Vitalize Landscapes Pty Ltd v Oberon Council

The site and its context

1. The subject site has an area of 2023m² and has been cleared of existing buildings through a previous consent for demolition. The site was previously used as a timber yard; a service station for the dispensing and sale of fuel; and for the storage and sale of pesticides and agricultural pesticides. The site has a front boundary to Queen Street, and a rear boundary to Whitakers Lane. The site slopes from the front boundary to the rear with a fall of approximately 4m.
2. To the east of the site is a freestanding residential dwelling and associated sheds, to the west of the site is a five lot multi residential development. The Oberon Anglican Church is opposite the site and the vicinity of the site contains predominately residential dwellings.

Planning Controls:

1. Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C 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. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate has been submitted with the development application and the relevant requirements incorporated in the proposal. The proposal is considered to satisfy the requirements of this policy.
3. State Environmental Planning Policy 55 - Remediation of Land (SEPP 55) applies to the site. This policy provides for the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment of any existing land contaminants. Relevantly Clause 7 of SEPP 55 provides a precondition to consent as follows: A consent authority must not consent to the carrying out of any development on land unless: (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. … The proposed development is a change of use from a use referred to in Table 1 to the contaminated land planning guidelines.
4. Oberon Local Environmental Plan 2013 (LEP 2013) applies to the site. The relevant aims of LEP 2013 are: … (2) The particular aims of this Plan are as follows: (a) to encourage sustainable economic growth and development in Oberon, (b) to encourage and provide opportunities for local employment growth and the retention of the population in Oberon, (c) to encourage the retention of productive rural land in agriculture, (d) to identify, protect, conserve and enhance Oberon's natural assets, (e) to identify and protect Oberon's built and cultural heritage assets for future generations, (f) to allow for the equitable provision of social services and facilities for the community, (g) to provide for future tourist and visitor accommodation in a sustainable manner that is compatible with, and will not compromise the natural resource and heritage values of, the surrounding area
5. At cl 2.3(2) LEP 2013 provides that the consent authority must consider the objectives of the zone. Pursuant to LEP 2013 the site is zoned R1 General Residential. The objectives of 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.
6. The proposal is defined as multi dwelling housing and is permissible, with consent, in the zone.
7. Clause 2.6: Subdivision of LEP 2013 applies as subdivision is sought by the applicant.
8. Clause 4.1: Minimum Subdivision Lot size applies to the development. By the operation of cl 4.1(4) the minimum lot sizes do not apply to individual lots in a strata plan.
9. The provision of services is addressed by clause 6.4 as follows: Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required: (a) the supply of water, (b) the supply of electricity, (c) the disposal and management of sewage, (d) stormwater drainage or on-site conservation, (e) suitable vehicular access.
10. The site is located within the designated buffer area of the Oberon timber complex. LEP 2012 includes a specific clause to address the potential for land use conflict arising from this use. Clause 6.6 is as follows: 6.6 Development within a designated buffer area (1) The objectives of this clause are as follows: (a) to protect the operational environment of industries operating within the Oberon Timber Complex, (b) to control development near the Oberon Timber Complex and waste disposal facilities to minimise land use conflict. (2) This clause applies to land identified as "Oberon Timber Complex" on the Industrial Buffer Map. (3) Before granting development consent to development on land to which this clause applies, the consent authority must consider the following: (a) the impact that any noise, odour or other emissions associated with existing land uses may have on the development, (b) any proposed measures incorporated into the development that limit the impact of such noise and other emissions associated with the existing land use, (c) any opportunities to relocate the development outside the land to which this clause applies, (d) whether the development is likely to adversely affect the operational environment of any existing development on the land to which this clause applies.

