Miller & anor v Pittwater Council

Land and Environment Court (NSW)|2015-05-07|Before: Ms J

Solicitors: Applicants: Tony Sattler & Associates Respondent: King & Wood Mallesons File Number(s): 10792 of 2014

Judgment

COMMISSIONER: In 2011 the Court granted consent to Development Application N0051/09 for a four-lot subdivision at 232-234 Barrenjoey Road, Newport (Miller v Pittwater Council [2011] NSWLEC 1117). In 2014, the Court, as constituted, approved Development Application N0108/13 for the subdivision of one of the lots created by the 2011 approval into two lots (Miller & anor v Pittwater Council [2014] NSWLEC 1087).
The appeal now before the Court seeks to modify the original consent to DA N0051/09 by modifying condition A1A to alter the plans upon which the consent relies: to demonstrate the as-built works undertaken on site; to relocate, resize and reshape each of the four previously approved building footprints; and to demonstrate a useable area of private open space associated with each dwelling.

The site and its locality

The site is located on the eastern side of Barrenjoey Road; it adjoins Bushrangers Hill Reserve at the rear. To the north the site is a residential development along Bungan Head Road; to the south and east the site adjoins residential properties accessed from Barrenjoey Road and Karloo Parade.
The site is west-facing and steeply sloping with an average slope of about 38%. It is characterised by rock outcrops on the upper slopes and is generally heavily vegetated with native trees and other vegetation.
Vehicular and pedestrian access is via a right of carriageway from Barrenjoey Road which burdens the site and benefits the owners of adjoining properties to the south.
The site is vacant apart from earthworks carried out after the original consent. These works compromise a parking area excavated into the slope, associated drainage works, a retaining wall, and fencing. The majority of the cut section of embankment is retained by a reinforced concrete retaining wall. A metal safety fence is attached to the top of the retaining wall. In part, the modification application seeks to regularise these works. The individual lots are delineated by timber paling fences. The retaining wall and timber fences facing Barrenjoey Road have been recently painted a mid-dark grey.
The site is located in the Newport Locality.

Relevant background and issues

Pittwater Council refused the Modification Application in September 2014; the applicants subsequently lodged the Class 1 application now before the Court.
The matter commenced on site as a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act). While the parties were unable to reach agreement on all contentions, progress was made on a number of issues. In accordance with s 34(4)(b) of the Court Act, the conciliation conference was terminated and the matter proceeded to a hearing. As a consequence of the conciliation, the council filed an Amended Statement of Facts and Contentions.
Previously identified contentions relating to access, drainage and stormwater management, excavation, certification and insufficient information concerning a range of matters have been resolved. Other contentions regarding the accuracy and sufficiency of the subdivision plan; inconsistencies in the schedule of changes and amended conditions of consent provide by the applicant were considered during the hearing and largely resolved.
The proposed modifications are more fully described below. The bulk of these works seek to satisfy deferred commencement condition 1 in the original consent and comprise:

Amending the proposed footprints of the indicative dwellings on lots A, B, C and D and re-configuration of the indicative areas of private open space;
Amending the existing approved levels of the as-built concrete slab, car parking areas, associated retaining walls and levels to reflect the as-built environment, with the following works to be carried out: 1. Construction of a planter box adjacent to Lot B; 2. Amending the levels of the existing concrete slab, as indicated on the Concrete Mound Plan and Sections to obtain compliance with Australian Standards sight lines and a compliant vertical curve to avoid vehicles scraping; 3. Extending the concrete slab at the northern end and construction of a retaining wall adjacent to it; 4. Painting of existing pier and beam wall in Dulux 'Raku' (completed); 5. Installation of new balustrade to retaining wall of Lot B; and 6. Finishing timber fencing in Dulux 'Raku' (completed).
Retaining 7 trees previously identified for removal (trees 96, 97, 98, 99, 105, 107, 118 as referred to in the "Revised arboricultural impact assessment.." dated 18 March 2015 [Exhibit H]);
Removing 20 trees previously identified for retention (trees 41, 44, 50, 57, 58, 60, 62, 63, 66, 67, 131, 211, 213, 220, 230, 231, 232, 233, 239, 243 identified in Exhibit H).

