Miller v Pittwater Council

Ms H Irish (Barrister for the Respondent) Pikes Lawyers (Applicant)

Mallesons Stephen Jaques (Respondent) File Number(s): 10411 of 2010

EXTEMPORE Judgment 1COMMISSIONER MURRELL: The applicant in these proceedings is seeking consent to a 4 lot subdivision of land known as No.'s 232 to 234 Barrenjoey Road Newport. It is proposed that three of the four lots created have access from Barrenjoey Road and one with access from Bungan Head Road, via a right of carriageway. The two existing allotments have a total area of 4,255 sq m. The individual lot sizes are: 1,974.5 sq m for lot A; 700 sq m for lot B; 811.5 sq m for lot C; and 769.5 sq m for lot D. 2The Court first met on site with the parties the first morning of the hearing and heard from resident objectors to the proposal. In these proceedings Acting Commissioner Smithson has assisted me, and the following represents our findings in this matter. 3These are preliminary findings as owners' consent for work in the carriageway, the council requires to access lot C, has not been given. The parties agree that the Court should proceed to make preliminary findings. Owner's consent is a jurisdictional matter in terms of the power of the Court to make a final determination and orders can not be made in the absence of owner's consent. The applicant and owners appear to have discussions but owners consent has not been forthcoming at this point in time. 4Other relevant background to these proceedings is that leave was granted and a s 97B costs order for an amended plan was made on 8 October. The applicant relies on the amended plans in these proceedings. It is not unusual when cases come before this Court for amendments to plans from the initially lodged with the council. In this case, while the original plans showed a four-lot subdivision, the configuration was such that there was in the order of 3 x 700 sq m lots and one lot in excess of 2,150 sq m. 5The amended proposal shows one lot requiring access over the right of carriageway and there is currently one of the existing two lots that has access over the carriageway to Bungan Head Road. There are four owners of the right of carriageway relying on this to access their properties from the rear. The access arrangement has also been changed to the original plans where all the lots were accessed from Barrenjoey Road as opposed to the current plan that shows one lot with access from the right of carriageway off Bungan Head Road. The Court notes that the Roads and Traffic Authority granted concurrence in December 2010 subject to a number of conditions being imposed with access for the three lots from Barrenjoey Road. The RTA is opposed to the fourth lot having access from this main arterial road where there is an alternative access point and as such lot C, in this application, is seeking access from the right of carriageway. 6The Court heard from the owners of the right of carriageway who expressed concern, not only about the traffic and safety on the right of carriageway, but they also expressed concern about the proposed development being an overdevelopment of the site in their opinion. They are concerned about the loss of trees and the construction traffic that would be generated by the proposed development. They also expressed concern about the impact of the right of carriageway or the upgrading of same on the longevity of the tree known as No. 250 in the arboriculture report. Tree 250 was inspected on site and it was agreed there is an additional metre width for the length of the right of carriageway and that the tree in fact could be avoided by some half a metre. It was agreed between the experts a with appropriate construction in the location of the tree that the longevity of the tree would not be unreasonably impacted. 7The resident of number 230 Barrenjoey Road expressed concern to the Court about the loss of vegetation and the change in the natural landscape and privacy impacts on his residence. 8It is noted that the proposed rear dwelling on this rear lot is lower in elevation than the house at number 230. The en-suite window that is a full picture window at number 230 is built relatively close to the side boundary. The footprint of the proposed dwelling where it adjoins No. 230 has a minimum setback of 3 m and increases to 5 m in places and the landscape experts agree that there could be appropriate screen planting between the dwellings within this portion of the land. 9The subject site is steeply sloping and that is evidenced from the topographic map that is provided to the Court and also the assessment undertaken by Mr Fleming in his report. That is lot A has an average slope of approximately 35 per cent, lot B 33.5 per cent, lot C 32.5 per cent and lot D approximately 35 per cent. It is noted that in the area of the footprint of the dwellings the slope is respectively 29 per cent, 18(as said), 32 per cent, 23 per cent and 35 per cent. 10To continue on the description of the site and its surroundings, it is noted that the subject site adjoins the council reserve to the north that is known as Bushrangers Hill. This is a prominent natural land feature in the area, with dramatic and scenic landscape views with Bungan Beach to the south and Newport Beach to the north. There are also water views to the west. It is noted that the dwelling in particular at the top of the site will also enjoy views to the water and the beach. 