Oboodi v Hornsby Shire Council

The site and its locality

1. The site is legally known as Lot 41 in DP 714483. It is on the south-western side of Malton Road and contains an existing two storey dwelling at the street frontage, which is accessed via an existing driveway from Malton Road. The site is 3777m2, and falls steeply at the rear, to the south. The site has an average fall of 18% from the north eastern front boundary to the south western rear boundary.
2. The area where the dwellings are proposed to be sited is largely cleared and vacant, except for a small number of remnant trees and a shed. The site then falls considerably, at a gradient of around 15%, towards the south western rear boundary, where there is a narrow corridor of highly vegetated dry sclerophyll open forest.
3. In accordance with the Hornsby Bushfire Prone Land Map, the site is part of the 100m buffer zone to the Category 1 Bushfire Prone Vegetation that is located to the north west of Malton Road and the northwest of the site.
4. The approved Torrens title subdivision of one allotment into three lots comprises the following lots:

• Lot 1 - 964m2, which contains the existing two-storey dwelling house;
• Lot 2 - 1350m2, to the rear of Lot 1; and
• Lot 3 - 1452m2, to the rear of 90 Malton Road.

1. Both lots 2 and 3 are restricted from developing buildings in the rear portion of the site due to a restricted development area comprising the vegetated forest, watercourse and sewerage lines that traverse through the two lots.
2. The locality generally comprises low density residential development characterised by single dwellings. A large number of the surrounding dwelling houses are considered to have formed part of the original housing stock of the area, but there are also some examples of new infill housing on recently subdivided allotments.

The planning framework

1. The site is zoned R2 Low Density Residential pursuant to the Hornsby Local Environmental Plan 2013 ("HLEP 2013"). The objectives of the R2 zone, to which regard must be had, are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
2. Clause 4.3 of HLEP 2013 requires that the height of a building on the land not exceed the maximum height shown on the Height of Buildings Map in HLEP 2013. The maximum height on that map is 8.5m. The further amended plans show that the proposed development is compliant with this height development standard.
3. The site is within the Beecroft-Cheltenham Heritage Conservation Area ("HCA"), pursuant to Part 2 of Schedule 5 of HLEP 2013. The street trees and bushland in the road reserve of Malton Road are identified as a heritage item (item 14, Schedule 5, LEP 2013). Clause 5.10 outlines the importance of heritage conservation and cl 5.10(4) provides: "The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6)."
4. The Hornsby Development Control Plan 2013 ("HDCP 2013") divides the HCA into 5 precincts. The site is located within Precinct 1, the Beecroft-Cheltenham Plateau Precinct, but the other side of Malton Road is Precinct 4, the Gullies Precinct. The character statement for Precinct 1 identifies that the building periods are Federation, Edwardian and Interwar, with infill development from later periods also present in most areas. The character statement includes the following: "f. Buildings are predominantly single storey in scale, and are well articulated in the manner characteristic of the period. g. Stone foundations, face brick with rendered detailing of small areas and terracotta or slate tiled roofs are typical. h. Mature trees, including remnant forest trees, combine to create a landscaped character. The gardens and private domain plantings contribute to this character."
5. In contrast, the Gullies precinct is identified as having development from the post war and modern periods in a mix of single and two storey built form. The character statement includes the following: "t. The land is typically sloping and includes bluffs and rock outcrops, with some original and regrowth forest communities. u. The subdivision pattern is irregular with some cul-de-sacs. v. Development is mostly from the post war and modern periods in a mix of single and two storey built form."
6. The controls for the HCA are as follows:
7. Other relevant provisions of the HDCP 2013 are considered further below.

