Land and Environment Court of New South Wales CITATION : Serjeant & Anor v Clarence Valley Council [2009] NSWLEC 1352 APPLICANT Barry Serjeant Lenneke Serjeant PARTIES : RESPONDENT Clarence Valley Council FILE NUMBER(S) : 10252 of 2009 CORAM: Murrell C KEY ISSUES: SUBDIVISION :- impact on vegetation; social impact; Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Threatened Species Conservation Act 1995 Fisheries Management Act Maclean Local Environmental Plan 2001 North Coast Regional Plan CASES CITED: State Environmental Planning Policy No 71 State Environmental Planning Policy No 71 Coastal Protection Clarence Valley Development Control Plan Clarence Valley Local Environmental Policy DATES OF HEARING: 22 September 2009 & 24 September 2009 EX TEMPORE JUDGMENT DATE : 24 September 2009 APPLICANT Mr J Doyle (barrister) SOLICITOR Hinterland Legal LEGAL REPRESENTATIVES: RESPONDENT Mr Priestley (barrister) SOLICITOR Pickering Priestley JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 24 September 2009 10252 of 2009 Barry and Lenneke Serjeant v Clarence Valley Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT 1 COMMISSIONER: The applicant seeks to create two lots from one lot for the land known as number 7 Lakes Boulevarde, Wooloweyah, being lot 205. The subject site is approximately 2346 m sq, varying in width from 17 m at the public reserve that adjoins the lake to 20 m at the street frontage. The length of the site varies between 128 and 139 sq m. 2 For this part of Wooloweyah hamlet, there are a limited number of dwelling allotments. The peninsula provides for many smaller allotments further down to the south but the allotments along this portion of Lakes Boulevarde are all large allotments in the vicinity of some 800 to 2500 sq m. There are some fifty-five lots over 800 sq m and there are over 100 lots less than 600, as small as 375 sq m in the areas surrounded by Peppers Drive and Lakes Boulevarde, Young Street and Campbell Street. 3 The proposal before the Court is for a subdivision of the subject lot providing for a right of carriageway in the front portion to service the rear lot. The rear lot is approximately 1767 sq m and the proposed front lot to Lakes Boulevarde is about 580 sq m, with a portion over the existing driveway which would serve both properties in the vicinity of some 50 to 60 m sq. The development application was refused by the council and this refusal was confirmed on a s 82A review. 4 It is noted that the council decided to refuse the application on a number of grounds and by the time the matter came to Court the issues articulated are: 1. Is the proposal consistent with the aims and objectives of the 2A residential zone? 2. Is the proposed lot size in keeping with the surrounding built environment? 3. Does the proposal adversely impact on ecological communities or on the habitat corridor between national park and Lake Wooloweyah? 4. Is the proposal's non-compliance with the North Coast urban design guidelines and the coastal design guidelines for New South Wales such that it should be refused? 5. Are the cumulative impacts on traffic stormwater management, vegetation loss when taken together such that the proposal should be refused? 6. Does the proposal contain insufficient information as to acceptability to safe stormwater management, which could impact on the lake. 5 The Court heard from a number of resident objectors to the proceedings at the on site inspection and I put these on the record at Maclean Court House the first day of the hearing. In summary Mrs Marlene Keys of 5 Lakes Boulevarde, who owns the property to the north of the subject site gave evidence to the Court as did her daughter. They are concerned about the fact that there is a covenant whereby one house per allotment is imposed on the subdivision plan of 1972. They are also concerned about the cumulative impact or the precedential effect that the approval of this development would have as well as the impact on views and breezes with a two storey structure in front of their dwelling house, in particular in their kitchen window. 6 Mrs Athena Batchelor of 39 Lakes Boulevarde is concerned about the vegetation of the fragile coastal area and the cumulative impact on the character and lifestyle and biodiversity of the area. 7 Ms Uma Hindsman of Peppers Drive is concerned about biodiversity and the cumulative impact and precedential effect on the sensitive ecology of the area, social and cultural values and human habitat and infrastructure by the footprint that another dwelling would have on the area. 8 Ms Tasha Keys is concerned about the undesirable social impact on the area and the village should be contained to what it is today and preserved as a hamlet. 9 Ms Janet Purcell of 89 Lakes Boulevarde is concerned about the vegetation communities and the corridor for flora and fauna, and the threatened species in the area, SEPP 71 and a battleaxe allotment being inappropriate. ESD principles and the precedential effect of the proposed development were also raised. In terms of the two-hundred-and-four blocks in the village, if this subdivision was allowed in her opinion it would allow the same thing to happen on forty-five additional allotments, (the ones I referred to earlier in terms of this stretch of Lakes Boulevarde). She is also concerned about the vegetation removal and the ecology of the area. 10 Ms Rachel Maclean of 9 Lakes Boulevard is in support of the proposed development. She is the adjoining neighbour to the south of the subject site. Ms Shaw also a supporter raises no objection and each development would have to be considered on its merits and it is a good use of existing infrastructure and "the environment is there to be shared". 