TWA Developments Pty Ltd v Shoalhaven City Council

The site and the locality

1. The site is known as 52 Parker Crescent, Berry and is legally described as Lot 710 DP 1247531. It has a street frontage of 38.7m, a depth of 54.645m and an area of approximately 2062m2. The site forms part of the Huntingdale Park Estate, and was created as part of the release of Stage 7a of the subdivision approval in 2003, and is currently vacant with grass. A number of videos of the site and surrounds formed part of the evidence before the Court, and all of the videos (including the video not played during the hearing) were viewed by me in consideration of the appeal.
2. The site is rectangular and occupies one of the highest points in the estate, and has a fall from north-west to south-east of around 3m. Near the southern boundary of the site is a ridge and the land to the south is generally slopes around 7-8m away from the ridge.
3. The site has a number of restrictions as to user registered on the title, including restrictions in the following terms: "No dwelling shall be constructed on any burdened lot unless it is provided with a roof water collection tank of a minimum capacity 10,000 litres to be used for gardening, laundry and flushing of toilets to the requirements of Shoalhaven City Council." "No dwelling is to be designed in such a manner that it will detract from and not be compatible with the existing bulk and scale of the housing stock within the Berry township." "No building shall be constructed of metal deck cladding having an external surface area greater than 50% of the building." "No building shall be constructed unless it has a roof pitch equal to or greater than 15 degrees." "No building shall be constructed with a total floor area exceeding 35% of the site." "No front or side fence shall be constructed on any boundary, unless it is constructed of materials in character with the proposed dwelling." "Where the rear of any proposed structures are greater than 70m from the nearest hydrant, a new hydrant is required to be installed as per AS2419 - "Fire Hydrant Installations". Location of hydrant to be delineated by blue pavement markers in the centre of the road." "No building shall be constructed unless it has a side boundary setback of 5m and front street boundary setback of 12.5m."
4. The proposed development complies with each of these restrictions, with the floor area calculated in the same way as the calculation of gross floor area in the Shoalhaven Local Environmental Plan 2014 (SLEP).
5. The adjacent lots include vacant land and lots containing large residential dwellings in garden settings. In the immediate visual catchment of the site, the streetscape is characterised by a mix of vacant land, single storey and two storey residential dwellings. Within the estate, there are dual occupancies located at 14, 15, 16 and 19 Tigman Street, 13 and 18 Tressider Close, and 17 and 24 Parker Crescent and multi dwelling housing located on Hitchcocks Lane.
6. Beyond the residential subdivision around the site along Parker Crescent, there is bushland to the north and south, and rural land to the west.

The planning context

1. Section 4.15(1)(a) of the EPA Act requires that the Court, in exercising the functions of the consent authority, consider the provisions of any applicable environmental planning instrument, proposed instrument, development control plan, planning agreement, and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
2. As set out above, the site is currently zoned R1 General Residential pursuant to the SLEP, as is much of the Huntingdale Park Estate. Multi dwelling housing is a nominated permissible use in the R1 zone. The current zoning of the Huntingdale Park Estate is shown in Figure 1.
3. The objectives of development in the R1 zone are as follows: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To identify land suitable for future urban expansion.
4. Clause 4.3 of the SLEP establishes a 8.5m building height development standard in accordance with the Height of Buildings Map, with which the proposed development complies.

The draft planning instrument

1. As described above, the Council prepared a planning proposal for an amendment to the SLEP to rezone part of the Huntingdale Park Estate. Pursuant to s 3.33 of the EPA Act, the planning proposal explains the intended effect of the proposed instrument, which is the amendment to the SLEP, and the justification for making the proposed instrument. The planning proposal, numbered PP060, was submitted to the Department of Planning, Industry and Environment (the Department) on 24 March 2021. The introduction to the planning proposal describes the proposed changes in the following way: "This PP seeks to ensure planning controls align with the strategic planning intent for the large lot residential areas of the Estate and achieve the following objectives: • Facilitate a transition from suburban and medium density housing in the central parts of the Estate to lower density areas bordering the neighbouring farmlands, existing rural-residential development and native bushland; • Provide large lots on the north and western fringes of the Estate (along the elevated and prominent ridgelines) to mitigate visual impacts of development in this scenic location; • Reinforce the character of Berry through high quality subdivision and housing design to protect residential amenity; • Ensure planning controls for large lots reinforce character objectives, including encouraging suitable open space around buildings and larger landscaped areas; and • Provide suitable and efficient infrastructure to the Estate. The PP is necessary to update planning controls that apply to the large lot area of the Estate, as contemporary controls could compromise achievement of the aforementioned objectives and impact adversely on the desired future character and residential amenity in the area."
2. The area that is proposed to be rezoned from R1 General Residential to R5 Large Lot Residential is a portion of the south western end of the estate and is shown at Figure 2. The remainder of the land in Parker Crescent and surrounding streets will remain zoned R1 General Residential.
3. The proposed instrument will also impose a minimum subdivision lot size of 2000m2 across the area that is to be zoned R5. This is to correct a mapping anomaly where the area of 2000m2 minimum subdivision lot sizes do not align with the lots, such that some of the large lot areas have split minimum lot size requirements across both 2000m2 and 500m2.
4. A gateway determination was granted by a delegate of the Minister for Planning and Public Spaces on 16 April 2021, who determined that the amendment to the SLEP should proceed subject to a number of conditions, including a requirement for public exhibition and consultation. Further, the gateway determination authorised the Council as the local plan-making authority subject to three conditions, which have now been satisfied. The planning proposal has been publicly exhibited, and it was endorsed by the Council at its meeting on 14 July 2021. The evidence of Mr Clark, the strategic planning manager at the Council, is that the amendment to the SLEP is a "map only amendment" to which a streamlined process applies, and that it is not necessary for the proposal to go through Parliamentary Counsel's Office as no changes to the terms of the SLEP are required. His evidence is that, as the Council's delegate, he will prepare and sign the documents for the amended LEP maps and forward them to the Department of Planning, Industry and Environment, and that, in his experience, it will then take up to four weeks following receipt by the Department for the amendment to the LEP to be published on the NSW Legislation website.
5. However, on 15 July 2021, TWA's solicitor wrote to the Secretary of the Department requesting the Department to review the terms of its Gateway Determination. The letter requested that the Department revoke the subject Gateway Determination pursuant to sections 3.34(2)(a) and 3.34(7) of the EPA Act until determination of the current proceedings, or that the Department amend its determination to remove the Council as the local plan-making authority and, if the Department resolves to make an amending LEP, to include a savings provision for development applications lodged before the commencement of the amending LEP. By letter dated 19 July 2021, Mr Graham Towers, Manager, Southern Region, Local and Regional Planning of the Department of Planning confirmed the Department would give consideration to the imposition of a savings provisions to the Draft LEP.
6. The proposed amendment to the SLEP is a proposed instrument that has been notified and, pursuant to s 4.15(1)(a)(ii) is required to be considered in determining the development application for the proposed development.
7. The weight to be attributed to a proposed instrument depends upon its certainty and imminence. In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 ("Terrace Tower"), Spigelman CJ endorses the approach taken by the Court in that respect, and states at [5] - [7] that: "5 Mason P outlines the line of authority in the Land and Environment Court to the effect that the weight to be given to a draft environmental planning instrument will be greater after such an instrument has been gazetted on the basis of its "certainty and imminence". I agree with the proposition that the greater the certainty that a draft instrument will in fact be adopted, the greater the weight that may be given to that draft. 6 Notwithstanding "certainty and imminence", a consent authority may, of course, grant consent to a development which does not comply with the draft instrument. Different kinds of planning controls will be entitled to different levels of consideration and of weight in this respect. 7 Where a draft instrument seeks to preserve the character of a particular neighbourhood, that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective. The development proposed in this case, and the evidence of its significant implications for the area, may well be of a similar character insofar as the 1,000m² minimum gross floor space standard has the objective of protecting the existing retail hierarchy."

