Land and Environment Court New South Wales Medium Neutral Citation: Hughes v Wollongong City Council [2016] NSWLEC 1042 Hearing dates: 9 February 2016 Date of orders: 09 February 2016 Decision date: 09 February 2016 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld – see [46] Catchwords: CONSENT ORDERS: Multi-dwelling housing; stormwater; flooding; landscaping and tree retention Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Wollongong Local Environmental Plan 2009 Category: Principal judgment Parties: Steven Hughes (Applicant) Wollongong City Council (Respondent) Representation: Applicant: Mr K Webber (Solicitor) Respondent: Mr J Reilly (Solicitor) Solicitors: Applicant: Wiltshire Webb Staunton Beattie Lawyers Respondent: Wollongong City Council File Number(s): 10649 of 2015 Judgment 1. COMMISSIONER: In October 2014 the applicant lodged development application DA 2014/1329 for the demolition of an existing dwelling and the construction of five town houses, and associated works, on Lot 16 DP 29745, otherwise known as 50 Squires Crescent, Coledale (the site). 2. In May 2015 Wollongong City Council refused the Development Application. The applicant appeals the council's decision pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). The site and relevant background 1. The site is on the southern side of Squires Crescent and has an irregular shape with an area of 1408m2. The land slopes from the street to a culvert and then rises relatively steeply to the rear of the site. There is a two storey dwelling located towards the rear, which is accessed from a bitumen driveway on the western side of the site; a portion of the driveway adjoins the creek and a mature Port Jackson Fig (identified as Tree 15) growing on its bank. The site is well-vegetated with many planted and remnant local and exotic species of trees. 2. The site is located within a low-density residential area, characterised by large lots with single dwellings. Surrounding development ranges from older single storey fibro cottages to more contemporary two storey dwellings. The South Coast rail line is approximately 100m upslope and to the west of the site. 3. The site is mapped as being flood prone land and also as containing riparian land. 4. Of significance is the watercourse which traverses the site; this is part of the Carrick's Creek system. Water is discharged from a culvert underneath the railway line to an open channel and to a headwall on the upstream (western) boundary of the site. The watercourse is then piped via a 1200 mm diameter concrete pipe beneath and across the site and through the adjoining property to the east before it re-forms an open channel. 5. Council's Statement of Facts and Contentions raised a number of contentions including: unacceptable flood impacts on adjoining properties, unacceptable impact on vegetation of the site including loss of significant trees, poor setbacks and inadequate private open space for future residents, over-development of the site, and technical matters concerning flood modelling, and stormwater design. 6. The matter commenced as a conciliation conference under s 34 of the Land and Environment Court Act 1979 (Court Act). Many local residents made oral submissions opposing the extent, and possible impacts, of the proposed development. The matters raised echoed council's contentions but many people voiced concerns about increased traffic and potential pedestrian safety. 7. The conciliation was terminated at the request of the parties. The parties seek consent orders from the Court. The proposal 1. As a result of the s 34 conciliation, and in response to council's and the residents' concerns, the applicant has amended the proposal. 2. At the commencement of the hearing a Notice of Motion was heard, and the applicant was granted to rely on amended plans. These are now the plans before the Court. In addition, an order was made pursuant to s 97B of the EPA Act requiring the applicant to pay council's costs thrown away in the agreed amount of $1,000.00 (see orders 1 and 2). 3. The amended proposal reduces the number of units from five to four and reorientates the two units at the front of the site. The resulting proposal reduces the height of the dwellings, increases setbacks, retains more trees, increases landscaping, and resolves the stormwater and flooding issues. 4. Access to the site is via a new driveway on the eastern boundary leading to a shared driveway across the centre of the site which provides access to garages on the ground floor of each unit. 5. In regards to flooding and stormwater, the proposal includes the construction of a 6m wide concrete channel/ floodway above the existing stormwater pipe. This is similar to the existing width of flow. A suspended concrete driveway slab will be constructed above, and bridge, the floodway. The floodway acts as an overland flow path and an on-site detention system. The detailed flood study indicates that should it be necessary, the existing 1200 mm concrete pipe can be readily maintained using a number of commercially available systems. Assessment framework 1. The site is zoned R2 Low Density Residential under the Wollongong Local Environmental Plan 2009 (WLEP). The proposal is characterised as 'multi dwelling housing' in WLEP and is permitted with consent in the zone. 2. Wollongong Development Control Plan 2009 (WDCP) applies. 3. Council's Statement of Facts and Contentions provides the relevant clauses of WLEP and WDCP applicable to this proposal. Objector evidence 1. The amended plans were notified to objectors who had made submissions in regards to the original proposal. In accordance with clause 36 of the Court's Practice Note – Class 1 Development Appeals, the objectors were notified of the content of the proposed orders and the date of the hearing. Two residents gave oral evidence. The written submissions regarding the original proposal and the amended version were tended in evidence (part of Exhibit 2, and Exhibit 4). 