WZ Capital Holdings Pty Ltd v Ku-ring-gai Council

Proposal

1. The proposal provides for 5 x 4 bedroom dwellings and 1 x 3 bedroom dwelling with basement car parking for 12 vehicles including two visitor spaces. Access to the basement carparking (for 12 vehicles including two visitor spaces) is proposed from a driveway at the north-eastern side of the Bent Street frontage. The proposed six dwellings are located in two separate buildings: (i) what I will call the 'northern building', located nearest Bent Street, and (ii) what I will call the 'southern building' nearest the boarding house development. Each of the buildings would accommodate three dwellings (attached in what might be called terrace or townhouse style) and each are three storeys in height, with the top level a form of attic style. Pedestrian entry is off Newark Crescent at the break between the buildings. The proposal includes consolidation of the two existing parcels into one.

Planning framework

1. Multi dwelling housing is permissible in the R3 under the LEP. Objectives of the R3 zone are as follows: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide a transition between low density residential housing and higher density forms of development.
2. The following further points are noted with regard to the LEP: 1. A maximum building height of 11.5m applies to the site (cl 4.3). The proposed development complies with this requirement. 2. A maximum floor space ratio ('FSR') of 0.8:1 applies to the site (cl 4.4). The proposed FSR is calculated at 0.73:1 (Ex A, Drawing DA800) complying with this standard. 3. Part 6.2 is concerned with stormwater and water sensitive design, and provides a set of tests at subclause (2). I mention here that, with amended plans, there was no contest among the experts that stormwater and water sensitive design requirements were satisfied. The matter was not pressed by Council, and having reviewed the relevant expert reports (Ex 6), I too am satisfied in regard to the tests at Part 6.2(2). 4. The proposal satisfies the lot size and street frontage requirements of the LEP (cl 4.1 and cl 6.6).
3. State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 ('SEPP Vegetation') applies to the site.
4. Ku-ring-gai Local Centres Development Control Plan 2016 ('DCP') applies to the site, with Part 6 concerned particularly with multi dwelling housing. There were a considerable number of related provisions, considered relevantly below.
5. One nearby property owner made an oral submission during the site view at the commencement of the hearing. The principal concern raised by this person (in regard to the previously proposed site access) had been addressed through plan modifications. This objector was also concerned about the overall scale of the development, a matter considered in the evidence.

Issues

1. Council's contentions can be usefully aggregated into three primary issues, as follows: (1) overall design quality - with Council suggesting certain elements of poor design, exhibited by the proposal, resulted in inadequacies with regard to the remaining two issues, (2) adverse landscape and streetscape character implications of the proposal - including inappropriate tree removal and deep soil area availability for replacement planting, as well as encroachments into boundary setbacks, and (3) internal amenity concerns for future occupants - comprising a number of elements particularly, but not only, related to building separation (and consequent privacy implications) and private open space. What I consider to be a secondary issue by the applicant, in regard to site constraints, is considered initially, then the three primary issues are considered.
2. I note here that the experts providing evidence in this matter as listed in the table below: Expert Expertise For G Paroissien Arboriculture Applicant G Bird Arboriculture and landscape Respondent J Ramsay Landscape Applicant A Minto Planning Applicant L Marquet Planning Respondent G Ollerton Urban design Applicant K Hunter Urban design Respondent

Recognition of site constraints

1. The applicant, through Mr Baird, argued that the "bones" of the development had merit. The proposal was below the LEP's key controls relating to building height (from "1m to 3m" according to Mr Baird) and FSR (Ex A indicates an FSR of 0.73:1 whereas a control of 0.8:1 applies to the site (Ex 1, para 30). According to Mr Baird, it followed that the proposal did not comprise overdevelopment. Mr Baird agreed with the applicant's experts that there were significant site constraints. These were evidenced at Ex 2, drawing SK101 - Site Constraints Plan. Together the constraints included a significant stormwater drainage encumbrance, considerable tree protection zones to the rear, DCP building setbacks including the fact of dual street frontages as a corner site, and driveway provisioning. Drawing SK101 indicated only a relatively small area leftover for a building footprint, were all these constraints to be factored in.
2. Mr Baird submitted that notwithstanding what was generally agreed as a positive landscape treatment overall; as a consequence of the site constraints, a "viable development" would need to depart from some of the numerical controls in the DCP. He posited that an appropriate goal was "substantial compliance" with the DCP. He argued Council's experts' concession that the adjacent boarding house development at 2 Newark Crescent was an example of, as I believe was put directly by Ms Hunter, a "poor outcome" was relevant. Mr Baird argued that the point was not that "two wrongs make a right", but that the subject proposal was capable of approval given its context.
3. According to Mr Baird, in its assessment and in expert evidence, Council had applied the DCP controls "ruthlessly", rather than mindful of the provisions of s 4.15(3A)(b) of the EPA Act, which I reproduce below: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority - … (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development

Consideration

1. I understood the applicant's submission to be that the site's physical constraints, in a sense their quantum, should weigh in to the evaluation of departures from numerical controls with a mind to "development viability". In general it would not be reasonable to give significant weight to the question of viability in the evaluation job at hand. It is well acknowledged that there is no baseline right to achieve the height or FSR controls applying under an LEP for any site (Wenli Wang v North Sydney Council [2018] NSWLEC 122 [64], and it can be, in turn, expected that physical constraints on a site could reasonably affect its development potential.
2. Section 4.15(3A)(b) of the EPA Act is a matter of statutory fact and is certainly an important consideration in this matter (see [73]).

