South Coast Drafting Services Pty Ltd v Wollongong City Council

(1) The two boreholes located on Lot 3 do not, as the applicant submitted, show that there is no fill located on Lot 3, particularly when the applicant's own PASS Report states that Lot 3 has likely been filled at the rear of the property and only one of the boreholes was located at the rear of Lot 3. Therefore, there is inadequate information to consider the quality of the fill or soil to be excavated, or source of the fill to be excavated, in respect of Lot 3.

(2) There is inadequate information provided regarding existing drainage patterns and soil stability in the locality nor the proximity to and potential for adverse impacts of any watercourse, drinking water catchment or environmentally sensitive area.

(3) There is inadequate information to consider the likelihood of disturbing Aboriginal objects or relics.

1. The applicant's oral submissions (extracted above at [40]) are not expert evidence that can be given weight in the determination of this matter. Further, the condition requiring a CEMP to be prepared does not allow adequate consideration of the matters listed in cl 7.6(3) of the WLEP prior to the determination of the development application.
2. This is not to say that these issues could not necessarily be overcome. However, the fact of the matter is that insufficient information has been provided to allow the Court, as the consent authority in this case, to consider the matters listed in cl 7.6(3) of the WLEP "before granting development consent for earthworks". The appeal must therefore fail.

1. A key issue in dispute between the parties was whether the Amended Development Application should be granted or refused on the basis of its proposed consistency with, or impact on, the existing streetscape and neighbourhood character of the locality and desired future character of the locality. This issue has been considered having regard to issues including number of storeys, bulk and scale, setbacks, and the visual impacts as a result of the proposed works to the embankment located in the Road Reserve on Boyce Avenue.

1. The Subject Land is zoned R2 Low Density Residential under the WLEP, and the Amended Development Application is permissible with consent. The objectives of the R2 zone, which I have considered, are as follows:

To provide for the housing needs of the community within a low density residential environment.

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

1. Pursuant to cl 4.3 of the WLEP and Height of Buildings Map, the height of building standard in respect of the Subject Land is 9m. The parties agree that the Amended Development Application complies with this standard.
2. Pursuant to cl 4.4 of the WLEP and the Floor Space Ratio Map, the floor space ratio standard in respect of the Subject Land is 0.5:1. The parties agree that the Amended Development Application complies with this standard.
3. The WDCP applies to the Subject Land. Chapter B1: Residential Development relevantly contains residential development controls for dwelling houses. The objectives relevant to the issues in dispute are extracted below:

"(a) To ensure a high standard of residential development within the City of Wollongong LGA.

(b) To encourage new residential development that is sympathetic to the existing streetscape and neighbourhood character of a particular locality.

(c) To encourage residential development that reflects the desired future character of individual suburbs within the Wollongong LGA.

... "

1. Section 4.1 of the WDCP (Number of Storeys) relevantly provides that:

"4.1 Number of Storeys

The maximum building height is set by the Local Environmental Plans generally

a) R2 Low Density Residential Zones permit a maximum height of 9m - a maximum of two storeys

...

The number of storeys acceptable will be dependant on the surrounding development, the future desired character of the area, the impacts that the proposed development has on solar access, privacy, visual amenity and overshadowing."

1. The relevant objectives for s 4.1 are as follows:

"4.1.1 Objectives

a) To encourage buildings which integrate within the streetscape and the natural setting whilst maintaining the visual amenity of the area.

...

c) To ensure that development is sympathetic to and addresses site constraints.

...

(e) To encourage a built form of dwellings that does not have a negative impact on the visual amenity of the adjoining residences.

..."

1. Section 4.2 of the WDCP (Front Setbacks) relevantly provides that:

"4.2.2 Development Controls

1. The following setback requirements apply from the primary street frontage to the front façade of the building:

...

(c) Garages and carports must be setback a minimum of 5.5m to enable a vehicle to park of stand in front of the garage or carport.

..."

1. The objectives for s 4.2 are extracted as follows:

"4.2.1 Objectives

(a) To reinforce the existing character of the street and locality by acknowledging building setbacks.

(b) To ensure that buildings are appropriately sited, having regard to site constraints.

(c) To ensure building setbacks are representative of the character of the area.

(d) To provide for compatibility in front setbacks to provide unity in the building line.

(e) To ensure that setbacks do not have a detrimental effect on streetscape or view corridors.

(f) To ensure that hard stand areas can be provide in front of garage without imposing on movement corridors (pathways, cycle ways and road reserves)."

1. Section 4.3 of the WDCP (Side and Rear Setbacks) relevantly provides that:

"4.3.2 Development Controls

1. Walls must be setback at least 900mm from any side or rear property boundary and eaves/gutters must be setback at least 450mm from the side and rear property boundaries.

2. Walls (including gable ends and parapets) that exceed 7 metres overall height must be setback at least 3 metres from the side and rear boundaries.

...

7. The side and rear setback controls may only be varied where the following is demonstrated to Council's satisfaction:

(a) The objectives of 4.4.1 are met.

(b) The walls and footings are located wholly on the subject land.

