Sunland No. 35 Pty Ltd v Camden Council [2019] NSWLEC 1391 | Case summary

Remaining contentions

Ms Pearman, counsel for the Council, submitted that the application ought to be refused. There were numerous non-compliances with the DCP, poor layout and design, narrow roads, inadequate parking, and too high a dwelling yield resulting in poor urban design outcomes. Given there were no FSR provisions, amenity was achieved by meeting the core DCP controls.
However, in response to conferral of experts and preparation of expert Joint Reports, it was agreed at the commencement of the hearing that the civil engineering, waste, acoustic and landscaping issues had been resolved, other than in terms of road designs and width, including truck access to the dwellings on the eastern side of Annanvale Circuit adjoining Woolworths. These 14 dwellings are proposed to be accessed from a continuation of Annanvale Circuit, being proposed 'Road 1', via a common 'dead end' road referred to as 'Driveway 1' (the Driveway 1 dwellings).
Evidence on traffic and parking issues was provided by Mr Lo for the applicant and Mr Steal for the Council and was summarised in their expert Joint Report (Exhibit 5). Evidence on the remaining planning and urban design issues was provided by Mr Barwick for the applicant and Mr Apps and Mr Stanish respectively for the Council and summarised in their expert Joint Reports (Exhibits 3 and 4).
The traffic engineers agreed that service vehicles and truck activities in the estate would be infrequent however safe provision for passing traffic should nevertheless be achieved. It was agreed that non-resident vehicle access to Driveway 1 could be restricted by signage.
The engineering experts also agreed that the design of indented on-street visitor parking was appropriate however, recommended additional footpaths on some of the internal roads, which was agreed to by the applicant.
The experts disagreed in terms of an acceptable width of the internal roads, and of the design of Road 1 generally, as well as with the appropriateness of using speed humps to slow traffic, and the acceptability of the design of Driveway 1 to safely accommodate delivery and removalists' trucks.
Mr Steal was particularly concerned that the provision of tandem parking for the dwellings in the estate would likely result in increased demand for on-street parking and illegal verge parking, which led to his concern with the width of the roads.
The planners agreed that a number of the amenity and design issues originally contended by the Council could be resolved with minor design changes or by conditions of consent. An agreed set of conditions was filed after the conclusion of the hearing.
The planners also agreed that the DCP provisions for setbacks to secondary streets did not apply to the private roads, being the majority of roads within the estate. The only non-compliant setbacks were for 5 dwellings to Annanvale Circuit where only half the DCP requirement is met, with setbacks proposed of 2.25m. However, this setback exceeded the minimum 2m required for a dwelling house and allowed landscape treatment within the setback area. As there was no driveways proposed from Annanvale Circuit, there was opportunity for a continuous landscape presentation to that street thus responding positively to the objectives for the setback control. This would be maintained in a Plan of Managment required as part of the community titling of the development ensuring landscaped outcomes. Further, these dwellings interface with either a rear wall or the car park of the adjacent shopping centre as opposed to being opposite other residential development and the proposed development is a stand-alone estate and not multi-dwelling housing within an area of single dwellings.
The height of the side boundary fencing to Annanvale Circuit was also agreed which would further improve the visual quality and therefore acceptability of the proposed setbacks. The applicant also agreed to landscape the verge adjoining the shopping centre in Annanvale Circuit.
The planners also agreed that the proposed articulation of dwellings was now acceptable as was the storage provided. The development also proposes a series of themed blocks of dwellings. The planners agreed that there was scope to provide variation within each block to create visual interest and identity. The agreed conditions of consent specify details of colours used through the estate and require fencing around the bin enclosures to be reduced in height from 1.8m to 1.2m.
The only area the planners disagreed on was the acceptability of the solar access to the principal private open space areas of the proposed dwellings.
In terms of urban design, the experts agreed that it would be desirable to introduce canopy trees at the western interface where there was no conflict with the engineering treatment of the overland flow paths. Further, that the height of fencing along Annanvale Circuit should be reduced to 1.2m with a 1.8m height only required to screen plant, drying areas and private open space. A fence height of 1.2m should also apply to the fencing adjoining the two pocket parks proposed within the estate. These requirements were agreed by the applicant and reflected in the subsequently filed agreed conditions of consent.
In terms of matters not agreed, Mr Stanish also sought a maximum fence height of 1.2m for the rear fencing of lots backing onto Holdsworth Drive and he did not support the size or location of the pocket parks in terms of providing useful community open space. He also sought a change in the design for dwellings adjoining Annanvale Circuit so that they fronted that street (and the shopping centre) rather than the proposed internal roads, as well as an increased setback of the two Driveway 1 dwellings which adjoin Annanvale Circuit.
Mr Stanish also sought an increased width in the western section of internal Road 2, in order to provide for footpaths on both sides of the road. He also did not agree with the location of the two proposed sub-stations
The urban designers also did not agree on an appropriate location for a public footpath between the perimeter private road of the estate and the informal pedestrian path on the western boundary connecting to Kokoda Circuit. The landscape treatment of the drainage easement was also not agreed.
Finally, Mr Stanish was not happy with clustering elements proposed with blocks of similar designs as he did not consider they provided appropriate reference points to assist with way-finding and he sought a greater variety of materials, including to ensure durability and graffiti resistance.
I will now deal in more detail with these remaining contentions.
Overview of road, access and parking concerns
The Council argued that the design of roads, given the proposed tandem parking provision for dwellings, would not meet the requirements of the DCP and/or result in poor design outcomes. This included the proposed design of Driveway 1 and the width and length of Road 1, in particular.
Reference was made to the objectives for access and parking contained in Part B5 of the DCP, particularly objectives 1 and 9 which are as follows: "1. Ensure pedestrian and traffic safety. … 9. Ensure adequate facilities are provided within a development for the loading and unloading of persons and goods."
The Council also referenced controls for street networks contained in Part C5.2 of the DCP which deal with the design of roads in residential subdivisions and require roads to be safe, functional and legible. Reference was also made to the Council's Engineering Design Specification for cul-de-sac turning heads and the design guidance for access provided in the draft Medium Density Design Guide (draft MDD Guide) which, revised, became the Low Rise Medium Density Design Guide (LRMDD Guide) published by the Department of Planning.
Design of Driveway 1
The Council argued that 'Driveway 1' was not a driveway but a road. It served 14 dwellings and should, as a minimum, be able to accommodate forward entry and exit movements of an 8.8m long Medium Rigid Vehicle (MRV), or medium sized truck, as used by removalists and delivery vehicles. A turning head should be provided which could accommodate such trucks so that they did not reverse into or out of Driveway 1 from or onto Road 1. Instead only a turning area to accommodate cars was provided at the end of Driveway 1 adjoining the last dwelling, Dwelling 9.
Mr Lo argued that providing the required large turning head for infrequent access by trucks serving only 14 dwellings was onerous. Instead, he recommended a 12m long indented truck parking bay be provided in the reserve of Road 1 adjoining Dwelling 2, being the dwelling on the south eastern corner of Road 1 and Driveway 1. The location of this bay was indicated in a plan attached to the Joint Report (Exhibit 5). Loading could occur from this bay directly to the 4 closest dwellings. Therefore, only 10 dwellings would be inconvenienced by the distance to this bay or could result in truck access being sought to the front of these dwellings.
