Agar Developers Pty Ltd v Woollahra Municipal Council

Evolution of the plans

1. Prior to the hearing, the Applicant was granted leave to amend its application and rely on amended plans that were entered as Exhibit A. The amended plans revised the design and layout of the proposal on the site to retain Tree 1 and Tree 3 to comprise a development that may be summarised to include:

• 4 x three bedroom units and 1 x two bedroom unit.
• 2 car lifts (in and out) with 5 levels of parking, accommodating 10 on-site parking spaces.
• A turntable within the front setback area, which is associated with the use of the car lift.

1. At the commencement of the hearing, the Applicant advised that further amended plans were being prepared to:

• Modify the external stair to the south of the site providing access from the apartments to the communal open space to the rear of the site to replace proposed concrete stairs with lightweight, suspended structure so as to avoid the root zone of Tree 1;
• Reconfigure Unit 1 to allow access from the modified stairs in to the apartments building;
• Relocate the bicycle and motorcycle storage to avoid a portion of excavation;
• Reduce floor area to the apartment on Level 5 to provide greater clearance for Branch 2 of Tree 1;
• Set back the built form around Tree 1 responsive to a detailed survey of the tree.

1. As the proposed development is a residential flat building, the provisions of the State Environmental Planning Policy No 65 - Design Quality in Residential Apartment Development (SEPP 65) apply. A related provision is found in cl 50(1AB) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulations) which requires that a qualified designer, being defined at s 3 of the EPA Regulations as a person registered under the Architects Act 2003, must provide the consent authority, or the Court on appeal, with an attestation that they designed, or directed the design of the development and address the design quality principles in Schedule 1 of SEPP 65, and demonstrates, in terms of the Apartment Design Guide, how the objectives in Parts 3 and 4 of that guide have been achieved.
2. At the close of the first day of the hearing, and following the tender of Exhibits by the parties, I noted to the Applicant that a statement consistent with cl 50(1AB) of the EPA Regulations did not accompany the Notice of Motion before the Court referred to at [8] and had not been filed subsequently. A statement was tendered the following day and entered as Exhibit T, and I am satisfied that it complies with the requirements at [10].
3. At the commencement of the second day of the hearing, the Applicant sought leave, unopposed subject to costs thrown away, to rely on further amended plans which were entered as Exhibit S.
4. In response to queries from Mr Rigg for the Respondent arising from the further amended plans, the Applicant accepted that further amendments were required to correct errors and omissions on the drawings and would be filed by 4pm on 3 October 2019, along with revised and corrected landscape drawings, replacing Exhibit P, and an updated BASIX certificate.

