Land and Environment Court of New South Wales CITATION : Kumar v Hornsby Shire Council [2005] NSWLEC 43 APPLICANT Kishor Kumar PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 11252 of 2004 CORAM: Hoffman C KEY ISSUES: Development Application :- Significant tree in way of house Hornsby Local Environmental Plan 1994 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 10/02/2004 EX TEMPORE JUDGMENT DATE : 02/10/2004 APPLICANT Mr G McKee, solicitor SOLICITORS McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT Mr T Pickup, solicitor SOLICITORS Storey & Gough JUDGMENT: - 4 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 10 February 2005 11252 of 2004 Kishor Kumar v Hornsby Shire Council JUDGMENT 1 This was a class 1 appeal No. 11252 of 2004 between Kishor Kumar and Hornsby Shire Council in regard to the refusal of consent for extensions to a house at No. 55 Dorset Street, Epping. 2 The site was a corner lot with Gloucester Road. The original reasons for refusal were related to streetscape and tree preservation. Amended plans resolved the streetscape concerns and at the hearing on-site, the single issue was tree preservation. 3 A large Blackbutt in the back yard exceeded 22 m in height and was in good health and assessed as a significant tree under the council's Dwelling House DCP adopted under the Hornsby Shire Council's LEP 1994. 4 The house was in the Residential A zone. The house extensions were permissible with consent. 5 This locality of Epping was characterised as a leafy treed area in which the indigenous Eucalyptus predominated. There were heritage listed trees along the roadway in Dorset Street. The parties agreed this proposal did not affect them. 6 The single issue remaining in this appeal was: " Design 1. Deleted. Removal of Tree 2. The proposed development will require removal of a significant tree which contributes to the environmental character of the area. (Refer Landscaping and Flora and Fauna Protection Elements of the Dwelling House DCP)". 7 The hearing was attended on behalf of the respondent by: · Mr T Pickup, solicitor for the respondent of Storey and Gough · Mr T Stenning, building surveyor, Hornsby Shire Council · Mrs C Lawrenson, resident, 62 Gloucester Road, Epping · Ms R Lawrenson, resident, 62 Gloucester Road, Epping · Ms M Smith, resident, 60 Gloucester Road, Epping · Mr L Smith, resident, 60 Gloucester Road, Epping · Ms K Formatti, Hornsby Shire Council · Mrs Lawrenson had authority to speak for Mr and Mrs Browning of No. 50 Dorset Street who were away. 8 On behalf of the applicant the hearing was attended by: · Mr K Kumar, 55 Dorset Street, Epping · Ms S Lall, 55 Dorset Street, Epping · Mr G McKee, solicitor for the applicant of McKees Legal Solutions 9 The existing house was about a 1950's small brick bungalow of 3 bedrooms, a combined living and dining room with a separate kitchen and back verandah. 10 The applicant's position was that the modest house extensions came so close to the tree such that it would interfere with the roots and the extension would be clearly under the canopy of the tree. 11 The interference with the roots would destabilise and probably kill the tree, and in any case limbs were known to drop from it and a house beneath and persons could be safety impacted. 12 The neighbour at No. 53 Dorset Street a Mrs Kollman had a 4 m long x 13 cm diameter branch from the tree fall on her yard recently and it damaged roof tiles. She had formerly requested the tree be removed due to the danger. The letter was in Exhibit C. 13 The subject site was constrained under the control plan in that any extension to the rear of the house would have to stay a minimum of 4 m from the tree trunk. 14 Four metres may not be sufficient for such a large tree to keep it healthy. No root survey had been done to know if a setback greater than 4 m would be needed. 15 Even at 4 m distance, it would leave only a 5 m width for building extensions between that and the Gloucester Road side setback requirement. That would result in a long finger-like extension to the house down the sloping back yard in order to obtain a similar floor space to that proposed. If more than 4 m clearance from the tree was needed the house extension would need to be narrower than 5 m. 16 The proposal included a family room and 2 bedrooms at the existing house level and a garage and store room below. It was modest in size. Vehicle access to the garage was obstructed by a twin pole overhead electrical transformer on the Gloucester Road frontage adjacent the location for the extension. 17 The driveway to the garage could not be taken directly from Gloucester Road to the lower floor. 18 As a result the driveway had to enter the site beyond the rear of the extension and then curve into the garage in the lower level. 19 The lower level of the extension was excavated up to a metre in the ground. To obtain a practical gradient to the drive and a suitable driveway curve for a car the garage needed to be on the side of the extension near the tree. The driveway would actually pass through the trunk of the tree. This would certainly destroy the tree. 20 The only other alternative would be a detached garage further down the back yard, and a considerable reduction of the modest extension of the house to give sufficient clearance to the tree. 21 Even that solution would still retain the large canopy that overhung the neighbour's house and yard at No. 53 Dorest Street and would overhang most of the proposed extensions. 22 The objectors and the council were concerned about the loss of a significant tree that was so tall it was visible from many locations outside the site. As trees go in the vicinity it was about the same height as the many larger trees. Its loss would reduce the visual amenity of the locality and one would not want to diminish that. As the objectors said, the large trees were part of the reason people chose to live in this area. If many trees were lost as a result of this and extensions to other houses then the ambience and fauna habitats would slowly disappear. 