NF Billyard Pty Limited v Penrith City Council

Texts Cited: Penrith Development Control Plan 2014
State of NSW, Office of Environment and Heritage, Threatened Species Test of Significance Guidelines (July 2018)

Category: Principal judgment

Parties: NF Billyard Pty Limited (Applicant)
Penrith City Council (Respondent)

Representation: Counsel:
M Astill (Applicant)
M Harker (Respondent)
Solicitors:
Blackstone Waterhouse Lawyers (Applicant)
Penrith City Council (Respondent)

File Number(s): 2025/105231

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER**:** This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Development Application DA23/0852 for the demolition of existing structures and construction of ten (10) town houses and associated works on land known as 82-84 Stafford Street, Kingswood (Lots H and G in DP 30611) by Penrith City Council (Council).

2. The key issues in the proceedings relate to the impact of the proposed development on remnant Cumberland Plain Woodland (CPW) on site and whether the development provides for an appropriate form and residential amenity.

3. A key question to be answered is whether the proposed development will have a significant impact on the critically endangered ecological community CPW in accordance with the requirements of the Biodiver**sity Conservation Act 2016 (NSW) (BC Act). The Council’s view is that it will have a significant impact and that therefore in accordance with the BC Act a Biodiversity Development Assessment Report (BDAR) is required. A BDAR has not been submitted, and Council therefore says that there is no power to approve the subject application. Further the Council says that even if the Court finds that the impact on threatened species does not reach the threshold to require a BDAR, the proposal will result in an adverse effect on the CPW which is in a rapid state of decline and will contribute to the risk of extinction through cumulative impacts.

4. In addition to ecological impact the Council also states that the application should be refused having regard to urban heat and sustainability impacts, as it will result in a suboptimal level of amenity for the future residents and as it presents an unacceptable built form.

5. The Applicant, NF Billyard Pty Limited (NF Billyard) in the alternative says that the proposal will have minimal impact on the CPW and will result in an acceptable built form and amenity.

6. For the reasons set out below I have determined that a BDAR is not required in accordance with the BC Act but that nevertheless the proposal will result in an unacceptable impact on the remnant CPW on site and will provide an unacceptable level of amenity to future residents. Further I find that the proposed development represents an overdevelopment of the site. Accordingly, the application is refused.

The Application

7. Amendments were made to the application prior to, and as a result of, joint expert conferencing and leave was granted during the hearing to rely on amended plans (Ex A Tab 8).

8. The application as amended then comprises:

9. Demolition of existing dwellings and associated structures

10. Removal of vegetation

11. Construction of a multi-dwelling housing development being 10 two storey townhouses (2 x 2 bedroom, 6 x 3 bedroom and 2 x 4 bedroom), and

12. Associated car parking areas, landscaping, earthworks and stormwater management works.

13. The Site has an area of approximately 1,757m2 and is rectangular in shape orientated in a north-south direction. It has a frontage width of 33 metres to Stafford Street to the north and a depth of 53 metres. It slopes from the front to the rear with a crossfall of approximately 1.5m. It is adjoined to the east by a multi dwelling housing development with access driveway adjacent to the shared boundary and to the west by an undeveloped corner allotment with frontages to both Stafford Street (north) and Parker Street (west). To the south the site is similarly adjoined by a multi dwelling housing development with access off Parker Street.

14. Development in the locality comprises a mix of one and two storey medium and low density residential development. Nepean Hospital is located 210m to the north and Kingswood Railway Station is located approximately 880m to the east.

Figure 1: Aerial photograph (Source: Ex 7)

11. The subject site accommodates ten established trees of which seven are proposed to be removed (Trees 1, 2, 6, 10, 11, 12 and 13). Trees 8, 9 and 14 (to be retained) in conjunction with groundcover species are characteristic of CPW and as outlined in the Revised Test of Significance (Ex 2, Annexure K) comprise a patch of CPW. Tree 7 which is located on the adjacent site also forms part of the identified CPW patch as shown in Figure 3 below.

