Land and Environment Court New South Wales Medium Neutral Citation: Peter Campton v Parramatta City Council [2011] NSWLEC 1360 Hearing dates: 17-19 August 2011 Decision date: 07 September 2011 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld subject to conditions Catchwords: Development application: Subdivision, impact on streetscape; impact of driveway; Endangered Ecological Community; Vegetation Management Plan; Tree Protection Plan Legislation Cited: Environmental Planning & Assessment Act 1979 Environment Protection and Biodiversity Conservation Act 1999 Threatened Species Conservation Act 1995 Parramatta Local Environmental Plan 1996 (Heritage and Conservation) Conveyancing Act 1919 Parramatta Local Environmental Plan 2001 Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Campton v Parramatta City Council [2011] NSWLEC 12 Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70 Ingham Planning Pty Ltd v Ku-ring-gai Council [2010] NSWLEC 1222 Category: Principal judgment Parties: Peter Campton (Applicant) Parramatta City Council (Respondent) Representation: Mr G Green (Solicitor) (Applicant) Mr C Drury (Solicitor) (Respondent) Pikes Lawyers (Applicant) Sparke Helmore (Respondent) File Number(s): 10868 of 2010 Judgment 1COMMISSIONER: This is an appeal pursuant to s 97(1) of the Environmental Planning & Assessment Act 1979 (the Act) against the deemed refusal by Parramatta City Council (the council) of Development Application DA/676/2010 lodged 20 August 2010 for tree removal, construction of a concrete access way, drainage network and subdivision into 3 allotments of 54 Epping Avenue Epping (Lot 45 DP 5792) (the site). The site and its locality 2The site is a rectangular shaped allotment on the eastern side of Epping Avenue. The overall area of the site is 2470 m 2 with a street frontage of 30.48m. The site currently contains a two-storey brick dwelling with a timber deck and an associated timber shed. 3The site is located in the Epping-Eastwood Conservation Area as mapped in Parramatta Local Environmental Plan 1996 (Heritage and Conservation) (PLEP1996 H&C). The predominant pattern of subdivision in the locality is characterised by single lots with one or two storey dwellings in landscaped settings. The majority of the lots in the immediate vicinity have a 15m frontage. 4The topography of the site is such that it slopes from the northwest to the southeast with a fall of approximately 11m from the street frontage to the lowest point on the northeastern boundary. The mid to rear portions of the site slope from southwest to northeast with some steep sections. Typical grades across the site are in the range of 10-20%. There are some natural slopes as well as areas retained by walls. The site drains to a natural watercourse which commences approximately half way along the north-eastern boundary and flows through the adjoining lots to the north of the site. 5The site contains Sydney Turpentine Ironbark Forest (STIF) listed as a critically endangered ecological community (CEEC) under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 and as an endangered ecological community (EEC) under the NSW Threatened Species Conservation Act 1995 . In particular, there are 7 Eucalyptus paniculata (Grey Ironbark) (trees 7,21,24,37,38,47,48) - a key species of the STIF community. There are other native and exotic species of plants many of which are recognised weed species. 6The site is in the vicinity and up stream of the Edna Hunt Sanctuary, a 7.1 ha reserve containing Blue Gum High Forest, a critically endangered ecological community as well as STIF. The proposal and relevant background 7Since April 2010, the proposal has taken various forms which range from subdivision into 3 lots comprising 2 battleaxe lots and one street frontage to a four lot subdivision and then to the three lot subdivision now before the Court. During this process, the respondent has advised the applicant of its concerns and the need for further information. 8In February 2011, the applicant was granted leave via a Notice of Motion heard by Pain J ( Campton v Parramatta City Council [2011] NSWLEC 12) to rely on amended plans and supporting documentation. The matter proceeded to a s 34 conciliation conference in April 2011 which was subsequently adjourned. As a result of discussions between the parties and the need to respond to issues raised by council, a further Notice of Motion was heard by the Assistant Registrar to allow reliance on further amended plans and documentation. These include plans showing lot layout, building envelopes, access way, contours, trees, drainage, long and cross sections; documentation including an Arboricultural Impact Assessment, Vegetation Management Plan, and Revised Tree Protection Plan. These further amended plans are the plans before the Court in these proceedings. 9The proposal comprises the following: * The demolition of the existing dwelling and ancillary site structures; * Torrens Title subdivision of the existing allotment into 3 residential lots, 2 of which (Lots 1 and 2) have direct frontage to Epping Avenue and one at the rear of the site (Lot 3); * The removal of 23 of the 73 trees on the site to facilitate the construction of a shared part at-grade and part suspended internal driveway to provide access to the three nominated building platforms; and * The implementation of an integrated stormwater drainage system. 10Excluding access way areas, proposed Lot 1 has an area of 688.2m 2 , Lot 2 - 630.4m 2 , and Lot 3 - 833m 2 . The access driveway is proposed to be located between the nominated building platforms for Lots 1 and 2 and then deviate around Grey Ironbark trees on Lot 2, diagonally traverse the rear of Lot 2 to the southern boundary fence ending at the southern end of the nominated platform on Lot 3. 11The access way and the future building platforms are located to retain all 7 Grey Ironbarks and other trees. A Tree Protection Plan has been prepared. The applicant has prepared a Vegetation Management Plan (VMP) for the purpose of regenerating and enhancing the STIF EEC over a 2-year period. 12The stormwater drainage concept plan, prepared in accordance with the requirements of the Upper Parramatta Catchment Trust, includes rainwater tanks for each dwelling with overflow directed to on-site storage facilities. Overland flow and overflow from the tank on Lot 1 will be directed to an above ground detention basin retained by an impermeable sleeper wall. Overland flow from the access way, Lot 2 and part of Lot 3, as well as overflow from the tanks on those lots will be directed to a below ground on-site detention (OSD) tank on Lot 3. Both OSD systems will discharge into a spreader located inside the northern boundary and designed to prevent scouring of the watercourse into which the water will be discharged. A swale designed to collect overland flow from properties to the south is proposed to be constructed along the southern and eastern boundaries of the site. This will drain to a grassed spreader in the eastern corner of the site. The proposed swale is associated with a new paling fence along the southern boundary; the fence has a gap of 100mm at its base to facilitate the movement of water into the drain. 