11 The Court notes that the development application (as noted on the file) is to be considered with the amended driveway contained in annexure 2 of Mr Travers' report. He carried out a his site inspection was 14 July and the Court previously allowed an amendment to the plan on that basis. The Court heard expert evidence from Mr Travers and Mr Swain. Mr Travers is a consultant ecologist and Mr Swain is council's ecological officer. 12 It is noted that at the time the application was originally considered by council that there were no comments provided by Mr Swain and in fact Mr Swain's report was submitted late on Friday before the proceedings commencing on Monday. 13 The town planners that gave evidence were Mr Power for the applicant and Mr Blue, a consultant planner on behalf of the council. 14 The Court must assess the development application in the context of all of the relevant planning controls and in this regard, whilst this is a verbal judgment, and, as I note here, I have read those documents on the occasion of the hearing and this provides the relevant statutory planing framework for my assessment. 15 The Court must also have regard to s 5A of the Environmental Planning and Assessment Act which requires a seven part test, and I note Mr Travers undertook a seven-part test. 16 The subject site is zoned residential under the Maclean Local Environmental Plan 2001 as amended, and the subject site is zone being 2(a) residential (low density zone) with a number of zone objectives. The primary aim of this zone is "to enable the provision of housing characterised by low density residential development". The particular objectives of the zone are to enable: a. the provision of low density housing, and b. a residential environment free from any adverse impact from commercial and industrial uses, and the provision of community uses, et cetera, c. adequate provision for water and effluent disposal. There is no dispute that the site is serviced as such. 17 Development allowed without consent includes: ancillary removal of native vegetation; bushfire control; flood mitigation works; jetties with a maximum of two vessels used for private use; maintenance dredging; and public utility undertakings. With development consent in the zone are: childcare centres; clearing; cluster housing; dual occupancies; dwelling houses; home industries; and places of public worship. 18 The LEP contains a number of definitions to give meaning to the uses zone. "Ancillary removal of native vegetation means": a. the destruction or removal of any plant declared to be noxious, b. the incidental destruction or removal of native plants lying adjacent to any such noxious weeds, c. the destruction or removal of native plants within three metres of the boundary between the lands owned or occupied by different persons for the purpose of erecting or maintaining a dividing fence between those lands, or d. the destruction or removal of native plants within 0.5 metres of the boundary between the lands owned and occupied by different persons to enable surveying. 19 The other definitions that are relevant include: cluster housing means three or more dwellings grouped on a site to take advantage of good building areas or views and to conserve large areas of open space, the number of dwellings should be no greater than what would be allowed if each dwelling was on a separate allotment that could be created in the same zone. Clearing in relation to the land means "the destruction of or removal of any manner of native vegetation, trees, saplings, seedlings growing on the land but does not include ancillary removal of native vegetation". 20 The other provision relevant is cl 8, where there are a number of matters that the Court must have regard to in the consideration of the development application. These include: opportunity to provide new public access to and along coastal foreshores; suitability of the development given its type, location and design and the relationship with the surrounding area; detrimental impact on the amenity of the coastal foreshore; loss of views; and have regard to the Threatened Species Conservation Act and the Fisheries Management Act. Other issues include likely impact on water quality and the cumulative impacts of the proposed development on the environment. 21 The other provisions are the North Coast Regional Plan. This is a relevant document and the Court was taken to the parts on coastal villages. The Court must also have regard to State Environmental Planning Policy No 71 Coastal Protection states: a strong sense of community, and care needs to be taken to ensure settlement growth is sustainable and of a desirable character. 22 The coastal urban design guidelines under the Coastal Policy were referred to for New South Wales, and the North Coast Urban Design Guidelines are also relevant to my assessment of the development application. 