Land and Environment Court of New South Wales CITATION : Meriton Apartments Pty Ltd v Sutherland Shire Council [2006] NSWLEC 139 APPLICANT Meriton Apartments Pty Ltd PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 10427 of 2005 CORAM: Bly C KEY ISSUES: Development Application :- Town house development, flora, fauna, habitat and landscaping, built form, visual impacts and urban design, traffic, resident objections Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 19 - Bushland in Urban Areas Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment LEGISLATION CITED: Sutherland Shire Local Environmental Plan 2000 Development Control Plan for Townhouses and Villa Houses Residential Zones Development Control Plan - Landscape DATES OF HEARING: 23-25/01/2006 and 30/01/2006 DATE OF JUDGMENT: 03/29/2006 APPLICANT Mr J Bingham, solicitor SOLICITORS Deacons LEGAL REPRESENTATIVES: RESPONDENT Mr J Cole, solicitor SOLICITORS Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 30 March 2005 10427 of 2005 Meriton Apartments Pty Ltd v Sutherland Shire Council JUDGMENT Introduction 1 This appeal relates to the deemed refusal of Development Application No. DA 05/0188 which is for the demolition of the existing dwelling house and the construction of 88 townhouses with excavated basement carparking and communal recreation facilities at 2 Corea Street Sylvania. Strata subdivision of the development is also proposed. 2 The corner site, comprising Lots 1 and 2 in DP 872780 ("the site") has an area of 17,484 sq m. It is generally rectangular in shape with a frontage of about 81 m to the Princess Highway, a frontage of about 125 m to Korea Street, a depth varying between 210 m and 230 m and a northern frontage of about 80 m to the Georges River. 3 The site is traversed by a pronounced east-west aligned ridge top with moderate to steep slopes facing both the Princess Highway and the Georges River. These slopes include a series of natural sandstone rock escarpments amidst the remnant bushland covering the majority of the site. Extensive views are available to the north over the Georges River and to the south towards the suburbs of Miranda and Cronulla. 4 An elevated access road traversing the southern slopes of the site provides access from Corea Street to the existing residential development known as High Trade to the east. 5 Development in the locality generally comprises residential comprising detached dwelling houses and medium density townhouse development including High Trade to the east and Marlow, which is situated opposite the site to the west in Corea Street. To the south of the site across the Princess Highway development predominantly comprises detached houses with the Southgate Shopping Centre located further to the east. Statutory provisions 6 The site is zoned 2(b) Residential under the Sutherland Shire Local Environmental Plan 2000 ("the LEP") and in this zone townhouse development is permissible with development consent. The objectives of the zone refer to a medium density residential environment including the co-ordinated, efficient and economical development of villas and townhouses with high-quality design outcomes. 7 The site is situated in the Foreshore Scenic Protection Area ("the FSPA") under cl 19 of the LEP. It is also subject to a 30-m foreshore building line ("the FBL") under cl 20. The objective of the FSPA is to limit the scale of development and protect the landscape and visual character of foreshore areas. The objectives of the FBL include the need to preserve and enhance natural features and vegetation and prevent the erection of buildings in the area between the foreshore and the FBL. The proposed development extends close to but not beyond the FBL. 8 On 24 March 2004 the council submitted to Mr F Sartor MP the Minister for Planning, the Sutherland Shire Draft Local Environmental Plan 2004 ("the draft LEP"). Following discussions with the council the Minister wrote to advise that he intended to make number of changes (non-specific) to the draft plan including: · Amending housing provisions which excessively restrict Sutherland's capacity to meet housing needs, · Removing superfluous environmental protection provisions (e.g.: Greenweb) that have the potential to sterilise development potential of private land. 9 Notwithstanding the Minister's advice, the draft plan can be taken into consideration but in the light of his advice little weight can be given to those aspects that he intends to change, given the resultant uncertainty. 10 Also applicable to the site is Development Control Plan for Townhouses and Villa Houses in 2(b) and 2(c) Residential Zones ("the DCP") and Development Control Plan - Landscape ("the Landscape DCP"). 11 The other important statutory planning instruments referred to in the proceedings comprise: Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment ("REP 2"); and State Environmental Planning Policy No 19 - Bushland in Urban Areas ("SEPP 19"). Advertising and council's decision 12 The application was advertised and 42 objections were received raising matters of concern including: · Adverse traffic impacts especially at the intersection of Corea Street and Princess Highway as well as pedestrian safety issues associated with the absence of footpaths. Insufficient visitor carparking. · Destruction of significant landscape features and bushland including mangroves and the loss of native fauna habitat. · The proposal will be an overdevelopment of the site and will have an excessive density. It will be out of character with surrounding development and will have an adverse visual impact. · Construction activities including trucks parking in the street will adversely affect residential amenity. 