49 In his final report, Mr Juradowitch also states, [Note: Exhibit 1, Tab 19, p 11]
Seniors living developments in low-density residential environments almost invariably incorporate buildings significantly larger than existing dwellings. In these situations it is desirable to articulate the building horizontally and vertically so that it does not readily appear as a single large building mass. This has been achieved to some extent in the proposed development, although it will in my opinion essentially appear as a single large building from Pittwater Road and from Pittwater.
50 Mr Robson, SC, submitted that Mr Juradowitch's view that there should be a greater visual break between the two lower levels and two upper levels of the building so that the two components would appear separate when viewed from Pittwater Road and Pittwater was "…entirely consistent with the view expressed by Mr Piggott that the scale of a building in terms of its bulk and visual mass does not respond adequately to that of the existing surrounding developments".
51 Mr Robson, SC, submitted,
"It is established that an aspect of the character of the neighbourhood is that '…built form is secondary to landscaping and vegetation' . In this regard, the reliance on planter boxes is not consistent with the landscaping character of the neighbourhood; and such landscaping is incapable of screening bulky built forms.
52 Mr Clay submitted that the proposal would contribute positively to the area and would meet the requirements of cl 31(a) of SEPP-SL to "…recognise the desirable elements of the location's current character (or, in the case of precincts undergoing transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area", and cl 31(c) of SEPP-SL, "…to maintain reasonable neighbourhood amenity and appropriate residential character".
53 He submitted that cl 31(e) of SEPP-SL "…embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape", had been not placed in issue by the council and as there has been "…no request to deal with this [and] in the absence of evidence", it "…must remain not in issue".
54 He submitted that the proposal would contribute to the quality and identity of the area as required by cl 31(a) of SEPP-SL as it is proposed to be landscaped with canopy trees and other perimeter planting stepping up the land with the slope.
55 On the site plan, in Exhibit 9, Mr Piggott indicated the viewpoints from which he considered the proposal to be out of character with the locality and neighbouring properties. He translated these viewpoints onto Section AA. From viewpoints C and D in front of the proposal in Pittwater Road he maintained that the proposal would not blend in. Despite this evidence, I am satisfied that from these viewpoints that the superstructure would be recessive in form and would rise up with the slope of the ground. I am satisfied from these viewpoints that the proposed landscaping on the terraces and the shadow line of each broken floor level would ensure the proposal would recede in the view. The elevation would also be broken in that the floor levels of the eastern part of the proposal would be at a higher level than those on the west.
56 I have a preference for maintaining an informal landscaped appearance in the front setback and to this end the deletion of the formal garden beds and replacing these with earth berms would, to my mind, assist in blending the proposal into the streetscape and in particular the front garden of No 2089 Pittwater Road. However as the conditions were received late and as I was not able to enquire as to the party's views on this I have not conditioned this.
57 Senior Commissioner Dr Roseth, in the case of GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268 proposed principles with relation to SEPP 5, since superseded by SEPP-SL, concerning compatibility between a SEPP 5 development and the surrounding low-density zones and touched on neighbourhood amenity and streetscape. To the extent that these planning principles remain relevant they are:
· The first principle is that buildings in a SEPP 5 development do not have to be single-storey to be compatible with the streetscape even where most existing buildings are single-storey. The principle does not apply to conservation areas where single-storey dwellings are likely to be the major reason for conservation.
· The second principle is that where the size of a SEPP 5 development is much greater than the other buildings in the street, it should be visually broken up so that it does not appear as one building. Sections of a building, or separate buildings should be separated by generous breaks and landscaping.
· The third principle is that where a site has existing characteristics that assist in reducing the visual dominance of development, these characteristics should be preserved. Topography that makes development appear smaller should not be modified. It is preferable to preserve existing vegetation around a site's edges to destroying it and planting new vegetation.
· The fourth principle is that a SEPP 5 development should aim to reflect the materials and building forms of other buildings in the street. This is not to say that new materials and forms can never be introduced, only that their introduction should be done with care and sensitivity.
58 I am satisfied that in the particular circumstances of this case, that each of the above principles applied to the proposal are adequately addressed.
