Land and Environment Court New South Wales Medium Neutral Citation: Donald Hochkins v Canterbury-Bankstown City Council [2017] NSWLEC 1229 Hearing dates: 1 and 2 May 2017 Date of orders: 09 May 2017 Decision date: 09 May 2017 Jurisdiction: Class 1 Before: Smithson C Decision: 1. The appeal is dismissed. 2. Development Application No. 575/2016 for a dual occupancy including subdivision at 754A Henry Lawson Drive, Picnic Point is refused. 3. The exhibits, except Exhibits 1, A and E, are returned. Catchwords: DEVELOPMENT APPLICATION – attached dual occupancy, dual occupancy subdivision, loss of significant trees, FSR, solar access Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Bankstown Local Environmental Plan 2015 Category: Principal judgment Parties: Donald Hochkins (Applicant) Canterbury-Bankstown City Council (Respondent) Representation: Counsel: Ms L Saw (Applicant) Solicitors: Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 2017/19916 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal of a development application by Canterbury-Bankstown City Council (the Council), for the development of an attached dual occupancy (two dwellings) and associated two lot subdivision at 254A Henry Lawson Drive, Picnic Point (the site). 2. The key issue associated with the application is the loss of two significant trees on the site. Secondary issues relate to the proposed FSR and solar access into one of the proposed dwellings. Summary of the appeal 1. Development Application 575/2016 (the application) proposes the demolition of an existing dwelling house on the site and the construction of a two storey attached dual occupancy. Each dwelling (referenced as Dwelling A and Dwelling B) contains four bedrooms and three bathrooms with a double garage. The application was notified but no submissions were received. 2. The site is identified as Lot 1 DP 1128403 and is known as to 754A Henry Lawson Drive. It is adjoined at the rear by a dwelling house on a lot created as part of a previous approved battleaxe subdivision being 754B Henry Lawson Drive which it is understood remains in common ownership with the site. 3. The site has a 15m frontage to Henry Lawson Drive widening to approximately 17.3m at the rear. It has an overall area of 978.8m² and a dual zoning, with the majority being zoned R2 Low Density Residential, comprising 825.7m², and the balance zoned SP2 Infrastructure being 153.1m². The SP2 zone is primarily to accommodate proposed road widening although the parties agreed that the SP2 zone was wider than the area identified for road widening. 4. The site has a fall of approximately 5.8m from the northern to the southern boundaries and contains seven trees being a mix of exotic and native species. The site is adjoined to the south by the accessway for the lot to the rear and contains an easement for the benefit of that lot to drain water. 5. The application also proposes the creation of two lots, one for each proposed dual occupancy dwelling. Proposed Lot 100, being the southern lot, has an area of 429.3 m² or 383.8 m² excluding the road widening area. Proposed Lot 101, being the northern lot, has an area of 549.4 m² or 460.5 m² excluding the road widening area. 6. The locality is characterised by single dwellings and dual occupancies. 7. The Council refused the application, in summary, for the following reasons: 1. Non-compliance with clause 5.9 of the Bankstown Local Environmental Plan 2015 (the LEP) and clause 4.33 of the Bankstown Development Control Plan 2015 (the DCP) given the proposed removal of significant trees in a biodiversity corridor. The development was therefore considered to have adverse environmental impacts on the locality having regard to Council's Biodiversity Strategic Plan; 2. Privacy impacts on neighbours; 3. Inadequate solar access to proposed Dwelling A; and 4. Concerns with regard to the level of the garages, internal turning circles and the ability of vehicles to exit the site in forward gear. 1. Subsequently the Council also contended that the development should be refused as the proposed floor space ratio (FSR) was excessive and did not comply with the FSR development standard or objectives of the LEP. Further, the applicant had not submitted a written request required under clause 4.6 of the LEP which adequately demonstrated that compliance with the standard should not be met. 2. Concerns were also raised with proposed side setbacks and earthworks associated with developing the site. 3. The appeal was subject to mandatory conciliation in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (the Court Act). 4. Prior to the conciliation conference, expert arborists and planners for the parties had met to discuss the Council's concerns and additional information was provided in terms of the Council's access concerns. 5. At the conciliation conference, which commenced onsite, it was agreed that the Council's concerns had been addressed, or could be addressed by conditions, in terms of access, garaging, egress and privacy impacts, and that two of the four agreed significant trees on the site would be retained being trees adjoining the frontage. 6. The remaining contentions therefore related to retention of two significant trees, FSR compliance, and solar access to proposed Dwelling A. 7. As agreement was not reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) of the Court Act and the proceedings dealt with as a hearing held forthwith, pursuant to s 34AA(2)(b)(i). 