13 The application was considered by council's Architectural Review and Advisory Panel ("the advisory panel") on 19 May 2005. The panel recommended that: There remain fundamental issues that have not been adequately addressed. The site is too intensively developed and as a consequence natural qualities of the site have been ignored so that the landscape can be transformed. The resultant developed part of the site will be alien to the environment. A review of site planning is needed so that more of the site is unscathed by excavation and buildings. 14 The application has not been determined by the council hence the appeal has proceeded on the basis of the deemed refusal of the development application. The evidence 15 On behalf of the respondent council evidence was provided by the following: · Mr G. Hand – a council town planner, · Mr J Coady – a town planner and traffic engineer, · Mr C. Lorimer – a landscape architect, · Mr P Castor – an arborist, · Ms K. Korbel – a council environmental scientist, · Mr M Lucchitti – a council architect. 16 On behalf of the applicant expert evidence was given by: · Mr M. Harrison – an architect and urban design consultant. · Mr B. McLeod – an arborist, · Dr D. Robertson – an ecologist, · Mr G. Sturt – a landscape architect, · Ms S. Robinson – a town planner, · Mr B. Masson – a traffic engineer. 17 The hearing began on site with more than 20 residents in attendance. Oral evidence was given by 18 residents who explained in detail their written concerns. Matters of special concern to them include vehicular traffic, residential density, construction activities, flora and fauna, noise and visual impact. 18 An inspection of the site and its environs including an inspection from the Georges River was undertaken in the company of the advocates and the experts. The issues 19 A six page statement of issues was provided, detailing four essential issues: · Flora, fauna, habitat and landscaping, · Built form, visual impacts and urban design, · Traffic, · Matters raised by resident objectors. 20 Having considered all of the evidence I have reached the conclusion that the main issue in the case involves the question of whether the proposal represents a satisfactory urban design outcome, particularly considering the need to provide a balance between built form and existing site characteristics, taking also into account the requirements of the applicable planning controls including the zoning of the land. Other less determinative issues involve aspects of: internal design and amenity; flora, fauna and habitat; vehicular traffic; and resident objections. Urban design and bushland 21 In 2003 a flora and fauna assessment ("the assessment") to accompany the development application was prepared for the applicant by Total Earth Care Co. One of the objectives of that assessment was to describe the existing flora and fauna of the site, and their habitats and this was done in part by conducting two days of field surveys. 22 The assessment notes that apart from the existing buildings, the concrete access road and other unsealed tracks, native bushland occupies the majority of the site which remains relatively undisturbed. More particularly the vegetation comprises typical Hawkesbury sandstone based bushland which has a natural resilience. There are some exotic plantings around the dwelling. More than 30 vertebrate species were recorded on the site, including birds mammals and reptiles. These species are typical of urban bushland sites within residential areas in the Sydney basin region. The assessment also considered the geology of the site noting that topsoils mostly remain relatively undisturbed. Apart from the steeper outcrops at the northern and southern ends of the site, topography comprises gentle slopes broken by small to large sandstone outcrops. 23 According to Mr Harrison the site is the last large site available for development in the River Precinct in which it is located and remains mostly bushland. By contrast the residential development of the foreshore areas in the vicinity of the site has resulted in the removal of significant areas of bushland. 24 In my view there can be little doubt that this site has a high bushland and scenic value, taking into account its topography and vegetation and its relationship to the Georges River. It is thus of considerable importance; this importance being reflected in the array of planning controls applicable to it and associated with these values. 25 Clearly, as Mr Harrison argues there can be no doubt that despite the significance of the topography and vegetation it would be unreasonable to expect that the bushland can remain intact, given the medium density residential zoning of the site. Hence the question to be answered is, to what extent can the existing topography and vegetation be modified or removed whilst achieving the medium density development of the site that is anticipated by the zoning? 26 Section 8 of the draft LEP deals with urban design and contains objectives requiring enhancement and integration of new development into the existing character of distinctive locations. Such development should be responsive to the population needs of the shire, have an appropriate amenity and be integrated into a well-designed and appropriate landscaped setting. In this context, development should retain and enhance the natural environment and respond to natural landforms. More specifically, development should enhance and reinforce areas of high visual quality, ridgelines and landmark locations. 