Land and Environment Court of New South Wales CITATION : Maybrook Manor Pty Limited v Warringah Council [2008] NSWLEC 1160 APPLICANT Maybrook Manor Pty Limited PARTIES : RESPONDENT Warringah Council FILE NUMBER(S) : 10460 of 2007 CORAM: Hoffman C KEY ISSUES: Development Application :- Stage 3.2 of a retirement village, loss of view, carparking, traffic, additional population, endangered species, flora and fauna, easement, Crown Land and landscaping, bushfire protection. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Local Government Act 1993 Rivers and Foreshore Improvement Act Rural Fires Act DATES OF HEARING: 03/04/2008 and 04/04/2008 DATE OF JUDGMENT: 4 April 2008 APPLICANT Mr N. Hemmings, QC instructed by L Mauger of Allens Arthur Robinson LEGAL REPRESENTATIVES: RESPONDENT Mr N. Howie, solicitor of Wilshire Webb Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 4 April 2008 10460 of 2007 Maybrook Manor Pty Limited v Warringah Council JUDGMENT 1 This is a Class 1 Appeal No. 10460/07 between Maybrook Manor Pty Limited and Warringah Council in regard to the refusal of DA 2005/0321 for stage 3.2 of a retirement village at No. 6 Jersey place, Cromer. The terms of the refusal were, in summary: (a) The refusal of the Rural Fire Service to issue general terms of approval under the Rural Fires Act ; (b) The refusal of the Department of Natural Resources to issue general terms of approval under the Rivers and Foreshores Improvement Act . I note that the latter Act has been superseded by later legislation which the parties accept apply to this appeal; (c) Council had not issued owners consent for work in a public reserve adjoining the site for a bushfire asset protection zone and that such buffers are preferred to be entirely within the subject property, not on adjoining land; (d) The provision of an asset protection zone in the public reserve would involved clearing of bushland adjacent Wheeler Creek. 2 As one can glean from these reasons, the proposed building, the subject of this appeal is in general acceptable to the council. It was the external effects that concerned council and the need for provisional approval of other government authorities. 3 Appearing at the hearing were objectors: o Ms J Scott of No. 6 Jersey Place; o Ms R Stone of unit 303/6 Jersey Place; o Ms F Robinson of unit 401/6 Jersey Place; o Mrs M Santos of No. 3 Jersey Place; o Mrs J Moran of No. 6 Jersey Place; o Ms E Harvey of unit 501/6 Jersey Place; o Mr T Slatford of unit 912/6 Jersey Place; o Mrs D Walsh of 12 Boylson Place; and 4 Also giving evidence was: o Ms J Bennett who was a representative of the National Parks Association of New South Wales and a director of a private organisation called Natural Areas Limited who manage a flora and fauna conservation area downstream of the site along Wheeler Creek and also the Narrabeen Lagoon Catchment Association. 5 Giving evidence on behalf of the applicant was: o Mr L Winnacott, consulting town planner; o Mr D J Robertson, ecologist; o Mr R Fenwick, bushfire consultant; o Mr P M Clark, company secretary of Maybrook Manor for the last 17 years; and o Mr S Murray, recreational planner and landscape architect. o Mr J Doherty also of No. 6 Jersey Place, Maybrook Village. 6 I might summarise the objectors' concerns. The residents of Maybrook Manor were concerned about loss of views to the bushland from existing units across the proposed new building. They were concerned about loss of existing informal parking that is done on the site of the proposal for the stage 3 development. They were concerned about loss of recreation space which is on the edge of this stage 3 site. They were concerned about construction traffic coming onto the site since it would have to travel through most of the land to get down to the bottom of the site where the proposal is located. They were also concerned about the additional population of the proposed development who would need to use a single lift in the stage 1 building in order to access the route via more lifts in the stage 2 building to get up to Maybrook Avenue and the bus stop in that location. Also the stage 1 building had a number of community facilities such as a library, a dining room and swimming pools, gym and spa that would be used by all residents and additional use of the lift would be required. They also felt that there was sufficient development on the site now and the proposal should not be agreed to as a further intensification of use. 7 Mr Doherty, who is also a resident, supported the proposal. He said that he had always known about the stage 3 development and in its various forms. He had attended resident committee meetings at which they were discussed before they were sent to council. Also when he purchased his unit there was a disclosure statement which indicated what was proposed on the current site. 8 I might add some of the objectors from Maybrook Manor said that they had only seen the plans the night before and in fact they felt as though they had not been kept informed about the proposal. 9 Mr Clark was able to say that several of those persons had attended and were recorded as attending resident committee meetings during the process of various draft designs, and including the preparation of a model of the proposal. These meetings and the model had been so all residents could more easily understand the proposal prior to the matter being put to council. 10 In regard to the car parking spaces he advised that the area of the site of the stage 3 development was on top of a large amount of fill that had been placed on the site in preparation for the stage 3 development as currently approved. Residents were allowed to park there free of charge. However it was only until such times as the stage 3 development was commenced. 