11The slope of the site is that the change in topography is some 45 m from Barrenjoey Road to the top of the site. And it is also noted that dwellings in the area are generally of one and two storey construction set within a vegetated landscape. The trees are important in terms of the whole of the site and there was a great deal of evidence about the potential impacts and change created by the proposed development to the natural environment. 12The applicant's expert provided a plan to show existing lot sizes in the vicinity or the locality. It is noted that the lot sizes range considerably. There are some large lots for example, some 1,600 sq m and 2,500 sq m but predominantly many of the lots are in the order of 700 to 900 sq m. 13The site has native vegetation and the condition of the site it is noted by the arborists and the natural resource officer is such that the lower portion of the site has significant weed invasion and that the upper portion of the site has better quality natural vegetation and, in particular, canopy trees. 14Submitted with the development application, or subsequent to its initial submission, there was a flora and fauna assessment in April 2010 and it is agreed that there are no threatened or endangered species or ecological communities on the subject site. There was also a geotechnical report submitted in September 2009 and a supplementary report in 2010 to advise on the amended plan now before the Court. The geotechnical report recommendations have not changed. It is noted that an inclinator will replace the roadway access originally provided for the proposed residence at the top of the site and that this has been considered along with the other design changes. From a geotechnical point of view, the applicant has provided the necessary information for consideration of the application where the slope is in excess of 30 degrees. 15The Court is assisted in its deliberations by the expert evidence provided and we note the statements of evidence of each expert and the joint reports and also the concurrent evidence provided to the Court. On behalf of the applicant evidence was given by Ms Melanie Howden, arborist/ horticulturalist, and Mr Ross Fleming, consultant town planner and Mr Sean Gardiner, the architect for the plans now before the Court. For the respondent council Mr Matthew Hanson, the principal natural resource officer and Mr Grant Walsh, the senior assessment planner, gave evidence. 16The council contends that the proposed development does not warrant approval because it does not comply with the council's development control plan. 17The Court, in its assessment, must have regard to the provisions of s 79C of the Environmental Planning and Assessment Act 1979 and this includes the statutory planning framework and guidelines as established by the council in its planning regime. The site is zoned residential 2(a) under the Pittwater Local Environmental Plan of 1994. 18The Pittwater Plan provides for a table to advise that development without consent is nil; that is in the residential 2(a) area and there are a number of uses that are prohibited including residential flat buildings. In particular the subdivision provisions at cl 11 of the LEP states: "A person shall not subdivide land in 2(a) north of Mona Vale Road and east of Chiltern Road, Ingleside unless each allotment is to be created having an area of less than 700 sq m and this is exclusive of any access corridor." 19The proposed development complies with the LEP provision of 700 sq m. It is noted that dual occupancy development is not permissible on the subject site as it falls in area 1 on the council's map to the LEP where dual occupancy is prohibited. 20The LEP is complemented with further guidelines in the development control plan and the relevant one for the subject site is DCP 21-Pittwater. The development control plan contains relevant provisions for the subject site in particular the subdivision requirements and the size of allotments. It is important to note that the DCP is prefaced by the fact that the provisions in the LEP prevail over any inconsistency. It is also noted that in terms of definitions the DCP relies on the environmentally sensitive land being that as contained in area 1 of the dual occupancy map, that is to the LEP. 21The structure of the controls are such that it lists a number of uses that are permissible and it also lists the outcomes the development control plan is seeking to achieve. The DCP outlines the controls that a proposed development use should satisfy to achieve the outcomes of the DCP. It is noted in the DCP that in certain circumstances council may consider a variation to a control. 22It was pointed out that the applicant has a responsibility and partnership with the community in terms of the development of land and the DCP has gone through the necessary process and represents the community's desires for the area. 23The subject site falls within the Newport locality and this includes that 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 the landscape. 24The DCP further states that in the Newport locality: "future development will maintain a 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 and contemporary buildings will utilise elements in their architectural design including building colours and materials to 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 safe from hazards. A balance will be achieved between maintaining the landforms, landscapes and other features of the natural environment and the development of land. As far as possible the locally native tree canopy and vegetation will be retained and enhanced to assist development blending in to the natural environment to provide feed trees and undergrowth for koalas and other animals and to enhance wildlife corridors." 