The relocation of the footprint on Lot B results in a 6.276 m wide western extension directly above and adjacent to the excavated car park as well as the shifting downslope of the entire envelope to the steepest part of the lot and away from the flattest portion of the lot . During the hearing it became clearer that the principal reason for extending the proposed building footprint on Lot B is to enable a future owner to construct a means of direct access from the car park to the dwelling, for example by means of a lift.
The hearing commenced on site. The parties' experts, Mr Ross Fleming (Planning) and Ms Melanie Howden (Arboriculture) for the applicants and Ms Rebecca Englund (Planning) and Mr Guy Paroissien (Arboriculture) for the council, assisted the Court. There were no objectors.
The additional trees proposed for removal were identified with coloured tape as were the trees determined by the arborists as possibilities for retention or removal.
The site was viewed from Winji Jimmi Reserve, Newport/Bayview; a reserve about 1 km to the west of the site on the point between the two southern-most arms of Pittwater. The site was selected by Ms Englund as being indicative of what may be viewed from the water; photographs taken by her from the reserve are included in the planners' joint expert report.
The two substantive contentions are: the impacts on existing vegetation as a consequence of the proposed areas of private open space and the relocation and resizing of the modified building footprints; and the visual impact of the retaining wall and the relocated and extended footprint on Lot B.

Newport Locality

Relevant to both major contentions is the desired character of the Newport Locality described in cl. A4.10 Pittwater 21 Development Control Plan 2014 (PDCP). Extracts from this clause applicable to this matter are: The locality is characterised by the steep slopes to the north and south, and valley floor. Due to the topography, significant views can be obtained through all points of the compass. Conversely, the slopes and ridge tops of the locality are visually prominent. Substantial tree growth has been established, although the locality contains few natural reserves and bushland areas. Desired Character The Newport locality will remain primarily a low-density residential area with dwelling houses a maximum of two storeys in any one place in a natural landscaped setting, integrated with the landform and landscape….. Future development will maintain a building height limit below the tree canopy and minimise bulk and scale. Existing and new native vegetation, including canopy trees, will be integrated with the development. Contemporary buildings will utilise façade modulation and/or incorporate shade elements, such as pergolas, verandahs and the like. Building colours and materials will harmonise with the natural environment. Development on slopes will be stepped down or along the slope to integrate with the landform and landscape, and minimise site disturbance. Development will be designed to be free from hazards. [The site is in a landslip area.] A balance will be achieved between maintaining the landforms, landscapes and other features of the natural environment, and the development of the land. As far as possible, the locally native tree canopy and vegetation will be retained and enhanced to assist development blending into the natural environment, to provide feed trees and undergrowth for koalas and other animals, and to enhance wildlife corridors.

Impacts on Vegetation

In summary, council contends that the Modification Application should be refused because the proposed modifications result in unreasonable impacts on existing vegetation and result in a further increase of the cumulative tree loss across the site. Specifically, council is concerned about the additional central area of private open space on Lot A, the shift to the west of the footprint on Lot B resulting in the removal of part of a band of vegetation across the top of the retaining wall, and potential impacts on trees to be retained on Lot C.

Relevant controls

Council presses the following planning controls.
The site is zoned Zone E4 Environmental Living in Pittwater Local Environmental Plan 2014 (PLEP). The objectives of the zone are:

To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.
To ensure that residential development does not have an adverse effect on those values.
To provide for residential development of a low density and scale integrated with the landform and landscape.
To encourage development that retains and enhances riparian and foreshore vegetation and wildlife corridors.

