Popal v Blacktown City Council

Land and Environment Court (NSW)|2017-02-17

Solicitors: Mr N Palmer Coleman Greig (Applicant)

Mr A Seton Marsdens Law Group (Respondent) File Number(s): 165932/2016

Judgment

Mr Popal lodged Development Application No. 15/990 with Blacktown City Council on 5 May 2015 seeking consent for demolition of existing structures and construction of a multi dwelling housing development comprising 8 townhouses with basement carparking at 54-56 Gilbert Crescent, Kings Langley.
The council refused consent and Mr Popal is appealing that decisions pursuant to the provisions of s97(1) of the Environmental Planning and Assessment Act 1979 (EP&AAct).

The site and its context

The site is located on the western side of Gilbert Crescent and comprises two adjoining allotments. The combined frontage of the site and its rear boundary is 37.04m with side boundaries of 38.1m resulting in a site area of 1393m2.
The land falls to the north west to the south east, a crossfall of approximately 4m.
Two single storey houses with associated outbuildings stand on the site with two trees, one large and one medium size located within the frontage of No 56 and a number of smaller trees in the rear yard. Two large street trees are located adjacent to No 56.
The site is adjoined by single storey detached dwelling houses with the locality characterised by predominantly single storey dwellings with some two storey homes. A retirement village is located to the north of the site on the corner of Sunnyholt Road and James Cook Drive outside its visual catchment.
The Kings Langley shopping centre is further to the east of the site with industrial development on the western side of Sunnyholt Road. A bus transitway runs parallel to Sunnyholt Road and there is a large area of parkland to the south, approximately 300m from the site.

Background and the proposal

The original application proposed the construction of two rows of townhouses with courtyards adjacent to the side boundaries, a common area of open space to the rear of the site and a basement carpark.
Following refusal of the application and a subsequent conciliation conference the applicant prepared amended plans and had been granted leave by this Court to rely on those plans.
As the result of joint conferencing, further amended plans were prepared and the applicant was granted leave to rely on those plans subject to payment of the council's costs that are thrown away pursuant to the provisions of s97B of the EP&AAct as it was agreed that the changes were not minor. Those plans, Exhibit G, provide for:

Basement carpark for 17 cars (2 spaces per dwelling and 3 visitor spaces) and including a pumproom, laundries and internal access to 4 townhouses; vehicle access from a centrally located driveway;
Seven x two level dwelling houses above the basement area configured in two pairs of two dwellings fronting Gilbert Crescent (4 bedrooms) with three attached dwellings at the rear (1 bedroom on the ground floor and a multi-purpose room with bathroom on the upper level; private courtyards provided to each dwelling;
A centrally located area of common open space between the pair of attached dwellings that also provides pedestrian access to the rear dwellings

Unfortunately, in an attempt to address contentions raised by the council and recommendations of the experts the plans before the Court contain a number of anomalies including site plans showing landscaped area, an onsite stormwater detention tank and an accessible parking space in the same location on different plans, pathways, terraces or ramps through the common open space area; no windows to the lower floor bathrooms of the rear dwellings; insufficient head height to gain access to the upper level of two of the three rear dwellings; and insufficient head height to utilise the upper level bathroom within those three dwellings.
In addition, the landscape plan was inconsistent with the architectural drawings, in particular in relation to the proposed treatment of the front and side setbacks and the common open space together with treatment of the drainage system around the site's perimeter and proposed retaining walls/fencing within the front setback area.

