Dazdon Pty Ltd v Ku-ring-gai Council

Environmental Planning and Assessment Act, 1979 NSW Scientific Committee Final Determination for STIF, gazetted 16th October 1998 Interpretation Act 1987 LEGISLATION CITED: Ku-ring-gai Council DCP 38 Residential Design Manual Ku-ring-gai Planning Ordnance Scheme Threatened Species Conservation Act 1995 Water Management Act, 2000

Ahmadian v Ku-ring-gai Council [2009] NSWLEC 1077 BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 Black v Ku-ring-gai Council [2008] NSWLEC 1501 BTG Planning v Blacktown City Council [2008] NSWLEC 1500 CASES CITED: Dazdon Pty Ltd v Ku-ring-gai Council [2008] NSWLEC 1271 Hastings Point Progress Association Inc v Tweed Shire Council and Anor; Hastings Point Progress Association Inc v Tweed Shire Council and Ors [2008] NSWLEC 180 Murlan Consulting Pty Limited v Ku-ring-gai Council and John Williams Neighbourhood Group Inc [2007] NSWLEC 374 Murlan Consulting Pty Ltd v Ku-ring-gai Council and Anor [2007] NSWLEC 704 Silva v Ku-ring-gai Council [2009] NSWLEC 1060 Zhang v Canterbury City Council [2001] NSWCA 167

TEXTS CITED: Kahn, A. E. 1966. The tyranny of small decisions: Market failures, imperfections, and the limits of economics. Kyklos 19(1), 23-47

APPLICANT Mr G. Mckee, Solicitor Mckees Legal Solutions LEGAL REPRESENTATIVES:

RESPONDENT Dr J. Smith, Solicitor Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11325 of 2008 Dazdon Pty Ltd v Ku-ring-gai Council 11327 of 2008

JUDGMENT 1 This appeal arose following the refusal by Ku-ring-gai Council for two development applications: i. Development application No DA0887/08 (appeal 11325 of 2008) in relation to lots 4,5,6 and 7 in DP240562, being 152-156 Killeaton Street, St Ives. This application is for a 2 lot Torrens Title sub-division and the erection of a detached 2 storey dwelling house (proposed house 1) upon proposed Lot 2. ii. Development application DA0994/08 (appeal 11327 of 2008) is for the erection of a detached 2 storey dwelling (proposed house 2) upon proposed Lot 1. The site and proposal 2 As stated in the Council's Statement of Facts and Contentions, the subject site is located on the corner of Killeaton Street and Yarrabung Road, St Ives (to the east of Mona Vale Road) and is known as Lot 4,5,6 and 7 in DP 240562 or 152 Killeaton Street, St Ives. The site comprises four vacant lots and is irregular in shape with a frontage to Killeaton Street of 70.985 m and a frontage of 12.2 m to Yarrabung Road. The total area of the subject site is 1999.8 sq m.

3 The site slopes from the northwest corner (RL 144.97 m) to the southwest corner (RL 140.11 m) with an average gradient of 9.16 %. The site contains a number of mature native and exotic trees. A large tree Syncarpia glomulifera (turpentine, known as tree 31) is located to the front of the site within the present lot 6 and in the proposed Lot 1. Along the nature strip of Killeaton Street adjacent to the subject site there are a number of mature Liquidambar trees.

4 The proposal, as discussed above is to transform the current land at 152 Killeaton Street into two lots consisting of proposed Lot 1 and Proposed Lot 2, each with a 2 storey detached dwelling. Proposed Lot 1 5 This lot is to be located at the corner of Killeaton Street and Yarrabung Road. It has an irregular shape with a frontage of 44.9 m to Killeaton Street and a frontage of 12.2 m to Yarrabung Road. The total proposed lot size is 929.20 sq m and includes a significant turpentine tree (tree 31). Proposed Lot 2 6 This lot is proposed to have a 26 m frontage to Killeaton Street, and will be adjacent to 158 Killeaton Street. It will have an area of 1070.7 sq m and will be irregular in shape. In its southeastern corner a Council drainage pipe is located adjacent to its eastern boundary, for which exists an easement. The proposal does not encroach on that easement.