Figure 2: Tree numbering (Source: Ex 2, p 28)

Figure 3: Ground truthed CPW (Source: Ex 2, Annexure K)

Issues

12. Following amendments to the application and joint expert conferencing the contentions remaining in dispute between the parties are Contention 1 – Impacts on Biodiversity values, Contention 2 – Tree Impacts and Planting, Contention 3 – Inappropriate Design, Spatial Arrangement and Overdevelopment and Contention 4 – Sustainable Development and Urban Heat as outlined in the Amended Statement of Facts and Contentions (ASOFAC) (Ex 7).

13. All other contentions were agreed between the parties.

The planning framework

14. The key issues in this the case relate to the impact of the proposed development on the critically endangered ecological community (CECC) Cumberland Plain Woodland (CPW), the built form and the amenity of the proposed development for future residents. Key relevant provisions are contained in the BC Act, Penrith Local Environmental Plan 2010 (PLEP) and Penrith Development Control Plan 2014 (PDCP). The key controls are summarised below:

Biodiversity Conservation Act 2016

15. The parties and their experts agree that the site accommodates vegetation that is CPW which is listed as being a critically endangered ecological community in the Sydney Basin Bioregion by virtue of Pt 1 of Sch 2 of the BC Act. Specially CPW is listed as described in the final determination of the Scientific Committee as follows:

2. Cumberland Plain Woodland is the name given to the ecological community in the Sydney Basin bioregion associated with clay soils derived from Wianamatta Group geology, or more rarely alluvial substrates, on the Cumberland Plain, a rain shadow area to the west of Sydney’s Central Business District. The mean annual rainfall of this area is typically in the range of 700-900 mm, and is generally lower than that received on more elevated terrain that partially surrounds the Plain. The community typically occurs on flat to undulating or hilly terrain up to above 350m elevation but may also occur on locally steep sites and at slightly higher elevations. Cumberland Plain Woodland is characterised by the assemblage of species listed in paragraph 3 and typically comprises an open tree canopy, a near-continuous groundcover dominated by grasses and herbs, sometimes with layers of shrubs and/or small trees. Shrubs may sometimes occur in locally dense stands. Less disturbed stands of the community may have a woodland or forest structure. Small trees or saplings may dominate the community in relatively high densities after partial or total clearing, and the groundcover may be relatively sparse, especially where densities of trees or shrubs are high. The community also includes ‘derived’ native grasslands which result from removal of the woody strata from the woodlands and forests (Ex 2, Annexure G)…

16. Section 1.7 of the EPA Act provides that the EPA Act has effect subject to the provisions of Pt 7 of the BC Act. Section 7.7(2) of Pt 7 of the BC Act provides in respect of Pt 4 Development assessment and consent of the EPA Act that if a “proposed development is likely to significantly affect threatened species, the application for development consent is to be accompanied by a biodiversity development assessment report”. Further the BC Act provides guidance on when development is to be determined to be likely to significantly affect threatened species including relevantly:

7.2 Development or activity “likely to significantly affect threatened species”

(1) For the purposes of this Part, development or an activity is likely to significantly affect threatened species if—

(a) it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in section 7.3, or

….

and

7.3 Test for determining whether proposed development or activity likely to significantly affect threatened species or ecological communities, or their habitats

(1) The following is to be taken into account for the purposes of determining whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats—

….

(b) in the case of an endangered ecological community or critically endangered ecological community, whether the proposed development or activity—

(i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or

(ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,

…..

(2) The Minister may, by order published in the Gazette with the concurrence of the Planning Minister, issue guidelines relating to the determination of whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats. Any such guidelines may include consideration of the implementation of strategies under the Biodiversity Conservation Program.

17. The Minister has published Guidelines in accordance with 7.3(2) of the BC Act above entitled Threatened Species Test of Significance Guidelines (Office of Environment and Heritage, July 2016) (Ex 6).

Penrith Local Environmental Plan 2010

18. The Site is zoned R3 Medium Density Residential under the PLEP. The proposed multi dwelling housing is permissible with consent in the zone. Clause 2.3(2) of PLEP requires the Court, in exercising the functions of the consent authority, to “have regard to the objectives for development in a zone when determining a development application in respect of land within the zone”. The zone objectives are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for a concentration of housing with access to services and facilities.

• To enhance the essential character and identity of established residential areas.

• To ensure that a high level of residential amenity is achieved and maintained.

• To ensure that development reflects the desired future character and dwelling densities of the area.