Applicability of the Development Control Plan

1. The application of the Oberon Development Control Plan 2001, (DCP 2001) to the proposal was the subject of submissions from the parties.
2. In closing, the applicant argued that reduced weight should be given to DCP 2001 as it was prepared to support the repealed Oberon Local Environmental Plan 1998. It is Mr Smith's position that this reduced weight reflects the disjunction between the adoption of LEP 2012 and the DCP that is in force. This disjunction manifests itself in details in the DCP, for example by reference to zones that no longer apply in the Oberon LEP and in the purpose of the DCP itself. In submissions he drew the Courts attention to the objectives of DCP 2001 which state, in part: The general objectives of this plan are: To provide development controls and guidelines which will assist in achieving the objectives of the Oberon Local Environmental Plan 1998. …
3. Relevantly the citation of the development control plan is as follows: This plan may be cited as the 'Oberon Development Control Plan 2001'. It constitutes a Development Control Plan as provided for by Section 72 of the Environmental Planning and Assessment Act 1979 and shall apply to land within the Oberon Area.
4. Specifically Mr Smith contends that the residential development controls in Part C of DCP 2001 do not apply directly to the proposed development as they apply to land zoned 2(v), a zone which has been superseded by LEP 2013. The 2(v) zoning does not apply to the subject site, which is zoned R1. For example, Mr Smith identifies that clause C.3 the 'Application of the controls' states that the section applies: to all development approvals relating to the erection of, or additions or alterations to, or use of residential development in Zone 2(v) Village Zone within the villages of Oberon and Black Springs…[emphasis added].
5. Given the disjunction between the LEP and the DCP controls, the applicant argues the DCP provisions should be given a reduced weight in the assessment of the application. Mr Smith relies on Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, which at [92] provides a framework for the consideration of the appropriate weight to be given to Council policies. These considerations are: · the extent, if any, of research and public consultation undertaken when creating the policy; · the time during which the policy has been in force and the extent of any review of its effectiveness; · the extent to which the policy has been departed from in prior decisions; · the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans; · the compatibility of the policy with other policies adopted by a council or by any other relevant government agency; · whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it. Applying these principles Mr Smith argues that the controls should not be given the statutory weight of a DCP, but rather the weight of a Council policy in the assessment by the Court.
6. In contrast, Mr Seymour argues that there is no evidence before the Court that DCP 2001 has been repealed, or the controls within it, abandoned by the Council. In contrast to Mr Smith it is Mr Seymour's submission that Zhang v Canterbury City Council [2001] NSW CA 167 establishes that DCPs do not have variable weight and must be the focus of the assessment given their status as a statutory policy (under s79C(1)(iii)). In contrast, Stockland Development Pty Ltd v Manly Council addresses the considerations that may vary the weight that should be applied to non-statutory policies. Mr Seymour's submission is that Stockland Development Pty Ltd v Manly Council does not apply to the current proceedings.
7. In relation to residential development section (Part C of of DCP 2001) and its reference to the 2(v) zone, Mr Seymour relies on s68 (1) of the Interpretation Act 1987 which states: In any Act or instrument, a reference to some other Act or instrument extends to the other Act or instrument, as in force for the time being. Council submits this has the effect that the DCP, and Part C, apply to the subject development, irrespective of the change in zoning.
8. In reply Mr Smith argues that the Council cannot rely on the Interpretation Act 1987 as the provisions at s68 apply to 'instruments' (which are defined as environmental planning instruments) of which a DCP is not. It is his view that DCP 2001 therefore does not meet the requirements of s74BA of the Act, for a DCP to give effect to the aims of any environmental planning instrument, as the LEP to which it refers is not in force. The applicant argues that the provisions of DCP 2001 should be applied with the weight of a policy, rather than as a statutory DCP.

Findings:

1. The Environmental Planning and Assessment Regulation 2000 (the regulation) provides for the repeal of DCP's at Division 4, cl 22. It provides that: (1) A council may amend a development control plan by a subsequent development control plan. (2) A council may repeal a development control plan: (a) by a subsequent development control plan, or (b) by public notice in a local newspaper of its decision to repeal the plan. There is no evidence before the Court that DCP 2001 has either been amended by a subsequent DCP or repealed in accordance with sub section 2.
2. In contrast to Hurley v Sutherland Shire Council [2016] NSWLEC1630, referred to by Mr Smith in submissions, the citation of DCP 2001 directs that the plans applies to all land within the Oberon Area, and there is no draft DCP in preparation or under consideration by the Council.
3. Following consideration of the parties submissions I am not satisfied that there is sufficient evidence before the Court to determine that DCP 2001 is not the appropriate development control plan (under s79(c)(1)(iii)) for the assessment of the application, or that it has been repealed. No evidence was provided by either planning expert in relation to the status of the DCP.
4. A review of Part C: Residential Development of DCP 2001 identifies that the controls within it are directed at the type of development proposed by the application (multi-dwelling residential development), and the need to ensure appropriate form and management of any impacts generated by the use. This aligns with the primary purpose of a development control plan, defined at s74BA of the Act.
5. For the above reasons I conclude it is appropriate to utilise the DCP to inform the process of assessing the application, and in particular determining the likely impacts of development under s79C(b) and the suitability of the site under s79C(c).
6. The clauses of DCP 2012 relevant to the appeal are in: 1. Part C - Residential Development 2. Part F - Vehicular Circulation and Parking 3. Part H - Notification/ Development Control The relevant objectives and control contained in DCP 2001 are particularised in more detail as they relate to each issue in the body of the judgement.

