Land and Environment Court New South Wales Medium Neutral Citation: CC Builders (NSW) Pty Ltd v Georges River Council [2017] NSWLEC 1064 Hearing dates: 30 January and 3 February 2017 Date of orders: 16 February 2017 Decision date: 16 February 2017 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: DEVELOPMENT APPLICATION: multi unit housing, drainage and flooding, tree retention, impact of proposed development on longevity of trees Legislation Cited: Hurstville Local Environmental Plan 2012; Conveyancing Act 1919 Category: Principal judgment Parties: CC Builders (NSW) Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Solicitors: Mr A Boskovitz, Boskovitz & Associates Solicitors (Applicant) Ms J Hewitt HWL Ebsworth Lawyers (Respondent) File Number(s): 155689/2016 Judgment 1. CC Builders (NSW) Pty Ltd lodged development application DA 2015/0457 with the then Hurstville City Council on 23 December 2015 seeking consent to demolish an existing dwelling and construct a multi dwelling housing development containing six dwellings at 799 Forest Road Peakhurst. The application included drainage works within Dawn Street, a cul-de-sac to the east of the site. The Council had not determined the application within the prescribed period and the applicant is appealing its deemed refusal. The site and its context 1. The site is located on the eastern side of Forest Road to the south of Samuel Street and is an L-shaped allotment with an angled frontage of 18.35 m, wdith of 15.235m at the front widening to 30.475m at the rear resulting in a total area of 1998m². The site has a significant fall to the eastern (rear) boundary of 3.62m. 2. A single story house is directed towards the Forest road frontage of the site with a series of outbuildings erected towards its centre. Several trees including a number of Turpentine trees are located within the rear yard, four of those trees being identified by the Council as significant and proposed to be retained by the applicant. Those trees are located adjacent to the southern boundary of the site awards its rear. 3. Development immediately adjoining the site comprises detached dwelling houses with multi dwelling housing and detached housing located within proximity of the site. The Peakhurst campus of Georges River High School is located to the east and separated from the site by the dwellings that front the Dawn Street cul-de-sac. Background and the proposal 1. As the result of a conciliation conference provided over by another commission of this Court, the applicant has prepared amended plans which address some of the original contentions in the case. Those plans provide for the construction of multi dwelling housing comprising two attached two storey dwellings towards the front of the site and forr attached single storey dwellings towards the rear and southern boundary. They contain a mix of three, four and five bedroom dwellings with a swimming pool included in the private open space area allocated to proposed unit 1, the front dwelling. The development provides parking for 14 cars, 2 for each dwelling and 2 visitor parking spaces. The planning controls 1. The site is zoned R2 Low Density Residential pursuant to the provisions of Hurstville Local Environmental Plan 2012 (LEP). The proposed development is permissible with consent in the R2 zone. Clause 2.3(2) of the LEP requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 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. • To encourage development of sites for a range of housing types, where such development does not compromise the amenity of the surrounding area, or the natural or cultural heritage of the area. • To ensure that a high level of residential amenity is achieved and maintained. • To encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment. • To provide for a range of home business activities where such activities are not likely to adversely affect the surrounding residential amenity. 1. Part 4 of the LEP contains principal development standards and those relevant to the application are clauses 4.3 Height of buildings and 4.4 Floor space ratio (FSR). The development complies with the 9m maximum height control and the 0.6:1 FSR development standard. 2. Clause 5.9 Preservation of trees or vegetation is also a relevant consideration. 3. Hurstville Development Control Plan No. 1 (DCP) applies to the site. All sections other than section 5 relevant to the application. The issues 1. The contentions detailed in the Amended Statement of Facts and Contentions, Exhibit 1 are that the proposed development is incompatible with the streetscape and character of the area; the proposed landscaping would not blend the development with the existing character of the streetscape or neighbourhood; the proposal will have an adverse impact on trees, in particular T1, T2, T3 and T5; the proposal does not adequately protect the visual and acoustic privacy of residents of nearby dwellings and inadequate stormwater design. 