59 Mr Robson, SC, questioned Mr Juradowitch about an appropriate neighbourhood fit and whether the proposal would be seen as being of good design as required under SEPP-SL. Mr Juradowitch referred to the words of the SL Guidelines concerning 'good neighbourhood fit', [Note: Exhibit 1, Tab 16, p 4]. He was of the opinion that after analysing the existing neighbourhood character and taking into account that the landscape concept plan shows native trees along the frontage maturing to a generous height, that the impact of the proposal would be positive. He considered the removal the existing garage on the land would be a positive feature and would open up views to and from the Carter's residence at No 2089 Pittwater Road. He added that the stepped form of the proposal would make no greater impact near the Carter's house than the existing steep bitumen drive along the western side of the land. He concluded that the proposal would make a positive contribution to the area and the stepping of the design with the slope of the land would ensure the proposal would not be antipathetic to the current character.
60 Mr Juradowitch's evidence is helpful in this regard and I am assisted the composite photograph of this section of Pittwater Road provided by Mr F Makin, President of the Bayview - Church Point Residents Association Incorporated in Exhibit 6. Also the height poles erected on the land on the site inspection assisted me to confirm the height and bulk of the proposal.
61 The overall height of the proposal would not exceed the ridge height of the existing dwelling on the land at 18.22m AHD. The parapet height of the western part of the proposal would be at 16.02m AHD and the parapet height of the eastern part of the proposal would be at 17.62m AHD or 600mm below the existing ridge height.
62 The front elevation as shown in the plans in Exhibit A would be landscaped at each level around the sides, front and back and this would soften the impact of the proposal when viewed from the north. Many of the houses nearby are two-storeys in height, even No 2089 Pittwater Road is single-storey with an attic and the proposal would fit in with the neighbourhood and with each nearby dwelling.
63 Standing at Mr Piggott's Points C and D on Pittwater Road, the western part of the proposal erected on the subject land, in perspective would appear to be around the ridge height of the existing building on the land. The eastern part being projected around 3m further to the north and elevated 1.6m above the western part would appear around one floor higher than the existing building, viewed from the same points in Pittwater Road. This fact is gained by assessing the angles of view on Section AA and interpolating for the eastern part of the proposal.
64 As the view becomes more oblique as with points A, E and G, the side elevation stepping with the landform and single-storey to two-storeys in height comes more into view. This is gauged by referring to the east and west elevations. I am satisfied that the western part of the proposal would relate well to the scale of the Waterhouse dwelling at No 2089 Pittwater Road and its Magnolia grandiflora in the front garden. I am also satisfied that the eastern part of the proposal would relate well to the building at No 2081A Pittwater Road to the east and upslope. The evidence of Mr Piggott that the proposal would not fit in does not persuade me. Despite the proposal being of stepped two-storey design, I am satisfied that it would be compatible with the streetscape and would satisfy the first principle under the Wombarra tests.
65 The second Wombarra principle would be satisfied, as even though the proposal would be of a size much greater than the other buildings in the street, it would be visually broken up so that it would not appear as one building. The proposal would broken-up horizontally and vertically and the terraces would be landscaped.
66 The third principle would be largely satisfied, as the proposal has been designed to make use of the slope of the land and this assists in reducing its visual dominance. The proposal would also be softened visually by new vegetation proposed around the perimeter of the land.
67 The fourth principle would be satisfied, as the proposal would incorporate materials that are found in the street. Although the proposed stepped building form is unlike other building forms in the street it is a form that is suitable given the steep slope of the land.
68 Despite an increase in density from one dwelling to six, I am satisfied that the Church Point and Bayview locality, would remain a low-density residential area, as required under the future desired character statement. The area would remain characterised by single-storey and two-storey residences in a natural landscape setting. Given the limitations on the access, it is unlikely that new SEPP-SL developments would be located far from the Pittwater Road frontage. Thus it might be expected that most of the existing dwellings in the area especially those up slope would remain or be replaced over time by similar dwellings.