Evidence of the objectors

1. Seven resident objectors gave evidence and made submissions at the commencement of the hearing onsite. The following is a summary of the issues raised:

• The adequacy of the asset protection zone ("APZ") and of the proposed Bushfire Attack Level ("BAL") construction requirements;
• Insufficient setbacks and non-compliances with the HDCP 2013;
• Overlooking, privacy and amenity impacts on adjoining properties;
• The visual dominance of the proposed dwellings from adjoining properties;
• Potential geotechnical damage to adjoining properties;
• The impact on the heritage conservation area;
• Non-compliance with the existing Vegetation Management Plan;
• Inadequacy of the physical condition of the driveway on the existing easement on 90 Malton Road to provide access to the dwelling on Lot 3, and lack of owners consent for any works to be carried out on the driveway;
• Overshadowing of adjoining properties;
• Inconsistencies with the approved subdivision;
• Biodiversity impacts;
• Lack of a transport management plan for during construction; and
• Flooding risks for downstream properties.

1. These issues are largely addressed by the agreement of the experts who gave evidence in the proceedings. The remaining concerns are dealt with in my consideration of the contentions raised by the Council.

Engineering evidence

1. Mr Ahmed Yazdani, an engineer employed by the Council, and Mr Christopher Paunescu, an engineer engaged by Mr Oboodi, prepared a joint report that was tendered at the hearing and also gave concurrent evidence. They agree that the driveway that traverses the length of the existing easement complies with the Australian standards with respect to maximum change in gradient. They both agree that the vehicular movement templates demonstrate that B85 vehicles can exit the driveway in a forward facing direction, consistent with the requirements of the HDCP 2013. Mr Paunescu's evidence, which is not disputed by Mr Yazdani, is the driveway on the existing easement is of adequate width and accessibility to service the proposed development.
2. They also agree that vehicular access for bushfire management can be obtained via the approved central driveway (between 90 and 88 Malton Road).
3. With respect to stormwater management, Mr Paunescu and Mr Yazdani agree that the drainage network previously approved for the subdivision is adequate to accommodate additional stormwater flow from hardstand surfaces associated with the proposed dwellings. Mr Yazdani notes that the 1000L rain water tanks proposed to be added to the system will further reduce run off.

Heritage evidence

1. Mr John Oultram, a heritage consultant engaged by the Council, and Mr James Phillips, a heritage consultant engaged by Mr Oboodi, prepared a joint report that was tendered at the hearing and also gave concurrent evidence on the design of the proposed dwellings given their location in the HCA. They both agree that the immediate character of the area is less historic than the upper sections of Malton Road, and includes two storey dwellings to the north and west.
2. They consider that the orientation of the houses is appropriate, and that the increased setbacks, created by a chamfer at two points on the dwelling on Lot 2 in the amended plans, create adequate separation between the dwellings so that they will not be read as a continuous built form. Mr Oultram and Mr Phillips agree that this amendment, together with the introduction of the pitched roof in a set of pavilions interspersed with flat rooves, enhances the compatibility of the proposed dwellings with the character of the area. Whilst there are some elements of the proposed dwellings that are not set back as far, they consider that the primary form is sufficiently set back to create a view corridor between dwellings, which is characteristic of the area.
3. Additionally, Mr Oultram considers that whilst the treatments of the elevations can be more contemporary given that they will not be highly visible from the street, the form and materials should generally respond to the character statement for the HCA. As such, Mr Oultram's evidence is that the roof should be tiled and that the bulk of the building should be face brick, with some render elements. He considers that the dwellings in the area that are in face brick tend to fit better into the topography and the landscaped setting of the locality, whereas render tends to exacerbate the scale of the building. The further amended plans, provided after the hearing, show the use of face brick on the elevations and tiled rooves.
4. With respect to the landscape character of the area in the context of its heritage character, Mr Phillips and Mr Oultram agree that the dwellings are sensibly placed and will not change the landscape character of the area. They consider that, in contrast to dwellings closer to the station that are characterised by formal gardens, the dwellings in this part of Malton Road are within the "more natural" part of the conservation area where the original canopy is the dominant feature. They agree that the retention of the canopy trees in the gully area will maintain that dominant feature.