Design quality

1. The question of design is a considerable factor in Council's evidence and submissions. Council pointed to the objects of the EPA Act at s 1.3, or more precisely, the particular object at s 1.3(g) which indicates the following as one of the Act's objects: "to promote good design and amenity of the built environment". Council also drew attention to what was seen as a "supporting" document prepared by the NSW Government Architect in 2017 entitled Better Placed - An integrated design policy for the built environment of New South Wales ('Better Placed'). The findings of Horton C in Zammit v Inner West Council [2019] NSWLEC 1074 ('Zammit') were called upon to support Council's evidence in regard to good design. Closing submissions from Ms Rose (Respondent's Outline Submissions ('ROS') at para 22 and 23), suggested the proposal was of "poor design quality".
2. More particularly, Ms Hunter's evidence is that the adopted design solution does not adequately balance the site constraints and opportunities and results in multiple flow-on design problems (Ex 2, page 19), and a design form that is "'fighting' the site geometry" (ibid, page 20). These "problems" are, as suggested by Ms Hunter, essentially the suggested deficiencies include encroachments of private open space into the Bent Street setback, loss of a significant tree ('T23') as a contributor to the important "garden setting" within which the site is placed, inadequate landscaping in the interface to the boarding house to the south, deficiency in deep soil, deficient building separation and consequent amenity impacts, and what was described as avoidable "life cycle" deficits for the development overall.
3. Council pointed to the emphasis on good design, of itself, in the DCP. The aims of Part 6 of the DCP (concerned entirely with multi housing development) and in particular aim (viii) was referenced: "Encourage housing of the highest possible architectural, environmental and amenity standards".
4. A (draft) document, also prepared by the Government Architect, called Better Methods - Evaluating Good Design - Implementing Better Placed Design Objectives into Projects ('Evaluating Good Design') was also raised by Council. Ms Hunter suggested new evaluation considerations arose with the two Government Architect documents, referencing the decision in Zammit in support (Ex 2, p11): "The structure of the (Council's contention related to design quality) lays out the policy pathway as regards urban design consideration of the new Objects of the Environmental Planning & Assessment Act 1979 (EP&A Act) and includes recent NSWLEC judgement Zammit v Inner West Council [2019] NSWLEC 1074 which at pars [43-51] establishes that a pathway exists that requires the Objects and their supporting policies be considered."
5. The joint report of the planners and urban designers included an evaluation of the proposal, by Ms Hunter, using Evaluating Good Design (Ex 2 (pages 15-17). This evaluation found many failings with the proposed design. Ms Hunter's view was that a sound design conception process (involving closer consideration of documents such as Better Placed would have resulted in a development proposal more aligned with the object at s 1.3(g) of the EPA Act. Ms Hunter provided in the joint expert report an alternative design (conceptual only) which involved a single building envelope facing Newark Crescent (Ex 2, unnumbered appendix). Ms Hunter was indicating that an alternative was available which could align with Better Placed.
6. Below I quote from Ms Rose's outline of submissions (ROS, excerpts from paras 6-10), to indicate what I see as a synthesis of Council's position with respect to design quality: "6. Ms Hunter sets out in detail in her evidence how she has come to the conclusion that the development in its current form is not of a high architectural standard, as required by the aims and objectives of the DCP. She has explained in detail how she has assessed "good design", by reference to the NSW State Policy Better Placed ("Better Placed"). Ms Hunter's rationale is detailed and fully set out in (Ex 2). 7. In the Council's submission, the Court should give weight to the Better Placed Policy and the analysis Ms Hunter has undertaken to reach her conclusions on the design and consequential impacts of the proposal. Ms Hunter's analysis is not merely subjective, it is based on the outcomes for design strategically set by the NSW Government. The Court can give weight to non statutory documents… (Direct Factory Outlets Homebush v Strathfield Municipal Council [2006] NSWLEC 318 [25]-[26]… 8. Better Placed contains objectives for good design and in effect gives meaning to the references to high architectural standards in the KDCP. Better Placed is not a subjective analysis of what one architect considers to be good design, it is a State Policy representing the strategic approach of the NSW State Government (see the criteria for assessment on good design "whether the opinion is mandated by a design code" in the planning principle Architects Marshall v Lake Macquarie City Council [2005] NSWLEC 78 [38]). 9. In the Council's submission, the proposal does not satisfy the aims of Part 6, in particular, aim (viii). The design also fails to meet the objectives in KDCP: a. objective 4 of Part 6C.8; b. objectives 1, 4, 5, and 6 of Part 6A.1 - Local Character and streetscape. 10. The proposal is not well designed and of high architectural quality. The proposal will result in an outcome that presents poorly in its relationship to surrounding development, particularly the boarding house at 2 Newark Crescent, and will not contribute to the local character of the area because of the failures in landscape design."
7. The position of the applicant's experts can be summarised as that the Government Architect documents had little or no relevance to the evaluation of the proposal, but the principles embodied in the documents were in any event accommodated by the proposal.

