Blue Gum High Forest edged in black outline showing isolated BGHF trees [Note: Figure 2 Exhibit 9]
87 The BGHF needs to be afforded the maximum protection given its perilous remnant state and spatial coverage. For the reasons discussed below a range of steps need to be undertaken and considered to ensure the continued health and vigour of BGHF. These include:
· The development of buildings and related infrastructure outside of the footprint of the Blue Gum High Forest. Any such future development would need to have a minimum buffer determined by the canopy spread or 3m from the trunk as per the council's tree preservation order [Note: Referred to in Exhibit 1, pp. 82-83], whichever is the greater.
· Future assessment has to take into account and establish properly the effects of shading, impacts on sub and surface hydrology, root zone disturbance and other edges effects that would ensue from any excavation, underground and above ground development that may occur.
· While adjoining patches of BGHF are significant for the maintenance of the ecological community as a whole, they cannot be considered in exchange for either offset or as component in any calculation for a development proposal that aims to remove or degrade the BGHF at 'Rippon Grange'. Any future applicant for development should only consider the vegetation that is within the boundaries of the land.
· Where species or communities have been listed as critically endangered, the preservation and protection of a few neighbouring isolated trees can contribute to the long-term viability of a greater community and should be preserved. No community can regenerate if the seed banks or sources of those seeds have been removed.
· Where a community once existed there remains a distinct possibility that viable seed banks may be retained in the surrounding soils. Therefore, even where fire hazard reductions of the understorey have been undertaken it is quite possible that viable seed banks will remain in the soil such that natural regeneration has the potential to occur particularly, when assisted by sensitive planning and environmental management.
· With respect to the connectivity and fragmentation of endangered and critically endangered species, a few remaining trees may well provide a critical link to maintaining and contributing to the long-term viability of refugia. Indeed, the cross-pollination of fragmented individuals and stands of eucalypt trees (including BGHF) may occur over extended distances.
· While seed dispersal contributes to regeneration it is less significant and effective than the genetic transfer associated with pollination. Pollination occurs in eucalypts such as those characterising the BGHF via a variety of active, non-specific pollinating vectors such as generalist insects and animals.
· Insects regularly disperse pollen over 100m but they also have the capacity to disperse pollen over distances of at least 1.6km. Species of eucalypts (including BGHF) that are subject to pollen dispersal by larger animals such as birds (e.g. lorikeets) are likely to be subject to cross-pollination over significantly longer distances. Such distances may be as great as 6km from a pollen source for eucalypts. Consequently, even relatively distal and isolated species can contribute significantly to the long-term genetic viability of endangered and critically endangered communities.
· In terms of protecting ecological communities, buffer zones play a significant role in mitigating undesirable edge effects associated with urban development. Edge effects are more marked in narrow buffers. Thus it would be prudent where feasible to maintain as a large a buffer as possible. Even where exotic vegetation surrounds native bushland (including BGHF), the removal of such vegetation is likely to have a negative impact, especially when it is replaced by urban development. Due to the effects of light, runoff, litter etc.
· An applicant should avoid development that would truncate, fragment or disconnect a BGHF stand at 'Rippon Grange'.
88 Buildings F, C and D all partly fall within the BGHF and as a result the application must fail.
Planning principle
89 There are individual trees in the northeast corner of the land identified by Dr Smith as being part of the BGHF and it is important that they be retained. These isolated plant species have not always been recognised as important and there is need to establish a planning principle:
Relatively distal and isolated plant species can contribute significantly to the long-term genetic viability of endangered and critically endangered communities and must be protected.