Planning framework

1. The WLEP at cl 1.2 provides, relevantly, in its aims: … (g) to protect amenity and the natural environment (l) to ensure development achieves the desired future character of the area, (m) to minimise excavation and manage impacts
2. Clause 2.3(2) of the WLEP requires the consent authority to have regard to the objectives for development in a zone, and so as the site is within the R3 Medium Density Residential zone, the objectives of the zone are relevant as follows: 1 Objectives of the zone • To provide for the housing needs of the community within a medium density residential environment • To provide a variety of housing types with a medium density residential environment • To enable other land uses that provide facilities or services to meet the day to day needs of residents • To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.
3. The Respondent submits that the WDCP provides detailed planning and design guidance in the objectives of the WDCP relating to desired future character and tree management, and in the objectives in each of the chapters of the WDCP which also apply.
4. It is the Respondent's position that the desired future character objectives within the WDCP describe outcomes that are required to be achieved through development, which includes, at Section B1.1.5 of the WDCP, landscape and vegetation features.
5. The desired future character of the Bellevue Hill North precinct is described at Section B1.8.2 of the WDCP in the following terms: "… On sloping sites, development should step down the site to maintain views, protect the privacy and solar access of adjoining and adjacent properties, and minimise cut and fill. The design of roofs and fences should also facilitate view sharing opportunities, and carports and other parking structures must not to dominate the streetscape. There are pockets of Inter-War flat buildings along Drumalbyn Road that contribute to the precinct character, and the retention of these buildings is encouraged. Alterations and additions to the Inter-War flat buildings are to retain the character of the original building through appropriate use of materials, and should not significantly alter significant and traditional building elements visible from the street. …"
6. Streetscape character and key elements of the precinct are also said to include tree canopy formed by both street and private yard plantings, and the desired future character objectives include: O1 To respect and enhance the streetscape character and key elements of the precinct. … O7 To reinforce the landscape setting and maintain the existing tree canopy which forms a green backdrop when viewed from the harbour and the surrounding districts. O8 To retain and reinforce the green setting of mature street trees, private trees and garden plantings and minimise hard stand areas.
7. General residential controls in the WDCP are also relevant to landscape considerations at Section B3.7 which has as an objective the retaining of important existing mature trees, vegetation and other landscape features. Control C16 provides that: "Existing trees and vegetation of landscape value are incorporated into the landscape area and treatment."
8. Section E3.2.1 of the WDCP contains controls relating to 'Prescribed trees', which are defined as being, for the purposes of cl 5.9 (2) of the WLEP: "1. Any tree or palm, whether of indigenous, endemic, exotic or introduced species with a diameter spread of branches greater than 3m or with a height greater than 5m, irrespective of the spread of branches, and that is not identified in this chapter as exempt. 2. Any tree, whether of indigenous, endemic, exotic or introduced species with roots greater than 50mm diameter, but only if root pruning is proposed. 3. Any tree or palm identified in Council's Significant Tree Register. 4. Any tree or palm identified in Schedule 5 Environmental Heritage of Woollahra LEP, or located on land identified in Schedule 5 including: a) a tree listed as a heritage item; b) a tree located on land identified as containing a heritage item; or c) a tree on land within a heritage conservation area. 5. Any bushland as defined in State Environmental Planning Policy 19 - Bushland in Urban Areas."
9. While it is commonly held between the parties that cl 5.9 of the WLEP was repealed, in his closing submissions, Mr Rigg put it to me with the agreement of Mr Galasso, that the general savings and transitional provisions of the State Environmental Planning Policy (Vegetation in non-rural areas) 2017 (Non-Rural Vegetation SEPP) had the effect of saving the provisions of the WDCP as it was in force at the commencement of the Non-Rural Vegetation SEPP on 25 August 2017.

Expert evidence - planning

1. While a contention relating to the desired future character is said in the Amended Statement of Facts and Contentions to be resolved, the Respondent considers the desired future character of the area to also be characterised in the contribution made by tree canopy and views to landscape, and so is pressed in Contention No 20.
2. Specifically, in her oral evidence, Ms Samuels relies on Objective 7 and 8 of the desired future character statement for the Bellevue Hill North precinct in the WDCP which states that both street trees and trees in private yards form a part of the desired future character. Furthermore she considers the location of Tree 1 on the site to be a design constraint that should be factored in to any development, and any impact the tree might have on the Applicant's ability to achieve the maximum permissible Floor Space Ratio (FSR) is a natural consequence of that constraint which, in any event, is not as of right.
3. Mr Waghorn accepts that trees, and their retention, are an element of the desired future character of the Bellevue Hill North precinct, but is not the totality and must also include consideration of the height, FSR, building setbacks and the like - with which the proposal complies.
4. The experts agree that neither Tree 1 nor Tree 3 is included on the Council's significant tree register. Ms Samuel's speculates that the trees may have been overlooked when the survey was last undertaken in 1991, perhaps due to being in a private yard. In the alternative, Mr Waghorn notes that other trees in private yards are found on the register, but notes that not many, if any, are Eucalypts.
5. Mr Waghorn considers it relevant that the tree is not identified as a significant tree and is of the view that the replacement canopy trees proposed in the landscape drawings (Ex P) are an appropriate compensation in the hypothetical that Tree 1 was to be removed, or to die as a result of the development. In any event, as the Applicant proposes only the removal of Branch 1, Mr Waghorn considers the contribution made by Tree 1 to the desired future character of the locality is substantially retained.
6. As stated at [3], the experts agree that while the extent of excavation was initially considered excessive, it is acceptable given the steep slope of the site and considering the majority of excavation is a result of, as Mr Waghorn put it, internalising the adverse impact of car parking and manoeuvring on the site to avoid further on-street parking on Drumalbyn Street.