27 Taking into account the abovementioned advice of the Minister, I do not accept that these objectives could be said to be superfluous or would excessively restrict or sterilise the development potential of this site. They can thus be given some weight being provisions of an exhibited draft local environmental plan. 28 Under the heading Special Considerations in the Residential Zones, cl 30 of the LEP which is applicable to all residential zones and in so far as it is relevant to this application, provides that: When assessing the impact of residential land uses proposed in the residential zones by development applications and whether those uses satisfy the objectives of the zone concerned, the consent authority must take into consideration the following matters and must not grant consent unless it is satisfied that those matters have been adequately addressed by relevant documentation submitted to it: (e) the retention and enhancement of existing vegetation, (f) any adverse impact on natural and built environment, (h) the impact that the proposed development may have on any public area or water body, loss of sunlight, views and visual amenity. 29 Under the heading Bushland Considerations cl 32 of the LEP is also applicable to all residential zones and provides that: Consent must not be granted to residential development unless the consent authority is satisfied that the proposed development will not have a significant adverse effect on: (a) The protection of rare and endangered flora and fauna species and the protection of habitats for native flora and fauna, or (b) The protection of wildlife corridors and vegetation links with other nearby bushland vegetation, or (c) The protection of bushland vegetation as a natural stabiliser of the soil surface and protection of existing landforms such as natural drainage lines, watercourses and foreshores, or (d) The protection of bushland vegetation of scenic value and the retention of the unique visual identity of the landscape 30 The objectives of REP 2 include the preservation and protection of regionally significant bushland and the avoidance, where possible, of the degradation or significant loss of native vegetation. Whilst regionally significant bushland is not defined in the instrument I accept that the bushland on the site given its character and prominence when viewed from the Georges River, a river of undoubted regional significance, is regionally significant. 31 Notwithstanding that the site only has a relatively short common boundary with land reserved for public open spaces (i.e. the northern end of the Corea Street road reserve), SEPP 19 is applicable. In essence the relevant aims and objectives of SEPP 19 include the protection and/or retention of: · remnant plant communities within urban areas, · appropriate sized parcels of sustainable bushland, · habitats and rare and endangered flora and fauna, · wildlife corridors and vegetation links with other bushland, · scenic values and visual identity · significant existing landforms and geological features. 32 Relevantly, in relation to development applications, cl 9(2) of SEPP 19 requires that consent shall not be granted unless consideration has been given to the need to retain any bushland on the land and the effect that the development might have on the adjoining reservation. The term bushland means: … land on which there is vegetation which is either a remainder of the natural vegetation of the land or, if altered, is still representative of the structure and floristics of the natural vegetation. 33 Taking into account the 2003 flora and fauna assessment it is plain that the vegetation on the site comprises bushland for the purposes of SEPP 19. Questions thus arise as to whether there is a need to retain and protect any of the existing sustainable bushland and significant landforms on the site and whether any of this bushland comprises wildlife corridors or habitats for rare and endangered flora and fauna. 34 Given the significance of the bushland on the site, the requirements of the landscape DCP become particularly important. The objectives of this instrument include the need to preserve and enhance the existing natural environmental character including tree canopies and natural geographical features including escarpments and sandstone outcrops, particularly along foreshores and waterways. The objectives also seek the improvement of the visual quality of local areas, the encouragement of landscaping appropriate to particular localities and the improvement of the relationship between the built and natural environments. A further objective is to require an appropriate landscaped design that complements existing environmental conditions. 35 The landscape DCP sets out the approach required in preparing a landscape submission to accompany a development application. Such a submission is required to include a site survey plan that identifies matters such as boundary locations and site contours, existing structures and utility services. Of particular relevance to this application is the requirement to locate rock outcrops and other natural features including trees and bushland and the location, breadth of canopies, height, trunk girth and indicative species of all trees on and adjacent to the site. This information is to be utilised in the preparation of a site analysis that considers site constraints and opportunities as a pre-requisite and basis for effective site planning and the design process. The application rightly was criticised for having failed to do this adequately. 36 According to Miss Korbel approximately 70% of the bushland on the site will be directly affected by the proposal with other areas indirectly affected. In response and in arguing that the proposal would be responsive to its local context Mr Harrison referred to the landscape analysis of the site that reveals that about 52% of the total site area is set aside for landscaping. This includes 34% retained bushland 13% deep soil planting in the building zone and 5% landscaping over basements. Accepting this and leaving aside for the moment the fact that the land is zoned for residential development the impact of the proposal on the bushland is clearly significant in terms of SEPP 19, REP 2 and cl 32 of the LEP. 37 Mr Lorimer in his analysis of the site and the visual catchment surrounding it concluded that its scenic sensitivity was high, especially taking into account its high level of visual accessibility especially from the Georges River. Its ability to absorb urban development is generally low to moderate. Despite the site's zoning the proposed development does not adequately respond to its constraints and opportunities and its core scenic values. The site analysis is inadequate and had this been properly carried out at the beginning of the design process, as is required by cl 8 of the landscape DCP, a different and most likely acceptable design would have resulted. 