23 The applicant volunteered to plant three new indigenous trees in locations on the site where they could not interfere with the proposed extensions or neighbouring houses and minimise danger to persons beneath their canopies. The respondent drafted a suitable condition in Exhibit 5. It required species of large trees to be grown and maintained. 24 It seems to the Court this is the sensible approach. In this particular case the site constraints did not permit a practical redesign of the house extensions that would preserve the tree. Also there were existing potential dangers from the existing tree to the neighbours and children/adults in the back yard of the site. 25 Therefore the Orders of the Court are: 1. The appeal is upheld. 2. Consent is granted to house extensions and removal of a significant tree at No. 55 Dorset Street, Epping, as shown on annotated plans in Exhibits A and B of this appeal as retained on the Court's file all subject to the conditions as annotated in Exhibit 5 and reproduced in Annexure A hereto. 3. The exhibits are returned to the parties except Exhibits A, B, C, D, 1, 2 and 5. ________________ K G Hoffman Commissioner of the Court rjs Annexure "A" Conditions of Development Consent Kishor Kumar v Hornsby Shire Council Development Application No. 311/04 for the demolition of an existing garage, removal of a tree and for alterations and additions to the existing dwelling at 55 Dorset Street, Epping is determined by the granting of consent in accordance with the plans identified in Schedule A and subject to the following Conditions:- Site Works 1. No site works, including the removal of vegetation or any demolition works, shall be commenced prior to: a. A construction certificate being issued; b. Sediment and erosion control measures being implemented; (i) Construction Certificate – Building 2. In order to certify that detailed construction plans and specifications are in accordance with the requirements of the Building Code of Australia, development consent and relevant Australian Standards, a construction certificate must be obtained from either Council or an accredited certifier prior to building works commencing. Principal Certifying Authority 3. Before any construction works commence, you are required to appoint a Principal Certifying Authority as required by section 81A of the Environmental Planning & Assessment Act, 1979. The Principal Certifying Authority is responsible for ensuring that all the works are carried out in accordance with the approved plans and specifications. Notifying Council of Commencement of Works 4. It is a requirement of the Environmental Planning and Assessment Act (Section 81A(2)(c)) that you notify Hornsby Council at least two (2) days prior to the intention to commence works. Building Code of Australia 5. All building work must be carried out in accordance with the requirements of the Building Code of Australia. Use 6. The development approved under this consent shall be used for the purpose as described and no other purpose. Engineers – Structural 7. All reinforced concrete slabs and footings shall be designed and constructed in accordance with Australian Standard 2870-1 - 1988 "Residential Slabs and Footings" or be designed by a qualified chartered professional structural engineer. Protection of Trees 8. In accordance with Hornsby Shire Council's Tree Preservation Order, all existing trees shall be retained except where Council's written consent has been obtained for removal, or where after approval of the relevant development application, trees stand within 3 metres of approved buildings or within the alignment of approved vehicular access or parking areas. Underground utility installations are to be located at least 3m from the trees protected by this condition. Sediment and Erosion Control 9. Sedimentation and erosion controls are to be constructed prior to commencement of any work to eliminate the discharge of sediment from the site. The controls are to be designed and installed in accordance with the requirements of Landcom's "Managing Urban Stormwater: Soils and Construction", Volume 1, 4th Edition, March 2004, (the Blue Book), and Hornsby Shire Council's "Sustainable Water Best Practices" manual and shall:- a. be effectively maintained at all times during the course of construction and shall not be removed until the site has been stabilised or landscaped to the Principal Certifying Authority's satisfaction. b. include a single all weather accessway at the front of the property consisting of 50-75mm aggregate or similar material at a minimum thickness of 150mm and 5m long, laid over geotechnical fabric and constructed prior to commencement of works. c. include adequate measures to remove clay from vehicles leaving the site so as to maintain public roads in a clean condition. d. ensure that no fill or spoil encroaches upon adjacent bushland for the duration of the works. e. ensure disturbed areas are rehabilitated with indigenous plant species, landscaped and treated by approved methods of erosion mitigation such as, mulching, and revegetation with native grasses or other suitable stabilising processes within fifteen days of the completion of works. Dust Control 10. Measures to prevent the emission of dust or other impurities into the surrounding environment are to be implemented during demolition works. Demolition 11. All demolition work is to be carried out in accordance with the applicable provisions of Australian Standard 2601-2001 'The Demolition of Structures'. Note : Applicants are reminded that WorkCover NSW requires all plant and equipment used in demolition work must comply with the relevant Australian Standards and manufacturer specifications. Asbestos Removal 12. Prior to commencement of any work involving the demolition, alteration or addition to any building on the development site, a survey is to be conducted by a competent person to ascertain whether any asbestos materials exists on the site. Asbestos material means any material that contains asbestos. 