Apart from clause A4.10 cited in [18], other parts of Pittwater 21 Development Control Plan 2014 (PDCP) apply.
Clause C4.7 Subdivision - Amenity and Design; relevant outcomes include: Desired character of the locality and Protection of the natural environment. The controls for subdivision design state: Subdivision should be designed to ensure that 1. All properties, both existing and proposed, achieve/retain a level of amenity commensurate with the locality and the desired character of the area. 2. The impact on the environment of the completed development (including buildings to be constructed on the proposed lots) has an acceptable impact on the environment.
Clause 4.7 states that a comprehensive site analysis taking into account a comprehensive list of characteristics is to be carried out as part of the subdivision design process. The site analysis and report are to be included with the Development Application form and Application Checklist in order to demonstrate how the proposed subdivision will provide for the amenity of dwellings on the proposed lots. The Statement of Environmental Effects is to include an analysis of the proposed subdivision demonstrating that it complies with Council's requirements in terms of lot size and configuration, access and services, impact on the natural environment and safety. The applicant is also required to provide relevant technical reports and supporting information. The clause also states: In order to address these issues, a building envelope area is to be nominated on each proposed lot within which any future building is to be contained. The application should clearly demonstrate that a building envelope can be built on site that has regard to the following: [the list below is less comprehensive than the heads of consideration for the site analysis] • Retention of trees and bushland, • Vehicular access, • Provision of services, • Provision of emergency services, • And safety from hazard, • A building which achieves the desired character of the area and is commensurate with the amenity standards of surrounding development, and does not overly impact on the environment, and can be erected within that envelope. In this regard, an assessment of the buildings which will be erected as a result of the proposed subdivision is to be carried out demonstrating that the requirements and outcomes of the controls in this DCP which will apply to those buildings will be able to be complied with.
The clause goes on to specify the information to be shown on the Development Drawings Shall show proposed lot boundaries, building envelopes, access structures. Long and cross sections shall be provided for all access roads and driveways to the proposed building envelopes, and watercourses.
Clause C4.8 Subdivision - Landscaping on the existing and proposed public road reserve frontage to subdivision lots - controls; includes a requirement to include street trees planted to the road reserve frontage of the development to be placed at 6m centres.
Council also presses cl. C1.1 Landscaping. Although this clause does not apply to 'Subdivision', council maintains that as it applies to 'Dwelling houses', and the subdivision is for the purpose of constructing dwelling houses and cl. 4.7 cross-references other [unspecified] controls in PDCP, it is therefore relevant. The clause lists the outcomes and the controls include a requirement for all canopy trees and more than 50% of other vegetation to be locally native species. The number of canopy trees to be provided on each site is specified. The controls also state: The front of buildings between the front boundary and any built structure shall be landscaped to screen those buildings from the street as follows [relevantly]: · 60% for a single dwelling house… Screening shall be of vegetation (not built items), and shall be calculated when viewed directly onto the site. Development shall provide for the reasonable retention and protection of existing significant trees, especially near property boundaries, and retention of natural features such as rock outcrops. Canopy trees are to be located a minimum of 5 metres from existing and proposed built structures, or minimum of 3 metres where pier and beam footings are used.
The site is mapped in PDCP as being within an area of habitat mapped as Flora and Fauna Conservation Area - Category 2 that overlaps with land mapped as Wildlife Corridors. Clause B4.4 applies to these areas; subdivision is a use to which this control applies. The stated outcome of the clause is "the conservation, enhancement and/or creation of habitats for locally native flora and fauna to ensure the long-term viability of locally native flora and fauna and their habitats". Amongst other things, the controls require that development shall result in no significant onsite loss of canopy cover or net loss in native canopy trees, new plantings comprise at least 60% native vegetation and planting is to maximise linkage to the wildlife corridor.
'Net Loss' is defined in cl. A1.9 Definitions in PDCP as: Means the net amount (area) of canopy of the Pittwater Local Government Area shall remain the same after taking into account losses and gains.

Arboricultural Evidence

The parties' arborists prepared their joint report on the Amended Statement of Facts and Contentions, a Landscape Site Plan and Tree Protection Plan prepared by Jocelyn Ramsay and Associates Pty Ltd dated 19 March 2015 (the Ramsay plans), and the Revised Impact Assessment Report prepared by Ms Howden of Footprint Green Pty Ltd dated 18 March 2015. The arborists considered the impact on the trees of the indicative areas of private open space indicated on the Ramsay plans. They agreed on the following numbers of trees:

20 trees originally proposed for retention are now proposed for removal. These comprise 11 trees of low landscape significance, 7 of moderate significance, and 2 of high landscape significance. Five of these trees are associated with a proposed centrally located area of private open space on Lot A, and includes Tree #233, a tree of high landscape significance. The additional tree of high landscape significance is #63 which is included in the proposed extended footprint of the dwelling on Lot B.
6 trees originally proposed for retention now identified as 'remove/retain'. These trees include #69 and #70 on Lot C.
7 trees identified form removal now proposed for retention.
1 tree proposed for removal, now identified as 'remove/retain.

In regards to the 'remove/retain' category, the experts agree that the Impact Assessment Report cannot be more definitive about future impacts as construction techniques and final levels of any future dwelling are unknown. Ms Howden considers that the trees identified as 'remove/retain' can be satisfactorily retained with appropriate design considerations, for example pier and beam construction. Mr Paroissien agrees in part with this opinion, in particular trees 69 and 70. However, he is concerned that the additional tree removals associated with the indicative areas of private open space increases the cumulative tree loss across the site. In oral evidence he opined that apart from tree loss associated with the areas of private open space, the cumulative loss is increased because of the Court approval in 2014 of an additional lot and its associated building envelope.
During the hearing, the arborists agreed that the trees identified as remove or retain could be retained and draft condition B17 was formulated. This condition includes a table giving the tree number, species and radius of the required tree protection zone. It also includes a requirement for any construction in the vicinity of the trees to be of light weight, pier and beam construction.