19. Clause 7.30 of the PLEP in relation to urban heat also applies as follows:

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that planning and design measures are incorporated to reduce the urban heat island effect that—

(a) maximise green infrastructure, and

(b) retain water in the landscape, and

(c) use design measures to ensure the thermal performance of the development achieves a high degree of passive cooling, and

(d) use building, paving and other materials that minimise heat impacts, and

(e) reduce reliance on mechanical ventilation and cooling systems, to conserve energy and to minimise heat sources.

Green infrastructure is defined in the clause as “***‘***the network of green spaces, natural systems and semi-natural systems including waterways, bushland, tree canopy, green ground cover, parks and open spaces, that—

(a) supports sustainable communities, and

(b) is strategically designed and managed to support a good quality of life in an urban environment.”

Penrith Development Control Plan 2014

20. Part C2 Vegetation Management of the PDCP includes a range of controls in respect of the preservation of trees and vegetation. In particular, Section 2.1 includes the following objectives:

a) To protect and conserve the biodiversity values of trees and other vegetation in the City, and

b) To maintain the diversity and quality of ecosystems and enhance their capacity to adapt to change, and

c) To support conservation and threat abatement action to minimise biodiversity loss and conserve threatened species and ecological communities in nature, and

d) To protect and enhance biodiversity corridors, landscape character and scenic values of the City; and

e) Recognise the importance and function of trees and other vegetation for Cooling our City, and

f) To preserve the amenity of the City through the preservation of trees and other vegetation, and

g) To preserve existing trees and other vegetation where possible during the planning, design, development and construction process, and

h) To firstly avoid or minimise impacts of a proposed development and land use change on biodiversity and if impacts are unavoidable provide appropriate offsets, and

i) To achieve an appropriate balance between the protection of trees and other vegetation and mitigating risks from natural hazards.

21. It also includes the following controls:

6. Trees and New Development - Site Planning and Design

The following controls apply where the removal of trees and other vegetation is proposed as part of a development application for a proposed use permissible under the relevant zone of Penrith LEP 2010:

…

b) The siting and layout of a development should consider, at the initial concept stage, the location of trees and other vegetation (including on adjoining land) and favour their retention.

c) Buildings, Asset Protection Zones and Effluent Management Areas are to be sited on existing cleared land, where possible.

d) Where a stand of trees is to be retained, any associated native understorey should also be retained.

…

j) Any proposed building or structure are to be located outside the tree protection zone for retained trees. Council may consider a variation based on an appropriate arboricultural assessment.

k) Hard (or impervious) surfaces are not permitted under the drip line of any tree.

…

22. PDCP also includes detailed built form, solar access and amenity controls which are relevant including Sections 1.2.3 Building Form – Height, Bulk and Scale, 2.4.4 Urban Form, 2.4.5 Front and Rear, 2.4.9 Solar Planning and 2.4.14 Design of Dwellings and Private Courtyards.

23. Other planning controls apply to the proposed development however are not relevant to the key issues in this case.

Public submissions

24. The original application was notified between 23 October and 6 November 2023. No submissions were received during the notification period, and no submitters addressed the Court at the commencement of the hearing on site.

The expert evidence

Arboriculture and Ecology

25. Expert opinion evidence was given in respect of arboriculture, ecology and landscape by Mr Stuart Sutton (Arborist), Mr Martin James (Ecologist) and Ms Rebecca Surian (Landscape Architect) engaged by NF Billyard and Ms Donna Montgomery (Tree Management Officer) and Ms Danielle Adams-Bennett (Senior Biodiversity Officer) employed by Penrith City Council.

26. All experts participated in the Arboriculture, Landscape and Biodiversity Joint Expert Report (ALB JER) (Ex 2) and provided oral evidence to the Court. The ALB JER addresses Contentions 1 – Impacts on Biodiversity values, 2 – Tree Impacts and Planting, and 4 – Sustainable Development and Urban Heat which remain in dispute between the parties.