25The desired future character must be considered in the assessment of the development application as provided for in council's DCP. The DCP has specific guidelines and numeric controls. It also however notes that there are outcomes to be achieved in terms of the land subdivision within the 2(a) zone and the minimum lot size provided in this area is 1,200 sq m in the DCP with a minimum lot depth of 27 m. The lot area is exclusive of any access handles or rights of carriageway. 26It is also noted that a person shall not subdivide land in 2(a) intended to be created having a slope in excess of 16.7 degrees, 30 per cent, measured between the highest and lowest points of any such allotments. The minimum area for a building shall be 175 sq m. There are also advisory notes and it is also noted in the preliminary part of the DCP that they do not form part of the DCP itself. 27Importantly, in this section of the DCP for land subdivision of the subject land, the outcomes are: to achieve the desired future character of the locality; maintenance of the existing environment; equitable preservation of views and vistas to and from the public and private places; the built form does not dominate the natural setting; population density does not exceed the capacity of local and regional infrastructure; and population density does not exceed the capacity of local and regional transport facilities. 28In terms of flora and fauna the DCP provides provisions that development shall not result in significant onsite loss of canopy cover or net loss in native canopy trees. Development shall ensure 60 per cent of the area is not covered by buildings, as opposed to 50 per cent for other areas. The variations council may consider are that where a development is proposed in an area of least impact on native vegetation and where there will be no net loss of native vegetation, the emphasis being on "no net loss of native vegetation" as opposed to canopy trees. 29The provisions for driveways are also referred to in this part of the DCP for of internal driveways and roadways to comply with Australian Standards. The proposed subdivision provides for an inclinator to service the top lot with garaging on the lower slopes of the land such that it is joined by an access handle. The inclinator has been also assessed in the context of the impact on native vegetation and canopy trees. 30The land subdivision amenity and design is also in C4.7 the DCP and this includes subdivision size and set backs for dwellings. The requirement in Pittwater is that building envelopes be provided with any proposed subdivision to demonstrate that buildings can be erected of a suitable size with associated ancillary residential needs to ensure that the subdivision is one that can accommodate the resultant residential development. 31The desired outcomes for amenity and design are 'the desired character of the locality and protection of the natural environment and ecologically sustainable development". There are provisions for subdivision to be designed to ensure all properties achieve a level of amenity commensurate with the locality and desired character of the area. A comprehensive site analysis is to have regard to the characteristics of the site and the subdivision. 32Character as viewed from a public place is an important element of the DCP and this is "to enhance the bushland vista of Pittwater as the predominant feature of the landscape with built form, including parking structures, being a secondary component to ensure that development adjacent to public domain elements such as waterways, streets, parks, bushland, and other public open space, compliments the landscape, character, public use and enjoyment of that land". In this regard buildings which front the street, must have a street presentation and this provision is referred to in council's contentions. In particular "garages, carports, and other parking structures must not be the dominant feature when viewed from a public place". 33Scenic protection is also an element that must be given a focal point in our assessment of the application and it refers to a number of uses that include dwelling houses and clearly the ultimate purpose of the subdivision is for the erection of dwelling houses so this is a relevant consideration and the outcomes are to achieve the desired future character of the locality, bushland, landscape as the predominant feature, built form being secondary. The control is that development should minimise visual impact on the natural environment when viewed from a waterway and public areas as such. 34The development control plan must be a fundamental element and central focus for the Court's assessment. In terms of recent case law the Court cannot substitute its own standards or provisions when assessing a development application but may look at the individual merits of and the circumstances of a particular case where a variation is sought. In particular, the decision of Botany Bay City Council v Premier Customer Services Pty Limited [2009] NSWCA 226 provides authority in this regard and as provided for in the judgment of Zhang v Canterbury City Council [2001] NSWCA 167 the Court must give real, genuine and proper consideration to the provisions of a development control plan and a development control plan is not an environmental planning instrument: "Accordingly the requirements in s 82 that a consent authority must refuse an application that would result in a contravention of such an instrument does not apply to a development control plan. Furthermore, the proscription by 76B of any development prohibited by an environmental planning instrument does not extend to a prohibition in a development control plan nor can such a plan contain nondiscretionary development standards which if applied would take away a consent authority's discretion under s 79C. The consent authority has a wide ranging discretion and one of the matters to be considered is in fact the development control plan which must be a fundamental element or a focal point of the decisionmaking process." 