Expert Evidence

1. The Court heard expert planning evidence from Mr Kerry Nash, for the applicant, and Mr Lindsay Fletcher for the Council. The experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention. As a result of the conferencing process they prepared a joint expert report which was tendered as Exhibit 3.

Public submissions

1. In preparation for the proceedings the Council undertook public notification of the amended plans to the surrounding neighbourhood in accordance with the Oberon DCP 2001. The issues raised in submissions can be summarised as follows: 1. The proposal is an overdevelopment of the site; 2. The arrangement of the proposed dwellings adjacent the common boundary will result in noise impacts and a loss of privacy to the neighbouring properties; 3. The proposed cut and fill may impact the existing boundary fence; 4. Whether the proposal has adequate parking; 5. That the inclusion of a gate at the entry of the development off Queen Street will cause queuing; 6. The potential for the site to be contaminated as a result of the previous use of the land; 7. Concern that the proposal will result in overshadowing to neighbouring properties; 8. Whether the proposal has adequately considered and resolved the management of stormwater; 9. The potential for additional traffic to impact Whittaker Lane; and 10. Concern that the proposal does not comply with Councils planning controls, in particular controls in relation to site coverage, the provision of private open space and communal open space. The above submissions were considered in the proceedings, and were the subject of evidence from the experts, as detailed below.

Is the site suitable for residential use, and can appropriate remediation can be completed?

1. The Council contends that the previous use of the site as a service station, timber yard, and for the storage and sale of chemicals gives rise to the potential that the site is contaminated. The Council states that it would be satisfied that the land is suitable for residential use subject to compliance with a Contamination Management Plan and Site Validation, which could be provided by a condition of any consent for residential use of the land. The issue of contamination is not raised as a reason for the refusal of the application.
2. The joint report of the experts states that in their view it is appropriate for the Contamination Management Plan and Site Validation to be provided as conditions of any consent, and that subject to this they raise no concern in relation to the suitability of the site for residential use or the potential remediation of the site.

Findings

1. A preliminary contamination report (Exhibit B) has been completed for the site. The recommendations of this report are as follows: Remediation of the site will require excavation of the asbestos impacted material and off-site disposal to a landfill licensed to accept the waste. Remediation works should be supervised by an Environmental Scientist and comply with EPA and Workcover guidelines. Air monitoring should be undertaken and a clearance inspection undertaken to confirm a successful validation. Implementation of the described strategies will ensure the successful remediation of the site for the proposed land use.
2. In accordance with s80 of the Act in determining an application, a consent authority can either: (a) grant consent to the application, either unconditionally or subject to conditions; or (b) refuse consent to the application.
3. Relevantly pursuant to s80A(1) of the Act the consent authority may impose a condition of development consent if: (a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or … (f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C(1), or (g) it modifies details of the development the subject of the development application, or …
4. Relevantly s80(4) requires that conditions are expressed in terms of outcomes or objectives and requires conditions to expressed in a manner that identifies both of the following: (a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve, (b) clear criteria against which achievement of the outcome or objective must be assessed.
5. The parties agree to draft conditions in relation to the management of the site contamination. Importantly the draft conditions include a requirement for the lodgement of a validation report within 30 days of the completion of the bulk earth works and waste disposal from the site. The validation report is to detail the sampling undertaken, the results, waste disposal classifications, disposal details and the clearance certificate.
6. Following a review of the recommendations of the Preliminary Contamination Investigation Report, and the evidence of the experts I am satisfied the proposal, in conjunction with the proposed conditions, meets the requirements of Clause 7 of SEPP55 and the conditions relate to a matter referred to in s79C (1) that is relevant to the development the subject of the consent.