13A landscape concept plan has been prepared to give an indicative idea of how various elements of the proposal may be ameliorated and to address some of the respondent's concerns. Contentions 14The council's contentions can be summarised as follows: * Detrimental impact on the current and future character of the conservation area and therefore inconsistent with the objectives of PLEP 2001; * Issues including unacceptable visual impacts from the proposed elevated driveway and lack of suitable open space for Lot 2; * Inconsistent with the character of the existing predominant subdivision pattern which fails to satisfy relevant objectives in PLEP 1996- Heritage & Conservation; * Impacts on the endangered ecological community and habitat particularly as a result of the driveway; lack of detail regarding medium and long-term protection measures; * Unacceptable impacts on trees to be retained arising from the future occupation of the lots; * Inadequate regard to site constraints including topography, EEC, heritage conservation and proximity to the Edna Hunt Sanctuary; * Concerns about the design and maintenance of the stormwater drainage system; * Absence of a waste management plan with respect to the demolition of the dwelling; absence of a detailed erosion and sediment control plan; absence of elevation plans indicating the height of the driveway as seen from Epping Avenue and adjoining properties; [information subsequently submitted by the applicant has addressed these issues] and * Matters raised by objectors. * Assessment framework 15The following clauses of Parramatta Local Environmental Plan 2001 (PLEP 2001) are relevant. Objectives of the plan: (2)(c) to encourage a range of development including housing, employment and recreation, which accommodates the needs of the existing and future residents of the City of Parramatta, (j) to protect and enhance the natural environment, including areas of remnant bushland in the City of Parramatta, by incorporating principles of ecologically sustainable development into land use. 16Clause 16(3) states: (3) Consent must not be granted to the carrying out of development on land to which this plan applies, unless the consent authority is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. 17The site is zoned 2A Residential. Relevant zone objectives are: (a) to enhance the amenity and characteristics of the established residential area, and (b) to encourage re-development of low density housing forms, including dual occupancy development, where such redevelopment does not compromise the amenity of the surrounding residential areas, or the natural and cultural heritage of the area, 18The council contends that cl 47 has some relevance as the site is close to land within Zone 7 - Environment Protection (Bushland) however this clause concerns development on land abutting an environmental protection zone. Matters for consideration in this clause include the need to retain bushland on the site; the effect of the proposal on soil erosion, water quality, spread of weeds, stormwater runoff and so on; the requirement for provision of a buffer zone; and protection of listed EECs. 19Parramatta Local Environmental Plan 1996 - (Heritage & Conservation) (PLEP 1996 H&C) also applies. The site is located within the Epping/ Eastwood Conservation Area listed in Schedule 3. The relevant objectives of this plan in relation to heritage are: 2(c) to conserve existing fabric, setting, relics and views associated with the heritage significance of heritage items and heritage conservation areas, and (d) to ensure that any development does not adversely affect the heritage significance of heritage items and heritage conservation areas and their settings; 20Development Control Plan 2005 (PDCP 2005) applies. Clause 4.3.1 applies to Private and Communal Open Space. The relevant objectives (O), design principles (P) and design standards (S) are as follows: O.1 To ensure that private open space is designed to provide residents with quality usable private outdoor living areas for recreational and outdoor activities. P.1 Private open space is to be directly accessible from the living area of the dwelling...designed to focus on the quality of the space in terms of its outlook, orientation, relationship to the dwelling, size and shape and its enclosure and landscape treatment. S.1 For dwelling houses: A minimum of 100m 2 of private open space is to be provided at ground level, with minimum dimensions of 6m. 21Clause 4.6 PDCP 2005 deals with Residential Subdivision. Relevant provisions are: O.1 To ensure that subdivision of land for residential subdivision has regard to site opportunities and constraints. O.2 To ensure that subdivision respects the predominant subdivision pattern of the locality. P.1 Subdivision is designed to: * Take account of topography and slope and minimise the need for cut and fill associated with dwelling and driveway construction, * Protect natural and cultural heritage features, * Retain significant trees and vegetation communities, P.2 Subject to minimum lot size requirements, subdivision is to reflect and reinforce the established subdivision pattern of the locality. P.3 Subdivision of large sites should allow for a range of lot sizes to suit a mix of housing types and sizes. P.4 Lots are to be oriented to maximise solar access for future dwellings, P.5 Lot size and dimensions are to provide for: * A suitable building platform * Outdoor open space and service space * Landscaped area * Vehicular access that connects to a public road * On site parking For dwelling houses: S.1 Lots with direct road frontage require: a minimum site area of 550m 2 and minimum frontage of 15m where it is proposed to erect a dwelling house on the allotment. S.2 Battleaxe lots require: A minimum site area of 670m 2 (not including the access corridor) and a minimum access corridor width of 3.2m where it is proposed to erect a dwelling house. 22Parramatta Heritage Development Control Plan 2001 (PHDCP) applies to the site. The Epping/Eastwood Conservation Area is detailed in pages 65-74. The relevant clauses are as follows: 5.1 General Objectives: Keep the attributes that contribute to the heritage value and character of the area; maintain and improve residential amenity; allow development compatible with the significance and character of the area 5.2 Specific Objectives and Controls Landform/ Natural Characteristics Maintain the shape of the natural landform; Maintain remnant indigenous trees Subdivision Pattern Maintain the historical pattern of roads and subdivision; Maintain the width of allotments * Keep: Existing predominant pattern of subdivision; Re-subdivision across line of subdivision, as in battleaxe allotment may be considered where it does not involve the demolition of an existing house, the loss of major mature trees or the obstruction of views. * Existing Buildings Keep: Where possible, all intact buildings (mostly from the 1040s and 50s) listed in Schedule B. Siting, Setbacks and Garden Area Keep: At least 60% of the site as garden space. Council will consider a minimum garden space of 50% where allotments are less than 700m 2 . Garden space around the house suitable for outdoor living, clothes drying, children's play etc; similar side boundary setbacks to those existing. 23A diagram to accompany the PHDCP with regards to subdivision shows a battleaxe arrangement to be preferable to a longitudinal subdivision. 24Section 79C(1)(a)(ii) of the Act requires consideration of the provisions of any proposed planning instrument that inter alia is or has been the subject of public consultation. In this regard, the Draft Parramatta Local Environmental Plan 2010 (Draft PLEP 2010) is deemed to be imminent and certain. Of relevance are the following clauses: 5.10 (6) Heritage conservation management plans The consent authority may require, after considering the significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause. 6.9 Environmental protection (2) This clause applies to land identified on the Parramatta City Council Local Environmental Plan Environmental Protection Map. (3) Before determining a development application to which this clause applies, the consent authority must consider whether the development will have an adverse effect on: (a)The quality of natural flows to receiving waters, (f) native flora and fauna, their habitat, and their interrelationship with the environment, (g)The movement and dispersal of native flora and fauna. 