Land and Environment Court of New South Wales CITATION : Larkin Holdings Pty Ltd v Pittwater Council [2006] NSWLEC 687 APPLICANT Larkin Holdings Pty Ltd PARTIES : RESPONDENT Pittwater Council FILE NUMBER(S) : 10177 of 2004 and 10653 of 2006 CORAM: Hoffman C KEY ISSUES: Appeal :- Subdivision, suitability of the site, flora and fauna, visual impact, heritage, landslip, drainage easement, new house LEGISLATION CITED: Pittwater Local Environmental Plan Environmental Planning and Assessment Act 1979 DATES OF HEARING: 03-04 and 07/08/2006 DATE OF JUDGMENT: 11/24/2006 APPLICANT Mr N Hemmings, SC Instructed by: Mr C Larcos, solicitor Of: Allens Arthur Robinson RESPONDENT LEGAL REPRESENTATIVES: Mr A Pickles, barrister Instructed by: Ms J Sutherland, solicitor Of: Mallesons Stephen Jaques INTERVENOR Ms H Irish, barrister Instructed by: Mr R Bennett, solicitor Of: Pike Pike & Fenwick JUDGMENT: LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 24 November 2006 10177 of 2004 and Larkin Holdings Pty Ltd v 10635 of 2006 Pittwater Council JUDGMENT 1 This is two class 1 appeals Nos.10177 of 2004 and 10635 of 2006 between Larkin Holdings Pty Ltd and Pittwater Council, the first is in regard to the refusal of an application for a house to be built on the rear lower part of the site, the second is in regard to the refusal of a subdivision of the site into two lots. 2 Any approval for the house is dependent on any approval for the subdivision, because the Pittwater Local Environmental Plan does not allow a dual occupancy (two houses on the one allotment). 3 The parties say that any determination of the subdivision requires that, if giving reasons for a foreshadowed approval, the hearing must be adjourned before handing down Orders, until a suitable easement is obtained downhill of the site to drain stormwater. 4 The need to drain stormwater is crucial to the engineering recommendations to avoid landslip of the site. 5 Prior to handing down Orders should approval be foreshadowed, more evidence may be needed on the drainage proposal as it is designed, if and when an easement is obtained. 6 An Intervenor was allowed by separate Notice of motion, to represent affected neighbours of the proposal. The locality 7 The area is towards the end of the peninsular above Palm Beach. Pacific Rd follows parallel to the ridgeline on the eastern side, so there are houses above it along the ridge. From Pacific Road on the downhill side, most lots fall steeply to streets below. Some, as does this lot, have a relatively level area up at the Pacific Road frontage. 8 The immediate locality of the subject site is on the low side of Pacific Road. It is characterised by one and two storey dwelling houses constructed on battleaxe allotments. Being high up near the ridgeline of the hills, the dwellings are generally oriented to take advantage of easterly and northerly views to the ocean and Palm Beach. The siting of dwellings appears to have been dictated by topographical constraints and vehicular access. Substantial areas of canopy and vegetation remain on the un-built upon areas of each allotment. The site 9 Lot 17, DP 8595, No. 121 Pacific Road, Palm Beach has a site area of 3047sqm. The land is situated on the Palm Beach Ridgeline on the eastern side of Pacific Road. From the existing house up on the flat land near the street there are panoramic views. From the new house site there are tree screened views to the north and north east towards Palm Beach and the Pacific Ocean, respectively. 10 The land is generally regular in shape, except for a skewed street frontage to Pacific Road of 29.16 m. The square width of the lot tapers from 20 m at the front to about 23 m width at the rear, with a length of 153.50 m along the northern boundary and 135.75m along the southern boundary. 11 The land has a steady rearward fall and about 12 m east of the existing house there is an increasingly steep cross fall that becomes cliffs and boulders about half way along the southern boundary with very steep land below the cliffs down to the north and east boundaries. The land is subject to a Right of Carriageway across the rear 6.1m wide (for rear access to 115A, 117, 121, 123, 125 and 127 Pacific Road), some of which have only steep and/or narrow street frontages to Pacific Road. The ROW is itself so steep, it is unlikely ever to be constructed. The proposal 12 The subdivision involves: o the construction of a substantial driveway through the north side of the proposed street-front lot past the existing house. At the boundary between the two proposed lots, the land starts to fall steeply beside an adjoining northern neighbour's house on No. 123 Pacific Rd, a battle-axe lot. This