Bushfire evidence

1. Ms Catherine Gorrie, a bushfire consultant engaged by the Council, and Mr Graham Swain, a bushfire consultant engaged by Mr Oboodi, prepared a report together with the arborists, which was tendered at the hearing. They also gave concurrent evidence on bushfire protection for the proposed dwellings. The asset protection zone, or the area to be managed as an inner protection zone, is now 16m on lot 2 and 21m on lot 3, which are the distances from the restricted development area to the deck on each lot respectively.
2. Mr Swain points out that whilst the land in the restricted development area is not mapped as bushfire prone, he has taken a conservative approach to determine the BAL. As a result of Ms Gorrie and Mr Swain's calculations of construction standards required given the short fire run (as a full fire front of 100m would not be achieved on the site given that there is only a 20m wide corridor of vegetation), they agree on the imposition of the following conditions to protect the dwellings from the risk of bushfire: "Design and Construction The intent of measures is that buildings are designed and constructed to withstand the potential impacts of bush fire attack. To achieve this, the following conditions shall apply: a) All new fencing shall be non-combustible. b) New construction on Lot 2 to comply with sections 3 and 8 (BAL 40) of AS3959-2009 or NASH Standard to all elevations except those facing Northwest, which shall comply with sections 3 and 7 (BAL 29) of AS 3959-2009 or NASH Standard. c) New construction on Lot 3 to comply with sections 3 and 7 (BAL 29) of AS3959-2009 or NASH Standard to all elevations except those facing Northeast, which shall comply with sections 3 and 6 (BAL 19) of AS 3959-2009 or NASH Standard. d) South facing decks to be non-combustible."
3. Further, in order to meet the requirement for a pathway to access the asset protection zone, they agree on the imposition of the following condition: "Drawing L2-A102 is to be amended to provide a 1m wide clear path of travel adjacent to the common boundary from the front driveway to the rear landscaped buffer to enable access for both maintenance of the landscaped buffer and RDA and for fire fighting purposes."
4. Mr Swain also gave evidence that the installation of a hydrant at the end of the approved central driveway, which was part of the subdivision proposal, would satisfy the requirement to provide water for fire fighting and that a 5000 litre water supply (required by the Council) need not be provided on each lot for the proposed dwellings.
5. Mr Swain and Ms Gorrie also agree that the sketched landscape plan, prepared by Ms Catriona Mackenzie (Ex H), adequately achieves the requirements for inner protection areas, including minimising canopy trees, and planting trees and understorey in clumps.

Aboricultural evidence

1. Mr Guy Paroissien, an arborist engaged by the Council, and Ms Catriona Mackenzie, an arborist engaged by Mr Oboodi, prepared a joint report that was tendered at the hearing and also gave concurrent evidence on the proposed plantings and the removal of trees.
2. There are 5 trees to be removed on Lot 2, and 9 trees to be removed on Lot 3. Of those 14 trees, Mr Paroissien and Ms Mackenzie agree that 5 have medium retention value, and 9 have low retention value. These numbers do not include the removal of weed species in the restricted development area.
3. However, there is some disagreement between them on whether the outcome is acceptable, which is considered further below.

Planning evidence

1. Mr Kerry Nash, a town planner engaged by the Council, and Mr Andrew Minto, a town planner engaged by Mr Oboodi, prepared a joint report that was tendered at the hearing and also gave concurrent evidence on the town planning issues, including the bulk and scale of the dwellings and the impacts of the proposed dwellings on adjoining properties.
2. They agree that as a result of the amendments to the plans, the direct amenity impacts have been resolved. Specifically, they agree that there will be no direct overlooking of the adjoining residences at 86A and 94 Malton Road. The window of the ground floor living area of the dwelling on Lot 2, which faces the verandah at 86A Malton Road, now has a fixed translucent panel above 1500mm height, with clear glazing below with operable panels. As such, due to the difference in floor levels of the level where the window is located (RL 95.20), and the verandah of the adjoining property (RL 97.46), a person carrying out the day to day use of the living room will not have a line of sight up to the adjoining property at 86A Malton Road. On the dwelling on Lot 3, the balcony depth adjacent to one of the bedrooms has been reduced, and the balustrades for the balconies at both levels will be obscure glass. Mr Minto and Mr Nash agree that this means that when people are in the living spaces adjacent to the balconies, or when they are sitting on the balcony areas, they will not overlook 94 Malton Road.
3. Further, Mr Minto and Mr Nash agree that the addition of privacy screens along the boundary of the dwelling on Lot 3 will remove potential overlooking of the private open space and dwelling at 92A Malton Road.
4. However, the experts disagree on the extent of the cut and fill, the site coverage or scale of the development, the adequacy of the private open space, the visual impact on 92A Malton Road and whether access from the existing easement is appropriate. This is considered further below.