7 The effect of both proposals are that 32 trees will be removed from the site, of which only one is stated as being significant, tree 31. Tree 31, a turpentine, is deemed by the Council to be of a high (rating 3) retention value, in very good health and with a life expectancy of more than 40 years. This tree forms the primary issue of contention between the parties. 8 The Council contend that not only is the tree significant in terms of its visual character and amenity for the area, but that it also forms a remnant component of the locally indigenous Sydney Turpentine-Ironbark Forest (STIF) Endangered Ecological Community (EEC).

9 The Council maintain that the tree and its associated native understorey represent a local occurrence of the STIF EEC and that because the proposal (DA0994/08) will result in its removal, then a Species Impact Statement is required. Tree 31 constrains the development potential at proposed Lot 1 since its retention would mean the application for the proposed dwelling would not be possible. Legislation and Planning Instruments 10 The Council listed a variety of statutory controls in its Statement of Facts and Contentions but in reality it relied upon the controls in DCP 38 Residential Design Manual (DCP). The following clauses are particularly relevant: o 2.4 - Variations to Standards, item b o 3 - Site Planning and Environmental Constraints o 3.1 - Environmental Constraints items a), f), h) o 3.1.1 - Tree Preservation o 3.13 - Biodiversity o 4 - Design Elements o 4.1.3 - Building Setbacks o 4.2.1 - Floor Space Ratio (FSR) o 4.3.4 - Landscape Character o 4.3.5 - Tree Preservation o 4.3.9 - Biodiversity The Ku-ring-gai Planning Ordnance Scheme ( KPSO ) is also relevant, in particular clauses: o 58B (3) (C) - Subdivision requirements for dwelling-house lots o Schedule 9 - Aims and Objectives for Residential Zones clauses 1(a); 1(b); 2(c)

11 The Threatened Species Conservation Act 1995 (TSC Act) NSW is also of relevance since it was argued by the Council that the significant tree 31 and its understorey should be classified as part of the STIF EEC. In addition, the NSW Scientific Committee Final Determination for STIF (the Determination), gazetted 16th October 1998, which lists the community as per Part 2 of the TSC Act is also relevant.

The Evidence 12 The experts in the case were Dr Smith (ecologist) for the Council, Mr Skelton (ecologist) for the Applicant and the town planners Mr Sanders (Council) and Mr Minto (Applicant).

13 During the site inspection on April 15th 2009 I was taken to views of the site including that of tree 31, and was also shown or viewed other patches of native bushland including locations where turpentines existed as well as agreed patches of STIF. It is apparent that the broader locality contains patches of different communities including Blue Gum High Forest (BGHF), Ridge Top Woodland and STIF as well as single and or small stands of turpentine trees. Exhibit B was an annotated map of the native vegetation of the Cumberland Plain around the subject site produced by National Parks and Wildlife Service. Mr Skelton added further detail to this map to show turpentine trees and STIF close to the subject site. This Exhibit indicated that the nearest other turpentine trees are ~120 m distant from the subject site. Sydney Turpentine-Ironbark Forest (STIF) Endangered Ecological Community (EEC) 14 The primary difference between the ecologists was whether or not tree 31 and its extant understorey species found at the subject site constituted a STIF community (albeit an agreed degraded community).

15 On the question of whether the subject site contains a STIF EEC, Mr Skelton contended that the collection of species, its lack of ecosystem functioning including native plants, animals and bacteria and fungi along with its small size, extensive history of site disturbance would render it to not be considered a functioning ecological community Exhibit (3, p. 8).

16 It was also contended by the Applicant that there were insufficient species present at the site for it to be considered an EEC. In presenting this argument, the Applicant referred specifically to items 3,6, and 7 of the NSW Scientific Committee's Final Determination for STIF.

17 Mr Skelton also contended that there is insufficient species to determine which ecological community originally occurred at the site. However, he notes in the joint statement that turpentines occur in BGHF, STIF and the Sydney Ridge-top Woodland, which not an EEC. All three of these communities occur close to the site, which may suggest that the area is a transition zone between the different vegetation communities. This in itself is an important factor since transition communities are localised spatially and are likely to develop their own distinct ecological characteristics. The parties did not consider this possible ecological aspect of the vegetation.

18 Dr Smith for the Council agreed that the subject site does not contain a full native ecological community and that it is not a full example of the STIF community. He argued that the native composition and extent of the community is not the issue, but that it is the importance of tree 31, the Syncarpia glomulifera as a remnant tree of the STIFF EEC.

