Conclusion
44For the determination of this matter I have considered the evidence, submissions and undertaken a view. In terms of the existing planning controls it is apparent to me that LEP 1994 is the prevailing control due to the saving clause 1.8A in LEP 2012, which requires the development application to be determined as if this LEP 2012 had not been made.
45Accordingly the question of what weight should then be given to LEP 2012 has to be determined. This question has been addressed in a number of other matters on the following basis that the weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 at par 5). Relevantly, in Terrace Tower, Spigelman CJ states at pars 6 and 7 that:
6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect.
7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective.
46If the draft LEP is imminent and certain, Terrace Tower (par 7) raises the question of whether the proposed development will preserve the character anticipated by Zone R1 General Residential and whether the proposed development will undermine the objectives of the zone.
47In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states:
30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have, been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA185at193).
48This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls.
49In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan.
50Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case.
51In the subject appeal, dealing firstly with LEP 1994, the site is within Zone No 2 (Residential) and the FSPA. However, whilst cl11A prohibits detached dual occupancies in backyards it does permit detached dual occupancies on corner sites or sites with dual access. The proposal does not fit into these categories.
52Consequently, I note the applicant's submission that the circumstances for the subject development are different because the new dwelling is proposed in the front yard, where dual occupancy is not specifically prohibited. However, I think this submission should be given diminished weight because apart from the aforementioned circumstances for detached dual occupancies, cl11A specifically only encourages new attached dwellings or minor extensions to an existing detached dwelling.
53Nevertheless, proceeding on the applicant's assumption of permissibility, the next hurdle concerns the minimum site area for such development within the FSPA. According to cl 19B(3) a minimum site area of 1000 sq m is required for the two dwellings. Insofar as the site has a complying area of 1032 sq m, it is subject to the restriction of the 3m ROC. The deletion of this area leaves an effective area of 872 sq m, which council considers non - compliant.
54However LEP 1994 contains the following definition:
site area, in relation to development, means the area of land to which an application for consent to carry out development relates, but does not include any part of that land on which the development is not permitted by or under this plan or any other environmental planning instrument.
55It seems to me that this definition supports the applicant's submission that this definition does not require the area of the ROC to be excluded. But in response the council submits that it relies on the provisions of cl 11(4) of LEP 1994 relating to the minimum lot sizes for residential lots, which excludes the area of any ROC and access corridors.
56I do not consider this qualification of the site definition is appropriate in the circumstances because the LEP differentiates the various forms of development and provides different sets of controls. The 'mix and matching' of different controls is unlikely to satisfactorily achieve the objective seeking a variety of housing types. Therefore I think that the minimum area requirement under LEP 1994 for dual occupancy is satisfied.
57But the more detailed development controls in DCP 1 must also be considered. This supports the aforementioned LEP controls that the minimum area for a permitted form of dual occupancy is 1000 sq m. It also excludes detached dual occupancies except on corner lots or dual frontage lots. The permitted forms of dual occupancy are illustrated in s 4.2.13 and the only possible scenario is Option No 6. In my assessment, notwithstanding the possible minimum site area compliance, the proposal still does not satisfy the desired forms of dual occupancy prescribed in the DCP 1, which I consider is unacceptable in the subject circumstances.
58As noted previously, some weight has to be attributed to the provisions of LEP 2012. As this LEP has now been made, I think it should given significant weight, particularly the zone objectives and controls for the desired future character of the area. Whilst allowing dual occupancies in this Zone R2, cl 4.1A, it prescribes a minimum lot size of 1000 sq m, excluding any access handle or ROC. Under these controls the proposal is non - compliant and would consequently not satisfy the desired future character density for the area.