neighbour's land runs along the entire northern boundary of the subject land and on its lower sections has a substantial stand of bush containing the endangered specie Spotted Gum trees. o To avoid the steep land the proposed driveway sweeps across to the south side of No.121 and ends with a concrete slab part excavated into the hill slope below the heritage item house "Craboon", that is one of the southern neighbours at 119 Pacific Rd. o Before any work can commence on the lower part of the driveway, a boulder and silt fence must be erected to catch any loose floaters or construction materials from rolling downhill into the houses below. Erosion and silt could also affect the stand of Spotted Gums on No.123. o There is an active spring on the lower part of the site that emerges from the hill just above the house on No. 123. It follows a natural watercourse over rocks into No.123. The driveway is said not to interfere with that. o To protect trees on the upper part of the site the driveway is constructed on piers just above the ground on the street-front lot. o There is to be a stormwater detention tank under the driveway at the boundary between the two proposed lots. o On the proposed lower lot the driveway is part excavated and part on piers as it sweeps across to the garage slab. There is a retaining wall on the uphill side, and on the downhill side a turned-up concrete balustrade to resist any car impact. o A turntable is built into the drive just in front of the garage slab to enable cars and construction trucks to turn and exit in a forward direction. The turntable is also below "Craboon". o The garage slab is important as the secure end of the driveway from which the house can be constructed over the cliffs and steep slopes of the lower and rear part of the site. It is to be able to support a construction crane. o Stormwater from the existing house on the upper proposed lot is to be collected and drained along the southern boundary where it will be part underground and part above ground. It would run below "Craboon" and another neighbouring house on a battleaxe lot No.117 Pacific Road. The latter house perches on the top of a rock cliff that descends into the subject land from about halfway along the southern boundary to the eastern end of the lot. The stormwater pipe has to be attached to the cliff and drop into a new pit below from which the applicant hopes to obtain an easement to drain though one or other property further downhill. o Stormwater from the driveway detention tank comes via another route through the proposed new house site to the same pit and intended easement. 13 The application for the proposed new house on proposed Lot 2 involves: o The garage is single storey beside the southern boundary. The house is in two 2-storey pavilions stepped down the cliff and along the length of the allotment. The upper pavilion is beside and slightly below the garage. o A construction crane has to be erected on the garage slab to extract excavated material and lower new materials for construction. o A large Spotted Gum tree, No. 48 on the plans, that is to be preserved is about half way along the south boundary of Lot 2 and sits near the top of the cliff. It prevents the use of the garage crane for the lower half of the house. o Another smaller crane will have to be located on lower stages of the house as it is constructed to remove and deliver materials to positions where the larger crane can reach them. o Excavation for the house foundations will involve in places shaving off parts of the cliff face up to 3 m high and then below ground another 3.5 m to 5.5 m. Excavation for the new house detention tanks requiring 30 c. m volume will need about 2 m excavation. o The boulder and silt fence will need to be extended around the entire lower side of the new house before work can begin in order to stop any of the floaters on site rolling into downhill houses, and to stop erosion and siltation. The latter could also affect the stand of Spotted Gums that are mainly below the new house. o The house has low curved roofs said to minimise bulk and loss of views to uphill neighbours and said to reduce its visual prominence in the landscape. o All the main windows and decks look north into the stand of trees on No. 123, and but for them would have panoramic views to the ocean, Cape 3 Points and Barrenjoey headland. The Kitchen has east facing windows to the ocean. o The house is in two 2-storey pavilions, plus the single storey garage. The pavilions are connected by a stair tower that occurs only a couple of metres from Tree 48 where the excavation is 5.5 m into the ground. The tree's roots follow perched soil and water bearing crevices