27. The key issue in relation to arboricultural matters is whether the proposed development will have an adverse impact on the root systems of CPW trees T7, T8, T9 and T14 such it would result in the death of the trees or affect their longevity. The experts Mr Sutton and Ms Montgomery agree that no adverse impact will result to tree T7 (which is located on the neighbouring property) and that following changes to the proposed retaining wall at the front of the property, the impact on Trees 15 and 16 (street trees) is acceptable. They disagree in respect of the impacts on trees T8, T9 and T14 which are Eucalyptus Moluccanas (Grey Box) and which form CPW trees. Mr Sutton described the level of encroachment into the tree protection zone (TPZ) of each tree as: T8 (16%), T9 (12%) and T14 (10%) and noted that tree sensitive design and construction was proposed (which includes construction on piers and beams) within the TPZ of these trees. He opines at p 22 (Ex 2) that with the proposed design and construction measures the proposed development will have no short or long term impact on the retained trees. Further Mr Sutton is of the view that there is no requirement under AS4970-2000, or any scientific reasoning, to treat Trees 8, 9 and 14 any different to other trees of similar species notwithstanding their ecological significance (Ex 2 P 33).

28. Ms Montgomery on behalf of Council opines that the proposed development does not provide sufficient setbacks from the existing trees (in particular Trees 8, 9 and 14) to protect the trees during construction or to facilitate their continued growth (Ex 2, p 22). She does not accept that the proposed tree sensitive design and construction will ensure the protection and continued growth of the trees. She also notes that ‘these trees already have a modified tree protection zone due to proximity to neighbouring properties and site impediments that prevent a symmetrical root plate from developing’ and that ‘as a result the trees will have a greater reliance on the existing open ground on the subject site for root development’ (Ex 2, p 35). Further she considers that the ecological status of Trees 8, 9 and 14 should elevate their status and afford them full TPZ setbacks to ensure their protection and continued growth (Ex 2, p 33).

29. Subject to what the arborists say regarding the potential for Trees 8, 9 and 14 to survive (and thrive) the ecological experts also disagree on the impact of the proposed development on CPW including both the trees themselves and the understorey (groundcover species including primarily grasses). The ecological experts agree that the understorey of the CPW patch on site would likely be removed as part of the proposed development although Mr James is of the view that there is the potential for grasses to endure on site given grasses evident on other nearby sites which are present notwithstanding mowing. Mr James is also of the view that the trees will be adequately protected by the proposed construction methodology. Ms Adams-Bennett disagrees relying on the advice of Ms Montgomery noting that “there is uncertainty of whether the Cumberland Plain Woodland trees will remain viable during, and post development based on the impacts associated within the development” (Ex 2, p 14).

30. The ecological experts considered that adequacy of the revised Test of Significance (Ex 2, Annexure K) prepared by Mr James for the purposes of Pt 7 of the BC Act which considers the worst-case scenario where the occurrence of CPW within the site would be lost. The revised Test of Significance concludes that 9.1% of the local occurrence (taken to be 200m radius although there is an argument as to whether this area could be greater) would be lost in the worst case scenario and that this would not result in a significant impact on the local occurrence of CPW. In the best-case scenario, that is where the three CPW trees are retained and only the ground cover plants are lost, the revised Test of Significance concludes that approximately 1% of the local occurrence of CPW would be lost and that this similarly would not result in a significant impact on CPW.

31. The ecological experts disagree in respect of what has been identified as the local occurrence of CPW in both the original and revised Test of Significance. Ms Adams-Bennett identified a lack of scientific evidence and site validation in respect of areas of CPW identified by Mr James in the revised Test of Significance. Further there is disagreement regarding whether single isolated trees meet the identified definition of CPW. Mr James considers that subject to a relatively undisturbed soil profile (which accommodates native soil microbes, seed bank etc), proximity to other CPW trees and evidence of a contribution to the connectivity of CPW habitat and movement of CPW fauna, they would meet the definition and have therefore been included. Ms Adams-Bennett disagrees that sufficient scientific evidence and validation has been provided to establish that some of the areas included are in fact CPW. Further she is of the view that at least in respect of the understorey stratum the local occurrence is likely to be confined to the subject property (Ex 2, p11).