38 As a consequence of the inadequate design approach Mr Lorimer explained that the proposal had many deficiencies including: · The planter box approach to the landscape design, · The excessive removal of trees and the loss of a continuous tree canopy across the ridge, · The almost non-existent side setbacks, · The limited retention of ridgetop trees and their visual isolation, · The opening up of views through the site to adjoining development resulting in a cumulative visual impact of both developments. · The formalized planting of new trees rather than informal groupings, · The retained trees on the ridge are vulnerable because of the proximity of basement excavations and buildings. 39 Mr Lucchitti was similarly concerned that the applicant had not adopted a proper design approach as required by the landscape DCP. The applicant's site analysis plan was a token effort, having failed to identify the important environmental features of the site which act as both an inspiration and constraint for any appropriate design response. He was concerned that the proposal failed to properly recognise the importance of the site's topography and vegetation generally and in particular the geological features such as major rock outcrops and the ridgetop tree canopy. He acknowledged that the medium density zoning cannot be disregarded but there is sufficient flexibility to balance the site's constraints and opportunities, including its particular and unique characteristics. 40 Mr Lucchitti described the design approach as being heavy-handed and mass-produced, with the development being laid out on a grid pattern extending essentially from boundary to boundary. In relation to the proposed new angophoras he said that these would block views from dwellings, notwithstanding the anticipated rate of growth and character of these trees. In turn this could result in their demise. A different design could provide for both views and trees. 41 Mr Hand was also concerned that the proposal was not a properly planned response to the critical constraints and opportunities of the site. In his opinion such an approach would demand a more generous provision of un-built upon areas and the retention of bushland and landscaping towards the river on the northern and most sensitive part of the site. This could be achieved taking into account the availability of water views and the northerly aspect. Minimal side setbacks occupied with stairways and walkways prevent appropriate boundary landscaping on the west and east sides of the site. 42 Mr Harrison did not agree with the council's experts contending that the proposal exhibits a high quality of architectural design and is an appropriate response to the local river precinct and urban context. He explained that there were three elements of the design that reveal how it can contribute to the scenic quality of the precinct being: the foreshore; the ridgeline; and the area of the site between the foreshore and the ridgeline. The foreshore vegetation is to be retained. The area of the site between the foreshore building line and the ridgeline where much of the development is to occur is to have dispersed vegetation provided amongst the buildings, such additional vegetation including 26 angophora trees. On the ridgeline the main canopy trees will be retained and reinforced with the angophoras. An unbroken ridgeline of tree canopies when viewed from the north or the south will be the result. He rejected suggestions that the approach to landscaping was based upon planter boxes because planters comprise a very small area of the total landscaping. Instead significant areas of deep soil planting are provided. 43 In terms of the general presentation of the development towards the river, Mr Harrison explained that the proposed dispersed approach to vegetation on the built part of the site is that this vegetation will mostly screen and filter views of the buildings from the waterway. This provides a better visual balance between buildings and vegetation and would be more consistent with the prevailing character of the river precinct. He also referred to the compliance with the building height, floor space ratio and landscaped area requirements in the LEP as an important indicator of the acceptability of the proposal. 44 Miss Korbel was concerned that the development will result in the removal or eventual loss of significant habitats for rare plant species and flora and fauna generally. Links to remnant vegetation on adjoining land will be broken resulting fragmentation of habitats. She recognized that the site is zoned for urban development but the proposal fails to provide an appropriate balance against the applicable environmental objectives particularly in the LEP. 45 Mr Robertson did not accept that there were major vegetation links throughout the site because the vegetation is already fragmented and surrounded on three sides by largely developed land. Moreover there were no pressing ecological needs to provide such a link. He explained that it is not essential to provide a large expansive area of bushland on the site, this being Sydney Sandstone Ridgetop Woodland one of the most abundant and best conserved woodland types in the Sydney Basin. Moreover it does not support species of high conservation values and the faunal assemblages are those that can occur in disturbed bushland environments, particularly urban environments. He also argued that whilst some 60% of the