2. Mr Charles Cochrane, an owner of the adjoining property to the west, made the following submissions (summarised): * Although the amended proposal reduces the number of units, the proposed development remains an overdevelopment of the site. * The built upon area is significant and results in a radical transformation of a bushy block at a critical transition of the creek and the adjoining slopes. * The proposed development is wholly out of character with the streetscape and the desired future character for Coledale. * There is insufficient transport infrastructure to support such development. * Too many trees are to be removed and there will be unacceptable impacts on trees to be retained. This will have consequences for soil stability and flooding. The Tree Protection Zone (TPZ) calculations are not in accordance with the Australian Standard and therefore cannot be relied upon. To ensure the remaining trees are protected a bond of $100,000 should be placed on each tree and dwellings moved or reduced to minimise impacts on remaining trees. There is an inconsistency between the TPZ of tree 15 and the detention basin. * Although the council requires compensatory planting of twenty trees, there is unlikely to be sufficient room on the site. * The proposal should be redesigned and residents given a further opportunity to comment on the plans. 1. Ms Shelly O'Neil, the co-owner of the adjoining property to the west, supported Mr Cochrane's submissions and made the following additional comments. In her view, while the amended proposal resolves some issues, the proposal and the draft conditions of consent do not go far enough. Ms O'Neil considers that the proposal is out of character with the area, particularly in regards to side setbacks and building separation, as well as building style, scale and form. In her opinion the areas of private open space are inappropriately located and raised above the level of surrounding properties and the street. Ms O'Neil's greatest concerns go to the adequacy of the flood study which in her view does not take into account the flood behaviour in the creek that she observed, particularly in the 1998 floods. She also considers there are a number of contradictions in the conditions of consent that require all surface beneath trees to be permeable paving when this is not as indicated on the plans. Expert evidence 1. Mr Anthony Barthelmess, an engineer who specialises in hydrology and who carried out the detailed flood study for the proposed development, gave oral evidence and responded to Ms O'Neil's concerns and statements. 2. Mr Barthelmess prepared a hydrological model in accordance with council's controls in WDCP Chapter E13 Floodplain Management and council's Culvert Blockage Policy. In his opinion the design accommodates both the 1% AEP flow (Annual Exceedence Probability/ 1 in 100 year flood event) and the Probable Maximum Flood (PMF). 3. In his final report, included in Exhibit A, Mr Barthelmess states in part: The proposed development is able to achieve no offsite flood related impacts due to the controls being, inter alia, a dedicated floodway and optimisation of the existing 1200 mm RCP [reinforced concrete pipe] and floodway. The proposed development is suitable when taking into account DCP 2009, Chapter E13's objectives, performance criteria and prescriptive controls. The proposed development meets, and in most cases exceeds all the requirements of the Chapter E13. 1. Mr Gary Leonard, the applicant's botanist and arborist provided additional oral evidence concerning Tree 15, the Port Jackson Fig and the likely impact of the proposal on its root system. In his opinion, this tree developed as a 'strangler' around an existing eucalypt and then on part of itself. Mr Leonard opines that the resulting aerial root columns do not take the form of a conventional tree trunk and thus the method of calculating the theoretical TPZ provided in AS4770 – Protection of Trees on Development Sites is not particularly useful. In order to determine the likely impact of any excavation of the site on the tree, Mr Leonard undertook a root mapping exercise. (The report is included in Exhibit A.) On the applicant's site, only one root was found at about 1m depth and heading in the general direction of the fill in the culvert. Mr Leonard considers that the majority of the roots will be beneath the majority of the aerial root columns in relatively undisturbed and favourable soil conditions to the west, north and south of the tree, in areas beyond the site. 2. In Mr Leonard's opinion, very little of the canopy overhangs the development site and pruning is unlikely to be required. He stated that his preference would be for branches to be tied back during construction rather than removed. 3. Mr Leonard was asked to comment on the species selection and landscape plans. In his opinion the list should include more local species. Mr Leonard was directed to review the list and the amended landscape plans. Submissions 1. Mr Webber for the applicant submits that the proposal is permissible in the zone and meets the zone objectives; complies with council's development standards for Floor space ration and height – usual indicators of bulk and scale; and complies with all relevant controls in WDCP including setbacks, with the exception of a visitor parking space within the front setback. 2. Mr Webber contends that the non-compliant visitor parking space is acceptable in the circumstances because it is below street level and is well-screened by landscaping. 3. In response to the objections raised in regards to compatibility with the streetscape and character of the area, Mr Webber notes, with reference to the east and west elevation plans, that the front setbacks are compliant, and when viewed from the street, Units 1 and 2 present as single storey. Given the distance from the street, Mr Webber maintains that the dwellings at the rear will similarly not be out of character. 4. In regards to the flood issue, Mr Webber asserts that this has been comprehensively considered with a number of revisions having been considered by council's engineers. While he accepts that some trees will be removed, the amended proposal retains more trees and provides for compensatory planting. He notes that a number of the trees scheduled for removal are weed species. 5. In conclusion, Mr Webber contends that Court should make the orders sought by the parties. 