Planning evidence

The parties' planners confined their discussion of any impacts on vegetation in their joint report to contention 1(b) and whether or not the provision of private open space associated with each dwelling was considered and approved in the original approval and the extent to which an additional area on Lot A results in an excessive and unwarranted impact on existing canopy trees.
Ms Englund maintains that the 2011 approval included a landscape plan prepared by Narelle Sonter, Botanica (drawing number LP.01B Sheet 1 of 1, dated 07.10.10) (the Sonter plan) which demonstrates the inclusion of areas of level lawn associated with each of the approved building footprints and responds to cl. C1.7 in PDCP. In her opinion, the inclusion of an additional area of private open space in the 'u'-shaped space on the northern façade works against the original proposal as it is an area incorporated into the approved Vegetation Management Plan (VMP) for Lot A.
Mr Fleming considers that the Sonter plan is a landscape vegetation plan that was not prepared to address the specifics of the private open space requirements in part C1 of PDCP as those requirements relate to residential development. In his opinion, the drawings the subject of this appeal, the Ramsay plans, note the private open space areas as indicative only and any final areas are to be detailed as part of any future development application for a dwelling on the lot. He also notes that issues of private open space were not in contention in matter 10411 of 2010. Mr Fleming maintains his position that the siting of private open space is to be assessed in accordance with the relevant provisions of cl. C1.7 PDCP when a development application for a dwelling is lodged.
During the course of the hearing, the parties agreed that the indicative areas of private open space shown on the Ramsay plans be removed. Therefore contention 1(b) was resolved. The provision and location of private open space will therefore be a matter for council's consideration if and when development applications for dwellings on the lots are lodged. This concurs with the provisions of PDCP cl. C4.7 cited in paragraph [25] of this judgment.
It was also agreed that the landscape plan incorporate additional trees to be planted and maintained across the site prior to the issue of the subdivision certificate. [These amendments were incorporated into the landscape plan by the completion of the hearing.]

Visual impact

The council contends that the Modification Application should be refused because it will result in unacceptable visual impacts as a consequence of: the finish of the retaining wall and fencing; and, the relocation and stretching downslope of the building footprint on Lot B onto the steepest portion of the Lot and associated removal of vegetation.

Controls

Apart from the desired future character of the Newport Locality (at [18] of this judgment), council presses the following controls from PDCP.
Clause 10.1 considers Character as viewed from a public place, and applies to a broad range of uses including 'subdivision'. The stated outcomes are:

To achieve the desired future character of the Locality.
To ensure new development responds to, reinforces and sensitively relates to the spatial characteristics of the existing built form and natural environment.
To enhance the existing streetscapes and promote a scale and density that is in scale with the height of the natural environment.
The visual impact of the built form is secondary to landscaping and vegetation…
High quality buildings designed and built for the natural context and any natural hazards.
Buildings do not dominate the streetscape and are at 'human scale'. Within residential areas, buildings give the appearance of being two-storey maximum.
To preserve and enhance district and local views which reinforce and protect Pittwater's natural context.
To enhance the bushland vista of Pittwater as the predominant feature of the landscape and built form, including parking structures being a secondary component.
To ensure that development adjacent to public domain elements such as waterways, streets, parks, bushland reserves and other public open spaces, compliments the landscape character, public use and enjoyment of that land.

A number of controls are not relevant to subdivision but those that may apply to the site are: Garages, carports and other parking structures including hardstand areas must not be the dominant site feature when viewed from a public place. Landscaping is to be integrated with the building design to screen the visual impact of the built form. In residential areas, buildings are to give the appearance of being secondary to landscaping and vegetation.
While clause D10.3 Scenic protection - General - does not apply to 'subdivision' but does apply to 'development ancillary to residential accommodation' and 'earthworks'. The stated outcomes are: Achieve the desired future character of the Locality. Bushland landscape is the predominant feature of Pittwater with the built form being the secondary component of the visual catchment.
The controls state: Development shall minimise any visual impact on the natural environment when viewed from any waterway, road or public reserve.

Arboricultural evidence

In respect of the visual impact of the proposal, the arborists agree that a band of vegetation, including tree #63 of high landscape significance, is proposed for removal within the revised footprint on Lot B.
Ms Howden considers the existing band of vegetation along the site frontage and an area in the south-western portion of Lot B will provide a level of visual screening. Under cross-examination she stated that the front of the site has been significantly improved over the past five years and that weeds have been removed and new canopy trees and understorey vegetation has been planted, with more to come.
Mr Paroissien remains concerned that the band of vegetation across the top of the excavated car park identified for retention in the original consent will be removed. He states in the joint report that while many of the trees are individually identified as being of low landscape significance, collectively they contribute to the landscape character, visual quality, amenity and habitat values of the lower part of Lot B, particularly in providing a vegetative screen between the top of the retaining wall and a future dwelling on Lot B.
In oral evidence, Mr Paroissien stated that while he understood the desirability of direct access from the car park to a dwelling on Lot B, in his view this could be achieved in an area less than 6m wide.