Consideration

1. I agree with Council on the importance of good design, including its capacities in regard to problem solving on sites with constraints. I might go further and say design, along with innovative cross-disciplinary thinking in social, environmental and economic fields, are needed to open up new ideas on how many of the inter-related objects of the EPA Act, may be achieved creatively.
2. However, even if I were bound by it (Segal v Waverly Council (2005) 64 NSWLR 177; [2005] NSWCA 310 at [95]), I do not see that Zammit (at [43-51]) might establish any additional "requirement" (see quotation at [25] above] to consider s 1.3 of the EPA Act or the referenced documents prepared by the Government Architect. At [50] in Zammit there is a comment, in obiter, from Horton C in regard to intention on the part of the Department of Planning and Environment ('Department'), as "publisher" of Better Placed. "Given the aspirational nature of the document, it may be that the value of Better Placed, and its associated design guides, manuals and case studies, lies in its potential to be a resource for those in the business of procuring design services, or planning to undertake development. It is also clearly intended by its publisher, the Department of Planning and Environment, to be an adjunct document that provides principles and guidance for parties delivering on object (g) of the EPA Act including, presumably, to consent authorities when exercising their function as a decision maker in relation to development applications, pursuant to s 4.15 of the EPA Act."
3. With due respect to the Department, there is no suggestion in Zammit, nor of course any statutory basis to suggest, that an "intention" of the Department might bring any "requirement" in regard to the DA evaluation process such as that underway here. I also note Commissioner Horton's judgment in Zammit at [54] which might be thought of as the Commissioner's conclusion on the point: "Good design is not exempt from being assessed for its compliance with the objectives and requirements of any relevant local environmental plan and development control plan, as found at [45] Totem Queens Park Pty Ltd v Waverley Council [2004] NSWLEC 712. Instead, it does seem reasonable to expect that good designers should find the opportunities that lie latent within planning controls, which less-good designers may fail to find when faced with the same constraints."
4. The first sentence at [54] in Zammit restates a Court planning principle from Totem Queens Park Pty Ltd v Waverley Council (2004) 140 LGERA 406; [2004] NSWLEC 712 ('Totem') at [45] which holds that any requirements to consider LEP's and DCPs remain in-tact, notwithstanding a claim, or indeed the embodiment, of "good design", within a proposal. This was the scenario suggested by the applicant in Zammit. The case before me is clearly distinguishable from both Totem and Zammit on that front, with Council suggesting in the case before me that the application does not embody good design. At the second sentence at [54] in Zammit, the Commissioner then links back to existing planning controls, rather than pointing to any requirement to consider proposals under the Better Placed document for example.
5. The examination of the relevance of Zammit to this case, would seem to confirm the existing system of planning controls (principally through LEP's and DCPs) as the appropriate point of attention in the evaluation of proposals such as that before me, with the Government Architect's documents as aids to support improvements in such local policy documents. I further note that this seems to be the stated intention in Better Placed where it indicates at p19 in the section "How to use Better Placed": "Local Government can use Better Placed to help structure their own design and evaluation skills. Better Placed provides a framework to support and develop tools for better design outcomes through locally based policies and initiatives."
6. I don't see any associated diminishment of the importance of the EPA Act's object relating to the promotion of "good design and amenity of the built environment". Locally based policies and initiatives can be expected to align with this object, as does the DCP which is active in the current evaluation. In addition, there is capacity to raise design quality as a consideration under the wider aspects of the evaluative framework at s 4.15(1) of the EPA Act, such as subclause (e), the public interest. With this in mind, I will make some further remarks about the design evaluation process under Evaluating Good Design outlined in Ms Hunter's commentary (Ex 2 (pages 15-17).
7. I found the draft document and Ms Hunter's commentary thought-provoking, shining a light on the importance of the "connection between", as much as, individual design objectives themselves (something which can be missing in the sometimes isolation of issues in the evaluation process). However, the draft document has a very wide brief (in regard to both development typology and scale) which can make things cumbersome when used for an individual project. One obvious factor is that an evaluation of a development proposal, under it, would depend on weights given to different factors, and the scale which one was to adopt as to outcomes sought. More particularly, the findings of "inconsistency" (with the nominated objectives) were justified, in Ms Hunter's commentary, on the basis of the arguments put in regard to the issues of landscape and streetscape character and amenity which are, otherwise, the subject matter in this case. That is to say, there was argument, and different opinion, within the expert evidence on the very particulars which Ms Hunter relied upon for her evaluation conclusions, which ultimately led me to find these conclusions unconvincing of themselves. In turn my conclusion here is to find as overstated Ms Rose's submissions to suggest a clear "objective", rather than "subjective" process, had been applied to proposal, under Evaluating Good Design (ROS, para 7). Design involves subjectivity and, notwithstanding the value of the Government Architect documents, in this matter it is reasonable and necessary to give consideration to different opinions on priorities and anticipated outcomes. This occurs in the consideration of the evidence on the remaining two issues (below).
8. I also note here, briefly, that it seemed a considerable part of Ms Hunter's evidence to suggest that an alternative was available which would provide a better response to site constraints (and which, it might be assumed, could embody good design) - a single building of five dwellings facing Newark Crescent. I note here that the proposal before me does include the two buildings and my job here is to "to consider and determine the development application that has been made" (Nessdee Pty Limited v Orange City Council [2017] NSWLEC 158, at [81]).