Site analysis
90 Ms Laidlaw considered that the 'Site Analysis' drawing (AR DA.01) submitted with the application was an inadequate representation of the constraints of the subject land, and at the very least in its failure to map or identify/ synthesise the fundamental development constraints presented led to a failure to:
a) map the curtilage recommendations (p. 137) or 'primary' and 'secondary' heritage zones (p. 136), including not only the curtilage/ zone boundary, but also the other recommendations as to building height and form as applicable to those designations.
b) clearly identify the extent of BGHF, which at the time of submission of the development application was an endangered (now critically endangered) ecological community to which specific environmental assessment procedures and considerations apply under the Act.
c) clearly identify the site's context, in terms of built form and character, including the height and architectural character of 'Rippon Grange', the predominant single and two storey dwellings nearby, or even (to take the applicant's arguments) the other 'Special Use' sites in the locality. Given the requirements of cl 31 of SEPP-SL, one would expect, at least, some commentary as to what this context would mean as to what could reasonably be achieved, in terms of height and built form, on the subject site.
d) clearly identify setbacks consistent with either the character of the surrounding area, or benchmark standards under DCP 38 on a consistent basis. The setbacks that are shown on DA AR.01 are generally those with which the ultimate development proposal either complies or varies to a small extent (but with a building height bearing no relationship to the two storey dwellings upon which the setback is derived). The setback is completely overlooked for the northeastern portion of the site, where Building F is now located (and which contravenes even the minimal setbacks indicated on DA AR.01, further south).
91 She considered, [Note: Exhibit 12, p 4]:
The purpose is to identify the constraints and opportunities of the site at an early stage to determine, broadly, those parts where development opportunity exists (ie those parts not affected by one or more constraints or not inconsistent with the constraint(s)) and the parameters that apply to any such 'development opportunity'.
92 Ms Laidlaw prepared figures illustrating the site constraints at key stages in the recent history of the land.
Figure 1 shows the site analysis, including fundamental constraints that would have been known, on reasonable enquiry, by the applicant, at the time of purchase, namely the key recommendations of the draft [Conservation Management Plan] CMP and the BGHF determined by UBM (this being similar on the eastern boundary to the designation of 'bush garden Blue Gums) on the Landscape Heritage drawing (draft CMP, p. 132), the individual significant trees identified by survey, and matters relating to site context.
Figure 2 shows the modified (reduced) heritage curtilage and recommendations of the final CMP and the 'primary' and 'secondary' heritage zones, together with UBM's determination of the extent of BGHF. This is the 'site analysis' that should, at the very least, have formed the basis of DA AR.01.
Figure 3 shows the modified heritage curtilage and also the modified (as per Smith) BGHF, representing the material (with the other elements of Figure 1) that would now form the basis of the site analysis, assuming one accepts the final CMP and also Smith's determination of the BGHF.
It will be noted that the constraints presented by each of these diagrams differ, to a significant extent, from the applicant's site analysis drawing DA AR.01 (refer Figure 4) which by way of illustration only:
· Does not identify the Blue Gum High Forest as a constraint per se. The shaded grouping of trees that broadly accords with [Urban Bushland Management] UBM's designated BGHF is simply notated as 'existing tall trees allowing filtered views (refer to arborist report and F & F assessment)...' and three 'opportunity zones' (broadly according with the positions of Blocks C, D and F) are shown encroaching this shaded area.
· Does not identify either the draft or final Conservation Management Plan curtilage or the additional (rather confusing) designation of primary and secondary heritage zones (there is a reference only to a 'nominal heritage zone'), or make any reference to the specific built form recommendations of either version DA AR.01 instead shows an 'opportunity zone' encroaching the revised heritage curtilage around the Stables, another encroaches the curtilage to the south of the croquet lawn (where the CMP recommendation is 'maximise distance to minimize impact') and another encroaches the reduced curtilage to the south of 'Rippon Grange'.
93 Ms Laidlaw continued:
While I agree there is some subjectivity as to exactly what level of detail should go into a site analysis drawing, the heritage provisions and BGHF are so fundamental to the process of establishing what the capacity of this site is for development, that omission of reference to them on DA AR.01 can only suggest that little weight was accorded to these constraints in the design development process.
Figure 4 - in which I have made some comparison (not exhaustive) between some of the constraints as shown on Figures 1, 2 and 3 and the actual DA proposal - confirms this to be the case - ie that there is a marked divergence between what a site analysis for this property should show, and what the proposal actually provides for.
Likewise, Figure 5, being AR DA.01 with the actual constraints of the heritage curtilage (final CMP) and BGHF (UBM) illustrates that the drawing per se, does not accord with the constraints of the supporting material it makes reference to.