Planning evidence

In the joint report, Ms Englund includes two photographs of the site taken from Winji Jimmi Reserve on Pittwater. In her opinion, these photographs are indicative of what might be seen of the site from the water. The angle of view is not indicated however, one photograph is an enlarged/ zoomed-in extract of the more distant shot. The photographs were taken before the painting of the retaining walls and fences. In her opinion, the photographs demonstrate that the retaining walls and fences are visible through the vegetation and given that the site is adjacent to the prominent Bushrangers Hill Reserve, this is significant.
In oral evidence Ms Englund stated that as the retaining wall is longer than that approved in the original consent, the visual impact is greater. While she agreed that the wall was unpainted when she took the photographs, she maintained that the wall was in shadow when the Court and the parties viewed it from Winji Jimmi Reserve and it would be more visible at other times. Ms Englund conceded that the finish of the wall could not be discerned from Winji Jimmi Reserve.
Ms Englund considers that the shift in the building envelope on Lot B removes what she maintains is a 'key band of vegetation' (referred to in [47] of the 2011 judgment) that separates the parking platform from the originally approved building envelope. She also opines that the elongation of the footprint and the nature of the topography will effectively increase the visual impact of the development and give the appearance of a four-storey dwelling when seen in conjunction with the as-built parking platform. In the joint report, Ms Englund includes a sketch of what she considers will be the likely resultant form of the building. In her view, the result is inconsistent with the desired future character of the Newport Locality. She also maintains that moving the building footprint onto the steepest part dramatically increases the likelihood of excavation which will result in further impacts on the vegetation and further inconsistency with PDCP.
Under cross-examination, Ms Englund stated that the sketch in the joint report is a 'worst-case scenario'; she also agreed that PDCP anticipates building stepping down the slope and that any building on the site is limited to a height of 8.5m rather than the 10m otherwise permitted. While she accepts that there is no requirement in PDCP for 'banding' of vegetation or that buildings must be invisible, Ms Englund maintained that the retention of bands of vegetation was a fundamental premise of the original consent that permitted a building envelope set back about 10m from the excavated parking platform. In her view, the issue of secondary access from the car park to a future dwelling on Lot B can be considered at the DA stage.
In summary, in Ms Englund's opinion the current, approved footprint on Lot B retains the canopy trees above the parking platform and achieves a visually better outcome than the proposal.
In the joint report, while Mr Fleming agrees that Bushrangers Hill Reserve is a prominent feature of the landscape, he maintains it will not be affected by the proposal. In his view, the visual impact of the relocation of the building envelope on Lot B will be minor because the siting is lower on the slope than the two lots at its rear and it is screened by the enhanced vegetation at the front of the site. In Mr Fleming's opinion, the result will be a future building in a landscaped setting which will be significantly different to the elongated form of residential development along Bungan Head Road (as seen from Ms Englund's photographs).
In regards to the finish of the retaining wall, Mr Fleming considers that the final finish is ultimately a matter for consideration when a development application is lodged for a future dwelling.
Under cross-examination, Mr Fleming agreed that the retaining wall is larger than approved however he stated that the application before the Court seeks approval for the wall and other works as built. He also stated that the plans approved as part of the original approval (exhibit 7) do not indicate any particular finish to the wall. Mr Fleming maintained his opinion that the final treatment of the retaining wall is a matter for consideration at the DA stage for any future dwelling. Mr Fleming stated that apart from the screening provided by vegetation, any dwelling on Lot B would be screened from Barrenjoey Road by a dwelling on Lot D; in his opinion, the only place from which a future dwelling on Lot B is likely to be more clearly seen is directly opposite it from the other side of Barrenjoey Road. While he agreed that the pattern of development along Bungan Head Road is a function of the cadastral lot layout, Mr Fleming maintained his opinion that future dwellings on the site will be staggered across the slope within a landscaped setting.

Contested conditions

The parties agreed that to a large extent, the differences between the parties are essentially reflected in the draft conditions of consent that remain in contention. At the end of the hearing, the parties agreed to forward to the Court an electronic version of the agreed draft modified conditions of consent, highlighting those in contention. The following disputed conditions are derived from that document which supersedes Exhibit K in the proceedings.
The first contested condition considers who should be responsible for the final treatment of the retaining wall. Part B - Matters to be incorporated into the development and maintained over the life of the development: B14. Any future development application for a dwelling house on Lot A or Lot B shall provide detail of how the car parking area will [be] appropriately treated and finished.
Council contends that this condition should be replaced by condition B26A which states: B26A. The as-built retaining walls are to be clad in timber to achieve a smooth and even finish to the exposed surfaces, to hide any exposed structural elements and the rough concrete finish. The timber is to be stained, or painted in a dark and earthy tone.
The other contested conditions consider the proposed relocation of the building footprint on Lot B. The council presses the retention/imposition of the following conditions; the applicants seek their deletion. B25A. This consent does not authorise the proposed relocation of the building footprint on Lot B or the associated removal of existing canopy trees (specifically trees 41, 43, 47, 50, 60, 62, 63, 64, 66, 67, and 68). C. Matters to be satisfied prior to the issue of a Construction Certificate. 20. Prior to the issue of a modified construction certificate, the site plan, landscape plans and draft subdivision plans are to be amended to demonstrate the following [the stem of this condition is not contested but the following elements are]: 1. The maintenance of the building footprint on Lot B as approved in the original development consent (N0051/09), as shown on the original approved plans (Site Plan drawing no. A01, issue C, dated 1 September 2010, prepared by Gartner Trovato Architects); 2. The safe retention [of] trees 41, 43, 47, 50, 60, 62, 63, 64, 66, 67, and 68; 3. The enhancement of landscaping between the approved building footprint on Lot B and the as-built retaining wall.

