Auspat International No 2 Pty Ltd v Randwick City Council

View impacts

1. It removes a significant element of built form from the view corridor and thus protects significant elements of the Ellis' views from their upper living room windows (which I inspected, in company with the legal representatives of the parties and their advisers during the course of the site inspection).
2. I also inspected, during the course of the site inspection, the views from the upper level living areas of the property on the north-western corner of Jennifer Street and Reservoir Avenue, and from the bedroom and adjacent balcony of the townhouse immediately to the west of that property. There are two observations that need to be made concerning the potential view impact on those residences at the locations inspected.
3. First, with respect to all "view loss" matters involved in this case, the site is zoned as R3, which is a medium density residential zoning. It has a maximum height built form of some 9.5 metres, with a maximum wall height, as I recollect it, of eight metres. The town planning evidence given to me by Mr McDonald and Mr Grech was that, with the widened gap in the centre, there were no planning issues arising from the design of the buildings proposed along the Jennifer Street frontage - that being subject to one significant qualification and that is that the potential extension of the townhouses to the south along the Jennifer Street frontage did not emerge until after the planning witnesses had been excused at the completion of their evidence.
4. It was put to me, by Mr McClintock of senior counsel for the Council, that I was not in a position to assess, in a planning sense, what might be the impacts of extending the townhouses in that fashion.
5. I am satisfied under the circumstances that I am able to do so. This is a specialist Court and its members are entitled, in these classes of the Court's jurisdiction, to draw on their own experience and qualifications for the purposes of assessing proposals such as these. I draw on my experience and qualifications to address the issue of the additional townhouses along the Jennifer Street frontage.
6. I make the following observations: 1. first, the proposed additional development will be, I am satisfied, consistent with the design proposed for the other elements. They include appropriate elements of articulation and modulation, rather than presenting an absolutely bland and unidimensional façade to Jennifer Street; 2. second, to the extent that the additional townhouses may have some potential for obstructing views, there are two observations to be made. First, directly opposite the extension area, at the southern end of the Jennifer Street frontage, is a large open space (able to be seen on Impact Scenario 3 contained in Exhibit L, being the most recent of the Joint Ecologists' Report) that is depicted on Exhibit 3, being the extract from the Council's zoning map under the Randwick Local Environmental Plan 2012, to be land zoned RE1 for public recreation. Questions of view impact do not arise in that context. To the extent that there might be some views lost from the Ellis' property, they are oblique views, over a side boundary, out of small fenestration areas in their upper living room area.
7. I am satisfied that, consistent with the decision of the Court setting out the planning principle in Tenacity Consulting v Warringah [2004] NSWLEC 140 (Tenacity), those views, being sideways views, are difficult to protect and that given the other protective measures that have been taken with views from the Ellis' primary living area, there is no barrier to approving the extension of the townhouses in that southerly direction.
8. The residents to the south of the park would, from my observation of the air photo, continue to enjoy views over the portion of the national park directly opposite them and to the extent that there remain views beyond that, over the site towards the ocean, those views will remain virtually entirely uninterrupted.
9. I return to the views to the northern side of Reservoir Street. With respect to the views from the front balcony of the townhouse first removed from the corner, I am satisfied that, given that it is a balcony from a bedroom, there is less importance to be accorded to views from such a location consistent with the principles in Tenacity. There will remain some long views towards the south-east and I am satisfied, under the circumstances, that that is a reasonable outcome for that location.
10. For the property that is on the corner of Reservoir and Jennifer Streets on the northern side of that intersection, views will be lost to the east. They are undoubtedly significant ocean views. They are, however, to be lost as a consequence of a development on the site that is entirely consistent with the planning regime that applies for the site and a more skilful design, whilst potentially permitting greater retention of views from that location, would require quite significant further adverse impact on the Eastern Suburbs Banksia Scrub which would be an entirely unsatisfactory outcome under those circumstances.
11. I note that there will still be water views to the north-east retained from the living areas on that property. Those views are, to some extent, over conservation areas or over a site in public ownership on the intersection of Jennifer Street and the road to the golf course in its north-eastern quadrant. Although Mr McGahey made some suggestion that there were proposals of redevelopment of the buildings on that site, I have no evidence that that is possibly the case and no basis upon which to have regard to it.
12. I am therefore satisfied that there are no proper planning bases upon which I could consider refusing the proposed development.