The planning controls

At the time the application was lodged the site was zoned Residential 2(a) pursuant to the provisions of Blacktown Local Environmental Plan 1988 (LEP1988). On 26 May 2015 Blacktown Local Environmental Plan 2015 (LEP2015) took effect and the site is now zoned R2 Low Density Residential under the provisions of that plan. The development as proposed, being defined as multi dwelling housing, is now prohibited in the R2 zone.
Clause 1.8A of LEP2015 is in the following form: 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.
The savings provisions of clause 1.8A provide for determination of the application despite the fact that the use would no longer be permitted on the site. The use, defined by the parties as medium density housing is not, for the purposes of LEP1988, included in the list of land uses that are prohibited in the 2(a) zone and listed in Schedule 1 of the plan and is therefore permissible with consent.
The provisions of clause 9(3) of LEP1988 specify that the consent authority shall not grant consent to the carrying out of development on land to which the plan applies unless the consent authority is of the opinion that the carrying out of development is generally consistent with one or more of the objectives of the plan and one or more of the objectives of the zone within which the development is proposed to be carried out.
The objectives of LEP1988 are: (a) to allow for a variety of rural based activities while maintaining the urban potential of relevant rural land, (b) to allow for a variety of residential lifestyles, (c) to allow for a variety of business uses while consolidating existing commercial centres, (d) to enable a variety of uses in industrial areas while protecting the viability of existing retail centres, (e) to prohibit offensive or hazardous industries, (f) to ensure space is provided for community services and facilities, (g) to ensure space is provided for recreational activities and facilities, (h) to ensure land is available to accommodate all required special land uses in the most effective manner, and (i) to protect Blacktown's environmental heritage.
The objectives of the 2(a) zone are: (a) to make general provision to set aside land to be used for the purpose of housing and associated facilities, (b) to identify existing residential areas of a predominantly single dwelling character, and to maintain that character by prohibiting residential flat buildings, (c) to enable sensitive infill development of other housing types if the infill development is of a bulk, scale and appearance that does not adversely impact on adjoining development or the amenity of the locality, (d) to enable development for a variety of housing forms, including townhouses, villas, integrated housing, dual occupancies and the like, if such development does not interfere with the amenity of surrounding residential areas by way of overshadowing, overlooking, or loss of privacy, (e) to allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours, and (f) to allow within the zone a range of non-residential uses which: (i) are capable of visual integration with the surrounding environment, (ii) either serve the needs of the surrounding population or the needs of the City of Blacktown without conflicting with the basic intent of the zone, and (iii) do not place demands on public services beyond the level reasonably required for residential use.
Clause 48 of LEP1988 introduces further controls that relate to development of certain land in Zones 2(a), 2(b) and 2(c) and applies to land identified on particular LEP maps. Those maps do not include the site and therefore the provisions of clauses 48(3) and (4) apply to the application. These clauses are in the following form: (3) On land subject to this clause but not subject to subclause (2), development for the purpose of dual occupancies, integrated housing and medium density housing may be carried out, with the consent of the Council, but only if the development is limited to one storey in height. (4) Notwithstanding subclause (3), development for the purpose of dual occupancies, integrated housing and medium density housing may be carried out, with the consent of the Council, to a height of two storeys, on land subject to subclause (3), but only where the proposed dwelling immediately adjoins an existing public road.
The effect of these clauses is to provide for two storey development fronting a road and single storey development where that development does not have direct road frontage.
There is a dispute between the parties as to whether the development satisfies these provisions. The council contends the rear dwellings contain 2 storeys whereas the applicant contends they are one storey in height.
LEP1988 does not contain a definition of the term storey.
Blacktown Development Control Plan 2015 (DCP) took effect on 15 July 2015 and applies to all land within the Blacktown Local Government Area that is zoned under LEP2015.
The DCP does not contain savings provisions and is therefore a relevant consideration in relation to the application as are the provisions of LEP2015 however this is a matter of the weight to be applied to that plan.
Sections of the DCP relevant to the application are those that apply to dual occupancy development and multi dwelling housing, in particular in relation to minimum lot sizes, setbacks, parking provision and private and common open space.

The issues

The amended plans addressed some of the contentions included in the council's Statement of Facts and Contentions filed with the Court on 13 December 2016 (Exhibit 2). Those contentions pressed are: 1. Permissibility; 3. Inconsistency with the expressed future planning objectives for the area and the likely future character of the area; 6. Unacceptable streetscape impact; 8. Inadequate and unacceptable common open space; 9. Unsatisfactory internal amenity impacts including impacts arising from the density of the development; 10. Inadequate information provided in relation to landscaping of the site; 12 Development is not in the public interest; 13. Precedent.
In addition, whilst the council was satisfied that the site could be drained, the plans that are before the Court do not fully detail the treatment of the proposed onsite detention basin, in particular whether there is an opportunity to landscape that area.