In addition to being used for loading purposes, the truck parking bay could also be used for maintenance trucks accessing the adjoining sub-station and for waste vehicles, albeit waste collection was not a contention raised by the Council. The bay would avoid the need for any reverse manoeuvres associated with Driveway 1.
However, the Council was concerned that this loading bay would be 60m from the furthest Driveway 1 dwelling and questioned that residents of these dwellings or removalists would be willing to move heavy items this distance. Trucks required to access these dwellings would likely ignore the bay and park directly outside the dwelling being accessed. The trucks would then be required to reverse up Driveway 1 and onto Road 1, or do the opposite manoeuvring, either of which was unacceptable from a safety and risk perspective.
Mr Lo accepted that the arrangement was not optimal and that it was important to minimise risk, however, he did not consider the safety risk to be high or unacceptable. There were excellent sightlines provided at the intersection of Driveway 1 with Road 1, there would be low frequency of access being sought by trucks, and this was a private estate where access could be controlled by signage and by the management of the estate through a Plan of Management. In his view, 60m was not a long distance to traverse with goods and Driveway 1 would be straight, level and lightly trafficked. He also did not consider it to be an issue if the occasional removalist or delivery truck did park temporarily in Driveway 1, given this would be an infrequent occurrence for a brief period of time.
Mr Galasso SC, counsel for the applicant, also submitted that specific 'No Entry' signs at the entry to Driveway 1 would be installed which could be enforced by management. Further, removalists typically work in pairs so safe exiting into or from Driveway 1, or from the proposed truck parking bay into Road 1, could be expected noting the light traffic in Road 1 and that it was a private, managed road but road rules would still apply.
In oral evidence, the Council submitted that the design of Driveway 1 should be considered having regard to the requirements in the DCP at Part C5.2 that a cul-de-sac should not serve more than 12 dwellings. Driveway 1 serves 14 dwellings. The applicant argued this design requirement had not previously been raised by the Council as a contention and was neither a reasonable nor a necessary design requirement.
Design of estate roads and impacts of on-street and verge parking
The experts disagreed on whether two-way passing on the estate roads would be possible if cars parked on the street or verge. Mr Steal considered it would be difficult and Mr Lo accepted it would be 'tight'.
The Council was concerned that there was a high reliance on resident tandem parking for all dwellings. Notwithstanding that visitor parking was provided in locations throughout the estate, the tandem parking would likely result in a high incidence of illegal on-street and verge parking. This had the potential to restrict the internal roads to a single travel lane with limited safe opportunities for passing given the narrow widths of the roads, albeit there was no minimum width required by the Council's engineering design specification.
Mr Steal agreed that the widths would not be of concern if there was no on-street or verge parking. However, in his experience, a proportion of residents would choose to park their car, or second car, on the verge or at the kerb to avoid the inconvenience of their on-site tandem parking. He had observed this behaviour at a site in Villawood similar to the proposed development.
He argued that parking on or partly on verges or in narrow roads results in: unacceptable obstruction of sightlines, including for pedestrians; narrowing of the roads such that two-way passing is not possible or difficult; blocking of driveways; and increased difficulty for heavy vehicles to circulate, including waste vehicles. He was concerned that such outcomes would occur in this estate, which would be unacceptable from both a traffic engineering and traffic and pedestrian safety perspective. He also questioned the ability to enforce 'No Parking' restrictions on private roads. Mr Steal did accept that more resident and visitor parking was being provided than the DCP requires. However, Ms Pearman submitted that the roads should be designed to account for 'bad behaviour'.
The applicant argued that the DCP requirement for on-site parking was for 260 spaces to be provided including 28 visitor spaces. The proposed estate provides for 303 spaces including 49 visitor spaces thus significantly exceeding the DCP requirement. In particular, the visitor parking exceeded the DCP requirement by some 75%. Accordingly, neither residents nor visitors will need to rely on on-street parking beyond the indented visitor parking that was specifically provided.
Mr Lo argued that tandem parking was supported for narrow lots in the draft MDD Guide and he noted that the DCP did not prohibit resident tandem parking.
He argued that the internal private roads were therefore never intended to be designed to accommodate on-street parking other than in the designated visitor parking locations indented within the road reserve. Further, the roads would have a sign-posted limit of 20km/hr and speed humps would be incorporated into specific locations on Roads 1 and 3 to slow down traffic. Resident and visitor compliance with the speed limit was not a matter of traffic design but of the estate's policing and management.
Mr Galasso also submitted that there were limited areas where on-street parking could occur, given the areas set aside for indented visitor parking and the location of intersections and dwelling crossovers. Further, 'No Parking' and 'No Verge Parking' signage could be installed to deter on-street and verge parking and road rules still had to be complied with and were enforceable. Further, the road design would naturally limit speeds. It was of concern that the Council's assumptions were based on people not following the law.
Mr Steal accepted that the visitor parking was well distributed throughout the estate and appropriately designed. If the roads had 20 km/hour sign posting and speed humps installed, and people complied with the speed limit, he accepted there would be no issue. He also accepted that, generally, people are law abiding and the parking on the streets adjoining the indented visitor car parking was unlikely and therefore not a concern. Nor was the width of the southern section of Road 2. However, potential on-street and verge parking for the balance of the estate's roads remained a concern.
In addition to concerns with road width, Mr Steal was also concerned with the long sections and sweeping bends of Road 1 which he considered would encourage speeding. He referenced the design considerations in Austroads 2016 Guide to Traffic Management, and in particular the design considerations for local area traffic management where the objective is to design streets to be self-regulating in terms of managing speed. In his view, the proposed speed humps were not the solution. They would have acoustic impacts on the amenity of adjoining residents whereas the opportunity instead exists to design the road network to inherently lower vehicle speeds rather than relying on speed humps. He did acknowledge that the acoustic impacts of the speed humps were not a traffic matter specifically.
Mr Steal referenced AMCORD, a national model Code introduced in the 1990's to guide residential development. It discourages the use of traffic management devices in new areas instead encouraging the design of roads to reduce speed and not require their costly introduction at a later date given the potential impact to property access, availability of on-street parking, and the potential conflict with parked cars. One design solution suggested was to limit the length of roads, which Mr Steal argued was not met with Road 1.
Mr Galasso submitted that the opportunity was being taken to install speed humps at the outset rather than try and retrofit them to deal with a potential issue in the future which is more likely to be of concern to residents. Further, AMCORD also suggests incorporating speed control devices to assist in achieving the design speed sought.
Solar access to private open space
The Council argued that, on the basis of non-compliance with solar access requirements for principal private open space (PPOS) alone, the application should be refused. In this regard, just over 50% of dwellings met the solar access requirements of the DCP for the provision of at least 3 hours of solar access in mid-winter to 50% of PPOS, whilst 30% (or 49 dwellings) received no solar access whatsoever to their PPOS.