69 The proposal would be of a height no greater than the existing tree canopy, and would reflect the predominant scale and setbacks of existing development. I am satisfied given the evidence of Mr Juradowitch that the proposal is designed to address the street, integrate with the public domain, and be at a 'human scale'.
70 The proposal could not be seen as developing the hillsides or is in the vicinity of ridge tops on the southern side of Pittwater Road. I am satisfied that it would integrate with the natural landscape and topography. There are few indigenous trees and vegetation to be retained and as shown in the landscape concept plan new planting is proposed to enhance the treed character of the land and would assist in blending the proposal into the natural environment. I understand that the application is willing to consider not erecting side fences and the visual impact of fencing would be lessened thereby and would provide for the movement of wildlife across the land. Informal landscaping within the front setback would be an improvement as discussed above.
71 Mr Juradowitch concluded, [Note: Exhibit 1, Tab 19, pp 29-30]
Having regard to the nature and context of the site, the existing and desired future character of the area, the applicable planning controls and the outcomes envisaged by those controls, I am of the view that the proposed development as detailed in the revised plans dated July 2006 is worthy of conditional approval.
My principle concerns in relation to the April 2006 design of the development were summarised in my preliminary planning report as follows:
· Excessive building bulk exacerbated by the elevated nature of the site, the very large front terraces and extensive privacy screens and other structures on these terraces;
· Inadequate side setbacks and insufficient area for landscaping along the side boundaries, given the two-storey equivalent scale of the side elevations and the length of these elevations;
· The building does not complement or contribute to the character of the locality or the streetscape as a consequence of its large size and extensive site coverage in comparison to neighbouring development;
· Its overbearing relationship to the neighbouring and much lower property at No 2089 Pittwater Road, Bayview.
The above concerns that I identified in relation to the April 2006 plans have been substantially addressed in the revised plans by reducing the floor space ratio to less than 0.5:1, increasing the landscaped area to at least 50% and providing a greater setback to side boundaries. Perceived building bulk has been reduced by increasing front setback and landscaped area, replacing tall fixed privacy screens to terraces with planter boxes and reducing the width of the building by 1200mm to provide more effective screen landscaping to side boundaries. The proposal achieves an acceptable interface with neighbouring properties in terms of building bulk, height, visual impact and landscaping.
I have some reservations with the perceived bulk of the proposed building as viewed from Pittwater Road and Pittwater in the context of creating the perception of two smaller buildings, where it is proposed to construct a relatively large building within a low density residential environment. My preference would have been to increase building separation of the lower levels of the northwestern and southwestern components of the building from 2 metres to 4 metres and incorporate some landscaping between these components of the building.
In regard to building bulk it does need to be acknowledged that the stepping back of the building with the slope of the land, differentiation in the floor levels of the two building components and extensive landscaping proposed for the front setback will in combination significantly moderate the visual impact of the front elevation of the building. Accordingly, I am of the opinion that the proposal achieves an acceptable bulk and visual impact relationship to Pittwater Road and Pittwater, if the proposed landscaping is planted and maintained.
72 I accept the thrust of his evidence and I am satisfied that, although the proposal would be of a different visual character, its bulk and scale would be compatible with the streetscape and satisfactory when considered under s 79C of the Environmental Planning and Assessment Act 1979 and under the requirements of SEPP-SL. I would not refuse the application for reason of its character and built form.
Site coverage
73 Mr Piggott sought to apply the maximum 40% site coverage requirement of DCP21 Section D4.10. The site coverage of the proposal would be in the range of 48.8% [Note: Issue 1(b) above] and 49.6% [Note: Exhibit 1 Tab 19, Mr Juradowitch's final report]. There is an argument that the DCP21 standard only gives an indication of the likely future character of an area where it applies and should not be seen to govern SEPP-SL development that has other standards to meet. Mr Piggott seemed to acknowledge this as he was of the opinion that this would provide a good indication of "…how the proposed development will sit within the context of the existing and future development on adjoining sites".
74 Mr Juradowitch noted that SEPP-SL would override the requirements in DCP21 and would envisage some change in character as a result of an increase in the density of development.