(c) There are no windows facing the adjoining property that enable overlooking.

(d) Walls provide articulation so as to not impact the amenity of adjoining dwellings.

(e) Landscaping is appropriately provided to screen development."

1. Section 4.8 (Building Character and Form) relevantly provides:

"4.8.2 Development Controls

1. The design, height and siting of a new development must respond to its site context taking into account both natural and built form features of that locality. The design of the development must have particular regard to the topography of the site to minimise the extent of cut and fill associated with dwelling construction.

2. Large bulky forms are to be avoided, particularly in visible locations. The use of extended terraces, balconies, sun shading devices and awnings will help reduce the apparent bulk of buildings.

3. New dwelling-houses within established residential areas should be sympathetic with the existing character of the immediate locality. New innovative contemporary building designs may also be permitted, where, in the opinion of Council, the development will not result in an adverse impact upon the streetscape or residential amenity of that locality, as compared to a more traditional design.

...

6. Where garages are proposed on the front elevation they must be articulated from the front façade.

..."

1. The objectives for s 4.8 are extracted as follows:

"4.8.1 Objectives

(a) To ensure that development responds to both its natural and built context.

(b) To design residential development that responds to the existing character and the future character of the area.

(c) To ensure building design contributes in to the locality through a design that considers building scale, form, articulation and landscaping.

(d) To encourage colour schemes that are of similar hues and tones to that within the streetscape.

(e) To ensure buildings address the primary street frontage via entry doors and windows.

(f) To ensure that dwellings provide appropriate passive surveillance of public spaces and street frontage.

(g) To ensure that ancillary structures are not the dominate feature of built form."

1. Section 4.9 (Fences) relevantly provides:

"4.9.2 Development Controls

...

2. Fences within the front and secondary building lines should be predominantly constructed in transparent fence materials, allowing visual connection between the dwelling and the street.

3. Any fence and associated retaining wall within the front setback area from the primary road frontage must be a maximum 1.2 metres in height, above existing ground level. Where the front fence is located on the front property boundary line, the height of the fence is to be measured above the existing ground level of the adjacent footpath or verge.

4. Front fences must be open for at least 50% of the upper 2/3 of the area of the fence. Any brick or other solid portion of the fence above 600mm must not be more than 250mm wide.

...

6. Front and return fences should reflect the design of the residential building, wherever practicable.

...

9. Dividing fences between the front building line and the rear property boundary must be a maximum of 1.8 metres in height.

...

11. The height and design of any proposed fence on top of a retaining wall must be included in the consideration of the overall height of the fence and retaining wall.

12. Fences which exceed the maximum fence heights above will only be considered in exceptional circumstances where Council is of the opinion that the variation is reasonable in the circumstances. For example, the erection of a higher front fence for a property fronting a major arterial road, in order to improve the privacy or amenity of the property. In such cases, any fence will be required to be well articulated and landscaped with appropriate planting, to help soften the visual impact and improve the streetscape appearance of the fence.

13. Fences must be constructed of timber, metal, lightweight materials or masonry. Fences in bush fire prone areas shall be of a metal or masonry construction only.

14. Front and return fences are not to be of a timber paling, Colorbond, or chain wire mesh design.

..."

1. The objectives for s 4.9 are relevantly extracted below:

"(a) To allow for the physical separation of properties for resident privacy.

(b) To define the boundaries between public and private land.

(c) To enhance the usability of private open space areas / courtyards.

(d) To ensure that the design, heights and materials of fencing are appropriately selected.

(e) To ensure that fencing design and location complements the building design, enhance the streetscape and complement the objectives of passive surveillance.

(f) To ensure that the design allows for casual surveillance of the lot.

(g) To ensure that clear lines of sight are maintained for motorists and pedestrians to and from the lot.

..."

1. Section 4.10 (Car parking and Access) relevantly provides as follows:

"4.10.2 Development Controls

...

3. Garages must be setback a minimum of 5.5m from the front property boundary.

...

10. Driveways shall have a maximum cross-over width of 3 metres.

..."

1. The objectives of s 4.10 are relevantly extracted below:

"4.10.1 Objectives

...

(b) To ensure that there is adequate provision of vehicular access and manoeuvring.

(c) To minimise the impact of garages upon the streetscape."

1. Chapter D1 (Character Statements) of the WDCP is also relevant to the Amended Development Application.
2. Relevant sections of Chapter D1 have been extracted below:

"1 AIMS AND OBJECTIVES

The main aims of this chapter of the DCP are to identify the existing character and desired future character for each particular suburb within the city.

The key objectives of this chapter are to:

a) Protect and enhance the existing character that distinguishes the identity of each suburb within the city; and

b) Provide character statements for each suburb within the city which in conjunction with the specific development controls outlined in other chapters of this DCP will help assist decision-making as to whether a proposed development is compatible with the desired future character of the locality/ suburb.

2 WHAT IS CHARACTER?

"Character" has two specific elements, namely:

(i) "Existing character" relates to the current patterns of natural and urban geography which may be observed in an area; and

(ii) "Desired or future character" which provides objectives for the future development of a suburb and which emphasizes the important existing features or qualities of the area that should be maintained or enhanced.