The requirements for solar access are contained in Part D of the DCP. Specifically, at D2.1.5, the DCP has the following objectives: "1. Provide a high level of residential amenity with opportunities for outdoor recreation and relaxation within the property. 2. Facilitate solar access to the living areas and private open spaces of the dwelling. 3. Ensure that dwellings are designed to minimise overshadowing of adjacent properties and to protect minimum standards sunlight access to private outdoor living space of adjacent dwellings. 4. Ensure that each site has sufficient area for landscaping, including deep soil planting areas for larger trees, to facilitate the establishment of attractive and functional open space areas."
The following controls at D2.1.5 apply: "… 2. Each dwelling shall be provided with quality, useable private open space (POS) behind the building line. The total area of POS for each dwelling is to be a minimum 20% of the site area. Note: In calculating the POS, areas with a measurement in any direction of less than 2.5m are to be excluded. 3. The POS area of each dwelling is to have a principal private open space (PPOS) in at least one courtyard directly connected to a living zone of the dwelling with a minimum area of 24m², including a minimum length of 4m and being not steeper than 1:10 gradient. On steeper sites open space is to be terraced to provide useable space or a timber deck with the minimum dimensions of 4 metres by 2.5 metres, constructed adjacent and accessible to a living zone of the dwelling to minimise any site disturbance. 4. Sunlight must reach at least 50% of the PPOS of both the subject dwelling and of any adjoining dwelling, for not less than 3 hours between 9.00am and 3.00pm on 21 June. POS that has a southerly orientation (shaded by the dwelling and/or adjacent dwelling) may require an increase in its area to compensate for the shaded POS. 5. North facing windows of living areas shall receive at least 3 hours solar access between 9am and 3pm on June 21st over a portion of their surface. 6. North facing windows to living areas of neighbouring properties shall not have sunlight reduced to less than 3 hours between 9 and 3pm on June 21st. 7. At least one principal living area of a dwelling must face predominantly north. 8. The PPOS shall be adequately screened for privacy from adjacent dwellings and passers-by."
Ms Pearman argued the provisions of the DCP were the guide and they implied 100% compliance was required. However, Mr Apps accepted that it was not necessary or reasonable to achieve 100%. The design should however, minimise the number of rear yards that face south to maximise solar access to PPOS as the DCP intends. The issue becomes what is a reasonable level of compliance for this site?
In the absence of any numerical control in terms of a reasonable proportion of dwellings achieving the required solar access to their PPOS, Mr Apps had considered the provisions of the Apartment Design Guide (ADG) albeit acknowledging that the ADG only applied to Residential Flat Buildings (RFBs). The ADG control is for 70% compliance and that a maximum of 15% of dwellings can receive no solar access. This is a stand-alone multi-dwelling development which does not even achieve the requirements for dwellings within an RFB. In his view, the ADG requirements at least should be met if not exceeded.
The applicant argued that the narrow configuration and orientation of the site, and the site constraints, meant that achieving DCP solar access compliance to all PPOS was not reasonably possible, as well as providing good solar access to all living areas, which was achieved.
Accepting however, that residents need reasonable solar access to private open space, it was proposed in the amended application to provide more private and landscaped front yards in addition to PPOS areas, which did achieve good solar access. Providing alternative areas of private open space would give residents choice of which areas to use depending on solar access preferences.
A sketch was appended to the planners' Joint Report (Exhibit 3), subsequently shown in more detail (Exhibit P) as part of updating the Landscape Plans, indicating how these front yards could be screened for privacy through a combination of 1.2m high fencing and hedges. Sliding doors were proposed to better access these yards from the dwellings.
The Council raised some concern with the design of these front yards including their access through gates from driveways and with the need to also access bin areas. However, otherwise Mr Apps accepted they would provide occupants an alternative private area of open space having good solar access. However, they would not constitute PPOS as defined and required by the DCP.
If these front yards were included, the applicant claimed that 129 of 139 dwellings (or 92%) would receive the required solar access to an area of private open space, and only one dwelling would get no solar access to any area of private open space. However, the planners disagreed about whether 6 of the dwellings would receive the degree of solar access claimed.
Further, the Council maintained that the solar access requirement is to PPOS. The proposed front yards did not meet the DCP requirement to be behind the building line and a number were only 16m² in area so they did not meet the minimum area required for PPOS of 24m² and would therefore provide limited amenity for occupants.
The Council referenced the decision of then Senior Commissioner Martin in Landco (NSW) Pty Ltd v Camden Council [2017] NSWLEC 1694 (Landco) where the Senior Commissioner refused a development in part due to the lack of solar access to PPOS areas.
Mr Galasso submitted that, to receive the required solar access to rear yards which comprised the PPOS, these yards would need to face the street. This was not a good urban design outcome. Mr Barwick also argued that all of the dwellings have greater than 24m² of private open space albeit that part of it is not located behind the front building line. Further, this was a low speed environment in a private estate and therefore front yards would have high levels of amenity and give residents a choice of either increased privacy or increased solar access. All dwellings had access from living areas to areas of private open space.
Further, the ADG does not apply and Mr Barwick instead referenced the objectives of the LRMDD Guide which he argued are met and that a qualitative, not a quantitative, assessment should apply in terms of the private open space provided.
He also cited the Court's decision in Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151 which references now s 4.15(3A)(b) of the EPA Act. This section requires that, if a DCP contains provisions which set standards with respect to an aspect of the development, and the application does not comply with those standards, the DCP is to be flexibly applied and allow reasonable alternative solutions that achieve the objects of the standard. In this regard, the alternative solution offered by the applicant of providing a usable alternative additional area of private open space with good solar access achieved the objectives of the DCP solar access provisions, noting the limited likely 'recreational' use, and therefore required size, of any area of private open space in mid-winter.
Ms Pearman submitted that, if a number of dwellings were rotated, they would receive good solar access. However, Mr Barwick argued that they would then overshadow adjoining dwellings given that the design had a number of dwellings in pairs. By contrast, there was no contention raised in terms of overshadowing of neighbours in the application.
Ms Pearman also submitted that it was a case of too high a yield but Mr Barwick also disputed this given that all development standards were complied with, notwithstanding that the site was constrained by drainage easements limiting the area that could be developed and dictating the location of the perimeter road which narrowed the site. Further, the applicant had initially prepared a design which had 69% solar access compliance however the Council had raised a concern with long rows of dwellings and poor urban design outcomes. The design was amended accordingly to that which was now before the Court.
Overview of urban design concerns
Ms Pearman took the Court to the requirements for multi-dwelling housing contained in Part D of the DCP at D2.2.3, including the following objectives: "1. Encourage high quality residential developments which feature a high standard of urban design and provide a high level of amenity for residents. 2. Ensure that development sites have sufficient site area to accommodate appropriate setbacks and open space areas, including areas for deep soil planting and natural site drainage."
She argued these objectives were not met in the design of the estate having regard in particular to controls 5, 6, 7 and 9 as follows which deal with image and legibility and require that the proposed development should: "… 5. blend in with its surroundings and/or be in keeping with the character of the area. 6. be designed to be compatible with the streetscape and be attractive when viewed within the site. 7. ensure that all units are designed to face and address both external public roads and internal private access roads/driveways. … 9. avoid repeating designs used in other developments, particularly those located in close proximity to the proposal. It is, however, recognised that there may be instances in a planned development where repetition of a design element is used to create a theme development. These proposals will be considered on the merit of the design. Forms of differentiation and interest are encouraged in all dwellings."