75 The proposal would be setback from the front a distance of 18.5m on the east and 27.0m on the west measured parallel to the side boundaries and to the external enclosing walls of the proposal. The proposed planting beds and garden terraces that screen the basement walls would be setback from the front boundary at around 18.5m on the east and 27m on the west.
76 Mr Juradowitch was of the opinion that the proposed landscaped terraces create new useable recreation area and outdoor space that would add to the open space on the land. He was content that the setbacks would be adequate and together with landscaping to all four boundaries would provide a proper setting for the development.
77 I accept the evidence of Mr Juradowitch that the proposal would be seen in a landscaped setting and I am satisfied the proposed site coverage is sufficiently limited as to be not a reason to refuse the application.
Excavation
78 The excavation is deep and voluminous, however once the construction process is completed the building and reconstructed landscaping would fill the excavation.
79 As amended in July 2006, the proposal would not involve an excavation of the land from "boundary-to-boundary" as alleged in the issues and there are proposed deep soil zones to provide for screen planting along the side boundaries that would enhance privacy between new and existing dwellings.
80 During the hearing Mr Crozier, civil engineer for the applicant, gave a more detailed explanation of the steps to be taken in shoring the excavation. As a result, I am satisfied that it would be practicable to excavate the land and the deferred commencement conditions proposed seem adequate at this stage. It is clear that further site investigation would be needed and the method of stabilising the soil during excavation be further clarified. This would require:
· at least 4 cored boreholes put down across the building envelope to the base of the excavation;
· the rock cores are to be tested for strength and logged for defects with a view to forming a model for the design of the shoring support;
· groundwater levels are to be determined and samples of both overburden soil and groundwater are to be taken for testing;
· the above samples of soil and groundwater are to be tested for PASS conditions and the suitability of the groundwater for discharge off-site is to be determined;
· the geotechnical site model be used to determine the likely lowering of the groundwater level and the results given to an Arborist for evaluation of the effect on the existing trees and vegetation;
· the testing results are to be used to confirm the adequacy of the design for the shoring support as shown in the Schematic Excavation Staging Plans;
· a Method Statement is to be prepared to describe the excavation sequence;
· a detailed risk assessment is to be prepared for the excavation process using the adopted design and method statement.
81 Deferred commencement conditions are proposed to address these matters.
82 Other conditions require dilapidation studies to be undertaken of nearby properties to address any damage due to vibration.
83 Apart from the philosophical view that this is "scraping" the ground inappropriately as submitted by Mr Robson, SC, and non-renewable energy expended in the process, I am not persuaded that the application should be refused for reason of the extent of excavation.
Privacy
84 As explained by Mr Juradowitch, based on the July 2006 amendments of the plans, the site coverage of the proposal has been reduced by 3% from previous versions of the plans, to around 49.6%; landscaped area has been proportionally increased; the outward pergolas on the terraces have been deleted and planter areas on terraces increased in area. It is now proposed to plant screening vegetation in the proposed planter boxes on the terraces in place of privacy screens. The view to the neighbours properties especially that of No 2089 Pittwater Road would be through the screening vegetation growing in the planter boxes and along the side boundaries, as shown in the landscape concept plan prepared by Botanica in Exhibit B.
85 The proposed planting within the western side setbacks varies in width from 3.1m to 3.985m near the rear garden of Mr and Mrs Carter's property at No 2089 Pittwater Road. It would comprise informal screen planting, of Banksia ericifolia, (Heath Banksia), Banksia integrifolia, Coastal Banksia, Syzigium australe, (Lilli Pilli), further to the south are Elaeocarpus reticulatus, (Blue Berry Ash) and other species that mature to between 5m and 8m.
86 Mr Juradowitch was of the opinion that if it were necessary, screens with horizontal timber slats around 600mm high could be included on the eastern and western sides of the terraces. He had recommended in his preliminary report on the application that the large screens originally proposed be deleted and landscaping be relied on for screening.