The development control plan

1. The Shoalhaven Development Control Plan 2014 (SDCP) applies to the site. It sets out a combination of objectives, mandatory controls, performance criteria and acceptable solutions. The introduction to the SDCP, at Section 7 of Chapter 1, describes these as follows: "Objectives: For each section or topic of relevance, objectives will clearly state what Council seeks to achieve once the controls or the performance criteria are met. Mandatory Controls: Are specific, prescriptive measures required for achieving the desired objectives. Performance Criteria: Identify how a development should perform so that the desired objectives can be achieved. Acceptable Solutions: Indicate how the development can achieve the desired performance criteria and objectives."
2. Section 11 then outlines how these relate to one another in the context of variations, and states as follows: "The acceptable solutions are provided as examples of what is considered acceptable for the respective performance criteria and objectives. Council can consider alternative solutions in certain circumstances provided the objectives and performance criteria are met. Justification in the form of a variation statement demonstrating how the objectives and relevant performance criteria will be achieved must be provided with the application."
3. The application and operation of the provisions of the SDCP have been considered by the Court on a number of occasions, including by Preston CJ in Platford v van Veenendaal and Shoalhaven City Council (2018) 229 LGERA 101; [2018] NSWLEC 27, in which his Honour made it clear that an acceptable solution is not the only way in which the performance criteria in the SDCP can be met. He stated as follows (at [39]-[40]): "39… The controls specify the Performance Criteria that must be met for ancillary structures. The Acceptable Solutions are ways in which those Performance Criteria can be met. In a sense, by meeting an Acceptable Solution, the ancillary structure is deemed to comply with the Performance Criteria. But the converse does not apply: not meeting the Acceptable Solution does not necessarily mean that the ancillary structure cannot comply with the Performance Criteria. 40 In this case, the Council Officer assessed that, although the ancillary structure of the boathouse arm, including the screen wall, did not meet the Acceptable Solution A22.1 (because the wall exceeded 3m in height), it nevertheless achieved the Performance Criteria, including P22.1. In this way, the ancillary structure could be described as being "compliant" with the controls for ancillary structures in s 5.3.8 of Shoalhaven DCP..." (emphasis added.)
4. Chapter G1 of the SDCP outlines controls for the preparation of site analysis plans. Section 4 includes the following objectives: "i. Consider the constraints and opportunities of the site for the proposed development. ii. Ensure compatibility between the site and the proposal. iii. Maximise the potential for energy efficiency and conservation in building design. iv. Minimise overshadowing impacts of a development on adjoining dwellings."
5. The controls, at section 5.1 of Chapter G1, set out the following performance criteria: "P1.1 The characteristics of the site and its surrounds have been adequately considered through preparation of a thorough site analysis plan. P1.2 The site analysis informs the site design and layout. P1.3 The site layout integrates with the surrounding environment through: • Adequate pedestrian, cycle and vehicle links to street and open space networks. • Buildings that face and address streets and the public domain. • Buildings, streetscape and landscape design that relates to the site topography and to the surrounding neighbourhood character. P1.4 The site layout enhances personal safety and minimises potential for crime and vandalism."
6. Section 5.1 then sets out details that are listed as "acceptable solutions" for a site analysis plan.
7. Chapter G13 of the SDCP concerns medium density development. Section 1 sets out the purpose of the chapter, which is to: "ensure that development is compatible with the bulk and scale of the existing and likely future residential development of adjacent lands to ensure a high standard of development throughout the Shoalhaven Local Government Area."
8. The relevant parts of chapter G13 are set out in my consideration below. It is agreed between the parties that the acceptable solutions with respect to landscaping (5.1.4) and setbacks (5.1.3) are met by the proposed development.