The areas in which the Council considered these DCP controls are not met were contained within seven specific issues, which I will now turn to.
Fencing to Holdsworth Drive/Main Street
There are 10 proposed 'dual fronted' dwellings which have their rear yards adjoining Holdsworth Drive (or more accurately the extension of Holdsworth Drive, being Main Street) and therefore have rear fencing to this road.
Mr Stanish considered that the height of the rear fences of all of these properties should be reduced from the proposed 1.8m to a maximum of 1.2m. The dwellings should also be designed with front doors facing Holdsworth Drive to give the dwellings a street presence to this road
The applicant opposed these design changes, arguing that the proposed fence height and dwelling orientation was required for privacy and amenity of the 10 dwellings which adjoin the public footpath along Holdsworth Drive and commercial development opposite. Lowering the fence height would not enable this privacy as the properties are lower than the adjoining section of Holdsworth Drive, with the fencing also assisting with noise attenuation.
Mr Stanish argued however, that the properties would also have 1.8m high front fences to the PPOS located at the front of these dwellings so they would be surrounded by high fencing. This was also the highest part of the site and the fences would therefore be highly prominent. In the established residential areas along Holdsworth Drive to the west, fences were only 1.2m in high. Vegetation could be used for screening and to provide a buffer against road noise, if desired.
Mr Galasso submitted that the fences and dwellings will be opposite commercial development which exists on the other side of Holdsworth Drive/Main Street in the vicinity of the site as it entered the Mt Annan town centre. The treatment proposed as part of the development would provide a better design outcome than the development opposite and the dwellings were oriented to an internal estate road in order to have a better outlook, being to other new dwellings, rather than to this existing commercial activity.
During proceedings, the applicant offered to reduce the fencing to a maximum height of 1.6m which was considered acceptable to the Council. However, the requirement for any height reduction was not reflected in the subsequently filed agreed conditions of consent. If it was a determinative issue for the Court, the applicant agreed to further reduce the height to 1.2m.
Orientation to Annanvale Circuit
Mr Stanish considered that dwellings should front Annanvale Circuit rather than 'turn their backs' to it. He was not concerned about those which front Driveway 1 but with the balance located on the western side of Annanvale Circuit opposite the Woolworths' car park, store and service yard.
Mr Stanish accepted that there was little existing activation or anything appealing in this section of Annanvale Circuit. He argued however, that it was not about providing amenity to the proposed dwellings but about street activation, passive surveillance and improved legibility. This section of Annanvale Circuit would be poorly activated and not safe.
The development originally proposed 1.8m high side fencing to Annanvale Circuit, albeit Mr Stanish accepted that these were not long unrelieved sections of fencing unlike the unbroken Woolworths' western facade which fronts the street.
Mr Barwick agreed that there was no requirement for 1.8m high side fencing for the full frontage to Annanvale Circuit. The applicant accordingly agreed to reduce the fencing to 1.2m other than where required for screening or for privacy of private open space areas.
Further, the adjoining dwellings had openings to their eastern (side) elevations as well as articulation of their eastern facades, and quality landscaping would be provided in the side setback areas. There were no driveways to Annanvale Circuit to minimise impacting the availability of on-street parking given it adjoined the shopping centre, an outcome accepted by Mr Stanish.
Mr Galasso also disagreed that Annanvale Circuit would not be legible given there would be housing development on one side and commercial development on the other. Further, the applicant offered to embellish the street by landscaping the eastern verge which should have been lanscaped as part of the shopping centre development.
Mr Barwick also argued that one had to consider the site circumstances. Woolworths was an unattractive outlook from the site presenting as a tilt up blank wall to the street and to the site. Further, it is not the rear of the proposed dwellings 'turning their back' to the street but rather their side elevations and consideration must be given to providing amenity to the future residents of the dwellings. An outlook to new landscaped estate roads and other dwellings within the estate would afford much greater amenity than viewing the development opposite in Annanvale Circuit. The safety of Annanvale Circuit will still be improved relative to what happens now with the site vacant and no activation or amenity provided by the commercial centre.
Dwelling designs
It is proposed to provide 4 different types of dwellings (in terms of number of bedrooms and whether garages are provided) to be developed throughout the estate. The 4 different dwelling types have 18 different façade treatments which will be developed in clusters or pairs throughout the estate.
The Council contended that the estate had different designs 'salt-and-peppered' throughout whereas each street should have its own landscape character and treatment, or theme. Variety in character should be locally grouped to respond to site context and solar access rather than designs repeated throughout the estate. Mr Stanish argued that this would result in clustering that was legible with similar dwellings readily identifiable in the estate. He referenced the principles in AMCORD that it should be easy for visitors to locate a friend's house within an estate of similar designs by creating identifiable specific streets.
The applicant argued that, consistent with control 9 of s D2.2.3 of the DCP, the outcome was to avoid repeating designs used in other developments which did not apply in this instance in any event. Repetition of a design element occurred in clusters but the clusters varied to create differentiation and interest through the estate. Mr Barwick also argued that the landscape and elevational treatments were unifying and would result in the estate being recognisable as a distinct community. As a community titled estate, landscaping would be maintained in this manner.
Mr Galasso also indicated that the applicant had difficulty in understanding the Council's concerns. Variety was being provided but this was criticised based on what appeared to be subjective assessment of desirable outcomes.
Aligned to this issue, the experts also disagreed on the adequacy of the variety and durability of colour schemes proposed for walls and window frames, the adequacy of some of the finishes and eaves, and the requirement for durable and graffiti resistant materials to be used.
If the Court required it, Mr Galasso indicated that the applicant would accept consent conditions dictating which designs should be located along which roads, and to amend colours or finishes if there was a sound urban design basis to do so.
Setback of the Driveway 1 dwellings
Mr Stanish was concerned at the setback of the two dwellings located at the intersection of Road 1 and Driveway 1 (Dwellings 2 and 15). He considered their setbacks should be increased to align with the lot boundary of the adjoining commercial centre. This would allow for continuation of the Annanvale Circuit reserve and public space into the new estate rather than narrowing the road reserve and reducing its useability, particularly given the proposed relocation of a sub-station to, and the proposed truck parking bay in, this verge.
Mr Galasso submitted that the new road (Road 1) narrowed at Road 2 before reaching these dwellings and Mr Barwick argued there would still be the ability for landscaping of the area even with the truck parking bay and sub-station. The western side wall of the dwellings closely aligned with the 3m high concrete panel enclosure to the Woolworths' service area, and the dwelling setbacks met DCP requirements. The change in setbacks proposed also signalled the transition from a commercial to a residential environment on the eastern side of what is, in effect, an extension of Annanvale Circuit, whilst the new street planting alignment will continue into Road 1.
Further, even on the proposed reduced setback relative to the shopping centre lot, the proposed two dwellings will embellish the location relative to what exists adjacent on the shopping centre lot.
Pocket parks
Two pocket parks are proposed by the applicant as community open space within the estate totaling some 240m² each and adjoining Road 3.
The Council considered the location and size of the parks to be inappropriate. Mr Stanish argued they were not in highly useful configurations being in leftover spaces determined by the road and dwelling layout. They should be re-designed, consolidated and centrally located on a primary street.