Submissions on evidence and contested conditions

Mr Staunton for the applicants contends that what remains in dispute is the treatment of the retaining walls and any visual impact arising from it, and the visual impact resulting from the changes to the building envelope on Lot B. He submits that the DCP should be the lens through which the modification application is assessed and any approval does not require an identical outcome to an original approval. In particular, Mr Staunton argues that the council's reliance on the retention of 'banding' of vegetation is a misapplication of PDCP which uses words and phrases such as 'screen', 'soften', 'integrate with' and 'secondary to landscape' in describing the desired relationship between the built form and landscaping.
In respect of the retaining wall, Mr Staunton maintains that apart from the view to the site from Winji Jimmi Reserve not being the primary view from that location, when viewed from the reserve, the walls and fences were difficult to see and it would be impossible to discern the texture of walls from that distance. To that end, he submits that what is proposed adequately mitigates any particular visual impact. Mr Staunton contends it is within the Court's power to impose a condition of consent requiring the retaining walls to be addressed in any future development applications for development of individual lots. He maintains that draft condition B14 clearly requires any future development application for a dwelling on Lots A and B to incorporate details as to how the car parking area allocated for each lot will be finished; and to that end, draft condition B26A should be deleted.
Considering the relocation of the building envelope on Lot B further down the slope, Mr Staunton cites the outcomes in cl. C1.1in PDCP which anticipate built form softened by landscape and the retention of trees by encouraging the use of pier and beam footings. He contends that there is no geotechnical evidence to suggest that this portion of the lot is unsuitable for development and the only thing that suggests it is inappropriate is Ms Englund's diagram in the joint report. Mr Staunton argues that the amended location provides a flatter area for private open space as well as better access and better amenity for future residents thus achieving the control for subdivision in cl. C4.7(a) PDCP. In regards to cl 4.7 he maintains that this clause calls up other controls in the DCP in order to assess whether an appropriately designed building can be built. Mr Staunton pressed the agreed reduced height restriction to 8.5m to ensure future development is below the canopy and council's controls requiring dwelling houses to be no more than two-storeys in any one place.
In regards to the loss of vegetation and resulting visual impact along the western façade of the envelope on Lot B, Mr Staunton submits that the length is only about 5.5m and that given the vegetation at the street frontage, the opportunities on Lot B for tree planting, the on-going requirement for the implementation of the VMP, as well as the agreed extra canopy and sub-canopy trees, as demonstrated in the Ramsay plans, the proposal achieves the desired future character for the Newport Locality and the relevant outcomes in PDCP. With respect to the contention there will be a 'net loss' of tree cover, Mr Staunton cites the definition of 'net loss' in PDCP and maintains that the applicants have supplied the 255 locally native trees for planting across the LGA required by Condition D 25 of the original consent which more than addresses the 'net loss' of vegetation from the site. For these reasons, Mr Staunton contends that draft conditions B25A, and C20(a),(b) and (c) should be deleted.
Overall, Mr Staunton maintains that the test is to assess the visual impact and then determine whether or not it is acceptable.
Ms Irish for the council contends that the applicants have not satisfactorily demonstrated that the visual impact of the proposed modifications has been minimised or that the replacement planting is sufficient to satisfy the requirement of no net loss. In particular, she maintains that cl. C4.7 - Subdivision in PDCP calls up a raft of other controls that form the basis of any assessment of development for the purpose of subdivision and which must be addressed at the subdivision stage. Ms Irish asserts that the applicants are deferring critical issues that should be dealt with at the subdivision stage to future development applications for individual lots.
Ms Irish presses the ongoing concerns expressed by Mr Paroissien in regards to cumulative impacts on vegetation and the loss of the strip of vegetation on the western portion of Lot B. She submits that leaving the envelope in its approved location retains vegetation in meaningful widths so that future development will be integrated into the landscape. By shifting the envelope down slope, Ms Irish maintains that the continuity of a key band of vegetation is destroyed. She cites the importance placed on the location of the originally approved footprints and the retention of vegetation in the Commissioners' findings in Miller [2011] at [42] and elsewhere in that decision. Ms Irish contends that the applicants are relying too heavily on the one substantial tree, a Turpentine, to be planted at the front of the site in order to provide sufficient screening of a future dwelling on Lot B from the public domain. The council's position is that the only way of ensuring sufficient screening is to retain the original footprint, or as Mr Paroissien suggests, a buffer of at least 4m wide. Ms Irish maintains that Lot B already has a designated point of access from the car park and that the further incursion into the band of vegetation is unwarranted. For these reasons, Ms Irish asserts that draft conditions B 25A and C 20(a),(b) and (c) should be imposed.
Similarly, while there is a proposed condition specifying the tree protection zones for trees likely to be affected by future building works, including trees 69/70, Ms Irish contends that this is not a complete answer and the relocation of the dwelling footprint on Lot B imposes an extra constraint on Lot C
In regards to the retaining wall, Ms Irish relies on Ms Englund's opinion that it was not constructed in accordance with the original consent and its further excavation resulted in the removal of vegetation that was to be retained. It is council's view that the unsatisfactory finish of the wall is a subdivision work and therefore should not be left in its current state until some future time. For these reasons, Ms Irish presses the deletion of draft condition B14 and its replacement with B26A.
Ms Irish reiterates her contentions that once the future dwellings and areas of private open space have been completed, the loss of a key band of vegetation along the top of the excavation, the insufficient screening likely to be provided by the Turpentine near the front of the site and the anticipated detrimental cumulative impacts on vegetation will result in an unacceptable visual impact and a character not in accordance with the desired future character of the Newport Locality.

