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[2011] NSWLEC 1220
Land and Environment Court (NSW)
2011-05-23
Original judgment source is linked above.
Mr A Seton (Respondent) Marsdens Law Group File Number(s): 10079 of 2011
Judgment 1This is an appeal pursuant to s 97(1)(b) of the Environmental Planning & Assessment Act 1979 (the Act) against the refusal by Blue Mountains City Council (the council) of Development Application No. S/56/2008 for a 10 lot subdivision of Lot 27 DP 212973 112 Cleopatra Street, Blackheath (the site). 2The contentions raised by the council can be summarised as:
The site and the locality 3The site occupies an irregularly shaped central portion of the block bounded by Cleopatra, Cross and Romaine Streets and Govetts Leap Road Blackheath. The site is 1.66 ha with a street frontage of 18.9m to Cleopatra Street and a 22.5m frontage to Cross Street. The long axis of the site runs from northwest to southeast. 4A two storey dwelling with driveway access off Cleopatra Street currently exists on the site. The site is surrounded by residential development of single dwellings on generally large blocks of land with established trees. Two heritage items listed in Schedule 6 of the BLEP adjoin the site; 'Cleopatra' to the south and 'Balquhain' to the west. 5The site is dominated by mature Pinus radiata trees and a weedy understorey. There is some native vegetation in the northern corner of the site and a domestic garden adjacent to the dwelling. There are some mature deciduous and other exotic trees to the northeast of the 'Cleopatra' site. Many of the surrounding properties contain similarly large Pines and other established trees. 6The south-eastern and south-western portions of the site, including the two access points, are classified as Bushfire Buffer on councils Bushfire Prone Land map. This means that they are within 100m of Category 1 bushfire prone land in Cleopatra and Cross Streets. 7The site is generally level with an average grade towards the northeast corner of 4% and to the northwest corner of about 7%.
The proposed development 8The proposal includes the following:
Background to the appeal 10Development Application No. S/56/2008 was lodged with council on 17 September 2008. 11As it is integrated development, it was referred to the NSW Rural Fire Service (RFS) who subsequently issued a Bush Fire Safety Authority (BFSA) for the proposed subdivision. The response refers to conditions relating to asset protection zones, water and utilities, and relevantly, access. 12The application was notified in accordance with council requirements and submissions from 16 parties and an online petition were received. 13In response to issues raised by council officers and in public submissions, the applicant submitted an amended application and additional information including a supplementary heritage assessment, a SEPP 1 objection on road width, an arborist's report regarding tree removal and the likely impacts on trees on surrounding properties, and responses to public submissions. The responses included changes to setbacks of some building envelopes; provision of a 1.8m timber perimeter fence; and, subject to the owner's approval, an offer to remove trees on adjoining land identified as being at risk. The amended application was renotified and 15 submissions were received. 14Because of an association between the applicant and BMCC, Penrith City Council conducted a peer review of the procedures followed by the council in assessing the development application; the report is dated 17 June 2010. The peer review included a review of the draft report prepared by council staff for the council meeting of 29 June 2010. Apart from specific issues relating to conditions, the review found the BMCC reports assessing the matters for consideration under s 79C to be well reasoned and the conclusions justified. The review found that the assessment, report and recommendations to be appropriate given the complexity of the issues and that preferential treatment in favour of the applicant was not found. The peer review agreed with the council staff recommendation for approval of the development application subject to conditions. 15The report prepared for the council meeting of 29 June 2010 recommended granting deferred commencement consent subject to conditions. The council at that meeting agreed to defer the matter pending clarification from the RFS regarding access to and from the site via cul-de-sacs, an independent arborist report, and the number of trees to be removed. 16Council engaged an independent arborist to review wind speed and tree removal issues. Council received the advice from the RFS. The applicant responded to the independent arborist report and agreed with most of the recommendations. The independent arborist's report and the applicant's response were provided to affected neighbours who were invited to comment. Written comments were received from the owners of 11 adjoining properties. 17As a result, another amended plan of subdivision was lodged in response to the independent report. The layouts of several lots were reconfigured, some building envelopes were altered and increased buffer zones were indicated. 18A SEPP 1 objection relating to the proposed cul-de-sacs was submitted. 19Council officers prepared another report for the council meeting of 14 December 2010 which addressed the issues raised at the meeting on 29 June. The report recommends the granting of deferred commencement consent subject to conditions. [I note that there is no reference in the council report regarding the SEPP 1 objection regarding the cul-de-sacs however the report concludes that whilst there is non-compliance, based on information from the RFS the cul-de-sacs are satisfactory and are conditioned accordingly.] 20On 14 December 2010 council refused consent. Council's contentions reflecting the reasons for refusal are summarised in [2].
