Conclusion and findings
39An issue in the appeal is how the provisions of clause 54A(2) is applied. There is no dispute between the parties that the application is an existing application for the purposes of the clause. The clause provides that the application may (emphasis added) be determined as if the amending SEPP had not been made. The use of the word "may" is different to those included in other clauses of the policy which use "must" (see clause 54A(3)). For that reason, it is apparent the drafters of the policy had a different intentions for the transitional provisions. This matter has been considered by Tuor C in Huang & Lei v Parramatta City Council [2012] NSWLEC 1077 where she considered a similar case where that development would also be prohibited if the amending SEPP were to be applied. She says at [23] - [25]:
23The exercise of discretion to determine which version of the SEPP to apply would require a consideration of the circumstances of the case and the consequences of the exercise of discretion. In the circumstances of this case, an assessment of the application under the amending SEPP would result in the automatic prohibition and refusal of the application as it is not permissible under the Amending SEPP. No assessment of the merits of the application would be required, in particular a consideration under cl 54A(3) of whether the design of the development is compatible with the character of the local area. If the application were to be assessed under the version of SEPP ARH in place at the time of lodgement, cl 54A(3) would also be a mandatory consideration.
24In exercising the discretion, I acknowledge that the normal purpose of a saving clause is to have a savings effect on an 'existing application' by not introducing retrospective controls that are determinative. It preserves a developments permissibility while enabling a consideration of an application's consistency with the planning approach sought by the new controls. It would appear to be fair and reasonable that an application, which was permissible at the time of lodgement, should not be rendered impermissible by a new instrument. Rather a consideration of the merits of the application, under the Original SEPP ARH, including an assessment of the compatibility of the design with the local area, should be undertaken.
25In the circumstances of this case and in exercising the discretion under cl 54A(2), I find that the application should be determined as if the amending SEPP had not been made.
40I concur with those findings and turn to the merits of the application and in particular, whether the design of the development is compatible with the character of the local area. There is no dispute that the local area is the block bounded by The Promenade, Church Street, Orchardleigh Street and Broughton Street. I concur that the local area is, for the most part, defined by that street block but also extends to those properties on the opposite side of The Boulevarde. Those lots have been developed with similar attributes to those within the street block.
41Having defined the local area, it is then necessary to determine the character of that area. In this regard, the experts agree that the area is typified by predominantly older style, single storey dwelling houses with some newer two storey dwellings. These dwellings are sited on large allotments and front setbacks of houses are variable and generally dominated by green areas, not necessarily landscaped areas.
42The dwellings are primarily sited towards the front of the allotment and the rear yards are large and provide a 'green zone' and significant separation between buildings. Where there are outbuildings, these are usually smaller in scale to the main dwelling and located towards the rear of the allotment. Whilst there are some larger buildings, they are not the dominant built form. Apart from a multi-unit housing development in Orcharleigh Street, there are no buildings that occupy a large proportion of the length of the allotment. Where dual occupancy development has been approved, those buildings provide separation and retention of that 'green zone'.
43The design of the development attempts to respond to the local character through its single storey design however, the consequence of this choice is a building that extends some 47 m along the length of the site leaving a minimal area for the preservation of the 'green zone'. The carport forms the dominant element of the front façade and the narrow entry foyer and small window do not reflect the presentation of other dwellings in the local area. Whilst I accept that to be compatible, a development does not have to be the same, I have regard to the planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191. Having regard to those principles, I prefer the evidence of Mr Kerzinger that the design of the development is not compatible with the character of the local area.
44The enquiry does not stop there, the merits of the application must also be considered. In this regard, I also accept the evidence of Mr Kerzinger and Mr Williams that the internal and external amenity impacts of the design of the building are unacceptable, and whilst the development satisfies all relevant controls contained within SEPPARH, assessment of the application under s 79C(1)(c) of the Environmental Planning and Assessment Act 1979 is also required. In this regard, I find that the application would result in unacceptable amenity impacts to adjoining properties, particularly 121A. I do not consider that the amendments foreshadowed in the Version D plans sufficiently address the impacts of the design deficiencies highlighted by the council.
45Those considerations also extend to consideration of whether the provisions of the Council's Flood Management Policy that relate to the proposed development have been taken into consideration. As stated at [25], the Court did not have sufficient information to form any conclusion in relation to the provisions of clause 11 of the LEP, in particular subclauses (2) (a) and (b). However, in view of my finding that the development is not compatible with the character of the local area and that I give the provisions of clause 54A significant weight, that fact, together with the failure of the application on a merits assessment means that the drainage issue is not determinative and that it is not necessary to undertake any further investigation of that issue.