23 The council also has a number of documents to be taken into consideration, that is policies and development control plans. In this regard the Court must have regard to the design guidelines of the North Coast which contains provisions lots should be of a suitable size and layout to accommodate the proposed use and of a simple shape; run parallel to the slope and not diagonally across it, should vary in size, shape and type; individuality is important to many purchasers and a range of lots allows each purchaser to more closely satisfy their needs; planned in size and shape in relation to existing vegetation and views, and not disturb existing trees or rock formations; and be contained on the site in terms of erosion and flood or fire hazard. 24 I note that the Rural Fire Service has assessed the application and it is satisfied that it requires no further clearing. To describe the site, Mr Travers provides comments that no further clearing for the sake of bushfires, and in this regard he says that a revised bushfire safety authority was issued by the New South Wales Rural Fire Service on 21 April 2008, removing the requirement to clear vegetation beyond the existing cleared area of twenty metres from the rear of the existing dwelling. No clearing of vegetation is required to accommodate the additional lot and the proposed dwelling. 25 The clearing of vegetation is an issue and significantly raised by the objectors as well as the precedential effect. The ecology of the area and the fact that the subject site is between the Yuraygir National Park, on he opposite side of Lakes Boulevarde and this is a large national park, and the Wooloweyah Lagoon. It is noted that there is a forty metre foreshore 6A open space zone between the subject site and the lagoon, and on the opposite side of Lakes Boulevarde to the southeast is the National Park. 26 There was evidence given by Mr Travers that for the front portion of the subject site, the vegetation is immature vegetation and is the result of planting subject to the initial major clearing of the site. It is noted that the subject property to the north of the site has generally been denuded of vegetation in the road frontage to the dwelling and ancillary buildings erected on the land. 27 It is also noted from the aerial photographs that the subject site contains, significantly more vegetation in the frontage that is between the road and the subject dwelling that is set back some 60 m than many of the dwellings which have a closer or a reduced setback compared to the subject site to the main dwelling on the site. 28 It is also noted that there are ancillary structures in front of many of the dwellings along Lakes Boulevarde such as garages and home office or home industry, home occupation facilities. The subject site, after Mr Travers first inspected the site on 14 July, the plan was amended such that the driveway is to be shared, that is the front portion of the driveway is to be a right of way for which the rear lot has access over the front lot to allow for retention of a greater number of trees and the Court has the opportunity of going back to the site with the parties on the first afternoon of the hearing to understand the configuration of the driveway and precisely what trees would require to be removed. 29 In this regard the joint ecologists prepared a report identifying the trees numbered that are unlikely to be impacted by the revised driveway and it is noted that tree 27 in Mr Travers' opinion can be retained on the site. The sewer easement was also a matter for concern, the subdivision plan shows an easement down the north-eastern boundary, that is the long boundary of the lakeside lot of some three m wide to connect with the main sewer line however it could be seen onsite that this would disturb significant trees and the ecologists agreed that the easement should be brought further away from that boundary to ensure the longevity of the trees and certain forms of construction would also be required. 30 The Court has the benefit of the experts reports and their joint conferencing. Mr Blue for the council is of the opinion that the proposed development is not in character with the area and that the low density should be derived from the matter of what is in the area currently. He says that the context of the site should be considered to determine what is low density and then he says, "Having regard to the existing predominant lot sizes in Wooloweyah the proposed development is considered to be inconsistent with the existing low density character of Wooloweyah." In this description, he must be referring to only the lots on the more northern portion of Wooloweyah on the Lakes Boulevarde which are the larger lots and he has clearly disregarded the more compact nature of lots within the village itself, with many lots 400 or 500 and up to 600 m sq. He considers that the low density would be undermined by the approval of the subject development, with the subdivision of the land. 31 The applicant provided an indicative footprint for a dwelling house on the proposed new lot. Council has provisions within its controls to ensure that building platforms be provided of at least 10 to 15 m on each lot and clearly the subject site would allow for a building footprint with at least those dimensions, the indicative plan or dwelling house shows a much larger dwelling as such. 32 The council has a number of other provisions in particular Part H of the subdivision and engineering standards states that "for battleaxe allotments the access corridor providing frontage to a public road must be a minimum of five m wide and the carriageway width must be 3 m, and the lot must meet the minimum area requirements". 