The evidence

The hearing commenced on site with evidence heard from a number of residents, all of whom object to the proposal. The issues raised are summarised as follows:

Development out of character with low density residential environment and will create an undesirable precedent;
Overdevelopment of the site;
Loss of privacy and security, overlooking, noise and solar impacts;
Concerns regarding the extent of excavation required for the basement and the proximity to boundaries, possible structural issues to adjacent properties;
Traffic and parking concerns;
Safety of pedestrians and children walking to school and vehicles utilising the adjacent T-intersection;
Non-compliance with planning controls;
Insufficient area available for landscaping.

Expert town planning evidence was heard from Mr N Juradowitch for the applicant and Mr G Apps for the council. Their agreement that the proposal was consistent with at least one of the objectives of LEP1988 and the Residential 2(a) zone lead to the resolution of contention 2.
Similarly, their assessment of the solar impacts of the proposal is that there will be minimal impact on the rear backyard of 58 Gilbert Crescent and the northern aspect of that dwelling will achieve the solar access of two hours between approximately 11:30 AM and 1:30 PM on the winter solstice thereby complying with the DCP provisions for solar access. They agree the proposed development has an acceptable solar access impact on neighbouring residential properties. They also agree that the proposed new fencing of a height of 1.8m will afford visual privacy to the neighbours and that the development is satisfactory in terms of aural and visual privacy impacts on neighbouring residential properties. The Court notes that later amendments made to the plans increased the height of the boundary fencing in some locations to 2.1m so as to address anomalies in level indicated on those plans and existing site levels. No assessment of that impact was made.
It is common ground that the proposed development would no longer be permissible in the R2 zone and the experts disagree as to the weight to be given to LEP2015 with respect to the future character of the area and the planning objectives of that plan. They agree that the predominant form of development in the neighbourhood is single dwellings, primarily single-storey in height, with a number of two storey dwellings and original single storey dwellings that have had an addition to create a second storey. Redevelopment in the area is most likely to be larger dwellings, including some two storey dwellings or dual occupancies and possibly seniors housing however they agree at least in the short to medium term the future character will not materially change from the existing character unless there is a substantive change in the current planning controls.
They agree that the site could be redeveloped for separate single dwelling residential allotments with a yield of three dwellings based on the minimum lot size prescribed in the LEP2015 and if these lots were redeveloped to also include a secondary dwelling on each allotment the yield would be six dwellings. As dual occupancy is currently permitted under the LEP2015 the land could be re-subdivided to create two attached dual occupancy allotments each containing two dwellings for a total yield of four dwellings and they estimate at seniors housing may yield at least seven units based on a floor space ratio of 0.5:1. They calculate the floor space ratio of the proposal is 0.45:1.
Mr Apps says that despite the site being capable of development for a total of six dwellings multi-unit housing is now prohibited under LEP2015 and the outcome of that plan would be to retain the predominantly single dwelling character of the R2 zone. He says the development of multiunit housing is antipathetic to the objectives of creating a low density residential environment and the proposed development does not achieve sufficient harmony or integration with the prevailing built form, building design or streetscape.
Mr Juradowitch disagrees and says the savings provisions of the LEP2015, whilst being matters for consideration in assessing the application, do not constitute a prohibition of a development that is otherwise permissible under LEP1988 and on this basis the proposed development would have to be significantly at odds with the future character of the area as envisaged in LEP2015. Whilst there are no multi-dwelling developments in the neighbourhood, this is the case across most of the 2(a) zoned land at Kings Langley, which has been developed primarily for single dwellings during the 1970s, notwithstanding that multi dwelling housing was permitted until recently. He says that whilst LEP1988 provided primarily for single dwelling houses, but specifically made provision for infill multi dwelling housing and other forms of increased housing density other than residential flat buildings, it would suggest the desired future character of the 2(a) zone envisaged was predominantly single storey housing with infill development comprising multi dwelling housing, dual occupancies, senior housing and the like.