13. Where asbestos material is found to exist on the development site and that asbestos material is to be removed or disturbed as a result of any proposed demolition, alteration or addition, then all work involving removal and disposal of asbestos material must be undertaken by persons who hold the appropriate licence issued by WorkCover NSW under Chapter 10 of the Occupational Health and Safety Regulation 2001. 14. The collection, storage, transportation or disposal of any type of asbestos waste is to comply with the requirements of clause 29 of the Protection of the Environment Operations (Waste) Regulation 1996. 15. Upon completion of disposal operations, the applicant must lodge with the Principal Certifying Authority, within seven (7) days, all receipts (or certified photocopies) issued by the receiving landfill site as evidence of proper disposal. Note: The person responsible for disposing of the asbestos material shall consult with the Department of Environment and Conservation to determine the location of an approved landfill site to receive asbestos material. 16. On construction sites where buildings contain asbestos material, a standard commercially manufactured sign containing the words 'DANGER ASBESTOS REMOVAL IN PROGRESS' measuring not less than 400mm x 300mm is to be erected on the site in a prominent position visible from the street. The sign is to be erected prior to any work commencing and is to remain in place until such time as all asbestos material has been removed from the site to an approved waste facility. This condition is imposed for the purpose of worker and public safety and to ensure compliance with Clause 259(2)(c) of the Occupational Health and Safety Regulation 2001. Signs for Demolition Sites 17. A sign must be erected in a prominent position on the premises, on which the demolition of a building is being carried out, stating that unauthorised entry to the premises is prohibited and showing the name of the builder or other person in control of the premises and a telephone number at which the builder or other person may be contacted during and outside work hours. The sign is to be removed when the demolition of the building has been completed. Hours of Demolition/Construction 18. In order to maintain the amenity of adjoining properties, site works shall be restricted to between 7.00 am and 6.00 pm, Monday to Friday and 8.00 am to 1.00 pm Saturday. Site works may extend to 4.00 pm on Saturdays if inaudible on residential properties. No work shall be undertaken on Sundays or public holidays. Plant, goods or materials shall not be delivered to the site outside the approved hours of site works unless otherwise approved by Council. Signs for Construction Sites 19. On-site signage is required to clearly identify the PCA and the principal contractor (the coordinator of the building work) pursuant to the Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003, s157(1)(c1), Cl 98A, 136C & 227A. Inspections – Building 20. The building works must be inspected by the Principal Certifying Authority certifying that the works comply with the development consent and the approved plans and specifications for the following nominated stages: - a. The pier holes/pads before they are filled with concrete; b. The steelwork (i.e. strip footings/ floor slab) when in position and before concrete is placed; c. Retaining walls / underpinning when in position and before concrete s placed; d. The framework including roof members when completed and prior to the fixing of any internal sheets; e. The wet areas, damp-proofing and flashing before or after lining, whichever is applicable; f. Stormwater/subsoil drainage lines prior to backfilling of trenches. g. The building or structure when completed and before occupation or use is commenced. 21. It is the responsibility of the builder/applicant to organise the required inspections. Should Council be nominated as the certifier of works, inspections can be arranged by contacting Council on 9847 6760 during normal business hours. Sydney Water 22. The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. The approved plans will be appropriately stamped. For Quick Check agent details please refer to "Your Business" section of Sydney Water's web site at www.sydneywater.com.au then see Building & Renovating under the heading Building & Renovating, or telephone 13 20 92. The consent authority or a private accredited certifier must ensure that a Quick check agent/Sydney Water has appropriately stamped the plans before the issue of any Construction Certificate. Landscaping 23. The area surrounding the building shall be reinstated to good order as soon as practicable after the completion of site works including, where necessary, the establishment of new landscaping. The natural ground levels of private open space areas are not to be altered unless otherwise indicated on the approved plans. Landscaping as in Condition 44 to be carried out. Use of Materials 24. The finished surface materials, including colours and texture of any building and/or hard paved areas, shall blend with the surrounding environment and shall be non-glare. 25. The fascias, roofing sheeting, roller doors and external wall cladding are to be painted, factory pre-coloured or treated to prevent glare nuisance, in a tone that blends with the environment. Accessway/Driveway 26. A separate application under the Local Government Act 1993 and Roads Act 1993 shall be submitted to Council for approval for the following: a. the installation of a vehicular footway crossing servicing the development, and the removal of any redundant crossings; b. the undertaking of work within a public road ( this includes Laneways, Public Pathways, Footways). 