Relevant planning controls 21The site is zoned 'Living - Conservation Zone' in the Blue Mountains Local Environmental Plan 2005 (BMLEP). Clause 9 requires a consent authority to be satisfied, amongst other things, that the development is consistent with the aims of the plan (cl 9(a)), complies with the principal objectives of the plan (cl 9(b)), complies with the locality management provisions in Part 2 (cl 9(c)), complies with assessment provisions in Part 3 (cl 9(d)) and complies with development provisions in Part 4 (cl 9(e)). Clause 15(2) states that consent shall not be granted to development unless it complies with the zone objectives. 22The relevant zone objectives are given in cl 23: The objectives for the Living - Conservation zone are as follows: (a) To retain and enhance the character of residential areas that are formed by larger allotments and single dwelling houses within a prominent traditional garden setting. (c) To ensure development, including development with adjoining road reserves, retains the prominence of landscape elements and traditional garden settings. (d) To ensure that established gardens are retained or landscape settings are re-established as part of any development of land, including development involving major alterations or additions. 23Division 4 Heritage Conservation cl 68(d) states that consent shall not be granted to development within the curtilage of a heritage item or archaeological site unless the consent authority is satisfied that the development complies with the relevant heritage conservation objectives and provisions within this division. Relevant to the matter is heritage conservation objective cl 69(b) that refers (in part) to the conservation of the heritage significance of the settings and views associated with heritage items. 24Clause 76 relates to development in the curtilage of a heritage item. 76(2) Consent shall not be granted to development in the curtilage of a heritage item...unless the consent authority has considered a heritage impact statement, where, in the opinion of the consent authority, that development could adversely impact on the heritage significance or visual setting of that item or area. 25Division 5 BMLEP concerns bush fire protection. Clause 84 relates to 'Access to bush fire prone land'. Clause 84(1) states: (1) The consent authority shall not consent to development on bush fire prone land involving the construction of new roads or development for a special fire protection purpose, unless it is satisfied that adequate provision is made for public and private road access in accordance with this clause. 26Of relevance to the proposal and council's contentions is cl 84(3) which states: (3) New public roads constructed in conjunction with the subdivision of bush-fire prone land, not including perimeter roads or perimeter fire trails, are to be: (a) at least 8 metres wide with shoulders on each side, so as to allow traffic to pass in opposite directions, and (b) through roads wherever practicable, providing at least 2 access points to a main road from land that has been subdivided into lots intended for use for residential, commercial or industrial purposes, and (c) cul-de-sacs only where the construction of through roads is impracticable given the physical constraints of the land. 27Part 4 of BMLEP deals with considerations for development. The relevant clause in Division 1 - Subdivision are:
The hearing and the evidence 33The hearing commenced on site. A number of owners of adjoining properties gave evidence and their properties were visited. The site was viewed from the surrounding streets, access paths traversed, trees discussed with the arborists, and bushfire issues relating to nearby bush blocks discussed with the bushfire experts. 34The range of concerns from adjoining residents include:
Submissions The applicant's position 52Mr O'Gorman-Hughes for the applicant contends that the application before the Court was ultimately recommended for approval by council officers following a lengthy period of assessment, consultation with neighbours and the retention of an independent arborist. The main contentions remain the cul-de-sacs rather than a through road and the loss of trees from the site and the subsequent impacts on trees on adjoining properties as the zone objectives. 53With respect to the access issues and the SEPP 1 objection lodged in regard to clause 84(3) of BMLEP Mr O'Gorman-Hughes submits that the cul-de-sacs: meet the minimum requirements specified in PBP 2006; satisfy the RFS; meet the intent to permit safe access to and egress from bushfire prone land as they are short and link to public roads that can be travelled in two directions; provide access to only 5 lots each and therefore congestion should not be an issue; and the bushfire affected areas are only in a bushfire buffer zone and the risk of direct exposure to a fire front is low. He argues that compliance with the control would result in the loss of at least 3 lots and reduce the amenity of remaining lots for no material benefit. Thus he concludes that compliance in the circumstances would neither be reasonable and would inhibit the orderly and economic development of the land and therefore that the SEPP 1 objection is well founded. 