62 The parties agree that, as the two allotments are already less than the minimum lot size prescribed by the 1998 LEP, the subdivision could be undertaken as complying development. Certification and registration of the subdivision would be required prior to the issue of a construction certificate for the dwellings.
Findings
63 I concur with the council that the lack of detail provided in relation to the plans before the Court did not assist the residents in understanding the amended plans. I also note that there are a number of anomalies in the amended plans in relation to levels and accordingly, this fact, along with the lack of dimensions has made it difficult to precisely calculate FSR, height and extent of excavation and reliance on scaled dimensions has been required. The provision of shadow diagrams would have greatly assisted the residents' understanding of the amendments and may have satisfied them that the impacts of the development were acceptable however, at this stage, this is not the case and their concerns remain.
64 In his submissions, Mr Loether for the applicant referred me to the Statement of Environmental Effects (SoEE) that had been prepared by Mr Neustein in support of the application which, he said, would provide further evidence that the development was appropriate for its context and detail those areas of the council's contentions not addressed in the joint expert report.
65 I note that Mr Neustein has, in relation to building height and FSR, adopted the standards that apply for buildings other than dwelling houses (i.e. for RFBs) and argues that these standards are more appropriate in the circumstances of the case because of the form of development on the adjoining lands. Whilst I accept that he has had regard to the dwelling house controls of the council's DCP, I am concerned that he, and Mr Harding in relation to solar access controls, has adopted another standard. Mr Harding stated that the council's control of three hours solar access control was "onerous". It is important that the intent of the controls is primary to consideration and that they are not disregarded as general policy. The Court of Appeal, in Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 makes this distinction where it is stated that "the Commissioner was not entitled to take the view that the standards set by the DCP were inappropriate for reasons of general policy".
66 Whilst I accept that the adjacent development is of a higher FSR, those buildings are RFBs and not dwelling houses. I note that the building to the north, being a newer development, is set well off the side boundaries, which is a requirement for development of RFBs under the council's DCP so as to protect the amenity of the adjoining property. The proposed development on the site is not a RFB and accordingly, does not enjoy the right to utilise those controls that apply for that form of development unless the objectives of the controls are met. Nor does it propose to provide the boundary setbacks that are applicable to RFBs. I note that Mr Neustein argues the objectives are met in relation to the controls for cut/fill, excavation and views to private open space but rather adopts the controls for RFBs for FSR and building height. He does not argue, in the SoEE that the objectives for those controls are met.
67 I do not accept that this is a correct approach to follow unless the objectives of all of the controls are met. I do not have any evidence available to me that demonstrates that the proposed development, with the FSR of at least 1.08:1, minimises adverse effects of bulk on neighbours. I also note that this FSR is in excess of that allowed for the construction of a RFB, which has a 0.9:1 maximum that reduces to 0.65:1 for sites less than 700 square metres. Such control accords to that for dwelling houses on the site.
68 Similarly, I have no evidence that the height objective of ensuring buildings "preserve privacy and natural light access for neighbouring residents" and "allow a sharing of views" has been met.
69 I agree with the planning experts that the amendments made to the plans, have gone some way to addressing the view and solar access impacts. I do not however, share their view that the development satisfies those objectives of the council's DCP to such an extent that would justify its approval.
70 I do accept that the character of the locality varies from semi-detached houses to four storey RFBs and accordingly, there is no consistent streetscape. Accordingly, an assessment of the impact of the proposed development suggests that there may be some argument to allow a larger building than that which is contemplated by the council's DCP provided the objectives of that plan are met.
71 I also agree that the building, No. 198 contributes to the problem, due to its proximity to the boundary, however this is a legacy of history and still requires consideration.
72 Applying the planning principles of Roseth C in Tenacity Consulting v Warringah [2004] NSWLEC 140 I agree with the experts that the views available from the site and the adjoining property, particularly Unit 3 No. 198 Beach Street are highly valued. Those views are enjoyed from the living and dining rooms of that dwelling and whilst they are side views, they are the primary views from that dwelling and, given the circumstances in this case, are views that can be maintained, particularly from the living room, with minimal redesign of the proposed development. The experts description of the view loss would classify it as severe and accordingly, given the areas of non-compliance of the development in relation to height and particularly FSR, the application must fail as it does not meet the controls and objectives of the council's DCP.
73 I do not accept the view of the experts that in this case the FSR is only about solar access. I consider the dwellings as proposed are too big, and that there are options to set the building back at the front, upper level of No 196, so as to reduce its impact on adjoining property's view loss. Similarly, a reduction in the building height would improve views from adjacent properties and this could be readily achieved through re-arrangement of stairways and reduction in the floor to ceiling height of the development. With a few more minor changes, the objectives of the council's DCP could be achieved, the development would not need to be reduced significantly in size and the amenity of neighbours could be preserved.
74 Given the constraints of the site, I consider the garage arrangements to be satisfactory, particularly if the floor to ceiling heights were minimised. The garages are to be constructed in line with the adjoining development and are forward of the main dwellings in order to improve solar and view access to adjoining properties through the increased upper floor setbacks.
75 In relation to location of windows/privacy, such concern can be addressed by use of obscure glass or higher sills.
76 The extent of excavation proposed is to be balanced with the need to limit the height of the dwellings however, is exacerbated by the size of the proposed storerooms. I am satisfied that, with proper construction techniques, the site can be developed without affecting the structural integrity of adjacent buildings.
Conclusion
77 Given the extent of non-compliance with the council's controls, particularly in relation to FSR and height, and its impact on the amenity of adjoining properties, the application must fail.
78 Whilst the location of the site in proximity to other residential flat buildings does justify some variation to the DCP provisions, such variation should only be allowed where the objectives of that plan are met. I am not satisfied that this is the case.
79 It would be possible to carry out further amendments to the plans which reduce the building height so as to meet the controls set in the DCP and to amend the design of the upper level, front portion of the dwelling on Lot A so as to preserve the standing view from the living room window of Unit 3 No. 198 Beach Street. Further changes to the roof of the dwelling on Lot A may be required to ensure that the living room window to Unit 2 No. 198 Beach Street maintains its solar access. These changes should also improve views from other adjoining properties.
80 I do not consider that it is appropriate to allow the appeal subject to conditions, which require further amendments to the plans, as such changes need to be incorporated into a new building design and proper assessment of such a proposal by the council would be required.
81 Any subsequent application should also address the issue of the boundary adjustment.
82 Therefore, the Orders of the Court are:
1. The appeal is dismissed;
2. Development application No. DA/909/2009 for the demolition of existing semi-detached dwellings and the construction of new two storey attached dwellings with basement garages is determined by the refusal of development consent; and
3. The exhibits are returned.