Matters for determination

1. It is clear that the evidence establishes that there remains no issue with respect to heritage conservation, the adequacy of the driveway on the existing easement, the privacy of adjoining dwellings, and the adequacy of bushfire protection and stormwater management.
2. As a result of the further amended plans and the evidence of the experts, the matters for determination are confined to the following issues:

• Whether the scale and site coverage of the proposed dwellings is acceptable, given the extent of the cut and fill and given that the restricted development area reduces the developable size of each lot.
• Whether the principal private open space of the dwelling on Lot 3 receives adequate solar access.
• Whether there is an unacceptable visual impact on 92A Malton Road.
• Whether there would be a better outcome with access to the dwelling on Lot 3 from the approved central driveway.
• The adequacy of the replacement plantings.

1. The Council raises an additional issue with respect to future maintenance of the driveway on the existing easement that burdens 90 Malton Road, and considers that it may be appropriate for there to be a deferred commencement condition requiring development consent to be obtained to upgrade the driveway prior to the operation of the consent for the construction of the two dwellings.

Cut, fill, and the scale of the proposed dwellings

1. The Council's position is that the proposed dwellings exceed the maximum cut and fill control, and the floor level of the lowest residential storey exceeds 1500mm above natural ground level. Its position is also that the footprint of the proposed dwellings is unacceptably large given the small developable area on each of the lots.
2. Part 3.1.1(b) of the HDCP 2013 provides as follows: "b. Buildings should respond to the topography of the site by: • minimising earthworks (cut and fill), and • siting the floor level of the lowest residential storey a maximum of 1.5 metres above natural ground level."
3. A figure showing a sloping site example in Part 3.1.1 also shows a maximum cut of 1m.
4. Part 3.1.1(j) provides a maximum floor area for a dwelling house and ancillary outbuildings, which is 430m2 for a lot size of 900m2 or larger. Part 3.1.1(a) provides that where the height development standard is 8.5m, the maximum storeys is two storeys plus an attic. The proposed dwellings comply with each of these controls.
5. The objective of these controls is for the following outcome: "Development with a height, bulk and scale that is compatible with a low density residential environment."
6. Mr Nash gave evidence that the extent of excavation of the lower ground level of the proposed dwelling on Lot 2 is up to 2000mm, which is greater than the maximum cut of 1m. Similarly, for the proposed dwelling on Lot 3, the excavation is up to 1735mm and the lowest residential storey is around 2600mm above the natural ground level.
7. Mr Nash points out that the footprints of the dwellings proposed in the present development application are much larger than the footprints of 200m2 contained in the plan for the approved subdivision of the lot. Further, he considers that the floor space of each dwelling, taking into account that part of the lot that is not developable (as a result of the restricted development area and the battle-axe handles) adds to the sense of bulk and scale.
8. I consider that the cut, fill and scale of the proposed dwellings are acceptable. Notwithstanding that the cut and fill do not meet the controls in the HDCP 2013, I consider that each dwelling meets the objective to have "a height, bulk and scale that is compatible" with the surrounding low density residential area. I accept Mr Minto's evidence that the footprint of the proposed dwellings are comparable to the dwellings in the surrounding area, and are not out character with the more recently constructed dwellings in the immediate locality. I also accept Mr Minto's evidence that the extent of the cut and fill results from the topography of the site, and that it is typical of dwellings within this locality, such as the adjoining dwellings at 86 and 86A Malton Road. I do not accept that there is an added sense of bulk and scale because of the existence of the restricted development area. Rather, the dwellings respond to the topography of the site and the restricted development area forms part of that site, allowing the dwellings to be sited on a relatively cleared area whilst also maintaining the natural landscape setting typical of the surrounding low density residential area. Similarly, I do not accept that any issue arises due to the building footprints exceeding those on the subdivision plans, as building footprints of 200m2 were required to form part of the lot design for the subdivision of land, pursuant to Pt 6.2.1(f) of the HDCP 2013, and do not form a development control for the construction of dwellings. Instead, the proposed dwellings meet the HDCP 2013 with respect to site coverage and the maximum number of storeys.