Expert evidence - Aboriculture

1. There are essentially three points in respect of Tree 1 on which the arborists are not agreed and which could adversely impact on the long term health of Tree 1:

• The extent and effect of pruning to the canopy.
• The proximity of built form to the trunk.
• The impact of building in or over the Structural Root Zone and Tree Protection Zone.

The extent and effect of pruning to the canopy

1. Tree 1 has four major branches that feature in the joint expert report. At this point, it is useful to describe their characteristics, using the survey at Exhibit Q unless otherwise noted, as a guide:

• Branch 1; springs from the trunk at RL 51.34 and heads in a north, north westerly direction.
• Branch 2; springs from the trunk at RL 51.78 and heads in a easterly direction, forking in to Branch 2A and 2B.
• Branch 3; springs from the trunk at RL 56.10 and heads in an easterly direction, at a level above Branch 2.
• Branch 4; springs from the trunk at RL 57.10, according to Ms Woodman (Exhibit 3, page 12) and heads in a west or south westerly direction.

1. The relevance of the levels and orientation of the primary branches of Tree 1 is that Branch 1, 2 and 4 are considered by Ms Woodman to conflict with parts of the proposed built form and would need to be pruned as a consequence in the event that the application before the Court was approved, resulting in a loss of canopy. In offering this opinion, Ms Woodman adopts a provision found at Section E3.4.2(2) of the WDCP which describes works that may be undertaken without a permit or development consent, to suggest that Council prefers a clearance of 2m between a part of a building and a branch.
2. While Mr Jackson initially disputed Ms Woodman's assertion that all of Branch 1 required removal, the Respondent now accepts that Branch 1 is required to be pruned at its junction with the trunk. However, given the removal of a portion of built form at Level 5 in Exhibit O plans, Branch 2 is now proposed to be retained which, according to Mr Jackson, means the overall loss of tree canopy remains at 6% as initially calculated by him using a method outlined in the joint expert report.
3. Given these same assumptions, Ms Woodman revised her assessment of the amount of canopy lost due to pruning which, if Branch 4 was included as she asserts may be required, would be between 15-20%, which she states in oral evidence to be acceptable for tree health.

The proximity of built form to the trunk

1. While the amended plans at Exhibit A assume the trunk of Tree 1 is of a consistent diameter over its full height, a survey completed by Beveridge Williams (Ex Q) shows it leans towards the North. In the further amended plans (Ex O) on which the Applicant sought leave to rely at the commencement of the second day of the hearing, the set back of the building on the northern side of the trunk was extended from 1m to a dimension that was responsive to the survey and varied between 1.2m and 1.6m, according to Mr Galasso.
2. The further amended plans also removed concrete stairs connecting to the communal open space in favour of lightweight stairs that would require only pad footings, and no continuous footing, cut or fill.
3. Around Tree 1, the plans show curved, fixed glazing that would provide occupants of the apartments on each level with a 270 degree view of the trunk. Considering practicalities that may arise from the cleaning and maintenance of this glass, the aboricultural experts were not concerned by the impact of abseiling or other means of access, so long as cleaning solutions were not used in concentrated forms that may adversely affect the tree roots below.
4. In his oral evidence, Mr Waghorn considered it to be common for a building to be proposed within this distance of a tree, but acknowledged that he could not think of an example in his experience where a tree was proposed to be bounded on three sides at this distance. Nevertheless, according to Mr Waghorn, the WDCP allowed the form as proposed and even, in his view, permitted the removal of the tree with consent.
5. Ms Woodman's opinion is that a distance of 2m from the trunk is a reasonable minimum, however a primary concern related to the set back is the building over of the tree protection zone which, in Ms Woodmans' strong view, will starve Tree 1 of air flow, water and organic matter which are essential for the tree to continue to thrive.