Within the planning framework, the concept of character primarily focuses on physical planning outcomes and the design of the built environment in the public realm. This may include characteristics such as particular groups of land uses, architectural styles, building densities, building heights, building materials and building setbacks as well as the spatial definition or patterns of particular locality, including subdivision layout patterns and road pattern. The character of a suburb may also be partly based on unique topographical or natural landform features, scenic environmental quality of the particular suburb including significant remnant stands of trees or streets which are lined by a particular tree species. In addition, the character of an area may also be based upon the number of heritage items or conservation areas within that particular area.

However, the character of a particular suburb should not be confused with its attractiveness since all suburbs have an existing character.

...

3 CHARACTER STATEMENTS

...

3.13 Austinmer

Existing Character

Austinmer is a leafy residential village which extends from the coastal strip right up to the slopes and foothills of the escarpment. Austinmer is a medium sized seaside village being slightly smaller than Thirroul but larger than other seaside villages to the north.

Austinmer is characterised by predominantly low density detached dwelling-houses with some medium density housing, restricted to the coastal part of the village. Detached dwelling-houses predominantly comprise of a mix of one to two storey weatherboard and brick dwelling-houses with pitched roof lines. Newer two storey contemporary styled consisting of rendered brick and weatherboard dwellings with varied roof forms have been constructed along both the coastal strip and upper slopes and foothills of the escarpment.

Brush box street trees also line some streets in Austinmer which add to its leafy village character.

...

Desired Future Character

The village atmosphere of Austinmer should be retained and the existing retail centre should remain relatively 'low key'.

Austinmer should retain its low density leafy seaside character and any new residential development should not dominate the scenic environmental quality of the coastal strip and forested escarpment. Dwellings should be generally one to two storeys in height and be designed to retain the nature attributes of the immediate locality.

Any new dwellings or major alterations and additions to existing dwellings should be designed to minimise the scale and bulk of the development through well-articulated building forms. Individually designed dwellings with weatherboard or colourbond facades with lighted coloured or light or mid grey finishes are preferred for properties along the coastal strip. The rooflines for dwellings along the coastal strip may either be flat, curved or gently pitched, depending upon existing view sheds from neighbouring properties. In some cases, split-level or varied setbacks for two storey dwellings and sloping flat or gently pitched roof forms may be necessary, to maximise view sharing opportunities for neighbouring dwellings.

..."

1. In relation to the number of storeys proposed by the Amended Development Application, the town planning experts, being Mr Bennett for the applicant and Ms Richards for the respondent, agree that pursuant to the definition of "storey" in the WDCP, the proposed garage/basement is deemed to be a "storey", thereby making the proposed development three storeys.
2. Mr Bennett and Ms Richards also agree that s 4.1 of Chapter B1 of the WDCP provides that "the maximum building height is set by the Local Environmental Plans generally, a). R2 Low Density Residential Zones permit a maximum height of 9m - a maximum of 2 storeys". They also agree that s 4.1 of the WDCP goes on to state that "the number of storeys acceptable will be dependent on the surrounding development, the future desired character of the area, the impacts that the proposed development has on solar access, privacy, visual amenity and overshadowing."
3. On the issue of storeys, Mr Bennett is of the view (as set out in the Joint Town Planning Report (Ex 5)) that:

(1) Notwithstanding the definition of "storey" in the WDCP, the building height is more properly regulated under the terms of the WLEP, with the WDCP providing additional guidance. The Amended Development Application complies with the 9m height limit prescribed by the WLEP.

(2) The proposed development is for all intents and purposes, a two-storey building with a basement garage and will present as a two-storey building from the majority of locations, similar to most of the properties on the northern side of Boyce Avenue. This is particularly because there are no habitable rooms, doors or windows at the garage/basement level that would present to the street as a separate storey.

(3) The existing dwelling directly opposite the Subject Land, 60 Lawrence Hargrave Drive, (60 LHD) is a two-storey development with basement garage that would similarly be classified as a three-storey development under the WDCP.

(4) The proposed development does not have adverse impacts on solar access, privacy, visual amenity or overshadowing, and as a result the three storeys proposed is acceptable under s 4.1 of the WDCP.

1. Ms Richards is conversely of the view (as set out in the Joint Town Planning Report (Ex 5)) that:

(1) The proposed development does not comply with the WDCP which only permits up to two storeys in the R2 Low Density Residential zone.

(2) The proposed development is three storeys in height and will present as three storeys. The garage/basement level constitutes a storey and appears as a storey whether or not it has habitable rooms, doors etc. As viewed from the street and surrounds, the development will evidently be three storeys and the garage/basement level highly visible.

(3) The existing development in the vicinity of the Subject Land along the north-western section of Boyce Avenue (seven properties numbered 1A to 11 Boyce Avenue) consist of one and two-storey residential dwellings with access via the rear laneway (Foreman Lane or Maxwell Road). None of these dwellings are three storeys in height and none have access via Boyce Avenue.

