Madgwick v Leichhardt Municipal Council [2011] NSWLEC 1388

Land and Environment Court New South Wales

Medium Neutral Citation: Madgwick v Leichhardt Municipal Council [2011] NSWLEC 1388 Hearing dates: 21 and 22 December 2011 Decision date: 22 December 2011 Before: Dixon C Decision: (1)The appeal is upheld. (2)The State Environmental Planning Policy number 1 objection to compliance with clause 19(3) of the LEP is upheld. (3)Development consent is granted to DA 2011/3 for demolition of the existing roller door structure to the rear, a new car port, the removal of the tree at the rear of the site and new pergola to the rear of the dwelling on lot 1 DP 921871, 25 Young Street Annandale. (4)The exhibits will be returned upon publication of the existing judgment. Catchwords: Development appeal - new carport and pergola, impact on tree Legislation Cited: Environmental Planning Assessment Act 1979 Leichhardt Development Control Plan 2000 Leichhardt Local Environmental Plan 2000 Cases Cited: Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 Category: Principal judgment Parties: Ms L Madgwick (Applicant)

Leichhardt Municipal Council (Respondent) Representation: Counsel Ms P Madgwick (Agent for the Applicant)

Ms J Walsh (Respondent) Solicitors Pikes Lawyers (Respondent) File Number(s): 10926 of 2011