Resident objector evidence

1. A number of local residents made written submissions in response to the notification of the development application that was lodged with the Council, and in response to the notification of an amended application in March and April 2021. In addition, at the commencement of the hearing, resident objector evidence was given orally by 4 local residents and a representative of the Berry Forum. The issues raised in the written submissions and in the evidence given orally can be summarised as follows:

• Multi dwelling housing is out of character with the single level dwellings with landscaped gardens in the vicinity of the site, and is not in accordance with the character intended for the Huntingdale Park Estate.
• Inappropriate bulk and scale.
• Privacy and amenity impacts, including adverse overshadowing.
• Inadequate onsite parking.
• The proposed development will cause additional traffic that will increase traffic hazards in the area, including hazards to pedestrians as cars travel around the blind corner in Parker Crescent.
• Inadequate stormwater management, particularly if the rainwater tanks are full.
• Uncertainty around the location of a power padmount power substation if one is required, and its impact.

1. For the reasons that are set out below, none of the concerns of the residents are sufficient to warrant refusal of the development application. The proposed development complies with the controls and acceptable solutions in the SDCP, is appropriately designed and sited so as to be compatible in the streetscape, does not create any unacceptable amenity impact on adjoining development, and is not inconsistent with the objectives of the future zoning of the site.
2. Further, the stormwater system includes rainwater tanks that are enclosed and contain onsite detention of stormwater with a 150mm overflow outlet. The onsite detention system ensures that post development flows are less than or equal to post development flows (see Ex G). Council's development engineer has provided no objections to the proposed stormwater system (Ex 1 p 109).
3. Additionally, a letter from a Level 3 Electrical Service Provider (Ex J), who is authorised to design the electricity supply networks operated by Endeavour Energy, confirms that the turret located on the boundary between 52 and 56 Parker Crescent has adequate capacity for four dwellings on the site. As such, a padmount power station of the type identified by the objectors will not be required to be installed on the site.

Expert evidence

1. Expert opinion evidence on the town planning issues was given by Mr Jeff Mead, a town planner engaged by TWA, and Mr Darroch, a town planner engaged by the Council.
2. Mr Darroch considers that the site analysis plan is not adequate to properly assess the impact of the proposed development, and that the proposed development is out of character in the locality, does not make a positive contribution to the existing buildings and streetscape, and causes unacceptable view loss and overshadowing. He also opines that each dwelling should fit within the building envelope prescribed by the SDCP, and that the failure to do so means that the building is inconsistent with the streetscape. He opines that the driveway has an unacceptable visual impact as it does not avoid a gun-barrel effect down the side boundary.
3. Mr Mead instead opines that, in the absence of a desired future character statement in the SDCP, the desired future character can be understood through the controls. He considers that the proposed development is compatible with the desired future character as it is compliant with each of the controls in the SDCP concerning the maximum height, setbacks, building envelope, landscaping and floor space ratio (FSR), with a FSR of 0.28:1, which is only 56% of the maximum density permitted of 0.5:1. Mr Mead opines that, given this high degree of compliance, and the proposed site layout and architectural form, the proposed development is of acceptable bulk, appropriately designed and sited, and is not out of character with existing development in the estate and in Parker Crescent. Further, Mr Mead's evidence is that the proposed development does not cause unacceptable overshadowing, view loss or other impacts.

Compatibility with the character of the surrounding neighbourhood

1. The Council contends that the proposed development is not compatible with the character of the surrounding neighbourhood (Contentions 1(b) and 3(b), (c), (d), (f) and 4(b)), and that the site is not suitable for the proposed development (Contention 1(a)). The Council relies on the description in the SDCP of the purpose of Chapter G13, which is "to ensure that development is compatible with the bulk and scale of the existing and likely future residential development of adjacent lands to ensure a high standard of development".
2. The Council submits that in order to determine whether the proposed development is compatible with the character of the surrounding neighbourhood, the extent of the surrounding neighbourhood needs to be determined by reference to the words of the SDCP. In particular, the Council relies on what it describes as the "narrow inquiry" in the objectives and performance criteria in Sections 5.1.3 and 5.2.1 of Chapter G13 of the SDCP. The relevant provisions are as follows: "5.1.3 Building Envelope, Heights and Setbacks The specific objectives are to: i. Provide practical building envelopes for development to ensure that the height and scale of new development is not excessive, relates well to the local context/ streetscape and is compatible with the existing or desired future environmental character within the locality. … "5.2 Siting the Development 5.2.1 Local Character and Context The specific objectives are to: i. Ensure that development enhances and makes a positive contribution to the character of existing buildings and streetscapes. ii. Ensure that development is sensitive to the landscape, built form and environmental conditions of the locality, particularly where there is a distinctive character, view or heritage significance. … Performance Criteria Acceptable Solutions P7 The scale and appearance of new development is compatible with, and sympathetic to, existing and future desired: A7.1 The development must consider/address the following: • Development in the locality; and • The local character/context of the area and streetscape • Amenity and character of the locality; • How the proposal is sympathetic and compatible with the existing or future desired character, development, and amenity of the locality. Particularly where the development site or its surrounds has some heritage significance or distinctive character. • How the visual appearance and articulation of the development contributes to the existing streetscape and character of the local area."

1. The Council submits that the area around the site has a distinctive character, which is described in the planning proposal as being located "in the elevated areas and along the ridgelines of the Estate, making the area visually prominent" and comprising "large lot areas… intended to provide a transition between the suburban lots within the estate… and the surrounding rural and forested escarpment areas" (Ex 2 p 47). The Council submits that the scale of the proposed development is not compatible with the future desired development in the locality, which is for "low density development on large lots, encouraging provision of additional landscaped areas and greater separation between buildings" (Ex 2 p 47). The Council says that the distinctive character are the large lots containing single dwellings, with which the proposed development is not compatible.
2. This is supported by the evidence of Mr Darroch, who opines that the existing buildings and streetscape are characterised by single dwellings on large lots in a landscaped setting. Mr Darroch's evidence is that the locality with which the proposed development ought to be compatible with is the streetscape along Parker Crescent.