8. The parties agreed that matters discussed in the conciliation conference could be considered by the Court in determination of the application. These discussions focused on possible amendments to the proposal to comply with the FSR standard and if all of the significant trees on the site were retained. The issues Loss of significant trees 1. The application proposed the removal of two trees which the parties agreed were prescribed or significant trees for the purposes of the relevant Council controls. These were a Grey Gum (Eucalyptus punctata) and a Narrow Leaved Scribbly Gum (Eucalyptus racemosa) located close to each other generally in the centre of the site. 2. The arborist for the applicant had undertaken an assessment of all of the trees on the site which showed that both the Grey Gum (referred to as Tree 3) and the Scribbly Gum (Tree 4) were of high landscape significance, of the highest priority for retention, and had useful life expectancies of between 15 and 40 years. 3. The arborists for both parties agreed that these trees were healthy and there was no arboricultural reason for their removal. Further, that a significant redesign of the development would be required to facilitate their retention. Therefore the applicant's arborist argued that the sustainable retention of both trees was a significant constraint on development. 4. The arborists also agreed that development works to the south of an existing level change/rock shelf on the southern portion of the site, whilst being in the identified Tree Protection Zone (TPZ) of both trees, would not have any impact of substance on the trees and could therefore be contemplated. However, there was a requirement of the Rural Fire Service (RFS) that no dwelling could be within 10m of the centre of a tree and therefore the Council would require any dwelling to be at least 10m from the centre of the southernmost tree (Tree 4) so that it could not be removed in the future to comply with RFS requirements. 5. The LEP contains specific provisions at clause 5.9 regarding the preservation of trees. The following are the relevant parts of cl 5.9: 5.9 Preservation of trees or vegetation 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. 1. 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: 1. (a) development consent, or 2. (b) a permit granted by the Council. 1. The refusal by the Council to grant a permit to a person who has duly applied for the grant of the permit is taken for the purposes of the Act to be a refusal by the Council to grant consent for the carrying out of the activity for which a permit was sought. 1. The DCP prescribes the trees to which cl 5.9 applies in Part B11 – Tree Preservation Order. Prescribed trees included those of 5m or higher. Trees 3 and 4 both exceed 5m. 2. Under Part B11 of the DCP, the Council considers, but is not limited to considering, the following matters when determining an application to remove a prescribed tree: 1. the suitability of the tree for site conditions; 2. the condition of the tree; 3. the contribution of the tree to the local landscape; 4. the environmental contribution of the tree; 5. the impact of the tree on the property and associated infrastructure; and 6. the amenity of the occupants of the property. 1. The DCP also contains specific provisions for dual occupancies in Part B1 – Residential Development. Clause 4.33 of Part B1 states as follows: Landscaping 4.33 Development must retain and protect any significant trees on the allotment and adjoining allotments. To achieve this clause, the development may require a design alteration or a reduction in the size of the dual occupancy. 1. The parties were in agreement that Trees 3 and 4 were significant trees but they disagreed on whether or not cl 4.33 precluded a dual occupancy if the significant trees could not be retained, that is if no design changes were possible which could facilitate both a dual occupancy and the trees' retention. 2. The Council argued that if tree retention was not possible for a dual occupancy to be developed, then the site simply was too constrained and therefore incapable of accommodating a dual occupancy which was not a right. Emphasis was placed on the first part of cl 4.33, ie. that development must retain and protect any significant trees. 3. The Council further argued that these trees were not just significant but were highly significant being Priority 1 for retention, of agreed high landscape value, and located in a biodiversity conservation corridor. 4. The applicant argued that if, even with design changes, a dual occupancy could not be accommodated with the trees retained, then it was reasonable for them to be removed and offset trees planted in their place elsewhere on the site. In this regard, reference was made to the Council's Biodiversity Strategic Plan (BSP) which refers to offsetting where trees can't be retained and are in a conservation corridor. 