33 Council's policy states that that no more than two access ways shall be shared by use of reciprocal rights of ways and that the length, the maximum length of such a right of way is to be 30 m. The proposed right of way has a length slightly in excess of 40 m. Mr Priestley submitted that that does not comply with council's controls although it is noted that council's engineers did not raise concerns with the proposed right of way. 34 The other thing to note is that the controls for allotments in council's DCP provide for a number of matters to be taken into consideration. Council also has a threatened biodiversity assessment fact sheet which requires consideration of biodiversity in terms of development applications and in this regard there has been a seven part test undertaken and I am satisfied the matters raised in council's fact sheet have been taken into consideration. 35 The development control plan for development in residential zones amended in 2008 under the Clarence Valley Council contains a number of objectives and I note that it also contains a number of specific controls for different areas such as the Angourie Village controls and other village controls within the area, or within the council's area but there are no specific controls for Wooloweyah. The controls also contain such matters as keeping animals in residential zones. 36 One of Mr Swain's concerns is that another dwelling house, another family, will mean twice the impact on the area because of dwelling houses allowing pets et cetera although council did not press a condition about no cats or dogs if the proposed subdivision was allowed on this site. Mr Swain's evidence was not persuasive in his evidence to the Court, not only the late filing of his statement but in terms of the degree of rigour in which he had assessed the matter and the information that he relied upon. 37 I am satisfied and persuaded by the evidence of Mr Travers that he has undertaken a comprehensive assessment, he has referred to the necessary guidelines in preparing his reports, and whilst the council provided late evidence, which was not allowed, or rather was withdrawn, about other species or threatened species being sighted Mr Travers has referred to the relevant DECC Atlas in his assessment and in his search of the Atlas database of New South Wales records thirty-nine threatened species within a 10 kilometre radius of the site. Following an assessment on the suitability of habitat within the site, threatened fauna species considered with potential to occur were listed in his report. This database is the official and most complete database for flora and fauna records within New South Wales and it includes records from a large number of sources including universities, herbariums, museums, bird watching clubs, environmental consultants and people with general ecological interests, and persons or companies may be licensed to purchase or retrieve such information. 38 Mr Travers informed the Court that it was a breach of those authorised in terms of sightings to inform the relevant authorities so that such matters could be collected and data provided. I am satisfied Mr Travers has provided a thorough assessment not only in terms of the seven-part test which is a statutory requirement which I must consider under pt 5A and under the Environmental Planning and Assessment Act but also the impact of the proposed subdivision on the environment and ecology of the area. 39 On the subject site, he described a loss of the eleven trees estimated to be around eight to ten years old, can be ameliorated through replacement planting in an appropriate location at the eastern end of the lot adjacent to the proposed driveway or potentially within the swamp sclerophyll vegetation at the western end of the lot adjacent to the Wooloweyah Foreshore Reserve. He believes that this could be satisfactorily achieved through a plan of management and a condition attached as such. 40 Mr Travers concludes that the proposed development does not adversely impact on ecological communities or on the habitat corridor resources between the National Park and Lake Wooloweyah, and will not affect threat and species, populations or ecological communities or their habitats. 41 In Mr Travers opinion the subdivision will occupy residentially zoned land without decreasing the environmental values of the area and the subdivision will not occur on land effected by intact contiguous native vegetation. He states that the creation of an additional lot will have a minor impact on the existing site, given that the eucalyptus trees will remain along the south boundary there remains a visual screen to any possible dwelling constructed when viewed from the south and the north. 