The proposed development is compatible with the desired future character

1. The mandatory matters for consideration under s 4.15(1) of the EPA Act do not include a standalone requirement for the Court, in exercising the functions of the consent authority, to consider whether a proposed development is compatible with the character of a particular area. Rather, the requirement in these proceedings to consider compatibility arises by virtue of the provisions of the SDCP. In considering those provisions, none of the matters raised by the Council concerning compatibility of the proposed development with the character of the surrounding neighbourhood warrant refusal of the development application. Further, I accept the evidence of Mr Mead that, in the absence of a desired future character statement, the applicable controls inform the desired future character of the locality. This is consistent with the stated purpose of Chapter G13 to "ensure that development is compatible with the bulk and scale of the existing and likely future residential development". That is, the applicable provisions of Chapter G13 achieve that stated purpose, and compliance with those provisions inherently results in development that is compatible with the bulk and scale of the existing and likely future residential development of adjacent lands. For the following reasons, the proposed development is compatible with the desired character of the surrounding neighbourhood.
2. Firstly, the proposed development has a built form that relates well to the local context and streetscape on the basis that it meets the requirements of the SDCP with respect to building envelope, height and setbacks. Mr Darroch's position that the acceptable solution for the building envelope applies to each of the proposed buildings is patently wrong, as it departs from the plain reading of the text. The words are as follows: "A3.1 Buildings are sited within a building envelope determined by the following method: planes are projected at 45 degrees from a height of 5m above ground level (existing) at the front, side and rear boundary"
3. The plural word "buildings" at the start of the above sentence, and the singular reference to each of the "front, side and rear boundary", plainly refers to the siting of one or more buildings within a single envelope measured from the lot boundaries. The proposed development complies with this acceptable solution. The proposed development is therefore deemed to satisfy the performance criteria P3.1, which includes that the "bulk and scale of development is compatible with the existing or desired future character of the area".
4. Similarly, the proposed development meets the acceptable solutions for building height, including locating the two storey elements such that they are significantly setback from the southern side boundary so as to minimise shading of the adjacent property at 48 Parker Crescent. Similarly, consistent with acceptable solution A4.4, the 3D modelling (Ex 5) and the measurements of the maximum ridge heights of the proposed development and adjoining development demonstrates that the difference in building height between existing buildings and the proposed development is compatible when viewed from the public domain. As the acceptable solutions in relation to height are met, the performance criteria are deemed to be satisfied, such that the height of the development is compatible with the existing or desired future character of the area. Further, the acceptable solutions for setbacks are met, which means that the performance criteria are satisfied, such that the "front setback is generally consistent with adjoining development (P5.1)" and the "location and siting of the building complements the existing setbacks in proximity to the site… and the streetscape (P5.2)".
5. Secondly, the proposed development meets the acceptable solutions for the local character and context, which require the development to address the local character/context of the area and streetscape, be sympathetic and compatible with the desired future character, and contribute to the existing streetscape and character. I accept that it does so on the basis of the evidence of Mr Mead and his analysis of the character of the area and streetscape.
6. Contrary to the evidence of Mr Darroch, even if the locality is confined to Parker Crescent within the vicinity of the site, it is not exclusively characterised by single dwellings on large landscaped lots. Instead there are at least 12 vacant lots, and there are multiple double storey dwellings located to the north east and south east on Parker Crescent immediately adjacent to the neighbouring sites which are on smaller lots with minimal side and rear setbacks for landscaping. There are dual occupancy developments further to the north east at 17 and 24 Parker Crescent. I note, further, that the word "locality" is a defined term in the Dictionary to the SDCP and extends to the geographical area named by the Geographical Names Board, and would therefore extend to the Berry locality. Therefore, both the neighbourhood relied upon by Mr Darroch, and the locality as defined in the SDCP, are not homogenous in built form and I accept the evidence of Mr Mead that the pattern of residential development is varied. As such, simply because the proposed development is not a single dwelling does not make it incompatible in the streetscape, the neighbourhood, or the locality.
7. I accept the evidence of Mr Mead that the 3D modelling shows that the proposed development will integrate well with the streetscape of Parker Crescent. I accept his opinion that, when viewing the site toward the east (from the street), the topography reduces any visual impact of bulk when looking towards the site. The proposed retaining and fencing along the southern boundary will be compatible with the appearance of adjoining fence lines when looking upslope in the interim period until the site to the south is developed. Further, I accept his evidence that the proposed development is compatible and sympathetic in the streetscape through its setbacks, the extent of landscaping, by receding the height of the dwellings to the rear, by adopting a palette of materials and architectural style that is characteristic of existing development in Parker Crescent, by providing for a density well below the maximum FSR, and by providing landscaping greater than the minimum required. He opines that the two front dwellings will make the most significant contribution to the streetscape and character, and the character of the public domain, and I accept his evidence that they are acceptable in streetscape terms. The maximum height of the ridge line of dwellings 1 and 2, which present to the street, is lower than the maximum height of the ridge line of the dwelling located to the north (56 Parker Crescent), and the front setback is consistent with the front setback of the same property. The consistent front setbacks, together with the large side setbacks in which landscaping is proposed, means that the proposed development contributes to the streetscape by continuing the pattern of large front and side setbacks to built form. In addition, as set out in the Supplementary Statement of Environmental Effects (Ex D Tab 11 p 11), the two dwellings that front the street have an overall building width of 21.95m across a site with a 54.65m frontage, which is sufficient width for both dwellings to achieve consistency with the streetscape and built form, in a context where the dwelling directly opposite (57 Parker Crescent) has a building width of 23m which is approximately 70% of its frontage, and the dwelling to the north west (59 Parker Crescent) has a building width of 23m. As such, the proposed development presents to the street as having similar bulk and scale to the development within the same visual catchment. Further, I accept Mr Mead's evidence that the rear dwellings will be less visible, particularly at one storey, and their setbacks and spacing between the dwellings is similar to that seen for existing dwellings to the east. Accordingly, the massing of the development has been distributed to reduce the visual impact and allow the two dwellings that present to the street to achieve consistency in the streetscape.
8. For those reasons, the proposed development is compatible with the existing and desired future character expressed in the controls as it meets the performance criteria in Section 5.1.3 for the building envelope, height and setbacks, and in Section 5.2.1 P7 local character and context.
9. Further, for the same reasons, I do not accept that the site is not suitable for the proposed development on any of the grounds particularised in contention 1(a). The bulk and scale of the proposed development is compatible in the streetscape, the landscaping exceeds what is required by the SDCP and the hardstand area is therefore acceptable, and there is sufficient street frontage to accommodate generous landscaping in the northern side setback and the front setback.