Policy provisions

1. The LEP's R3 - Medium Density Residential zone objective under contestation is that relating to "(providing) a transition between low density residential housing and higher density forms of development".
2. Part 6A.1 of the DCP, concerned with "Local Character and Streetscape", has the following objectives: "1 To improve the design quality of multi-dwelling housing. 2 To provide a successful transition between higher and lower density development. 3 To ensure that the development contributes to the greater Ku-ring-gai landscaped character of buildings within a landscaped garden setting and surrounded by canopy trees. 4 To provide developments that are sensitive to, conserves and enhances the built environment, landscape setting, environmental conditions and established character of the street and locality with particular reference to integration of: i) architectural themes; ii) building scale and setbacks; and iii) landscape themes. 5 To ensure development provides a positive contribution to the public domain and all areas shared by the community. 6 To maintain the visual, scenic and environmental qualities on visually prominent sites."
3. I accept Council's evidence and Ms Rose's submissions (ROS at para 22 and 23) that there is a common theme to the DCP provisions applying to multi-housing development in Ku-rin-gai. It gives emphasis to a desired local character comprising of buildings within a landscaped garden setting and surrounded by canopy trees. Some of the provisions (eg 6A.3 Objective 1) suggest "dominance" of canopy trees. That is to say there is evidence of a quite consistent, purposive effort in the DCP content, concerned with maintaining what is described as the garden character in areas within Ku-rin-gai where multi-dwelling housing is otherwise permissible.
4. Some of the more pertinent consequential controls from the DCP are reproduced below: "6A.3 BUILDING SETBACK 1 Multi-dwelling housing developments are to meet the following street setback requirements, … i) a minimum of 10.0m from the Primary street boundary; ii) on corner sites a minimum of 8.0m from the Secondary street boundary with a 6.0-8.0m articulation zone. No more than 40% of the articulation zone is to be occupied by the building. Side and rear setbacks 2 A minimum setback of 3.0m is to be provided from any side boundary where the side elevation has non-habitable rooms only. Where a pedestrian pathway is located within this type of sidesetback, the minimum side setbacks are to be increased by the width of that path. 3 Where the dwellings are oriented towards side boundaries and/or have openings to habitable rooms towards side boundaries, the setback is to be a minimum of 6.0m. 4 A minimum setback of 6.0m is to be provided from the rear boundary. For corner sites one boundary is to be nominated as a rear boundary. … Encroachments 8 Ground floor private terraces/courtyards may encroach into the required street, side and rear setback areas only where deep soil landscaping requirements are met. The encroachments are to retain a minimum setback to the courtyard wall of: i) 8.0m from the Primary street boundary; ii) 4.0m from the Secondary street boundary; iii) 3.0m from any side boundary; and iv) 4.0m from the rear boundary … 6A.6 DEEP SOIL LANDSCAPING 1 Multi-dwelling housing development is to have a minimum deep soil landscaping area of 40% of the site area provided within common areas only. … 3 Deep soil zones are to be configured to retain healthy and significant trees on the site and adjoining sites. 4 Deep soil areas for tree and screen planting are to be as follows: i) provided within setback areas to all side and front boundaries; ii) be a minimum width of 4m along the rear boundary. This is to be within the common area if it is located at the rear of the development. 5 Deep soil landscaping is to support the planting of substantial trees to the streetscape. Tree Replenishment and planting 9 Lots are to support a minimum number of tall trees capable of attaining a mature height of at least 13m on shale, transitional soils or 10m on sandstone derived soils, as detailed in Figure 6A.6-1: … (one "tall tree" per 350m2 of site area or part thereof applies to the subject site - which would require a total of 4 such trees given the site area of 1,321.5m2) 10 In addition to the tall trees, a range of medium trees, small trees and shrubs are to be selected to ensure: i) that the streetscape presents as buildings within a tall tree canopy setting; ii) that vegetation creates a garden setting and can be viewed from the buildings onsite."
5. The provisions of SEPP Vegetation at [12] were also seen by Council as supportive of the DCP ambitions. The aims of this policy are, as follows: (a) to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and (b) to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation.

Evidence

1. The following summarises the generally uncontested evidence in regard to the proposal's relationship to the numerical controls within the DCP on this topic:

• The proposal provides for five additional trees, which exceeds the "tall tree" requirement of three (additional) trees applying to the site (given the retention of one existing tree).
• The deep soil landscaping area is 36.5% and thus under the DCP requirement of 40%.
• A stormwater drainage pipeline (600mm wide) offset and parallel to the rear boundary prejudices the achievement of the numerical control requiring 4m deep soil along the rear boundary.
• The private courtyards to Units 1-3 in the northern building, which face out onto Bent Street, the "primary street" frontage, encroach notably beyond the applicable 8m control. There is a kind of "sawtooth" effect evident of this encroachment, associated with the angled configuration of the site.

1. I now turn to the positions of the parties' experts in regard to the more qualitative considerations.
2. There was general agreement from Council's experts on the adequacy of the proposed building setback (as opposed to courtyard setback) and landscape treatment in regard to the Bent Street and Newark Crescent frontages. Here Council seemed to acknowledge: (1) general compliance with the primary building setback provisions in the DCP, (2) retention of the canopy tree known as T1 a large Lilly Pilly at the Newark Crescent boundary, (3) proposed five new plantings qualifying with "tall tree" requirements of the DCP, and (4), acceptability of the particulars of the other proposed planting.
3. Council's central concern in regard to landscape character was with the rear or southern boundary treatment. This boundary is shared with a new boarding house development which does not have strong existing boundary landscaping, with the exception of one pre-existing Crepe Myrtle tree which was retained within the boarding house site.
4. An existing canopy tree in this southern area of the subject site (known as T23, an English Oak), identified by the experts as of high landscape significance, would be lost with the development, and because of the significant drainage work required in this southern area of the site, there was no capacity for canopy tree replacement here. Ms Rose summarised the concerns raised in the evidence as follows (ROS, para 26): "The removal of the canopy tree is problematic because it removes a tree that is characteristic of Ku-Ring-Gai's garden character, and would provide relief between buildings and contribute to the treed landscape, seen from a distance in some locations. The loss of a canopy tree in that location is the loss of the amenity delivered by a tall tree between sites. Moreover, the removal is problematic because the proposal cannot achieve landscaping in the area the tree is to be removed from that provides the same amenity that T23 presently provides. No replacement canopy tree will be able to be established in the rear setback area, and the rear setback does not provide the opportunity for any substantial planting due to the encroachments of the private open space of the units into the rear setback area."
5. The applicant's experts acknowledged the loss of this tree. But instead gave emphasis to the generally uncontested position that the proposed development would provide for an improved overall landscape outcome than existed at present. Mr Ollerton and Mr Minto indicated that: "Whilst (T23) is identified as having a high landscape significance, this is not the only consideration when determining whether this tree should be retained as part of a development proposal. The site has been considered in its entirety to determine which trees are of a priority with respect to the exiting site conditions, neighbouring development impacts, existing services infrastructure balanced against achieving the objectives of the zone." Mr Ollerton further indicated that: "… when designing a site and undertaking a site analysis, all factors need to be considered when determining a suitable development proposal and its response to the local planning controls and tree retention is not the only consideration for site planning when developing a site. In this instance, the value of (T23) has been considered in relation to all of the site constraints and its loss is offset by the positive contributions resulting from the proposed development."