Mr Barwick argued that there is no requirement for any pocket parks or community open space but the applicant was providing them as an added amenity for future residents. The parks would be landscaped with barbecues and seating and were located on a low trafficked road to improve their amenity and safe use. The applicant had undertaken similar developments elsewhere where such spaces were well used by residents. They were also proposed in two rather than one location to provide the greatest accessibility to the most number of future residents of the estate.
Sub-station locations
Two sub-stations are proposed in the estate. The Council raised a concern that these sub-stations should be relocated from their 'visually prominent' locations within public land: one being visible from Holdsworth Drive and Road 1 and the other from Annanvale Circuit. Instead they should be placed within the development behind the building line of dwellings.
Specifically, Mr Stanish considered it good urban design to locate sub-stations where they can be screened from the public domain. In the locations proposed they would directly adjoin roads and therefore be prominent. The first sub-station currently exists at what would be the rear of proposed Dwelling 2. It should remain in this location where it is hidden from view from Annanvale Circuit instead of being relocated to a more prominent location in the verge of Road 1 where it will be seen.
He also argued that Woolworths could redevelop in the future and the sub-station would be immediately adjoining their site at the entry to the estate. If the proposed truck bay is provided, it would adjoin the sub-station, reducing the ability for it to be screened by landscaping.
The second sub-station is proposed opposite proposed Dwelling 140 in Road 1 adjoining the drainage easement. Mr Stanish argued that this substation should be located behind the building line within or adjacent to Dwelling 140.
The applicant argued that the sub-stations need to be able to be serviced, and therefore easily accessed by, the energy authorities. The existing sub-station has to be relocated to be free of inundation from floodwaters, a requirement of Endeavour Energy. The proposed relocation is minor being 4m to the west.
Mr Barwick also argued that the proposed street planting along Annanvale Circuit will partly screen this sub-station from view and the structure would be no less attractive than the adjoining wall of the Woolworths' service area. He also disagreed that Woolworths would be redeveloped in the future given its relatively recent construction.
Further, the proposed second sub-station is internal to the estate and will be screened from Holdsworth Drive by landscaping. It will not be highly visible.
Pedestrian link to Kokoda Circuit and increased access to the drainage easement
There is currently no formal existing right of way for public pedestrian access across the site from the west. The applicant was prepared to offer this, noting informal access appears to currently occur. This would enable residents from areas to the west of the site to more readily access the town centre commercial areas.
In this regard, the applicant offered to construct a footpath from a paved drainage easement which connects Kokoda Circuit to the edge of the site, through to the proposed perimeter estate road (Road 1). However, the urban designers and engineers disagreed on the location and design of this path.
The Council did not oppose a path being provided but argued for a location and design which was accessible and direct.
Mr Barwick argued that the pedestrian path in the location proposed by the applicant would provide a link across the drainage easement but avoid the constructed channel area. Managing stormwater flows through the site limits the range of choices where a path could be safely and practically located. What is proposed is legible but meanders to follow the contours, and it could be designed to be accessible.
The applicant subsequently agreed to a condition of consent requiring the design to be compliant with the Australian Standard for access and mobility, AS1428.1.
Mr Stanish also sought additional public access to the landscaped drainage easement. Mr Barwick argued that providing more direct public access to this easement assumes it is an area of public open space as opposed to performing a specific function from which the public should generally be excluded. It was therefore appropriate to limit public access to enable it to function for drainage. However, the applicant had agreed to additional landscaping with the easement adjoining Road 1 to provide increased amenity to this road and to the estate.
Footpaths in Road 2
Road 2 is a central road in the estate traversing east to west from the perimeter road (Road 1), crossing Road 3 and connecting to Annanvale Circuit. East of Road 3, it has a proposed width between kerbs of 10.44m which includes a central planted median and footpaths on both sides. West of Road 3 the kerb width reduces to 6.6m and there is only a footpath on the northern side.
The Council sought widening of the western section of the road to enable a uniform width and footpaths on both sides for the full length with Mr Stanish arguing that Road 2 provides the primary walking route to the shopping centre for a large portion of the development. Residents would have to cross Road 2 to access the footpath on the northern side whereas the walking route along Road 2 should be direct and legible for its entirety.
Ms Pearman also submitted that this was another example of roads being too narrow and sub-optimal in order to maximise dwelling yield.
Mr Barwick considered there would be no substantive benefit in providing a wider road for an additional footpath for this small section of Road 2. This is a community title development with a private road network and Road 2 will have low traffic volumes and be low speed, and will therefore be a safe pedestrian environment. Residents will have access to a footpath on one side. There are only 4 dwellings which do not have access directly to a footpath and would have to cross the road. Further, there is excellent permeability proposed throughout the estate. Finally, residents of dwellings elsewhere in the western part of the estate are likely to walk to the main part of the shopping centre via Road 1, rather than using Road 2 which only leads to the blank tilt up side wall of Woolworths fronting Annanvale Circuit.
Mr Galasso submitted that many private estates do not provide footpaths on both sides of local streets and it was not a case of reducing yield in order to provide footpaths on both sides of the road. This could be accommodated within the currently proposed width but would result in reducing the landscaping of the southern verge and therefore the amenity of the road. However, the footpath could be provided if the Court considered it necessary.

Findings

The application before the Court proposes 139 x 2 storey dwellings in a multi-dwelling housing estate comprising a community titled subdivision on land zoned B2 adjoining a shopping centre. The proposed use is specifically permissible by an LEP provision and is therefore a form of development anticipated for the site.
A previous proposal for the site which was refused by the Court in 2016 (Mount Annan 88) proposed almost double the now proposed density, with 246 x 3 storey dwellings which breached the height. The Court's decision in that matter was that the height breach was not justified and a number of design issues needed to be resolved.
What is now proposed is a height compliant development which complies with the requirements of the LEP and all core development standards in the Council's DCP other than in terms of solar access to principal private open space areas. This was confirmed by the Council's expert planner.
I will deal with the solar access issue shortly, as this issue was considered by the Council to be a sufficient basis alone to refuse the application.
A number of other design concerns were raised by the Council's urban designer. However, in my view, the majority of these concerns are aimed at achieving an optimal urban design outcome, rather than being required by Council planning controls. They are also not outcomes necessarily agreed with or sought by the planning experts and there was evidence that achieving one desired outcome could result in another undesirable outcome.
For example, orientation of dwellings to Annanvale Circuit to maximise passive surveillance of that street would result in decreased amenity by way of outlook for the future residents of these dwellings.
For these reasons, and the reasons which I will outline shortly, they are not concerns that warrant refusal.
Two key engineering issues were however, raised that may have warranted refusal: the widths of the roads and the design requirements for Driveway 1, being the proposed access to the 14 dwellings on the eastern side of Annanvale Circuit. Given the safety issues raised with these two design concerns, they are potential matters which, along with solar access, I consider are the key issues to be determined in consideration of the application. Accordingly, I will deal with these issues prior to commenting on the other issues raised.
However, my findings on these determinative issues, including how they are addressed by the applicant and in agreed conditions of consent, are that these issues neither individually nor collectively warrant refusal of the application. Accordingly, the application, as amended with the leave of the Court during proceedings, is approved subject to the agreed conditions of consent.