54In regards to the removal of trees, Mr O'Gorman-Hughes contends that the zone objectives do not mandate the retention of existing vegetation but enable the re-establishment of landscape settings as part of any development. He asserts that the arborists agree that, with few exceptions, the majority of the Pinus radiata on the site have a short safe useful life expectancy and are in poor condition. He agrees that removal of trees from the site is likely to have an impact on the stability of some trees on nearby properties but this is capable of being managed. 55He contends that with the exception of one resident objector, most surrounding properties, including 'Balquhain' have large gardens in which trees are or could be planted. He submits that there is an unreasonable expectation that the trees on the site should continue to provide benefits to nearby properties at the expense of the applicant's ability to develop the site, particularly as the site is zoned to permit the construction of dwellings. 56In supporting his position that development is permissible he cites BGP Properties v Lake Macquarie City Council [2004] NSWLEC 399 at [117]-[118] where McClellan CJ said, in part, (with citations omitted): 117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor, planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects.... 118 In most cases it can be expected that the Court will approve an application to use a site for the purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. 57Mr O'Gorman-Hughes contends that whilst the council submitted that a less intensive form of residential development on the site might be acceptable, any development will necessitate the removal of most of the trees for the reasons given by the arborists. He asserts that the development will result in acceptable environmental outcomes because the proposed lot sizes are in excess of the minimum size and will enable the planting of more suitable trees. He also considers that even with a 'do nothing' approach, the trees will eventually fail and therefore a co-ordinated removal of the trees now will result in a better environmental outcome which is also cost-effective. The respondent's position 58Mr Seton for the council contends that this is a classic case of a sub-division proposed by an engineer without regard to specialist advice concerning the constraints of the site. In particular he considers that the absence of a detailed base plan showing the locations of trees that could be retained is a major flaw in the process and as a result, the proposed lot layout does not respond to that particular constraint. 59With regard to the zone objectives, he states that cl 13(1)(a) of BMLEP states that consent shall not be granted to development unless it complies with the zone objectives. He contends that it is not sufficient for a development to be merely consistent with the objectives. In support of his contention he cites Cecil D Barker & Co v Blue Mountains City Council [2001] NSWLEC 244 at [111]-[113] where Sheahan J discusses the meaning of the word 'comply'. Relevantly '" comply" requires action "in accordance with" a stated object or command'. 60In this regard he contends that the emphasis in the zone objectives for the Living - Conservation zone in which the site is located is on the maintenance and enhancement of the existing landscape setting and that the removal of so many trees will not achieve this. He considers that locality is characterised by large lots with trees and notes that the trees are not exempt under the council's Tree Preservation Order. He submits that the trees on the site make a significant contribution to the character of the locality. 61Mr Seton contends that the council is not saying that development cannot occur on this site but considers the proposal to be an over-development and that notwithstanding the fact that the proposed lots are larger than the 1200sq m minimum, there is scope for larger lots in order to retain more trees. He cites the examples of the heritage-listed properties of 'Cleopatra' and 'Balquhain' as being larger lots. He also submits that the applicant has failed to produce a landscape plan that demonstrates how the landscape character is to be enhanced. 62Mr Seton asserts that s 79C(b) requires the Court to consider, amongst other things, the likely environmental impacts of the development on the locality. He considers that the removal of trees on the site will have unacceptable impact on trees on surrounding properties. He contends it is unreasonable to impose such an impact especially as it can't be mitigated. 63With respect to the through road, he contends that both the planners and the bush fires experts consider it to be practicable on the site and therefore capable of compliance with cl 84(3)(b) of BMLEP. With regard to the SEPP 1 objection, he considers that the applicant has failed to demonstrate that compliance is unreasonable. He contends that the Cross Street entrance is opposite a significant bush fire hazard and that as there is a viable alternative on the site it should be implemented. Mr Seton's position is that in order to comply with the requirement for a through road the sub-division must be redesigned and, as it is not the role of the Court or the council to do this, the appeal before the Court must be refused.