The impact on adjoining neighbours

1. The Council contends that the proposed development has an unacceptable impact on adjoining neighbours due to the extent of overshadowing of the vacant property to the south (48 Parker Crescent), the loss of views from the adjacent property to the north (56 Parker Crescent), and loss of privacy by overlooking from the upper storeys of the proposed development (Contentions 3(f), (g), (h), (j) and 4) . Further, the Council submits that the site analysis is inadequate to assess the impacts on adjoining neighbours, and that there is an unacceptable visual impact caused by the "gun-barrel" design of the driveway along the southern boundary.

The requirement for the preparation of a site analysis

1. The Council submits that the site analysis that is before the Court is inadequate to consider the impacts of the proposed development on the adjoining neighbours, as it only shows half dwellings adjacent to the site and nothing across the road. The Council submits that this is contrary to the requirements of Chapter G13 Section 5.2.2 at point 10, and prevents the Court, in exercising the functions of the consent authority, from determining whether the impacts are acceptable. The development specific requirements for a site analysis to inform the site design and layout are as follows:
2. The objectives relevant to these performance criteria are as follows: "The specific objectives are to: i. Encourage the concurrent planning of the subdivision layout and the dwelling siting and design. ii. Allow flexibility in the siting of dwellings. iii. Ensure that design and site placement of dwellings is compatible with and enhances the existing and future streetscape. iv. Locate dwellings to ensure minimal loss of amenity (e.g. privacy, views, overshadowing, solar access or the like) to adjoining development. v. Achieve a site layout that provides a pleasant, attractive, manageable and resource efficient living environment."

The site analysis is adequate

1. I do not accept the Council's submission that the additional detail it seeks in the site analysis, which it says is prescribed by the SDCP, is required for the Court to undertake the assessment of the proposed development and its impacts. Whilst a site analysis with that detail may have been essential to the Council's consideration of the development application following lodgement, the site analysis that is before the Court is now supplemented by the expert town planning evidence that forms part of the appeal proceedings.
2. As such, based on the expert opinion evidence of Mr Mead, and for the reasons that are set out below, I am satisfied that the objectives that are sought to be achieved by the preparation of the site analysis are achieved. The dwellings are located appropriately "to ensure minimal loss of amenity (e.g. privacy, views, overshadowing, solar access or the like) to adjoining development" and "achieve a site layout that provides a pleasant, attractive, manageable and resource efficient living environment". Similarly, as set out in my reasons above concerning compatibility with the neighbourhood and streetscape, I am satisfied that the "design and site placement of dwellings is compatible with and enhances the existing and future streetscape". Accordingly, although the acceptable solution that requires the preparation of the site analysis may not be fully met, there is sufficient information before the Court to satisfy me that the relevant objectives are met.

Overshadowing

1. In P4 of Section 5.1.3 of Chapter G13 of the SDCP, the height of development is required to minimise "adverse amenity impacts associated with overlooking and overshadowing of adjoining properties", and one of the acceptable solutions is that any "two storey dwelling component is to be located to minimise the shading of adjacent private open space" (A4.3). In addition, the objectives, performance criteria and acceptable solutions for solar and daylight access are as follows:
2. The Council relies on the evidence of Mr Darroch, who opines that the overshadowing of the vacant property at 48 Parker Crescent, as shown on the shadow diagrams (Ex D Tab 7) is unacceptable. The Court was availed of some draft plans for a single dwelling at 48 Parker Crescent by the owner of that property, who is a resident objector who gave evidence at the commencement of the hearing. Those draft plans, when compared to the shadow diagrams, demonstrate that the dwelling is to be sited on a steep part of the property and will not be subject to overshadowing from the proposed development, but that the level area at the top of the property, which is to be used as private open space, will be partially overshadowed in mid-winter. Mr Darroch's evidence is that this is unacceptable.

The overshadowing is not unacceptable

1. I do not accept that the overshadowing of an area of private open space that is on the flat portion of the adjacent vacant site is unacceptable. Firstly, there is compliance with the acceptable solution in Section 5.3.2 that the dwellings be sited and designed "to ensure that the energy efficiency of existing dwellings on adjoining lots is not unreasonably reduced". This is because there are no existing dwellings that will be overshadowed by the development, and any overshadowing of a future development on the site to the south is contained in the rear yard (relying on the draft plans). Most of the northern wall of the dwelling in the draft plans would have access to sunlight that is not impeded by the proposed development, in which windows could capture the winter sun, and there is no overshadowing that would prevent solar access to the roof.
2. Secondly, consistent with P4 of Section 5.1.3 and A4.3, the design of the proposed development has minimised overshadowing by siting the built form such that there is a large setback to the southern boundary achieved by the siting of the driveway along the southern boundary, by designing the rear dwelling as single storey, and by increasing the side setback of the second storey component of the third dwelling so that it is stepped back from the ground floor. In doing so, the design of the proposed development minimises the shading of the future private open space at 48 Parker Crescent.
3. Thirdly, as set out above, the proposed development is compliant with all setback and building envelope controls, such that any overshadowing is that which is anticipated by the controls. There is no evidence that there will be any potential overshadowing of any of the living areas within the proposed dwelling in the draft plans which is occasioned by the proposed development, and any overshadowing of 48 Parker Crescent is exacerbated by the property's siting on the southern side of a steep ridge.