32. Mr James takes the view that CPW remnants that are critical to the long term conservation of the CECC are those within which there is likely to be natural regeneration including public reserves, parks, schools and the like (Ex 3 Annexure K, p 3). Ms Adams-Bennett disagrees stating that the Test of Significance Guidelines do not make a reference to requiring this to be considered (Ex 2 p 10). Ms Adams-Bennett considers that:

The development will result in the removal of the understory composition and there would be no capacity for any natural regeneration of understory or canopy species in a maintained private open space. In addition, there is no proposed mechanism to enforce occupiers that trees that may die in the future are replaced with the same species comprising of local provenance species of CPW that forms part of this development. Future owners may not want tree species planted that would grow to the same height especially in cases when occupiers may have a fear of large trees dropping branches. Further the backyards may not have the space to provide a new tree to grow to the same height and maturity as the existing trees. The site through long term degradation and changes to the soil profile the CPW would not meet the scientific determination for Cumberland Plain Woodland.

It is difficult to provide scientific evidence in a context like this development to accurately identify the local occurrence of the Cumberland Plain Woodland and confidently predict or rely on the retention of all other identified CPW trees in the locality to support the conclusions that the development would not have a significant impact on the local occurrence of Cumberland Plain Woodland. (Ex 2 p 12)

33. Ms Adams-Bennett refers to Section 5: Decision Making of the Threatened Species Test of Significance Guidelines which states ‘Application of the precautionary principle requires that a lack of scientific certainty about the potential impacts of an action does not itself justify a decision that the action is not likely to have a significant impact. If information is not available to conclusively determine that there will not be a significant impact on a threatened species or ecological community, or its habitat, then it should be assumed that a significant impact is likely’ (Ex 6, p 11).

Town Planning

34. Expert opinion evidence was given in respect of town planning matters by Mr Jonathan Wood engaged by NF Billyard and by Ms Hannah Vousden engaged by the Council. The experts produced a Town Planning Joint Expert Report (Town Planning JER) (Ex 3) and provided oral evidence to the Court. The town planners provided evidence in respect of Contention 3 – Inappropriate Spatial Arrangement and Overdevelopment and Contention 4 – Sustainable Development and Urban Heat which remain in dispute or partly in dispute between the parties.

35. In relation to Contention 3 – Inappropriate Spatial Arrangement and Overdevelopment the experts have agreed in the Town Planning JER that the remaining matters in dispute include:

36. Front setback;

37. Solar access to courtyards;

38. Articulation to the middle of the ‘3 pack’ of dwellings;

39. Private open space access; and

40. Living area widths.

with Ms Vousden concluding that the proposal is an overdevelopment saying that less dwellings would enable a more desirable outcome and better amenity. Mr Wood to the contrary says that while this may be the case it is not necessary when considering each of the various elements (Ex 3, p 6).

36. The town planners agree that Contention 4 – Sustainable Development and Urban Heat relates substantially to the ability to retain trees on the site which is being considered by the landscape and arborist experts and which remains at issue. They agree in relation to solar access to internal areas but not in respect of whether the solar access to private open space areas is acceptable (Ex 3, p 7).

Other experts

37. Joint expert conferencing was also undertaken in respect of acoustics and traffic however all matters were agreed and therefore oral evidence was not adduced.

Consideration

Impact on local occurrence of CPW

38. The key issue in this matter is the impact of the proposed development on the critically endangered ecological community Cumberland Plain Woodland. In accordance with s 7.3 of the BC Act I am required to consider (1) whether the proposed development is likely to significantly affect threatened species or ecological communities, or their habitats and (2) whether the proposed development or activity is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction [16]. If I find this to be the case, in accordance with s 7.7(2) of the BC Act the application is required to be accompanied by a BDAR. This is a jurisdictional requirement and as no BDAR accompanies the application, if required, in accordance with the provision there would be no power to approve the application.

39. Key to determining whether the proposal is likely to have an adverse effect on the extent of CPW such that its local occurrence would be placed at risk of extinction, is definition of the ‘local occurrence’ of CPW. While local occurrence is not a defined term, I accept Mr Astill’s submission that the local occurrence of CPW is broader than the site itself. A 200m radius for the local occurrence has been used to determine the impact in the Revised Test of Significance (Ex 2, Annexure K) although Mr Astill argues that this is conservative and that it could be much larger. The Revised Test of Significance concludes that in the worst case scenario (assuming the three CPW trees on site do not survive) the removal of CPW on the subject site will result in a reduction of 9.1% (597m2) of the local occurrence of CPW including the three CPW trees and approximately 60m2 of groundcover plants.