Does the development respond to the requirement to limit the impact of noise from the Oberon timber complex?

1. This contention relates to the satisfaction of clause 6.6. of LEP 2013, satisfaction of this clause is a precondition to consent. By controlling development in proximity of the site, the clause seeks to minimise land use conflict and protect the operational environment of industries within the Oberon Timber Complex.
2. The subject site is within the Industrial Buffer Map of the "Oberon Timber Complex". As a result before granting development consent to development on land to which this clause applies, the consent authority must consider the following: 1. the impact that any noise, odour or other emissions associated with existing land uses may have on the development, 2. any proposed measures incorporated into the development that limit the impact of such noise and other emissions associated with the existing land use, 3. any opportunities to relocate the development outside the land to which this clause applies, 4. whether the development is likely to adversely affect the operational environment of any existing development on the land to which this clause applies.
3. The applicant has engaged an expert to prepare a report that assesses the potential for existing industrial noise levels at the project site to impact on the acoustic amenity of the future residents of the development (Exhibit H). In submissions Mr Smith outlined the approach taken by the acoustic expert in the report which can be summarised as follows: 1. The assessment was completed by utilising the inputs from the existing noise monitoring and predictions within the Environmental Impact Statement for the Oberon Timber Complex's proposed expansion; 2. The readings from a location at the closest proximity, and within the same alignment, to the subject site was utilised (NMI/R10). This location, the Oberon Caravan Park is closer to the Oberon Timber Complex than the subject site and therefore is likely to be more affected by noise from the timber complex than the subject site. The existing night time level of industrial noise measured at NM1 during the monitoring was 44dBA (Table 17, Exhibit H). 3. Due to the distance and change in topography (downslope) between the Oberon Caravan Park and the subject site, the acoustic expert has reduced the readings by 4dBA to reflect the noise attenuation. The report indicates that the Oberon Caravan Park is in direct line of site to the Oberon Timber Complex. As the subject site is not, a further reduction is provided to reflect the impacts of barriers that exist between the factory and the subject site. This is summarised below: 1. To provide the most conservative results the assessment has utilised the noise levels of the Oberon Timber Complex, based on the expansion being completed. Mr Smith confirmed that the application for expansion has not been determined. 2. The report focusses on the two northern most dwellings proposed, fronting Queen Street as they are closest to the noise source. 3. The result of the above methodology is as follows:
4. It is Mr Smith's submission that the requirements of cl 6.6 of the LEP are met as follows:

• firstly the consideration of the acoustic environment is achieved by the report in Exhibit H;
• secondly consideration of measures to limit the impact of the Oberon Timber Complex on new development is not required in this case as the predicted internal noise levels in the most affected dwellings are compliant.
• given the compliance of the predicted internal noise levels the sub clauses (c) and (d) of cl 6.6 are not relevant.

1. The Council argues that the Industrial Noise Intrusion Report (Exhibit H) prepared by the applicant, and the methodology it utilises, are insufficient to allow the Court to be satisfied in relation to cl. 6.6 of the LEP. Council argues that the report prepared by the applicant is a predictive model of the noise levels, not a measure of the actual impacts, which is contrary to the requirements of cl 6.6 which are not predictive, but are responsive to emissions associated with the existing land use at the timber complex.
2. In his oral submissions Mr Seymour argues that the Court is required to satisfy itself prior to the grant of consent the impact on the development of the Oberon Timber Complex, and to determine the means that should be employed to protect the future occupants from that harm. He relies on Cameron v Nambucca Shire Council 95 LGERA 268 which states that it is only appropriate after a full assessment under s79C of the Act for the consent authority to nominate matters as to which the applicant must satisfy the consent authority as a deferred commencement condition, or an operation condition. In effect, the finding of the Court in Cameron v Nambucca Shire Council was that the consent authority cannot defer satisfaction of a crucial matter to conditions and must finalise these matters in the determination of the application.
3. The Council's primary submission is that the application should be refused, as the precondition in cl 6.6 is not met. If its primary submission is unsuccessful, Council seeks the imposition of the following condition: Condition 17: Sound Attenuation Glazing and/or insulation is to be installed to address and mitigate sound impacts from the Oberon Timber Complex. Buildings are to be designed to achieve internal noise levels not exceeding 45dBA.

