Land and Environment Court New South Wales Medium Neutral Citation: Johnson v Hornsby Shire Council [2014] NSWLEC 1215 Hearing dates: 14-15 October 2014 Decision date: 21 October 2014 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed. 2. Development Application No. DA 199/2014 for a new dwelling on proposed Lot 2 at 39 Hannah Street Beecroft, is refused. 3. The exhibits, other than exhibits 1 and G, are returned. Catchwords: DEVELOPMENT APPLICATION: construction of a new dwelling; height, floor area, privacy; and impact on remnant Blue Gum High Forest identified as critically endangered ecological community. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Rural Fires Act 1997 Threatened Species Conservation Act 1995 Category: Principal judgment Parties: Mr Raymond Johnson (Applicant) Hornsby Shire Council (Respondent) Representation: David Baird Solicitor (Applicant) Adam Seton Solicitor (Respondent) HWL Ebsworth Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 10562 of 2014 Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 199/2014 for a new dwelling (the proposal) on proposed Lot 2 of 39 Hannah Street, Beecroft (the site) by Hornsby Council (the Council). 2The appeal was to be subject to mandatory conciliation on 14 October 2014 in accordance with the provisions of s34AA of the Land and Environment Court Act 1979, however, the parties advised, at the commencement of the proceedings on site, that there was no prospect of an agreement being reached and so the conciliation conference was terminated, pursuant to s34AA(2)(b) and a hearing held forthwith, pursuant to s 34AA(2)(b)(i). Issues 3The Council's contentions in the matter can be summarised as: * The site contains remnant Blue Gum High Forest, which is identified as a critically endangered ecological community pursuant to Part 2 of Schedule 1A of the Threatened Species Conservation Act 1995 and the proposed development would enable the removal of any remaining tree within 10m of the building envelope (which extends beyond the indicative building envelope considered in the approval of the subdivision consent) pursuant to s 100R of the Rural Fires Act 1997; * The height of the proposed development is excessive and does not comply with the height of buildings development standard and is not consistent with the objectives of the height of buildings development standard; * The floor area of the proposed development does not comply with the relevant control for maximum floor area, which results in an unacceptable built form that is excessive in bulk and scale; * The proposed development is likely to have an adverse impact on the amenity of the adjoining property at 37A Hannah Street in terms of privacy. The site and its context 4The site is a battle-axe allotment on the southern side of Hannah Street, to the rear of an existing dwelling at 39 Hannah Street, Beecroft. 5The site area is 758m2, excluding the access handle. The site falls towards the rear boundary. Background to the appeal 6Council granted Development Consent No. DA/1470/2009 for the subdivision of one allotment, Lot 9 DP 7284 (39 Hannah Street, Beecroft) into two allotments, on 6 October 2010 (the subdivision consent) (exhibit 5, tab 6). 7The subdivision consent included the following conditions: 2. Removal of Existing Trees This development consent only permits the removal of trees numbered 11, 12, 13, 15, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, and 33 as identified on Plan No. S 14748A prepared by P S Graham & Associates dated 05-11-09. The removal of any other trees requires separate approval under Council's Tree Preservation Order. 3. Voluntary Planning Agreement Pursuant to section 93F of the Environmental Planning and Assessment Act 1979, the applicant must prepare and enter into a Voluntary Planning Agreement (VPA) with Hornsby Shire Council for the offsetting of the loss of Blue Gum High Forest under Council's Green Offset Code (2007). The terms of the VAP must include, but not be limited to the following: a.The Application agrees to pay Council a monetary contribution of $20,000 towards the replacement of 400m2 of Blue Gum High Forest lost from the site as a result of the development. b.Hornsby Shire Council agrees to provide an area of 2,000m2 within Ray Park, Carlingford being Lot 44 DP 210615, for revegetation, restoration and enhancement of Blue Gum High Forest. c.In addition to the above, the applicant agrees to pay all costs (including Council's costs) associated with the preparation, public notification, legal costs and administration costs of the VPA. 26. Conservation of Blue Gum High Forest a. A restriction on the use of the land shall be created under Section 88B of the Conveyancing Act 1919 to preserve the remnant Blue Gum High Forest including Trees numbered 42, 44, 45, 48, 49, 53, 54, 56, 58, 59 and 61. The restriction prohibits building work including paving, excavation or construction, removal of native vegetation (trees, shrubs and groundcovers), stock piles, changes to soil aeration or hydrological capacity, open cut trenching, movement of machinery, and spillage/disposal of building wast occurring within the area marked in red diagonal lines on the approved plans. This area is to be considered the "Restricted Development Area". b. A restriction on the use of the land shall be created under Section 88B of the Conveyancing Act 1919 requiring the retention of significant Blue Gum High Forest Trees 18, 34 and 35 denoting that 'no excavations, soil level changes or construction works with exception any driveway construction as approved by Council are permitted with [sic] the Tree Protection Zone (TPZ) of these trees.' 