(4) There are many differences between 60 LHD and the Subject Land such that they should not be compared. For example, 60 LHD is a significantly constrained site that fronts a classified road and has no other means of access other than from Boyce Avenue, is irregular in shape and narrow in width, and has road frontages to three boundaries. Further, due to the topography of Boyce Avenue and 60 LHD, the basement garage at that site sits lower than street level and lower in overall height than the Subject Land, thereby minimising impacts.

1. In relation to consistency with, or impacts to, existing and future character, the parties' town planning experts, Mr Bennett and Ms Richards, agree that:

(1) a key objective of Chapter B1 of the WDCP is "to encourage new residential development that is sympathetic to the existing streetscape and neighbourhood character of a particular locality"; and

(2) section 3.13 of Chapter D1 of the WDCP sets out the existing and desired future character statement of the Austinmer seaside village in which the Subject Land is situated.

1. In Mr Bennett's view (as set out in the Joint Town Planning Report (Ex 5)), the Amended Development Application is "sympathetic to the existing streetscape and neighbourhood character of this particular locality" on the basis that:

(1) The terms "streetscape", "neighbourhood character", and "locality", should not be restricted to a short section of the north-western side of Boyce Avenue and a broader framework for assessment should be adopted.

(2) The proposed development presents as a two-storey building, as do the majority of the existing properties in the vicinity of the Subject Land (including those long the north-western section of Boyce Avenue).

(3) The proposed dwelling is similarly situated within Lot 3 and presents a consistent front setback from Boyce Avenue.

(4) The proposed development actually improves the natural setting and visual amenity of the area by replacing the overgrown planting of the existing Road Reserve embankment and replacing it with more appropriate landscaping and native species that is sympathetic with the landscape planting on other properties immediately adjoining and elsewhere along Boyce Avenue.

(5) The basement garage will not present as a dominant feature within the streetscape and will instead achieve a sympathetic integration. When viewed from the junction of Boyce Avenue and Lawrence Hargrave Drive, the visual impact of the proposed development is one of a well landscaped embankment in keeping with its immediate and broader setting.

(6) The existing embankment within the Road Reserve presently comprises a series of different treatments, both in the approach to landscaping and the existence of a number of driveways (with the existing driveways being on the opposite side of Boyce Avenue to the Subject Property).

(7) Other development in the locality has been approved with three storeys and with access provided through an embankment, for example 60 LHD, thereby indicating the Amended Development Application is consistent with the existing streetscape and character of the locality.

1. In relation to the "existing character" of Austinmer, as set out in Chapter D1 of the WDCP, Mr Bennett is of the view that the proposed development:

(1) comprises a low density detached dwelling house;

(2) presents predominantly as a two-storey dwelling of appropriate bulk and scale;

(3) is contemporary in style consisting of rendered brick, with varied roof forms; and

(4) proposes a landscape treatment that contributes to the leafy village character of the locality.

1. In relation to the "future character" of Austinmer, as set out in Chapter D1 of the WDCP, Mr Bennett is of the view that the proposed development:

(1) retains the "village atmosphere";

(2) retains the low density leafy seaside character;

(3) does not dominate the scenic environmental quality of the coastal strip;

(4) presents predominantly as two-storey in height;

(5) has been designed to retain the natural attributes of the Subject Site and locality, including the Illawarra Flame Tree;

(6) has been designed to be sympathetic with neighbouring properties in terms of scale and bulk;

(7) is an individually designed dwelling, with light coloured finishes; and

(8) has a roof form that assists view sharing opportunities for neighbouring dwellings.

1. In Ms Richards' view (as set out in the Joint Town Planning Report (Ex 5)), the Amended Development Application is "not sympathetic to the existing streetscape and neighbourhood character" on the basis that:

(1) The existing development on the north-western section of Boyce Avenue (seven properties numbered 1A to 11 Boyce Avenue) consist of one and two-storey residential dwellings with access via the rear laneway (Foreman Lane or Maxwell Road). None of these dwellings are three storeys in height and none have access via Boyce Avenue.

(2) The embankment in the Road Reserve fronting these properties is visually prominent as it is 4 to 5m above the street level. This embankment is generally intact (except for variations in landscaping treatments) with no vehicular access through. The embankment, and dwellings sitting above the embankment (including the Subject Land), are visible from Boyce Avenue and the junction at Boyce Avenue and Lawrence Hargrave Drive, and also further along Lawrence Hargrave Drive.

(3) The proposed development is not sympathetic to, or compatible with, the existing or desired future streetscape or character of the locality because it is three storeys in height, presents excess bulk and scale by the addition of the garage/basement level and is incongruous with other nearby development in this part of Boyce Avenue.

(4) The garage/basement will present as excessive bulk and scale and a dominant feature within the streetscape where there is a largely intact embankment. The proposed new garage/basement level will have a 3.6m high opening and garage door for vehicular access, excavated into a steep vegetated embankment. The alternative and available access via Foreman Lane does not present these adverse impacts to the streetscape and surrounds.