The impact of building in or over the Structural Root Zone and Tree Protection Zone

1. Ms Woodman's concern is not so much in relation to the pier footings proposed to the east of Tree 1, which she accepts can be located with the assistance of an arborist to avoid damage to Tree 1 and Tree 3, but the effect created by building over the tree protection zone (TPZ), albeit at an elevated level. In doing so, she relies on Australian Standard AS4970 - 2009 Protection of trees on development sites (Ex 5, Folio 447) to define the TPZ as a space above and below the ground.
2. While the structural root zone (SRZ) and TPZ of Tree 1 are shown on the drawings as concentric circles centred on the trunk, the experts agree that the sandstone rock shelf visible to the west of Tree 1 may have historically acted as a barrier to root growth in this direction.
3. Mr Jackson opines in his expert report (Ex G, page 16(g)) that roots may have been deflected by the rock face, except for root No 8 which appears to disappear in to the rock (Ex G page 12, plate 11). It is the diameter and path of Root No 8, according to Ms Woodman's summary of AS4970 that suggests it is likely to be a structural root necessary to hold the tree upright, and which is likely to be disturbed in the event of any excavation. In response, Mr Jackson expanded on the nature of roots which he described as comprising 'tension' roots, where located uphill of a tree on a slope, and 'compression' roots where located downhill. By this, I understood Mr Jackson to be referring to the likelihood that Tree 1 would have, given its age, established sufficient compression roots to the downhill side to prevent it from 'toppling over' in the event that root No 8, being a tension root, was cut during excavation.
4. As stated in the Amended Statement of Facts and Contentions, Tree 1 and Tree 3 have grown in a setting where the majority of their root system has been open to natural processes such as rainfall, air flow, sunlight, the accumulation of organic matter and associated soil microbial activity that is essential to maintaining healthy soil ecology and tree health.
5. In her oral evidence, Ms Woodman explained further that it is the combination of oxygen and water seeping through organic matter that stimulates microbial activity which, in turn, creates the appropriate conditions for root health. Given that around 90-95% of the TPZ is proposed to be built over, Ms Woodman believes the health of the tree will suffer in the absence of this natural process. The risks include soil drying out and becoming hydrophobic or the reverse, where soil strength and cohesion can break down through over-irrigation.
6. Mr Jackson's evidence in response to these concerns is, in essence, that the natural systems can be replicated using a combination of automated drip irrigation providing full coverage to the soil area, fitted with a rain switch and other features listed in Exhibit U, and the addition and distribution of mulch which is proposed by the Applicant to be distributed over the TPZ twice a year. Additionally, deleting the perimeter wall below the Ground level floor of the proposed development, to provide an open mesh screen over which climbing plants are proposed, referred to as the 'Green wall', allows the movement of air.
7. While the area behind the green wall appears free of obstruction on the architectural plans, and section drawing taken through this area, the Stormwater plans (Ex H) show an Onsite Detention (OSD) and Rainwater Tank (RWT) in this location.
8. When I asked Mr Jackson whether the irrigation system was proposed to be connected to this OSD/RWT in order to be used for the purpose of irrigation, Mr Galasso advised that while it was not currently proposed to be, drawings could be amended to make it so.
9. Arising from my question, and Mr Galasso's advice, I understand that the current water restrictions, known as Level 1, excludes the use of drip irrigation systems, and the use of irrigation systems incorporating controllers that automatically adjust to weather or soil moisture conditions. In the alternative, Mr Galasso advised that the future owners could apply for an exemption to further restrictions, and maintains that it would be in the interests of future occupants to ensure the tree which would be common property in a future strata plan, is maintained with continued irrigation given the central position it occupies in each apartment.
10. The Respondent submits that the Court has no irrigation plan before it to confirm the extent of irrigation proposed and no evidence of geotechnical conditions west of Tree 1 to indicate the subsurface character of the sandstone, and any roots that may be damaged by the proposed excavation and construction.
11. The Applicant submits that, should an irrigation plan be required, it could be a deferred commencement condition and is not, in itself, a reason to refuse the grant of consent.