25The proposed the Parramatta City Council Local Environmental Plan Environmental Protection Map shows the site to include an extension of the land already zoned Environmental Protection (currently the Edna Hunt Sanctuary). The extension of the zoning is essentially the central portion of the site and includes parts of all 3 proposed lots. 26Clause 1.8A concern Savings provision relating to development applications If a development application has been made prior to the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had been exhibited but had not commenced. 27The Draft Parramatta DCP 2010 was also referred to. In cl 4.4.1.1 the Epping/ Eastwood Conservation Area remains unaltered. The information in the Draft DCP is more condensed than in PHDCP. The controls are similar and the diagram illustrating acceptable subdivision remains unchanged (as described in [22]). General controls B - Subdivision state: a) Maintain the width of allotments b) Avoid development that involves amalgamation of allotments and buildings that cross allotment boundaries. The hearing and the evidence 28The hearing commenced on site. A number of residents made oral submissions that supported written submissions tendered in the council's bundle of evidence. The key issues raised by the objectors were: * Unacceptable impacts on the EEC and associated fauna, * Concerns about increased flows of stormwater resulting from the increase in hard surfaces impacting on the natural watercourse and downstream properties, * Particular concerns about gully erosion, * Concerns about changes to the natural topography of the site, * Potential impacts on the integrity of the Edna Hunt Sanctuary, * The decrease in visual amenity associated with a loss of canopy, * Concerns that the proposed hand digging of piers for road support will not materialise and that many more trees will be damaged during construction, * Absence of root-mapping to determine set backs from trees likely to be affected by proposed building platforms, * Concerns about the permissibility of pumping of sewage from Lot 3 as well as associated noise issues; * Non-compliance with the PHDCP 2005 particularly with respect to battleaxe blocks and loss of trees; non-compliance with the existing sub-division pattern; and, demolition of the existing dwelling, * Light spill into adjoining properties from vehicle head lights entering Lot 3 as well as concerns about noise arising from the use of the driveway, and * Concerns that approval of this development will set an undesirable precedent which would not be in the interests of the wider community. 29The location of the proposed driveway was noted as was its proximity to Tree 37, a twin-trunked Grey Ironbark to be retained (1.5m) and its elevation above ground level near that tree (400mm). Issues relating to drainage, light spill, vegetation management and landscape treatment were discussed. 30The heritage and conservation experts led an inspection of nearby driveway treatments. 31The following experts prepared reports and plans: Area of expertise Applicant Respondent Mr G Boston Planning** (Town Planner) Ms M Sarwary Mr M Fearns (Senior Town Planner Parramatta City Council) (Designer) Heritage/ Conservation** Mr R Staas Mr Z Popovic (Heritage Consultant) (Heritage Officer) Arboriculture** Mr P Castor Mr R Bollard (Landscape Tree Management Officer PCC) (Consulting Arborist) Ecology** Mr F D Fanning Dr D Robertson (Ecologist) (Ecologist) Mr A Denniss Engineering* (Civil Engineer) Mr N Jegatheeson (Senior Development Engineer PCC) Mr A Halmarick (Surveyor) Stormwater Drainage Concept Plan* Craig & Rhodes - Surveyors Planners Civil & Structural Engineers Landscape Concept Plan* Ms N Sonter (Landscape Designer) * Reports/ Plans prepared; information discussed on site; not called as witnesses in hearing ** Joint reports prepared; called as witnesses in hearing Planning evidence 32In their joint report, the planning experts agree on the following: subdivision of the site into 2 lots both having frontages to Epping Avenue is acceptable; only a single storey dwelling can be built on Lot 3 (cl 3.1 PDCP 2005); and cl 6.4 of the draft LEP 2010 is applicable. 33The main elements of Ms Sarwary's opinion appear to be: * The 3 lot subdivision is inconsistent with the current pattern of subdivision, * The proposal will be perceived as a multi-unit development which is uncharacteristic of the conservation area (current and future), * The elevated driveway impacts on the streetscape, as well as the visual and acoustic amenity of adjoining residents, and the future residents of Lot 2 (as the driveway traverses the nominated private open space on this lot). * The private open space for Lot 2 is not considered 'quality' usable private outdoor living area and therefore offends the objectives and design principles of cl 4.3.1 PDCP 2005. A triangular section of the open space of Lot 2 will be physically separated from the majority of the open space because of the driveway to Lot 3. 34Mr Boston's opinion is that the proposed development does not offend zone objectives (a) and (b) as the subdivision pattern will be reinstated and the STIF community protected and enhanced. He contends that the indicative building platforms are located on predominantly cleared and highly disturbed areas of the site. He notes that all lot sizes and frontages comply with the provisions of cl 38 PLEP 2001. In his opinion he considers that the creation of a single battleaxe block is anticipated by Part 4.6 of PDCP 2005 and within the Epping/ Eastwood Conservation Area. 35He also considers that the use of shared driveways should be encouraged as it provides for further enhancement of landscaping in the streetscape. Given Mr Fearns' plans show that at 20m from the street the centre of the driveway is some 2.7m below street level, he does not agree with Ms Sarwary that the driveway will be perceived as an elevated or dominant element in the streetscape. He also contends that there will be no 'gun barrel' appearance as the alignment required to avoid the Grey Ironbarks removes the majority of the driveway out of view from the street. Mr Fearns supports this view. Mr Boston drew on examples of long driveways elsewhere in the street and stated that this driveway, particularly if landscaped appropriately, will not be unacceptable. 36Mr Boston further considers that there will be no visual amenity impacts on adjoining properties arising from the driveway because of its position at or just above grade, the intervening landscape and boundary fence treatments. These factors would also ameliorate issues raised by objectors regarding light spill. He also considers that there will be no unreasonable acoustic issues as the access road is servicing a single detached dwelling on Lot 3. 37With respect to Ms Sawary's concerns that the proposal will read as a multi-unit development, Mr Boston considers that the development clearly proposes detached single dwelling houses, spatially separated and compliant with the development standards and therefore will not be read as a multi-unit development. 