Land and Environment Court of New South Wales CITATION : Jeffrey Leon Arundell v Baulkham Hills Shire Council [2006] NSWLEC 235 APPLICANT: PARTIES : Jeffrey Leon Arundell RESPONDENT: Baulkham Hills Shire Council FILE NUMBER(S) : 10074 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Building platform – Lot 1 - site stability - insufficient usable private open space - unacceptable in impact on existing amenity of the neighbourhood - drainage and· objections. Baulkham Hills Local Environmental Plan 2005, (BHLEP) LEGISLATION CITED: Development Control Plan No.3 –Residential, (DCP3) Environmental Planning and Assessment Act 1979, ss79C and 97 DATES OF HEARING: 05/05/2006 EX TEMPORE JUDGMENT DATE : 05/05/2006 APPLICANT: Mr J L Arundell, LIP SOLICITORS: LEGAL REPRESENTATIVES: N/A RESPONDENT: Mr M Pearce, solicitor, corporate lawyer SOLICITORS: N/A JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 5 May 2006 10074 of 2006 - Jeffrey Leon Arundell v Baulkham Hills Shire Council JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Baulkham Hills Shire Council (the council) to refuse a development application to subdivide Lot 3414, DP 793540, being No 11 Tanglewood Place, West Pennant Hills, into two allotments. 2 The on-site hearing was held on the land with the parties present and nearby residents gave evidence. 3 I have concluded that the application should succeed and that the principal contested issue of the steepness of the land is not a reason for refusal of the application. The land 4 The land is situated on the northwestern side of the head of Tanglewood Place and is of irregular shape with an area of 5,728m2. It has a 8.5m frontage with vehicular access to Tanglewood Place. The southwest boundary is 170.47m; the northeast boundary is 130m; the northeast boundary is 51.6m; the northwest boundary is 37.99m and the southeast boundary is the curved frontage of 8.5m to Tanglewood Place. 5 Water, sewer, power and telecommunications service the land. The land is encumbered by a restricted development area covering the rear half and two fire-restricted zones over an area to the rear of the existing dwelling. 6 Erected on the land is the dwelling that is setback about 45m from the front boundary. The area between the front boundary and the existing dwelling has an average slope of 32.5% (1 in 3.1) falling across the site with scattered trees over this area. The remainder of the land is heavily treed with an average slope of 10% to the watercourse along the rear boundary. 7 The land is identified on the Bush Fire Hazard Maps as being within the fire hazard zone. 8 The character of the surrounding area consists of residential housing with a significant corridor of vegetation running diagonally across the rear of the site. Relevant planning controls Baulkham Hills Local Environmental Plan 2005, (BHLEP) 9 Under the provisions of the BHLEP the land is zoned Residential 2(b) and the proposal is permissible with consent. 10 The objective of the zone is to identify residential areas of a predominantly single dwelling low-density character and to ensure that new housing respects and complements the heritage and environmental character of the surrounding low-density development. Development Control Plan No.3 –Residential, (DCP3) 11 DCP3 is relevant. Clause 4.12.3 of DCP3 specifies the building platform location. 12 Other statutory and non-statutory planning controls include: · Environmental Planning & Assessment Act 1979. · Rural Fires Act 1997. · NSW Threatened Species Conservation Act 1995. · Federal Environmental Protection & Biodiversity Conservation Act 1999. The proposal and its history 13 Development application No 2963/04/ZB was lodged with the respondent council on 6 May 2004 to subdivide the land into two allotments. 14 Proposed Lot 1 would be an irregular shaped allotment and having an area of 839.6m2 with a 5.95m frontage to Tanglewood Place as shown in the plans in Exhibit J. Proposed Lot 2 would be an irregular shaped allotment containing the existing residence and having an area of 4,887m2 with vehicular access along a right of carriageway to Tanglewood Place. Notification 15 The application was notified to nearby owners and occupants on 1 June 2004 and this was extended to 10 June 2006, and the council received one objection. 16 There was a referral to NSW Rural Fire Services on 22 September 2004 and the NSW Rural Fire Services General Terms of Approval received on 5 November 2004. This was supplemented by the RFS on 22 September 2004. The council's decision 17 The Development Application Unit (DAU) on 9 December 2004, resolved that the application be deferred for a site inspection. That site inspection by council officers was held on 20 January 2005. 18 The DAU on 17 February 2005 resolved that the application be refused and by notice dated 23 February 2005 the council formally refused the application. The hearing 19 The appeal was filed on 9 February 2005. 20 At the hearing the court heard evidence on behalf of the respondent council from Mr B Roberts, Senior Subdivision Engineer, Baulkham Hills Shire Council who also prepared the position statement. Local residents also gave evidence on behalf of the council. 21 On behalf of the applicant evidence was given by Mr S Cheng, surveyor and resident of No 15 Tanglewood Place, West Pennant Hills. The issues 22 On 2 March 2000 the council filed a statement of issues. 1. The proposed development does not satisfy the objectives of DCP No.3 - Residential with respect to building platforms. Particulars (i) clause 4.12.3 -Performance Criteria (a) of DCP No.3. (ii) the proposed building platform is located on a steep slope with a gradient of between 1 in 4 (25%) and 1 in 2 (50%). 