(5) The existing site constraints of the Subject Land, including the topography of the Subject Land, the embankment, the setting and attributes, including existing access from Foreman Lane, have been disregarded. The proposed development therefore does not minimise the extent of cut and fill and is unnecessary and undesirable.

(6) It is acknowledged that there are other properties in the locality that are three storeys in height (with garage/basement level), including, in particular, 60 LHD. However, the proposed development can be distinguished from 60 LHD as that property fronts a classified road and has no other means of access other than from Boyce Avenue. Further 60 LHD is significantly constrained because of its irregular shape, narrow width and three road frontages. Notwithstanding this, the basement garage at 60 LHD sits lower than street level and lower in overall height that the Subject Site, minimising impacts. Further, the embankment in the road reserve on this side of Boyce Avenue (south-eastern side) is substantially lower than the Road Reserve fronting Lot 3.

1. In relation to the "existing character" of Austinmer, as set out in Chapter D1 of the WDCP, Ms Richards is of the view that the proposed development:

(1) is three storeys in height (not one to two storeys described in the "Existing Character" statement); and

(2) requires substantial excavation into the Subject Land, including Council Road Reserve, to provide a basement garage (being a non-compliant storey) with a 4.8m wide driveway, entry and retaining wall and landscape sandstone walls is not considered to contribute to the leafy village character of the area, does not minimise bulk and scale and does not contribute to a visually appealing environment.

1. In relation to the "desired future character" of Austinmer, as set out in Chapter D1 of the WDCP, Ms Richards is of the view that the proposed development:

(1) is three storeys in height and not the one to two storeys that is described in the "Desired Future Character" statement;

(2) is, in the circumstances of the Subject Land and its surrounds, overbearing and dominates the scenic environment;

(3) requires significant excavation into Lot 3 and the Road Reserve to create a 4.8m wide driveway, 3.6m high garage door, retaining walls and landscape sandstone walls in place of a vegetated embankment, does not result in the retention of the leafy seaside character or retain the natural attributes of the immediate locality. The proposal breaks the continuity of the streetscape and provides a development that is incongruous to its surrounds;

(4) ignores the existing topography, site constraints and existing access; and

(5) is not deemed to be sympathetic with neighbouring properties in terms of scale and bulk.

1. In relation to setbacks, the town planning experts agree that:

(1) Section 4.2.2(b) of Chapter B1 of the WDCP provides that "garages and carports must be setback a minimum of 5.5 metres to enable a vehicle to park or stand in front of the garage or carport". The Amended Development Application does not meet this requirement. However, the issue of adequate space to enable a vehicle to park or stand in front of the garage entry may be addressed by the transport experts.

(2) The Amended Development Application results in a variation to the side setback control under s 4.3.2(1) and (2) of the WDCP in the area of the south-western elevation (where the wall height exceeds 7m but a side setback of less than 3m is proposed). However, this matter may be addressed by provision of additional information, including a variation request, as required under the WDCP, addressing the objectives of the control and by demonstrating that the variation will not result in adverse impacts.

1. In Mr Bennett's view, notwithstanding the non-compliance with the 5.5m garage setback requirement in the WDCP, the proposed development does achieve the objectives of s 4.2.1. This is because, in this particular case, the basement garage will be directly under the house and generally out of site, and it would result in a perverse outcome in the basement garage was set back further into the Subject Land.
2. In Ms Richards' view, the proposed development does not meet the objectives of s 4.2.1 of the WDCP because the:

(1) proposed garage/basement is out of character with the north-western side of Boyce Avenue, disrupting the continuity of setbacks and scale of development and thereby adversely impacting on the streetscape;

(2) site constraints have been disregarded with suitable access currently available via Foreman Lane; and

(3) there is inadequate space for a hardstand area in front of the garage without imposing on movement corridors.

1. In relation to fencing, the town planning experts agree (as set out in the Joint Town Planning Report (Ex 5)) that:

(1) The proposed development proposes a variation to the side boundary fence height adjacent to the swimming pool on the south-western side boundary and inadequate justification or details have been provided for this.

(2) A 1.8m high boundary fence is indicated to the secondary frontage to Foreman Lane and details of the materials and elevation have not been provided.

(3) Inadequate details have been provided in regard to any front fence proposed to Boyce Avenue.

1. The applicant submits that the Amended Development Application complies with all planning controls in the WLEP and WDCP.
2. The applicant further submits that there is no desired future character statement for Austinmer in the WLEP and as per the decision of Preston CJ in Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 (SJD), the desired future character of an area cannot be derived from a Development Control Plan absent express provisions in the parent Local Environmental Plan. As was the case in SJD, the WLEP does not expressly refer to the provisions of the WDCP for the purpose of defining "desired future character". Therefore, the existing character of the locality is what is seen.
3. The applicant states in its written submissions that "an analysis of the buildings within the locality has been done", which is stated to be "confirmed from site visit, visual inspection and local knowledge (Mr Steven House), 25 February 2024".
4. The applicant goes on to state that this analysis demonstrates that:

(1) 32% of properties within the "broader locality" of the Subject Land comprise of three-storey dwellings of either three floors of residential habitation or two floors of residential habitation and a basement/garage level; and

(2) 58% of properties within the "immediate locality" comprise three-storey dwellings of either three floors of residential habitation or two floors of residential habitation and a basement/garage level.