on the rock shelves of the cliff. o The garage floor is at RL67.4; the adjoining pavilion has Entry, Study and master Bed at RL67. Below it Beds 2 and 3 are at RL 62 giving a ceiling height of about 4.7 m. On the uphill side they are excavated about 3.5 m. An undercroft under the Study has a grey water recycling tank. o The stair tower as mentioned before is excavated up to 5.5 m. o The second pavilion has Living, Kitchen, Dining and TV room at RL64.55, and below them another TV room, Games Room and laundry at RL61.55. Below that is an undercroft with the main stormwater detention tanks for the new house, from which a pipe goes to the pit and intended easement across one or other property below. o The TV room at RL64.55 was shown to sever a main root and excavate a rock shelf containing important feeder soil for Tree 48. Since that TV room is cantilevered out from the lower structure the applicant sought a condition to delete the cantilevered section and avoid those impacts. o Maintaining overland and subterranean clean water supply to the stand of Spotted Gums below the new house required attention, otherwise they could suffer either from lack of water, or pollution of supply that could lead to their loss. o Ensuring that from the start of any construction, overland stormwater is controlled and drained away from the site is crucial to the engineers to minimise landslip risk, and the engineers favoured drainage of any other water movement subterranean or above, to take it off site to further reduce risk of landslip. The statutory controls 14 The statutory controls, DCP's, and policies which applied at the time of determination of Development Application N0056/03 are as follows: o Pittwater LEP 1993 o DCP 10 - Code for Subdivision o Subdivision Policy 7.2.49 o Locality Plan No. 3 Palm Beach Ridgeline Interim Geotechnical Risk Management Policy o DCP No. 26 - Conservation of Biodiversity 15 As of February 2004, the following statutory controls, DCP's, and policies were applicable: o Pittwater LEP 1993 o Draft Pittwater 21 LEP o DCP No. 15 - Heritage Conservation o Pittwater 21 DCP Interim Geotechnical Risk Management Policy History 16 DA N0056/03 lodged 23 January 2003 17 11 property owners notified, 7 submissions received regarding: o Impact on tree canopy, reasons for refusal of previous subdivision, height, impact on heritage item's outlook, privacy and amenity, tree removal, unauthorized access works, stormwater flows, geotechnical construction hazard, likely impact of house on conservation of threatened species trees. o Report tabled to Development Unit Meeting October 2003 recommending refusal was deferred at the request of the applicant to address issues raised in assessment and erect height poles. o Height poles erected 3 December 2003 o Report tabled to Development Unit Meeting of 4th December 2003 recommending refusal, and deferred for two weeks to allow for circulation of amended plans and allow for viewing of the height poles and clarification with Council's Natural Resources, Urban Infrastructure Branches and Heritage Advisor. Also to address sight distance from the driveway for traffic moving in a southerly direction and addressing privacy impacts to 123 Pacific Road, Palm Beach. o Report tabled to Development Unit Meeting of 15 January 2004 recommending refusal. Development Officer's report endorsed and the application refused under delegated authority. Reasons for refusal of the original application 1 The proposed subdivision fails to satisfy two of the three Aims of Pittwater LEP 1993, Clause 11(1) in regard to "Subdivision in residential zones" i.e. namely, to improve residential amenity and to enhance the environment. 2 The proposed subdivision is not considered to adequately meet "Aims" 2(b) and 2(f) or "Design Criteria For Allotments in Residential Zones" clauses 3.1(a)(vi), (b), (c) and o j) of Council's "Code For Subdivision". 3 The slope of Lot 2 greatly exceeds the allowed max. 30% for building areas to new lots under Council's "Subdivision Policy 7.2.49" and is unsuitable, by virtue of the slope within the proposed building area and likely impact on the natural rock features of the site, for further residential development. 4 A preliminary Construction Management Plan has not been provided to show the development works are feasible. 5 The proposed house roof on Lot 2 would unduly intrude into the scenic views and setting of the heritage listed house "Craboon" (No. 119 Pacific Road.) 6 The means to drain stormwater from the subdivision to Florida Road, including it, the route and necessary grant of a drainage easement (or a written undertaking from an adjoining owner willing to grant an easement) has not been provided. 