Amenity of the private open space

1. The Council contends that the principal private open space of each of the proposed dwellings is in a location that won't receive adequate access to sunlight, and Mr Nash opines therefore that they have inadequate amenity. The relevant controls are contained in Pts 3.1.4 and 3.1.5 of the HDCP 2013. In Pt 3.1.4 the desired outcome is that there is "Private open space that functions as an extension to the dwelling house". The prescriptive measures are as follows: "a. A dwelling house should be provided with private open space that incorporates a principal private open space area in accordance with Table 3.1.4(a). b. The principal private open space area should be sited behind the front building line and is to be directly accessible from the living area of the dwelling. c. The principal private open space area should be generally level and may be in the form of a deck, patio, terrace or paved area. d. Each dwelling should have an external air clothes drying area that is separate from the principal private open space area. This facility is to be screened from public places."
2. Table 3.1.4(a) applies such that each dwelling is required to have an area of principal private open space of at least 24m2.
3. With respect to sunlight access, Pt 3.1.5 has the desired outcome that "Dwelling houses [are] designed to provide solar access to open space areas".
4. The prescriptive measure for the proposed dwellings is as follows: "On 22 June, 50 percent of the required principal private open space area should receive 3 hours of unobstructed sunlight access between 9am and 3pm."
5. The combination of these controls means that each dwelling is required to have at least 24m2 of private open space that is accessible from a living area and also achieves 3 hours of unobstructed sunlight access during winter between 9am and 3pm, which is behind the front building line and separate from a clothes drying area. Each of the proposed dwellings has two areas of constructed private open space accessible from the living areas, however because of the orientation of the dwellings, none of those spaces receive any sunlight access during winter. However, the proposed dwelling on lot 2 also has a terrace area located on the north eastern side of the dwelling adjacent to the driveway and entry that will receive compliant sunlight access, and a ground floor clothes drying area located on the western side of the dwelling. Similarly, the proposed dwelling on lot 3 has a ground floor clothes drying area located on the eastern side of the dwelling. Both of the proposed dwellings also benefit from a large area to be landscaped at the rear of the dwellings, which will be accessible from the dwellings. In light of this, Mr Minto opines that all these areas will provide the occupants of the dwellings with a range of spaces capable of fulfilling a wide range of user needs, with varying degrees of amenity, and therefore the private open space provided to each dwelling is acceptable.
6. I accept the opinion of Mr Minto in this regard. Each dwelling has a number of areas of private open space, including the rear yards that are to be landscaped. Although the development control for the principal areas of open space to receive sunlight is not met, there is adequate opportunity for occupants of each dwelling to utilise other areas of open space for access to sunlight. On lot 2, this may be the deck near the entrance to the dwelling, and on lot 3, this is likely to be the open landscaped area in the rear yard. Accordingly, I am satisfied that the objective to "provide solar access to open space areas" is adequately met.