Findings

1. Following a review of the Industrial Noise Intrusion Assessment report, and its results, I am satisfied the proposal meets the requirements of Clause 6.6 of LEP 2013 for the following reasons: 1. As detailed in the proposed conditions, Council seeks an internal noise level of 45dBA to ensure acoustic amenity for future residents; 2. Based on the evidence before the Court this noise level is achieved by the proposal for the most impacted dwellings, and importantly by the bedrooms of within these dwelling fronting Queen Street; 3. I do not concur with the Councils submission that the report prepared by the applicant is insufficient to form a view on the proposals compliance with clause 6.6. of LEP 2013 or the impact of the noise from the Oberon Timber Complex on the proposed development.
2. For the above reasons find the condition sought by the Council is not required as the development has demonstrated it has been designed to achieve internal noise levels not exceeding 45dBA.
3. In conclusion I find the precondition is met on the basis that: 1. I am satisfied that the existing measures proposed within the development are sufficient. 2. Further, there is no evidence before the Court to support the view that the proposed development will have any adverse impact on the operational environment of industries within the Oberon Timber Complex. 3. In relation to compliance of the proposal with sub clause (c) based on the zoning, and the range of permissible uses I have formed the view that this subclause is satisfied and that in relation to noise intrusion for the proposed development the environmental impacts are acceptable. In forming this view I have relied on the decision of McClellan CJ in BGP Properties v Lake Macquarie Council [2004] NSWLEC 399 at [117] which states: 117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. …. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened. 118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.

Is site design and streetscape presentation proposed by the development satisfactory?