Findings
Conditions 101During the hearing a number of conditions of consent were discussed and some changes agreed by the parties; others are to be determined by the Court. 102The parties agreed that conditions 6, 8, 12, 15, 18 and 30, in so far as they relate to trees, were to be refined by the parties' arborists. Condition 6 concerning tree removal is agreed however the 'tree removal plan' is to be incorporated into a broader 'Tree Management Plan' (TMP). Conditions 8 and 12 concerning trenching - the respondent's version of 10 m is preferred however this may be adequately addressed by detailed specifications in the TMP. It was agreed that conditions 15a and 15 could be incorporated into a condition covering the TMP. With respect to condition 30, a tree protection plan is to be included in the tree management plan. Therefore, with respect to the trees, it was agreed that the parties' arborists were to prepare a TMP for the site that includes trees to be retained, a tree removal plan, and a tree protection plan. The plan must also include a tree removal and management plan for trees on adjoining properties identified as being at risk. The wording in the conditions is to be adjusted to reflect the incorporation of a TMP. The approval of the TMP by council is to be a deferred commencement condition. 103Since the completion of the hearing, the parties' arborists have prepared joint and individual versions of a condition requiring the applicant to submit a Tree Management Plan (TMP) to council for its approval prior to the operation of development consent. In reviewing the various versions of the new condition I find that they lack the detail given in existing conditions 6, 15a and 15. Whilst there may be an assumption that the detail in the original conditions would be included in a TMP, I am not convinced there is certainty of this happening unless the original conditions (as revised for consistency) are included in the final conditions of consent. 104The production of an overall TMP was envisaged to be a comprehensive document to include tree removal operations (variously called the 'tree removal plan' in condition 6 and 'tree removal management plan' in conditions 15a and 15), a tree protection plan for all stages of the development, and an updated survey plan. Given the lack of detail in the new condition I propose that conditions 6, 15a and 15 be reinstated as originally drafted (but revised by this judgment) and the details and specific requirements in those conditions be expanded in the TMP. As the council is the normal consent authority for works on trees on private property, the TMP is to be approved by council rather than any other Principal Private Certifying Authority. Conditions 15a and 15 are to be amended accordingly. The wording in those conditions is also to refer to the TMP. 105With respect to the new condition requiring a TMP I offer the following alternative, which addresses the requirements listed by the arborists but summarises them. It also incorporates the findings in this judgment at [86]. 1A: The consent is not to operate until the applicant submits and the Council approves a Tree Management Plan prepared by a suitably qualified arborist. The Tree Management Plan is to include: (a)an updated survey showing the location of all trees on the site and any trees on adjoining properties where trees are within 10m of the site boundaries. The survey is to identify all trees for removal (including those on adjoining properties); trees to be retained on the site; and trees on adjoining properties (within 10 m of the boundary) that are to be retained but are deemed to be potentially at risk. Exhibit H is to be amended to show these details and to include the removal of the Pinus radiata in the access road from Cross Street and the Pinus radiata in the access road from Cleopatra Street; (b)a tree inspection and removal plan for the site and the trees on the properties identified in Conditions 6, 15a and 15 incorporating the details stated in those conditions. (c)a detailed tree protection plan for all trees to be retained including tree protection measures required before and during tree removal operations and site works associated with the subdivision stage . The tree protection plan is to be prepared in accordance with Australian Standard AS 4970 Protection of trees on development sites. The tree protection plan is to specify an arborist to supervise trenching or under-boring for water, sewer, electricity and telephone connections/supply and stormwater where appropriate in the vicinity of trees to be retained on the site and on adjoining properties. 106The differences between the parties' arborists concerning the follow up inspections of the trees on adjoining properties discussed in [47] are raised in their versions of the new condition. Clauses 6, 15a and 15 state that certain trees on nominated properties are to be inspected at 6 and 12 months after the tree removal operations. This reflects the opinion of Ms Mackenzie. Mr Ford did not consider post-removal inspections to be necessary. I consider that a reasonable compromise to be: one inspection of trees on adjoining properties, nominated for removal or potentially at risk, prior to removal; and one inspection of trees retained but identified as potentially at risk in the September following the removal of the trees. If the tree removal occurs during August/September of any year, the following inspection should be between 6 and 12 months after removal. Conditions 6, 15a and 15 are to be amended accordingly. 107The applicant seeks deletion of Condition 11, which concerns the construction of the battleaxe driveways and the installation of service conduits for Lots 7, 9 and 10. The basis for this condition is cl D8.11.12 - Location of Access Driveways in Part 8 - Subdivision - of the Blue Mountains Better Living DCP (BMDCP). This states: D.8.11.12 All lots should identify possible driveway locations. If there is only one possible or likely location then the driveway shall be constructed as part of the subdivision works. 