7 The methodology of the Flora and Fauna Survey is unsatisfactory and the proposal is assessed as likely to result in unacceptable impact on the Pittwater Spotted Gum Forest Community by virtue of vegetation and habitat removal. 8 The driveway construction details do not address cross fall, trees in the driveway, or details of proposed carport alterations to existing house on the site. 9 'Neighbouring residents objections have been lodged to the proposal in regard to overlooking and amenity impacts. Consent to the subdivision and related house development in its present form would not, therefore, be in the public interest. 10 The proposal has not demonstrated safe vehicle exit sightlines can be provided from the driveway southwards onto Pacific Road. 18 A Section 82A application to review the determination was lodged with Council on 11th February 2004, with amended plans and a statement addressing the reasons for refusal. This application for review was withdrawn on 13th March, after it was found to be made in error considering that the proposal is considered to be Integrated Development. 19 A fresh Development Application No. 153/04 was made on 9th March 2004 for the same development, including the amended plans, and the supporting documentation previously relied upon. 20 This application has been assessed under Pittwater 21 DCP and the Interim Geotechnical Risk Management Policy and DCP 15, which are still in force. 21 Notification was undertaken in accordance with Pittwater 21 DCP, including a wider notification of properties as a result of identification of additional geotechnical hazards on the site. 22 The application has been recommended for approval by the assessing officer and the members of the Development Unit. Council considered the item at its meeting of 16th December 2004, and resolved to defer determination of the item to enable all matters to be assessed at the one time including the subject of the deferred commencement conditions if appropriate. 23 Amended plans numbered DA-01-12, and LO 1 were served on council's solicitors on 18 February 2005. The amendments were not such that the reasons for refusal of this development application were affected, however it should be noted that the amended plans are now consistent with those considered under the current Development Application No. 153/04. Respondent's Further Amended Statement of Issues 1. The application fails to provide adequate stormwater disposal arrangements in that: a) the applicant has not provided any evidence of an easement over neighbouring land which will allow for a drainage pipeline from the subject site to the public drainage system in Florida Road to be constructed and maintained; b) there is no development consent for off-site works which would be required to provide drainage pipeline to the public drainage system in Florida Road. c) Pittwater Development Control Plan 21 Part B.5.4. The Intervenor's issues in these proceedings are as follows: 1. Suitability of the site The site is unsuitable for the proposed subdivision: Particulars: a) The proposed subdivision will not improve residential amenity or enhance the environment and therefore fails to satisfy the aims of residential subdivision under Pittwater LEP 1993, cl 11(1) and Council's Code for Subdivision, aims 2(b) and (f). b) The slope of proposed Lot 2 exceeds the allowable maximum of 30%, with a slope of over 50% in the proposed building area, being unsuitable for residential development (Pittwater Council Subdivision Policy 7.2.49). c) Proposed Lot 1 is less than the minimum lot size of 1,200 sq m permissible under Pittwater 21 DCP cl B2.2. 2. Flora and Fauna The proposal will have an unacceptable impact on flora and fauna. Particulars: a The proposal is likely to have an adverse impact on the Pittwater Spotted Gum Forest, which is listed as an Endangered Ecological Community under the Threatened Species Conservation Act 1995 (Pittwater 21 DCP cl B4.6). b In addition to removal of trees in or near the building footprint, implementation of an Asset Protection Zone as required in the Bushfire Safety Authority dated 26 June 2003 and geotechnical safeguards recommended by the applicant's consultant engineers are likely to require removal of most of the remaining significant trees and understorey on the property and removal of a significant amount of bush rock. c The proposal is likely to have an adverse impact on the habitat of endangered species (see Pittwater 21 DCP, cl 4.3). d Construction of the proposed drainage pipeline is likely to have a negative impact on heritage listed trees located on No. 119 Pacific Drive, Palm Beach. 