Land and Environment Court New South Wales Medium Neutral Citation: P S Graham & Associates v Hornsby Shire Council [2014] NSWLEC 1153 Hearing dates: 17 June 2014 Decision date: 18 June 2014 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. Development Application No 924/2013 for the demolition of an existing dwelling and the construction of a new dwelling at 88 Malton Road Beecroft is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 5 and G. Catchwords: DEVELOPMENT APPLICATION: demolition of a dwelling house and the erection of a new two storey dwelling house - removal of existing tree Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: P S Graham & Associates (Applicant) Hornsby Shire Council (Respondent) Representation: Mr J Hones, solicitor (Applicant) Mr C Gough, solicitor(Respondent) Hones La Hood Lawyers (Applicant) Storey & Gough Lawyers (Respondent) File Number(s): 10193 of 2014 Judgment 1COMMISSIONER: This is an appeal against the refusal of development application number 924/2013 for the demolition of a dwelling house and the erection of a new two storey dwelling house at 88 Malton Road, Beecroft. 2The appeal was subject to mandatory conciliation and arbitration on 17 June 2014 under s 34AA of the Land and Environment Court Act 1979. As no agreement was reached, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with forthwith pursuant to s 34AA(2)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34AA(2)(b)(ii). 3The application proposes the removal of a Angophora costata (Tree 60). The contentions raised by the council centre on whether Tree 60 should be removed to allow the construction of the new dwelling. The evidence on this contention addressed town planning, ecological, arboricultural and heritage matters. If the Court finds that Tree 60 can be removed, it was accepted that there are no other contentions raised by the council that would warrant the refusal of the application. The residents who provided evidence on the site inspection supported the contention raised by the council and also raised the potential impact on the Right-of-Way (ROW) that runs near the western boundary of the site and provides access to a number of adjoining dwellings. The site 4The site is Lot 41 in DP714483 and has an area of 3777 sq m. Access to the site is by way of an existing driveway from Malton Road. The site has an average fall of 18% from the northeastern front boundary to the southwestern rear boundary and contains a single storey dwelling house, swimming pool and a detached garage. A level area is located near the street frontage in front of the existing dwelling. 5Surrounding development is characterised by low-density residential development. Relevant planning controls 6The site is currently located within Zone R2 Low Density Residential, under Hornsby Local Environmental Plan 2013 (LEP 2013). However, as the development application was lodged but not determined prior to the coming in effect of LEP 2013, cl 1.8A of LEP 2013 applies. This clause provides that "the application must be determined as if this Plan had not commenced". 7The environment planning instrument that applied prior to the coming into effect of LEP 2013 was Hornsby Local Environmental Plan 1984 (LEP 1984). Under LEP 1984 the site was within Zone Residential AS Low Density (Sensitive Lands). The construction of a dwelling house is permissible under both LEP 1984 and LEP 2013. The applicable development control under LEP 1984 is Hornsby Shire Dwelling House Development Control Plan. Hornsby Development Control Plan 2013 came into effect with LEP 2013. There was agreement between the parties that the applicable planning controls are found in LEP 1984 and the corresponding development control plan. 8The site is identified as being on bushfire prone land and is within the Beecroft/Cheltenham heritage conservation area under the provisions of Sch E, Heritage Conservation Area of LEP 1994. The site is also within the vicinity of street trees located on Malton Road, which are listed as heritage items of local significance under the provisions of Sch D of LEP 1994. Should Tree 60 be removed? - the evidence 9There was agreement on the condition of Tree 60 by the arborists, Ms Catriona McKenzie for the applicant and Mr Robert Woodward for the council. Tree 60 is described as mature with a height of 15 metres, a 10 metre spread and a 820 mm diameter at breast height. It is vigorous, of generally good condition for its maturity and its form and habit of growth is typical for the species. 10The ecological evidence was provided for the applicant by Dr Stephen Ambrose and for the council by Mr Alex Fraser. Dr Ambrose states that Tree 60 is not ecologically significant as: 1. it does not contain hollows that could be used by hollow dependant fauna; 2. it is not part of an endangered ecological community; 3. the species is common and widespread in the locality and; 4. it has no obvious form that would make it more ecologically significant than individuals of the same species that are similar in age or height. 11On this basis, the removal of Tree 60 would not result in the disappearance of this species from the site or the locality and would not significantly limit the resources available for local wildlife. 12Mr Fraser maintains that the surrounding habitat is a known potential habitat and future potential habitat for threatened species and populations. In his opinion, Tree 60 is in an advanced state of maturity and may form habitat hollows in the future. The tree cannot be adequately substituted by planting tubestock given the mature age of this tree. 13The heritage issue was addressed for the applicant by Mr Robert Staas. He states that the character statement for this precinct does not relate in any way to the site or the proposed development but described forms of development spanning the late Victorian and Early 20th century. The Character statement does indicate that the area contains, "Mature trees including remnant forest trees which combine to create a landscape character. The gardens and private domain plant is contribute to this character." In stating this, the area is not significantly different to other parts in the conservation area. There are no specific controls for the precinct beyond those in the general part of the plan to the conservation area, including in relation to landscaping, the following: (c) Development should not impact upon trees/landscaping that contribute to the significance of the heritage conservation area, including the removal of trees/landscaping that contribute to the significance of the heritage conservation area; (d) Mature trees/landscaping that are removed should be replaced with trees/landscaping in a similar or more appropriate location that will mature to similar size in canopy. 