2. Contentions relating to the inadequacy of documentation have been addressed and, following the joint conferencing and further amendments to the facade the dwellings, the experts agree that the contentions relating to character, other than landscaped character are addressed. The evidence 1. The hearing commenced on site with evidence heard from a number of objectors to the proposal. The principal issue raised by those parties related to the existing flooding problem within Dawn Street and a shared concern that the proposed development would exacerbate that existing situation. 2. Other concerns related to overlooking, loss of privacy, overshadowing and damage through the construction of the development. 3. Expert engineering evidence was heard from Mr M Ward for the Council and Mr S Waters for the applicant. They agree that the proposed drainage easement to be created over an adjoining allotment, Lot 8 DP 31418, No 4 Dawn Street, Peakhurst would provide for the extension of council's drainage system to terminate with a kerb inlet pit in front of the Dawn Street property thereby addressing the Council's original concern that no easement had been provided. The applicant has provided the proposed instrument setting out terms of the easement which would be created pursuant to Section 88B of the Conveyancing Act 1919. The Council agree that should the Court find that consent to the application is appropriate, the registration of proposed easement could be the subject of a deferred commencement consent. 4. The engineers also agree that the proposal to locate the stormwater and sewer lines within the proposed structural slab of the dwelling so as to avoid the tree protection zones (TPZ) of trees T1, T2, T3 and T5 can be accommodated and that these requirements are reflected in the draft condition 12 of the Without prejudice conditions of consent, Exhibit 6. That condition also incorporates agreed design amendments to the stormwater that would cater for the one in 100 year storm event. In the final version of conditions filed with the Court following conclusion of the hearing, the terms of draft condition 12 were included in the deferred commencement provisions in accordance with agreement reached between the parties. 5. In response to a question from the Court, Mr Ward advised that the design of the drainage system that complied with the requirements of draft condition 12 would not have any detrimental impact to the existing flooding situation in Dawn Street. He says this flooding is due to under-capacity of the existing drainage lines and the Council had prepared a flood study that recognised the deficiencies of the system however at this stage, the Council had not included remedial works within its work program. Mr Waters said the inclusion of the new kerb inlet pit in Dawn Street would pick up the stormwater flows from Samuel Street which contribute to the flooding at the southern end of Dawn Street therefore resulting in a slight improvement to the existing situation however he agrees with Mr Ward that the problem is a result of under-capacity lines and until such time as the Council rectified issue, flooding will continue to occur. He also agrees that the drainage design for the proposed development will not exacerbate the existing flooding issues and that there will be a slight improvement. 6. Expert arboricultural evidence was heard from Mr S Lunniss for the Council and Mr S Allouche for the applicant. They agree that the requirements of the DCP in relation to landscaping are consistent with the zone objectives providing T1, T2, T3 and T5 remain viable. They also agree that the contention that the development does not demonstrate satisfactory consideration of existing trees, being important elements of the existing streetscapes and neighbourhood character, could be resolved by way of strict conditions which will mitigate the effects of the development on the trees. They both agree that these Turpentine trees do not form part of an ecological community however are important remnant species that are well established and has been there for many decades. 7. Mr Lunniss says the Australian Standard - Protection of trees on development site (AS 4970) recommends no more than 10% encroachment unless the TPZ can be compensated elsewhere and contiguous with the TPZ. As the proposed development of units 4 and 5 would result in major encroachment (that is greater than 10%) this may affect the health and stability of the trees and, as the trees have potential for future growth, this may damage the new development. He is concerned that residents of the development may seek consent under the Council's Tree Preservation Order (TPO) to remove the trees. For this reason he would prefer that units 4 and 5 were omitted for located outside the TPZ. 8. Mr Allouche had supplemented his original report which included extensive root mapping and says that whilst the incursion exceeds 10% the structural root zone (SRZ) of the four trees is not impeded and bus tree stability will be maintained. That is because the incursion is from isolated peers as the design of the development for units 4 and 5 is proposed so that there will be no continuous footings with conditions to that effect. 