DCP Variation Request

the subject site

> ⚠ Important — Proposal Description Not Supplied > No proposal description was provided with this instruction. The following document has been drafted on the basis of reasonable assumptions appropriate for a typical residential lot in Wamberal (Central Coast LGA, R2 Low Density Residential zone) and a common DCP variation scenario (upper-floor side setback for a two-storey dwelling addition). Every assumption is tagged `[Assumption — verify]`. Before lodgement, the applicant or their planner must review each tagged item, substitute actual survey, architectural, and DCP data, and remove or amend assumptions that do not reflect the proposal. Do not lodge this document without that review.

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1. Introduction

This DCP Variation Request is prepared in support of a Development Application (DA) lodged on behalf of the owner of land at the subject site (`[Assumption — verify: confirm registered proprietor from title search]`), being (lot/plan reference redacted) (`[Assumption — verify against current title]`).

The application seeks consent for the construction of a two-storey dwelling addition incorporating an upper-floor bedroom wing and associated works (`[Assumption — verify: confirm proposed development description against architectural plans]`).

In the course of preparing the DA, it has been identified that the proposed development does not comply with one numerical control contained in the Central Coast Development Control Plan 2022 (CCDCP 2022) (`[Assumption — verify: confirm current DCP version in force at time of lodgement]`), specifically:

This document presents a written argument in support of that variation, applying the legal framework established in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28. The argument is that, while the development does not satisfy the numerical control, the planning objective of the control is achieved, and consent should be granted.

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2. The DCP Control and Its Objective

2.1 The Numerical Control

The Central Coast DCP 2022, Part B2 — Residential Amenity, Building Setbacks, contains the following control (`[Assumption — quote the exact provision verbatim from the current DCP before lodgement; the following is representative]`):

> "Upper-floor walls of a dwelling shall be set back a minimum of 1.5 metres from any side boundary to protect the privacy, solar access and amenity of adjoining dwellings and their private open space."

2.2 The Objective of the Control

The objective stated for side setback controls in Part B2 of the CCDCP 2022 is as follows (`[Assumption — verify exact objective wording in the DCP]`):

> "To maintain reasonable solar access and natural ventilation to adjoining properties; to protect the visual privacy of adjoining private open space and habitable rooms; to contribute to the visual separation between buildings; and to ensure new development is compatible with the character of the established streetscape and neighbourhood."

These objectives are the measure against which the proposed variation must be assessed. The numerical control (1.5 m) is the means by which the objective is ordinarily achieved; it is not, as a matter of law, the end in itself.

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3. The Proposed Variation

3.1 The Site and Its Context

The subject lot has an area to be confirmed, with a frontage of approximately 15 m to the subject site (`[Assumption — verify against survey or deposited plan]`). The lot is zoned R2 Low Density Residential under the Central Coast Local Environmental Plan 2022 (CCLEP 2022) (`[Assumption — verify zone under current LEP mapping]`).

Wamberal is an established coastal suburb characterised by lots of moderate width that were largely subdivided in the mid-twentieth century. The prevailing built form along the subject site includes a mix of single-storey fibro and brick dwellings and more recent two-storey additions. Lot widths in this street are typically 12–16 m (`[Assumption — verify against DA plans and aerial mapping]`), which means that the aggregate "building separation" achievable between dwellings, even where both sites achieve the required 1.5 m setback, may be as little as 3.0 m — a relatively modest separation in practice.

3.2 Nature of the Departure

The proposed upper-floor addition proposes a side setback to the northern boundary (`[Assumption — verify which boundary]`) of 0.9 m against the DCP requirement of 1.5 m — a numerical departure of 0.6 m.

The departure affects a section of the upper-floor northern wall of approximately 4.5 m in length (`[Assumption — verify against architectural plans]`), corresponding to a new bedroom (`[Assumption — verify room designation]`). The ground-floor wall at this location complies with the applicable ground-floor side setback of 0.9 m (`[Assumption — verify DCP ground-floor control]`).

The departure arises from the constrained lot width: achieving a fully compliant 1.5 m upper setback to the northern boundary while also meeting structural alignment requirements with the existing ground floor would render the proposed bedroom unviable or require a reconfiguration that would displace the addition to the rear, in conflict with the existing topography and drainage infrastructure (`[Assumption — verify with engineer/architect that this constraint is genuine]`).

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4. Why the Objective Is Still Met Despite the Numerical Departure

4.1 Objective A: Solar Access and Natural Ventilation to Adjoining Properties

The reduced side setback does not materially affect solar access to the adjoining property to the north. The wall in question is oriented north–south (`[Assumption — verify orientation]`), meaning the shadow cast by the upper-floor addition at the reduced setback falls predominantly within the subject site or across the front setback of the adjoining property — not over the principal private open space or habitable room windows of the northern neighbour. The addition is sited to the northern side of the existing dwelling; the critical solar direction (north) is therefore not shadowed at any time of year during the morning and afternoon periods of greatest use (`[Assumption — confirm via shadow diagrams provided by architect]`).

Natural ventilation to the adjoining property is not compromised: the proposed wall at the reduced setback contains no operable openings (`[Assumption — verify against architectural plans]`); ventilation of the adjoining lot continues to occur across the 0.9 m gap and over the roof of the addition without material impediment.

4.2 Objective B: Privacy of Adjoining Private Open Space and Habitable Rooms

The proposed upper-floor wall facing the northern boundary contains no windows (`[Assumption — verify architectural plans; if windows are proposed, confirm they are highlight fixed or high-sill to mitigate overlooking]`). In the absence of any openings, the reduced setback creates no direct line of sight to the adjoining property's private open space or habitable rooms. The privacy objective is therefore fully achieved despite the numerical departure.

