Black v Ku-ring-gai Council

CASES CITED: BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 Sanctuary Investments Pty Ltd & Ors v Baulkham Hills Shire Council [2006] NSWLEC 733

DATES OF HEARING: 9 & 10/10/2008 and 28/11/2008 Written submissions 8 & 9/12/2008

APPLICANT Mr S Kondilios, solicitor of Maddocks LEGAL REPRESENTATIVES:

RESPONDENT Mr A Hudson, solicitor of Wilshire Webb Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 This is an appeal against the refusal by Ku-ring-gai Council (the council) of a development application (1003/07) under the Environmental Planning and Assessment Act 1979 (the EPA Act) to construct a two storey house at 55 Mahratta Avenue, Wahroonga (the site).

2 The key dispute between the parties is whether the impact of the proposal on the Blue Gum High Forest (BGHF) is acceptable without an offset. The site and its contest 3 The site is regular in shape with an area of approximately 891.76 sq m. It is vacant and a large part of the site has remnant BGHF, which is identified as a Critically Endangered Ecological Community (CEEC) under the Threatened Species Conservation Act 1995 (TSC Act).

4 Adjoining the site, on each side and to the rear, are detached residential dwellings, which are the predominant form of development in the locality.

5 The Glade Reserve is located a short distance to the northeast of the site. This reserve also contains BGHF.

The Planning Controls 6 The site is zoned Residential 2(c) under Ku-ring-gai Planning Scheme Ordinance (KPSO). The proposal is permissible with consent under the KPSO.

7 Ku-ring-gai Development Control Plan 38 - Residential Design Manuel (DCP 38) is also relevant.

8 The EPA Act and the TSC Act set out procedures for the assessment of applications that involve CEEC. The evidence 9 The Court visited the site on 9 October 2008 and heard evidence from the adjoining owner, Mrs Petinsky, 53 Mahratta Avenue. Her principal concerns were the placement of the dwelling at the rear of the site and the impacts of the height and bulk of the proposal when viewed from her property, particularly as a result of the reduced side set back and lack of screen planting.

10 The Court heard expert evidence on ecological issues from Dr P Smith, for the council and Ms J Rawling, for the applicant. Mr G Youhanna, for the council and Mr I Glendinning, for the applicant, provided expert planning advice. Mr McMonnies provided expert evidence on bushfire management practices for the applicant. 11 The experts agreed that as the site is zoned residential and adjoined by residential developments it is not unreasonable to expect that a house could be built on the site but that the BGHF places constraints that would limit the size and footprint of the house.

12 Dr Smith and Mr Youhanna considered the size of the proposed house to be unacceptable despite its compliance with the relevant planning controls. During the hearing, the experts agreed to the location and a reduced footprint of the house that would minimize the impact on the BGHF. The applicant sought leave to prepare amended plans which the Court granted.

13 The amended plans were referred to the Rural Fire Service (RFS), Department of Environment and Climate Change (DECC) and to residents.

14 Mrs & Mr Petinsky made a further submission in response to the amended plans that reiterated their previous concerns. In particular, the non compliance of the garage with the side set-back requirements. 15 Mr Nicholson, 57 Mahratta Avenue, made a submission and gave evidence in Court at the resumption of the hearing on 28 November 2008. His principle concern was the bulk of the house when viewed from his outdoor entertainment area and swimming pool. He also raised privacy concerns about the doors and windows of the living area which faced his property.

16 Council did not raise any issues in response to the amended design and its compliance with DCP 38. Mr Youhanna and Mr Glendinning considered the impact on the adjoining properties to be reasonable.

17 The garage does not comply with the minimum side set-back control of 1.5 m in DCP 38. The length of the garage along the boundary is 7 m and the reduced set-back is required to minimise impact on the vegetation on the site and its impact is acceptable.

18 The side set-back of the dwelling to 53 Mahratta Avenue complies with DCP 38 and has increased from the original proposal.

19 The side set-back of the ground level of the dwelling to the boundary of 57 Mahratta Avenue is 2 m which complies with DCP 38, and is greater than what was originally proposed. The set-back of the second floor of the dwelling to 57 Mahratta Avenue has been reduced, but still more than complies with DCP 38.