87 In the planter boxes at the edge of the terraces would be feature shrubs and bushes of low habit. I consider the low-height physical screens suggested by Mr Juradowitch to supplement the screening foliage would be unnecessary as the view from the terraces is likely to be 'blinkered' by the screening planting along the east and west sides of the development. The principle views are towards the north and the waters of Pittwater and not into nearby properties.
88 I would not refuse the application for reason of an adverse impact on privacy.
Cumulative impact
89 The council was concerned that having regard to other SEPP-SL developments that are either under construction at No 2091 Pittwater Road and on appeal at No 2079 Pittwater Road, that the cumulative impact on the existing and desired future character of the area would be detrimental.
90 I am required to consider the present development application on its merits and as outlined above, I am satisfied that the proposal for the subject land would fit in with the existing and desired future character of the area. Other developments will also need to be considered on their merits in context and if at some stage the consent authority considers a development will not achieve that end of fitting in, it should be refused.
91 However, I am satisfied that the present application is not one that should be refused for reason of cumulative impact.
Other matters
Potential heritage listing of No 2089 Pittwater Road
92 This matter was not given prominence in the council's case however, Mr and Mrs Carter, the owners of No 2089 Pittwater Road were concerned to ensure that the proposal would not adversely impact on the architectural significance of their Waterhouse-designed dwelling.
93 This dwelling is of some architectural significance as is the May Gibbs house at Neutral Bay by the same distinguished architect and is setback around 1.1m off the common boundary with the subject land and at a variable distance off Pittwater Road, however, near the common boundary it is setback around 17m. A large Magnolia grandiflora in its front garden is a significant landscape element in the streetscape and filters the view of the house from some viewpoints in Pittwater Road. The ground floor level of this dwelling is around 4.0m AHD (estimated from survey in Exhibit B) and the ridge level is 11.71m AHD.
94 Mr Juradowitch stated, [Note: Exhibit 1, Tab 19, p 28]:
Given that the building is not a listed heritage item and the improved interface offered by the revised plans of July 2006, I do not consider that heritage impact issues would justify refusal of the application.
95 Existing on the subject land near this dwelling is a steep driveway that leads to the existing dwelling that would be removed if the proposal were erected.
96 As shown in the architectural plans in Exhibit A and the landscape concept plan in Exhibit B, there would be a retained garden bed setback 1m from the common boundary with the soil level at 4.42m AHD near the eastern side door to the dwelling on No 2089 Pittwater Road. Further to the south, near the back wall of No 2089 Pittwater Road there would be another retained planter bed setback a similar distance from the common boundary and with the soil level at 5.72m AHD. Further to the south would be another planter bed setback the same distance as the lower beds with the soil level at 6.72m AHD over the top of the basement car park. Other planter beds further to the south are proposed partly over the basement car park and partly in the side setback with soil at higher levels. This is described on Section BB on the western boundary. The terrace off the main bedroom of Apartment No 1 would be around 6.32m AHD and setback 3.985m from the common boundary. Thus people standing on that terrace with an eye height of around 7.92m AHD would be around 2.32m above those standing within the ground floor of No 2089 Pittwater Road. Facing onto the subject land are the kitchen of No 2089 Pittwater Road to the north and another room to the south. The back garden of No 2089 Pittwater Road would be at a level of around 4m AHD. The screening vegetation on the terraces and within the side setbacks would filter the view to and from the proposal.
97 Planter beds are proposed for the eastern and western parts of the proposal. Planter beds within the front setback are designed apparently to screen from view the proposal's northern basement car park walls and to step the landscaping with the slope. Near No 2089 Pittwater Road there would be stepped landscaping of planter beds and a new driveway in place of the existing landscaping and driveway. The proposal's Apartment 1 balcony edge would be setback around 1.5m behind the line of the southern wall of No 2089 Pittwater Road.
98 Given the height of the proposal behind the line of the southern elevation of No 2089 Pittwater Road, the landscaping and the additional setback to the new driveway, I am satisfied that the relationship between the proposal and this neighbouring dwelling would be acceptable and not a reason for refusal. I am also satisfied that the erection of the proposal would not adversely impact on the potential listing of No 2089 Pittwater Road as a item of environmental heritage. However, I do question the need for the planter beds to be retained as proposed. I would have thought that planting on a sloping earth berm would have been adequate to screen the basement walls of the proposal.