11 He noted that in all cases since inception of even the stage 1 development there had been memos given to any purchaser about the total approval granted by council and the stage 3 proposal being anticipated at some time in the future. Since the advent of the Retirement Villages Act in 1999 there had been a mandatory disclosure statement about it incorporated into all these agreements that meant that occupants of the 99 year leaseholds in the retirement village should have been aware at the time of signing the lease about the stage 3 proposal. 12 Mr and Mrs Santos are in the house at the top of the driveway and are above a building containing 10 units on the site that is called stage 3.1 which had been built a couple of years ago. Their concern is mainly to do with intensification of use of the site and its effect upon their cul-de-sac. In particular Mrs Santos drew attention and took the Court to the street driveway entry. Difficulties were experienced from time to time with drivers coming out of the driveway and crossing to the wrong side of the road because of the configuration of the downhill curve of Jersey Place. In particular, as we saw on the day of the hearing, a car parked immediately uphill of the driveway entry forced any exiting car over onto the wrong side of the road. 13 Mrs Santos said that parking in Jersey Place is at a premium at night and weekends when all families are at home. Many houses have more than three cars, and the topography of the place prevents them all being parked in their respective houses. As a result cars are parked up both sides of Jersey Place, some of whom would have been visitors to residents of the village in her opinion. She said at those times congestion is a nuisance and drivers have to take particular care. 14 Mr Clark was able to advise that these concerns had been raised in the past and in fact had resulted in the village widening the driveway entry to give drivers more room to manoeuvre and better sightlines. 15 Also the council traffic committee had considered the matter in 2006 after Maybrook took the local residents' concerns to the council. In those deliberations the traffic committee decided that the cul-de-sac had such a low volume of traffic and so few residents that no action should be taken in terms of a "No Parking" restriction in parts of the street that would facilitate manoeuvring of trucks on and off the site, as well as cars. 16 Having observed cars parked in the street and the manoeuvres of drivers entering and leaving the site at the time of the hearing, it seems to me that it might well be advisable for the traffic committee to revisit these concerns and to reconsider the previous decision. 17 The respondent put that in regard to construction traffic the draft conditions incorporated a construction traffic management plan as well as a construction management plan, both of which would have to be approved by council, and that the concerns raised by the residents of both the village and the houses in Jersey Road could be given consideration. 18 Mrs Walsh is on the corner of Boylson and Maybrook and said that she had experienced problems in previous construction on site of prime movers and low loaders parking in Maybrook adjoining her property or opposite in preparation for access to the site. They arrived before 7am in the morning and caused nuisance to the local residents and she was anxious that this sort of problem should not occur again in any construction of stage 3. 19 Once again the parties told me that the appropriate conditions on traffic management during construction and construction management itself would take such matters into consideration and minimise any adverse effect upon local residents. 20 Mr Doherty supported the proposal. He said he had been a resident for eight years and it was a good place to live, there is a significant amount of unused land and it should be built on as proposed in this revised stage 3. He said additional people on site would make the communal facilities better used, in particular the dining room. He said part of the problem at the moment was the costs of running all the facilities and not having additional people such as those who might occupy a stage 3 to contribute to those costs. In his experience the games rooms and their associated kitchens and the barbecue areas are seldom used. In regard to concerns of impacts on local wildlife he said that he had observed that residents from nearby houses used the subject site to access the bushland and the Crown lands beyond the property. Local homeowners and their pets could be responsible for any adverse effect on local wildlife more so than residents of the proposal. 21 Ms Bennett, representing the groups that she was associated with, agreed in cross-examination that she did not have any ecological expertise. She is an amateur enthusiast in the matter and is a teacher. She drew attention to the endangered species known in the area. However in further cross-examination it was revealed that she had not read the Statement of Environmental Effects that had researched and considered all of those species and the ecology of the locality and had found, after the carrying out of an eight part test on flora and fauna, that there is no endangered specie or habitat or ecological community that would be endangered by the proposal. 