20 The rear set-back does not comply with DCP 38. We accept that this is a negative feature of the development. However, it results from the placement of the dwelling at the rear of the site to maximise the conservation of the BGHF. We acknowledge that the house will be visible from the adjoining properties and is in a location, which would generally be occupied by gardens, however the impact is acceptable given the constraints of the site.

21 The Court heard further evidence from Dr Smith and Ms Rawling who agreed that the proposed footprint in the amended plans had reduced the impact on the BGHF to an acceptable level. Dr Smith considered that an offset was required to mitigate the loss of approximately 194.4 sq m of BGHF within the building footprint. 22 This opinion is consistent with the advice from DECC of 30 October 2008, which states:

… that to adequately offset the proposal, the following actions would need to be undertaken: * either protection and improved management of land in the vicinity with BGHF at a ratio of at least 2:1, or significant enhancement to the current condition of a remnant of BGHF on land in the vicinity that is already secure (eg public land) at a ratio of up to 5:1 and * retention; * enhancement (through implementation of the Vegetation Management Plan, but preferably for a longer period than two years, eg five years for weed control); and * protection (eg through a covenant under section 88B of the Conveyancing Act)of the BGHF remnant on site. 23 The applicant has offered council an offset to the value $10,000. Dr Smith and Ms Rawling agreed that any offset should be based on the area of BGHF to be removed (194.4 sqm) times the ratio of 5:1 recommended by DECC. They suggested the offset could be applied to undertake bush regeneration works at the recent BGHF addition to Dalrymple Reserve, Mona Vale Road, St Ives. Ms Rawling estimated the offset would equal to 300 hours at $37 per hour which is consistent with the amount offered by the applicant.

24 Mr Hudson, for the Council, advised that council was not prepared to accept the offset as it has no procedure or policy in place to deal with offsets.

25 Further council will not enter into a Voluntary Planning Agreement (VPA), for the offset either on the basis that the amount be used now or held in trust to be used in the future, at a time when it adopts an offset system. 26 Dr Smith considered that without this component of the offset, the proposal would be unacceptable as it would not mitigate for the loss of BGHF and the impact would therefore be unacceptable.

27 Ms Rawling did not consider this aspect of the offset to be necessary given the degraded condition of the BGHF and that a significant amount of the BGHF was to be retained and would be enhanced by the works proposed in the Vegetation Management Plan (VMP) and the applicant has accepted a section 88B covenant.

28 Further Ms Rawling considered the conservation value of the BGHF would be better maintained by the development and the VMP, which requires ongoing maintenance. Without the development Ms Rawling considers that the condition of the BGHF would continue to deteriorate with the intrusion of weeds.

29 Dr Smith considered that the conservation value of the BGHF would be retained without the development, as the forest would regenerate over time without the development even without maintenance. At the site visit, numerous examples of natural regeneration were identified and shown to the Commissioners. Dr Smith considered these to demonstrate the long-term viability of the BGHF. 30 Further, Dr Smith noted that his field survey of the site identified 29 native indigenous species within the BGHF understorey, which he considered surprising given the degraded nature of the bushland on the site.

31 Mr McMonnies provided evidence for the applicant on the requirements of the RFS. He advised that as the proposal provided design features, such as wired gutters, the RFS has accepted a performance based approach to the fire management of the site. In summary this results in no trees, other than those within the building platform, being removed. The canopies of the remaining trees can be interlocking and overhang the house. In addition, only 20% of the site can be covered by mid storey plants (ie shrubs between 0.5m and 2m) but this constraint does not apply to ground cover and to canopy trees. 32 This advice was confirmed subsequently by letter from the RFS dated 2 December 2008. Thus, the fire management of the site raises no concern with respect to the proposed landscape plan for the site that retains canopy trees and understorey planting.

33 Ms Rawlings and Dr Smith accepted that the BGHF outside the building platform would be retained, even with the requirement of the RFS that reduced the mid storey planting. Findings 34 The principle issue between the parties is whether the proposal would have an acceptable impact on the BGHF, without an offset. 35 The applicant has proposed a package of offsets which the experts agree are acceptable and would meet the advice of the DECC. However, the council has indicated that it is not prepared to enter into a VPA to implement that part of the offset proposal that provides a monetary contribution.