Consideration

1. As stated at [4], the primary dispute in this matter centres on whether the proposed development puts at risk the viability of Tree 1 in a way that would compromise the landscape setting of the Bellevue Hill North precinct desired future character as set out in the WDCP.
2. While Tree 1 and Tree 3 have at no time been identified by the Council as being of such significance as to be entered on the significant tree register, Tree 1, in particular, is evidently a striking and substantial tree that I accept contributes to the character of Drumalbyn Road, the green valley to its east, and the Bellevue Hill North precinct more generally.
3. From Drumalbyn Road, the proposed development presents as a two-storey form that is lower than its neighbours, providing a sightline to the canopy of Tree 1 from the public domain, and the development steps down the site which is consistent with the desired future character of the area as described in Section 1.8.2 of the WDCP.
4. The arborists agree that Tree 1 has a long useful life expectancy of more than 40 years, and they agree that the proposed pruning to the canopy is within the range of acceptability, even when the removal of all of Branch 1 is taken in to account. Amended plans removing some of the proposed built form at Level 5 allows Branch 2 and 3 to be undisturbed. The experts did not agree on whether there is likely to be a clash or conflict between Branch 4 and the built form to the west. However the Applicant is not seeking the removal of this branch, and Ms Woodman's evidence is that even if Branch 4 is permitted to be pruned in the future, the extent of pruning is within an acceptable range and would not likely harm the tree.
5. For these reasons, I am satisfied that the extent of pruning proposed will substantially maintain the existing tree canopy which forms a green backdrop when viewed from the harbour and surrounds as desired by Section 1.8.2 of the WDCP.
6. It is Ms Woodman's evidence that at least 2m should be provided between the trunk of Tree 1 and the built form to allow for sufficient light, air and water to be received at its base. I note that the amended plans show a distance of between 1m and 3m clearance. The experts are not troubled by the proximity of the built form due to movement of the trunk nor, except for the disagreement in relation to Branch 4, its branches.
7. In relation to the potential impact on the root system of Tree 1, I am satisfied for the reasons that follow, that the proposed development will not put at risk the ongoing health and viability of Tree 1, or Tree 3: 1. Firstly, I accept that is it unlikely that significant structural roots from Tree 1 extend in to the zone of excavation to the west, given the sandstone rock shelf has likely acted as a barrier over the life span of Tree 1, along with Mr Jackson's evidence regarding the combinatory effect of tension and compression roots which act together to provide, in effect, redundancy in a tree's structural integrity. 2. Secondly, the amended plans confirm the removal of all strip footings in the SRZ and the TPZ around Tree 1 for an arc of 270 degrees when viewed in plan. 3. Thirdly, the elevated construction avoids disturbance of Tree 1's SRZ and provides for airflow in the TPZ, and presumably permits the overland movement of fauna in behind the 'green wall', which is generally of a height that would allow filtered daylight to the portion of the TPZ that is built over. 4. Fourthly, an arborist is to guide excavation in the TPZ during construction, which may be undertaken by hand at times. 5. Fifthly, an organic matter and mulching management plan is proposed as a deferred commencement condition to ensure that organic matter is delivered to the root plate of Tree 1 and Tree 3 twice a year and, in the likely event that a strata plan is registered, this condition would form a by-law in the strata scheme. 6. Finally, I accept Mr Jackson's advice that the irrigation system can be designed to provide full coverage to the portion of TPZ that is built over, and uses readily proven technologies that are capable of wetting the mulch and soil at a rate that can be adjusted to suit the needs of Tree 1. Furthermore, I consider it appropriate that the irrigation system is connected to a 45,000L RWT, and that use of such an irrigation system is currently exempt from water restrictions. Notwithstanding this, a deferred commencement condition is proposed by the Applicant to require an irrigation plan for Tree 1 and Tree 3 to be prepared.
8. Pursuant to s 4.15 of the EPA Act, I consider the likely environmental impacts of the proposed development on both the natural and built environment in the locality to be acceptable and I consider the site to be suitable for the proposed development given its appropriate response to applicable controls.
9. In reaching my decision, I have also considered the submissions made by neighbours to the Court at the onsite view as follows: 1. Firstly, I understand from the Council that the manner in which the application was notified was largely consistent with the Council's usual practice. To the extent that residents may have had difficulty accessing documents associated with application, I am told that not all reports or documents are generally made available on the Council website, that the Applicant lodged a Notice of Motion to amend plans with the Court at around the time it was said that documents were not available on the Council's website, and that advice was provided by Council to those residents who sought assistance as to how to use the DA Tracker. 2. Secondly, in relation to the concern at the impact on local ecology, I note that as part of this new development, the existing swimming pool that sits to the rear of the subject site will be removed, along with its footings, and the pool house next to it, and its footings. In its place, the landscape architect has shown a new Angophora tree and a new Blackbutt tree which can be expected to grow to such a height that they also provide a convenient stopping off point for birds and bats on their flight down the valley. Other trees, shrubs and grasses are also proposed in place of the pool, its concrete terrace and the pool house. 3. Thirdly, the building is, in effect, smaller than the full size allowed by the Council. When all of the internal area is added together, it is less than the maximum area allowed. This is particularly relevant to those submissions that stated the site was suited to a maximum of 3 apartments. However as it was pointed out to me, this could result in 3 apartments in the same sized building as is being proposed. Put in more technical terms, the maximum floor space ratio allowed by Council (which is the area of the building when measured inside its perimeter walls, divided by the area of the site) would theoretically allow 3 apartments to share a total area of 1,153m², whereas what is being proposed is for 5 apartments to share an area of 941m².
10. At the conclusion of the hearing, I made directions for the Applicant to correct errors and omissions identified at [13] by 3 October 2019. On that date, the Applicant provided the Court, and the Respondent with the following:

• amended architectural plans
• amended landscape plan
• amended stormwater plan
• BASIX certificate and stamped plans
• Certificate Summary
• Nathers Thermal
• updated ADG design documents

1. On 9 October 2019, after I had reserved my decision, the Applicant, with the consent of the Respondent, provided the Court with agreed conditions of consent and separately, a copy of proposed deferred commencement conditions referred to at [56(5)] and [56(6)].

Directions

1. For the reasons already stated, I am satisfied that development consent should be granted, subject to final and consolidated conditions of consent, incorporating the deferred commencement conditions. For this reason, the Court directs that within 7 days of these orders the parties are to confer and consolidate agreed conditions of consent with the deferred commencement conditions so as to form a single point of reference for conditions relevant to the consent.
2. In the event that the parties cannot agree terms of any of the conditions, the parties have leave to approach the Registrar to relist the matter before me for short arguments about the conditions at issue.

Addendum made 1 November 2019

1. The final and consolidated conditions of consent were filed on 28 October 2019 and I am satisfied that they respond to my findings and so consent to the application should be granted on the basis that the development be carried out in accordance with those Approved Plans and Supporting Documents listed at Condition A.4.
2. Accordingly the Court orders that: 1. Leave is granted to the applicant to amend the application for development consent, by relying on the information and the amended plans in Exhibits S, subject to the applicant paying those costs of the respondent thrown away as a result of the amendment of the application, as agreed or assessed. 2. The appeal is upheld. 3. Consent is granted to DA220/2018 for the demolition of the existing dwelling, swimming pool and other structures, and construction of a new 6-storey residential flat building comprising five units with an automatic parking system, landscaping and site works at 76 Drumalbyn Road, Bellevue Hills approved, subject to the conditions in Annexure 'A'. 4. All exhibits are returned, except for Exhibits P, Q and U.

T Horton Commissioner of the Court Annexure A (656 KB) Architectural Plans 1103-1109 (1.36 MB) Architectural Plans 2001-2003 (2.07 MB)

Amendments 01 November 2019 - See Addendum for final orders at [63]-[64] of the judgment. 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: 01 November 2019