19 The significance of remnant trees was, in Dr Smith's evidence (Exhibit 3, p. 13) highlighted by reference to paragraphs 3 and 7 of STIF Determination. These state: 3. The structure of the community was originally forest, but may now exist as woodland or as remnant trees. 7. In many of these LGAs particularly in the inner western suburbs, only remnant trees may remain. These may have particular ecological and genetic significance and may be important sources of propagation material for use in rehabilitation projects. 20 A significant amount of discussion was devoted to the Determination's use of the term "remnant trees". The applicant contended that "trees" referred to plural (e.g. paragraph 3 of the Determination), and that there needed to be multiple trees for a community to be present. However, the Council in response contended that single remnant trees were also important in the minds of the NSW Scientific Committee and that they also form part of the listing.

21 In order to resolve the question of whether the Determination refers exclusively to trees in the plural or is intended to be an inclusive statement (i.e. including singular trees), I referred the parties to the Interpretation Act 1987 (NSW), s 8 Gender and Number. This states the following: In any Act or instrument: (a) a word or expression that indicates one or more particular genders shall be taken to indicate every other gender, (b) a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form, (c) a reference to a word or expression in the plural form includes a reference to the word or expression in the singular form, (d) a reference to a person does not exclude a reference to a corporation merely because elsewhere in the Act or instrument there is particular reference to a corporation (in whatever terms expressed), and (e) a reference to a person does not exclude a reference to an individual merely because elsewhere in the Act or instrument there is particular reference to an individual (in whatever terms expressed). 22 It is clear that s 8 (c) means that reference to the plural in the Determination must also include the singular. Consequently, any argument that a single species is not consistent with the Determination cannot be applied, particularly so in this context where there are additional understorey species characteristic of STIF. It is also worth noting that in the determination for BGHF and its listing as a critically endangered ecological community, there is specific reference (at point 3) that species may occur in only one or two sites or in low abundance. Thus there is a consistency of approach from the NSW Scientific Committee in that it is not the size of the patch nor its number, but its existence that is significant.

23 I note that although the Applicant has undertaken a 7 part test as per s 5A(2) of the Environmental Planning and Assessment Act, 1979, it has not undertaken a Species Impact Statement as per s 110 of the TSC Act because they contend that the site does not contain STIF.

24 Dr Smith in contrast states in his expert report (Exhibit 2, p.6) the following: The proposed development will involve the removal of one large, old, healthy, multi (9) stemmed Syncarpia glomulifera (turpentine) tree (tree 31), and other locally indigenous plant species of the Sydney Turpentine-Ironbark Forest Endangered Ecological Community. Under the NSW Scientific Committee's definition of Sydney Turpentine-Ironbark Forest, the Syncarpia glomulifera and associated native understorey species represent a local occurrence of this endangered ecological community, albeit a small one. Technically, since the proposed development will result in the loss of a local occurrence of Sydney Turpentine-Ironbark Forest, a Species Impact Statement is required. None has been provided. The removal of the Syncarpia glomulifera and associated species will result in the loss of a small local occurrence of Sydney Turpentine-Ironbark Forest and impact upon its ability to contribute to local biodiversity as a result of the following: * Sydney Turpentine-Ironbark Forest has been extensively cleared from land in the vicinity of the Site, increasing the conservation significance of even individual remnant trees. * Individual remnant trees may have particular ecological and genetic significance and may be important sources of propagation material for use in rehabilitation projects. * Individual remnant trees contribute to the genetic diversity of the community * With respect to maintaining connections between fragmented remnants of the community, a few remnant trees can provide a critical link allowing cross-pollination and genetic transfer to occur between remnants, thus helping to maintain the long-term viability of the larger remnants. 25 In oral evidence, Dr Smith stated that it was his view that a requirement for a Species Impact Statement where a proposal resulted in the loss of a single tree with a reduced understorey component would be excessive.

