architectural plans (Exhibit D). These sections demonstrate the relationship between the proposed ground levels of the two properties, as well as the height and relationship of fenestration and courtyards between the properties.
2. It was the agreed evidence of the planners that with: appropriate screening of the courtyard steps at proposed Unit 1; implementation of landscaping as proposed; and reduction of the upper floor windows facing the western boundary, appropriate privacy can be achieved.
3. These changes are proposed in the agreed conditions of consent (Exhibit 14) as follows: (b) the following design changes are to be shown on the Construction Certificate drawings: In addition to those privacy screen is marked on the approved plans, are 1.8 m high privacy screen (measured relative to finished floor levels adjoining) shall be provided in the position as indicated the full width of each of the following garage top terraces and located on the northern side of the plant on the southern edge of unit four, five and six on the western side of terrace of unit one and steps leading to the ground floor terrace of that unit. On the northern and western side of the visitor parking space located to the south of unit two all privacy screens nominated by the approved plans are required by conditioned article design with a maximum 40% transparency/60% solid construction all first-floor west facing windows of unit one, two and three are to be replaced with high silt windows, having a sill height a minimum of 1.6 m above the finished floor level the terrace located to the west side of unit three at first floor level is to be made into our non-trafficable roof. Of 1.8 m high privacy screen is to be placed along the western side of the terrace located at the north of this unit to prevent access to same.
4. As referred to in [4] agreed evidence was provided by the stormwater experts that the proposal would have a net positive impact on the management of stormwater from the site and through downstream properties.
5. The impact on adjoining neighbours during construction of the proposal and the associated stormwater and sewer infrastructure and the potential to intersect existing spring water was raised in the proceedings. The Court heard agreed evidence from the sewer experts that the likely disruption to traffic in Cliff Street to allow for the construction of the new main to service the development would be a reduction of traffic to one lane during works for a period of up to four weeks. Impact would also occur in Mittagong road for 2-3 weeks whilst works were undertaken. In addition it is inherent, given the level of excavation and the extent of works proposed, that heavy vehicle movements and associated noise would be increase in the immediate vicinity of the site during the construction period. The proposed conditions at Exhibit 14 require, amongst other conditions, the preparation of the plan that outlines how public health, safety and convenience are to be managed during construction.

Findings

1. Following consideration of the evidence and a site inspection which included a view from the adjoining properties, I find that the impacts on the adjoining neighbours are acceptable, subject to the imposition of the above conditions of consent (incorporated in Exhibit 14), noting that as a result of the findings under the headings of site design and internal amenity, the development is appeal is dismissed by the Court and consent refused.

Is the development proposed certain?

1. As part of the court proceedings a number of concurrent changes were made to the documentation that supports the development application. Within some of the documentation there are omissions. The combination of these factors, and the changes sought via the imposition of conditions, create uncertainty in the development for which consent is sought. By the end of the hearing there were no plans before the Court that were consistent and therefore capable of approval
2. In submissions the applicant sought consideration by the court of an 'amber light approach' to the finalisation of the proceedings. In Vigor Master Pty Limited v Warringah Council [2011] NSWLEC 1096 at [13] Senior Commissioner Moore defined the approach to and 'Amber light' consideration as follows: "Is the proposal as put to the Court capable of approval?" If the answer to that is no, I then proceed to ask myself the question, "Is the proposal capable of approval in some modified form, consistent with the original application? That is, does it get the amber light? And if so, what can be done to require those modifications?" If the amber light is satisfied, as in traffic lights, amber can change to green. If it is not possible to find an approvable development, then the answer must be the red light and the appeal refused.
3. Mr Clay invited me to contemplate taking an "amber light" approach if I were to conclude that the present proposal was unacceptable but that it could be rectified if there were to be some changes to reflect the evidence of the planners and amendments to the landscaping of the site. I am unprepared to do so for two reasons: 1. First, minor redesign of the proposal would not be sufficient to rectify the unacceptability of the proposal in its approach to site design and its resultant impact on internal amenity; and 2. Second, even if it was sufficient, I would not be able to set out, with appropriate specificity, what changes would be required to effect such an outcome.

Costs

1. Section 97B of the EPA Act relevantly provides: 97B Costs payable if amended development application filed (1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment). (2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that are thrown away as a result of amending the development application.
2. The parties agree that the amendments to the application were not "minor" and consequently an Order under s 97B(2) could be made.
3. At the commencement of the hearing, the applicant sought and was granted leave to rely on amended plans (Exhibit D) subject to an order for costs under s 97B of the Act. The council experts have undertaken significant assessment of the plans before the Court and the proposed amendments will result in the cost of this assessment being "thrown away".
4. In Cachia v Manly Council (No. 2) [2009] NSWLEC 1107 the Senior Commissioner pointed out that for Section 97B to be of effect, two steps are necessary: Firstly, that the Court allows the applicant to file an amended development application. Secondly, that the amended development application not constitute 'a minor amendment'.
5. Both of these are met, and I concur with the parties that the changes are not minor.

Findings

1. The Court may only make an order as to costs for amendments that are not minor. If the Court determines that the amendment are not minor then and order for "costs thrown away" must be made. As it is agreed that the changes are not minor I find that the Applicant is to pay the Respondent's costs, as agreed or assessed, under s.97B of the Environmental Planning and Assessment Act NSW 1979.

Findings

1. After considering the relevant matters under s 79C(1) of the Act, the amended plans, the expert reports, the proposed conditions of consent and taking into consideration the issues raised by the resident objectors, I am find that the development should be refused, for the reasons set out in the judgment, and the appeal dismissed.
2. The orders of the Court are: 1. The appeal is dismissed, 2. Development application DA/14/1328 for the retention of the existing dwelling house and associated structures and the erection of 12 two storey dwellings removal of existing trees and vegetation and strata subdivision at 11 Clarke Street and 5 Cliff Street Bowral is refused for the reasons provided in this judgement, 3. The Applicant is to pay the Respondent's costs, as agreed or assessed, under s.97B of the Environmental Planning and Assessment Act NSW 1979. 4. The exhibits other than 1, 4 and D, are returned. ……………. D M Dickson 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: 15 November 2016