5. In this regard, where individual trees are removed in a conservation corridor, the BSP states that loss of biodiversity results. However, it also states at p55 that after applying the 'avoid, minimise, offset' principle, a certain number of trees can be planted to offset each tree removed. Where a net gain is desirable a suitable number is stated to be three trees for every one tree lost. The applicant therefore proposed to plant six offset trees at the front of the site for the two significant trees lost to the development. 6. The Council however referenced the first principle of the BSP which states at p51: offsets should only be considered after all options to avoid impacts have been thoroughly explored and/or unavoidable impacts have been minimised. Offsets can then be considered for the remaining impacts. The Council claimed that the applicant had not looked at or thoroughly explored any redesign options to avoid or minimise impacts, including reducing the size of the dual occupancy as contemplated by cl 4.33, but had instead proceeded straight to an offset proposal. 7. The applicant agreed that no design options had been considered which sought to retain Trees 3 and 4 however all the experts agreed that there was unlikely to be sufficient developable area to accommodate a dual occupancy if they were retained, including having regard to their required TPZs, which would have access impacts. 8. In evidence, the planners for both parties agreed that the development as proposed could not proceed if Trees 3 and 4 were retained. The Council's planner, Ms Gibbons, argued however, that a developable area was still available in the southern portion of the site with the trees retained. This comprised a building envelope of some 232m² once DCP setback provisions applied which could potentially facilitate some 465m² of floor space over 2 storeys. Whilst she accepted that this may not necessarily accommodate a dual occupancy, Ms Gibbons argued it could potentially accommodate a new dwelling and a secondary dwelling. 9. Alternatively, or in addition, the Council argued that the applicant could look at access being provided from the driveway of the adjoining property to the rear given it is in common ownership. 10. Mr Boers, planner for the applicant, argued that any revised design in the area suggested by the Council would be difficult given the close proximity of the dwelling to the rear and the DCP requirements for dual occupancies including that they have orientation to the street and have private open space behind the forward building line. Also that the slope at the rear of the site could preclude access from the adjoining driveway. 11. The parties agreed that the Court needed to determine if the trees had to be retained in which case the application could not proceed or that the trees could be removed to facilitate the development and replaced with offset trees elsewhere on the site. Floor space ratio (FSR) and solar access compliance 1. The calculation of the FSR differed between the expert planners. This was because the site area for FSR purposes excludes the SR2 zoned portion of the site and the amount of that zoned area was in dispute between the parties. 2. Notwithstanding, there was common agreement that the FSR under any calculation of site area would be exceeded post subdivision for Dwelling A. 3. Given consent cannot be granted to any FSR exceedence without a written clause 4.6 request justifying the reasonableness of that exceedence, the applicant, at the commencement of the hearing, proposed a reduction of some 53.28m² in the floor space of Dwelling A so that compliance with the maximum permissible FSR was achieved. The was delineated in a hand drawn sketch which deleted the family room from the first floor and a bedroom and bathroom from the corresponding area on the ground floor. No internal rearrangement of Dwelling A was proposed in response to the reduced floor space. 4. The experts agreed that Dwelling A, even with the reduced floor space proposed by the applicant to address the FSR compliance issue, could not provide a minimum three hours of sunlight to a living area in mid-winter as required under clause 4.15 of Part B1 of the DCP. At best, living areas would likely achieve two hours supplemented by light from a skylight if the skylight was relocated on the upper level, which the applicant agreed to do. 5. The Council was critical that no consideration was given, or assessment undertaken, by the applicant of the impacts on the internal amenity of Dwelling A with the revised layout of the upper level resulting from the floor space reduction proposed. 6. The applicant sought the flexibility provided by section 79C(3)(b) of the Act to not require compliance with the DCP sunlight requirement, arguing that two hours of sunlight supplemented by a skylight would be adequate. The Council argued that there was no reason why solar compliance could not be achieved with a redesign of the development given the size and orientation of the site, albeit this may entail a reduction of floor space. 7. However, the Council indicated that it was likely internal amendments to the design could be undertaken which achieved FSR compliance and had adequate solar access. The primary issue remained however, that two significant trees on the site were not being retained. Findings 1. There was agreement of the parties that, if approved, the development would result in the loss of two significant prescribed trees under the LEP in a biodiversity conservation corridor which would otherwise not be required to be removed. 