3 Visual impact As a consequence of the bulk, scale and height of the proposal and the removal of a large number of trees, the proposed development will have an unacceptable visual impact. 4 Heritage The proposal will have an unacceptable impact upon the setting of the Heritage item ''Craboon", located at 119 Pacific Drive, Palm Beach (Pittwater LEP 1993, cl 36). 5 Geotechnical The proposal relies upon the removal of substantial amounts of sandstone rocks and boulders on the site and the stabilisation of the rocks and boulders to reduce geotechnical risk on the site, which is likely to cause unacceptable environmental impacts on the site and adjacent properties. Particulars: a) Geotechnical stabilisation works are likely to adversely impact upon the down-slope properties in terms of their ongoing safety. b) The construction works proposed includes the removal of a substantial amount of bush-rock and associated damage to flora on the site. These works are likely to have unreasonable impacts upon the long term environmental qualities of the site. 6 Privacy The proposal is likely to have unacceptable visual and acoustic privacy impacts on the existing residence at 123 Pacific Road. Particulars: a) The applicant has not demonstrated that adequate capacity exists on the site in terms of deep soil planting to facilitate adequately landscaped setbacks to assist in the preservation of visual privacy. The evidence 24 The respondent's evidence was heard from: o Dr. L. de Ambrosis, geotechnical engineer 25 The applicant's evidence was heard from: - Mr S C Gartner, architect for the proposed new house. - Mr R Jeffery, geotechnical engineer - Ms C MacKenzie, arborist. - Mr R Player, town planner. - Mr P Burcher, ecologist. - Mr G Patch, architect and heritage expert. 26 The intervenor's evidence was heard from: - Ms G Davidson, intervenor and objector of No. 69 Florida Road, Palm Beach. Her house is at the east end of the site and downhill with a narrow but variable setback to the common boundary. - Mr B Brownjohn, intevenor and objector of No. 123 Pacific Road. His house and Spotted Gum bushland are on the north and downhill of the site. - Mr R Freemantle, intervenor and objector of No. 117 Pacific Road. His house is on the south uphill of the subject property, and slightly east of the proposed new house. - Adjunct Prof. Dr. P J N Pells, civil engineer specialising in slope stability analysis and design of stabilization works. - Mr I J English, arboricultural consultant. - Mr G Kolln, architectural technologist showing graphics of the visual impact of new house. - Mr B McDonald, architect and heritage expert. - Mr L Doyle, town planner. 27 Other objectors had provided written concerns. Of those directly adjoining the east downhill end of the site was No. 65 Florida Avenue, also adjoining Ms Davidson. Number 65 had similar concerns to the intervenors, plus the concern that it was one of the potential routes for a stormwater easement. Another owner at No. 77 Florida Avenue, is directly down-slope of the proposed new house across the eastern end of No. 123. The major concern is the "boulder roll line" that all the downhill objectors raised due to the geotechnical reports indicating the potential for landslip and/or boulders to come loose during construction. 28 It seems to me that the critical issues are the landslip potential and the need to drain as much water away from the site as possible together with the impact this may have on the endangered ecological community and endangered species on and below the site. 29 Mr Jeffery and Dr Pells agreed with Dr de Ambrosis, at their joint meeting on 4 August 2006 in relation to Exhibit A 13 that the maximum excavation for the proposed house is along the southern side and that the excavations are very deep presenting quite a difficult task considering that they may be done by hand excavation only. It was shown that the deepest excavation of 5.5 m previously referred to at the stairwell is all excavation below existing ground level in addition to shaving off the rock above it. Dr de Ambrosis said he had not anticipated the excavation would be that deep, and it was more than shown on the drawings. This added to his opinion that whilst the proposal is geotechnically feasible to construct, it would be difficult. 30 When the construction management plan was looked at during the view on-site, and it became part of Exhibit D, there was doubt cast on whether or not it could be achieved. On-site it was shown that stages 1 and 2 needed to be reversed before any work could be done on the lower part of the site. The shared driveway from Pacific Road down to the common boundary of the proposed lots needed to be constructed on piers so that construction traffic would not disturb the existing bush land on the upper part of the site. 31 Also looking from the proposed site of the garage, where the main construction crane would be located it also appeared evident that it could not be used to construct the whole of the house due to the location of Trees 42 and 48. This had not been previously considered. 