36 The amended plans have reduced the building footprint to 194.4sqm. This results in the retention of 424.3sqm of BGHF out of a total area of 618.8sqm. DCP 38 states the maximum built upon area for a 2 storey house on land 800-900 m2 is 56 %. The final proposal will occupy approximately 30 % of the site area. The proposal will remove 8 of the 33 native trees on the site. The BGHF is in a degraded condition due to weed infestation and loss of understorey. Notwithstanding the degraded understorey, the listing of the community as critically endangered recognises that BGHF, due to its location in urban areas, is often disturbed and degraded. The BGHF is of conservation value and should be retained. However, the site is zoned residential and there is therefore an inherent conflict between the conservation value and its zoning.

37 This issue of conflict between land use zoning and environmental constraints was address by McClellan CJ in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 at [118-119]. The judgment notes relevantly:

118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.

119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project. 38 The amended plans have attempted to mitigate the conflict by locating the building platform on the part of the site that will least impact on the BGHF. The building footprint has also been substantially reduced.

39 Dr Smith and Ms Rawling have agreed that the proposal has met the DECC standard practice in relation to proposals, which are likely to impact on CEEC namely:

… avoid impacts, minimise impacts, ameliorate where possible and, after every other option has been exhausted, to offset or compensate for the loss. This practice applies to all scales of impacts, including small residential proposals … 40 The loss of BGHF is unavoidable if the site is to be developed consistent with its zoning. The applicant has proposed an offset for this loss.

41 The offset comprises four components recommended by DECC. The experts have agreed to a method that would meet the first component of the offset, namely the amount of $10,000 to be utilised for bush regeneration in an area of BGHF in public ownership. With the offset Dr Smith considers that the impact of BGHF is acceptable. However, council will not enter into a VPA for the offset and submits that the application should be refused without the offset. 42 We do not accept this submission. Whist it is a preferable environmental outcome if all the components of the offset are implemented, we do not accept that the application should fail because part of the offset offered by the applicant cannot be implemented.

43 In submissions, the applicant contended that the court had the power to impose a VPA on the applicant and the council (Sanctuary Investments Pty Ltd & Ors v Baulkham Hills Shire Council [2006] NSWLEC 733 at [44]). However, in further written submissions, both applicant and respondent noted that while the Court has power pursuant to s 39 (2) of the Land and Environment Court Act 1979 and s 93I(3) of the EPA Act requiring a planning agreement to be entered into by the applicant as a condition of a development consent, it does not mean that the Court has the power to require a planning authority i.e. the council to enter into such a planning agreement.

44 Therefore we propose a condition of consent that requires the applicant to provide an offset prior to the issue of the occupation certificate, for the loss of 194.4sqm of BGHF at the ratio of 1:5 which equates to 100 hours of bush regeneration of BGHF on public land, either within Ku-ring-gai Council, Hornsby Council or owned/managed by DECC.

45 We note that as of 1 December 2008 the applicant had contacted DECC and Hornsby Shire Council offering an offset but to date had not received a response. However, we consider that the imposition of the condition to be reasonable as it will provide a longer time frame for the offset to be arranged, either by the council preparing an offset policy or acceptance by another government authority.

46 While it is preferable that all four aspects of the offset be implemented we note that this is beyond the control of the applicant and accept that in the event that the offset cannot be achieved, due to the limitations or constraints of other organisations, that the development can proceed. The proposed condition would therefore be satisfied either by the provision of the offset or by documentation that demonstrates that the offset had been rejected by council, Hornsby Council and DECC. 47 It is apparent that there is a clear need to develop a process to deal with offsets for the loss of BGHF where land is zoned for residential use. However, in the absence of such a policy framework it is not appropriate to refuse the application.

2. The development application (1003/07) for the construction of a 2 storey house at 55 Mahratta Avenue, Wahroonga is approved subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 1, L, P, R, W and X.

      Annelise Tuor Dr Mark Taylor
      Commissioner of the Court 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.