He says the proposed development is consistent with this future character expectation and this should be given much greater weight in assessment of the subject application compared to the character expectations of LEP2015. The proposal exhibits reasonable compatibility with both the existing character of the locality and the future character envisaged in LEP2015 which allows residential development at a greater density than the existing prevailing single detached dwelling density and form of development such as attached dual occupancy and senior housing that are different from existing dwellings.
Mr Juradowitch cites the aged care facility to the north of the site and an attached dual occupancy of more recent vintage located at the north east corner of James Cook Drive and Wilkinson Avenue and says the proposed dwelling density of seven dwellings is compatible with or equivalent to the density that is achievable under dual occupancy or seniors housing provisions, both of which are permissible on the site and in the locality pursuant to LEP2015. The proximity of the site to a bus transit way and the Kings Langley shopping centre increases the likelihood of new two storey development including dual occupancy and senior housing in the neighbourhood compared to other localities more remote from these services. Whilst the proposed development is different in appearance from single detached dwelling house it remains compatible in that it achieves sufficient harmony or integration with the prevailing built form. He says compatibility should also be assessed against other infill forms of residential development that continue to be permissible on the site and in the locality such as dual occupancy and seniors housing.
He says the front townhouses present within the streetscape as two separate two storey attached dual occupancies whereas the detached villas at the rear will not be evident in the streetscape and present as a single large detached dwelling with rooms in the roof space, presenting a building height and scale similar to many of the largest single dwelling in the locality.
In terms of streetscape, the experts agree that hip and gable roof forms currently dominate the locality; that there are no floor space ratio controls or limits on the number of dwellings on the land either pursuant to the provisions of the previous LEP 1988 or the current LEP 2015 or no prescriptive controls for density in the DCP.
They disagree as to whether the proposed development is in keeping with the streetscape.
Mr Apps says there is a rather homogenous streetscape character that is established by single dwellings with hip and gable roof form there are no flat roof form, particularly two-storey flat roof forms in the neighbourhood and although the proposed development is of a contemporary design that is not without merit, it does not fit into the established streetscape. The squared form of the building is out of keeping with the articulated building forms in the street and does not respect the context of the neighbourhood. The flat roof form would not add variety, rather, the subject development would stand out as something out of character in the street and detract from the consistent character.
He also says the basement character is also out of keeping with the character of the residential neighbourhood and typically, medium density developments provide at grade car parking in the form of attached garages and opened car spaces. He says basement car parking for medium density developments is something that is not typical of such developments in the Blacktown City Council area and more often only seen in higher density environments. The provision of a pitched roof has the ability to resolve the front building address the street.
Mr Juradowitch acknowledge is that the four townhouses in the front portion of the site will look different from existing dwellings in the immediate locality but says the relevant test is one of compatibility and says it will be sufficiently compatible with the prevailing streetscape and built form is a form of infill development. The proposed flat roof form for the front townhouses will add variety to the streetscape and is consistent with contemporary design and the objective of minimising building bulk. The proposed flat roof is not justification for rejection of the proposal on the grounds of streetscape however he says should it be determined that it is central that the four front townhouses have a pitched roof form, it is possible to include a metal pitched roof be as the proposed maximum roof height is between 400mm and 1300mm below the maximum permitted building height of 7.2m and could be addressed by way of a consent condition.
