Foster, F C v Hornsby Shire Council [2006] NSWLEC 809

Land and Environment Court of New South Wales

CITATION : Foster, F C v Hornsby Shire Council [2006] NSWLEC 809 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT: PARTIES : Frederick Charles Foster RESPONDENT: Hornsby Shire Council

FILE NUMBER(S) : 10837 of 2006

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Dwelling house: Tree removal

LEGISLATION CITED: Hornsby Shire Local Environmental Plan 1994, (HSLEP) Environmental Planning and Assessment Act 1979, ss 79C and 97

DATES OF HEARING: 05/12/2006

EX TEMPORE JUDGMENT DATE : 12/05/2006

APPLICANT: Mr F C Foster, applicant SOLICITORS: LEGAL REPRESENTATIVES: N/A RESPONDENT: Mr T Pickup, solicitor SOLICITORS: Storey and Gough

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

5 December 2006

10837 of 2006 - Frederick Charles Foster v Hornsby Shire Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Hornsby Shire Council (the council) to refuse a development application to erect a new single-storey brick-veneer dwelling with a tiled roof at Lot 2, DP 20355738, Dudley Street, Asquith. 2 I visited the land in company with the parties on the morning of the hearing and heard from the applicant and the council representatives on-site. 3 I have concluded that as the tree is significant and should be preserved, the application for the dwelling house should be dismissed. The land 4 The land is situated on the southern side of Dudley Street and is rectangular in plan. It has a front and rear boundaries of 15.26m and side boundaries of 56.39m and an area of some 853.6m2. The site has a fall of about 5m down from the rear (southern) boundary to the front (northern) boundary. 5 Erected on the land is an existing single-storey brick dwelling setback about 25m from the Dudley Street frontage. There is a freestanding carport is also located within the front setback of about 10m from the Dudley Street frontage. Growing on the land are five (5) trees including an Angophora costata, (Sydney Red Gum), a Jacaranda and Cotoneaster. The council officers assessed the Angophora as being a significant tree. 6 The locality is characterised by single-storey and two-storey dwellings, which are predominantly of brick-veneer construction with tiled roofing. However, there are some weatherboard dwellings nearby. To the west of the subject land is No 36 Dudley Street where there is a single-storey weatherboard dwelling. To the east, is No 40 Dudley Street a single-storey brick dwelling. Consent has recently been granted for the subdivision of No 40 Dudley Street, Asquith into two (2) lots. Relevant planning controls Hornsby Shire Local Environmental Plan 1994, (HSLEP) 7 Under the provisions of the HSLEP the land is zoned Residential A (Low Density) and the proposal as a 'dwelling house' is permissible with consent, [Note: cl 7, HSLEP]. 8 Under cl 15 of the HSLEP development in the Residential A (Low Density) zone is not to exceed a maximum floor space ratio (FSR) of 0.4:1, and the proposal complies with this requirement. 9 The council's Dwelling House Development Control Plan, (DHDCP) is relevant and elements relating to Landscape, Flora and Fauna Protection apply to the proposal. The proposal and its history 10 Development application No 969/06 was lodged with the respondent council on 11 July 2006 to erect a new dwelling house on the land. 11 The proposed new dwelling would include four (4) bedrooms, a study (or fifth bedroom), family room, dining room, lounge room, rumpus room, kitchen, laundry, bathroom, ensuite and double garage. Notification 12 The application was notified to nearby owners and occupants in accordance with the council's Notification and Exhibition Development Control Plan and the council received no submissions. 13 On 27 July 2006, an officer from the council's Parks & Landscape team inspected the land and identified the indigenous Angophora costata (Tree 1). 14 By letter dated 29 July 2006, the council requested the applicant consider amending the plans to relocate the dwelling house at least 5m from the trunk of this significant tree (Tree 1). 15 On 16 August 2006, the applicant replied and disputed the council's assessment of the significance of Tree 1 and requested that the council reconsider the matter of the tree. By letter dated 23 August 2006, the council advised the applicant that it maintained the view that Tree 1 was significant and that it did not support removal of the tree. The council's decision 16 On 5 September 2006, the council, under delegated authority refused development application No 969/06 on the following ground: 1. The proposed dwelling house is less than 5m from Tree 1 (Angophora costata) assessed as significant by the council's Parks & Landscape team. There is adequate area elsewhere on the site to either relocate or redesign the proposed dwelling house to provide this setback. The proposal will have a detrimental impact on the health and wellbeing of this tree and does not comply with the performance criteria and objectives of the Flora and Fauna Element of the Dwelling House Development Control Plan. The hearing 17 The appeal was filed on 13 September 2006. 18 Mr F C Foster the applicant gave evidence. Mr D Hoye, Tree Management Coordinator gave evidence on behalf of the council, [Note: Exhibit 4]. 19 Mr N McCarry (B.T.P), Team Co-ordinator, Hornsby Shire Council, prepared the statement of basic facts dated 16 November 2006. The issues 20 On 12 October 2006 the council filed a statement of issues. IMPACT ON SIGNIFICANT TREE 1. The proposed development will require the removal of a tree, which has been assessed as significant by Council being an Angophora costata, which is located on the western boundary of the site. 2. The proposed development does not comply with the Landscaping Element of Council's Dwelling House Development Control Plan. Particulars a) The proposed development does not conserve a significant tree on the site, which adds to the environmental character of the area. b) Existing landscape features such as significant trees should be retained and there is ample site area to enable an alternative design, which enables this significant tree to be retained. 3. The proposed development does not comply with the Flora and Fauna Protection Element of the Dwelling House Development Control Plan. Particulars a) The proposed development has not been designed to retain an existing significant tree, which has potential as a fauna habitat. b) The proposed dwelling house has not been designed to minimise disturbance to an existing significant tree, which adds to the visual amenity of the area.