1. Therefore, the applicant submits (applicant's written submissions at [2.6(i)]) that the Court should conclude that three-storey development "is very much part of the existing character of the locality", and that this is reflected in the 9m maximum building height standard in the WLEP.
2. In relation to the visual appearance of the basement/garage level, the applicant confirms that the Amended Development Application reduces the proposed height of the garage opening to 2.7m down from 3.6m. The applicant submits that many properties on Boyce Avenue have direct vehicular access to a garage from the street, including 60 LHD and 62 Lawrence Hargrave Drive and many other properties in Austinmer generally.
3. The applicant goes on to state in its written submissions (at [2.7(f)]) that the existing embankment in the Road Reserve is degraded with an old retaining wall, flight of stairs and vegetation comprised of exotic weeds. The proposed garage/basement level will be landscaped and improve the interface with 3 Boyce Avenue. The applicant submits (at [2.7(i)]) that "the visual impact of the development, including the basement garage, is of sympathetic integration although it is the first development on the north west side of Boyce Avenue that seeks the utility, amenity and safety of basement vehicle garaging" and that the proposed development will "present as a two storey building, above a basement consistent with urban low density residential development".
4. The applicant's written and oral submissions did not address the issues raised by the respondent regarding setbacks or fencing.

1. The respondent submits that the provisions of the WDCP are a relevant consideration in the determination of this appeal and that the R2 low density residential objectives, controls, and existing and desired future character provisions relating to Austinmer should be considered.
2. The respondent goes on to state (respondent's written submissions at [32]) that the context of the Subject Land, being the existing developments in the vicinity of the Subject Land along the north-western side of Boyce Avenue:

(1) consists of one and two-storey residential dwellings with access via the rear laneway (Foreman Lane);

(2) presents consistent front setbacks from Boyce Avenue; and

(3) features embankments that are generally intact.

1. It is the respondent's contention that the existing character of Boyce Avenue along its north-western side is clearly distinguishable from its south-western side due to the existing natural features, namely the embankment.
2. The respondent submits that the proposed development is not sympathetic or compatible with the existing streetscape and character because it presents as three storeys in height, presents excess bulk and scale by the addition of the garage/basement level (which will present as a dominant feature within the streetscape where there is currently a largely intact embankment), and is incongruous with other nearby development in this part of Boyce Avenue. This results in a detrimental impact on the streetscape and an adverse visual impact.
3. The respondent states that the embankment forms part of the character of the area and as set out in the WDCP, the character of an area is not to be confused with its attractiveness.
4. Further, the respondent contends that there is more suitable existing alternative vehicular access available from Foreman Lane, which does not present the same adverse impacts to the streetscape, amenity and surrounds.
5. Finally, the respondent submits that the Amended Development Application should be refused on the basis that it fails to demonstrate compliance with:

(1) the minimum front setback requirements at garage/basement level pursuant to Ch B1, s 4.2.2(b) of the WDCP and fails to demonstrate compliance with the objectives in Ch B1 s 4.2.1(a)-(f) of the WDCP; and

(2) the fencing requirements in Ch B1 s 4.9.2(2)-(4), (6), (9) and (11)-(14) and s 4.9.1(a)-(g) of the WDCP.

1. In relation to the issue of storeys, I am satisfied that the Amended Development Application, if approved, would constitute a three-storey development for the purposes of the WDCP. I accept Ms Richards' evidence that it would present as a three-storey development when viewed from Boyce Avenue as the garage/basement level will be highly visible when viewed from the street.
2. It is the clear intention of the WDCP to generally limit residential development in the local government area to two storeys (as per s 4.1(a) of the WDCP) although it is noted that the number of storeys acceptable will be dependent on the surrounding development, the character of the area, the impacts that the proposed development has on solar access, privacy, visual amenity and overshadowing. This qualification, in conjunction with the height limits prescribed by the WLEP, indicate that three storeys can be acceptable in the Austinmer locality, subject to the merits and location of the particular development.
3. In terms of whether three-storey residential development is consistent with the existing character and streetscape of the locality in which the Subject Land is situated, the town planning experts gave conflicting evidence. Both town planning experts agree that there are examples of three-storey dwellings in the vicinity of the Subject Land, however, the quantity or prevalence of three-storey dwellings is disputed.
4. Starting with the north-western side of Boyce Avenue comprising 1A to 11 Boyce Avenue (being the side of Boyce Avenue in which the Subject Land is located), Ms Richards was of the view that all of the existing dwellings were one or two-storey. However, Mr Bennett stated in cross examination that many of the dwellings in this location were in fact three-storey. When asked if these properties presented a uniform two-storey appearance, Mr Bennett responded (T p 93 line 12-14):

"No. Depends on which angle you take it from. So it depends if you take it from the street or from the front garden. So from the front garden, many of them present as three-storey."