Retaining wall - visual impact

The modification application before the Court seeks, in part, the approval of the as-built car parking platform and retaining wall. The only element of this element of the proposal still in contention is whether the retaining wall should have a stained or painted timber finish at the sub-division stage, or whether the final finish of the retaining wall should be a component of a future development application for a dwelling on Lot A and/ or Lot B.
The council argues that the current treatment of the retaining wall remains inadequate and creates an unacceptable visual impact when viewed from a public place.
My reading of the relevant plans (in exhibit C) approved in 2011 as part of development consent granted to development application N0051/09, does not identify any particular specified treatment of the retaining wall. Similarly I can find no conditions of consent requiring any specific treatment of or finish to the retaining wall. The only condition in which a finish for an engineered structure is specified is B7 which requires the access driveway to be dark coloured or paved in a dark or earthy coloured material to the satisfaction of council.
The controls pressed by council are those in PDCP at cl. 4.10 - desired character of the Newport Locality and cl. 10.1 - character as viewed from a public place. One outcome in cl. 101 specifically includes parking structures. Relevantly, and consistent with both clauses, all built form, including parking structures, is to be secondary to the landscape.
I find that the current, charcoal grey painted finish of the retaining wall is sufficient to mitigate its visual impact when viewed from a public place, including from the opposite side of Barrenjoey Road. The previous lighter coloured treatment of the wall is barely discernible in the photographs taken by Ms Englund. In my view, no casual observer in Winji Jimmi Reserve or on the nearby water is likely to discern the retaining wall, let alone its texture. The only people likely to see it on a regular basis will be those using the right of way and future owners and occupiers of, and visitors to, any future dwellings on the site. I find the retaining wall and parking platform will not be the dominant feature when viewed from a public place and will remain secondary to the natural landscape and landform. Thus the relevant controls are not offended.
I agree with the applicant that it would be more appropriate to require any future development application for any future dwelling on Lots A and B to include details as to how the applicable portion of the retaining wall and any allocated parking spaces are to be treated/ finished. Therefore draft condition B14 is imposed and draft condition B26A is deleted.