22 The proposed building would replace the original development consent for stage 3 granted in 1985. Council itself had approved the retirement village on the subject site in 1982 but an application to modify the proposal in 1983 was disputed and came to the Land and Environment Court which granted the 1985 consent. Stage 1 was built after 1985 and is located in about the middle of the site. Stage 2 was built after 2001 at the top of the site adjacent Maybrook Avenue with conditions requiring bushfire hazard reduction zones and dedication of the existing council public reserve along Wheeler Creek. Also it required the existing access driveway from Jersey Place and, as mentioned before, the latter is a cul-de-sac that curves quite steeply downhill from Maybrook Avenue on the ridge. The cul-de-sac is short having only five houses as well as the village off it. The drive entry to the village is about midpoint on the outside of the curve. 23 Stage 3 of the original consent was broken into two parts, the first being stage 3.1 and that was built in 2005 with 10 units in the first of 11 cluster buildings in stage 3. These were approved on the lower part of the site between the stage 1 building and the public reserve on Wheeler Creek. Overall stage 3 as currently approved consists of 69 residential units. In this development application called stage 3.2, the number of units has been greatly reduced. First of all there are 10 units in stage 3.1, so the 59 remaining units have been reduced to only nineteen units in this stage 3.2. 24 The 59 units were to be in the remaining 10 buildings up to three storeys high on the large landfilled level platform below the stage 1 building. The landfill has been carried out some years ago and extends from stage 1 down to the public reserve boundary. 25 The evidence is that the proposal consolidates the 10 scattered buildings into two. The two buildings are each three storeys high but are excavated into the landfill area instead of being on top of it. They run parallel to each other along the contours of the land and have benefits over the existing consent according to Mr Winnacott and Mr Murray. Those benefits are: (a) Being stepped down the hill slope it means out of six floors four of them have views to the bushland south of Wheeler Creek; (b) Being excavated the top of the upper building is below the first level of residential flats in the stage 1 building and will have minimal impact on views from the stage 1 units; (c) The flat roof of the new stage 3.2 will be vegetated to soften the form and blend with the bushland beyond as seen from the units in stage 1; (d) It consolidates the new buildings from 10 buildings to two and thus provides larger setbacks from boundaries and larger areas of recreational open space and communal facilities; and (e) the small garden areas between the 10 buildings, the scattered nature of the 10 buildings would have meant fewer buildings would have bushland views due to some building being behind others. The proposal is better. (f) The bushfire asset protection zones for the stage 3.2 can be wholly within the subject site except for part of the public reserve, the original stage 3 would have required asset protection zones across the riparian zone of the creek and south of it. Also it would have required asset protection zones into Crown land at the western end and the eastern end of the subject property; (g) The asset protection zone in the public reserve can be reduced because of the new design so that the bushland along the riparian zone of Wheeler Creek can be almost undisturbed; (h) Disabled access to the stage 3 buildings and their recreational open space, the community facilities and the public reserve and through to stage 1 and stage 2 buildings up to the bus stop on Maybrook Avenue have been made much easier than in the original stage 3 cluster development, this is important for a retirement village and the amenity of its residents. 26 At the hearing the parties told the Court they had reached agreement on all matters except condition 5A(d) in Exhibit 6. It said in effect that the easement over the public reserve for the Bushfire Asset Protection Zone Management had to be registered on title before issue of a construction certificate. The easement is required to have a plan of management under the Local Government Act approved by council and the Department of Planning before it is granted. 27 The applicant submitted that the Plan of Management has to be prepared by council and that may take some time even though it would have to be in coordination with the Vegetation Management Plan in evidence in Exhibit 7. The latter document is accepted by the respondent. 28 I should add at this time that negotiations with the Department of Water and Energy and the Land Department and the Rural Fire Service has resulted in all authorities now supporting the proposal and having issued general terms of approval that are to be incorporated in the Exhibit 6 draft conditions. These documents are in Exhibit A and Exhibit 2 folio 187 to 194. 29 The applicant and the respondent submitted that in the Exhibit A general terms of approval by the Department of Water and Energy the conditions are written as if a new Vegetation Management Plan as in Exhibit 7 had to be submitted. The department had Exhibit 7 and Exhibit B, the Bushfire Asset Protection Zone map, at the time of issue of the general terms of approval and those are the relevant documents. As a result both parties sought Exhibit A to be as hand-annotated and I accept their submissions. 