Visual impact on 92A Malton Road

1. The Council contends that there is an adverse impact on the amenity of 92A Malton Road as a result of increased overshadowing of the private open space arising from the dwelling on Lot 3 and as a result of direct overlooking from the driveway of the dwelling to that private open space. This has been ameliorated by the amendments to the plans, which now provide for cascading planter beds and a 1600mm horizontal slatted privacy screen.
2. Nevertheless, the evidence of Mr Nash is that whilst this removes the potential overlooking, it introduces a visually dominant element along the boundary with 92A Malton Road, which he considers to be out of context with the area.
3. Mr Minto's evidence is that such a privacy screen would be consistent with other structures on adjoining properties. He considers that there is minimal overshadowing from the proposed dwelling, limited to between 1pm and 3pm, to an area that is not the principal open space of the dwelling at 92A Malton Road. His evidence is that the dwelling at 92A Malton Road will continue to receive compliant solar access to its key areas.
4. I accept Mr Minto's evidence. The inspection of the site and the adjoining properties made it clear that retaining walls and structures similar to the privacy screen are presently characteristic of the adjacent sites due to the sloping topography of the area. The privacy screen will occupy only a small length of the common boundary between the two properties, and is otherwise stepped back from the boundary, with planter beds contained by retaining walls located between the screen and the boundary. The plan of this design is depicted in Figure 3. I consider that the visual impact to 92A Malton Road is mitigated by those stepped planter walls of face sandstone, which allows for plantings along the common boundary and provides a contrast to the aluminium slats of the privacy screen.
5. I accept also that any overshadowing of 92A Malton Road will be minimal. In particular, the proposed dwelling maintains compliance with Part 3.1.5 of the HDCP 2013, which, at (b) of the prescriptive measures, requires that on 22 June, "50 percent of the required principal private open space on any adjoining property should receive 3 hours of unobstructed sunlight access between 9am and 3pm". Notwithstanding that there will be overshadowing occasioned by the proposed dwelling on Lot 3, the principal private open space area of 92A Malton Road nevertheless retains 3 hours of unobstructed sunlight access between 9am and 3pm.