Consideration

1. In my understanding, the key area of concern with regard to the loss of T23, as articulated by Mr Marquet in oral evidence, is the experience of the vista (or sightline) available to members of the public, approaching the site from the south, when moving along Newark Crescent towards Bent Street. A view across the rear of the site (along a north-eastern viewline) would reveal the proposed building massing (ie above the now proposed 4-6m high plantings along the southern boundary within the site and any landscaping in the adjacent boarding house site at 2 Newark Crescent). The Crepe Myrtle (T22) at 2 Newark Crescent would filter this view but only somewhat, and there is not much confidence in further plantings in the frontage area of the boarding house site.
2. A second major area of concern was the deleterious effect on background views; or, the pleasing visual experience of more distant tree canopies in the locality, which is often afforded as a consequence of retained or planted canopy trees in backyards within the locality, as mentioned by Mr Bird.
3. I also note the further concern from Ms Hunter that loss of T23 would affect the amenity within the community areas of the boarding house, but here favour Mr Minto's oral evidence (supported by reference to the approved plans) that this effect would not be substantial due to the orientation of the boarding house development (which is more to the north-east). The 4-6m high proposed planting is generally satisfactory to deal with typical privacy concerns in regard to the southern boundary.
4. I accept Council's argument that the rear setback treatment, and lack of canopy tree in this location, is a negative aspect of the proposal in light of the DCP provisions (especially in regard to Part 6A.6 - Deep Soil Landscaping Objective 2). The existence of site constraints was given considerable attention, by both sides, in the hearing. Here it is the need to relocate a quite substantial stormwater line to within the rear setback area that prejudices the landscaping opportunities in this area.
5. While the fact of the corner site (and two "frontages") also brings some constraints on development on the site, the landscaping (existing and proposed) in Newark Crescent road reserve, on this point happens to bring some positives. I give weight to the fact that there would be a relatively strong canopy tree presence, and a retained garden character, in the general vicinity. I especially note the vegetated nature of Bent Street, and when leaving Bent Street and first moving along Newark Crescent in the site vicinity, the landscape setting remains a positive. The inclusion of the proposed Jacaranda at the site's south-western corner would add a feature over time.
6. In the warmer months the Crepe Myrtle tree foliage within the boarding house site would, as it does now, take the eye along that relatively narrow site line. This is partly as a consequence of the fact that T23 is not a visually dominant tree now. I acknowledge "recent pruning" (Ex 7, p24) but also comments in evidence by Mr Paroissien, suggestion some question marks as to its vitality, and see that this tree must sit on the lower side of "high significance" in visual terms. Further, while retention of T23 would allow a continued contribution to the background canopy views, on this secondary point weight needs to go to the fact that additional future canopy trees, proposed with the development, would contribute over time. This result seems to me to be generally consistent with the aims to Part 6 of the DCP, and in particular in regard to the contentions, the provisions at items (i) and (iii), as follows: "The aims of this Part are to: (i) Ensure that development is in keeping with the garden character of Ku-ring-gai where the tree canopy dominates the landscape by making provision for quality deep soil landscaping, including: tall trees to the streetscape; in-between and to all elevations of buildings on the development site; in between buildings on the development site and on adjacent sites. … (iii) Ensure that with each development sufficient landscaping is provided to contribute to the conservation and replenishment of the tree canopy of Ku-ring-gai, including locally occurring native tree species suited to the site."
7. In turn, in regard to Part 6 aim (iv), I find that the proposal would minimise the impact on the natural environment.
8. For the same reasons I find that the objectives of Section 6A of the DCP, in regard to local character and streetscape are achieved.
9. I have had regard to SEPP Vegetation. It does not seem to be contested that any of the policy's provisions would prevent approval of the application. I have noted the aims of SEPP Vegetation when coming to my conclusions in regard to T23.
10. The loss of T23 and lack of a canopy tree presence in the rear setback, to better present the "garden character" from the north-eastern viewline when moving along Newark Crescent towards Bent Street, would be momentary and is not determinative in this instance. Overall, the proposal is satisfactory in regard to questions related to landscape and streetscape character.
11. The question of the encroachment of the courtyards of Units 1, 2 and 3 into the Bent Street building setback area brings a different point of attention. This non-compliance was significant in numerical terms (DCP control 8m with the fencing alignment a proposed minimum of about 5m as scaled from plans at Ex A). I note that Council was generally satisfied with the landscape treatment within the Bent Street frontage area, a factor obviously central to the objectives of (the relevant) Part 6A.3 of the DCP. Council pressed the concern about the setback encroachment nonetheless, noting that the recently approved and now under construction multi-unit housing development adjacent (18-20 Bent Street) has similar private courtyard areas which comply with the setback standard. Ms Hunter noted an unobstructed 8m setback was required and observed that a 15m building setback existed further to the west along Bent Street.
12. I agree with Council's evidence that the encroachment of the courtyards into the Bent Street building setback zone, in this quite prominent location, is a serious failing of the proposal. Given the context, the construction of the 1.8m high fencing within the front setback area would prejudice the transition sought in the R3 zone objective. I note that Ms Hunter also questioned the utility of these grassed areas.
13. The configuration of these courtyard areas, within Units 1, 2 and 3, is idiosyncratic. A little more than half of the area within each unit, shown in the plans as occupied by a dining table and seating, comprises a hardstand area close to indoor living areas. These hardstand areas are all setback the required 8m under the DCP. The encroaching areas are shown as grassed and also include some planting. There is a step down to them from the hardstand areas.
14. On behalf of the applicant, Mr Baird stated, in closing submissions, that if the Court had a concern in regard to the encroachment of the courtyards and their fencing, he wished to seek leave for the Court to determine to have the grassed (encroaching) areas of the courtyards included as part of the setback area (ie removed from private open space and added to communal space). A consequence of this would be that no fencing or private space would encroach onto the setback area.
15. I would not support the application with the suggested encroachment of the courtyard areas and fencing at Bent Street. Were it the only concern with the proposal, an amendment such as that suggested by Mr Baird could be made.