30 In regard to the Bushfire Asset Protection Zones on the adjoining Crown land the applicant said that since the stage 2 development it had an informal arrangement with both Crown lands and the council to provide asset protection zones in their lands. A consent in this appeal would formalise that so that the applicant would continue to do that work, at no cost to either the state government or the council, so that adequate protection of the stage 1 and stage 2 existing buildings would continue. The asset protection zone requirement by the Rural Fire Service was also in regard to a fire access trail that it requested down to the public reserve, not the proposed stage 3 buildings. 31 The asset protection zones offsite would only need to be outer protection zones and Mr Fenwick said that would require weed removal and very minor groundcover and shrub removal. This was taken into account by Mr Robertson in considering the impact on the local ecology and in fact he said there would be an overall beneficial effect on the bushland and the wildlife ecology. He also confirmed that an eight part test had been carried out as in the Statement of Environmental Effects in Exhibit F and no endangered species or their habitats were at risk as part of this proposal. The landscaping on site would be endemic species that would reinforce the bushland and habitat ecology of Wheeler creek compared to the existing. The riparian zone along the creek would be particularly enhanced and maintained into the future more or less as is but with the removal of weed species. 32 Ms Bennett was concerned about this because her association had made observations of the powerful owl utilising the creek as part of its habitat. The retention of the riparian zone vegetation would facilitate continuation of this. However Ms Bennett said she felt that offsite work should not be permitted until the whole of the Wheeler Creek upper catchment management plan was carried out. 33 The parties submitted, that apart from the fact that bushfire asset protection zones had been carried out for many years with the tacit approval of the same authorities, who now have indicated formal approval of the process, there is the consideration that the public interest has been protected by the initial refusal by those authorities some years ago. Now, after detailed investigation and reports and negotiation of environmental controls they have issued general terms of approval. 34 Having read the evidence, I accept those submissions partly for the reason that the site has been approved for a retirement village since 1982 and some of its buildings pre-date the Bushfire Act such that its requirements can only be met offsite. And, this stage 3.2 proposal does not use the Crown lands for its asset protection zones. Thus the provisions proposed voluntarily in this consent for Crown lands would have to be incorporated in any upper Wheeler Creek total catchment management plan to protect the existing buildings of Maybrook Manor. 35 I should note part of the negotiations have resulted in the applicant incorporating, at no cost to council, a detention pond and natural filtration control of a large volume council street drain that has been the source of erosion and pollution of Wheeler Creek up until now. That is a major environmental benefit to the creek ecology. Ms Bennett said she had thought that drain was only for the retirement village and had been dismayed at its impacts in the past. She did not realise the majority of its discharge was public street drainage from housing development uphill. 36 In regard to condition 5A, it seems to me that the only cogent reason put by the respondent for the easement grant over the public reserve being delayed until construction certificate stage is in case something unforseen arises. The respondent also put that the council could not guarantee performance in producing a management plan under the Local Government Act on a timeframe to meet the construction certificate issuance. 37 It seems to me the comprehensive evidence on environmental matters that would govern the issue of the management plan and thus the grant of the easement had been said by both parties to leave no gaps in knowledge that would create unforeseen environmental consequences. The only matters likely to arise would be administrative hiccups or delay in the preparation of the management plan. Such delay could unnecessarily delay progress in construction. 38 It is my opinion the applicant's request that the easements only need to be granted before occupation certificate stage is reasonable. That gives council time to get the management plan prepared and through the administrative procedures. If there were any environmental unknowns in the evidence I may have taken the council's course, but both parties assure me environmentally the proposal is acceptable. 39 Overall I find nothing sufficient to refuse the proposal subject to appropriate conditions. Therefore the Orders of the Court are: 1. The appeal is upheld. 2. Development Consent is granted for 19 residential flats in Stage 3.2 of the Maybrook Retirement Village as shown on the plans named in Conditions 1 of Annexure A hereto; all as amended by and built in accordance with the conditions in Annexure A. 3. The respondent to forward conditions to the Court with amendments to conditions 1, 5A, 98A, 119A becoming 120A and adding the Department of Water and Energy and Rural Fire Service conditions in accordance with this judgment. 4. The Exhibits are returned to the parties except Exhibits, 1, 5, 6, 7, 8, A, D, G and M. ___________________ K G Hoffman Commissioner of the Court ljr 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.