Dealing with solar access first.
The degree of non-compliance with the DCP control for solar access to private open space was, reasonably, of key concern to the Council given that only some 50% of the proposed dwellings achieve the 3 hours of solar access required to their principal private open space areas, or PPOS, in mid-winter. I agree that this outcome could be a basis for refusal of the application considering the extent of the numeric non-compliance in isolation. However, in this instance, I do not consider that refusal for this reason alone is warranted given the circumstances.
Section 4.15(3A)(b) of the EPA Act requires that the DCP provisions are to be flexibly applied and allow reasonable alternative solutions that achieve the objectives of the standard.
In this regard, the DCP objectives do not reference solar access to PPOS but only to private open space. Recognising both the extent of non-compliance to the DCP control, and the concern of the Council that future residents have adequate amenity for use of their private open space, the applicant proposed that each dwelling where the PPOS did not meet the DCP solar access requirement have an additional useable area of private open space provided by way of front yards where good solar access is achieved, being more than 3 hours in mid-winter.
By providing this additional area, some 90% of dwellings have useable private open space which will receive at least 3 hours of solar access in mid-winter as well as a PPOS area which will receive good solar access at other times of the year. An agreed condition of consent requires the proposed changes to these front areas to be undertaken to provide increased privacy and useability for residents.
I consider the DCP objectives for solar access are met by these alternative arrangements. In coming to that conclusion, I accept that there is a distinction between PPOS and private open space. However, whilst not knowing the circumstances in Landco, I do note the then Senior Commissioner Martin raised concerns with the alternative private open space proposed to the non-compliant PPOS including awkwardly configured areas with insufficient amenity and removed from living areas, and which did not offer a useable area for 'intensive outdoor living' in mid-winter. This is not the instance in this case.
Rather, I accept that the areas of alternate private open space which receive good solar access will provide sufficient amenity to enable their use, if desired, in mid-winter for 'intensive outdoor living'. This is not the same as a recreational use which might occur in the PPOS at other times of the year.
Further, a high level of residential amenity will be provided to the proposed dwellings with good and compliant solar access to all living areas and with opportunities for a range of outdoor use and relaxation within each property, with the proposed quantum of private open space exceeding the minimum DCP requirements for each dwelling. There will therefore be solar access to at least one useable area of private open space for the vast majority of dwellings. The dwellings have also been designed to minimise overshadowing of adjacent properties (including their private outdoor areas).
This design outcome is notwithstanding the constraints of the site. These include the site's narrow northerly orientation and configuration, extensive drainage easement and flooding characteristics, access restrictions, and the nature and use of adjoining perimeter roads and development, with that development ranging from single residential housing to the west to town centre commercial development to the south and east.
The proposed development will also contain extensive landscaping, including deep soil planting of larger trees, which extends beyond the site into the Annanvale Road reserve in order to screen the blank side façade of Woolworths. Two areas of community open space, comprising pocket parks, are also provided which will have good solar access, barbeque and seating facilities and landscape features. These parks are for use only by estate residents and provide additional open space, despite no DCP or other Council requirement for such parks.
Whilst it would be possible to provide only one area of private open space, being the PPOS, and redesign the dwellings, or reduce the number of them, to increase solar access to this PPOS, I accept that this could have consequences for solar accessibility for other parts of the dwellings, or adjoining dwellings, and I note an alternative design achieving greater solar access to PPOS was not supported by the Council because of the resultant built form outcome.
I also consider it a valid argument that it is difficult to accept that a reduction in density (or yield) should be required in order to meet this one DCP requirement given the development otherwise complies with core DCP controls and development standards, including exceeding both the required amount of PPOS and resident and visitor car parking, which are common bases for arguing for reduced dwellings. There is no density control, the development complies with the only core LEP standard of height, and there were no other amenity issues for future residents or neighbours that were raised, noting my later comments in terms of the remaining urban design issues.
I also note the applicant's advice that it would not be possible to achieve solar access compliance to all rear yards, even with reduced yields, and still maintain pairing or clustering of dwellings, would be a design driven by 'sun chasing', and involve a longer perimeter road. Further, that the ADG requirement for 70% compliance is for a very different dwelling product where this is required to only 4m² of private open space (typically a balcony).
Whilst the Council argued that this was a 'Greenfields' site, and as such there was scope to design a development of high amenity meeting all DCP controls, I consider the site is better described as a large infill site in a B2 zone. As I have indicated, it is situated between established low density residential areas and a town centre and has constraints, including its configuration, adjoining development, and flooding and access limitations, but where a medium density form of development is specifically supported by the LEP.
In this context, and for the reasons I have outlined, on balance, I do not consider the non-compliance with the DCP standard for mid-winter solar access to PPOS a sufficient basis to warrant refusal of the application. I find the proposed solar access to the dwellings and their areas of private open space to be acceptable in the circumstances as the objectives of the DCP are otherwise met.
I turn now to the two engineering road design issues associated with the subdivision and development of the estate.
I firstly consider that it would be an unreasonable design impost to provide a turning circle for trucks at the end of Driveway 1 in order to enable a relatively small number of dwellings in an enclave to be individually accessed by the occasional removalist or delivery truck. This impost is in terms of the land required and the impact on the amenity of Driveway 1.
To address the Council's concerns, the applicant has proposed a truck parking bay off Road 1 adjoining Driveway 1 to service the dwellings. An agreed condition of consent requires the provision of this bay. I agree this is a reasonable, albeit not optimal, outcome.
The proposed truck parking bay can readily service at least 4 of the 14 Driveway 1 dwellings, being dwellings in the immediate vicinity. Deliveries to or from trucks in the bay and the remaining dwellings will required goods to be carried or carted to the remaining 10 dwellings, the furthest some 60m from the bay. I do not consider this to be an excessive distance nor that it will result in an acceptable risk to the residents of the dwellings or the users of Driveway 1, Road 1, or the truck parking bay.
Firstly, Driveway 1 is a short 'no through road' which will generally only ever be accessed by it residents or their visitors. Secondly, Driveway 1 will be sign-posted at entry with 'Resident Only' and '20km/hr' signage. It will therefore be a low speed, low trafficked environment, with truck access precluded and managed by the community association through bylaws and a Plan of Management. Even if trucks did 'illegally' enter Driveway 1 to enable more direct access to 1 of the 10 dwellings, this would occur infrequently in a 'no through road' environment with low traffic speeds.
The DCP access requirements are that there be adequate provision for off-street parking of service vehicles and adequate facilities provided for the loading and unloading of goods. The proposed truck parking bay would be adequate and would not be a dissimilar use to adjacent uses given the adjoining Woolworths' service yard and accessway.
It was also agreed that the bay could provide an improved arrangement for waste collection for Driveway 1 dwellings, albeit the Council had not raised a contention in terms of waste collection for these dwellings.
I am therefore satisfied that, although what is proposed may be sub-optimal, the risks to people, whether residents or occupants of the trucks, are not so significant as to require an engineered solution which would result in the extension of Driveway 1 and could in fact encourage trucks to enter a small enclave of dwellings where alternative, albeit less convenient, loading and unloading arrangements are possible and can be safely managed.