8The VPA required by the subdivision consent was made on 27 July 2011 (exhibit 5, tab 7). 9Modification Consent No. DA/1470/2009/C included Tree No. 18 in Condition 2, as a tree permitted to be removed, in order to accommodate the indicative building envelope, and was approved on 9 January 2014 (exhibit 5, tab 14). 10Subdivision Certificate No. SC/76/2013 was issued by the Council on 20 June 2014 (exhibit 5, ff 203-4). The Restricted Development Area is 13m x 19.81m and is located at the rear of the site and is shown on the plan of subdivision of Lot 9 DP 7484, which also indicates the TPZ for trees 1 and 2 (referred to as trees 34 and 35) (exhibit 5, f 205). 11The parties submit that the subdivision, with the positive covenant for the Restricted Development Area, has not yet been registered and a deferred condition of consent requiring registration of the subdivision is included in the (without prejudice) conditions of consent (exhibit 8). 12The Rural Fires Amendment (Vegetation Clearing) Act 2014 (NSW) came into force on 1 August 2014 and amended the Rural Fires Act 1997 by adding, among other provisions, Division 9 Vegetation Clearing Work, which includes, at s 100R, the following: 100R Carrying out vegetation clearing work (1) The owner of land situated within a 10/50 vegetation clearing entitlement area may carry out any of the following vegetation clearing work on that land despite any requirement for an approval, consent or other authorisation for the work made by the Native Vegetation Act 2003 or the Environmental Planning and Assessment Act 1979 or any other Act or instrument made under an Act: (a) the removal, destruction (by means other than by fire) or pruning of any vegetation (including trees or parts of trees) within 10 metres, (b) the removal, destruction (by means other than by fire) or pruning of any vegetation, except for trees or parts of trees, within 50 metres, of an external wall of a building containing habitable rooms that comprises or is part of residential accommodation or a high-risk facility. (2) Vegetation clearing work carried out pursuant to subsection (1) must be carried out in accordance with the 10/50 Vegetation Clearing Code of Practice. (3) It does not matter whether the residential accommodation or high-risk facility is located on the owner's land or on adjoining land. (4) Vegetation clearing work on any land may only be carried out pursuant to subsection (1) by or with the authority of the owner of the land. 1339 Hannah Street, Beecroft is within a 10/50 vegetation clearing entitlement area (exhibit B). Pursuant to s 100R of the Rural Fires Act 1997 and in accordance with the 10/50 Code of Practice, the owner of 39 Hannah Street, Beecroft has removed trees 34 and 35. 14The site has been cleared, excluding the Restricted Development Area and trees 14, 36, 37, 38 and 39, and the driveway has been constructed. The proposal 15The proposal is a two storey dwelling with a basement garage. The driveway is adjacent to the eastern boundary, with the garage accessed at the rear of the proposal on the eastern side. The ground floor consists of kitchen, dining and living areas, entry, three bedrooms and bathrooms and the first floor consists of a living area, two bedrooms and a bathroom. 16The proposal would require the removal of trees 14, 36, 37, 38 and 39, which are outside the Restricted Development Area. Planning Framework 17The site is zoned R2 Low Density Residential, pursuant to Hornsby Local Environment Plan 2013 (LEP 2013) and the proposal is permitted with consent. The objectives of the R2 zone are: · To provide for the housing needs of the community within a low density residential environment. · To enable other land uses that provide facilities or services to meet the day to day needs of residents 18The maximum height development standard for the site is 8.5m (LEP 2013 Height of Buildings Map-Sheet HBO_010). The objective for the height of buildings development standard, at cl 4.3 of LEP 2013, are: (a) to permit a height of buildings that is appropriate for the site constraints, development potential and infrastructure capacity of the locality. 19Clause 5.9 of LEP 2013, Preservation of trees or vegetation, relevantly includes the following: (1) The objective of this clause is to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation. (2) This clause applies to species or kinds of trees or other vegetation that are prescribed for the purposes of this clause by a development control plan made by the Council. Note. A development control plan may prescribe the trees or other vegetation to which this clause applies by reference to species, size, location or other manner. (3) A person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation to which any such development control plan applies without the authority conferred by: (a) development consent, or (b) a permit granted by the Council. 20Certain provisions of the Hornsby Development Control Plan 2013 (DCP 2013) are relevant to the assessment of the proposal. 21Table 1B.6(b) lists tree species indigenous to Hornsby Shire and includes Blackbutt (Eucalyptus pilularis) and Sydney Blue Gum (Eucalyptus saligna). 