35The Court is guided by these authorities its consideration of the importance of the development control plan. In terms of its structure, the DCP requires a more rigorous and comprehensive assessment of the merits of an application than merely compliance with numerics. Indeed, numeric compliances in some circumstances may not warrant approval of an application and the DCP is clear in terms of its structure that the outcomes are to be achieved in terms of an assessment under the DCP. 36In our assessment, we have given the DCP focal consideration and the 1,200 sq m guideline is not an end in itself and a comprehensive assessment for this development application in the circumstances of the case having regard to the desired character and outcomes and objectives. The Court noted earlier that the development application has been amended and the configuration of the lots and the footprints provided on the development application in Exhibit 'A' together with the vehicle access and parking configuration has been, as was stated, amended from the original development application. 37The Court also has the benefit of supplementary information and an amended landscape plan and a vegetation management plan and a draft construction management plan to provide for greater certainty for the outcome of the development. The Court notes, and it has been agreed by the natural resource assessment officer as well and council's planner, that the dwellings are generally sited on the least steep parts of the site in particular for the platforms for B and C. 38Each of the homes provides a site coverage or footprint of some 220 sq m and in our assessment the design of the dwellings and the concepts are well resolved. We also note that the applicant is prepared to accept an 8.4 m height restriction whereas on steep land in certain circumstances council's controls allow for 10 m but nonetheless the applicant accepts the 8.5 m height control. As such, the envelope of the building is also confined, as well as the footprint of the building in the application before the Court and the applicant and the council have agreed on conditions in terms of the mechanism to ensure that the dwellings in the future provide for certainty as to those shown in the plans before the Court. 39The Court in its assessment has had regard to the canopy trees on the subject site and there was a discussion and evidence led in terms of the number of trees to be removed. It is noted that there are some 45 canopy trees in excess of 10 m that would be removed from the subject site. The number of trees in itself is not the focus of the Court's attention but at the end of the day it is whether the proposed development satisfies the provisions of the DCP and the design future character, which is clearly a landscaped area with native vegetation. 40The arboriculturalist did an assessment of the 269 trees on the subject site and it is also noted on our site inspection that there were some trees that were more significant than others. Therefore, a qualitative approach to the tree removal as well as a quantitative approach is necessary to assist in our assessment. The Court clearly also must have regard to whether the proposed development, that is the footprints and the site coverage, would allow for supplementary canopy trees to be planted and in this regard the parties have agreed on the appropriate number of additional canopy trees. Whilst in absolute terms the number of trees to be removed is some 36 per cent, that is a 95 tree loss for the subject site, that is not the end of an assessment and one must, as was said, have a qualitative approach to the native vegetation on the site. 41Our assessment has also considered the information provided in the vegetation management plan and we conclude that the vegetation management plan will show an enhancement of the native vegetation on site. This is important in terms of consideration of the DCP requirement for "no net loss of native vegetation". 42It is clear fact and agreed to by Mr Hanson that the proposed site is zoned residential and is not part of the Bushranger Reserve and it is reasonable to expect that the site would be developed for residential purposes. He also agreed that the existing vegetation as far as possible will be retained by the footprints as shown on the exhibit A plans and that there would be "no net loss of vegetation", although it is noted that there will be a loss of canopy trees. We have assessed this matter carefully in the context of the importance of native vegetation to this area and in particular to this scenic hill top of Newport and in our assessment the proposed dwellings will sit comfortably within a landscaped setting. Furthermore we are also satisfied that they will be secondary in terms of the natural native vegetation when viewed from public places. 