9. In Mr Allouche's report and the root mapping undertaken he says that he can demonstrate that relatively smaller structural roots were encountered however at a substantial depth to that of the proposed slab and that no roots will be severed. Additionally, the tolerance of these trees has been taken into account as well as the design changes and construction techniques so that minimal ground intrusion of the TPZ will occur. He says the roots outside the SRZ cannot exert enough force to lift a large bearing slab so the space required for future growth is still ample. Whilst he accepts potential owners may complain about leaves and overhanging branches this is a matter for the Council rather than a reason to refuse consent. 10. Mr Lunniss says the negative impact of inadequate development design and supervision is cumulative and very difficult to remediate after development is complete which leaves the long-term management of the four trees uncertain. He says that if a resident request for further pruning for building clearance is unlikely to be granted the trees will continue to be protected under the TPO however they will not be protected if Council is satisfied that they pose a risk to human life or property. Mr Allouche agrees. 11. The experts agree that no change to the soil levels within the entire TPZ and SRZ of T1, T2, T3 and T5 should occur nor should any construction within the SRZ of those trees be permitted including stormwater lines and sewerage lines. They confirmed on site that there are no encroachments of the SRZ for the building envelope. Similarly the existing boundary fence should remain and not be changed as it is in sound condition and its retention would minimise any interruption to the trees. 12. They agree that the consolidated arboricultural report, the root mapping report and the tree protection measures report stipulate design changes that need to be enforced by others and are reflected in the draft conditions however, those reports also require supervision of works in the vicinity of the trees by a qualified arborist. They also agree that pruning the lowest order branching under the direct supervision of an arborist and in accordance with AS 4373/2007 is appropriate without any compromise to the canopies of T1 and T3 with no pruning required for T5. 13. The arborists agree that rather than proposed turf under the four trees the ground can be mulched up to 75 mm to 100 mm compliant with AS 4454-2003 with stepping stones placed on top of the existing grade and infill planting of perennial grasses. These requirements have also been incorporated into the draft conditions. In addition, the applicant has agreed to the imposition of a restriction to user on the title of the site that requires the maintenance of the courtyard areas to units 4 and 5 in accordance with those conditions. 14. Expert planning evidence was heard from Mr E Gescheit for the applicant and Mr B Newbold for the Council. 15. They agreed that the design amendments that eliminated the heavyweight architectural details that contributed to the bulky character of the development when viewed from Forest Road addressed contention one and the inclusion of privacy screens resolved contention three (visual and acoustic privacy). 16. They also proposed additional condition that partly resolved contention seven (plans and documentation) and the planning considerations that arise in relation to the contentions 2 and 2A. Those conditions have also been incorporated into draft condition 12. 17. Mr Newbold considered the concerns expressed by Mr Lunniss in relation to the possible requests for removal of T1, T3, T4 and T5 and says that in terms of town planning consideration, there is no certainty that the trees would survive irrespective of conditions in relation to building design and construction management. He considers there are two options for amendments which would provide greater certainty that the trees would survive over the medium to longer term. These are the deletion of proposed unit 4 and reduction in the floor plan of unit 5 so that the habitable rooms would not encroach the current TPZs or redesigning units 3 and 4 as a two storey semi-detached pair and reconfiguring unit 5 to eliminate the encroachment of the TPZs. He says both options would be consistent with the zone objectives and development controls in relation to 2 storey height limits, overshadowing and privacy and the objectives of development controls setbacks. 18. Mr Gescheit says that no amendment to the design of the development are necessary and based on Mr Allouche's opinion, the proposal can be built without compromising the viability of the trees in the medium to long term. He identifies a number of planning issues relating to the redesign suggested by Mr Newbold which he said are contrary to the zone objectives and development controls under the DCP including loss of an adaptable dwelling, reduction in internal amenity for future residents, construction of a two storey wall on the western boundary of the site adjoining 801 Forest Road which would be non-compliant with building envelope controls. I'd think that, increased bulk and associated solar access and privacy issues. He says single storey villas are more consistent with similar examples in the area and a more appropriate planning solution for the irregularly shaped site. There is no requirement under the DCP for communal open space and he notes the proximity of the site to Gannons Park, a large area of public open space. 