Policy provisions

1. A factor triggering a number of the Council's concerns in regard to the internal amenity available to future residents was the proposed separation between buildings; and non-compliance with a set of controls aimed at directing amenity outcomes. The numerical controls (DCP Part 6A.4) are reproduced below: "i) 12.0m (separation) between habitable rooms/balconies; ii) 9.0m between habitable room/balcony and non-habitable room; iii) 6.0m between a habitable room and a blank wall; iv) 6.0m between non-habitable rooms; v) 6.0m between a blank wall and a non-habitable room; vi) 4.0m between blank walls."
2. Selected other DCP controls relevant to internal amenity outcomes experienced by residents are reproduced below.

Solar access (DCP Part 6C.3) "All dwellings are to receive a minimum of three hours direct sunlight to the living room and/or dining room, and to the Primary private open space between 9am and 3pm on 21st June."

Cross ventilation (DCP Part 6C.12) "All dwellings are to have natural cross ventilation. Building designs (plans, sections) are to demonstrate the potential for cross ventilation."

Visual and acoustic privacy (DCP Part 6C.12) "Buildings are to be designed to ensure privacy to other onsite dwellings and to neighbouring properties. In addition to design options outlined in Part 23.8 and Part 23.9, design measures may also include: i) off-setting balconies in relation to adjacent balconies; ii) using recessed balconies and/or vertical fins between adjacent private balconies; iii) using louvres/screen panels to windows and balconies; iv) incorporating planter boxes into walls or balustrades to increase the visual separation between areas; v) utilising pergolas or shading devices to limit overlooking of lower building levels or common and private open space. 2 Continuous transparent or translucent balustrades to private open spaces are not permitted to balconies/terraces/courtyards. 3 Screening between dwellings is to be integrated into the overall building design. 4 Landscaped screening is to be provided to neighbouring properties. 5 Any screens for achieving visual privacy to habitable rooms cannot be fixed in place and impede their function of the opening to provide daylight, ventilation or outlook from the internal space."

1. A further primary issue raised by Council in regard to internal amenity was private open space. Pertinent controls included the following (DCP Part 6C.2): "A minimum private open space of 25.0m2 internal dimension is to be provided to each dwelling within the multi-dwelling housing development, …. The private open space is to: i) have a minimum internal dimension of 4.0m; ii) have direct level access from the living/dining area; iii) provide a consolidated paved area of 12.0m2 and a minimum width of 3.0m to accommodate a table and 6 chairs directly accessible from the living/dining area; iv) provide a 4.0m2 minimum landscaped area/planter bed for gardening."
2. Concerns and relevant DCP provisions relating to building entries and pathways and internal landscaping opportunities in common areas (DCP Part 6C.7) were also raised.

Evidence

1. The building separation issue was focused on the relationship between the northern block (Units 1-3 located closest to Bent Street) and the southern block (Units 4-6 to the rear). There was a staggering of the building separation between the two blocks, associated with the angling of the site. The plans (Ex A) indicated building separations down to a minimum of 4.01m and 5.82m at the ground floor. But it was the first floor which seemed to the area of most attention, where minimum building separation distances of 3.70m and 4.90m are indicated on the drawings (Ex A, drawing DA103). Council was concerned in particular in regard to the first floor north-facing living areas or "wintergardens" proposed within Units 4 and 5 and the near façade of Units 1 to 3. At the first floor, it was bedrooms in Units 1 to 3 which were located closest to these wintergardens in Units 4 and 5. The bedrooms had highlight non-opening windows at that façade, closest to the Units 4 and 5 in the southern building. Relevantly (and again associated with the angling of the site), for Units 2 and 3 there were openable windows to the side which looked out to the west and away from the wintergardens in Units 4 and 5. These windows had privacy louvres.
2. Ms Hunter's evidence was that internal building setbacks represented a "poor urban design outcome" (Ex, page 38): "Exacerbating the impacts is the conflict with the planning layouts that locate living rooms elevated above ground level, directly opposite bedrooms. Furthermore, these living rooms are proposed to be substantially open in a bid to resolve the private open spaces that do not achieve sufficient solar access amenity." Ms Hunter generally saw a compromised amenity in the current layout as a consequence of the concentration of noise, and the "walled character" of the entry to individual units.
3. Mr Ollerton believed the offsetting configuration embodied in the layout as well as louvre and glazing treatments provided for in the design meant that amenity concerns were addressed. While observing the non-compliance in numerical terms, on the question of acoustic privacy, he did not see much difference between a proposed 5m and say 8m or even 10m in terms of potential distance-related noise attenuation. He also saw the opportunity for cross ventilation through mechanical ventilation systems for the bedrooms in Units 2 and 3, meaning that windows could be kept closed. A draft consent condition was posed to effect this. Mr Baird submitted that the design strategy meant the 6m (or blank wall) DCP control was the appropriate one to adopt in regard to the separation between the winter garden areas and bedrooms (rather than the 9m or 12m DCP control - see [63]) as there was no opportunity for overlooking.
4. In regard to solar access it was agreed that Units 1, 2, 3 and 6 met the controls. Units 4 and 5 did not meet the controls at the ground level, but the winter gardens at the first floor level would satisfy the solar access requirements.
5. In regard to private open space, Ms Hunter observed that the proposed development comprised five dwellings with four bedroom and believed it reasonable to require the full private open space requirements, or very near to it, especially for dwellings of this size. Ms Hunter believed exclusion of the "soft landscaping" areas of private open space in Units 1-3, as considered at [60]-[62]), would result in a significant deficiency in private open space, and little effective opportunity for clothes drying. Mr Minto thought exclusion of the these areas was "getting towards the minimum" in regard to private open space, but thought the exclusion of this soft landscaping area within Units 1-3 unnecessary in any event.