43It is important that the desired future character is considered in our assessment as directed by the DCP and the proposed development will result in a development that achieves, the requirements or the outcomes of the development control plan for subdivision, that is the desired future character of the locality in particular the locality will be primarily a low density residential area. The proposed development satisfies this requirement with a maximum of two storeys in a natural landscape setting integrated with the landform and the landscape 44We are satisfied the future development will maintain a height below the tree canopy and this is achieved by the proposed development's footprints and height restrictions to ensure that canopy trees will predominant and continue to do so for the subject site that is to be integral to the development. 45We are also satisfied that there is a balance achieved between maintaining the land forms, landscapes and other features of the environment and as far as possible the locally native tree canopy and vegetation will be retained and enhanced to assist the development blending into the natural environment. 46In this regard in our assessment the desired future character is achieved by the proposed development as contemplated by the council. Furthermore, in terms of the maintenance of the existing environment, the bushland vegetation management clearly provides for significant plantings in particular for the Barrenjoey lower portion of the site that has been disturbed and weed infested and the vegetation management plan is to be carried forward in terms of the subdivision and subsequent erection of dwelling houses. 47For 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 natural vegetation to be retained and reinforced. 48Clearly, the population density does not exceed the capacity and this is not contested by the council. The numeric requirement of the 1,200 sq m we have given central consideration and focus and in our assessment the proposed development satisfies the outcomes and the variation in the circumstances of this case is appropriate. 49The Court notes that in terms of the building footprints provided in exhibit A that the site coverage for lot A is some 15 per cent, the site coverage and for lot B some 36 per cent, for lot C some 39 per cent and lot D some 30 per cent. We also note that each individual lot must be looked at as opposed to an average, the average being 26.52 per cent. We also note that this site coverage includes the lawn areas that total some 185 sq m, so this still maintains a soft area in terms of council's controls. 50The Court has had the benefit of detailed concurrent evidence in the witness box and it is clear that on a qualitative assessment of the proposed development, as agreed by the experts, the proposed development is one that merits approval and in our assessment there are no adverse impacts, which would warrant its refusal. 51Similarly, in terms of the residents' concerns and the Court was particularly directed to the submissions received in respect of the advertising of the development and the Court has also carefully assessed these concerns even though many of them are not raised as contentions by the council. In terms of privacy for the dwelling at number 230 Barrenjoey Road, the Court is satisfied that the footprint shown on the plan affords the opportunity for views from the proposed dwelling but it also allows for appropriate landscaping between number 230 and the subject lot at the top of the hill, such that this concern is ameliorated and would not warrant refusal of the application. 52Whilst residents may not embrace change and clearly at the present the site appears to be part of the Bushrangers Hill reserve, it is private land and it is not unreasonable that this land be developed to take advantage of the unique environment without adversely impacting on same. Whilst there will be change for the residents at number 230 in our assessment the proposal has been considerate in terms of its separation from the boundary to achieve a reasonable level of privacy for the proposed dwelling and that on number 230. 53We also note the difference in relative levels of the dwelling house at number 230 and the floor of the proposed dwelling. In our opinion we are satisfied that no further restrictions are required and that the assessment in terms of the amenity of the dwelling at number 230 can be considered at the stage of the development application for that dwelling. 54We are also satisfied in terms of the right of carriageway that provides for reciprocal rights. The subject landowners that own the right of carriageway are burdened by providing access to lots through the proposed lot C. The current situation is that the existing lot does have the right of carriage or the benefit of passing and repassing over those parcels of land that make up the right of carriageway and we are satisfied that the consideration of tree number 250 with a clearance of half a metre is appropriate in the circumstances of this case and also we agree with the council that the upgrading of the right of carriageway is appropriate to allow the development to proceed for proposed lot C. 55It is noted there is no change, no additional traffic, that would be generated and that use of this carriageway for proposed lot C would be anticipated in terms of the covenants. It is not a matter for me but there is case law on the use of carriageways and those that have benefit and those that are burdened by rights of carriageway. 