42 Mr Travers also states that in terms of sustainability that the proposal will have minimal ecological impact, no threatened species endangered ecological communities, populations will be harmed or impacted by the development and no loss of measurable or important ecological foraging resources will occur. 43 In terms of the tree removal, that is the loss of eleven trees for the driveway and the footprint of the dwelling house, it is noted that the front lot will still retain some twenty trees that have been identified by Mr Travers in his figure 2 and I am satisfied that the proposed development is not one that will have an adverse environmental impact in terms of the contentions that have been raised by the council. 44 The applicant has also agreed to enter into an 88E instrument, that is where council would have to consent to any variation thereof. This is appropriate because the land on the western portion of the site has very good ecological qualities. A good guide as to that part of site to be covered by that s.88E is considered to be the large Blackbutt tree at the rear of the existing dwelling. The land between the dwelling and this tree still provides for an appropriate open space recreational area to adjoin the existing dwelling and provide the private open space for that dwelling. 45 The Court at the hearing raised the possibility of moving the boundary, that is moving the garage of the existing house to abut the existing house. I note from the aerial photo that there is a tree between the existing garage and the existing house and this should be retained, therefore I do not require the front lot to be enlarged. Also, this would require a longer driveway and the 5 m width I consider appropriate and in this regard I have given a focus to council's DCP requiring a 6 m wide right-of-way but in the circumstances of this case, serving one allotment and with no future subdivision possible because of an 88E instrument on the lakeside portion of the site, I consider the exceedence of 30 m for the right of carriageway is satisfactory in the circumstances of this case. 46 In terms of the impact on the adjoining dwelling to the north, I am satisfied that a dwelling located on the proposed new lot will not create adverse impacts that would warrant refusal of the application. They referred to breezes and views across the side boundary of the subject property. They have a large structure built in their front which they can still see over and it could be evidenced on site that one can get some sideway views from their window or one of the windows that serves the kitchen, closest to the common boundary of the subject site. However the proposal would not unreasonably impact on the amenity of this adjoining property in my assessment. 47 The fact that there will be another dwelling and another family on the subject site, I am satisfied this can be accommodated in both an environmental sense and in terms of maintaining amenity for the adjoining properties. While it is not a matter that has figured highly in my assessment, it is noted that the property to the south raised no objection, to the proposal and the driveway to the proposed rear lot would be adjacent to this property. 48 The development application is one that has now been through, a rigorous assessment. In terms of the ecology, there has been significant attention given to: the trees; the habitat; and threatened species or likely threatened species, in the vicinity of the subject site. Mr Travers's report which the council has had the benefit of for some time, I accept and it is unfortunate that at the eleventh hour that was inappropriate but not objected to. the council chose to put on a report from its own ecologist. Nevertheless I do not find Mr Swain's comments helpful and the assessment carried out by Mr Travers in my assessment is rigorous and supports the application on ecological grounds. 49 Mr Priestley submitted that Mr Travers is not a planner as such. I have not had regard to his comments in terms of the contentions on planning matters, but when it comes to the planners' evidence and having regard to my own expertise, I am satisfied that the approval of this proposed subdivision would not create an undesirable precedent, and I say this having regard to the fact that, one can count the number of lots that are in excess of 800 or 1000 m sq, but when one has regard to the contour map which shows the sewer line, it is clear that there are many lots that would not be capable of subdivision because of the escarpment, because of the topography in terms of the contour map, and that whilst there may be some lots that may be capable of subdivision, they would be required and proper merits assessment as this development application. I recognise that precedence is a matter on its own that may warrant refusal of an application, but in the circumstances of this case I am satisfied that it cannot be readily invoked by other property owners. 