He says the basement carpark that is visible extends generally less than 1m above footpath level in Gilbert Crescent and for the most part is hidden from view on neighbours and that roadway. A partial view is available from adjacent to the driveway access to the site but has a modest visual impact in the streetscape compared to the alternative of garaging and driveways at ground level. The provision of basement carparking is a different design solution from the form of a garaging existing for housing in the locality and has the advantage of ensuring the parking facilities are substantially screened from view and offers a superior urban design and streetscape outcome compared to aboveground garaging.
The planners agreed that the size and layout of private open space allocated to each dwelling was satisfactory. They did not agree that adequate provision had been allowed for common open space for the use of all residents of the dwelling.
The DCP requires an area of 15m² per dwelling and that the area is to be provided in large aggregated areas which are capable of active use by residents. At least 100m² of such open space is required in any one multiunit housing development and must not be disproportionately elongated in shape. In the calculation of common open space, small pocket designed to enhance the appearance of the development are not counted and, in the circumstances of the case, a minimum area of common open space 105m² is required.
They agree the site is located approximately 310m walking distance to a playground area on Hawkesworth Parade and that these facilities provide for active recreational opportunities that could not be provided within the subject development. The common open space areas within the proposed development would be aimed at providing passive recreation opportunities and whilst the amount of common open space shown on the plans exceeds the 100 m² minimum required pursuant to the DCP, the experts disagree as to the provision and configuration of that space.
The conflicting amendments made to the plans during the hearing hindered the experts in their attempt to assist the Court in understanding the likely use of the common open space.
Mr Apps described the proposed common open space areas as an elongated area of around 3m width that is disproportionately shaped and not suited for a range of active or passive recreational purposes. Only around 10m² of the area would receive sunlight during midwinter and the area performs more as a path rather than as usable open space.
The experts did agree that the latest plan showed the area as a series of terraces and Mr Juradowitch agreed that it would not be suitable area for children to play games.
Mr Apps addressed the council contention of the unsatisfactory level of internal amenity that has been provided and says the layout of the of the rear villas is particularly "tight" and whilst this may result in more affordable housing, internal amenity should not be mutually exclusive.
The original plan had originally incorporated three bedrooms within those villas, two on the upper level and one at ground level with subsequent amendments made so that they now comprise a ground level bedroom with ensuite and an upper level room with associated bathroom, the area most likely to be used as a second bedroom however could also be used for additional living space or a study. That area is open to the living/kitchen area below.
In an attempt to address the issue of permissibility, Mr Ireland for the applicant proposed the deletion of the upper level within the three rear villas. Mr Apps agreed that this would go some way to address the amenity issue but said it would not be a massive improvement maintaining that the villa is quite narrow and advocating that it may be appropriate to delete that portion of the development which would open up the site and address open space concerns.
Mr Juradowitch says the rear villas are primarily aimed at the affordable housing sector and accordingly offer more modest floor space in order to offer a lower selling price. He acknowledges that the combined living/dining room for each of the villas is small although he says it is functional. He agreed that Villa B did not comply with the 3.6m width recommended in the Apartment Design Guide for studio and one bedroom apartments (3.13m proposed). The Court acknowledges that this document is not a prescribed consideration in the assessment of the application however, considers that it provides a level of guidance as to the appropriateness of the design of the development and the amenity.
In acknowledging that the layout of the villa was "tight" Mr Juradowitch advocated that the floor plate should expand to match the width of Unit C and that would provide a functional but not generous floor area adequate for future use.