56The Chief Judge of this Court provided history of relevant case law and the status of rights of carriageway, for the dominant and subservient tenants. This judgment of Rainbow Force Pty Limited v Skipton Holdings Pty Limited and Ors [2010] NSWLEC 2, dated 13 January 2010 is instructive in this regard. 57The planners provided concurrent evidence and at the end of the day Mr Walsh agreed that the proposed development will be secondary in terms of the built form to the natural environment and that the outcomes that are articulated in the council's DCP are satisfied by the proposed development and as such there is no reason that would warrant refusal of the application. 58A straightjacket approach to the 1,200 sq m provision in the DCP is not appropriate as referred to in case law and we must carry out an individual assessment of the development application before us. In the circumstances of this case the proposed development that has been refined and resolved in exhibit A is appropriate and consistent with the council's planning regime of the LEP and the DCP. 59The issue raised about owners consent is a jurisdictional matter and the Court does not have the power to grant final orders in the absence of owners consent for the right of carriageway. Therefore it was agreed by the parties that it is appropriate for preliminary findings be provided to allow the necessary processes, either in this Court or the Supreme Court in respect of the right of carriageway and owners consent. 60We also note that the infrastructure SEPP requires under s 102 consideration and in this regard the RTA's concurrence has been provided and we are satisfied in terms of s 102 that vehicle access for the three lots is appropriate from Barrenjoey Road and access for one lot from the right of carriageway from Bungan Head Road is also appropriate in terms of the SEPP. 61For the record, the council is of the opinion or contended that the impacts of the proposed development on the foreshore scenic protection area within which the site is located are unacceptable, including the environmental visual and residential amenity impacts and the particulars the council provided were those that related to the DCP control B2.2 and in our assessment those outcomes have been achieved as discussed above. 62We are of the opinion that there are no unacceptable impacts on the foreshore scenic protection including any environmental visual or residential amenity impacts that would flow from the proposal. 63The council also contends the planned subdivision control B22 and the DCP control D 10.3 cited earlier are not satisfied however and in our assessment these outcomes are also achieved, as discussed. 64The council contends that the lot sizes and the nature of the site and degree of vegetation destruction that the development would be highly visible and inconsistent with development in the locality. In our assessment, having regard to both the desired future character and the locality itself and the vantage points for viewing the subject site and dwellings, there would be little impact in our assessment. 65In submissions it was raised that the driveway from Barrenjoey Road to the subject lots, in particular the parking configuration or concentration at the top of the right of carriageway from Barrenjoey Road would create an adverse impact when viewed from a public place. We are satisfied that whilst one may be able to, if stationery, obtain a view of the parking, in our assessment it is not one that would warrant refusal of the application and indeed it would be very minor in our assessment. Similarly, the parking structures when viewed from the private right of carriageway or the dwellings would not warrant refusal of the application, although this is not the test when viewed from this position. In our assessment the parking has been designed appropriately to minimise adverse impact on the natural environment of the subject site and the parking is an appropriate solution in the circumstances of this case to ensure that impacts on the environment are minimised. 66The plans and information including the amended landscape plan, the vegetation management plan, and the draft construction management plan, in our opinion are minor amendments. They assist in the assessment of the application but they would not trigger, in our assessment, a costs order under s 97B, as they are minor. 67In our assessment of the application, our preliminary findings are that the application merits approval and there is no reason as to why it should be refused except for the outstanding need for owners consent for the right of carriageway. In this regard, the applicant should be given the opportunity to provide same within a reasonable time frame. 68Following our preliminary findings above, owners consent has now been provided and on 1 March 2011 the formal orders were made in Court as follows: (1)The appeal in respect of the property known as 232 to 234 Barrenjoey Road Newport is upheld. (2)The development application submitted to Pittwater Council, and as amended, for a 4 lot subdivision is granted approval subject to the conditions in Annexure "A". (3)The exhibits are returned to the parties except the plan of subdivision Exhibit A and the amended conditions Exhibit 12. (4)No costs order is made under s97B as the additional information and plan amendments have been determined as minor. J S Murrell 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: 20 May 2011