Neighbourhood amenity
99 Mr Robson, SC, submitted that that where a prohibited form of development under a local planning instrument is made permissible by a State environmental planning instrument the potential adverse amenity impacts should at least be minimised. To this end he submitted the applicant bears the onus of demonstrating that adequate regard has been given to the design principles in the Policy.
100 In this case he submitted the applicant has failed. The neighbours reside in this locality because they appreciate its existing character and they are entitled to expect that new buildings will contribute to the quality and identity of the area (cl 31(a)).
101 He submitted that this proposal, with its uncharacteristic bulk and scale, its inconsiderate siting and its lack of relationship to the site's landform should be refused.
102 Mr Juradowitch stated, [Note: Exhibit 1, Tab 19, p31]:
The majority of issues raised by objectors have been addressed in the discussion of issues identified by the Council. In my opinion the concerns of objectors in relation to overall bulk and scale, site coverage and inadequate landscaping to side boundaries were justified in relation to the April 2006 and supported my previous assessment that the proposal was an over-development of the site and out of character with the low density treed character of the area.
103 I have examined the relationship of the proposal with No 2089 Pittwater Road as set out above. To the east of the land other properties are well removed from the proposal as there is a 3.5m wide public right-of-way flanking this boundary of the land and there is a private driveway linking Pittwater Road to 2081A Pittwater Road and by foot to No 1 Corniche Road.
104 The rising stepped design of the proposal from north to south and stepping up from west to east to my mind provides a satisfactory visual relationship with all nearby buildings. The Carter's property No 2089 Pittwater Road with its floor level of around 4.0m AHD, up to the Sheidow property at No 2081A Pittwater Road with its ground floor level at around 16m AHD to 17m AHD, to the Lee property at No 1 Corniche Road with a ground floor at 20.05m AHD and pool surrounds at 18.16m AHD, all relate well to the proposal and the proposal could be seen as a hub around which the nearby properties step with the topography. Landscaping is proposed on the subject land that would complement the landscaping on nearby properties and the hillside would appear to be hard man-made elements softened by landscaping. The proposal is remote from the ridge, which it might be expected will remain much as it is today.
105 Views would be available over the top of the proposal from a standing position on the deck surrounding the pool at the Lee property at No 1 Corniche Road. The proposed roof would not present as any greater mass in the view than the existing roof of the existing dwelling on the subject land. The colour of the proposed roofing material would need to be such as to not cause glare for nearby residents. Views would be available over the proposal from the Sheidow property No 2081A Pittwater Road and the Williams property at No 2081 Pittwater Road.
106 I would not refuse the application for reason of a lessening of neighbourhood amenity
Overdevelopment
107 This matter was raised by the residents and was not pressed strongly by the council and was not in issue.
108 Citing deficiency of setbacks, extensive excavation and adverse visual impact of boundary walls on neighbours, Mr Robson, SC, submitted that the proposal would be an overdevelopment of the site. He was critical of Mr Juradowitch's "…slavish adherence to the FSR" under SEPP-SL. Mr Robson, SC, submitted that the proposal is required to be 'a good neighbourhood fit" and it fails.
109 Mr Juradowitch considered the July 2006 amendments to the proposal and was of the opinion:
The revised plans are generally positive in relation to the objections raised, particularly in relation to increased side setbacks and landscaped area, especially along the northwestern boundary. Other improvements include replacement of privacy screens with plantings and lowering of roof height. Overall building envelope/bulk has been reduced somewhat from the April 2006 plans.
An objection was raised in relation to a perceived breach of the single-storey building height within the rear 25% of the site. My assessment indicated that there was no such breach, however in the revised plans where there is a 1 metre reduction in rear building setback, there is now a minor encroachment of the single storey building height limit within the rear 25% of the site. The extent of this encroachment is limited to a 0.9m2 portion of Bedroom 2 of Apartment 5 for a wall length of 600mm.