View loss

1. The performance criterion and acceptable solution with respect to the impact on views are as follows (Chapter G13 Section 5.2.1):
2. Mr Darroch's evidence is that the location of the dwellings in the rear of the subject site will "fail to provide the necessary view sharing sought by the DCP for the property to the north of the subject site" (Ex 5 p 37) which is 56 Parker Crescent.

The existing views from the adjacent dwelling are not unreasonably affected

1. Contrary to the evidence of Mr Darroch, I consider that the acceptable solution in A8.1 is achieved by the proposed development as there is no "severe or devastating" loss of views from an existing dwelling or from the public domain. The only windows of 56 Parker Crescent that face the site, are frosted windows and a small window to a study. The design of 56 Parker Crescent orients the verandah and living rooms to take advantage of views to the north and north west, which will not be affected by the proposed development. The rear verandah is similarly not oriented toward the site. As I am satisfied that the acceptable solution is met, the performance criteria is deemed to be met, such that existing views from the property at 56 Parker Crescent are not unreasonably affected.

Overlooking and privacy impacts

1. The performance criteria and acceptable solutions with respect to visual and acoustic privacy are as follows (Chapter G13 Section 5.3.1):
2. Having regard to the plans for the proposed development, there are no unacceptable privacy impacts. The only overlooking relationship identified by the Council was that from the second storey bedrooms to the private open space of adjoining development. As such, none of the acceptable solutions are offended. Further, the separation distances between the windows to the bedrooms and the private open space, together with TWA's agreement for the imposition of a condition of consent requiring a minimum sill height of 1.5m for the second storey bedrooms in Dwellings 1 and 2, provide additional design measures by which the performance criteria to minimise overlooking of the private open space is achieved.

Visual impact of the driveway

1. Mr Darroch opines that the visual impact of the driveway is unacceptable in circumstances where it does not avoid a "gun-barrel effect". The requirement to avoid a gun barrel effect is an acceptable solution A13.1, and states as follows: "Avoid a gun-barrel effect down the side boundary. Where a gun-barrel driveway cannot be avoided, the driveway must be curved and landscaped to Council's satisfaction to break up the appearance of the gun-barrel design."
2. The associated performance criteria is to minimise the visual dominance of driveways.
3. I do not accept that the design of the driveway is visually dominant or has an adverse visual impact. Instead, I accept Mr Mead's evidence that the driveway is to be lined with landscaping on each side, and, because the site's topography is such that it falls away from the street, "the driveway beyond its crest will not be readily visible from the street" (Ex 5 p 36). As such, the full length of the driveway will not readily be perceived from the street. Accordingly, I accept that the driveway design, the landscaping and the topography of the site achieve the performance criteria to minimise the visual dominance of driveways. I also consider that by doing so, there is no "gun barrel effect", contrary to the evidence of Mr Darroch.

Acoustic impact of the driveway and private open spaces

1. The Council contends also that there is a potential for noise and privacy impacts on the adjoining lots caused by the driveway area and the private open spaces for the dwellings. There is no provision of the SDCP that is relied upon by the Council with respect to this contention.
2. I do not accept that this contention has been made out. I accept the evidence of Mr Mead that noise and privacy impacts will be mitigated by boundary fencing and any noise impact that arises from the use of private open space is typical of residential areas. I also accept his evidence that, given the number of dwellings proposed and likely very low traffic generation on the driveway, there will not be an unacceptable acoustic impact from the driveway.

The amenity of future residents

1. The Council contends that the proposed development does not afford acceptable amenity to the future residents because there is insufficient solar access to the living areas, there is inadequate hardstand area within the private open space, there is no separate pedestrian access to the two dwellings at the rear, and dwelling four is not adequately adaptable.

Solar access to the living areas

1. The SDCP performance criteria and acceptable solutions for solar access for the living areas of the dwellings are set out above at [56], which is from Section 5.3.2. The performance criterion is "Dwellings are sited and designed to maximise solar access to living areas and private open space." The acceptable solutions are that dwellings are to be "Oriented to make appropriate use of solar energy by maximising solar access to north-facing windows" and "Designed to locate living areas and private open space on the northern side of the development and nonhabitable areas to the south and west of dwellings," and that the "number of single aspect south facing dwellings shall be limited."
2. The Council submits that the Court cannot conclude that solar access is maximised in the absence of diagrams referred to as "view from the sun", as, without those diagrams, the Court cannot appreciate the extent of solar access penetration into the living areas. Mr Darroch's evidence is that there are insufficient north facing windows, and that there are west facing windows that, in his opinion, should be avoided.

Solar access is acceptable

1. The Council's submission that "view from the sun" diagrams are required is wholly unfounded. The enquiry to which the performance criteria is directed is the siting and designing of the dwelling so as to maximise solar access. It is not on the extent of maximisation by measuring penetration of sunlight within a room.
2. The information provided in the shadow diagrams and the shadow projections are sufficient to ascertain whether the performance criteria and/or the acceptable solution for solar access under the SDCP is achieved. Notwithstanding that the SDCP does not require an analysis of the solar access achieved at the winter solstice, the shadow diagrams and the shadow projections (Ex D Tab 7) depict the shadows at the winter solstice, which allows consideration of the solar access when it is worst affected by the angle of the sun. I accept that both the performance criteria and the acceptable solutions in Section 5.3.2 are met, for the following reasons.
3. Firstly, the dwellings are sited and designed such that all of the living areas have north facing windows, and some have additional windows to the east and/or west. Similarly, the private open space for each dwelling is located in areas that have a northern aspect. That such design maximises solar access is clearly evident from the shadow diagrams and shadow projections, which demonstrate that all living areas have sun shining through the windows for at least 4 hours in mid winter. I am therefore satisfied that the dwellings are each sited and designed to maximise solar access to living areas and private open space, and I accept Mr Mead's evidence in that respect.
4. Secondly, the acceptable solutions are all achieved. All four dwellings have solar access to north-facing windows, and three of the four dwellings achieve 4 hours of winter sun through those north facing windows. Whilst dwelling 2 has only a small north facing window to the living area, it nevertheless receives solar access to a north facing window. Similarly, none of the dwellings are "single aspect south facing", and they are each designed with "living areas and private open space on the northern side of the development and non-habitable areas on the south and west of dwellings". That is, all the garages are located on the south of the dwellings, and all living areas and private open spaces are to the north. Contrary to the evidence of Mr Darroch, there is no requirement in the SDCP to avoid achieving solar access through west facing windows, and s 4.15(3A)(a) prevents more onerous standards being imposed. The acceptable solutions A16.1 and A16.2 are clearly met.