bushland, including fauna habitat, on the site will be removed, each of the existing habitat types on site will be maintained as will locally significant plant species through the implementation of the bushland management plan. Court's conclusions – urban design and bushland 46 I have been persuaded by the evidence and submissions presented on behalf of the council that the design approach adopted by the applicant has failed to respond to the methodology required by the landscape DCP In this regard I note that Mr Sturt acknowledged that not having been involved with the proposed development from the outset he had designed the landscape proposal on the scheme that he was presented with. 47 However, this cannot by itself be determinative because it is possible that a satisfactory design could have been produced that coincidentally meets the essential requirements of the planning controls without having utilised this methodology and which design might otherwise have been approvable. 48 Despite this and understanding as I now do the nature of the site particularly its topography, its geological features and its vegetation and taking into account the associated requirements of SEPP 19, REP 2, the LEP and the landscape DCP it has become clear that the proposal has failed to respond sufficiently to these requirements. I have reached this conclusion taking into account that the proposal effectively complies with the maximum building height requirement, the maximum floor space ratio requirement (notwithstanding the disputed aspects of this) and the minimum landscaped area requirement. 49 The zone objectives recognise the need for high quality design outcomes and whilst they do not identify the need to conserve the natural environment on existing sites, they must be read in the light of the special requirements in cll the 30 and 32 of the LEP. These are threshold tests with cl 30 requiring that consent must not be granted unless matters relating to existing vegetation, natural environment, views and visual amenity have been adequately addressed. Similarly, cl 32 sets a high test effectively requiring that the proposed development should not have a significant adverse effect on inter alia flora and fauna, wildlife corridors and bushland. 50 Conceptually I accept that given the regional, very high bushland and scenic significance of the site, especially when viewed from the waterway it is important that there be maintained a strong vegetated presentation along the ridgetop and within the FBL. I have reached this conclusion notwithstanding my acceptance of Mr Robertson's evidence that there is no pressing ecological need for the provision of an expansive area of bushland. I have also not been persuaded that the need to retain flora and fauna habitats and vegetated links to adjoining and nearby vegetation is a determinative issue although I see no reason why a different design might not be more sensitive to these matters. 51 Whilst there is no reason why that part of the site between these two important bands of vegetation cannot be dominated by buildings, but given the significance of the site, the presentation of such buildings must include appropriate landscaping. Such landscaping should be designed so that it will not become vulnerable by blocking views towards the river. 52 Clearly the vegetation within the FBL is to be retained although because buildings are to be located so close to it I accept that some of the trees therein will be vulnerable. Similarly, some of the very important trees along the ridge are to be retained including a large angophora at the western end, which I expect would have survived the development. However some significant canopy trees are to be removed. Others are likely to be vulnerable because of the extent of close by disturbances including excavation for the basement and the proximity of buildings and other works. In the circumstances and despite the proposed replacement tree planting, I have been persuaded by the evidence of the respondent that the ridgetop canopy is likely to be critically affected by the proposal. In this context I note the concerns expressed regarding the lack of success of some of the landscaping of the High Trade development to the east. 53 As for the vegetation in the vicinity of the highway at the southern end of the site, this is important but it is not as important as the bushland seen from the Georges River which is of significant benefit to the public interest. Hence, subject to a careful consideration and integration of site features as is required by the planning controls a more intense form of development than might have otherwise been permissible should be possible here. 54 I agree with Mr Lucchitti's criticism of the grid pattern approach to the design resulting in bands of development across the site that have been adjusted partially in response to the constraints. This largely inflexible approach has not assisted in meeting the applicable bushland objectives and the design solution does not appear to have been one that has resulted from a proper constraints and opportunities analysis of the site. In this context I also agree with the expressed concerns about the almost continuous pathways and stairways along the east and west boundaries of the site. The absence of reasonable, appropriate landscaping opportunities is problematical especially given the scale of the development. In this regard the relationship to the adjoining SEPP 19 bushland (for the length of the building down to the FBL) is largely ignored by the development. 