I now turn to the Council's concerns with the estate road widths and design more generally, and agree that the roads need to be safe and functional.
However, only three roads are proposed (in addition to Driveway 1). These roads will be private roads servicing only the 139 dwellings within the estate but will also need to be accessed by garbage trucks, emergency and service vehicles, delivery trucks, and the like.
I agree with the applicant that the three roads do not need to be designed to accommodate bad behaviour but should assume drivers obey the law and the management requirements of the estate. It was agreed that the road widths would only be 'tight' if people did not obey the law, the sign-posting or the estate's management which will preclude verge and on-street parking (outside designated visitor parking bays), and limit speeds to 20km/hr.
The development provides more resident and visitor parking than the DCP requires and the DCP does not preclude resident tandem parking for multi-dwelling housing. The Council accepted the amount and distribution of visitor parking which is spread across all three proposed roads. Based on the evidence, and with the agreed conditions of consent, I do not share the Council's concerns that the estate will suffer from inadequate availability of parking leading to unauthorised verge or on-street parking such that the width of roads will be inadequate.
The conditions require Council approval to an estate 'Sign Posting and Line Marking Plan'. This plan is to detail the signage proposed to: manage vehicle speeds (noting the applicant's advice that all estate roads will be sign-posted at 20km/hr); preclude verge and on-street parking (other than in designated visitor parking spaces); and enable 'way-finding' for visitors. It is also to detail 'resident only' signage.
A further condition requires a Plan of Management to the satisfaction of the Council which details, in particular, how on-street parking will be monitored, prevented or managed and how speeds within the estate will be monitored and managed. Other than the designated visitor parking spaces, 'No Parking' signs are to be erected on all of the estate roads.
I also considered the Council's specific concern that the design of Road 1 encourages speeding.
To assist with reducing speed, seven speed humps are proposed to be installed in the estate, which the Council opposed. Five speed humps are proposed in Road 1 and two in Road 3 adjoining the intersection with Road 2. Precluding the proposed speed humps is not, in my view, supported by the evidence. Whilst AMCORD discourages the use of traffic management devices in new areas, instead suggesting roads be designed to avoid the need for them in the future, here the speed humps will be installed upfront and away from property access points and designated areas for visitor car parking. This avoids any conflicts in the future should they be required but are not provided. In any event, AMCORD as a design guide has been superseded by more localised and recent design codes, including the DCP.
Further, a specific control (16) within the access design provisions for multi-dwelling housing in the DCP states that traffic calming measures should be provided to ensure a safer vehicle and pedestrian environment.
In raising concerns with the length and design of Road 1, the Council referenced Austroads, where concern is raised that roads which are too long and too wide encourage speeding however, the Council's concern was that Road 1 was too narrow, not too wide.
With adjacent indented visitor parking distributed along all three roads and provided in excess of what is required, speed humps in strategic locations, 'No Parking' on streets and on verges, and a signposted maximum speed of 20km/hr managed in a private estate, I do not consider the Council's concerns with the design of Road 1 or the widths of any of the three proposed estate roads to be valid reasons for refusal.
This is accepting that traffic may need to slow and that it will be 'tight' for some vehicles to pass, particularly trucks, if residents and visitors ignore all of the design devices provided by the applicant, and future management requirements, and park illegally.
In this regard, I note that the Council's expert accepted that the road widths would not be of concern if there was no illegal on-street or verge parking. Given the mechanisms proposed to avoid this, and the ability to control it within a managed estate, I also do not consider there is sufficient justification for widening of the roads which in any event, would only likely encourage on-street parking which both the Council and the applicant are seeking to avoid.
Given my findings on the adequacy of the proposed estate road designs, I turn now to the other urban design issues raised by the Council's expert.
I accept that Mr Stanish is seeking optimal urban design outcomes for the estate. However, as I have indicated, that is not the basis for approval and go beyond the planning controls which apply to assessment of this application.
In this regard, whilst I understand the argument to reduce the fencing height to Holdsworth Drive, and to have the dwellings adjacent to this road better address it, I also appreciate the site constraints and context in which the applicant opposes this reduction. Firstly, the lots are below the level of this road, which in fact is Main Street where it is adjoined by the proposed dwellings. This will reduce the privacy of the dwellings and their rear yards with potential overlooking from users of the footpath, and increase the impacts of noise. Secondly, unlike the residential dwellings with lower fences to the west which are directly opposite other residential dwellings with similar fencing, in the vicinity of the proposed dwellings, development on the opposite side in Main Street comprises commercial uses and their open stand car parks.
Control 6 of the access design provisions for multi-dwelling housing in the DCP requires, for image and legibility, that multi-dwelling development should be designed to be compatible with the streetscape and be attractive when viewed from within the site. The orientation of dwellings to proposed Road 1 rather than Holdsworth Drive/Main Street achieves this objective, particularly given there is no consistent, desirable or compatible streetscape opposite in this section of Main Street. The proposed fencing and landscaped rear yards will therefore not be incompatible with this existing streetscape whereas the orientation of dwellings to the internal estate road will be attractive when viewed from within the site.
Similarly, the orientation of dwellings in Annanvale Circuit, in my view, responds to this DCP control.
Whilst I agree that it is preferential for dwellings to front existing roads for street activation and passive surveillance, in the case of Annanvale Circuit, I accept that there would be poor amenity for any dwellings which front this road given they would have an outlook to the unrelieved side elevation of the Woolworths' store, hard stand car park, and walled service area with a total absence of landscaping of that development. This is notwithstanding evidence before the Court that such landscaping should have been provided by the centre's developers to Annanvale Circuit. The applicant has offered to now landscape this verge to improve the street's amenity but this would not significantly improve the outlook to what is essentially the side wall, car park and service area of a shopping centre.
Given the Council did not require Woolworths to provide any activation to Annanvale Circuit, nor to have to have regard to potential and likely future residential development of the appeal site even though the LEP specifically supports such a use, I do not believe it is reasonable for the applicant to have to reduce the amenity of new dwellings opposite by making them front Woolworths. I accept there would be greater amenity for the proposed dwellings to instead front the internal estate roads noting also that the applicant has agreed to provide landscaping in side setback areas and an appropriate fencing treatment to Annanvale Circuit.
I also consider that there would be limited pedestrian activity and amenity in the section of Annanvale Circuit which would justify providing greater activation.
I therefore accept the design treatment proposed for the dwellings which adjoin the western side of Annanvale Circuit. This treatment will still provide some opportunity for passive surveillance and activation and an improved amenity for the street, relative to what exists today, including with the provision of the landscaping adjoining Woolworths, as the applicant proposes.
In terms of clustering, I am satisfied with the design theme of the estate noting no amenity issues with the design of the dwellings themselves were raised and where no Council controls impose requirements in terms of which dwelling designs should go where.
The development has been designed in clusters distinguishable by distinct roof forms, colour schemes and elevational treatments to enable specific architectural and streetscape outcomes. The Council raised no issues in terms of non-compliances with development standards such as setbacks, height or privacy, nor with the architectural quality or internal layout of the designs proposed.
There are only 139 dwellings fronting three estate roads and Driveway 1 and I do not consider that way-finding for residents or visitors, particularly visitations by friends, will be confusing. There is also no basis to impose controls on materials or finishes beyond what is proposed in the agreed conditions of consent, noting this will remain a community titled estate managed by a community association.