108The plan of the proposed subdivision and the lot layout shows that Lots 7, 9 and 10 are accessed by 4.5m wide access handles off access road 1. It is therefore clear that there is only one possible or likely location of the driveways to these lots. Therefore the condition as proposed by the council should remain. However, given the location of several trees in the vicinity of the driveways to Lots 9 and 10, identified by the arborists as trees that could be retained, the design and construction of the driveways will require input from the arborists. The tree management plan must address tree protection measures for the trees most likely to be impacted by the construction of the driveways and the installation of the services. 109Condition 14 concerns perimeter fencing. Whilst the applicant at one stage agreed to construct a 1.8m timber fence around the entire site, that has since been withdrawn. Council presses the condition. The applicant contends that there are no controls in the BMLEP or BMDCP that require the construction of a perimeter fence at the stage of subdivision and that this is a matter for individual lot owners under the Dividing Fences Act 1991. I am satisfied that this condition should be deleted for the reasons put forward by the applicant and any plans revised to remove reference to the fence. 110Condition 18 requires a landscaping plan detailing the proposed street tree planting within the new roads. It should also include any additional landscaping treatment proposed along the new roads in order to ameliorate the visual impact between those roads and the adjoining properties. It was agreed that the parts of the condition relating to replacement plantings and landscaping of building setbacks of some lots be deleted. 111Condition 51 seeks to impose a covenant under s 88/E of the Conveyancing Act 1919 with respect to on-site stormwater detention. Part (b) of the condition states: b. The registered Proprietor shall indemnify the Council and any adjoining landholders against damage to their land arising from the failure of any component of the OSD or failure to clean, maintain and repair the OSD. 112The applicant accepts the remainder of the condition but rejects part (b). As the council was unable to provide any compelling argument as to why this should be imposed, I see no reason why it should not be deleted. In this I find with the applicant. 113Conditions 52, 53 and 54 also refer to restrictions on use of the land pursuant to s 88B/E of the Conveyancing Act 1919 . They propose restrictions on building setbacks and 'no development areas' which include groups of trees to be protected; a positive covenant on the type of landscaping on each lot; and a single storey height restriction on Lots 1,2, 6 and 7. The council contends that some or all of the restrictions should be imposed on the future lots in order to ensure future local amenity (including that provided by established trees) and to minimise the impacts of future development on the heritage value of the adjoining heritage items. Mr O'Gorman-Hughes contends that the issues underlying the imposition of the restrictions are matters that should be considered when individual development applications are lodged and are not appropriate at the sub-division stage. He contends that such restrictions would restrict flexibility in the determination of future development applications. 114Both advocates considered the planning principle in Parrott v Kiama [2004] NSWLEC 77 regarding when a residential subdivision application should impose constraints on future development. Roseth SC at [17] states; 17 When should a subdivision application include information on the buildings to be built on the resulting allotment(s)? It is normal practice in Australia to subdivide land without constraints on the buildings that can later be built. While this practice is appropriate in most cases, it is not always so. I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them. 115With respect to these three tests, Mr O'Gorman-Hughes considers the first to be irrelevant as the lots are larger than required; secondly, the site is not especially environmentally sensitive; and thirdly, he considers there are no significant likely impacts on neighbouring properties that are not incapable of being mitigated (because of the large lot size) and considered at the individual DA stage. Mr Seton considers the imposition of constraints is reasonable to ensure that prospective residents are aware of the importance council places on the protection of trees and the amenity they provide. Similarly, he contends that height limits on future dwellings will meet council's heritage advisor's concerns regarding minimising any adverse impacts of any development on the visual setting of the two adjoining heritage-listed properties. 116In regards to proposed conditions 52, 53 and 54 I consider these issues are more appropriately dealt with at the stage at which development applications are lodged for individual lots. The indicative locations of the building foot prints show reasonable set backs from adjoining properties and appear to be sufficiently generous to enable considerable refinement for the purpose of ensuring adequate tree retention or space for landscaping at the DA stage for the individual lots. Similarly with the height and size of the future dwellings, these will be assessed on their merits and in accordance with the planning controls, which include consideration of tree retention, landscaping and heritage. Therefore, I determine that these conditions be deleted.
Conclusion 117I am satisfied, having regard to the evidence addressing the relevant matters to be considered under s 79C of the Act, the contentions raised by council and issues raised by resident objectors, that the development application for a 10 lot subdivision can be approved, subject to the conditions as agreed by the parties and in accordance with my findings in paragraphs [101] to [116] above. 118The parties are directed to provide a copy of the final conditions of consent by close of business 18 July 2011, following which I will make the following orders in chambers: (1) Appeal 10079 of 2011 is upheld. (2) Development application No. S/56/2008 for a 10 lot subdivision of Lot 27 DP 212973 112 Cleopatra Street, Blackheath is approved subject to conditions in Annexure A. (3) The exhibits are returned except for exhibits 2, 5, A, B & H. J Fakes Commissioner of the Court ANNEXURE A 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: 02 August 2011
Johnston
Blue Mountains City Council