27. A rigid pavement driveway servicing the dwelling shall be constructed prior to occupation. Grades in excess of 25% are not permitted and changes in grades shall not exceed 8%. Drainage 28. Roof and collected surface and subsoil stormwaters shall be collected and connected to Council's street water table or piped drainage easement. All stormwater drainage shall be designed to satisfactorily drain rainfall intensities for an average recurrence interval of 20 years. Retaining Walls 29. Retaining walls or other approved methods necessary to prevent the movement of excavated or filled ground, are to be constructed together with associated stormwater drainage measures prior to occupation of the development or before where site conditions require. The design details for the retaining wall)s) are to be submitted with the Construction Certificate. Survey Reports 30. To ensure that the building and any associated structures are correctly positioned on the site, a report prepared by a registered surveyor is to be submitted to the principal certifying authority at footing stage and at the completion of the building indicating that the building, retaining walls and the like have been correctly positioned and at the correct height, on the site. Council Property 31. No building materials, waste, machinery or related matter are to be stored on the road or footpath and the pathway is to be kept in a clean, tidy and safe condition during the building works. Further, Council may, without notice, impose a fine and/or rectify any such breach and charge the cost against the builder, owner or applicant. 32. The land and adjoining areas are to be kept in a clean and tidy condition at all times. Litter and rubbish to be placed in containers and removed from the site. A waste storage container is to be provided at the commencement of the building work. 33. Any damage that may be caused to any Council property or adjoining land as a consequence of doing or not doing anything to which this approval relates shall be made good, at the applicant's expense, prior to occupation or use of the structure. 34. This approval does not give right of access to the site from Council owned or controlled land, a park, a reserve or the like. Should such access be required, written approval is to be obtained from Council's Environment Division. Home Building Act 1989 35. The builder or person who does the residential building work must comply with the applicable requirements of Part 6 of the Home Building Act 1989 and must not contract to do any residential building work unless a contract of insurance that complies with that Act is in force in relation to the proposed work. A copy of the contract of insurance shall be submitted to Hornsby Council before any works commence. Long Service Levy 36. Under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 any work costing $25,000 or more is subject to a Long Service Levy. The levy rate is 0.2% of the total cost of the work and shall be paid to either the Long Service Payments Corporation or Hornsby Shire Council. Under section 109F (1) of the Environmental Planning & Assessment Act, 1979 this payment must be made prior to a construction certificate being issued. Subterranean Termites 37. The building shall be treated against subterranean termites in accordance with AS 3660 Part 1, "Protection of Buildings from Subterranean Termites ". 38. Certificates of treatment shall be submitted to the Principal Certifying Authority and Hornsby Council and a notice of treatment, in accordance with the standard shall be affixed to the building. (Building Code of Australia Part 3.1.3 "Termite Risk Management".) Noise 39. The use of amplified equipment, such as radios and the like during construction stage shall not be used where the noise is audible on any neighbouring property. Toilet Facilities 40. Closet accommodation is to be provided at the work site at all times and be located wholly within the boundaries of the property. Smoke Alarms 41. Smoke alarms shall be installed in the building in accordance with the Building Code of Australia. A certificate from a licensed electrician certifying that the smoke alarms have been connected to the consumer mains power is to be submitted to Hornsby Council with the occupation certificate. Occupation 42. The building or part thereof shall not be occupied until an occupation certificate has been issued in accordance with Sections 109C and 109H of the Environmental Planning & Assessment Act, 1979. 43. The premises shall be occupied solely for the approved use. No separate occupation or use of any part of the premises shall take place without prior development consent, (other than for exempt or complying development). 44. Three (3) trees are to be planted in the following locations:- (a) One (1) tree in the front setback to Dorset Street in the position marked "A" on the plan which is Exhibit A being no less than 6 m from the existing dwelling. (b) Two (2) trees located generally in the north eastern corner of the rear yard being within 6 m from the Gloucester Road boundary and 6 m from any existing dwelling. (c) The replacement trees are to be of a locally indigenous species as listed in Council's Publication "Indigenous Plants of the Bushland Shire" with a minimum growth height of 12 m. (d) The trees are to be maintained in good health or replaced if any die during the life of the building. (e) The trees are to be planted prior to the issue of any occupation certificate. Schedule A § Site plan prepared by McRae Civil & Structural Pty Limited (showing the height and location of the retaining wall), received on 17 January, 2005. § Site Plan/Basement Plan/Existing Floor Plan/Elevations/Sections prepared by McRae Civil & Structural Pty Limited, Drawing No. MC09 as updated 25 November, 2004 as annotated in Exhibits A and B of this appeal and held on the Court's file. _____________ 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.