I add that if the site analysis indicated by Figure 1 had been fed into the initial feasibility assessment to inform the purchase decision, then the view must reasonably have formed that the subject property had very significant environmental constraints and very limited development opportunity. There should not, therefore, be an argument now, that buildings of up to seven storeys in height, encroaching the Blue Gum High Forest and varying the provisions of even the less stringent final CMP, are necessary to ensure the feasibility of this project.
Further, although there has been modification to the BGHF boundary (by Dr Smith) compared to that originally determined on behalf of the applicant (by UBM) the final CMP is much less stringent than the draft CMP and has thus created greater development opportunity. Overall, the constraints that are now present are, at the least, no greater than the constraints that would have been known - even at a basic level of enquiry and analysis - at the time the property was purchased.
Likewise, as far as site context is concerned, even a cursory inspection at time of purchase, or at any time subsequently, would show this is an area of predominantly one and two storey dwelling houses of modest footprint and almost exclusively 'traditional' including pitched roof form. Nowhere in the vicinity of this site, including even the Special Use zones on which the applicant seeks to rely, is any justification drawn for buildings of 4-7 storeys, including built form located as close as 9 metres to a public road.
In summary, the major issue presented by this DA, in my opinion, is not whether the applicant has technically 'ticked off' all the headings under Clause 28(3) and (4) but rather whether the consent authority can be reasonably satisfied that the applicant has, as required by Clause 28, 'taken into account' the constraints indicated by the body of information available to, or collected by it. In my opinion, it has not.
94 Mr Boston was of the opinion that cl 28 of the SEPP-SL had been appropriately addressed having regard to the information contained on the site analysis plan DA AR 01 prepared by Tanner Architects and the supplementary documentation.
95 He advised the Court that the curtilage recommendations contained within the 2006 'Conservation Management Plan' and the area mapped as BGHF by Urban Bushland Management (or more recently Dr Peter Smith) do not serve as prohibitions to development.
96 We conclude that the site analysis plan prepared by Tanner Architects fails to meaningfully take into account the heritage significance of 'Rippon Grange' its gardens and the BGHF. We accept the evidence of Ms Laidlaw and reject that of Mr Boston and refuse the application for reason of an unsympathetic relationship of development with 'Rippon Grange' and that it fails to accord proper weight to the significance of the BGHF as well as the significance purpose and validity of the heritage curtilage.
Context, siting and the character
97 Under the heading of Issue 3, the council maintained that the proposal would be inconsistent with the provisions of the SEPP-SL and SEPP65 in relation to its context, siting and the character.
98 We accept the evidence of Ms Laidlaw that the subject property has very significant environmental constraints and very limited development opportunity even taking into account that within the original heritage curtilage some further development might be possible. As required by the Heritage Office it would need to be lower in height than proposed and under the 2001 'Conservation Plan' be single storey plus attic in height as a maximum. Therefore, any development within that curtilage would need to be subservient to the heritage significance of 'Rippon Grange'.
99 The area of land that might be built upon would be much less than the proposed 22% site coverage. This can be confirmed by overlaying both the extent of the BGHF as identified by Dr Smith and the original heritage curtilage.
100 In particular Buildings B1 and B2 close to 'Rippon Grange', are built within the original curtilage and in our opinion do not respect the heritage significance of the building and gardens. Buildings F, C and D are sited within the BGHF and would be likely to adversely affect the health and vigour of this critically endangered ecological community. Buildings B1, B2, F, C and part of A are also sited within the original heritage curtilage and we consider would adversely impact on the heritage significance of the 'Rippon Grange' and gardens. Thus, the proposal would have excessive site coverage, and encroach on the heritage significance of 'Rippon Grange' house and its gardens and must fail as a result.
101 Having failed on the above grounds a detailed assessment of the proposal in relation to bulk, scale and amenity impacts is not required. These impacts would be less if the development were smaller in footprint and lower of height.
102 For the above reasons, the appeal is dismissed.
Orders
103 Our orders are:
- The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.