1. When asked to confirm that these properties present as two-storey from the road at the bottom of the embankment on Boyce Avenue (as opposed to standing in the front garden of the properties), Mr Bennett said "I can show you some places where you can" and took the Court to photos of 7 Boyce Avenue and 62 Lawrence Hargrave Drive.
2. However, Mr Bennett says earlier in the Joint Town Planning Report (Ex 5, p 10 [2.26]), that "the proposed development presents as a two storey building - as do the majority of the existing properties in the vicinity of the Site (including those along the north-western section of Boyce Avenue)".
3. I have considered the analysis contained within the applicant's written submissions which is stated to be "confirmed from site visit, visual inspection and local knowledge (Mr Steven House), 25 February 2024". It is not definitive as to the author and does not comprise a proper planning analysis of what has been approved by the respondent council or whether these dwellings are in fact three storeys or whether they present as three storeys and from what vantage point. I have therefore provided significantly more weight on the evidence of the town planning experts as set out in the Joint Town Planning Report and their oral evidence.
4. Based on the evidence, I accept that some of the dwellings along the north-western section of Boyce Avenue (being properties 1A to 11 Boyce Avenue) present as three storeys when viewed from within the boundaries of those properties. These properties primarily include 7 Boyce Avenue (as per the photograph taken from the property in Ex D, p 27) and 1A Boyce Avenue (when viewed from Maxwell Road as per Ex D, p 16). However, having regard to the evidence of the planners and my own observations from the site view, I accept Mr Bennett's written evidence that the majority of the existing properties along the north-western section of Boyce Avenue, present as two storeys when viewed from the street at Boyce Avenue.
5. I am therefore satisfied that the north-western section of Boyce Avenue, presents as a row of primarily two-storey dwellings sitting atop a large embankment with no structural breaks in the continuity of that embankment, save for various stairs and retaining walls.
6. Turning to the other side of Boyce Avenue and locality more generally, I accept that there are instances of dwellings presenting as three storeys in the locality based on the evidence of the experts, the photographs contained within Ex D, tab 1, and walking the locality at the site view.
7. In relation to desired future character, I have considered section 3.13 of Chapter D1 of the WDCP which states "dwellings should be generally one to two storeys in height and be designed to retain the nature attributes of the immediate locality".
8. Noting the decision of Preston CJ in SJD, I am satisfied that the desired future character for Austinmer as set out in s 3.13 of Chapter D1 of the WDCP is a relevant, although not determinative matter to which I have had regard in the determination of this appeal.
9. In relation to the visual impacts associated with the garage/basement level and their consistency with, or impacts to, streetscape and character, I accept that the other side of Boyce Avenue has multiple driveways excavated into the embankment on that side of the street. However, I accept Ms Richards evidence, which is consistent with my observations from the site view, that the embankment on the other side of Boyce Avenue to Lot 3 is significantly lower than the embankment which adjoins Lot 3. Further, the embankment which adjoins Lot 3 is intact, in the sense that no driveways have been cut into it, such that the two sides of Boyce Avenue should not necessarily be treated the same. Further, it does not appear that there would be any other vehicular access available to the properties on the other side of Boyce Avenue (not having rear lane access).
10. The embankment adjoining Lot 3 creates a consistent and continuous visual line on that side of the road. If the proposed development was approved and a 4.8m wide driveway constructed with a garage and basement level on Boyce Avenue, I am satisfied that this would be a significant departure from the existing streetscape. For completeness, I hold this view regardless of whether the garage opening is 2.7m in height as per the Amended Development Application or 3.6m as per the plans considered in the Joint Town Planning Report.
11. Section 2 of Ch D1 of the WDCP expressly provides that "the character of a particular suburb should not be confused with its attractiveness since all suburbs have an existing character". I accept the respondent's submission that the embankment "informs the existing character" regardless of whether it comprises fill, is natural, weed infested or otherwise, and the guidance provided by s 2 of Ch D1 of the WDCP is a relevant consideration in this case.
12. I accept Ms Richards' evidence that 60 LHD can be distinguished from the Subject Land such that it should not be used as a precedent to support the proposed development in this case. This is primarily because 60 LHD is significantly constrained because of its irregular shape, narrow width and three road frontages (one being a classified road). Further, I accept Ms Richards' evidence that the embankment in the road reserve on this side of Boyce Avenue (south-eastern side) is substantially lower than the Road Reserve fronting Lot 3.
13. Therefore, although a three-storey residential development may be appropriate in the Austinmer locality in certain circumstances, the merits of the Amended Development Application do not support a three-storey dwelling in this case. This is because I am satisfied that the north-western section of Boyce Avenue presents as a row of primarily two-storey dwellings sitting atop a large embankment with no structural breaks in the continuity of that embankment, save for various stairs and retaining walls. It is appropriate to distinguish the north-western section of Boyce Avenue from the other side for the purposes of establishing the streetscape relevant to the Subject Land, due to the height and structural continuity of the embankment within the Road Reserve on the north-western side when compared with the significantly lower and inhomogeneous embankment on the other side of Boyce Avenue.
14. The proposed development, if approved, would be a significant departure from the existing streetscape in that it would present as a three-storey development when viewed from the street, and the proposed excavation into the embankment to facilitate a garage/basement will present as excessive bulk and scale and a dominant feature within the streetscape where there is a largely intact embankment on the north-western side.
15. Finally, I accept the respondent's submissions that the Amended Development Application fails to adequately address setback and fencing requirements in the WDCP, although I note the agreement of the town planning experts that these issues could likely be resolved through the provision of further information.
16. Therefore, I accept the respondent's submission that the Amended Development Application should be refused as the proposed development is not sympathetic to the existing or desired future streetscape and neighbourhood character, and the garage/basement level is out of character and context with the surrounds, presenting an unnecessary and unacceptable bulk and scale in the context of the Subject Land.