40. Ms Adams-Bennett has undertaken a validation of the local occurrence of CPW identified in the original Test of Significance (Ex A Tab 23 Appendix D) within a 400m radius while noting changes included to the occurrences in the Revised Test of Significance (Ex 2, Annexure K). This validation questions a number of the patches of CPW included in the local occurrence. Mr James has also provided further advice (Ex E) in respect of the occurrence of CPW groundcover species which he says are common throughout the area (including notably on a site at 65-69 Stafford Street which is 100m from the subject site) notwithstanding mowing and other disturbances.

41. Contrary to the advice of Mr James, I accept that CPW remains in a rapid state of decline as outlined by the NSW National Parks and Wildlife Service on its website (Ex 9) and as concluded by Dickson C in Statewide Planning Pty Ltd v Blacktown City Council [2022] NSWLEC 1024 and that cumulative impact is a significant contributor to this decline.

42. However, notwithstanding the advice of Ms Adams-Bennett I accept the evidence of Mr James that the local occurrence of CPW is as identified in the Revised Test of Significance and accordingly that the worst case level of impact is as identified therein. Based on this level of impact and evidence of the occurrence of CPW trees and groundcover species within the local area as identified by Mr James, I consider that it is not likely that the proposal will “have an adverse effect on the extent of CPW, such that its local occurrence would be placed at risk of extinction”. I come to this conclusion mindful of the His Honour Preston CJ’s advice in respect of this issue in Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council (2010) 210 LGERA 126; [2010] NSWLEC 48. At [99] his Honour states that “reference to other cases where assessment of significance of loss of EECs have been made is not particularly helpful” and that “each case must turn on its own facts”. In reaching the conclusion that the proposal is not likely to place the local occurrence of the EEC at risk of extinction I have considered that:

(a) The quantitative effect could be, at a maximum, to remove three trees and a small number of plants of twelve (12) CPW ground cover species which comprises as a worst case 9.1% of the identified local occurrence of CPW; (b) Evidence has been provided that the local occurrence could in fact be greater than the 200m radius utilised in the Revised Test of Significance and that the three CPW trees may indeed survive and that therefore the impact could be less than estimated; and (c) CPW is a widespread ecological community.

43. Accordingly, I find that a BDAR is not required in accordance with s 7.3 of the BC Act in this instance and that it is open to the Court to approve the subject application.

44. However, while I find that a BDAR is not required in this instance, as I am not satisfied that the impact meets the threshold required to demonstrate that the proposal will result in an adverse effect to the extent that it would place the local occurrence of CPW at risk of extinction, I consider that the CPW trees and groundcover species on site form a key site constraint and that the proposed development will result in an adverse impact on these having regard to the provisions of s 4.15 of the EPA Act. In particular, the adverse impact of the proposal on CPW on site is inconsistent s 4.15(b) the natural environment and that further having regard to this impact the site is not suitable for the proposed development in accordance with s 4.15(c) of the EPA Act.

Arboricultural Impact

45. In respect of arboricultural impacts, the proposal seeks to construct new dwellings (Units 4 and 5) within the TPZ of the three CPW trees with a proposed TPZ encroachment of T8 (16%), T9 (12%) and T14 (10%) respectively. I note that in accordance with AS4970-2009 (which the experts agree is relevant) an encroachment into a TPZ of greater than 10% is considered to be a major encroachment. I further note that tree sensitive design and construction is proposed (including construction on piers and beams) however agree with the evidence of Ms Montgomery that the trees should be treated as a key site constraint and that development within their TPZ’s should be avoided. I note that root mapping has not been undertaken in this case and that the proposal has the potential to significantly impact the root structure and long term viability of the trees particular given that as identified by Ms Montgomery (Ex 2, p 35):

Trees 8, 9 & 14 already have a modified tree protection zone due to the proximity of neighbouring properties and site impediments (e.g. retaining walls, adjacent hardstand / building) that prevent a symmetrical root plate from developing. As a result, the trees will have a greater reliance on the existing open ground on the subject site for root development.

46. Whilst the proposed tree sensitive design and construction is preferrable to standard construction, I accept the advice of Ms Montgomery that the proposed construction within the TPZ will likely affect water availability beneath the suspended slab and impact the continued healthy growth of the trees.