22Section 3.1.1 Scale of DCP 2013, includes as a desired outcome 'development with height, bulk and scale that is compatible with a low density residential environment' and that buildings should respond to the topography of the site by minimising earthworks and siting the floor level of the lowest residential storey a maximum of 1.5m above natural ground level. The maximum floor area of a dwelling house, at table 3.1.1(c) of DCP 2013, for the area of the site is 380m2. 23Section 3.1.6 Privacy of DCP 2013, includes the following relevant prescriptive measures: a.Living and entertaining areas of dwelling houses should be located on the ground floor and orientated towards the private open space of the dwelling house and not side boundaries. c.A deck, balcony, terrace or the like should be located within 600mm of existing ground level where possible to minimise potential visual and acoustic privacy conflicts. d.Decks and the like that need to be located more than 600mm above existing ground should not face a window of another habitable room, balcony or private open space of another dwelling located within 9 metres of the proposed deck unless appropriately screened. Expert evidence 24Expert ecological evidence was provided by Mrs Judith Rawling for the Council. Expert planning evidence was provided by Mr Neil Kennan for the Council and Mr Kendal Mackay for the applicant. Ecology 25It is Ms Rawling's evidence that the site contains trees that constitute remnant Blue Gum High Forest, which is identified as a critically endangered ecological community, pursuant to the Threatened Species Conservation Act 1995 Part 2 of Schedule 1A. 26According to Mrs Rawling, trees 14, 36 and 38 can be removed as they are exotics, however trees 37 and 39, which are both Sydney Blue Gums (Eucalyptus saligna) (exhibit 5, f 18) should be retained as they are native trees and form part of the remnant Blue Gum High Forest on the site. Planning 27The planning experts agreed on the following (exhibit 6): * The height of the proposal does not result in any adverse amenity impact on neighbouring properties and will be barely perceptible; * The bulk and scale of the proposal is acceptable; and * A 1500mm high louvered privacy screen on the eastern side of the deck off the living room addresses any privacy concerns regarding overlooking from the deck to the neighbour's backyard. 28The planning experts agreed during the hearing on the following amendments to the proposal: * The extension of the driveway beyond the southern extent of the building envelope could be reduced from 2.5m to 1m to reduce the overall height of the raised portion of the driveway over the existing ground level; * The 500mm side setback of the driveway for the lower portion of the driveway that is raised above the existing ground level should not be planted; * A privacy screen 1.5m high is to be included on the eastern side of the raised section of the driveway to prevent overlooking of the adjoining property when standing on the raised driveway. The privacy screen will be 3m above the existing ground level of the adjoining property at its highest point. 29The planning experts agreed that the rear setback of the proposal is 16.265m and that this is 2.5m less than the rear setback of the indicative building envelope of the subdivision consent. The planning experts agreed that, pursuant to s 100R of the Rural Fires Act 1997, the owner of the site could remove trees within 10m of the rear setback of the external wall of the proposal, without seeking approval, which would leave 6.265m (depth from the rear boundary) of the Restricted Development Area intact. 30The applicant's written request for an exception to the height of buildings development standard (exhibit N), pursuant to cl 4.6 of LEP 2013, justified the height of the proposal, which is 700mm higher than the 8.5m development standard for the site, on the following basis: * The proposal is consistent with the objectives of the zone and the objective of the height of buildings development standard in LEP 2013; * The proposal has no amenity impacts; and * The non-compliance is minor. 31Mr Kennan was of the opinion that the written request for an exemption to the height of buildings development standard did not adequately justify that compliance with the development standard was unreasonable or unnecessary, because in his view, the proposal could be easily amended to comply with the 8.5m maximum height development standard, by changing the pitch and form of the roof over the first floor. However, notwithstanding his issues with the written request, he was satisfied that the height of the proposal is acceptable. Submissions 32It is Mr Baird's submission that the applicant and his wife have been "caught in the crossfire" between Hornsby Council and the Rural Fire Service and that the applicant is merely seeking the orderly and economic development of the land for a modest residential dwelling. Findings 33In order for development consent to be granted for a development that contravenes a development standard in LEP 2013, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2013) and that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2013) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2013). 34The objective for the height of buildings, at cl 4.3(1)(a) of LEP 2013, is to permit a height of buildings that is appropriate for the site constraints, development potential and infrastructure capacity of the locality. 