2. The proposed development is likely to result in a decrease in site stability. Particulars (i) a number of trees in and around the building platform may be removed resulting in a decrease in soil stability. (ii) a 3.5 metre fall across the building platform will require extensive excavation and may impact on the stability of numerous sandstone boulders (up to 5 metres in size). 3. The proposed development does not allow for sufficient usable private open space. Particulars (i) the proposed Lot 1 is situated on a steep slope/gradient with little, if any flat ground. (ii) there is no adequate private open space located behind the front building line. 4. The proposed development will result in an unacceptable in impact on existing amenity of the neighbourhood. Particulars (i) loss of privacy to neighbouring properties five, seven and 13 Tanglewood Place and the proposed Lot two to 1110 Lord Place. 5. The proposed development does not allow for an easement drain water over the downstream property so as to adequately drain the proposed development site. Particulars (i) The downstream property-Lot 3415, DP 793540. (ii) Minimum easement to drain on-1.5 metres wide. (iii) The applicant has failed to demonstrate how stormwater and runoff is to be disposed. (iv) The applicant has failed to demonstrate the provision of on-site detention for stormwater. (v) The proposed development is not in the public interest. Particulars 6. Letter of objection-5 Tanglewood Pl. 23 The following emerged as the salient issues: · building platform – Lot 1; · site stability; · insufficient usable private open space; · unacceptable in impact on existing amenity of the neighbourhood; · drainage; and · objections. The evidence and findings Building platform – Lot 1 24 The proposed building platform for Lot 1 would have an area of 300m2 and would measure 15m x 20m as shown in the plans in Exhibit A. Vehicular access is proposed to Tanglewood Place off the driveway common to both Lots 1 and 2 and the building platform would be accessible at a low point in the land thereby facilitating basement garaging. 25 The council maintains that the proposed building platform location would not be practical for it's purpose and is not on relatively flat terrain with stable soil and with stable geology. 26 The survey contour plan information by Chadwick Cheng & Associates in conjunction with the Geotechnique Pty Limited geotechnical assessment confirms the gradients within the building platform on Lot 1 as being: 100 (17%) for a narrow width, 3m (east side); 160 (30%) for a central width, 8m and 300 (58%) for a width, 4m (west side). 27 Having regard to departures from cl 4.12.3 of DCP3, the council urged the Court to refuse the application for reason that the position of the proposed building platform location and its slope. The council also says that there would be tree loss in and around the building platform. 28 Mr Arundell, the applicant, points to the fact that the existing dwelling on Lot 2 was constructed on a parcel of land of similar slope to that of proposed Lot 1, and this reason for refusal should not be given determinative weight by the Court. He maintained that it is practicable to build upon proposed Lot 1 in the manner outlined in Exhibit A. 29 The plans in Exhibit A, show the extent of the building platform and the extent of private open space. Both comply, in area, with the requirements of the council and I am satisfied that the slope of the land could be addressed by incorporating retaining walls and/ or garden terraces in the landscape design. The Court understands that it is the applicant's intention to carry out these works at the building application stage. I am satisfied that this would be both practical and reasonable and I would not refuse the application for reason of a breach of cl 4.12.3 of DCP3 in respect of site slope over the building platform. Site Stability 30 The geotechnical assessment report by Geotechnique Pty Limited in Exhibit E confirms the geomorphology of the land is that of the Hawkesbury – Group of sandstone. 31 Specifically, the report points up the difficulty of providing a stable foundation for footings having regard to the presence of floaters on the land. The report considered there was potential for movement of footings, the destabilisation of rock boulders during excavation and resultant tree removal. 32 The council was concerned that the instability of the land posed a danger to existing adjoining and nearby structures. The council was concerned that the geotechnical assessment was carried out during a 'walk over' inspection and did not contain sufficient information on sub-surface geomorphology within the building platform. The council claimed, as a result that the land might not meet the requirements of cl 4.12.3 of DCP3 and would not be 'with stable soil and geology'. 33 During the proceedings the council representatives agreed that this matter could be dealt with by condition and as a result this issue was not strongly pressed in the proceedings. 34 I am satisfied that the matter may be dealt with by condition and this would not be a reason for refusal of the application. Insufficient usable private open space 35 The council was of the opinion that the land within proposed Lot 1, and behind the front building line would not be suitable for private open space because of the steep gradients of the land. 36 The private open space required by the council's controls would require some retaining structures in order to obtain a level area for later utilitarian and recreational purposes, but this could be achieved by terracing of the land. I accept that retaining structures would be required to support the private open space shown in Exhibit A and I am satisfied that cl 4.13.3 of DCP3, relating to private open space provisions, would be met. I would not refuse the application for this reason. Unacceptable impact on the amenity of the neighbourhood 37 The council says that there will be a loss of privacy as a result of: · Removal of trees at the subdivision stage. · Future removal of trees at the building stage. · Extension of the access driveway and the associated increase of vehicle movement (construction and future). · Overlooking from a future residence. · Boundary retaining walls. 