19. The experts agree that it is appropriate to nominate a finished height for the boundary fence that separates the site from No 6 Dawn Street and that that height should the RL37.5. They agree that based on the shadow diagrams and the photographs provided by the owner of that property that this fence height combined with the agreed amendment to the floor level of unit 5 will result in no loss of solar access to the windows of the sunroom or any rooms within the main dwelling and that whilst there will be a slight increase in overshadowing of the rear yard that yard will still achieve the solar access required under the DCP. Conclusion and findings 1. At the conclusion of the evidence one main issue remained and that was whether the development would adversely impact the long term retention of T1, T2, T4 and T5. 2. The other contentions had either been resolved or addressed through the agreed conditions. 3. The development is fully compliant with all relevant development standards. 4. The agreed position of the engineers is that the design of the stormwater system will not adversely impact on the downstream drainage system. It is common ground that this system is currently undersized and this fact results in localised flooding at the southern end of Dawn Street. They agree that this flooding will not increase if the development is approved and in implemented accordance with the proposed design that it is a matter for the council to resolve the issue of a system that is under capacity as part of its review of its drainage system. 5. For this reason I am satisfied on the evidence available that the design of the stormwater system is appropriate subject to registration of the easement over adjoining land. Appropriate conditions of consent have been prepared to ensure that no excavation of land outside the site and the lot over which the easement is to be created will occur and that in the event of any damage, that would be rectified by the developer. The council accepts these conditions and indicated that this addresses one of the concerns of the adjoining owner. 6. Having regard to the evidence and in particular the proposed conditions of consent I am satisfied that the development will not result in any adverse impacts to T1, T2, T4 and T5 provided all of the proposed conditions are incorporated into any consent issued. That is the agreed position of the arborists. The other experts agree that the conditions required to protect these trees are reasonable, can be implemented and achieve the objectives of the controls. 7. The retention of these trees is important and their long term preservation essential to delivering the outcomes envisaged in the council's planning controls. 8. The issue that remains is the possibility of a future resident or owner of the development seeking consent to substantially prune or remove one or all of those trees. 9. It is common ground that the trees would be protected under the council's TPO however Mr Lunniss is concerned, based on his experience at the council, that applications to remove or prune the trees will be made and to avoid that occurring it is his preference that no development occur within the vicinity of the trees. 10. The imposition of the condition that requires the restriction to user on the title of the land will supplement the protection than available under the TPO. Any application made under the TPO must be determined on the jurisdictional tests and whilst Mr Lunniss' concerns are reasonable and accepted by Mr Allouche, those concerns are not determinative in this case. 11. The town planning evidence in relation to possible alternate development options for the site need not be considered due to my findings in relation to the retention of the trees. Consideration of whether there may be other options which can be employed in the development of the site is not a matter for the Court. The consideration that must be made is whether the development satisfies the relevant planning controls, meets the objectives of those controls and is appropriate for the site. It is agreed that the development meets all relevant numerical controls. Other than imposing the agreed conditions of consent, there are no remaining planning issues that require determination. Those conditions address the concerns of residents relating to overlooking, overshadowing, possible damage to property and flooding. 12. Accordingly, there are no reasons why consent should not be granted. 13. The Orders of the Court are: 1. The appeal is upheld. 2. Development application DA 2015/0457 for demolition of an existing dwelling and construction of a multi dwelling housing development containing six dwellings at 799 Forest Road Peakhurst is approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits D and, are returned. _____________________ Sue Morris Commissioner of the Court Annexure A (470 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: 17 February 2017