38In regards to the issues relating to the quality of private open space for proposed Lot 2, Mr Boston's opinion is that it is not uncommon for private open space areas to contain established trees and carriageways. The triangular section is on a section of the lot that is very steep, contains STIF and is unlikely to be readily used for recreational purposes, and if it were to be excised, the area of Lot 2 would remain compliant with the lot area requirement in PLEP 2001. 39Overall, Mr Boston regards the amended proposal as a highly considered response to the topographical, ecological and heritage constraints of the site that complies with development standards, enhances the EEC and reinforces the pattern of subdivision. The elevation of the driveway is designed to protect STIF trees and facilitate movement of water across the site. He considers that tree retention, landscaping and fence treatments ameliorate any potentially negative impacts. Mr Boston's opinion is that the proposal not only satisfies the current controls but is has taken into account the new heads of consideration concerning environmental protection listed in the draft PLEP 2010. 40The perception of the overall proposal from the street was further explored in cross-examination of the planners. Mr Fearns and Mr Boston consider that Lot 3 is at least 60m from the street, it can only support a single storey dwelling, and given the distance and the fall in levels, only part of the roof of any future dwelling on Lot 3 is likely to be visible from the street. In addition, intervening landscape will screen the view of any dwelling. Mr Fearns added that the generous area allocated to the indicative footprint for the dwelling on Lot 3 would enable an architect/ designer to respond to the challenges of the topography and so on. 41Mr Drury pressed the usability of the private open space on Lot 2 given the constraints of vegetation, topography and the road; particularly its use by children for ball games and the like. He referenced Mr Fanning's recommendation in the ecologists' joint report that the private open space at the rear of Lot 2 be an elevated balcony or verandah only, to ensure the passage of air and rainwater to the tree roots beneath . Ms Sarwary reiterated her opinion that these were major issues on Lot 2 and that the proposed area of open space could not equate to ' quality usable private outdoor living areas for recreational and outdoor activities ' as stated in cl 4.3.1 of PDCP. She also raised safety concerns with the right of way. Mr Boston responded with examples from his own personal experience and restated the fact that the plans show compliance with the numerical and ground level controls for open space and opined that not all open space had to be level and turfed in order for it to be used successfully for outdoor recreation. Heritage and Conservation evidence 42The heritage and conservation experts agree that they do not object to: demolition of the existing dwelling; a two lot subdivision either down or across the slope; and a straight shared driveway. They agree that battleaxe subdivisions occur in the conservation area; the proposed lot sizes are compliant; and the setbacks of the indicative platforms for Lots 1 and 2 present no issues regarding the streetscape. The experts also agree that there is potential in the application for the driveway to be narrowed and landscaped to improve its presentation to the street. 43The main points of difference go to the three lot subdivision and the impact on the subdivision pattern in the conservation area and that a single shared driveway and 3 dwellings will be perceived by the public as a multi unit development. 44Mr Popovic's position is that the proposal will have an adverse impact on the conservation area and contradict the PHDCP because: the proposed form of the subdivision will result in effective lot shapes not matching the formal subdivision - something not anticipated by the PHDCP; the proposed shared driveway presents as part of a multi-unit development; and the access driveway and associated elements are uncharacteristic forms in the landscape. With respect to the driveway, Mr Popovic's preference is for driveways comprising two wheel tracks. He is also concerned that approval of this proposal will set an undesirable precedent. In the joint report Mr Popovic states that the impact will have a significant adverse impact on perception of the character of the area however in oral evidence his opinion was that overall, the proposal would have a moderate impact on the heritage values of the area. 45Mr Staas considers that the size and configuration of the site lends itself to a three lot subdivision without any adverse impact on the streetscape or of any loss of identified heritage significance. In his opinion, the alignment of the lots to protect existing trees will not result in any appreciable distortion of the established development patterns in the surrounding area or be readily perceived from the public domain. 46Mr Staas states that the area is characterised by a wide variety of re-subdivisions of earlier subdivision patterns. In his view, the proposal maintains a typical form of development to the street albeit divided by a single driveway rather than two individual driveways. This he says maintains the established pattern of houses fronting the street. He considers that perception of the established character of the area does not rely on what happens at the rear of sites that are not visible from the street. In his opinion the character of the area is superficially created by the rhythm of street lot sizes and detached houses in mature landscapes which the proposed development can achieve. For these reasons Mr Staas considers the proposal would have a low impact on the heritage values of the area. On the issue of precedent, Mr Staas is of the opinion that it is unlikely to set a precedent but if other applications were made they would have to be assessed on their impacts. 47Under cross-examination the heritage/conservation experts maintained their different views. However, both experts agreed that the proposed driveway should be narrowed where possible and it was also possible for Lots 1 and 2 to have their own driveways if necessary. Arboricultural evidence 48The only contention addressed by the arborists concerns the impacts on the trees arising from future occupation of the lots. In Mr Bollard's opinion, although the sub-division has been designed using tree-sensitive methods, it will nonetheless result in a greater intensity of site usage and therefore an increased target area beneath existing trees. This he fears will result in more requests for tree removal. While he accepts that the VMP is positive in its intention, he is uncertain as to its long-term effectiveness and ensuring compliance with it once the lots are in private ownership. As an alternative he suggested the site be established under Community Title. He also expressed concerns over the appropriateness of the proposed landscaping. 49Mr Castor's opinion is that the VMP will ensure ongoing management of the STIF community, including the existing canopy trees, particularly if a recommendation for a condition restricting the use of the land (under s 88 of the Conveyancing Act 1919 ) is imposed. He also considers that the council has the opportunity to assess any subsequent development applications for dwelling on the lots and that the majority of the trees (with the exception of Camphor laurels, will be protected by the council's Tree Preservation Order. 