2. The removal of these trees is contrary to the provisions of the DCP which requires that such trees be retained and protected. It is also against the Council's Biodiversity Strategic Plan which requires that development first attempt to minimise or avoid tree removal before proposing removal and offsetting. 3. No evidence was put of any attempt to minimise or avoid removal of these trees or to prove they could not be retained by redesigning the proposal. Accordingly, I have determined that there is no justification for removal of the two significant trees on the site simply to facilitate the dual occupancy development as proposed and therefore the application should be refused. 4. In coming to that conclusion, I have formed the view that, if significant trees were allowed to be removed simply to facilitate a dual occupancy, even if it was demonstrated that such development couldn't proceed with their retention, there would be little basis for applicants to have to undertake redesigns to accommodate such trees in line with the intent of cl 4.3.3 of the DCP. In the Council's evidence, such redesigns are frequently required of applicants with the outcome being significant trees can and are required to be retained before a dual occupancy can proceed. 5. The arborists agreed any offset trees would take many years to provide the same height and canopy cover as existing Trees 3 and 4 and I therefore do not accept that the proposed offset arrangements provide sufficient rationale for removing the trees. The fact that the trees need to be removed to facilitate a form of development on the site desired by an applicant is not a sufficient basis to remove them. 6. I was also not persuaded that, without undertaking the exercise, it is conclusive that a form of dual occupancy could not be achieved. As the Council pointed out, no attempt was made to consider alternative design options before proposing tree removal against the intent of both the LEP and DCP provisions. 7. Whilst the experts all considered it unlikely that a dual occupancy could be developed on the site with the trees retained, no evidence on this was provided. Only the Council planner had considered a possible developable area with the trees retained. 8. It is not the responsibility of either the Court or the Council to demonstrate if alternative designs could accommodate both a dual occupancy and the trees. Even if they couldn't, it appears likely from the evidence that the trees would not preclude alternative use of the site for a large dwelling or even a dwelling and a secondary dwelling. Furthermore, I concur with the Council that a dual occupancy development on the site is not a right. 9. Even with the removal of both significant trees, the proposed dual occupancy, including as amended to reduce floor space to comply with the maximum FSR permissible under the LEP, could not achieve the DCP requirement for minimum solar access notwithstanding the large size and orientation of the site. Furthermore, conditions were required to make privacy, access, garaging and side setbacks acceptable. These factors collectively indicate that the development is an overdevelopment of a constrained site. 10. The offer to take some floor space from Dwelling A to meet the maximum FSR permissible on the proposed future lot was done without any regard to the resultant internal arrangements of its living spaces. Notwithstanding Mr Boers evidence to the contrary, I agree with the Council that internal rearrangement of living spaces would be required to the upper level of Dwelling A if a less than suboptimal outcome were not to result, noting that the dwelling's living areas still did not achieve the minimum 3 hours of sunlight in mid-winter required by the DCP. 11. The two dwellings proposed are substantial with a reduction in floor space only offered at the hearing to facilitate the desired freehold subdivision to accommodate each dwelling and the requirements to comply with the FSR maximum permissible in the LEP for each proposed lot. This was after the applicant, during conciliation, had considered including a portion of the site to the rear to add site area to achieve compliance rather than proposing to reduce floor space. This could not be pursued as the adjoining lot was not included in the application and only then was a reduction in floor space offered instead to achieve compliance. 12. It is possible that inclusion of the lot at the rear in common ownership in any future development of the site could present an opportunity for designs considering shared access with relocated or reduced garaging or adjustments to site area should the applicant wish to explore a dual occupancy proposal for the site of a more modest form which retains the significant trees. However, it is not the role of the Court or the Council to offer such design alternatives or suggest possible solutions, if indeed any exist, to maximise the development potential of this site. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 575/2016 for a dual occupancy including subdivision at 754A Henry Lawson Drive, Picnic Point is refused. 3. The exhibits, except Exhibits 1, A and E, are returned. __________________ Jenny Smithson 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: 09 May 2017