Introduction

1. Having reached that conclusion on planning issues, I now need to turn to what is, in effect, the primary and substantial hurdle to granting development consent to the Applicant's proposal. That hurdle is the fact that a significant proportion of the site contains a largely intact remnant of not only Eastern Suburbs Banksia Scrub but a subcategory of that known as Sand Mantle Heath.
2. The proposal, as originally advanced at the commencement of these proceedings before me, would have required the removal of some 41% of the Eastern Suburbs Banksia Scrub on the site, there being 0.69 hectares of that vegetation association on the site. After the clearing that would have been necessary for the development at the commencement of these proceedings, only 0.41 hectares would have been left, that involving a clearance of 41%.
3. It was Dr Robertson's evidence that there is an extensive, significantly ecologically damaged area along the southern portion of the eastern boundary of the site, which, it was agreed between the ecological experts, not only contained no Eastern Suburbs Banksia Scrub but contained no seed bank for such vegetation association. It is therefore, in the context of the critically endangered ecological community with respect to which I am dealing, a desert and entirely barren of any influences of that critically endangered community. This can be seen from Figure 3 to Exhibit L (reproduced as Annexure A to this decision).
4. It was the evidence of Mr McGahey, given on behalf of the Council, that with a proper translocation regime for soil of the relevant type that exists on the site and that which will be disturbed as a consequence of granting development consent to a proposal on the site, this can be moved to that denuded area. As a consequence, it will be entirely possible to re-establish vegetation that is entirely consistent with the Eastern Suburbs Banksia Scrub (because it will have been artificially created, it will not be recognised by the state regulator as forming part of that community, although I am satisfied, as Mr McGahey indicated, it will be entirely indistinguishable from and entirely botanically and biologically consistent with such community).
5. A second matter that arose during the course of the ecological evidence of some controversy was the extent to which there needed to be a defendable area around any built form which might be permitted on the site to provide some protection from the necessary fire management regime which needs to be imposed on the site; noting, as I do, that such a fire management regime will be entirely beneficial to, and consistent with, the objective of protecting the long-term viability of the Eastern Suburbs Banksia Scrub.
6. The evidence that was given by the ecological experts was that, with the imposition of a proper fire management regime for the site which would involve pattern or mosaic burning of the site at regular and scheduled intervals (intervals that would be required as part of a consent granted by me and which would also be required by a public positive covenant in favour of the Council - a proposition accepted by the Applicant as an appropriate outcome), this means that the defendable area around the perimeters as shown on Figure 3 in Exhibit L could be narrowed to a two-metre wide turfed strip, rather than the 15 metres of partially turfed and partially vegetation‑impacted strip originally proposed by Dr Robertson.
7. Dr Robertson provided me with some calculations at the conclusion of the concurrent evidence of the ecological experts as to what the overall consequences would be of permitting a development that had a gap in the northern frontage of it, and the re-establishment of a vegetation community akin to (if not officially recognised as) Eastern Suburbs Banksia Scrub along the southern portion of the eastern boundary of the site. I will return to those calculations shortly.

Connectivity

1. The next matter to which I need to turn is the question of ecological connectivity with the Eastern Suburbs Banksia Scrub remnants that are in the vicinity. There are two of them.
2. The first is to the immediate south which is within the Kamay Botany Bay National Park and sharing a border with the site. There is no issue as to the appropriate connectivity between the public and private remnants as a consequence of that shared boundary. It was Mr McGahey's evidence that there was an appropriate need for connectivity for various vectors, whether they were insects or birds or chiroptera (either micro-chiroptera or larger bats such as fruit bats) for appropriate propagation purposes. Insect connectivity was also relevant, including by insects such as butterflies.
3. The proposal for a break between the two elements of built form along the northern roadway gives rise to the only major issue of controversy concerning the possible format of a development as far as the development proponent is concerned.
4. I proposed to the witnesses, during the course of the concurrent evidence of the ecologists, that a modification to Exhibit O, which showed a gap proposed by the development proponent, would be appropriate but that proposal, shown in Exhibit P, which showed removal of a further small element of the built form of the proposed residential flat building in the north-western corner of the site, would be preferable. The contest for these purposes is the desire of the development applicant to keep that built form (shown in Exhibit O). I am satisfied that, for several reasons, it is not appropriate to permit the retention of that built-form element.
5. There was an evidentiary conflict between Mr McGahey and Dr Robertson about the adequacy of the width of the gap, the former suggesting that 15 metres was not wide enough, whilst Dr Robertson proposed that it was. Although both of them accept that it is necessary to provide appropriate connectivity, I am satisfied that this modest incremental loss of development potential means that, consistent with the decision of the Chief Judge of the Court in Telstra Corporation Limited v Hornsby Shire Council (2006) 146 LGERA 10; [2006] NSWLEC 133, the taking a precautionary approach is more appropriate under the circumstances of dealing with a critically endangered ecological community and thus to require the wider gap rather than the narrower.