In terms of the setback of the two Driveway 1 dwellings to Annanvale Circuit, I do not accept the argument that they should align to the shopping centre lot boundary. The evidence was that their setbacks comply with the DCP. I also do not accept that Woolworths will likely develop in the foreseeable future and I agree that it is important to provide a transition from that development to the new estate and residential environment as proposed. I do accept increasing the setbacks would provide opportunity for increased verge landscaping including of the truck parking bay and the sub-station. However, I also note that the applicant is offering to landscape the adjacent verge in front of Woolworths which will provide a greater improvement to the streetscape in the locality than would be achieved by further setting back the two new dwellings.
In terms of the two pocket parks, these are an amenity offered by the applicant for residents of the estate and are not required by any specific Council control. Whilst they may be proposed in locations 'left over' following the design of roads and dwellings, this does not diminish the fact that they will offer embellished community open space in two locations on a low trafficked street and be readily accessible within the estate. Given they do not need to be provided at all, and will be maintained within a private estate at no cost to the Council, I find no basis to relocate or redesign the parks as sought by the Council.
In terms of the two sub-stations, I accept that they should ideally be screened and to an extent they will be, albeit not to the extent desired by the Council. However, they must also be outside flood prone land and accessible by the energy authorities. For this reason, they are located adjoining roads which are however, estate roads. In summary, there was insufficient evidence to support the need for their relocation given the operational locational requirements.
Finally, I deal with pedestrian access through the estate which I accept should be provided in the location generally proposed by the applicant. There is no requirement for public access to be provided through the estate to link the existing pedestrian path from Kokoda Circuit to the shopping centre. However, the applicant has offered to provide this but in a manner which is safe for the public whilst not compromising the drainage function of the easement.
I consider it unreasonable for the Council to require an alternative access arrangement for this path. I do agree with the Council that, if provided, the path should be designed to maximise accessibility by all members of the public. An agreed condition requires the path to meet the requirements of AS1428.1 (Design for access and mobility) in terms of its gradients, accordingly.
Ultimately, any link to Kokoda Circuit for use by the public needs to be safe and not compromise the drainage function of the easement. The same is the case for public access to the easement. In this regard, I consider the proposed amended landscaping agreed to by the applicant to be a reasonable treatment of the drainage easement, and no other public access to the easement should be encouraged.
I also consider that the estate design provides adequate permeability for residents in a low speed and low trafficked environment, as well as for public access through the site noting, as I have, that there is no such requirement for public access to be provided at all.
In this regard, I do not consider it necessary, from a traffic or pedestrian safety point of view, to widen the western section of Road 2 simply to provide direct access to a footpath from four dwellings given the low traffic speed and volume environment in this location, the alternative footpath locations available on other roads in the estate (and opposite) to access the town centre, and the impact it would have on landscaping in the streetscape.
The evidence of the applicant was that it is not the case that modifying Road 2 to provide a footpath on the southern side would result in a reduction in the number of dwellings, as it could be accommodated without this occurring. However, it would decrease landscaping provided in the verge and therefore in the streetscape, which I agree would be a poor outcome and not justified given the nature of the street and the small number of dwellings affected. I also agree with Mr Galasso, that many small estates do not have direct access to footpaths on both sides of internal private streets. Accordingly, the requirement to widen the western section of Road 2 is not supported.
I will now deal briefly with the issues raised by objectors which have not otherwise been considered.
Firstly, whilst the development may be out of character with residential development in the vicinity, this is because that development, in which the objectors' live, comprises single residential dwellings in a suburban context. It does not comprise multi-dwelling housing in a B2 zone which would be expected to, and will have, a different and denser character.
The development is nevertheless still height compliant and a maximum of 2 storeys, and will be well separated from adjoining single residential housing by an extensive landscaped drainage easement. It meets the objectives for development in the B2 zone, is a specifically permitted use contemplated for the site, is substantially reduced in height and density from previous proposals for the site, and is an appropriate transition between commercial and lower density residential development with no direct off-site amenity impacts to immediately adjoining neighbours.
Secondly, access is not supported to Narrellan Road given the access restrictions that apply to a major road and the extent of the drainage easement and reserve which restrict the site's frontage to this road.
No safety or design issues were raised with the proposed access arrangements from the existing perimeter roads by the Council and I note these roads are otherwise adjoined by commercial development comprising the Mt Annan town centre.
In terms of access to water or services, there was no evidence that provision of such services were not available to the site or were inadequate for the form of development proposed, noting the site could otherwise be developed for a range of commercial uses given the B2 zoning.
I therefore do not consider that the issues raised by objectors, to the extent that they are relevant matters for consideration, have not been addressed by the amended application or the proposed conditions of consent, or are such that they warrant refusal of the application.
Finally, I then deal with whether or not costs apply in granting leave to amend the application.
Under s 8.15(3) of the EPA Act, if leave is granted to amend the application, the Court must make an order for the payment by the applicant of the costs thrown away by the Council as a result of the amendments unless those amendments are minor.
I accept that a number of amendments were made to the plans comprising the application to further respond to the Council's contentions and the Council's experts, and that it took time for these experts to review these amendments. However that time and cost is not the relevant factor to consider under s 8.15(3).
The amendments were only to the landscape and engineering plans, not to the architectural plans, and were largely a consequence of recommendations arising from joint conferral, to correct inadequate or missing information, or to demonstrate that the requirements of the Council could be met.
In terms of the amended landscape plans, these include a new plan showing the modifications to the front yards which will provide mid-winter solar access in accordance with the sketch attached to the planners' Joint Report (Exhibit 3), by detailing fencing, access, landscaping and privacy screening.
Changes to other landscape plans arose from the expert Joint Report of the landscape architects (Exhibit 7) such as to tree species and planting locations, including providing additional planting of the drainage easement and through the estate. These changes do not constitute anything other than minor and Council supported changes to improve the amenity of the estate.
Overall, the amendments made to the landscape plans do not change the substance of the application or impact the design of the development, other than in a minor way.
The changes to the engineering drawings, between the Revision 8 plans which were granted leave of the Court with costs applied in May 2019 and the Revision 10 plans which I granted leave to rely upon in the proceedings, are detailed design or notation changes, such as to clarify levels or scope of works, widen drainage easements or verge widths, adjust levels to address flood requirements, and the like. A number of the changes arose from recommendations arising from the joint conferral of experts. Others could have been required as conditions of consent.
The fact remains that the application itself was not amended to any significant degree in terms of the scale, density, layout, dwelling design, or key features of the proposed development. The additional details provided and changes undertaken are not dissimilar to those that are often required following the granting of consent by consent conditions, which require such modifications and that more detailed engineering and landscaping drawings be provided.
In summary, these changes are of a minor nature in the context of the plans and details required for an application which involves both subdivision and development of land for over 130 dwellings. They represent minor changes to the application accordingly. For these reasons, costs do not apply and no cost order is imposed.

Sunland No. 35 Pty Ltd v Camden Council

At a glance

Court

Decision date

Source

Judgment (8 paragraphs)

Parties

Cases Cited (3)