50In response to concerns about root mapping expressed by the objectors, Mr Castor stated that the tree protection zones were calculated using AS4970:2009 Protection of trees on development sites and that more detailed investigations are more appropriate when development applications are being prepared for individual lots. In reply to a question concerning truck access near tree 37, although he didn't measure it, Mr Castor considers that there is ample vertical clearance given the width of the driveway. In response to a question regarding Tree 5 and its apparently declining vigour, Mr Castor stated that it was marked for retention but should need to be replaced he considered a Grey Ironbark should be planted. 51During the hearing Mr Castor stated that, as he understood it, the widening of the driveway between the proposed building platforms on Lots 1 and 2 was a temporary measure to facilitate the movement of trucks during the construction of the access road. He stated that the area beyond the minimum requirement for passing was intended to be treated differently but this is not shown on the plans. Ecological evidence 52In their joint report, the ecologists agree that: the stand of STIF is represented on the site by 6 Grey Ironbark [the Arboricultural Impact Assessment notes 7] located on the rear of proposed Lot 2 only; it is on the western edge of a larger patch of forest that extends down slope to the Edna Hunt Sanctuary; whilst there may be a few scattered specimens of some native understorey species, these constitute a minute proportion of the weedy understorey; the proposed access road for Lot 3 has designed specifically to avoid significant impacts on tree roots and soil conditions within the STIF community; VMPs are a commonly used approach to managing sensitive vegetation on development sites; and, the implementation of a proper VMP will substantially enhance the native vegetation on the site. 53The main area of disagreement focussed on the medium and long term effectiveness of the VMP. Dr Robertson's concerns are that whilst the VMP will make a positive short term improvement, he is unconvinced that the vegetation will be maintained and protected in the long term. He also has doubts over its enforceability once the lots go into separate ownership. 54In response to questions raised at the site view regarding the staging, duration and extent of the VMP, the ecologists, arborists and landscaper designer were directed to review the proposed VMP prepared by Mr Fanning. During the hearing, an amended version of the VMP was tendered. The amended version identifies the area to be revegetated and managed, proposes an operational period of 5 years (as opposed to the original 2 year proposal) and describes a two-stage implementation of the works. Stage 1, to be implemented over two years, is to include the removal of a large Camphor laurel as well as weeding and planting works associated with the construction of the access driveway. Stage 1 will occur principally on proposed Lot 2. After two years, Stage 2 will commence and will be principally on Lot 1 with maintenance of Lot 2. At the conclusion of 5 years of regeneration and maintenance the VMP anticipates that the goals will have been satisfied. It is proposed that the VMP and ongoing maintenance in perpetuity will be imposed on Lots 1 and 2 by way of a s 88B covenant. 55Despite the amendments to the VMP, Dr Robertson voiced concerns over its adequacy, in particular he noted that there is no mechanism to replant/ replace existing Grey Ironbarks once they die; he noted that the landscape plan and species list attached to the VMP is incompatible with the intent of the VMP. He considers that if a two lot subdivision was proposed, with the deletion of Lot 3, that Grey Ironbarks T21 and T24 could be removed to allow a larger building footprint and the area at the rear of that lot (formerly part of Lot 3) could be used to re-establish a STIF community. Dr Robertson also expressed concerns over the precedent that approval of the development would set for similarly sized properties and the potential to incrementally lose more trees and plant communities. Engineering evidence 56The engineers prepared a joint report but were not required for cross-examination as all matters were agreed. Relevantly, the engineers agree that the stormwater and drainage issues have been resolved by the production of the revised Concept Stormwater Drainage Plan and report prepared by Craig & Rhodes. They also agree it is appropriate to impose a positive covenant and restriction on the use of the land in regards to the maintenance and protection of the relevant drainage structures. Landscape evidence 57A landscape plan was submitted as part of the proposal and in the amended VMP. This is intended to be indicative of possible landscape treatments. The plan includes canopy trees, including ornamental species commonly used in the locality, screen and buffer plantings, as well as low decorative understorey planting. There is a mixture of exotic species as well as STIF species. Submissions The applicant's position 58Mr Green for the applicant contends that the proposal should on be approved on planning grounds because: demolition of the existing dwelling is not opposed; the proposal is a well-considered approach to the constraints on the site, in particular the STIF EEC; the proposed lot sizes exceed the minimum requirements; a 2-lot subdivision would permit dwellings with larger floor space ratios that could then compromise the viability of the EEC; from the street the site will be perceived to follow the established subdivision pattern; the dwelling on Lot 3 will be barely visible from the street due to the fall in levels and intervening landscape; the areas of private open space associated with each of the proposed building footprints comply with the controls; with respect to Lot 2, the open space at the rear of the footprint will receive adequate sunlight albeit shaded by trees, is at grade and accessible from the rear of the building footprint; and, the proposed VMP meets the requirements of both the current and the draft LEPs. 59Mr Green contends that there is an eclectic mix of driveways in the vicinity however he considers that the details of the driveway, including the length, width, location and treatment of the passing bay, can be revised on the plan to address the concerns of Mr Popovic. 60In regards to the arboricultural and ecological issues, Mr Green considers that the development and implementation of a VMP to enhance the degraded STIF community, and its imposition on future owners via a restrictive covenant on Lots 1 and 2, will set a 'gold star' precedent for other small lot sub-divisions generally. He contends that the deficiencies highlighted by Dr Robertson concerning the inconsistencies in the landscape plan and the VMP, as well as the replacement of STIF canopy trees, can be addressed by a condition to update the VMP accordingly. With respect to the landscape plan he submits that this is indicative only and is more appropriate at the DA stage for each lot. 61He contends that it is common ground between the ecologists that the STIF community is degraded with very little understorey. He submits that a 'do nothing' approach will lead to further degradation. Mr Green considers Dr Robertson's opinion that trees 21 and 24 are not sacrosanct and that new trees could be planted on proposed Lot 3, where no STIF community currently exists, to be inconsistent with the aims of preserving the existing community. He argues that the implementation of the VMP will effectively double the STIF community on the site. In response to Dr Robertson's concerns about the medium and long term operation of the VMP and its enforceability, he contends that not only will a restrictive covenant place an onus on future owners, but once the draft PLEP 2010 is gazetted, any s 149 certificate will include the extension of the environmental protection zoning. Mr Green contends that concerns about the long-term success of the VMP should not be predicated on an assumption that people will not comply and therefore break the law. This he says is consistent with the finding of Preston CJ in Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 at [35]. 