32 Dr. Pells referred to the amount of excavation of rock and the excavation below the existing ground level particularly for the on-site detention tanks and that it was a substantial volume of 30 cubic meters. It was put to Dr Pells that the construction management plan largely dealt only with the physical construction of a new dwelling and not the excavation prior to its construction. Given that situation Dr Pells wondered how the amount of material to be excavated could be first of all dug out and then removed from the site together with the management of storm water during the whole of this process due to its potential to create landslip when the ground is opened. 33 Dr Pells also considered that the proposal would modify natural ground water flow where there are significant depths of excavation and retaining walls. The need to collect this water and pipe it away will lead to an alteration in subsurface hydro-geology. Dr de Ambrosis agreed with this and also conceded that runoff will be altered due to the presence of the house and the storm water collected from its roof being diverted away from the site. 34 In the preliminary work on the site of removing existing floaters and surface boulders, it was estimated they numbered between 60 and 100 both underneath the proposed house and outside its footprint. The risk to downhill houses in removing them had not been assessed in detail and it had been assumed that the risk could be managed by careful construction practices. There could also be tree loss where rock shelves are disturbed upon which trees are located. 35 Mr English had examined the flora, principally the vegetation on-site and immediately down hill on No. 123. He was concerned that the lack of final knowledge about the extent of excavation and the impact on the subterranean hydrogeology. However, he could understand from the evidence that there would be substantial changes to both the overland flow down hill to the trees on No. 123 by both interception and diversion of water and substantial changes to the underground water flows. 36 Of trees on the site there was contradictory evidence from Mr English and Ms MacKenzie in regard to whether or not trees 48, 57, 58 and six cheeze trees just outside the footprint of the house would survive or die or need to be removed during construction. Most of the under-storey vegetation would be removed. The proposed bush land management area at the eastern end of the site is intended to compensate for the loss of existing on-site vegetation. However, it would not compensate for any loss on No. 123. 37 Mr English was also concerned that the NSW Rural Fire Service requirements would affect the density of replantings intended to compensate for lost vegetation. The whole site is to be maintained as an Inner Asset Protection area from bush fire. This means there is to be minimal fine fuel at ground level which could be set alight by bush fire and any vegetation should not provide a path for the transfer of fire uphill. This meant any trees to be planted needed to be far enough apart such that fire would not jump from canopy to canopy. The steepness of the site meant that in the event of bush fire it would travel rapidly uphill. 38 The geotechnical experts considered that the claim of the applicant that the site complied with the 30% maximum slope was due only to a convenient selection of the place to measure it. The downhill lot of the proposed subdivision is, on a proper average slope much greater than 30% and in places reached 60% slope. Nevertheless they said they were not sure why the council controls at the 30% slope limit as it was not obvious from the documents and need not of itself prevent construction. 39 Some reasons, not geotechnical, may be that very steep sites provide little area for recreational yard space for residents to use and increase danger in bush fire conditions and as Mr Doyle wrote: The Planning Controls expressed in the Pittwater Council Subdivision Policy and other documents are clearly to avoid the development of sites, that by virtue of their slope and likely visual prominence, cannot be reasonably developed without substantial geotechnical remediation being carried out at the expense of the natural environment. The design of the proposed dwelling proposes a significant undercroft structure whilst the design of the driveway to serve the proposed rear lot will also project above the ground surface. I consider that the proposed dwelling and driveway are very unreasonable in their visual impact on such a sensitive site. In addition, due to the lack of opportunities for meaningful landscaping to occur on the site the proposed structures are also likely to have significant visual impacts. 