35I accept the agreement of the experts that the height of the proposal does not result in any adverse amenity impact on neighbouring properties and is acceptable. However, whether the difference between the maximum height development standard of 8.5m and the proposal of 9.2m is "perceptible" or not, is irrelevant, as the Court must assume that a development standard in a planning instrument has a purpose. 36I am satisfied that the height of the proposal is appropriate to the conditions of the site and its context and the proposal is consistent with the variety of other development in the locality. Compliance with the development standard is therefore unnecessary in the circumstances and the written request seeking to justify the contravention of the building height development standard adequately addresses the matters required to be demonstrated in cl 4.6(3)(a) and (b). 37I accept the agreement of the planning experts in regard to the remaining planning contentions, including floor area and resultant bulk and scale and privacy. 38In relation to Council's contention regarding the removal of 5 trees outside the Restricted Development Area, I accept Mrs Rawling's evidence that trees 14, 36 and 38 are exotics and may be removed, without resulting in a detrimental impact on the remnant Blue Gum High Forest on the site. 39I also accept Mrs Rawling's evidence regarding the desirability of the retention of trees 37 and 39. The trunks of these trees are located approximately 3.5m to the north of and outside the Restricted Development Zone. While I accept it is desirable to retain trees 37 and 39, the only way to ensure their retention is to locate the footprint of the proposal at least 10m from the trunk of these trees. This would require the proposal to be setback 26m from the rear boundary, in order to be 10m from the trunk of tree 37. Balancing the reasonable development of the newly created and approved allotment with the desirability of the retention of trees 37 and 39, it is my view that a 26m rear setback would unreasonably constrain the footprint of any proposal, and significantly compromise the amenity of a future dwelling, and that this imposes too great a constraint on the future development of the site. For this reason, I accept that it is not reasonable to require the retention of trees 37 and 39. 40Trees 34 and 35, having been lawfully removed, no longer present a constraint to the footprint of the proposal. Nevertheless, the footprint of the proposal, presumably because it was drawn prior to the removal of the trees, steps around a portion of the TPZs of the former trees 34 and 35, creating a generous side setback to the western boundary. The footprint of the proposal is also both closer to the northern and southern boundaries, when compared to the indicative building footprint of the subdivision consent. I accept the parties' agreement that the indicative building footprint of the subdivision consent is not binding and merely demonstrates, for the purposes of a subdivision application, that the site can accommodate a future dwelling. However, the further encroachment of the building footprint to the south has a potential and significant impact for the remnant Blue Gum High Forest within the Restricted Development Area, because the proposal would enable the removal of any remaining tree within 10m of the building envelope, pursuant to s 100R of the Rural Fires Act 1997. 41Granting consent to this proposal would allow more than half of the remnant Blue Gum High Forest in the Restricted Development Area, identified as a critically endangered ecological community pursuant to the Threatened Species Conservation Act 1995, to be lawfully removed. In my view, a more economical layout, occupying the portion of the site previously identified as a TPZ for trees 34 and 35, would provide a greater rear setback than is presently proposed and ensure the conservation of a greater proportion of the trees within the Restricted Development Area. 42I accept that it would impose too great a constraint on any future proposal to require the building footprint to be a minimum of 10m from the Restricted Development Area. It will be necessary, in a future application, to finely balance the reasonable development of the newly created and approved allotment, with the conservation of the remnant Blue Gum High Forest on the site. 43I accept the applicant's submission that the planning contentions are not determinative and but for the potential ecological impacts of the proposal, are not sufficiently adverse to warrant the refusal of the development application. However, I am of the view that a more skilful design could both eliminate Council's planning contentions, particularly the need for privacy screens, and improve the overall amenity of the proposal. Conclusion 44Granting consent to this proposal would allow more than half of the remnant Blue Gum High Forest in the Restricted Development Area, identified as a critically endangered ecological community pursuant to the Threatened Species Conservation Act 1995, to be lawfully removed. I am not satisfied that this represents a reasonable balance between the development of the newly created and approved allotment and the preservation of the remnant Blue Gum High Forest. For this reason, the proposal is refused. Orders 45The orders of the Court are: (1)The appeal is dismissed. (2)Development Application No. DA 199/2014 for a new dwelling on proposed Lot 2 at 39 Hannah Street, Beecroft, is refused. (3)The exhibits, other than exhibits 1 and G, are returned. Susan O'Neill 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: 21 October 2014