26 I note that Mr Skelton did not agree that the impact arising from the proposal would be such that the local occurrence of STIF would be placed at risk of extinction. He also contended that the impact would be minor since it was his opinion that the site does not contain STIF and therefore the tree is not ecologically significant. Mr Skelton argued that the genetic distinctiveness of the tree compared to neighbouring turpentine trees would be miniscule given the likely interbreeding over time. However, there was no evidence put forward by either party in respect of genetic distinctiveness. In the matter of Ahmadian v Ku-ring-gai Council [2009] NSWLEC 1077 at para [65] similar issues arose with respect to ecological data and evidence: ….To collect data on ecological processes would be expensive and time consuming. In most circumstances, and certainly for this site, it would be an unreasonable expectation that applicants should provide site specific data on ecological processes. However, the presence of juveniles of characteristic STIF species, which was observed on the view, indicates that some important ecological processes are still occurring and that this stand of STIF potentially retains viability. 27 It is clear that the site might well contain STIF EEC and that it might contribute to the broader (spatial and temporal) and more effective long-term protection of STIF through gene flow, but there is a paucity of evidence in this case. Given the listing of the STIF as an EEC there is no reason why the application of precautionary principle in this case should not apply. This would appropriate given the evidence indicating the existence of an EEC that may also possess unique and vulnerable genetic characteristics. Tree 31 and its contribution to visual character and amenity 28 Dr Smith contended that there were additional reasons to retain tree 31. Aside from his contention that tree formed part of an EEC, he stated the following (Exhibit 2): The Syncarpia glomulifera tree also has landscape value as an old healthy tree representative of the original vegetation of the area, with a large, live crown and an unusual multi-stemmed habit. It makes a significant contribution to the visual character and amenity of the area. 29 In contrast, Mr Skelton disagreed with the contention that the tree makes a significant contribution to the area. He stated in the expert's joint report (Exhibit 3, p. 23): There are large trees screening (that are to be retained) tree 31 from the roads on 2 sides preventing the tree from being viewed from the adjacent streets and local properties. 30 In addressing the contention of whether tree 31 makes a significant contribution to the visual character and amenity of the area the town planners provided relevant commentary in their joint report (Exhibit 4).

31 Mr Sanders agreed with the proposition that tree 31 makes a significant contribution to the visual character and amenity of the locality and also the subject land. In contrast, Mr Minto disagreed and formed the view that the tree is not of such significance when balanced against other considerations of DCP 38. However, he agrees that it is an attractive and healthy specimen. Mr Minto noted in their joint statement that in his opinion the tree is not a dominant feature of the locality and that the Liquidambar trees at the adjoining street edge mitigates its contribution to the streetscape.

32 It is clear that there are two issues arising from the evidence: (1) does the the tree and its understorey constitute part of a STIF EEC and if the answer is yes, then there is a need for the Applicant to provide a Species Impact Statement, which it has not done on the premise that they contend the vegetation is not STIF. (2) Notwithstanding the outcome of (1), does tree 31 make a significant contribution to the visual character and amenity of the area?

33 I do not propose to make a determination in regards to whether tree 31 and its understorey represents an EEC or no. It is apparent that the question of the significance of tree 31 in terms of its visual character and amenity is also a threshold issue in this matter. However, it is pertinent to make the following remarks in relation to tree 31 and its understorey.

34 The evidence indicates that there is a strong likelihood that tree 31 and its understorey formed part of a much more extensive STIF community in the locality. It is also self-evident from the fact that STIF is listed as an EEC that further attrition and removal of any of its extant remnants will contribute to the identified threats in the Determination and ultimately to its diminution. The Determination identifies clearing, mowing, and weed invasion as being threats to STIF and this application proposes to remove what may be a remnant stand of a once more complete and extensive example of STIF. In exhibit (3), Table 2 shows that the whole subject site contained some 19 % of the species listed in the incomplete list of characteristic species for STIF as presented in the NSW determination. The number of STIF understorey species under tree 31 was an agreed 10 %. It is however, sufficient to say that absence of evidence should not be taken to be evidence of absence and it is not surprising that the number of species is severely reduced given the history of disturbance at the site. The survival of species despite mowing of the area is testimony to their resilience and an indication that seed banks are highly likely to remain within the soil profile at the site. The potential for sites to recover using seeds banks held in soils is noted at point 2 of the STIF Determination. 35 The collection of species at the site suggests that the vegetation is more like STIF than either of the other two locally occurring communities of BGHF or Sydney Ridge-top Woodland. Thus, the requisite actions of the development application would fragment further what remains of STIF in the area and could contribute to reducing its potential robustness, presence and existence in the locality.