The private open space

1. Notwithstanding that the private open space for each dwelling complies with the minimum area of 35m2, the Council contends that the private open space for each dwelling is unacceptable as it does not have sufficient hardstand area. The hardstand area is set out as an acceptable solution in the SDCP as follows (at Chapter G13, Section 5.3.3 A17.3): "• Include a defined hardstand area (e.g. concrete, paving, decking) of usable space which: - Is setback at least 1.2m from an external boundary. - Has a minimum dimension of 5m x 4m, of which 50% shall be covered to provide protection from the elements."
2. This means that each private open space is required to have 10m2 of covered hardstand space, and 10m2 of uncovered hardstand space. As proposed, each dwelling has private open space with a covered hardstand of between 9m2 and 21m2. To resolve this contention, TWA proposes the following condition of development consent: "Each dwelling is to provide a minimum dimension of 5m x 4m of defined hardstand area."
3. As a result, each dwelling will have 20m2 of hardstand area, some of which will be covered in accordance with the plans as currently before the Court. This may mean that some of the dwellings will not have uncovered hardstand area. However, I do not consider that this warrants refusal of the proposed development. I accept the evidence of Mr Mead that the future residents of the proposed development have sufficient areas of private open space to have the flexibility to use it as they see fit, and to make changes to what is roofed so as to meet their needs (with any appropriate approvals).

Pedestrian access to the two dwellings at the rear

1. Mr Darroch opines that the proposed development does not meet A12.1 concerning pedestrian access, which requires that "The site is designed to encourage pedestrian access by providing a continuous path of travel from the street to each dwelling". He considers that reliance on the common driveway for pedestrian access is inconsistent with this requirement and "cannot reasonably be said to provide safe pedestrian access" (Ex 5 p 29).
2. Mr Darroch's position on the interpretation of A12.1 is in error. There is no requirement in A12.1 for the pedestrian path of access to the dwellings to be separated from the driveway. That is not what A12.1 says. Instead, A12.1 is met by the shared use of the driveways in the proposed development by vehicles and pedestrians to access the dwellings, and by the provision of an area of footpath for each dwelling that leads from the driveway to the front door. Accordingly, the pedestrian access to the dwellings is acceptable.

Adaptable dwelling

1. Acceptable solution A28.1 requires that the proposed development provide one dwelling that is "accessible or adaptable", and a note in the performance criteria states that "'Easily and affordably adaptable' includes the future installation or alterations of inclusions to comply with the requirements of a silver standard as outlined in the 'Livable Housing Design Guidelines'". Mr Darroch expresses an opinion that the proposed dwelling four, which is nominated as that which is adaptable, does not provide appropriate accessibility. However, he has not provided a basis for this opinion or particularised in what way the dwelling is not accessible.
2. Instead, I accept the evidence of Mr Mead that dwelling four has been designed to meet the requirements of the silver standard, which is supported by the plan at Ex D Tab 4 and the details therein, such as the step-free entry and the circulation space in the bathrooms.

The proposed zoning change

1. The Council contends that the proposed development is inconsistent with the intended zoning of the site pursuant to the planning proposal (Contention 2). The Council submits that, based on the current status of the planning proposal, it is certain and imminent. The Council submits that a development for the purpose of multi dwelling housing would plainly be contrary to the objective to maintain the rural character of the area to be rezoned, particularly given that it will be a prohibited use in the R5 Large Lot Residential zone.
2. TWA points out that, as a result of the letter from Mr Towers of 19 July 2021, there is a potential that there will be the imposition of a savings provision in the proposed instrument. As such, TWA submits that the terms of the proposed instrument are not certain, and the timing of a gazettal is not imminent. TWA submits that the timeframe envisaged in Mr Clark's evidence is sufficient for the Department to exercise its power to incorporate the savings provision requested, which it says is "clearly a possibility". TWA further submits that, even if the proposed instrument is imminent and certain, the decision in Terrace Tower nevertheless raises the question of whether the proposed development will preserve the character anticipated by the proposed change to the zoning and whether the proposed development will undermine the objectives of the new zoning. TWA relies on the decision of Lloyd J in Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290; [2001] NSWLEC 279 at [30]: "30 … In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193)."
3. Accordingly, TWA submits that the questions to be answered are: firstly, whether the draft LEP is imminent and certain and if so, what weight should the draft LEP be given in the consideration of the application; and, secondly, does the proposal undermine the expressed future planning objectives for the area in the draft LEP. In relation to the second question, TWA relies on the evidence of Mr Mead that the proposed development is not inconsistent with the objectives of the R5 zone, and that there would be no conflict in land uses given that the site is surrounding by residential land uses. TWA points out that there is no evidence to the contrary from Mr Darroch, and that in the absence evidence to the contrary, the proposed instrument should not be given determinative weight because the character of the site and the locality will not be significantly changed. TWA further points out that the proposed instrument does not alter the standards relating to FSR or height of building for the site.