35 Hence, in undertaking the merit determination of whether to grant or modify a development consent, it is irrelevant to enquire as to who is the current owner/operator, or who might be the future owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully. 62With respect to the proposed restrictive covenants concerning the stormwater drainage systems and the implantation of the VMP, Mr Green considers them to be appropriate in the circumstances. Consistent with the finding of Pearlman J in Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70 at [15] he contends that it is important that notice be given to prospective buyers. In reply to Mr Bollard's suggestion of Community Title and concerns about enforcement, Mr Green notes that no community land is proposed and therefore this is not an appropriate mechanism in the circumstances and that council has various means at its disposal in enforcing conditions. The Respondent's position 63Mr Drury for the council contends that the application for a 3 lot subdivision should be refused but a 2 lot subdivision remains acceptable. The main reasons are: the proposal does not protect the existing and predominant subdivision pattern and therefore does not comply with the relevant controls in PHDCP; it offends zone objectives (a) and (b) by not enhancing the amenity and characteristics of the area and it compromises the amenity of surrounding residential areas as well as the natural heritage; and, the area of private open space, in particular on Lot 2, is not of the quality envisaged in cl 4.3.1 of PDCP 2005 64With respect to the sub-division pattern Mr Drury presses Mr Popovic's evidence that the pattern proposed by the applicant is not one anticipated by PHDCP. He contends that the driveway treatment is not consistent with those in the vicinity and there is no assessment of the vehicular access required for Lots 1 and 2 off the shared driveway. 65In regards to the quality of open space, Mr Drury argues that the constraints of the trees, revegetation area, presence of the access road to Lot 3, likely fencing because of safety concerns, and the possibility of a decked area at the rear of the building platform on Lot 2 combine to produce open space that does not comply with the design principles in cl 4.3.1. of PDCP 2005. He considers the triangular portion on the north-eastern section of Lot 2, that is, a portion separated by the access road, to be impracticable to maintain. Mr Drury also notes the landscape plan attached to the amended VMP tendered during the hearing, that the open space at the rear of Lot 1 is shown as 86m 2 and therefore is non-compliant with the controls. 66Mr Drury also presses Dr Robertson's opinion that the VMP does not guarantee the medium and long-term prospects of the STIF community and that trees 21 and 24 could be removed and the community protected by using Lot 3 for planting purposes. He cites the Court's decision in Ingham Planning Pty Ltd v Ku-ring-gai Council [2010] NSWLEC 1222 at [157] in regards to the shortcomings of a VMP in that matter and what he says are valid considerations in the this matter. 157 The draft VMP proposes a 'Restriction on Use' mechanism to be imposed on three of the six proposed Lots. However, there are no details of how this mechanism is to be formulated, implemented, monitored or enforced. There are no examples of where such a mechanism, in the form proposed, has been successfully applied. It is reasonably foreseeable that, notwithstanding such a covenant, anyone purchasing a residential lot in this subdivision would have an expectation of using their private open space for a range of activities. These activities are likely to include key threatening processes such as clearing of native vegetation by mowing and potential further weed invasion through garden escapes. The mechanism relies on the co-operation of three individual landholders without any fixed schedule, funding source or management procedure to carry out works across these three lots. Therefore, we are unconvinced of the practicality of this mechanism, and of the draft VMP, to ensure the long-term viability of the BGHF that these devices set out to protect and preserve in perpetuity. 67Mr Drury contends that the contentious issues of the access way to Lot 3 and the planned swale drain would be unnecessary if a 2 lot subdivision was proposed. Findings Planning, Heritage and Conservation 68The size of the site is not typical of the surrounding lots. It is effectively twice the width of the surrounding lots and appears to be one of the last remaining lots shown on the 1910 subdivision plan of the Eastwood House Estate. According to the Statement of Heritage Impact (exhibit E) prepared by Mr Staas, many of the larger lots were re-subdivided. The existing sub-division plan shows that the lots to the north of the site on Epping Avenue have been subdivide to produce lots with approximately 15m street frontages; lots to the southeast off Eastwood Avenue show a number of battleaxe blocks created at the rear of lots with a frontage narrower than that of the site in question. 69I agree with Mr Popovic that the PHDCP (and the draft PDCP 2010) and the diagrams included in it in cl 5.2, do not anticipate the subdivision pattern proposed by the applicant, however, that is not surprising given the anomalous nature of the site. Council does not oppose the splitting of the site into two 15m frontage lots although, on the face of it, this inconsistent with the diagrams shown in the PHDCP. However, the PHDCP does allow the creation of battleaxe blocks within the existing subdivision pattern. The effective deviation from the predominant pattern is the creation of Lot 3 across the rear of proposed Lots 1 and 2 rather than at the rear of one of them. 70The difference between the parties' planners and heritage experts is whether the subdivision will be perceived from the public domain as something other than the predominant pattern of subdivision. In addition, the council's planner and heritage consultant are of the opinion that the site will be perceived as a multi-unit development. The central driveway is also at issue. I note that the demolition of the existing dwelling is not opposed. 71In this regard I find that the creation of Lots 1 and 2, including the compliant proposed location of the building footprints, will not detract from the existing predominant pattern of subdivision, but in essence, will reinforce the current pattern by creating two 15m frontages. The exception to the pattern is the location of the central, shared driveway. While the majority of dwellings have the driveway located on a side boundary, that is likely to be a function of the 15m frontages. The site inspection showed a variety of widths and styles of driveways and off-street parking arrangements. The current width of the site enables a shared driveway, which therefore requires only one footpath crossing. I note that the heritage experts do not object to the shared driveway for Lots 1 and 2. 