40 The trees on No. 123 become the major means of softening the strong architecture of the design to blend it into the landscape. Apart from these matters, the statutory mapping in evidence showed that the site is Category 2 Flora and Fauna habitat. The only part of the site that is not so classified is the cleared area where the existing house is on-site and the area above the house on No. 123. 41 The site is also included as Classification CO1 "Areas though disturbed are likely to be of habitat value due to good crown cover and/or under-storey". When seen on a larger scale map of the peninsula in Pittwater 21 Development Control Plan the subject land is within a large area identified as Flora and Fauna Conservation Category 1 and 2. 42 Interestingly the subject land and No. 123 are shown to be just outside areas marked as containing Spotted Gum trees when the trees are there in reality. 43 The substantial reserve following the ridgeline just uphill of the site, is shown as the Spotted Gum Ecological Community. The trees and topography in and around the site are part of the scenery as observed from the beach below and blend into those areas identified on the maps as having Spotted Gums. The inclusion of most of the site as Flora and Fauna Conservation Category 2 with habitat value overrides in my opinion any omission on the maps regarding Spotted Gums on it and No. 123. 44 The applicant put that even if the trees were lost it only constituted 0.1% of the identified community of trees and could not be seen as significant. 45 It should also be noted that it is not just the Spotted Gum trees that are valuable. The under-storey is equally valuable in sustaining the total community which has been identified in the Sydney Basin Bioregion as an Endangered Ecological Community. Clearing of under-storey to achieve rural fire service requirements would in time lead to the decline of the trees and any habitat value. 46 The geotechnical experts were opposed to any artificial means of irrigating vegetation downhill on and below the subject site due to the potential to create landslip on the subject property. 47 Whether or not the stand of trees on No. 123 would constitute such a bushfire hazard that action might be taken to remove them for bush fire protection was not the subject of investigation. 48 Mr English said once the requirements of the Rural Fire Service were implemented on site the canopies of the trees would be separated and due to the salt exposure in the area the remaining trees would become vulnerable from that source as well as lack of water. Greater susceptibility to insect and biological attack would result. There would be less possibility of wild life using the bush as a corridor, due to the increased spacing between tree canopies if some were removed or if the compensatory bushland area on-site had trees spacings sufficient for fire protection, together with the removal of under-storey vegetation. 49 These are all outcomes contrary to cl B4.6 of Pittwater Development Control Plan No. 21. In considering all the evidence on this matter, it is my conclusion that the Intervenor's Issues 1, 2(a), (b), (c) and 3 have determinative weight and the site is unsuitable for the proposed subdivision and the proposed house under s 79C (1)(i) and (ii) and s 79C (1)(b) and (c) by virtue of: a) its steepness well in excess of 30% as agreed by the geotechnical engineers, and creates such requirements for any development that the impacts are unacceptable. b) the potential for landslip and the necessity for collection of both underground and rainwater and diversion off the site and c) the conflict of this requirement with the means of survival for endangered tree species and Endangered Ecological Community both on the site and immediately below it particularly, the latter, which would be denied the means of survival. d) such loss apart from the adverse impact on the bioregion is an impact upon the property of the neighbour at No. 123 Pacific Road, that is unacceptable. 50 Therefore the orders of the Court are: 1. Both appeals are dismissed. 2. The exhibits are returned to the parties except A3, A4, A5, A7, A8, A12, A13, A14, 6, 7, 9, 13, 14, 15, 16, 17, C, D, N, O, P and Q. ___________________ K G Hoffman 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.