36 In relation to the impacts arising from the development within or adjacent to the EEC I make the following comments.

37 The processes contributing to urban biodiversity loss (including the loss of communities such as STIF and BGHF) often take place at the local or lot scale level. As a result, it is difficult for consent authorities to assess properly and account for the broader and cumulative impact arising from individual and small-scale development applications.

38 Cumulative impact was considered by Pain J in Hastings Point Progress Association Inc v Tweed Shire Council and Anor; Hastings Point Progress Association Inc v Tweed Shire Council and Ors [2008] NSWLEC 180 who stated at para [77]: Clause 8(1)(c) [of the Tweed Local Environmental Plan 2000] requires the Council to be satisfied the development would not have an unacceptable cumulative impact on the community and locality, inter alia. The word "cumulative" anticipates a consideration of not just the development the subject of the application, but the development in combination with other development in the locality and the effect that the accumulation of such development and successive development of a similar type, will have on the community or locality. Thus it imports concepts of precedent as well as consideration of the effect of past approvals and developments.

39 Where cumulative impact is not considered properly, there arises a risk of 'myopia' in that the piecemeal nature of individual development assessment decisions preclude proper consideration of cumulative impact by consent authorities, giving rise to "a death by a thousand cuts" (see para [85] in Murlan Consulting Pty Limited v Ku-ring-gai Council and John Williams Neighbourhood Group Inc [2007] NSWLEC 374) at para [21].

40 While the use of the phrase "a death by a thousand cuts" was argued to be an emotive concept (see para [21] in Murlan Consulting Pty Ltd v Ku-ring-gai Council and Anor [2007] NSWLEC 704) it does have meaning in an ecological sense. The phrase describes properly how ecological communities are gradually eroded to the extent that they reach a tipping point requiring, for example, listing as being endangered and that they face a very high risk of extinction in the near future or worse, they actually do become extinct. Consequently, there is a need to avoid the environmental equivalent of Kahn's (1966) "tyranny of small decisions", whereby the accumulation of incremental habitat losses and deterioration in urban landscapes result in an inevitable and irreversible biodiversity loss.

41 In this appeal, the evidence indicates that the vegetation at the subject site is more than likely to be a degraded remnant of STIF and that the proposal to remove the tree and its understorey species triggers s 5A of the Environmental Planning and Assessment Act, 1979, requiring a Species Impact Statement (SIS). I note Dr Smith's comments questioning the need for an SIS for this isolated, small patch of remnant EEC (as he described it). Nevertheless, it is clear that the availability of such an assessment before the Court would enable a proper consideration of cumulative impact. In circumstances akin to these that have arisen in this matter, a lack of appropriate information can precipitate decisions that result in the gradual loss of endangered communities and species. In order to make informed decisions on such matters, it is advantageous to be able to consider properly the cumulative impact of such developments within a broader temporal and spatial framework, hence the requirement for an SIS. 42 It is apparent that appeals involving endangered ecological communities, large native trees as well as large mature non-indigenous trees require a framework for considering the issues.

43 Large mature trees (including exotic species in certain circumstances) add to the visual amenity and aesthetics of an area and usually provide additional, contributing and cumulative free ecosystem services including habitat, pollination, shading and on going absorption of various atmospheric and ground water pollutants. The non-removal and enhancement of extant single and isolated trees and associated understorey species is an essential process in the protection and maintenance of genetic variety, habitat and biodiversity. This is of particular significance in urban landscapes where vegetation as a whole has been denuded greatly.