72With respect to the perception of the proposal as a multi-unit development, I agree with the applicant's experts that the combination of the significant drop in level from the street to Lot 3, the distance from the street to any dwelling on Lot 3 of over 60m, the fact that only a single storey dwelling is permitted on battleaxe blocks and the retention of vegetation on the site, will not result in any future dwelling on lot 3 being so prominent as to create a public perception of a multi-unit development. The access to Lot 3 deviates around Lot 2 and will therefore be largely hidden from the street. While the landscape concept plan is indicative of what could be implemented on the site and is not part of the subdivision application, it serves to demonstrate how the visual impact of both the driveway and the distant view of any dwelling on Lot 3 may be mitigated. It is a useful guide to what might be required at the next stage of the development process. 73However, I agree with Mr Popovic that the length and configuration of the widest section of the driveway (between proposed Lots 1 and 2) should be reviewed and modified to lessen its visual impact but remain compliant with the necessary standards. 74In regards to the specific controls in cl 38 of PLEP 2001, the lot sizes are compliant. The indicative building platforms are large enough to enable flexibility in design to accommodate concerns over vehicular access (Lots 1 and 2) and the constraints of the topography (Lot 3). 75The other planning issue pressed by the parties is the quality of the private open space of Lot 2. In this regard I consider that the area is numerically compliant (even without the steep triangular section), is at grade and is accessible from the rear of the proposed footprint and therefore satisfied those elements of cl 4.3.1 PDCP. While Mr Fanning may have recommended decking of the open space on the basis of protecting the root zones of the Grey ironbarks, it is not something raised by the arborists or illustrated in the landscape plan. I agree that the protection and enhancement of the EEC on Lot 2 will require an area to be designated for revegetation purposes and management in accordance with a VMP, however, that area needs to be carefully considered so that there is a balance between what might be required to meet the needs of future owners with respect to outdoor recreation and the long-term enhancement of the STIF community. 76I do not accept Mr Drury's submissions that private open space must be capable of use for activities such as children's ball games such as cricket and football. While I accept that cl 4.3.1 of PDCP requires provision of quality open space, I consider that there are many ways in which open space can be enjoyed. The proposal makes it clear that the site is constrained by the driveway to Lot 3, the trees and the VMP. I do not consider the qualitative aspects of the private open space for Lot 2 to be determinative in this matter. With regards to the landscape plan attached to the amended VMP (exhibit R), the plan shows the private open space at the rear of Lot 1 to be 86m 2 ; clearly, if this is the case, this is non-compliant. However, I fail to see why private open space and the area to be managed for revegetation purposes should be entirely mutually exclusive. However, I do see the need to take a more detailed assessment of the portions of Lots 1 and 2 that can most practically be incorporated into the VMP. Within those portions, thought should be given to whether the recreation of the understorey is necessary for the entire area. Any plans accompanying the VMP should show compliant areas where private open space can be created without the constraint of understorey planting. That area of open space would not preclude the establishment or replacement of canopy species. Ecological and arboricultural findings 77The matter before the Court is for a subdivision. The building footprints and access road have been designed to minimise impacts on the remaining STIF trees and an Arboricultural Impact Assessment (AIA) has been prepared (Exhibit H). While Mr Drury pressed a resident's concerns about the absence of detailed root mapping, section 4 of the AIA gives detailed recommendations for tree management. In particular, cl 4.2.3 notes that further assessment will be required as part of subsequent development applications for dwellings on each of the lots. I agree that more detailed investigations will be required at that stage, particularly if there are incursions of more than 10% of the calculated tree protection zones of trees to be retained. This is in accordance with AS4970:2009 - Protection of Trees on Development Sites. 78Similarly, with respect to the elevated driveway, the AIA states that 'Arborist supervision shall be required during pier excavation to advise on appropriate treatment of any roots encountered. The upper 500mm of the pier holes is to be dug by hand to ensure not [sic] major roots (>50mm ) are encountered. ' Provided the conditions of consent are suitably clear and detailed to incorporate the recommendations, and the conditions are complied with, I have no reason to doubt that this is an appropriate method of minimising the impact on the root zones of the Grey Ironbark trees to be retained. 79However, to ensure the viability of the STIF trees, a detailed and specific Tree Protection Plan (TPP) will need to be prepared for all works associated with the subdivision. Apart from standard tree protection measures, the TPP should include ground protection measures for any works in the vicinity of the Grey Ironbarks. The TPP and any supporting documentation must be prepared in accordance with AS4970 and include a schedule indicating hold points that require supervision by the project arborist as well as stages or operations requiring monitoring and certification. The draft conditions of consent must be revised and updated to reflect the language and approach of AS4970. 80A difference between the arborists concerns the impacts on the trees arising from future occupation of the lots. I consider that the imposition of a VMP will provide additional protection to the trees beyond which would normally apply. Council will have the opportunity to consider further tree protection and conservation measures when development applications are lodged for individual lots. I understand that the trees will be protected by council's tree preservation order. Should a future owner or occupier have a problem with a neighbour's tree they can make an application under the Trees (Disputes Between Neighbours) Act 2006 . Any application so made is determined on the jurisdictional tests; and any orders made must consider a number of discretionary factors including biodiversity/ ecological issues. I find that while Mr Bollard's concerns are reasonable from a council's tree management perspective I do not consider them to be determinative in this matter. 81The ecologists agree on a number of key elements of the proposal [52]. The main ecological differences are the adequacy and longer term effectiveness and enforceability of the proposed VMP. Mr Drury cites the Court's findings in Ingham Planning Pty Ltd v Ku-ring-gai Council [2010] NSWLEC 1222. While I accept that the proposed VMP in this matter has some similar shortcomings, the particular circumstances of the matters are quite different. 