47. I therefore find that the proposal is contrary to s 4.15(b) and (c) of the EPA Act in that it is likely to adversely impact the natural environment in particular the existing CPW trees on site and accordingly is not suitable for the site having regard to this adverse impact. I further find that the proposal is contrary to cl 7.30 Urban Heat of PLEP [19] as I am not satisfied that in accordance with cl 7.30(3) adequate “planning and design measures are incorporated to reduce the urban heat island effect that - (a) maximise green infrastructure...”

48. Further I consider that the proposal is not consistent with the provisions of Part C2 Vegetation Management of PDCP in respect of the preservation of trees and vegetation. In particular I find that the proposed development is inconsistent with the objectives of Section 2.1 including:

a) To protect and conserve the biodiversity values of trees and other vegetation in the City, and

b) To maintain the diversity and quality of ecosystems and enhance their capacity to adapt to change, and

c) To support conservation and threat abatement action to minimise biodiversity loss and conserve threatened species and ecological communities in nature, and

d) To protect and enhance biodiversity corridors, landscape character and scenic values of the City; and

e) Recognise the importance and function of trees and other vegetation for Cooling our City, and

f) To preserve the amenity of the City through the preservation of trees and other vegetation, and

g) To preserve existing trees and other vegetation where possible during the planning, design, development and construction process, and

h) To firstly avoid or minimise impacts of a proposed development and land use change on biodiversity and if impacts are unavoidable provide appropriate offsets, and

i) To achieve an appropriate balance between the protection of trees and other vegetation and mitigating risks from natural hazards.

49. In addition I find that the proposal is inconsistent with key controls at Part C2 Section 2.1 Subsection 6 Trees and New Development – Site Planning and Design as outlined at [21] above including most significantly:

b) The siting and layout of a development should consider, at the initial concept stage, the location of trees and other vegetation (including on adjoining land) and favour their retention

j) Any proposed building or structure are to be located outside the tree protection zone for retained trees. Council may consider a variation based on an appropriate arboricultural assessment.

k) Hard (or impervious) surfaces are not permitted under the drip line of any tree.

…

Spatial Arrangement and Overdevelopment

50. I have also considered the design of the proposed development in light of Contention 3 in which the Council says the application should be refused as the proposed dwelling design and spatial arrangement of the development is unsatisfactory and reflects an overdevelopment of the site. While I note that some of the particulars have been agreed between the planning experts, I concur with Ms Vousden that the proposal is unacceptable having regard to the provisions of the PDCP and will result in a poor amenity for the future residents. In particular:

51. The proposed design is inconsistent with Section 2.4.9 Solar Planning of the PDCP and will not provide adequate solar access to the courtyards of Units 3, 5, 6, 8 and 9 as required; and

52. the internal layout of the living areas of Unit 2, 3, 6, 8 and 9 is unacceptable, unduly constrained and does not provide adequate space for furniture and circulation and is inconsistent with the intent of Section 2.4.14(3) of the PDCP.

53. Further in respect of residential amenity I find that the proposed design is not consistent with the following objective of the R3 Medium Density zone as specified in the PLEP:

To ensure that a high level of residential amenity is achieved and maintained.

52. Having regard to the above I also find that that the proposed development represents an overdevelopment of the site particularly as evidenced by its potential to adversely impact the existing CPW on site, resulting in encroachments into the TPZs of CPW trees on site thus placing them at risk of survival and having regard to the poor amenity outcomes that results from the proposed design. I consider that the poor amenity outcome is the direct result of the proposed seeking to accommodate too many units on site and not having due regard to the site constraints.

53. I therefore find that the proposed development is unacceptable having regard to its likely impact on CPW and CPW trees on site and having regard to poor amenity outcomes. I therefore find that the site is not suited to the proposed development and that it represents an overdevelopment of the site. Accordingly, the application is refused.

Orders

54. The Court orders that:

55. The appeal is dismissed.

56. Development application DA23/0852 for the demolition of existing structures and construction of ten (10) town houses and associated works on land known as 82 – 84 Stafford Street, Kingswood (Lots H and G in DP 30611) is refused.

57. The Exhibits, other than Exhibit A and 7, are returned.

H Miller

Acting Commissioner of the Court

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