1. The Council raises concern with the design of the development for the following reasons: 1. The location of the visitor car parking within both frontages of the proposed development is not in keeping with the character of the surrounding residential development and is not consistent with the desired future character of the streetscape; 2. The use of the setback for car parking reduces the area available for landscaping; 3. The proposed dwellings are not oriented to the street and do not reflect the subdivision pattern or the urban form of Queen Street. 4. The proposal provides inadequate common and private open space; 5. The proposal results in minimal side boundary setbacks that affects the ability to maintain landscaping in the setback area and necessitates the inclusion of drying areas, bin storage and water tanks in the private open space area.
2. The relevant sections of DCP 2001 in dispute are: C8.6 On site Car Parking … Screening from adjacent streets of onsite car parking shall be provided. Screening may be achieved by the location of car parking areas beneath, beside or behind buildings, by fencing, landscaping, mounding or a combination of these or by other means. … F10.1 Car spaces Parking spaces are not normally permitted to be between the building line and the property boundary.
3. Mr Fletcher's evidence is that the location of parking spaces within the front setback is contrary to C8.6, as detailed above, and is inconsistent with the streetscape. It is his evidence that it is an undesirable feature of the proposed design that not only has an adverse impact on the amenity of the proposed dwellings adjacent to those car parking spaces, but also has an adverse impact from both streetscapes (Exhibit 3). It is his analysis that the pattern of development in the locality is of buildings setback substantially from the street frontages and that this area is utilised for soft landscaping including tree and shrub plantings. It is his conclusion that the proposed development will be in contrast to this streetscape character.
4. Since the preparation of the joint expert report the applicant has proposed the deletion of two of the visitors car parking spaces in the Queen Street frontage that were located directly adjacent to the proposed dwellings, and the inclusion of landscaping in the vacated space. In oral evidence, Mr Fletcher agreed this change would result in less acoustic impacts from the visitor parking for the dwellings adjacent, and whilst in his opinion still not meeting the objectives of the controls, would improve the streetscape presence of the development.
5. There is a disagreement between the experts as to the interpretation of the DCP clause utilised to calculate the requirement for communal open space. At the heart of the disagreement is whether the communal open space area, calculated by the application of the clause, is reduced by the area already provided by the development for private open space or is additional to it.
6. The relevant clause is C8.5: The common open area of the site will be not less than the total of the areas required for each dwelling unit, calculated from the following table, less the total of the areas of approved private courtyards and approved private open space balconies in accordance with C 8.3 and C8.4 (these areas are EXCLUSIVE of private open space) DWELLING SIZE LANDSCAPED AREA Small (under 75 sq m in floor area) 25 sqm Medium (75-100 sq m in floor area) 35 sqm Large (over 100sq m in floor area) 50 sqm …
7. Mr Fletcher's calculations are that the development requires 340m² of communal open space to satisfy C8.5 (4 units under 100sqm, and 4 units over 100sqm). His evidence is that the development does not provide adequate compliance with the numeric or quantitative requirements for communal open space.
8. It is also Mr Fletcher's evidence that the proposed development fails to meet the requirements of the DCP in relation to Private Open Space (C8.3 of DCP 2001). It is his analysis that at least four of the eight proposed dwellings will receive little or no direct sunlight to their private open space courtyards in mid-winter (Exhibit 3). In forming this view Mr Fletcher relies on the following sections of the control: C8.3 Private Open Space Each dwelling shall have access to an individual courtyard at ground level having a minimum area of 30 square metres and a minimum length and width each of 4m, not including any area used exclusively for the circulation or parking of vehicles. The courtyard shall be landscaped, have a significant northerly aspect and suitable winter solar access to provide reasonable user comfort, privacy and enhance the amenity of the area. In terms of quantitative compliance of the private open space Mr Fletcher calculates the private open space areas by removing any area occupied by water tanks, bin storage and clothes lines. It is his evidence that this results in Unit 2, and Units 4-8 having less than the area required by C8.3.
9. Finally, in determining the site coverage calculation for the proposal Mr Fletcher has opted to include driveways and car spaces in the determination of the percentage. He concludes that the development has non-compliant site coverage of slightly more than 70%.
10. In terms of the visual and acoustic privacy of the development the evidence of Mr Fletcher is that, the development is unsatisfactory on two fronts: the proximity of the development to the side boundaries; and the limited separation of the dwellings, and in particular the proximity of bedrooms, across the common driveway.
11. Council submits that the site design proposed by the applicant does not reflect an appropriate balance between the dual requirements for development to be orderly and economic, as required by the aims of LEP 2013. Mr Seymour argues that the proposal is an overdevelopment of the site and that the DCP controls (in particular FSR and site coverage) seek to ensure appropriate space is maintained between buildings. He argues that these controls give context to the operation of the remaining controls in the DCP, for example solar access, open space, and that the suite of controls work together to achieve the desired outcome. In conclusion he argues that the site has excessive built form and hardstand and that a more skilful design could achieve the objectives of Councils controls.
12. In contrast, Mr Nash states that the location of off-street parking spaces within the Queen Street and Whittaker's Lane frontages will not be out of character. It is his view that because of the fall of the site from Queen Street the parking spaces, and largely the dwellings themselves, will not be visible in the streetscape. In relation to the desired future character of the vicinity Mr Nash argues that in the absence of a statement in a policy document of Council, or any consistency of elements in the existing building forms, the appropriate character is derived from the key built form controls in the DCP (C 8.2: Density Control). In relation to the role of landscaping in the front setback Mr Nash's evidence is that, more that 48% of the setback area will landscaped, excluding the driveway. It is his assessment that this is a reasonable outcome, and it will be further improved by the agreed deletion of visitor parking as referred to in paragraph [57].
13. Mr Nash disagrees with the evidence of Mr Fletcher that the development pattern is characterised by substantial setbacks from the street that are used for soft landscaping. In reference to an aerial photograph, appended to the joint report, it is his evidence that the setback of buildings from Queen Street (both sides of the street) could more accurately be characterised by its diversity in location of buildings relative to the street alignment (Exhibit 3).
14. Mr Nash utilises the following approach to calculate the requirement for communal open space according to clause C8.5: Clause C8.5 - Common Open Area appears on my reading to relate only to common landscaped area, given that it takes into account in determining numerical compliance the quantum of "landscaped area" per dwelling unit size minus the private open space provided for each villa under C8.3 of the DCP. The wording of the provision is clear, namely "The common open area of the site will not be less than the total of the areas required for each dwelling unit, calculated from the following table, less the total of the areas of approved private courtyards .... In accordance with Clauses C.8.3 and C.8.4 (these areas are therefore EXCLUSIVE of private open space)." Using the table at C8.5, the total landscaped area (common open area) required for 4 units under 100m² floor area and 4 units over 100m² floor area would be 340m². The area provided for private open space of the 8 units is 256m², thereby the common landscaped area requirement for the site would be 84m² (340-256m²). The proposed development provides 182m² landscaped area on the Queen Street (110m²) and Whittakers Lane (72m²) frontages, more than satisfying the provisions of C8.5 of the DCP. In the context of the total common open area of 340m², it is considered that the proposal satisfies the 75% "absorbent finish" requirement given that the driveway is excluded from the calculations. Based on this approach he concludes that the development exceeds the requirements of C8.5.
15. Mr Nash argues that in determining compliance with the private open space controls (C8.3) the areas that should be relied on are those shown in the architectural plans. It is his evidence that the approach taken by Mr Fletcher, to exclude areas utilised for installation of tanks and the storage of bins etc, is incorrect and does not reflect the provisions of DCP 2001. It is Mr Nash's evidence that the form, size and shape of the courtyards, directly adjoining the principal living areas are reasonable (Exhibit 3). In response to Mr Fletcher's evidence of the qualitative aspects of the private open space it is his assessment that all but two units private open space achieve solar access in mid-winter, achieving the requirement of C7.7 for 'effective solar access'. It is his analysis that the two units that do not achieve solar access to the private open space, do achieve solar access to the adjacent principal living area and that therefore these units are not so poor as to offend the requirements of the DCP.
16. In relation to any adverse impacts arising from the living room windows of some dwellings being located within 900mm from the side boundary Mr Nash provides the following evidence: 1. The Oberon DCP contains no minimum setback. It is his experience that a 900mm setback is a consistent standard in many DCP's across NSW, is included in the NSW General Housing Code and complies with the relevant provisions of the National Construction Code 2016 for a Class 1 building; and 2. There are no adverse amenity impacts that arise from the setback as their primary orientation is to the unit's private open space rather than to the side boundary.
17. In relation to the issues raised in regard to any amenity impacts as a result of the separation of dwellings across the central driveway it is Mr Nash's evidence that the Queen Street frontage allows dwelling 1 and 2 to front the road. In relation to the dwellings fronting the driveway the site design results in these dwellings having a separation of 6.5m which he concludes is sufficient to address aural and visual privacy.
18. It is Mr Nash's evidence that the proposal achieves a FSR of 0.47:1, by applying the definition of 'gross floor area' in the Oberon LEP 2013, significantly less than the maximum 0.8:1 that is possible under C8.2 of the DCP. It is Mr Nash's conclusion that the interpretation utilised by Mr Fletcher is incorrect and that the inclusion of the central driveway and external car parking spaces as part of site coverage in the absence of a definition or provision in the DCP to that effect is an error.
19. In submissions, Mr Smith argues that the Court should prefer Mr Nash's evidence as it is his view Mr Fletcher seeks to require a standard that is stricter than that in the DCP. He argues that this is inappropriate as s79C3A of the Act mandates that where a development meets the controls a more onerous standard cannot be applied.
20. In conclusion Mr Smith argues that the Court should consider the findings in BGP Properties v Lake Macquarie which states at [118] that: it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts; and given the design of the project results in acceptable environmental impacts it should be approved by the Court.