38 I am satisfied that some trees could be planted to ameliorate some of the likely privacy impacts by screening any new development on Lot 1. Also, by careful design of any new dwelling, privacy impacts could be lessened. The land is zoned for the purpose and the site area proposed is more than adequate for the erection of a dwelling house. The loss of trees, would result in a change to the local environment, initially with the subdivision and subsequently with the erection of a dwelling house, however, although this change is regrettable I am satisfied it would not be a reason to refuse the application. Drainage 39 On-site stormwater detention and associated drainage structures are proposed within Lot 1. These must cater for storm water flows off the whole of the new lot and the new lot must be drained to a legal point of discharge. In this case, it is proposed to drain Lot 1 via a 1.5m wide easement via the council's inter-allotment drainage easement to the natural watercourse running through Lot 2. 40 The council proposes a deferred commencement condition to address this matter and would require an easement in favour of the owners' of Lot 1 over the council's inter-allotment drainage easement running along the southern side of Lot 2. I am satisfied this is practical and once the deferred commencement condition has been addressed, consent may be granted by the council. Objections 41 Residents gave evidence on site. Only one had objected during the formal period of advertising the application however, all present were heard. 42 Mrs Delyse Baker, resident of No 10 Tanglewood Place, was concerned that there would be a loss of trees and a resultant loss of views of the trees on the subject land from the first floor balcony that is used for relaxing. She said that the result would be "…a complete lifestyle change." She was also concerned for any loss of value of her land. 43 Mr Bill Gialouris, resident of No 9 Tanglewood Place, was concerned that the likely future development of the subdivided land would cause a 'brick wall' to be built alongside the driveway to his dwelling and would interrupt the views towards the trees in the valley and on the subject land. He explained that the reason he did not originally object was that he was anticipating purchasing 300m2 of land off the applicant, to extend the driveway, but that had fallen through. He was concerned that there would be a likelihood of an impact on the front of the house at No 9 Tanglewood Place. He considered this would result in a change of outlook and therefore loss of enjoyment of that property. He said there would also be a probable loss of value. 44 Mr Colin McCrae, resident of No 7 Tanglewood Place was concerned that from the lounge room, dining room and study there would be a loss of views of the bush setting that would be removed, if development were to take place on the new Lot 1. He stated that the proposal would defeat the purpose of the initial subdivision of large allotments and that he had purchased his land on the basis of the existing pleasant surroundings that would be changed if the proposed subdivision were permitted. He said that the value of his land would be reduced were development permitted on the subject land. 45 Mr Colin Parker, resident of No 5 Tanglewood Place, who made a formal objection within time, was concerned for the loss of trees and he feared this would reduce the attractiveness of the front private open space of the dwelling on No 5 Tanglewood Place. He said that there would be a loss of bushland outlook from the upstairs bedroom and downstairs living and entertaining areas, and he would "…rather not look at a brick wall." He pointed out that mature trees of up to 30 years old would need to be removed. 46 Because of the slope of Lot 1 and its relationship to No 5 Tanglewood Place, the council was concerned that the existing views from that property to the west-south west would be modified and compromised. Also, as replacement trees might obscure existing view from No 5 Tanglewood Place and the landscaping associated with the proposed new dwelling structures would not be appropriate. 47 The main concern of the local residents appeared to be the loss of outlook over trees on the subject land. To screen any proposed new dwelling on the land, some trees would be required and this could be conditioned at the building application stage. 48 The proposal would in effect be an infill development in the street. Any dwelling on the land would be at a slightly lower level than that of existing dwellings in the street. I am satisfied the streetscape would not be adversely affected, such that the subdivision application should be refused. 49 For the above reasons, the appeal is upheld. Conditions The conditions are those in Exhibit 8. Costs 50 As there were no submissions made in respect of costs, so I have assumed that each party will pay its own costs. Orders 51 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No 2963/04/ZB lodged with the respondent council on 6 May 2004 to subdivide Lot 3414, DP 793540, being No 11 Tanglewood Place, West Pennant Hills, into two allotments, is approved subject to Conditions 1 to 36 in Annexure A. 3. The exhibits except for Exhibits A, B, C, D, E, F, H, J, 1, 6, 7 and 8 are returned. S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.