1. As I have decided that the appeal must fail on its merits having regard to streetscape and character, it is not necessary to consider the parties' submissions in relation to traffic issues. However, I note for completeness, that the applicant's case asserted that the existing access off Foreman Lane was "unsatisfactory", "not convenient" and "unsafe" and that this was a primary reason why access should be provided from Boyce Avenue.
2. To this end, I accept the evidence of the experts that Foreman Lane does not comply with contemporary standards and would likely not have been constructed if a new residential subdivision was created today (see for example, T 5 March 2024 p 28 line 46 to 49). I accept the applicant's evidence that due to the narrowness of the lane and lack of turning circle at the end of the lane, access via Foreman Lane can be inconvenient at times.
3. However, I also accept the evidence of Mr Bevan that Foreman Lane is an "existing situation" which presently services approximately seven properties. There was no evidence before the Court that the use of Foreman Lane was so unsafe that it should not be utilised by the Subject Land or any of the existing properties going forward. I accept the evidence of Mr Bevan that the carriageway width of Foreman Lane "would allow safe movement of vehicles" (T 5 March 2024 p 49 (33)-(34)), is "sufficiently designed for the amount of traffic that is using it at the moment" (T 5 March 2024 p 49 (50)) and "will continue to function okay" (T 5 March 2024 (11)-(12)).
4. Therefore, I do not accept the applicant's submission that the access provided by Foreman Lane is so inadequate or unsafe that alternative access must be provided through Boyce Avenue.

1. The Development Application, as lodged, was notified between 15 and 29 August 2023. One written submission objecting to the proposed development was received in response to the notification of the proposal. This objection primarily related to issues of solar access, major excavation for the basement garage, dust control, noise from equipment, fireplace fuel, landscaping and wind impacts.
2. In addition, two different residents addressed the Court at the on-site view in support of the Development Application, primarily in relation to the design of the development, respectful approach to view sharing, and reducing traffic impacts on Foreman Lane.
3. The written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.

1. By way of conclusion and summary, the appeal should be dismissed on the basis that:

(1) The inferred historical filling of Lot 3 is a potentially contaminating activity, and the applicant has not provided adequate information as to whether Lot 3 is contaminated for the purposes of s 4.6 of the RH SEPP.

(2) Insufficient information has been provided to allow the Court, as the consent authority in this case, to consider the matters listed in cl 7.6(3) of the WLEP "before granting development consent for earthworks".

(3) The Amended DA, if approved, would present as a three-storey dwelling which would be unsympathetic and inconsistent with the existing visual presentation to the street of the other dwellings on the north-western side of Boyce Avenue (which largely present as two storeys).

(4) It is the stated intention of the WDCP to generally limit residential development in the local government area to two storeys although it is noted that the number of storeys acceptable will be dependent on consideration of a number of factors (as per Ch B1 s 4.1(a) of the WDCP). Further, it is the stated "desired future character" of the Austinmer area that "dwellings should be generally one to two storeys in height and designed to retain the nature attributes of the immediate locality" (Ch D1 s 3.13 WDCP). As set out above at [107], although the provisions in the WDCP are not in themselves determinative, they are relevant considerations to which I have attributed weight in the determination of this appeal. Having regard to the merits of the Amended Development Application, three storeys is not supported in the circumstances of this case.

(5) The north-western side of Boyce Avenue can and should be distinguished from the other side of Boyce Avenue due to the 4m high intact embankment which forms a key feature in the streetscape. This key feature should not be disturbed to provide vehicular access when alternative vehicular access presently exists via Foreman Lane.

(6) The proposed excavation into the embankment to facilitate a garage/basement will present as excessive bulk and scale and a dominant feature within the streetscape where there is a largely intact embankment.

(7) The existing access via Foreman Lane is not so unsafe or inconvenient that alternative access via Boyce Avenue is necessary.

(1) The appeal is dismissed.

(2) Development application no. DA-2022/852 for the demolition of the existing dwelling and associated structures and construction of a dwelling house with basement garage and store, swimming pool, retaining walls, site works and landscaping on Lot 3 in Deposited Plan 8096, known as 3 Boyce Avenue, Austinmer, and the road reserve adjacent to that land, and new vehicular access via Boyce Avenue involving works within the road reserve, is refused consent.

(3) The exhibits are returned, except for A, B, 1, 3 and 5.