ex-tempore Judgment 1The applicant seeks consent to carry out renovations to her property at 25 Young Street, Annandale. The renovations include the demolition of an existing roller door structure and the erection of a new carport, awning and pergola. These works, if they are to proceed, require the removal of a large Scribbly Gum in the rear yards. 2Leichhardt Council does not agree with the removal of the tree or the proposed works and on 22 April 2011 it refused consent to the applicant's development application (DA 20113). This is an appeal against that decision. 3The matter was listed before me under s 34AA of the Land and Environment Court Act 1979 (the LEC Act). After a successful conciliation of some of the issues the parties requested that I determine the outstanding matters under s 34AA(2)(i) of the LEC Act. 4Before I discuss the reasons for my decision to approve the development I would like to refer to some of the relevant facts and planning controls. These are set out in Council's statement of facts and contentions dated November 2011. It records that Leichhardt Local Environmental Plan 2000 (the LEP) and Leichhardt Development Control Plan 2000 (the DCP) apply to this site. The property is small with a total area of 130 m2. Erected on the property is a two-storey renovated dwelling. At the rear of the dwelling are a courtyard and a single space carport structure. The carport is accessed from Young Lane behind the site. A large Eucalyptus Haemastoma (Scribbly Gum) grows in the rear yard near the car space structure. The arboreal evidence before the Court describes the tree to be about 14 m and in fair to good health with a life expectancy of between fifteen to forty years. 5The site is within a conservation area and located within the Young Street district neighbourhood under the DCP. The suburb profile for the neighbourhood is in Part A 10.3 of the DCP. It states: A particularly significant attribute of the Young Street distinctive neighbourhood is the prevalence of mature street trees and established front gardens and landscaped yards. The abundance of mature trees, in both the public and private domain, creates vegetative corridors that contribute to the neighbourhood's amenity. 6At the view I observed that Young street is characterised by mature street trees and established front gardens and landscaped yards. I also observed that Young Lane has a number of large trees, which contribute, to a vegetative corridor and that the applicant's tree adds to that amenity. 7To ensure that this character is maintained, Council's DCP in Part B 4.3, which deals with laneway development, states that backyard trees add to the landscape quality of the area; and, therefore, trees more than six metres high should not be removed because they make significant contribution to the landscape. The DCP also states it is important to avoid a cumulative loss of significant trees as a result of laneway development. Council's Tree Preservation Order dated 19 January 2001 also protects the tree in the applicant's rear yard. 8It is the Council's case that the loss of the tree is contrary to Part B 4.3 Development type 3 Laneway Development and Part B 2.8 Design Element 16 Landscaping in the DCP. Its removal is inconsistent with the desire to retain significant trees in the backyards of properties backing onto laneways and the described future character of the Young Street distinctive neighbourhood, which encourages the retention and enhancement of vegetative corridors within rear yards. 9Despite this planning position, Miss Gordon, Council's consultant town planner, ultimately agreed that if a substitute tree was planted in the rear yard in time it could grow to achieve a similar tree canopy. She also told the Court that if this occurred then the desired future character of the Young Street distinctive neighbourhood would be achieved. 10The issue; then, is a balance between the need for on-site parking and the loss of the tree for a period before the substituted tree has reached maturity to contribute to the vegetative corridor. 11It is a fact that the applicant has had on site parking since 1999 when she purchased the property and that the existing tree is impacting on that car space. Its roots are uplifting the existing pavers and the entry to the car space. The Court was told that it is not possible to continue to park a vehicle on the property if the tree is retained. This coupled with the time limited parking on the street frontage during the day (without a parking permit) highlights the need for the retention of any onsite parking. After a view of the site I accept the applicant's submission that retaining on-site parking is critical to the continued amenity of the occupants of this property. As the applicant submits, the proposed carport is to be built in the location of the existing car space. 12The applicant contends that the imposition of the loss of the tree on the character of the neighbourhood is limited because of its location on the laneway rather than the street frontage. The Court observed that the laneway does have several large trees. 13Both parties agreed that the proposed carport is the only one practical location for a car space on this property. It was also clear from the view that Young Land is currently used as the parking access to properties on the eastern side of Young Street. The western side has no rear laneway. 14Having regard to the evidence - including the objections received at the commencement of the hearing and in Council's bundle - I accept the evidence of Ms Gordon that in time the substitute tree will contribute to a vegetative corridor consistent with the desired future character of the area. If the replacement planting occurs then the tree is a temporary loss until a mature substitute grows in its place. Its removal does allow the retention of onsite parking and this enhances the amenity for the occupants of the dwelling. 15Therefore, after a consideration of the council's controls and the particular constraints of this site I am of the opinion that the tree can be removed subject to a condition requiring the planting of a replacement tree in the rear yard. 16Having determined that issue I now turn to the other contentions raised by the Council. Council asserts that the development does not comply with Council's development standard in cl 19(3) of the LEP, which deals with landscape area. Section 19(3) states: " (3) Except where the development is carried out in accordance with clause 23 (1): (a) the minimum landscaped area for residential development is 40% of the site area, and (b) 25% of the landscaped area required under paragraph (a): (i) is to be on natural or unpaved ground that is not overhung by or on top of any structure, and (ii) is to be permeable, and (iii) is to be appropriate for substantial deep planting." 17The applicant has lodged an objection to compliance with that standard pursuant to State Environmental Planning Policy number 1 (SEPP 1). Although the clause does not state any underlying objectives the parties agree that the objectives in cl 17 (a), (b) and (c) of the LEP underlie cl19 (3). The agreed objectives are: (a)to control the bulk and scale of new development to be compatible with the style and orientation and pattern of surrounding buildings, works and landscaping; (b)to provide landscaped areas that are suitable for substantial tree planting of a size and location suitable for the use and enjoyment of residents and (c)to ensure the orderly and economic use and development of residential land. 18The applicant contends the development achieves the above objectives notwithstanding the breach of the numeral landscaped area control in cl19 (3). It submits that the development is compatible with the bulk, scale, style and orientation of the surrounding buildings and landscaping. Relevantly, the applicant submits it provides a landscaped area that is suitable for a substantial tree planting of a size and location suitable for the use and enjoyment of the residents. In short the applicant maintains that if the development proceeds the agreed conditions ensure the planting of a substantial tree and coupled with the changes suggested by Ms Gordon the orderly and economic use of this residential land is ensured. 19The amendments suggested by Ms Gordon include the planting of a suitable replacement canopy tree, a reduction in the size of the water feature and a 600 mm reduction of the awning at the rear of the dwelling to protect the tree on the southern boundary of the development. After a view of the site and surrounding area and a consideration of the suggested amendments I am of the opinion that the development will be acceptable. 20This is because the site is constrained and it would be impossible to comply with the development standard in clause 19(3) and keep the existing dwelling and the existing car parking structure. Clearly removal of these structures to comply with the landscaping control would not in the circumstances of this case be orderly and economic use of the residential land. These facts demonstrate that compliance with the standard would be unreasonable and unnecessary in the circumstances of this case. This development achieves an attractive outdoor landscaped area of some 28.2% of the site and provides a useful area for entertainment and recreation for the occupants of the dwelling. It improves the amenity for the occupants of the dwelling. The proportion of the deep soil planting to total landscaping is 25.4 % and the proportion of the landscape area on the site will be virtually unchanged if this development proceeds. Given these circumstances, I accept that strict compliance with cl 19 (3) of the LEP would be both unreasonable and unnecessary having regard the principles in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46. 21Therefore, I find that the underlying objectives as identified in cl 17 (a) (b) and (c) are achieved despite the non-compliance with the standard in cl19 (3) of the LEP. The approval of this development does not interfere with the attainment of the aims and objectives in cl 5A(1) and 5A(2) the EP & A Act and the orderly and economic use of this site. This leads me to the conclusion that the objection to compliance with the development standard in cl19 (3) of the LEP is well founded and therefore I uphold the objection to compliance made pursuant to under SEPP 1. 22The other contentions identified by the council have been resolved by the amended draft conditions that the applicant agrees to accept. Accordingly, I make the following Orders: (1)The appeal is upheld. (2)The State Environmental Planning Policy number 1 objection to compliance with clause 19(3) of the LEP is upheld. (3)Development consent is granted to DA 2011/3 for demolition of the existing roller door structure to the rear, new car port and removal of the tree at the rear of the site and new pergola to the rear of the dwelling on lot 1 DP 921871, 25 Young Street Annandale (4)The exhibits will be retained until I receive a copy of the transcript at which time the judgment will be published and I will return the exhibits. Susan Dixon Commissioner of the Court ANNEXURE A 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: 30 March 2012