Findings
24In relation to the weight to be applied to LEP2012, I note the wording of the plan as made differs from that as exhibited. Clause 1.8A reads as follows:
If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.
25These provisions vary from the exhibited draft and from savings provisions contained in earlier environmental planning instruments and require the determination of a development application under the provisions of the former planning instrument, i.e. LEP2005. This finding is consistent with that of Dixon C in Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302 and I adopt those findings.
26The parties agree that under the provisions of LEP2005 as facilitated by SEPPARH, the development as proposed is permissible with consent. Accordingly, provided I find that the development merits consent and, in particular, its design is compatible with the character of the local area, consent can be granted.
27No merit matters are raised by the council, the only matter that requires my determination is the compatibility provision of clause 16A of SEPPARH and the issues raised by objectors. Such determination does not require a finding of sameness and this could not be expected from a state-wide policy that allows for a form of development that is not exactly the same as that anticipated by local planning controls. Consideration of the word "compatible" was assessed by Roseth SC in Project Venture Developments v Pittwater Council [2005] NSWLEC 191, where he states:
22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.
23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them.
24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked.
+ Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.
+ Is the proposal's appearance in harmony with the buildings around it and the character of the street?
25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity.
26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character.
28In this regard, I find that the development as designed would be compatible with the character of the local area. Its scale is similar to that of other dwellings in the area; it has been designed to have the appearance of a detached dual occupancy development. I do not consider the fact that the development contains four dwellings does not mean that its design is not compatible. I consider that the plans now before the Court have provided a design that addresses privacy issues, would be read as two dwellings when viewed from the street and is appropriate in its context. It is a form of development that can sit in harmony with the locality. It height is consistent with other dwellings in the local area and the materials proposed provide sufficient variation to be distinguished as separate developments, not that this would be a reason to refuse consent.
29In relation to parking and traffic, the council's evidence is that these are not reasons to refuse consent and that the existing road network is capable of handling the traffic generated.
30The parties provided agreed conditions apart from one matter. The council sought to impose a condition (condition 52(a)(iv)) that requires the registration of a restriction on the title of the land that limits the number of bedrooms to that shown on the plans as approved. Mr McKee says the condition is unnecessary and would fetter the discretion of a consent authority in the event that any subsequent development of the land is proposed. Mr Fraser submits that the condition would operate as a warning to future owners of land, that the intensity of the development is already at its limits and no further development would be allowed.
31It is clear, from the decision of Pearlman J in Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70, that the Court has power to impose a condition provided it considers that it appropriate to do so.
32There is also authority, as set out in the decision of Lloyd J in MacDonald v Mosman Municipal Council [1999] NSWLEC 215, which supports the proposition that it is unnecessary and inappropriate to impose a condition requiring a restrictive covenant in some circumstances.
33In this case, I am satisfied that the other conditions of consent, particularly condition 1, that requires the development to be carried out in accordance with the approved plans, are sufficient to ensure that there will be no increase in bedrooms or change of use of any parts of the buildings. For that reason, it is not appropriate, in this case, to impose the condition requiring that restrictive covenant. All other conditions should remain.
34The Orders of the Court are:
(1)The applicant is granted leave to rely on the amended plans tendered to the Court on 16 January 2013 subject to payment of agreed costs within 28 days of this Order.
(2)The appeal is upheld.
(3)Development Application 1361/2011/HB for the construction of an affordable housing development comprising four dwellings and Torrens Title subdivision at No. 157 Merindah Road, Baulkham Hills is approved subject to the conditions contained in Annexure 'A'.
Sue Morris
Commissioner of the Court
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Decision last updated: 24 January 2013