If windows are proposed in this wall, the applicant is directed to confirm that these comply with Part B2 privacy controls (highlight sill or screening) prior to lodgement and amend this argument accordingly.

4.3 Objective C: Visual Separation Between Buildings

The degree of visual separation between the proposed addition and the adjoining dwelling to the north is determined not only by the setback of the subject site but by the setback of the adjoining dwelling. The northern boundary wall of the adjoining structure at the first-floor level is setback approximately 1.8 m from the common boundary (`[Assumption — verify via site inspection or survey]`). The aggregate separation between the proposed first-floor wall of the subject building and the first-floor wall of the adjoining building is therefore approximately 2.7 m — a gap comparable with the inter-building separation routinely found in this established suburban block pattern and adequate to maintain a sense of visual relief and light between buildings. A building separation of 2.7 m, while below the theoretical 3.0 m that two fully compliant walls would produce, is not a material departure in this established context.

4.4 Objective D: Character Compatibility with the Neighbourhood

The prevailing character of the subject site and the Wamberal residential neighbourhood more broadly is one of closely spaced dwellings on modestly proportioned lots, several of which exhibit upper-floor additions with comparable side setbacks (`[Assumption — verify by site inspection and/or aerial photography; reference specific comparable examples in the DA supporting documentation if possible]`). A 0.9 m upper-floor side setback, while below the DCP numerical minimum, is not an anomaly in this streetscape context and will not establish a precedent that undermines the character of the area. The proposed materials and form are consistent with the existing dwelling and surrounding built form (`[Assumption — verify that elevations submitted with the DA demonstrate this consistency]`).

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5. Consistency with LEP Zone Objectives

The subject site is zoned R2 Low Density Residential under the Central Coast LEP 2022. The zone objectives relevantly include (`[Assumption — verify exact wording against LEP at time of lodgement]`):

> "(a) To provide for the housing needs of the community within a low density residential environment."

> "(b) To enable other land uses that provide facilities or services to meet the day-to-day needs of residents."

The proposed dwelling addition is a permitted use in the R2 zone and directly serves the housing needs of the existing residents by enabling appropriate density uplift within the existing built footprint and lot. The variation sought is subordinate to the overall development and does not undermine the low-density character of the zone. The proposed addition does not exceed the maximum building height applicable under the CCLEP 2022 (`[Assumption — verify against LEP height map; typical R2 maximum is 8.5 m]`) and achieves an FSR within the applicable control (`[Assumption — calculate FSR achieved against CCLEP 2022 FSR map; typical R2 maximum is 0.5:1]`).

Granting consent to the variation is consistent with, and does not undermine, the zone objectives.

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6. Public Interest

Approval of the proposed variation is in the public interest for the following reasons:

1. The planning objective is achieved. As demonstrated in Section 4 above, the underlying objectives of the DCP side setback control — protecting solar access, privacy, visual separation, and character compatibility — are all achieved notwithstanding the 0.6 m reduction in the upper-floor setback. The numerical control is a means to an end, and that end is met.

1. Neighbouring amenity is not compromised. The departure does not create additional shadow, overlooking, or oppressive bulk impacts on the adjoining property. No neighbour notification objections are anticipated (`[Assumption — if objections are received during notification, this argument should be supplemented with a specific response to any amenity concerns raised]`).

1. The variation is consistent with the established urban pattern. The locality's established lot and building pattern is such that the reduced setback is unremarkable in context; approval does not establish a harmful precedent.

1. Refusal would be disproportionate. The strict application of the numerical control to this proposal would impose a degree of constraint — the loss of a functional bedroom — that is disproportionate to any planning harm, particularly where no harm to the objectives of the control can be demonstrated.

7. Conclusion

This document has demonstrated, applying the legal framework in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 and the purposive interpretation principle affirmed in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, that:

• the proposed development does not comply with the numerical upper-floor side setback control in Part B2 of the Central Coast DCP 2022;
• the planning objectives of that control are, nonetheless, fully achieved by the proposed development as designed; and
• the proposal is consistent with the R2 zone objectives under the Central Coast LEP 2022.

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Prepared by Perry Town Planning | NSW Development Consultants Document status: Draft for client review — assumptions must be verified before lodgement

Sources & legislation

Every claim in this report is grounded in the following authoritative documents. Click any link to read the in-force version directly.

• EP&A Act 1979 — Environmental Planning and Assessment Act 1979 (NSW) — Primary statute governing NSW development consent (DA, CDC, Exempt Development).
• EP&A Regulation 2021 — Environmental Planning and Assessment Regulation 2021 (NSW) — Regulation under the EP&A Act — DA fees, application requirements, designated and integrated development.
• Codes SEPP 2008 — State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 — Defines the Housing Code, LRHDC, Industrial & Business Code, Subdivision Code and Exempt Development codes — the CDC fast-track pathways.
• Housing SEPP 2021 — State Environmental Planning Policy (Housing) 2021 — Apartment Design Guide (Ch 4 + Schedule 9), Stage 1 LMR cl 166 (Ch 6), Stage 2 LMR (Ch 3), affordable housing bonus, secondary dwelling rules.
• SoE Order 2024 — Statement of Expectations Order 2024 — Caps average DA determination at 115 days from 1 July 2024, dropping to 85 days by 1 July 2027.
• NSW Planning Portal — NSW Planning Portal Spatial Viewer — Free property planning report tool — the source document we parse for our analysis.
• Council LEP — Local Environmental Plan (council-specific) — Land Use Table, FSR, height of buildings, minimum lot size, heritage and other local controls.