Consideration

1. There are obvious non-compliances with the DCP numerical standards in this application. The two most obvious are in regard to building setbacks between the northern and southern buildings and private open space for the northern building were the (setback encroaching) grassed courtyards areas to be excluded.
2. On balance, I favour the applicant's arguments in regard to the questions of non-compliance and ultimately the adequacy of the internal amenity available with the proposal. This conclusion relies on s 4.15(3A) of the EPA Act, and the requirement for me to be "flexible in applying (DCP) provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development". Below I reference the relevant objectives of the DCP and my findings in regard to whether they are achieved notwithstanding non-compliance with standards.

Building separation

1. The relevant objectives are at Part 6A.4 of the DCP: "1 To ensure buildings are set within a garden setting dominated by canopy trees which soften the built form and maintain the garden character of Ku-ring- gai, particularly to the street frontage. 2 To provide effective deep soil areas that enable a garden setting, including substantial trees and canopy, to all sides of the building within the site. 3 To reduce the visual bulk of buildings within the site when viewed from the street. 4 To provide residential amenity including visual and acoustic privacy, natural ventilation, solar access, daylight and outlook. 5 To provide suitable areas for communal open spaces, private open spaces and deep soil zones."
2. At [48]-[57] above, an evaluation of the questions of landscape and streetscape character has been undertaken. This has included consideration of garden setting, deep soil, and landscaping within building setback areas (on the point of visual bulk also noting that the buildings proposed are considerably under the applicable height controls). This evaluation found positively in regard to the proposal with respect to such matters [57]. This evaluation draws me to the conclusion that objectives 1-3, above are achieved with respect to external aspects. Further attention to internal landscaping is given when this issue is more directly under attention, commencing at [79]. The matters at Objectives 4-5, relating to specific amenity aspects are considered under the more specific controls, below.

Private open space

1. The relevant objectives are at Part 6C.2 of the DCP: "1 To provide adequately sized private outdoor areas with a high level of amenity for residents to enjoy outdoor living. 2 To provide private open spaces that are integrated into the overall design of the development. 3 To ensure that private open space design allows views and passive surveillance of the street and communal areas. 4 To provide for the safety, visual and acoustic privacy of residents both within the development site and between neighbouring properties. 5 To ensure the site character is not dominated by dividing fences, walls and access paths and the internal site character is one of dwellings within a predominantly landscaped setting."
2. Given my conclusion that the encroachment of private areas into the Bent Street setback is unacceptable, the key question here is the adequacy of the (remaining) area of the private outdoor areas in Units 1-3 of the northern building. In evidence it was clear that there was ample space for outdoor dining with some room left over, potentially for (wall-hung) clothes drying. I also noted, and agreed with Ms Hunter's evidence that the encroaching open space areas (ie those which would need to be included in community open space) were of questionable utility for individual unit owners.
3. The persuasive point for me is in regard to Objective 1 and the high level of amenity that could be expected from these north-facing open space areas notwithstanding their size. In regard to Objectives 2-3, the spaces obviously integrate well with the living areas within the units and enjoy very pleasant outlooks to the unusual wooded public land across Bent Street including tall canopy trees. There is also potential for passive surveillance of Bent Street and communal land. Objective 4-5 are considered in regard to the more specific topics below.

Building entries, pathways and site character

1. Apart from Objective 5 at Part 6C.2 of the DCP, pertinent objectives are at Part 6C.7 of the DCP, as follows: "1 To ensure the site and building entry is clear and provides an identifiable element in the street. 2 To ensure the building entry contributes positively to the streetscape and building facade design. 3 To ensure dwelling entries are close to and relate to natural ground line at street level and within the site. 4 To ensure that a high level of amenity is provided to pedestrian links within the development. 5 To ensure the amenity of adjoining building courtyards is not compromised by pedestrian flow through the site. 6 To soften the impact of hard landscaping within the site. 7 To ensure all pathways are safe and accessible."
2. My understanding is that the entry off Newark Crescent is now acceptable to Council. The key concern here is that rather than residents walking into or around the site, or viewing into common areas from within their dwelling, experiencing a setting "of dwellings within a predominantly landscaped setting", the experience would be of buildings dominating and no "meaningful landscaping" between them.
3. Mr Overton thought these concerns overstated, and argued that there is sufficient landscaping through landscape beds located in a "considered" manner, providing for amenity in pedestrian links.
4. I agree with Mr Overton that Council's concerns here are overstated. The angled site configuration (related to site geometry), and adopted turns in pathways and juxtaposition of buildings, with some strategically located landscaping, combine to provide some visual interest as an amenity factor, when compared with more linear configurations. This offsets to some extent the spatial deficiency for landscaping.
5. If the concern in regard to "internal site character" is the experience of the internal pathway, it cannot be seen that the second part of Objective 5 at Part 6C.2 of the DCP is met (experiencing a setting "of dwellings within a predominantly landscaped setting" see [76]). However, this is countered by the wider "garden setting" of the locality, including the proposal's 6m landscape setback to Newark Crescent and provision of "replenishment" canopy planting. A related factor in favour of the proposal on this point, is the small scale of the proposal, which means there is no lengthy internal walking to dwellings and, as such, the "outside" garden setting is always reasonably close and apparent.