Introduction

1. I now return to the matters dealt with in summary by Dr Robertson at the conclusion of his evidence. I earlier noted that there was 0.69 of a hectare of the critically endangered Eastern Suburbs Banksia Scrub on the site, of which 0.41 hectares was proposed to be retained under the original proposal.
2. Dr Robertson's evidence was that, under the scenario to which I have referred, being Scenario 3 in Exhibit L reproduced as Annexure A to this judgment, there would be 0.55 hectares of the existing Eastern Suburbs Banksia Scrub retained on the site. That would have been a reduction of 21%, rather than 41%.
3. However, it was also Dr Robertson's evidence that, having regard to the ability conceded by Mr McGahey, Eastern Suburbs Banksia Scrub, in practical outcome (if not in nominal outcome recognised by the relevant government authority), could be re-established along the southern part of the eastern boundary that would provide a further 0.22 hectares. This, if added to the area that had been proposed to be retained under Scenario 3, would result in 0.77 hectares of Eastern Suburbs Banksia Scrub on the site. The additional increment in width of the connectivity corridor and the narrowing of the defendable area would further increase that amount.

The future benefits for Eastern Suburbs Banksia Scrub

1. Whilst, in some respects, this involves a question of accepting future benefits at a price of present damage, I am satisfied that, given the new figures of the available areas of Eastern Suburbs Banksia Scrub shown in the table produced by Dr Robertson (on page 85, being Appendix 7 to Exhibit K), that is an acceptable present impact in light of the potential future benefits.
2. The potential future benefits, in my view, are not merely confined to the rehabilitation of the additional area along the southern portion of the eastern boundary. There are a number of additional benefits that will flow.
3. First, the site is presently being managed by benign neglect. That has led, as was observable during the course of the site inspection, to significant elements of weed infestation, dumping and the like taking place on the site. Even if I do not accept, which I set aside for the present purposes, Dr Robertson's pessimism as to the extent of future weed infestation likely to be caused to the site, there is nonetheless, at the present time, significant degradation of the site.
4. That will be significantly rectified by the imposition of a Revised Vegetation Management Plan made mandatory by a public positive covenant in favour of the Council, and also by the imposition of a mandated fire management regime which will also be made mandatory by public positive covenant in favour of the Council.
5. On the agreed evidence of the ecologists, that sort of management regime has, on my understanding, a positive and beneficial effect on the long-term survivability of Eastern Suburbs Banksia Scrub on the site, and includes in it the likelihood of qualitative improvement to the nature of the vegetation on the site.
6. These changes are positive and they are entirely in addition to any minor increment in area that would arise as a consequence of the rehabilitation of the denuded area along the southern portion of the eastern boundary of the site.
7. Taking all of those matters together, I am satisfied that the potential future benefits for the endangered ecological community are sufficient as to warrant permission of destruction of the small element of it that will result from the development in the fashion that is now contemplated, including the widening of the gap in conformity with Exhibit P.

Introduction

1. As a consequence of that, there is necessary further preparation of significant documents, such as the Fire Management Plan, a Revised Vegetation Management Plan, the drafting of the necessary covenant in favour of the Council, preparation of revised plans and the like.
2. The position therefore (at least as I understand it), advanced by Mr Galasso, is that I should indicate that this decision is made with respect to the scope of the proposed concept plan engaged by one of the three proceedings that are before me at the present time. I should then adjourn all three proceedings to permit the necessary work to be undertaken that would permit me to grant appropriate consents to reflect the nature of the matters that I have outlined in this judgment.

Directions

1. The appropriate directions to give effect to these outcomes are that: 1. The matter is listed before me on Friday 22 November at 9.00 am; 2. If revised, settled plans acceptable to the Council and all necessary settled documents to reflect this decision are provided to my Associate as plans and Word documents by the close of business on Wednesday 20 November 2019, I will make orders in chambers to give effect to the agreed outcome in all three proceedings, if agreed to by the parties, and vacate the mention on 22 November 2019; and 3. Liberty on 48 hours to approach my Associate if the parties agree that there is some necessity to vacate the 22 November 2019 mention and provide further time for either party to deal with matters of documentation.

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: 20 November 2019