44 Therefore, the expectation ought to be that remnant, isolated and small stands of trees, particularly those that are components of endangered ecological communities or are comprised of indigenous vegetation must be protected in order to counter the ongoing fragmentation and denudation. Alternative options for the sub-division 45 Alternative proposals for the subject site that would enable some form of dwelling on Lot 1 while respecting the environmental constraints of the site were discussed. The parties referred to a previous consent (DA714/04) that was commonly known as the 'RTA approval'. This former approval was also considered in Commissioner Tuor's decision in Dazdon Pty Ltd v Ku-ring-gai Council [2008] NSWLEC 1271, as was the constraint of tree 31 in the proposed sub-division in that appeal: 28. I accept Mr Kondilios' submission, for the applicant, that this does not require development to be the same as other development but that it should "fit in". The two lot subdivision (DA 786/04) and construction of two houses (DA 714/04) demonstrate that subdivision and development on the site can occur which "fits in" with the character of the area. While house 1 in DA714/04 is a similar distance from the southern boundary as the proposal it provides a considerable area of open space on the corner of the site to enable the retention of the turpentine tree. I note that the planning of house 1 is orientated towards the open space on the corner with the family room and terrace opening onto this area. As such, this is an appropriate response to the constraint of retaining the turpentine tree and its corner location. 29. The current proposal removes the turpentine tree, which is agreed by the parties to be significant. While this may be acceptable on a site that is of a size consistent with the character of the area, it is not acceptable on a site significantly smaller than other sites, particularly as it has been demonstrated that a reasonable development can occur on a site more characteristic of the area. 46 In the broader scheme of balancing development with conservation McClellen CJ made the following relevant comments in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 (12 August 2004): 113. In my opinion, by requiring a consent authority (including the Court) to have regard to the public interest, s 79(C)(e) of the EP&A Act obliges the decision-maker to have regard to the principles of ecologically sustainable development in cases where issues relevant to those principles arise. This will have the consequence that, amongst other matters, consideration must be given to matters of inter-generational equity, conservation of biological diversity and ecological integrity. Furthermore, where there is a lack of scientific certainty, the precautionary principle must be utilised. As Stein J said in Leatch [ Leatch v National Parks and Wildlife Service and Anor (1993) 81 LGERA 270], this will mean that the decision-maker must approach the matter with caution but will also require the decision-maker to avoid, where practicable, serious or irreversible damage to the environment. 114. Consideration of these principles does not preclude a decision to approve an application in any cases where the overall benefits of the project outweigh the likely environmental harm. However, care needs to be taken to determine whether appropriate and adequate measures have been incorporated into such a project to confine any likely harm to the environment." and: 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. 47 In the joint statement of evidence it is clear that after balancing tree 31 against the requirements of DCP 38, Mr Minto favours the removal of the tree. In contrast, Mr Sanders argues that the land can be developed around the constraints and referred the Court to the RTA Approval design that was approved by the Council in 2005.

48 In recognising the constraints imposed on the potential development of Lot 1, Mr Sanders proffered an alternative development design to the Court (Exhibit 5). This was a variation on the RTA Approval that enabled a slightly larger house footprint compared (180 m2 versus 157 m2). This proposal involved moving the proposed line of sub-division 4 m to the east. This would have the effect of needing to redesign the dwelling on proposed Lot 2.

49 In addition, during the proceedings, the Council attempted to press a condition of consent in regards to the drainage of the property via the pipe and drain in the south-eastern corner of the subject site. This issue will be dealt with below. Findings 50 It is clear that there is a high likelihood that there is a STIF EEC present on the subject site. However, as noted above, I will not make a specific determination on this question but I note that its existence has been argued for by Dr Smith and also in the Teresa James (2008) report (Exhibit 1, tab 2). Both these experts argued that the species at the site was indicative of a STIF community and both recommend altering the proposed subdivision layout so that the turpentine tree and its understorey were retained and managed accordingly. The RTA Approval that was consented to by the Council in 2005 provides for the subdivision of the area into two lots and for the retention of the tree.

51 The question is, can the land be developed so that the tree is retained with the majority of the Council's DCP controls being met such that a reasonable sized dwelling be achieved? In considering this option, I note that variations to the standards expressed in the DCP (2.4 b) are permissible, and it is of specific relevance to this case that the DCP makes reference to variations involving trees (2.4 b): Standards specified in this DCP may in some circumstances be considered inappropriate for various reasons. In such cases written reasons for a departure from the DCP standard should be submitted. eg. It might be submitted that the variation of a building line is warranted to permit retention of a tree behind a new dwelling.

52 The DCP at 4.1.3. - Building Setbacks, also provides various related criteria including maintaining street character and the protection of significant vegetation. In Commissioner Tuor's judgement in Dazdon Pty Ltd v Ku-ring-gai Council [2008] NSWLEC 1271 it was found that the tree 31 was a significant tree as it was in this appeal by Dr Smith and Mr Sanders.