Solar access

1. The relevant objectives are at Part 6C.3 of the DCP: "1 To provide adequate sunlight to all dwellings. 2 To ensure a high level of internal amenity for occupants. 3 To provide adequate access to daylight in all habitable rooms. 4 To minimise overshadowing of living areas and private and communal open space areas within neighbouring developments. 5 To minimise the impact of development on existing solar collection devices. 6 To provide adequate shading in summer."
2. I understand the proposed alternative solution was agreed as effective on the question of solar access, but brought an internal privacy concern which is considered below. At this point I can confirm my view that the upstairs living areas, in Units 4 and 5, are integrated satisfactorily with the rest of the internals and present as a pleasant place to enjoy the sun during winter.

Visual and acoustic privacy

1. The relevant objectives are at Part 6C.12 of the DCP: "1 To ensure high standards of visual and acoustic privacy to habitable rooms and private open space both within the development and to neighbouring developments. 2 To ensure building elements are well designed and integrated into the overall building form."
2. I accept the applicant's evidence that potential concerns in regard to visual privacy are addressed in the application through the use of louvres, and the offsetting and direction of outlook of windows. It is clear that the DCP controls anticipate attenuation of potential privacy impacts through the use of such means. In regard to acoustic privacy, Mr Ollerton's evidence was that the windows in these units would be closed if it got too noisy and that distance attenuation is not significant over distances of the scale involved here. While there was no specialist acoustic evidence on this question, Mr Ollerton's view was not contested and I think is generally acknowledged as common sense that a small amount of extra distance is of no great help in regard to noise mitigation.
3. Ms Hunter was concerned that closing the windows in the bedrooms to Units 1 and 2 due to the noise from the opened-out winter gardens, say late at night, meant on over-reliance on air conditioning with sustainability implications. The linking of this sustainability concern, with noisy use of upstairs wintergarden/living rooms, is tenuous in my view. While sometimes difficulties arise, neighbours can be expected to self-manage annoyances of this kind, and the attraction of this sunny upstairs area of course wains in the evening. It seems to me to be a design attribute, related to the site "geometry" and building configuration response, that the opening bedroom windows are angled away from the winter gardens, also allowing views out from the site into the surrounds.

Conclusion

1. The Council has serious concerns about the design attributes of the proposal. The proposal is pragmatic in its design schema. This should not be seen as an affront to the DCP's ambitions, in particular aim (viii) to Part 6; which is internally focused at "encouraging" rather than always achieving "housing of the highest possible architectural, environmental and amenity standards". The DCP sits under the provisions at s 4.15(3A) of the EPA Act, and its statutory requirements to be flexible and allow reasonable alternative solutions which achieve DCP objects, something I have found the proposal to generally achieve in areas of numerical non-compliance.
2. More broadly, there is a zone objective to meet the housing needs of the community, a major issue for Sydney. This location is well suited given its accessibility and high levels of background amenity. The proposal also meets the second pertinent zone objective in providing for an appropriate transition between low density residential housing and higher density. It does so, as a consequence of its proposed landscape treatment; without compromising the garden character of the locality. I would also note my conclusion here that the architectural treatment of the buildings is acceptable rather than jarring in the streetscape, and would be softened by the intended landscaping on all boundaries.
3. On the question of internal amenity, and based on the above review of the evidence, I disagree with the view that the proposal would have unreasonably compromised amenity, or building life cycle deficiencies, as a consequence. The capacity for amenity to be enjoyed by future residents of these dwellings in this small development is considerably more likely to be high than otherwise.
4. For the above reasons, it is appropriate to grant development consent subject to the amendment of plans to remove the encroachment of private open space areas into the Bent Street setback area [61]-[62]. The parties have already filed agreed without prejudice conditions with the Court.
5. The changes were not suggested as complex and it was apparent that there had been some discussions on the particulars between the parties during the course of the hearing. It is now appropriate for the parties to confer and endeavour to agree to amendments which remove the encroachment of private open space areas into the Bent Street setback, including directly consequential amendments including to conditions. Upon receipt of the amendments I will make final orders in chambers. The directions below allow opportunity to settle outstanding matters should they arise.
6. The Court directs that: 1. The parties are to confer in regard to amendments to the plans with a view to finalising agreed plans resulting from the findings of the Court at [92]. 2. If an agreement is reached on plan amendments referred to in (1) above, the plans are to be filed with the Court before 4:00pm 28 April 2020. 3. If no such agreement is reached, the parties are to lodge an Online Court request as soon as practicable, and before 12:00pm on 29 April 2020, setting out agreed available dates for a further court mention. 4. Liberty to restore is granted on two days' notice. 5. Exhibits returned with the exception of 2, 7, A, D and E.

Addendum made on 18 June 2020

1. In accordance with the directions in paragraph [94] of my judgment delivered on 14 April 2020, the parties have provided me with a copy of the agreed draft conditions of consent and amended plans. Having formed the view that they accord with my reasons for judgment, I am now satisfied that consent should be granted.
2. Accordingly, the final orders of the Court are: 1. The applicant is granted leave to amend the application to accord with the plans referenced at Condition 1 in Annexure A. 2. The appeal is upheld. 3. Development application DA0130/18 seeking consent for demolition of existing structures and construction of a multi dwelling housing development comprising six dwellings, basement car parking and associated works is approved subject to the conditions set out in Annexure A.

Commissioner of the Court Annexure A (367927, pdf) Plans Part 1 (15586527, pdf) Plans Part 2 (13038992, pdf)

Amendments 22 June 2020 - See Addendum at [95]-[96]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 June 2020