6. In reply, Mr Reilly for the council agrees that the proposal has come a long way. He makes reference to Exhibit 3, a report prepared by council's Development Project Officer in response to the additional information provided by the applicant, and which recommends approval of the amended proposal. Mr Reilly notes that the amendments have resulted in less intensive development with greater setbacks and extra room for better private open space. In council's view the materials and design are compatible with the streetscape and the desired future character of the area. 7. In developing the whole site, Mr Reilly considers the applicant has taken a more integrated approach which is likely to deliver a better outcome than an equally permissible subdivision with dual occupancy. 8. Mr Reilly accepts Mr Webber's submission that in the circumstances of the site, the location of the visitor parking space in the front setback is acceptable. He also stresses the thorough approach the council and the applicant have taken in ensuring the flooding issues have been addressed. 9. Overall, the council supports the proposal subject to the agreed conditions of consent. Consideration 1. In determining whether development consent should be granted, I must consider relevant matters in s 79C(1) of the EPA Act. 2. I am satisfied on the evidence that the proposal is permissible with consent in the zone and meets the relevant objective for the R2 Low Density Residential Zone given in WLEP by providing the housing needs of the community within a low density residential environment. 3. Similarly, I am satisfied on the evidence that the proposed development complies with all key development standards and controls in WLEP and WDCP including FSR, height of buildings, site width, setbacks, landscaped area, deep soil area, number of storeys, private open space, car parking, and solar access. I accept the parties' submissions that the visitor parking in the front setback is acceptable in the circumstances and its visual impact is suitably mitigated. While the proposed development will result in a more intensive form of development than currently exists on the site and on the neighbouring properties to the east and west, it is not out of character and is compatible with other development in the immediate locality. 4. Having read the final flood study report and having heard Mr Barthelmess' evidence, I am satisfied that the flood issue has been fully and comprehensively investigated by the applicant's experts and verified by council's expert staff and that the proposal will not result in any adverse flooding impacts on or off the site. 5. With the arboricultural expertise I bring to the Court, I concur with Mr Leonard's conclusions in regards to Tree 15. The conditions of consent require a comprehensive suite of tree protection measures to minimise impacts on trees to be retained. I am also satisfied that the site is capable of supporting the compensatory planting of trees. During the proceedings, refinements were made to the conditions in regards to the slightly contradictory language used in the version forwarded to the objectors. 6. While there will inevitably be some environmental impacts on the site, on the evidence before me I am satisfied that an acceptable balance has been achieved and the impacts will be mitigated and minimised. While the site has some challenges – including its topography and the creek, the proposal has responded appropriately. 7. Having regard to the submissions made by the objectors, I am satisfied that the majority of their concerns have been addressed, in particular the flooding issues. As agreed by Mr Reilly, the amended proposal complies with all bar one of the relevant controls and development standards in WLEP and WDCP and the only non-compliance is reasonable in the circumstances. As stated above, while the form of the development may differ from its neighbours, it is nonetheless a permissible form of development in the zone. 8. With respect to the concerns about traffic safety, and to some extent transport infrastructure, council's assessment report on the original proposal dated 26 May 2015 is relevant (Tab 3 Exhibit 2). As is usual, the development application was subject to internal consultation with many specialist council officers. Council's Traffic Engineer reviewed the application and found it satisfactory subject to conditions of consent. In council's s 79C(1)(d) response to submissions (section 2.9 of the report), the comments made in respect of 'Access, traffic congestion, parking and pedestrian/traffic safety' state: The zoning permits the redevelopment of the site for additional residential dwellings. The parking provided meets the prescriptive measures of the Wollongong Development Control Plan for off-street parking (including visitor spaces), and manoeuvring has been provided in accordance with the relevant Australian Standards. The Traffic Section has assessed sightlines for vehicles leaving the development which were found to comply with AS2890.1 1. Overall, I am satisfied that the amended proposal is not counter to the public interest. Conclusions and orders 1. Having considered the requisite matters in s 79C(1) of the EPA Act, and with the benefit of the site inspection, evidence and submissions of the objectors and parties, I am satisfied that the appeal can be upheld and the development approved. 2. By consent, the orders of the Court are: 1. The Applicant is granted leave to rely on the amended plans in Annexure 'A'. 2. The Applicant is to pay the Council's costs in accordance with s 97B of the Environmental Planning and Assessment Act 1979 in the agreed amount of $1,000.00. 3. The appeal is upheld. 4. Development Application No. DA-2014/1329 for the demolition of the existing dwelling and construction of (4) townhouses at 50 Squires Crescent, Coledale NSW is approved subject to the conditions set out in Annexure 'B'. 5. The exhibits except A, B and 1 are returned. ________________________ Judy Fakes Commissioner of the Court 10649 of 2015 Fakes (CO) (77.1 KB, pdf) 10649 of 2015 Fakes_Annexure A Plans (58.0 KB, pdf) 10649 of 2015 Fakes_Annexure B conditions (248 KB, pdf) ********** 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: 11 February 2016