Replacement plantings

1. The removal of the trees requires development consent, and trees within the heritage conservation area are considered "prescribed trees" pursuant to Pt 1B.6.1(a) of the HDCP 2013, which are protected by the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, cl 5.10 of the HLEP 2013 and Pt 1B.6 of the HDCP 2013. Where the tree removal forms part of other works for which consent is required, the HDCP 2013 requires that it be assessed as part of the development application. In considering the same, Pt 1B.6(m) provides that: "Any tree approved to be removed from a site should be replaced with a tree of like habit and indigenous to Hornsby Shire, planted as near as practicable to the location of the removed tree, grown to maturity and replaced if the planting fails to survive and thrive in accordance with Council's Green Offsets Code."
2. Further, Pt 1C.1 of the HDCP 2013 applies and has the following desired outcomes: "a. Development that provides for the conservation of biodiversity including threatened species and populations, endangered ecological communities, remnant indigenous trees, regionally and locally significant terrestial and aquatic vegetation. b. Development that maintains habitat for native wildlife and wildlife corridors to provide for the movement of fauna species."
3. The prescriptive measures include the following: "c. Development should avoid the fragmentation of existing native vegetation. d. Development should seek to retain unique environmental features of the site including: • rock outcrops, • wetlands and the like, • watercourses, drainage lines and riparian land, • groups of significant trees and vegetation, and • mature hollow trees and other fauna habitat features on the site. e. Development should incorporate and maintain a buffer zone to significant flora and fauna. Development should not include buildings, structures and earthworks within the required buffer zone prescribed in Table 1C.1.1(a)."
4. The applicable minimum buffer zone that applies to the vegetation on the site is 10m. With respect to plantings in the buffer zone, the prescriptive measures require: "h. Where landscaping is proposed within the buffer zones, it should comprise trees, shrubs, understorey and groundcover species indigenous to the adjoining vegetation community"
5. The Green Offsets Code, referred to in Part 1B.6(m) quoted above at [63], is a policy of the Council that provides controls to conserve indigenous trees and native vegetation. It includes the principle of "net gain", which is described as follows: "The code should lead to a net gain and improve the condition of the environment. The primary objective of an offset activity should be to create, enhance or protect in perpetuity ecologically viable habitat for locally endemic species."
6. The current policy, adopted on 9 September 2015, then provides that the Council should not issue an approval unless there is demonstrated a net improvement in the conservation of indigenous vegetation in the Hornsby Shire. Specifically, at cl 1.7, it requires the following: "Council should not issue approval for activities or consent for development that will result in the loss of indigenous trees or native vegetation unless the following performance criteria are met: • Demonstrate the protection of any rare or threatened species of flora or fauna and/or its habitat. • Develop ecological objectives reflecting the biodiversity values and ecological/landscape context of the site. • Address the performance requirements for specific categories of 'bushland of conservation significance' (below). • Demonstrate a net improvement in the conservation of indigenous vegetation in the Hornsby Shire. • Demonstrate the maintenance or improvement of native fauna habitat. • Demonstrate that on-site abiotic factors (such as water, nutrients, or soil) are maintained or improved where they are essential to the maintenance and survival of the bushland and its values. Impacts to abiotic factors, both direct and indirect impacts, should be removed or minimised. All aspects of the proposal should be considered including: impact of construction, onsite effluent disposal, APZs, drainage works, retaining walls, provision of services, driveways, footpaths, private open space. • Demonstrate the protection of on-site biodiversity values through the appropriate management of pests, invasive weed species (noxious, environmental and garden escapees) or other threats to the long term security or management of the identified values. • Not adversely affect the ecosystems functions of existing bushland corridors, riparian corridors or other desirable areas providing bushland connectivity. • Demonstrate that the risk to persons or property has been minimised through appropriate layout, design and management, whilst protecting and enhancing bushland. • Landscaping has utilised native species consistent with the locally indigenous community occurring on-site."
7. A draft revised Code, which has an amendment date of September 2018, sets out multipliers, which require a certain number of trees to be planted upon one tree being removed. There are 14 trees proposed to be removed on the site the subject of the development application, and the multiplier is 4, therefore requiring 56 canopy trees to be planted. The draft revised Code allows replacement plantings to be smaller if the canopy trees can't be achieved, but greatly increases the number of smaller trees required for each equivalent canopy tree.
8. Further, as a result of the grant of the consent for the subdivision, the site is the subject of an Integrated Vegetation Rehabilitation and Bushfire Management Plan ("VMP"). The VMP divides the site into three management precincts, where Precinct D is the development area, Precinct B is a 10m buffer area between the development area and the restricted development area, and Precinct E is the restricted development area. No management is required of Precinct D. Precinct B is to be maintained as native woodland vegetation, with a tree canopy cover of less than 15% and with trees, shrubs and groundcovers planted in clumps to maintain native vegetation and habitat while preventing a continuous fuel path for potential bushfires. Precinct E is then required to be continuously controlled by the removal of weed species.
9. The VMP also requires at least five replacement native trees or shrubs for every tree removed during construction, and two locally indigenous plants to be planted in place of each weed tree removed from the restricted development area (Precinct E).

The Council's position

1. As a result of the requirements of the Green Offsets Code, and the terms of the VMP, the Council's position is that the sketched landscape plan by Ms Mackenzie does not demonstrate that a specific ratio of compensatory planning can be achieved. The Council submits that the Court cannot conclude that there has been a net gain in the environmental outcome.
2. The Council relies on the evidence of Mr Paroissien, who opines that the significant difference is that there is an area where trees were scattered over the site, whereas the proposed development results in the trees being restricted to a very small area that is subject to stringent requirements for bushfire management. Mr Paroissien considers that no reliance can be placed on the plantings to occur within the restricted development area (Precinct E) to establish the requisite number of replacement plantings, as that would be "double-dipping" as it is already required by the VMP. Mr Paroissien also opines that the new plantings may not reach their potential given that they are not likely to be adequately maintained.