55 I do not accept that what is proposed in terms of landscaping comprises a planter box solution and agree that excavated areas with replacement soil can be better than naturally occurring shallow soils above rock. I also agree that these approaches could have been part of an acceptable landscaping design that better incorporates the major rock outcrops on the site. Despite this, the landscape solution that results in part from the design of the development is not sufficiently site responsive. Other issues 56 Whilst certain rare species of flora have been identified on the site it is not necessary given my decision that the application be refused to consider this issue in any detail. I nevertheless comment that these plants should be given appropriate consideration in any future application and dealt with in the context of an appropriate site analysis that is required by the landscape DCP. 57 In relation to vehicular traffic impacts I recognise that the development of this site will result in additional traffic congestion at peak times especially in Corea Street. Mr Masson examined the proposal in detail and noting the present poor operation of nearby intersections and despite generating 53 additional vehicle trips per hour in peak periods this would not change the current level of service at these intersections. He also commented that the provision of carparking spaces in excess of the council's requirements should result in a minimisation of potential impacts associated with on-street parking. The applicant has agreed to a number of traffic management conditions. Mr Cody essentially agreed with Mr Masson. 58 Taking these matters into account together with the fact that the zoning of the land provides for medium density development with vehicular access via Corea Street, I have been persuaded that increased traffic is not a reason to refuse the application. 59 As for traffic and noise associated with construction activities, even taking into account that the development of this site would comprise significant works over a lengthy period, this is a transient activity that can be controlled within reason by conditions of consent and a construction management plan. 60 The design experts agreed that they had no issue in relation to the proposed architectural style, materials finishes etc. However relation to internal design and amenity Mr Lucchitti had a number of concerns including the narrow alleyways between buildings, the lack of usable open spaces at ground level inadequate side setbacks utilised in part with an access stairway, awkward internal pedestrian access routes and privacy between some units. Mr Hand had similar concerns. Again whilst these matters may not have been determinative they should be given more careful consideration in a revised design. 61 Similarly in relation to the residents' objections not covered by the above considerations it is also not necessary to deal with these in any detail. I would however comment that I am inclined to agree with the residents and Mr Hand that it would be preferable that the development of a site of this size should comprise a range of dwelling sizes rather than the proposed similarly sized and styled dwellings. Conversely I do not agree, taking into account the conclusions I have reached in relation to traffic, that dwelling density is a matter of concern. Conclusion 62 Whilst there was some dispute as to whether the proposal meets all of the applicable numerical development and other standards such as floor space ratio, I accept that the proposal represents a substantial compliance with these. However this compliance does not attract sufficient weight to overcome the more fundamental concerns that I have in relation to urban design and bushland. 63 Given the constraints of the site, it may be that strict compliance with all of the standards over the entire site would not be reasonable. For example, as referred to earlier, a greater density and scale of development on the southern part of the site and a reduction in the intensity of development on the northern more sensitive part of the site may be appropriate. 64 This site is capable of accommodating a substantial residential development. However the design as presented to the Court is unsatisfactory, having failed to sufficiently respond to its important characteristics and thus the requirements of the applicable planning controls. This is not to suggest that the preservation of the bushland on the site should take complete precedence over its development. A balance is required and to achieve this a significant but sensitive reduction in the number of existing trees on the site will be necessary, with some of these trees being replaced by new trees in different, complimentary locations to ensure that the intent of the planning controls is met. Other site features such as significant rock outcrops need to be more sensitively integrated into the design. 65 Finally, it can be interpreted from the Minister's advice to the council in relation to the draft LEP that as a matter of regional significance, land zoned for residential development should be allowed to be developed to the extent and density specified in the planning controls. Of course the other controls that, in this case seek to protect bushland and minimise visual impacts need to be given careful consideration and appropriate weight. In this context I am satisfied that these divergent public interest objectives can and indeed should be met on this site, notwithstanding the comments of council's advisory panel regarding the intensity of development. However the development proposed does not sufficiently meet the bushland and visual impact objectives and the development application must therefore be refused. Orders 66 The orders of the Court are therefore: 1. The appeal is dismissed. 2. Development Application No. DA 05/0188 for the demolition of the existing dwelling house and the construction and strata subdivision of 88 townhouses with excavated basement carparking and communal recreation facilities at 2 Corea Street, Sylvania, is determined by the refusal of development consent. 3. Exhibit A is retained. ___________________ T A Bly Commissioner of the Court rjs 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.