14Mr Staas concludes that the proposed development, while resulting in the loss of Tree 60 would not have sufficient adverse impact on the identified heritage value and character of the conservation area to warrant refusal of the application on heritage grounds. While the loss of a substantial number of trees in one locality might have some impact on the overall character of the conservation area, the loss of a single tree that is not individually identified as having significance will not have this effect. This is reinforced by the provision for the replacement of mature trees in the DCP, which suggests that tree removal and replacement will form part of the acceptable development process. 15The council did not provide any specialist heritage Tree 60 would be inconsistent with the Heritage DCP requirement that provides for a replacement dwelling on another part of the site, which would respect the significance of the existing tree on the character of the conversation area. 16The town planning evidence for the council was provided by Mr Kennan and for the applicant by Mr Tony Moody. Mr Kennan maintains that Tree 60 should be retained and this can be achieved by locating the proposed dwelling in the location of the existing dwelling on the site, that is, behind Tree 60. The additional benefit is that no further earthworks are likely to be needed if the dwelling is located in this location. 17Mr Moody states that a new dwelling in the position suggested by Mr Kennan is not desirable for a number of reasons including: 1. the additional earthworks required, given that the proposed location is largely cleared and flat; 2. the area occupied by the existing dwelling could be rehabilitated back to its natural topography; 3. a dwelling in the area of the existing dwelling would create unacceptable amenity impacts on both adjoining properties. Should Tree 60 be removed? - findings 18In considering the range of expert evidence and the different opinions of the various experts, I am satisfied that Tree 60 can be removed for a number of reasons. First, and as submitted by both Mr Gough for the council and Mr Hones for the applicant, the decision on whether Tree 60 can be removed is a question of balance and in this case, the weight of evidence supports its removal. 19Second, I accept the evidence of Dr Ambrose on the ecological contentions that Tree 60 is a common species and widespread in the locality and would have no adverse impact on biodiversity, fragmentation of native vegetation or wildlife corridors. The reliance by Mr Fraser on the fact that Tree 60 may ultimately provide habitat by way of tree hollows is an insufficient reason to support the retention of Tree 60 in light of Dr Ambrose's more comprehensive assessment. 20Third, I accept of Mr Staas on the heritage contentions. His evidence was not seriously challenged by Mr Kennan, in my view. There can be little doubt that the removal of Tree 60 would not have an unacceptable impact on the trees in the road reserve for the length of Malton Road, this being the description of the item identified in Sch D of LEP 1994. Similarly, the loss of one tree will not affect the character of the wider conservation area. 21Fourth, and while there was some discussion on the significance of Tree 60, it was not disputed that the tree is not separately identified as a significant tree by the council, notwithstanding that there is the opportunity to do so. While a belated attempt was made by Mr Woodward to suggest that Tree 60 could be defined as a significant tree through the procedures in the matrix identified in, "Tree Assessment Sheet 3", I am more inclined to accept the evidence of Ms McKenzie where she stated that the matrix is "a crude method of determining the significance of a tree." I agree that the example she cites, supports her conclusion. 22Fifth, I accept the town planing evidence of Mr Moody over that of Mr Kennan. Tree 60 is located in a position that would generally fall within the centre of the location of a dwelling that would likely be constructed on the site. This location would provide a generally consistent setback with the adjoining properties and also provide a consistent streetscape appearance from Malton Road, a matter encouraged by the DCP. A reasonable dwelling could not be located between this street and Tree 60 because of insufficient area. 23I agree with Mr Moody that the location of a new dwelling in approximately the same location as the existing dwelling would create unacceptable overlooking and amenity impacts on both adjoining properties, particularly where there are swimming pools involved. The location of a new dwelling elsewhere on the site is so uncertain given the extensive vegetation in this area that in the absence of any detailed assessment, this area is not a viable alternative for the location of the new dwelling. 24A matter that arose during the hearing was the appropriate setback of the dwelling from the Sydney Peppermint on the adjoining property to the west. The joint report of Ms McKenzie and Mr Woodward stated on this matter: We agree that amendments to the proposed dwelling, including an offset in excess of 4 metres from the centre of the tree stem to any external wall would accommodate the adjoining Sydney Peppermint without unacceptable and adverse impacts on its stability and longterm viability. 25The amended proposal provided for an offset of 4.2 metres, however Mr Woodward appeared to reconsider his position and maintained that a 5.2 m offset would be more appropriate. In his oral evidence, he stated that given the presence of a sandstone outcrop within the offset area, it was unclear what the appropriate setback should be but stated that the greater offset, the greater potential to protect the Sydney Peppermint. He accepted that if the footing for the house, in the vicinity of the Sydney Peppermint, were dug in the presence of an arborist, that this would give him greater confidence. However he maintained some reluctance to support the 4.2 metre offset. This offset was considered acceptable by Ms McKenzie based on root mapping conducted in this area. 26I accept the 4.2 m offset is acceptable, subject to the supervision by an arborist, while the footings are being dug in the vicinity of the Sydney Peppermint. This can be an additional condition of consent. 27The matter raised by the residents over the potential impact of the construction of a dwelling near the ROW that services the properties to the west was not raised by the council as a contention. I note the north elevation, plan elevation 2, shows a small retaining wall on the western boundary, although it is not shown elsewhere on the plans. A further condition should be placed on the consent requiring details of any retaining walls to be shown on the architectural plans. Orders 28There being no reason why the development consent should not be granted, the orders of the court are: 1. The appeal is upheld. 2. Development Application No 924/2013 for the demolition of an existing dwelling and the construction of a new dwelling at 88 Malton Road Beecroft is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 5 and G. ______________________ G T Brown 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: 06 August 2014