53 In BTG Planning v Blacktown City Council [2008] NSWLEC 1500 the Senior Commissioner Roseth (now retired) and Commissioner Taylor made the following relevant remarks at para [49] regarding consistency of decision-making: A decision by this Court only a little more than a year ago implied that, with the deletion of three allotments, the shrinking of a fourth and the provision of better compensatory measures, the proposal could go ahead. The applicant has complied with those suggestions. We accept that we have no obligation to be in comity with the earlier judgment. However, we believe that there is public interest in consistency of Court decisions. 54 Similarly, there is no obligation for me to be in agreement with Commissioner Tuor's decision in Dazdon Pty Ltd v Ku-ring-gai Council [2008] NSWLEC 1271 of less than 12 months ago. However, there is ample evidence before me that the tree is more likely than not a remnant of an EEC. Further, and arguably more pertinently, it is clear that the tree is an important component in the local landscape, which is one that is scattered with numerous native trees and some exotics providing the well-established treed characteristics of Ku-ring-gai. There is insufficient reasons for me to deviate from Commissioner Tuor's findings that the tree is significant and deserves protection.

55 With respect to lots that possess constraints, the DCP at 4.2.1 anticipates that the maximum FSR permissible may not always be achievable. In this regard, Mr McKee in submissions for the Applicant also noted that the RTA Approval for sub-division arose due to the significance of the tree (tree 31).

56 The DCP at 4.3.4 Landscape Character also anticipates the protection of existing trees: Landscape proposals should be integrated with existing trees. Trees will be valued and conserved as an integral feature of the area and their dominate [sic] role in the landscape will be protected and enhanced.

57 I acknowledge that in making my decision, I am obliged to have regard to the relevant objectives as set out in the Council's DCP as per the decision in Zhang v Canterbury City Council [2001] NSWCA 167 (June 14, 2001). This decision found that the provisions of the DCP are to be considered as a "fundamental element" or a "focal point" of the decision making process. The provisions of the DCP that are directly pertinent to the application are entitled to significant weight in my decision-making process but are not necessarily in themselves absolutely determinative.

58 If the proposal does not meet all of the DCPs requirements, I may still grant consent after a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79C of the Environmental Planning and Assessment Act, 1979, if there are reasons to render it acceptable.

59 It is clear that the DCP has numerous provisions that provide for the protection of tree 31. There is also substantial evidence that the tree (plus its understorey) is significant and provides appropriate character and visual amenity to an area that contains several indigenous vegetation communities. On the basis of the evidence it is clear that while the Applicant has a reasonable expectation that the land can be used for the purpose for which it was zoned (BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399, para [118]), there is a significant and widely acknowledged constraint on the subject site. This constraint limits the potential of the site (cf. BGP, para [119]).

60 While it is clear that the land can be used for the purpose for which it was zoned, any future development will need to take into account the extant vegetation. A similar situation arose in Black v Ku-ring-gai Council [2008] NSWLEC 1501. Here the Applicant modified their proposal and reduced significantly its impact on the site's BGHF. The final proposal occupied ~30 % of the site area, significantly less than the maximum built upon area for the site of 56 %. In this case the Council also agreed to relax their DCP controls on setbacks in order to minimise the impact of the proposal on the site's vegetation.

61 Similarly, in this application it is not necessary for tree 31 to be removed in order for the land to accommodate a reasonable sized residential dwelling. A reduction in the built area akin to what was achieved in Black v Ku-ring-gai Council [2008] NSWLEC 1501 is an entirely feasible, reasonable and appropriate response to the constraints on the land. For these reasons the current proposal for a dwelling on Lot 1 must fail. The subdivision proposal 62 There is no reason why in principle the request for subdivision of the subject site cannot go ahead. Indeed, the Council does not oppose it if tree 31 and its associated understorey is protected. However, the Council stated they would prefer the subdivision line between the two lots to be moved toward the east by 4 m. The Applicant said they would agree to 2 m. Moving the subdivision line towards the east will enable a larger lot area in proposed Lot 1, which as noted by Mr Sanders would have the effect of allowing additional space for a dwelling bearing in mind the lot's constraint (tree 31). In effect, moving the subdivision line allows for a sharing of the impact of the constraint between the two proposed lots.

63 Moving the subdivision line 4 m to the east would result in the setbacks of the proposed dwelling on Lot 2 being too small requiring a redesign of the dwelling. I do not see that is necessary. On my assessment of the plans, it is possible to move the subdivision boundary 2 m to the east without the necessity of major building redesign.