The proposed development should be approved notwithstanding that the proposed instrument is imminent and certain

1. I accept the Council's position that, on the basis that the Council has been authorised as the local plan-making authority, the planning proposal has been publicly exhibited, and was endorsed by the Council at its meeting on 14 July 2021, the proposed instrument is imminent and certain. Although the letter of Mr Towers of 21 July 2021 provides a 'question mark' as to whether a savings provision will be included, it also notes that the Council remains the local plan-making authority. Any doubt created by the letter is not sufficient to dissuade me from the proposed amendment to the SLEP being imminent and certain. Therefore significant weight ought to be placed on the proposed instrument.
2. However, consistent with the decision in Blackmore Design Group Pty Ltd v North Sydney Council, that is not the end of the enquiry. In my view, the mere fact that the proposed development will be prohibited following the gazettal of the proposed instrument is not a sufficient basis to refuse the proposed development in circumstances where the evidence is that it will not undermine the objectives of the R5 Large Lot Residential zone and where I have accepted that the proposed development is compatible with the character of the area. Accordingly, I consider that the proposed development should be approved, for the following reasons.
3. Firstly, I accept the evidence of Mr Mead that the proposed development is not inconsistent with the zone objectives in the R5 Large Lot Residential zone. Those zone objectives are as follows: • To provide residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality. • To ensure that large residential lots do not hinder the proper and orderly development of urban areas in the future. • To ensure that development in the area does not unreasonably increase the demand for public services or public facilities. • To minimise conflict between land uses within this zone and land uses within adjoining zones.
4. Mr Mead addresses these objectives in his evidence as follows: "The proposal will provide residential housing in the setting which has been created by the subdivision, existing development within it and likely future development. The character of the surrounding locality in my view is not necessarily rural in a true sense today. The site is surrounded by residential development to the north, east, west and south-east. Collectively, those developments and the subject development will sit in harmony with the larger lots which are already developed for single houses and any undeveloped large lots which could be developed for dwellings or dual occupancies (attached). The Respondent does not contend that the proposal will impact on environmentally sensitive locations and scenic quality, nor that the proposal will unreasonably increase the demand for public services or public facilities. There is no apparent conflict between land uses in this case because the site does not adjoin rural uses, it adjoins other residential uses. Accordingly, even if the zoning were to change, the proposal will not be out of context or in conflict with the zone objectives. In fact, support for the current proposal would ensure that "large residential lots do not hinder the proper and orderly development of urban areas"."
5. I accept this evidence, which is not contradicted by any evidence relied upon by the Council. The residential use of the site in the form of multi dwelling housing, in the design proposed, is consistent with the objectives of the R5 zone and will not hinder the residential development of the large lots in the immediate surrounds for either dwellings or dual occupancies as permitted by the R5 zoning.
6. Secondly, I have above found that the proposed development and its design is compatible in the streetscape and has a height, bulk, scale and setbacks that are consistent with the desired future character and other development in Parker Crescent (at [42] to [49]). The proposed instrument does not change the development standards for height and FSR, and the proposed development has less floor space than what is permitted under the SDCP. As such, the proposed development will not be out of context in the streetscape, even once multi dwelling housing is not permissible in the area to be rezoned.
7. Thirdly, there are no merit issues that justify a refusal of the development application. As set out in my reasons expressed earlier, the proposed development does not have an unacceptable impact on adjoining development or on the amenity of future residents of the development.
8. These three reasons are sufficient to satisfy me that consent should be granted to the proposed development notwithstanding the proposed instrument and the intended change to the zoning of the site to R5 Large Lot Residential. In addition, I note that the dwelling density of the proposed development (four dwellings on 2000m2) will remain consistent with that permitted on the land zoned R1 General Residential, which allows for a minimum subdivision lot size of 500m2, and which is located within the visual catchment of the site and immediately adjoins the site to the rear. Similarly, multi dwelling housing remains permissible on land zoned R1 General Residential, which is in close proximity to the site and within the same visual catchment.

Consistency with the zone objectives of the R1 General Residential zone

1. The Council raised a contention that the proposed development is not consistent with the objectives of the zone (Contention 6). Whilst there is no requirement in the SLEP or the EPA Act for a proposed development to be consistent with the objectives of the zone, it is nonetheless mandatory for the objectives to be considered pursuant to cl 2.3(2) of the SLEP and a development may warrant refusal if it is antipathetic to those objectives. However, there is no evidence from Mr Darroch in the joint report in support of this contention, and no submissions on this contention were made on behalf of the Council.
2. I have considered the objectives of the R1 zone and I accept the evidence of Mr Mead that the proposed development addresses the objectives of the zone as it responds "to the housing needs of the community and will add to the variety of housing types and densities within the Estate and broader area, providing for medium density housing which appears to be underrepresented" (Ex 3 p 42).

Development consent should be granted

1. For the reasons that are set out above, none of the contentions raised by the Council are made out. I am satisfied that the proposed development meets the applicable planning controls and that it is therefore compatible with the character of the surrounding neighbourhood, and does not have any unacceptable impacts. I also consider that the proposed development is consistent with the objectives of the R5 Large Lot Residential zone notwithstanding that it is of a type that will be prohibited in the zone, and that it ought not be refused in circumstances where I have found it to be compatible with the character of the neighbourhood. Additionally, I am satisfied that the following preconditions to the exercise of the Court's jurisdiction have been satisfied:

• The proposed development complies with the applicable development standards in the SLEP.
• Consistent with the requirements of cl 7.11 of the SLEP, I am satisfied that, based on the contents of the Statement of Environmental Effects, infrastructure in the form of electricity, water, and sewage disposal is available to the site.
• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.
• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 - Remediation of Land. As set out in the Council officer report (Ex 1 p 128), there is no indication of contamination on the site.

1. Development consent should therefore be granted, subject to the conditions of consent as agreed by the parties.
2. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted for the construction of a multi dwelling housing development containing four detached dwellings at 52 Parker Crescent, Berry, subject to the conditions in Annexure A. 3. Exhibits 1-4, 6, B, F and H be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 July 2021