110 Mr Juradowitch in oral evidence said that although the original plans would have been overbearing on No 2089 Pittwater Road, with the increased setback and landscaping the proposal would not be sufficiently overbearing to warrant refusal. He agreed with Mr Robson, SC, that this was a matter of fact, degree and judgment.
111 I consider the FSR of the proposal is germane to the consideration of overdevelopment. The July amendments limit the FSR to 0.462:1 and as a result the application cannot be refused under SEPP-SL on the FSR grounds alone. I accept the thrust of Mr Juradowitch's written and oral evidence and I am satisfied that the amended plans do not represent an overdevelopment of the land or would be unreasonably overbearing.
Front, side and rear fences
112 The panoramic photograph in Exhibit 6 is illustrative of the type of front fencing found along this stretch of Pittwater Road. The rough-faced sandstone front fence on the subject land is characteristic of the front fences in the area and links with one that is similar on No 2089 Pittwater Road. I consider the existing front fence should be the model of an appropriate front fence for the proposal. Condition 35 is imposed to this end. I have amended this condition to ensure that it would be built on the front alignment of the subject land and not setback 1m as proposed by the parties in the amended conditions.
113 I consider if the applicant persists with retaining walls in the front garden, which I prefer should be removed, these should also be of rough faced sandstone. I have also deleted that part of the condition that would require fences at and near the front to be 50% transparent.
114 At the site inspection local residents pointed out that they would prefer no side and rear fences enclosing the subject land. The reason for this was that the present landscaping is informal and wildlife passes through parts of the land. The residents were concerned that normal 1.8m high paling fences side and rear fences would be likely to impede the passage of animals and would be inappropriate visually. This is a matter best to be left to the applicant and the neighbours to consider, however, it seems to me a valid point. The area is most attractive for reason of its natural setting and to maintain this would be appropriate.
SEPP1 objection
115 The development standard to which this SEPP1 objection relates is cl 38(4)(c) of SEPP-SL that a building located in the rear 25% area of the site must not exceed 1 storey in height.
116 The area of non-compliance is limited to around 0.9m2 of floor space in Bedroom 2 of Apartment 3 or around 800mm of the length of the western external wall and 6700mm along the southern external wall (2.68m2 of gross floor area including external enclosing walls) and a maximum height on the western elevation of 1m above natural ground level. The extent of non-compliance is shown by means of a dotted line on plan DA-004(1) and in elevation on DA-101(1) prepared by Michael Fountain Architects Pty Limited in Exhibit A.
117 The parties were agreed that the non-compliance would not result in an increase in the perceived height of the building and Mr Juradowitch considered the applicant's SEPP 1 objection to be justified in the circumstances and would result in a positive outcome in terms of the objectives of the subject development standard.
118 I accept that evidence and I am satisfied that compliance with the standard would be unreasonable or unnecessary in the circumstances of the case and the SEPP1 objection to cl 38(4)(c) of SEPP-SL may be upheld.
119 For the above reasons, the appeal is upheld.
Conditions
120 The conditions are those in Exhibit 8 as amended after the hearing. Condition B24 remained in dispute. The applicant's position was that the "…planting should be in accordance with the [Revised] Landscape Plan as amended by conditions". The respondent's position was that:
Screen planting is to be provided, which after three years will, in conjunction with the canopy planting, screen 50% of the built form when viewed the street. Species selection is to incorporate the dominant species growing in the area or locally indigenous species. This screen planting is to be retained over the life of the development and replaced if any part of it should die or be destroyed or removed.
121 I prefer the applicant's position. If the planting is not what is expected after three years, the council could consider taking action in Class 4 to enforce the conditions.
122 I have amended Condition 35 relating to the front fence it now reads:
35. The front fence shall be of rough-faced sandstone, similar to the existing fence and: (i) be no higher than 1m above natural ground level; and (ii) deleted; and (iii) the side boundary fencing in the front setback area is to be no higher than 1m above natural ground level (iv) not restrict casual visual surveillance of the street, and (v) provide a 45 degree splay (or equivalent) either side of any vehicular entrance, minimum dimensions of 2m by 2m. (vii) deleted.