Findings

1. In considering the evidence of both experts I am satisfied that the site design and streetscape presentation of the development is satisfactory for the following reasons: 1. I concur with Mr Nash view that the intent of C8.6 for the screening of onsite car parking is achieved in the proposal predominately by the siting of the parking below the level of the street (due to the slope of the land) and by the inclusion of landscaping and fencing within the frontage; 2. The setback proposed is consistent with the adjoining development at 94 Queen Street, and compliant with Councils standards. I am satisfied that the development provides sufficient landscaping in the front setback to achieve a satisfactory streetscape presentation; 3. I am satisfied that a clear reading of clause C8.5 results in a finding that the application provides the required communal open space area, and that this will be further increased by the deletion of the visitor parking proposed in [57]. 4. I accept the submission of Mr Smith in relation to the function of s79C3A of the Act. Whilst the Court must be satisfied the design of the development is consistent with the objectives of the relevant planning controls, it does not have to consider whether an alternate design is a better solution. The role of the court is to determine the application before it. Relevantly in Brett Stephen Lord and Marcus William Ayres v The Minister for Planning and Infrastructure [2014] NSWLEC 1268 at [109] the then Senior Commissioner Moore states: It is on this point that I should observe that the test that I am obliged to impose and address and then answer in proceedings such as these is the acceptability of the proposal. It is not my role to make a declaration as to whether or not a particular concept or design has achieved design Nirvana. 1. I am satisfied that the site design and streetscape presentation of the project results is satisfactory and are not issues that warrant refusal.