50 The one building per allotment covenant is a private contractual matter, not a matter for this Court. I note the covenant was issued in 1972. Not that it is a matter for me, but circumstances have changed, and the land is now sewered. I must have regard to the relevant clause in council's LEP which triggers s 28 of the Environmental Planning and Assessment Act, that is a consent authority can grant consent where a development is consistent with the LEP. In this case the LEP has a minimum subdivision size of 400 m sq. Council has not chosen to change that for this village and indeed it does not have a separate character statement in its development control plan for this village/hamlet. 51 Nonetheless, I have considered the character of the hamlet, and I am satisfied that the proposed development will not adversely impact on the character of the area. The additional lot will not impact in terms of the streetscape, that is Lakes Boulevarde. The alignment of the driveway ensures that it will still remain a single driveway for both dwellings. In terms of the lake and in terms of the foreshore, I am satisfied that the proposed dwelling on the road side of the site, which is already significantly disturbed, will not have adverse environmental or amenity impacts for adjoining properties, or in terms of the character of the village itself. 52 My preliminary findings require that a subdivision plan be provided to clearly show the easement as discussed between the ecologists, to be a number of metres from the common boundary such that the trees along that boundary will not be impacted and the alignment at the front of the allotment and this also ensures no gun barrel driveway. The right-of-way easement is to be in favour of the rear lot but par tof the lot with frontage to Lakes Boulevarde. This will also provide for the continued maintenance and connectivity with the front allotment and clearly maintenance of that portion of the site has a more logical connection or extension with the front lot than the rear lot given the new reconfigured driveway. 53 I note council's development control plan requires plans for dwellings to be submitted on lots that are less than 560 m sq, and I note the size of the right of carriageway. I am satisfied that the proposed front lot can accommodate a dwelling house consistent with council's controls, however, given the proposed subdivision plan needs to be amended in respect of the front portion and the easements, and the sewer easement and the right of carriageway for the dual purpose of the driveway to serve the two lots, I require a building footprint to be indicated on a plan. The building footprint will also need to have regard to a reasonable size of open space at the rear of the dwelling commensurate with the dwelling. I require the building footprint to be shown on the subdivision plan. The building footprint would still allow for individual preferences in terms of the dwelling type and design. I am satisfied the site is not so constrained as to require approval for the dwelling house with the subdivision approval. 54 Mr Travers' figure 2 shows those trees to be removed and retained, and the ecologists' joint report indicates those that would be retained in terms of the driveway configuration. Number 27 should also be retained. If at any time there is a separate application required for its removal then it will be further assessed. 55 I also require the replacement vegetation and augmentation whether it be in the front lot or in the rear lot or both. It was indicated by Mr Travers that this could be accommodated in the front of the Lakes Boulevard lot, but the vegetation replacement is to be shown on the subdivision plan as such. Council should provide some assistance in this regard, and I note Mr Travers has indicated suitable species as replacement trees. 56 The area to be covered by the 88E instrument should also be indicated on the subdivision plan, that is the rear part, the western portion adjoining the foreshore reserve is to be shown on the plan. 57 I am satisfied that the proposed subdivision with the conditions and with the amendments as I have outlined above will be an environmental benefit for the consideration of applications and in terms of this lot continuing to make a positive contribution to the ecology and environment of the area. The 88E condition is to require it to be placed on the land at the applicant's expense prior to the release of the linen plan. 58 At the end of the proceedings on behalf of the respondent Mr Priestley submitted that there is not one issue enough to refuse the proposed development application on its own but all the small issues together is good reason to refuse to the application. 59 In my assessment I consider that none of the contentions raised by council would warrant refusal of the application in isolation or in combination. 60 Accordingly, on the basis of my assessment I make preliminary findings. On the receipt of an amended subdivision plan with the information as I have detailed above, the Court would be in a position to issue final orders. The council is given time in which to comment on the amended plan and information and provide those comments to the Court. At the same time I require the council to also provide an amended set of conditions consistent with my findings above and to reflect the amended plans. I will then assess the amended plan and issue the final orders. ___________________ J Murrell Commissioner of the Court Ajl/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.