Permissibility

The provisions of clause 48 of the LEP1988 must be met for consent to be granted and in particular the Court must have regard as to whether the rear three dwellings are limited to one storey in height. The Council submits that the dwellings contain two storeys whereas the applicant argues the contrary that they only contain one storey. LEP1988 does not provide any definition of storey. Nor is there any associated environmental planning instrument that assists in determination of this issue.
Whilst LEP2015 does contain relevant definitions, these do not apply to LEP1988 however they may assist the Court in its consideration.
To determine this issue, the Court must look for the ordinary meaning of the term and in this regard it is appropriate to turn to dictionary definitions.
The Macquarie Dictionary contains the following definition: 1. a complete horizontal section of a building, having one continuous or approximately continuous floor. 2. the set of rooms on the same floor or level of a building. 3. each of the stages separated by floors, one above another, of which a building consists.
The Oxford English Dictionary (3rd edition) provides the following definition: a. Each of the sections of a building comprising all the rooms that are on the same level; the room or set of rooms which comprise one such level; a floor.
The New Shorter Oxford English Dictionary on Historical Principles (Volume 2 1993) contains the following definition: 1. Each of the stages or portions one above the other of which a building consists; a room or set of rooms on one floor or level. 2. Each of a number of tiers or rows (of columns, windows, panel, etc.) arranged horizontally one above another. 3. A thing compared to a storey of a building; each of a series of stages or divisions lying horizontally one over the other; a layer within a canopy of a forest.
Having regard to the above definitions it is appropriate to consider the design of each of the villas and whilst they differ in terms of their dimensions and floor plan layout they each contain a combined kitchen/dining/living area, laundry, master bedroom with ensuite on the ground floor with an area noted on the plans as a mezzanine with an adjoining enclosed bathroom on the upper level. A void area is above part of the kitchen/dining/living area and therefore the upper floor does not extend for the whole length of the lower floors. The size of the void is approximately 3m x 3m in dwellings A and C and 2.5m x 3m in dwelling B.
As noted above, the configuration of the upper level is not accurately depicted on the plans and accordingly the roof design would vary from that shown on the plans to provide sufficient head height or the stairways to villas A and B and all of the bathrooms on the upper level. This fact however does not affect consideration as to whether the upper level would constitute a storey for the purposes of clause 48 however may be relevant in applying the definitions in LEP2015 if weight was to be applied to those particular provisions of that plan.
The applicant submits that rather than be a Storey the upper level of the three rear villas is either an "attic" or a "mezzanine floor". LEP1988 does not contain a definition of either attic or mezzanine and therefore it is necessary to determine whether the terms are relevant to consideration of the issue before the Court and if they are whether either could still constitute a "storey" for the terms of applying clause 48.
Having regard to the above definitions, I find the rear dwellings comprise two storeys. That is because each dwelling contains two approximately continuous floors; a set of rooms on a floor which occupy two different levels; a portion of the building one on top of the other. I do not accept the proposition that the inclusion of the small void area has resulted in the change of the building from a building with a height of two storeys to a building with a height of one storey despite acknowledging the small floor plate of the upper level.
Turning to the definitions contained within LEP2015, the following are relevant to the issue: attic means any habitable space, but not a separate dwelling, contained wholly within a roof above the ceiling line of the storey immediately below, except for minor elements such as dormer windows and the like. mezzanine means an intermediate floor within a room. storey means a space within a building that is situated between one floor level and the floor level next above, or if there is no floor above, the ceiling or roof above, but does not include: (a) a space that contains only a lift shaft, stairway or meter room, or (b) a mezzanine, or (c) an attic.
In view of the anomalies in the roof design of the development which require the extension of walls to accommodate stairways to reach the upper level of the rear dwellings, I do not consider the upper level of those buildings would be an attic for the purpose of the LEP2015 definitions because the space would not be wholly contained within the roof above the ceiling line of the storey immediately below and the elements that would extend beyond the roof would not be minor elements.
In terms of assessing whether the upper floor would be a mezzanine I consider that only part of the upper level of dwelling B would meet that definition however the bathroom component does not. That is because the intermediate floor on the upper level forms part of the living/kitchen/dining room of that dwelling. The bathroom is located directly above the master bedroom and has no relationship to the room at the lower level.
In the case of the other rear dwellings the majority of the upper floor is directly above the bedroom and ensuite rather than being an intermediate floor within the living/dining/kitchen area. Accordingly it would not satisfy the definition of a mezzanine.
For these reason, even if I were to apply the definitions from LEP2015 I would find that dwellings A and C are two storeys.
I also have regard to the wording of the subclauses within clause 48 and consider that the clause anticipates buildings with a height of two storeys only at the front of the site and where there are buildings to the rear of the site they are of lesser scale and have a building height of one storey. I note that the front buildings have a height of approximately 6.72m and those at the rear are around 6m. Accordingly, the different building heights contemplated in the clause are not satisfied. This determination assists in assessment of the desired character contemplated in the 2(a) zone.
In view of my findings, the plans to which leave has been granted include two storey dwellings to the rear of the site. Such development is prohibited pursuant to the provisions of clause 48 of LEP1988.
Mr Ireland requested that in the event that the Court reached the conclusion that the development as proposed was prohibited that a condition of consent be imposed that required the deletion of the upper floor from the rear dwellings so that they would then be one storey in height. Plans (Exhibit H)were provided to the Court to assist in determining the extent of changes that would be made to the building should this path be followed and do not change the roof pitch and retain those areas that were previously to be windows and walls protruding beyond the roof line. Mr Ireland did say that if the Court found that further change to the design of those dwellings was necessary, it too could be the subject of a consent condition.
Other consequential changes would follow, such as to whether there was to be a change to the windows proposed within the roof of the rear dwellings or if they were to be deleted. The most relevant consideration is that the size of the rear dwellings from that shown on the plans originally before the Court to those that would result if the upper storey of the rear dwellings were to be deleted would change from three x 3 bedroom dwellings to three x 1 bedroom dwellings. The DCP has a lesser parking rate for 1 and 2 bedroom dwellings (1 space) than it does for 3 bedroom dwellings where 2 spaces are required. accordingly, 3 less parking spaces would be required on site should the upper storey be deleted and therefore further changes would be required to reflect the reduction in parking spaces. Mr Ireland again urged the Court to address this through consent conditions.