Relocation of building footprint Lot B - impact on vegetation, visual impact

It is common ground that the application before the Court is substantially the same development as approved in 2011.
It is conceded by the applicant, and I agree, that the relocated and expanded footprint on Lot B will have a greater visual impact than the footprint approved in 2011. The increased visual impact is primarily due to the consequential loss of existing vegetation at the top of the retaining wall in the immediate vicinity of the proposed new footprint. Council also contends that the stretching of the footprint down the slope will most likely result in a building appearing as up to four storeys and requiring more excavation.
While the additional lot approved in 2014 is not the subject of this appeal, I agree with the council that there will be loss of vegetation and some visual impact arising from any future development of that lot. However, the focus of this appeal must be the modifications to the 2011 approval. What must be tested is the extent to which the proposal achieves or opposes the relevant planning controls and whether any detrimental impacts can be sufficiently mitigated.
The council places some emphasis on the findings of Commissioners Murrell and Smithson in the 2011 approval, in particular on the notion of the 'banding' of the vegetation on the site. At paragraph [47] the Commissioners state: 47 For the equitable preservation of views and vistas to and from public and private places that the proposed development in our assessment complies with this. The Court was taken to Rowland Reserve in Bayview and we are satisfied that the proposed development will sit very comfortably and the dwellings will be very much secondary to the natural vegetation. The clear bands of canopy trees will separate the three levels of dwelling footprints on the site and the development will enhance this in that it will not appear to cascade down the hill as in other areas where there is not the significant banding of vegetation to be retained and reinforced.
I agree with Mr Staunton that the appropriate approach to assessing the current proposal is not against the 2011 judgment but against the relevant controls. The key controls are the objectives of the E4 zone in PLEP, cl. C4.7 Subdivision - Amenity and Design in PDCP, cl B4.4 - Flora and Fauna Conservation, cl A4.10 - desired character of the Newport Locality, and cl. 10.1 - Character as viewed form a public place.
The common theme in all of these controls is that development, in particular the built form: will integrate with the natural environment, be secondary to landscaping and vegetation, minimise visual impacts, and have an acceptable impact on the environment.
In regards to the expert evidence, I agree with Mr Paroissien that the proposed relocation of the footprint on Lot B removes a strip of trees that are in average condition but are visually useful. However, I find the loss is offset to some extent by increasing the area of vegetation to be retained in the eastern portion of the lot. While this does not overcome Mr Paroissien's or the council's concerns over the loss of this vegetation, I find that any future dwelling on that site will screened to a large extent by a future dwelling on Lot D, the enhanced vegetation at the front of the site, and the proposed landscaping in the car park and on the south-western corner of Lot B so that when tested against the controls, the built form will remain secondary to and be integrated with the landform and landscape and the visual impacts will be minimised, especially when viewed from the public domain. Any future development application for a dwelling on the site will require consent for tree removal at that stage.
In consideration of the mitigation measures, I note the agreement of the arborists in respect of the retention of trees formerly identified for removal or retention and the specified minimum tree protection zones in draft condition B17 as well as the requirement in that condition for any future dwelling in the vicinity of those trees to be comprised of lightweight elevated structures supported by isolated piers located by hand excavation. Similarly I note the additional canopy and sub-canopy trees to be planted and maintained as a condition of consent which will further screen and soften any future development, the requirement to continue the implementation of the Vegetation Management Plan (VMP), the further Restriction on Use of Land in regards to landscaping in draft condition F8.9, and Mr Staunton's submissions at [63] in regards to the measures already taken to address the 'net loss' of vegetation. It was agreed that the VMP prepared by Footprint Green is to be updated in accordance with the Ramsay plans amended during the hearing and tendered as Exhibit B.
With respect to Ms Englund's opinion, as illustrated in the joint report, that the future dwelling on Lot B could appear as a building up to four storeys, I agree with the applicants that the controls in the DCP, in particular the desired character of Newport, anticipate that development on slopes will be stepped down slopes, that dwelling houses will be a maximum of two storeys, and site disturbance will be minimised. I find that the worst case scenario as presented by Ms Englund can be given little if any weight as the final design will be a matter for any future development application. I also note the Restriction on Use of Land conditioned in F8.9 limiting the height of any dwelling located on any of the relevant lots to a maximum height of 8.5m which is below the height ordinarily permitted in the zone.
While the construction of any future dwelling on the steeper part of the slope will be somewhat more challenging than it already is, in terms of the amenity of future occupants, it makes more sense to retain the flatter areas of the Lot for future private open space, which is perhaps less amenable to an engineering solution than the construction of a dwelling.
Having carefully considered the parties' positions, I am satisfied that the modifications sought, in particular the relocation down-slope of the building footprint on Lot B can be approved subject to conditions of consent. In regards to the contested conditions, draft conditions B25A, and C20(a),(b) and (c) are to be deleted.

Conclusions and orders

Having considered the expert evidence, submissions and with the benefit of the site view, and in accordance with s 79C of the Act, I am satisfied that the proposal achieves the relevant objectives of Zone E4 Environmental Living in PLEP, in particular by providing for residential development of a low density and scale integrated with the landform and landscape. I also find that the proposed modifications achieve a level of amenity commensurate with the desired future character of the Newport Locality and, assuming development is undertaken in accordance with the conditions of consent, will have an acceptable impact on the environment thus satisfying the controls in cl. C4.7 PDCP. Similarly, I am satisfied that the proposal achieves the relevant outcomes of the controls in PDCP concerning landscaping and visual impact.
Therefore, the orders of the Court are: 1. The appeal is upheld. 2. Modification application N0051/09/S96/2 is determined by approval subject to the conditions of consent in Annexure 'A'. 3. All exhibits except A, B, G and 1 are returned.

Judy Fakes Commissioner of the Court 10792 of 2014 Fakes (C) (99.1 KB, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 June 2015

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Judgment (19 paragraphs)

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Cases Cited (2)