82The amended version of the VMP proposes an operational period of 5 years (rather than the original 2 year period) in two stages and the imposition of a s 88B covenant to ensure its implementation. I agree with Dr Robertson that there must be a mechanism to replant or replace the existing Grey Ironbarks when they die; I agree there are serious inconsistencies between the indicative landscape plan and the intent of the VMP. With respect to the landscape plan, if the applicant relies on it as a guide to what could occur on the site, and I have no objection if it does, it must be consistent with the VMP. However, as landscaping is relevant at the DA stage for the individual lots, that is when compatibility with the VMP should be considered. 83By virtue of their proximity to proposed building platforms and the driveway, the most vulnerable STIF trees on the site are probably trees 21, 24 and 37 on proposed Lot 2. I find Dr Robertson's oral evidence that trees 21 and 24 are not 'sacrosanct' and they could be replaced elsewhere on the site to be slightly contradictory to his assessment of the shortcomings and long-term enforceability of the VMP. It would seem that the substance of the proposal, including the intent of the VMP, is to retain and protect the existing extent of the STIF community and extend it to other parts of the site where it no longer exists in order to improve the connectivity between the remnant vegetation on the site and that to the north. With respect to Dr Robertson's concerns over enforceability, I agree with Mr Green and the findings in Jonah that the determination of the matter cannot take into account what a future owner may or may not do. 84In regards to the VMP and the proposed covenant, there is more detail to be provided. The amended VMP contains some irrelevant background material. The document requires more specific detail, so that it can be practically implemented; in its current state I do not consider it be an operational document. Refinements could include, but are not limited to, methods of protecting during the construction phase of those parts of the site to be restored; access, timing and notification processes; lot-specific staging and operations; and a clearer planting schedule. Consistent with my findings in [75], the designation and mapping of the portions of the lots to be covered by various aspects of the VMP needs to take into account the need for open space. If an indicative landscape plan is to be included, it must be consistent with the aims of the VMP but enable planting of non STIF species in appropriate areas. Both the VMP and the Tree Protection Plan (TPP) discussed in [79] must be consistent and appropriately cross-referenced. The VMP must address the replacement strategy for existing Grey ironbarks. 85Similarly, there are insufficient details of the proposed covenant for both the storm water drainage system and the operation of the VMP. The findings of the parties' engineers should be incorporated into the conditions of consent. Conclusions 86In accordance with s 79C(1) of the Act I make the following conclusions. 87In regards to the relevant objectives of the PLEP 2001 I find that the proposal is consistent with objective (2)(c) in that it is development that accommodates the needs of existing and future residents by creating compliant lot sizes on land zoned for residential purposes. Notwithstanding the shortcomings of the proposed VMP, I find that the proposal protects and enhances the natural environment, including areas of remnant bushland, through the careful siting of the proposed access road and building footprints, as well as the proposed VMP and tree protection measures. Therefore objective (2)(j) is satisfied. 88The proposal is for sub-division for low density housing as encouraged by cl 16(3)(b) of PLEP 2001. The impacts on amenity, characteristics and heritage of the area are discussed below, however I find that the impacts of the proposal on those aspects are not so significant as to warrant the refusal of the proposal. Therefore I find that the proposal is consistent with the objectives of the zone as required by cl 16(3) of the PLEP 2001. 89Whilst under the current LEP the site does not abut land zoned Environmental Protection, and therefore technically does not require compliance with cl 47 of PLEP 2001, I find that the proposal addresses the matters required to be considered. The development retains bushland on the site, proposes a weed management strategy through the VMP, and addresses stormwater management. I consider that the extension of the Environmental Protection zoning onto the site under the Draft PLEP 2010 (which is said to be imminent and certain) has been considered and that the proposal satisfies the considerations in cl 6.9(3) of that draft (notwithstanding the savings provisions in the draft). 90With regards to PLEP 1996 Heritage &Conservation, the relevant objectives are stated at [19] but essentially require conservation of, and no adverse impacts on, the features of the heritage conservation area. The features of the Epping/Eastwood Conservation Area are listed in PHDCP. I consider that the proposal will not adversely affect those features; in particular, the existing predominant pattern of subdivision will be reinforced when viewed from the public domain. 91While local residents may oppose the development, I find that the proposal meets the numerical planning controls and has no significant detrimental impact on the amenity of neighbouring properties. The amenity issues of light spill, stormwater movement and potential loss of canopy have been addressed by fencing, a stormwater management plan and the staged removal and replacement of non STIF trees. While there is likely to be some visual impact of the elevated roadway when viewed from the rear of 58 Epping Avenue, this can be mitigated. Overall I am satisfied that I have considered the public interest in accordance with s 79C(1)(e). Directions 92Therefore, I find that there are no insurmountable reasons for dismissing the appeal however there a number of matters that need further consideration by the applicant. These are: * A detailed, operationally practical Vegetation Management Plan as described in [84], * A detailed Tree Protection Plan [79], * Agreed conditions that reflect the findings in this judgment, in particular consistency with AS4970. * Details of the wording and operation of the proposed covenant relevant to the VMP and the stormwater drainage plan, and * A revised plan of the driveway [73]. 93Further directions will be made after discussions with the parties on an appropriate timetable for the production of the documentation and amended conditions. Additional information 94I am satisfied that the amended Vegetation Management Plan and the site specific Tree Protection Plan provide adequate detail to enable their implementation and address the matters raised in [79] and [84] of this judgment. 95The agreed conditions of consent have been revised to reflect the findings in this judgment and are consistent with AS4970. 96The parties have agreed to the terms of the Positive Covenants intended to be created pursuant to s 88B of the Conveyancing Act 1919 with respect to the VMP and the stormwater drainage. 97Detailed sections of the driveway and the concept drainage plan have been agreed and filed. 98As the additional material has been provided to the satisfaction of the Court, final orders can be made. Orders (1)Appeal number 10868 of 2010 is upheld. (2)Development Application DA/676/2010 for tree removal, construction of a concrete access way, drainage network and subdivision into 3 allotments of 54 Epping Avenue Epping (Lot 45 DP 5792) is approved subject to the conditions in Annexure A. (3)All exhibits except 1 and B are returned. ________________________________ J Fakes Commissioner of the Court 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. Decision last updated: 16 December 2011