Is solar access provided to the development is adequate?

1. The planning experts agree that all the proposed dwellings will receive three hours of sunlight to a least part of their living rooms in mid winder, as required by C 5.9 of DCP 2001. The experts disagree whether the solar access to the private open spaces is satisfactory.
2. The relevant clause is as follows: C8.3 Private Open Space Each dwelling shall have access to an individual courtyard at ground level having a minimum area of 30 square metres and a minimum length and width each of 4m, not including any area used exclusively for the circulation or parking of vehicles. The courtyard shall be landscaped, have a significantly northerly aspect and sustainable winter solar access to provide reasonable user comfort, privacy and enhance the amenity of the area.
3. It is Mr Fletcher's evidence that the proposed development fails to meet this standard as at least four of the eight proposed dwellings will little direct sunlight to their private open space in winter and that this outcome is a result of the orientation and site planning of the proposal.
4. Mr Nash's view of this issue is discussed in paragraph [68]. In summary, he concludes that all but two unit's private open space achieve solar access in mid-winter, achieving the requirements of C8.3 for sustainable winter solar access. It is his analysis that the two units that do not achieve solar access to the private open space, do achieve solar access to the adjacent principal living area and that therefore these units are not so poor as to offend the requirements on C8.3 of the DCP.

Findings

1. I accept the submission of the applicant that the private open spaces achieve the requirements of the DCP and concur that they are principally oriented to the north. In determining whether the development provides sustainable solar access I have considered that the majority will achieve two hours sunlight in mid-winter and the remaining units have good integration with the living areas of the proposed dwellings that all achieve solar access in mid-winter. As such, I find the provision of private open space satisfactory.

Conclusion

1. In relation to the remaining issues raised in submission from the public I am satisfied that the applicants Traffic and Parking Impact Report (Exhibit C) adequately considers the likely impacts of the development and accept the conclusion of the report which states:
2. In relation to pedestrian safety and exit from the development to Queen Street the applicant agrees to imposition of the following condition: 58: Prior to the issue of an Occupation Certificate, signs are to be erected as follows: (i) A pole sign and painted driveway stencil stating "No Exit" located on the boundary of the Property at the driveway entry to Queen Street, Oberon facing towards the development. (ii) A pole sign and painted driveway stencil stating "No Exit" located on the boundary of the Property at the driveway entry to Whitakers Lane, Oberon facing towards the development.
3. Stormwater managed is to be addressed by the imposition of a condition requiring the submission to Council of a final design and details. I am satisfied these conditions are appropriate.
4. As detailed in [43] I am satisfied the proposal, in conjunction with the proposed conditions, meets the requirements of Clause 7 of SEPP55. I am also I am satisfied that cl 6.6 is met [refer par 53] and that no substantive issue warrants refusal of the application.
5. In determining this matter, I have carefully considered the evidence, the resident objections, and the specifics of the site and its surrounds. Having carefully considered the joint expert report and final submissions, I am satisfied in my s79C evaluation that this amended proposal warrants approval.

Orders:

1. The orders of the Court are: 1. The appeal is upheld; 2. Consent is granted to Development Application No. 10.2016.16.1 for the construction of a multi - dwelling residential development comprising eight units and strata subdivision at Lot 2 Section 25, DP 758805, known as 96-98 Queen Street Oberon, subject to conditions in Annexure A; 3. The exhibits are returned with the exception of Exhibit 2, A, the Class 1 application dated 12 July 2016 and the Statement of Facts and Contentions dated 25 January 2017. ……………. D M Dickson Commissioner of the Court 210459.16 Dickson (C)_23.5.2017 (219 KB, pdf)

Amendments 23 May 2017 - Pursuant to UPCR 36.17 the attached conditions are replaced by the conditions attached in Annexure A 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: 23 May 2017