59In summary then, there is a consistent theme in the objectives for this area in both LEP 1994 and LEP 2012 to preserve and not compromise the amenity of the existing residential amenity and that is to be achieved partially by compliance with the minimum site density requirements. Notwithstanding the numerical compliance with LEP 1994, I think the significant weight should be attributed to the associated DCP 1 provisions, which are consistent with the LEP 2012 controls. On this assessment the proposed lot areas are non - compliant being considerably less than the 500 sq m per lot. Nevertheless I have further considered the merits of the proposal in terms it qualitative compliance with the other controls.
60This is a somewhat difficult task because the there are no specific controls for a dual occupancy in the front yard of a lot. The adopted process of 'mix and matching' some controls for dual occupancy and some for residential lots was very selectively undertaken and not appropriate to achieve a consistent outcome as envisaged by the controls for the different forms of development.
61The designated front setback for an appropriate dual occupancy is 5.5m according to cl 4.2.2.6 of DCP 1, with the objective to maintain and enhance the streetscape. However the proposal has a setback of 4.5m, which Mr Gosling considers adequate in the circumstances. But the design also includes the elevated ramp to the front door with its pergola enclosure within this setback area and part of the driveway to No 28 at the south - eastern corner.
62Taking into account these intrusions into the setback area, together with the prominent two - storey façade, the proposed landscaping, the drainage line and pits to drain this low- lying area, I do not consider it will maintain and enhance the streetscape amenity. It will introduce uncommon elements closer to the public domain, which I do not consider consistent with the existing streetscape characteristics and intent of the controls for dual occupancy. In this regard, I give diminished weight to the proposal potential compliance with the alternative residential dwelling setback control because it is not fully assessed on this basis.
63I also have significant reservations about the proposed landscaping based on the landscape plan presented to the Court. It is obviously inappropriate in a number of respects, including the planting of an Illawarra Flame tree about 2m from the front of the new dwelling in the setback area. Mr Gosling agreed with this inadequacy of the landscaping proposal.
64Council also raised the rear setback and building separation as issues. This is another aspect where there are no specific controls for this non - conforming type of dual occupancy. If Option 6 was applicable, a 7m setback on each lot would be required for adjoining back yards i.e. a total of 14 m. Instead, there is a general separation of 4 - 5m between the rear of the new dwelling and front of the existing dwelling, which likely to result in a reduced amenity outcome, in my assessment. The limited width of the rear yard of the new dwelling also restricts opportunities for landscaping to achieve greater visual amenity, in my opinion.
65Considering that the rear, western elevation of the new dwelling is in the order of 6m high and it includes an upper level terrace with potential overlooking of the entry to the existing dwelling, I consider that the proposal would result in a poor level of privacy amenity for the use of the private open space areas and relative privacy for the residents of each lot as compared to the surrounding amenity of the area.
66With regard to the drainage of the site, it appears to me that the overland flow path imposes significant constraints on the development of this front lot. Insofar as I accept the engineer's opinion that the majority of the overland flows from council's road drainage system travels along the sloping driveway to No 28, the desire to divert about 50% of this flow along the southern boundary of the site has unfortunate consequences.
67As it is apparently not feasible to pipe this stormwater through the proposed drainage easement, the alternative open waterway with 400 mm retaining wall results in high velocity flows along the side of both dwelling that is classified as high hazard. Consequently, it would be necessary to erect some form of pool fencing barrier for protection of residents.
68Taking into account then, that the only practical pedestrian route for the residents of the new front dwelling to the front yard is via the southern side of the house and along the overland flow path, which is to be partially fenced for safety, I do not consider a desirable outcome that enhances the amenity of the area.
69In summary then, my conclusion is that the proposed dual occupancy represents an overdevelopment of this constrained site and it does not merit consent. The relevant controls only permit limited forms of detached dual occupancy and the proposal is not consistent with the allowable building envelope options. Whilst I have considered the various merit issues, I am not satisfied that the applicant's attempt to 'mix and match' the various controls for this non conforming development ultimately results in a development that is consistent with the LEP 1994 'No 2 Residential' objectives to preserve and enhance the character and amenity of the established residential area or that it achieves greater visual amenity with appropriate landscaping.