64 To ensure that adequate setbacks are maintained associated with a movement of the subdivision boundary 2 m to the east, dwelling 1 on proposed Lot 2 will need to have minor modifications and for it to be moved to the east. This can be achieved by removing the ~1 m protrusions of the living and rumpus rooms on their eastern edge and moving the whole dwelling ~ 1m to the east. This would have the effect of creating a 2.6 m setback along the dwelling's western boundary while retaining the proposed setback to the drainage easement. This outcome will mean the side setbacks will comply with the DCP control 4.1.3 - Building Setbacks, which requires a 2.0 m or a 12 % of the site width for sites > 20 m wide with a 2 storey dwelling. Drainage 65 During the proceedings the Council wished to press a condition of consent that the Applicant be required to obtain an easement to drain water from their property over three downstream properties via the existing pipe network at the south-eastern corner of the dwelling. I am not minded to permit that condition for three reasons:

66 Firstly, the Applicant did not had sufficient notice nor time to prepare a proper and adequate response to the Council's proposed condition.

67 Secondly, there is a clear difficulty of granting legal rights over downstream properties when two of these properties also appear to have no legal right to drain over the adjoining downstream properties. The imposition of such a condition of consent is tantamount to constructive refusal since it is unlikely that the adjoining properties will give access rights for drainage.

68 Thirdly, if I am wrong on either or both of the above points, the following also applies. The depression in the south-eastern corner of the property that drains into the Council's pipe via a grate on proposed Lot 2, appears to be a natural feature, a drainage depression, that would channel flow during heavy rainfall events. This depression feeds into Middle Cove and Sydney Harbour via a network of natural watercourses. This indicates that the now piped section immediately downstream of the subject site was once part of a natural system that has since been modified artificially. The parties did not contend this observation.

69 It is also relevant to consider the definition of rivers and their tributaries in this issue. The definition of a 'river' was considered in some detail in Silva v Ku-ring-gai Council [2009] NSWLEC 1060 where Taylor C made the following relevant remarks: 17. The WMA ( Water Management Act, 2000 , NSW) under Dictionary defines 'rivers' and also states what other connecting systems should be included in any such definition: river includes: (a) any watercourse, whether perennial or intermittent and whether comprising a natural channel or a natural channel artificially improved, and (b) any tributary, branch or other watercourse into or from which a watercourse referred to in paragraph (a) flows, and 18 The relevance of (b) is that it includes any other watercourse (of an unspecified nature or origin) that flows into anything that can be described as a river in (a). 70 Thus, given that the natural system has at some unknown point in time been replaced by a piped network and that in its natural state would likely be defined as a river as per the WMA, I do not see it necessary for the applicant to obtain permission to discharge water via a natural system, "artificially improved". Since no permit is required by landholders to drain water from their property via natural drainage systems, the replacement of a natural system with a piped structure does not affect that right. Conclusion 71 The appeal no. 1135 of 2008 for a dwelling on proposed Lot 1 is refused. The appeal no. 11327 of 2008 for subdivision of the land into two parcels and the building of a dwelling on proposed Lot 2 is upheld. However, the proposal associated with appeal no. 11327 of 2008 will require some minor amendments to the plan. These will include moving the subdivision line to the east by 2 m; moving the footprint of the dwelling to east by 1 m; the removal of the ~1 m protrusions on the proposed dwelling's dining and rumpus rooms to facilitate relocation of the building and adequate setbacks. Orders 1. The appeal no. 11325 for the erection of a detached 2 storey dwelling (proposed house 2) upon proposed Lot 1 is determined by refusal. 2. In regards to appeal no. 11327 of 2008, if the applicant provides amended plans as per para [62-64] and the parties provide agreed conditions of consent, then approval for a 2 lot torrens title subdivision and the erection of a detached 2 storey dwelling house (proposed house 1) upon proposed Lot 2 in relation to lots 4,5,6 and 7 in DP240562, 152-156 Killeaton Street, St Ives will be given. 3. In order to approve DA0887/08 the Applicant is to provide the amended plans and the Council to provide agreed conditions of consent within 5 working days of this decision being handed down. (May 25, 2009) 4. The exhibits are to be returned except the final amended plans and conditions of consent.

Dr M.P. Taylor Commissioner of the Court ljr

01/06/2009 - Typographical error in name - Paragraph(s) throughout document

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