Merit review

If I am wrong in the conclusion that I have reached on the jurisdictional test arising under my interpretation of the word storey, I should proceed to a merit assessment so that, if there were to be a successful appeal on my jurisdictional assessment, the parties could consider the outcome of that merit assessment to assist in ensuring that there could be a just, quick and cheap resolution of the matters as might arise on the remitter so as to facilitate achievement of the objectives of s 56 of the Civil Procedure Act 2005.
My merit assessment is based on the provisions of LEP1988 and, for the reasons given below, the application must fail. Whilst I would give weight to the provisions of LEP2015, the making of that plan alone would not be reason to refuse consent.
Having regard to the evidence, I accept the council's contention that the design of the proposal provides unacceptable levels of amenity in terms of the internal amenity arising from the "tight" design of the rear dwellings, in particular dwelling B and the poorly configured and designed areas of common open space that are not much more than a central pathway of intermittent terraces with seating and a narrower accessway interposed with minimal landscaped beds adjacent to the rear dwellings. The areas would receive minimal sunlight, have little utility and are not suited to communal use, be it passive or active.
The unresolved treatment of the front setback area is an issue that remains unsatisfactory. There is no evidence before me that the proposed large onsite detention basin can be landscaped and retain its drainage function. That structure is large and imposing and would be out of character with the streetscape.
The scale of dwellings in the rear of the development that would result through the deletion of the upper floor but still retaining the roof as shown on the plans would also be inconsistent with the character contemplated under the LEP1988 controls and also the desired future character envisaged in LEP2015. Whilst the scale of those buildings could be reduced through an alternate roof design, no such plans are before the Court.
I do not consider the flat roof proposed to the front dwellings would be a reason to refuse consent.
Whilst I accept Mr Ireland's submission that the Court has the power to impose conditions that require further amendments to be made to the plans that address the anomalies in the plans, my findings in relation to number of storeys and other amenity impacts that are unsatisfactory, I must be satisfied that such conditions provide certainty and that the merits of the amended plans would warrant approval. I cannot be so satisfied, particularly in relation to the consequential changes that would be required to remedy the unsatisfactory common open space area. That would require a redesign of the development and that is not a role for the Court to craft conditions that would address the failures of an application. It would not provide an opportunity to consider the impacts of those changes and whether the amendments made would warrant approval of the application.
I do not consider the development is appropriate for the site.
The issue of the "amber light" approach to Class 1 appeals has recently been considered by Sheahan J in Luxe Manly Pty Limited v Northern Beaches Council [2016] NSWLEC 156. That decision explored the application of that approach and having regard to the history of other cases cited in that judgment and notes the application is discretionary.
I am not satisfied that it is appropriate in the circumstances of this case to apply the "amber light" and impose conditions of consent which attempt to address those unsatisfactory aspects of the design of the development along with the fatal issue of permissibility.
That is because the extent of changes that would be required are not minor, are not capable of sufficient precision to ensure that no other impacts arise as a result of the changes that would be required and I have no evidence before me to determine how the objectives of the controls and changes that would be required can be addressed. For that reason I must reject the proposal and dismiss the appeal.
The Orders of the Court are: 1. The applicant is granted leave to rely on amended plans subject to payment of the council's cost thrown away pursuant to s 97B of the Environmental Planning and Assessment Act 1979. 2. The appeal is dismissed. 3. Development Application No. 15/990 for demolition of existing structures and construction of a multi dwelling housing development comprising 7 townhouses with basement carparking at 54-56 Gilbert Crescent, Kings Langley is refused consent. 4. The exhibits, other than exhibits G, H and 2, are returned.

Commissioner Morris

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2017

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Judgment (11 paragraphs)

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Cases Cited (1)