Mr Oboodi's position that there is a net gain

1. Mr McKee submits, on behalf of Mr Oboodi, that you have to assume that what is planted will reach maturity and be consistent with the species required by the VMP and the final landscape plan. Mr Oboodi submits that the Green Offsets Code is a policy document that should be applied with flexibility, with a focus on the overall outcome instead of on the numbers per se. In doing so, he submits that the retention of indigenous trees on the site, the provision of new trees in the buffer zone consistent with the bushfire and arboricultural evidence, the removal of weeds in the restricted development area, and the replacement of those weeds with rainforest shrubs and species and ground covers, will amount to a net gain and improvement to the condition of the environment on the site and its biodiversity values.
2. Mr Oboodi relies on the evidence of Ms McKenzie, who opines that in the landscaped buffer area, what is being planted is a similar canopy to that which is being removed across the site. The sketched landscape plan demonstrates that 116m2 of plantings will be achieved on Lot 2, and 138m2 on Lot 3. In the restricted development area, she considers that there are a large number of weed species, the removal of which will open up space for some planting of understorey species. In light of this, she opines that there would be certain improvement in that area that would increase diversity and improve the habitat for local fauna populations.

There will be a net gain for the environment and biodiversity

1. In determining the adequacy of the replacement plantings and whether a net gain is achieved, I am of the view that both the VMP and the sketched landscape plan ought to be considered, notwithstanding that the VMP applies to the site through a previous development consent. The VMP forms part of the circumstances of the proposed development, and the whole of the work to be carried out on the site ought to be considered in making an assessment as to whether there is a net gain or net improvement for the environment and biodiversity. Further, the VMP is yet to be implemented and is largely consistent with the proposed development, allowing for a restricted development area at the rear of the site near the watercourse where indigenous species are to be retained and weeds removed, a landscaped area or buffer between that area and the development area that must be managed consistently with the bush fire risk, and a development area where canopy trees are to be removed.
2. In light of this, I accept that the sketched landscape plan and the VMP will result in a greater number of indigenous species on the site that what is currently present, with better ongoing management of the vegetation and removal of weed species, regardless of whether the ratios or numbers in Green Offsets Code will be achieved. I accept the evidence of Ms Mackenzie that the removal of weeds creates opportunity in the restricted development area to increase indigenous plantings that will create better biodiversity than what is there presently, and that the landscaped area (the buffer area) at the rear of each of the dwellings allows an area for plantings commensurate with the trees to be removed. In so determining, I accept the submission of Mr Oboodi that I ought to assume that the VMP will be implemented and that the plantings in the landscape plan, once finalised, will achieve their full maturity. As such, I am satisfied that there is a net improvement in the conservation of indigenous vegetation, that the native fauna habitat will be maintained or improved, and that there will be ongoing protection of on-site biodiversity values through removal of weed species and additional plantings.

Owners consent and ongoing maintenance of the right of way

1. The Council maintains that a better outcome would be achieved if the approved central driveway is utilised for access to the proposed dwelling on Lot 3, rather than access by way of the existing easement burdening 90 Malton Road. Mr Nash opined that this would resolve his concerns with respect to the visual impact on 92A Malton Road. However, it is not the role of the Court to assess the development application by reference to a hypothetical better outcome. Instead, I am required to consider whether the proposed development is acceptable by taking into consideration those matters in s 4.15 of the EPA Act that are of relevance to the proposed development. In circumstances where I have determined that the impact on 92A Malton Road is acceptable, where the engineers have agreed that the driveway on the existing easement is acceptable, and where no other merit issue is raised with respect to the use of the existing easement to access the proposed dwelling on Lot 3, I consider that the use of the existing easement burdening 90 Malton Road is acceptable.
2. The Council originally raised a contention that the development application should include 90 Malton Road to enable maintenance and repair of the bitumen carriageway on the existing easement. However, it is well established that a development application does not need to extend to land that is "necessarily involved in the use of the land the subject of the application" (Woolworths Ltd v Bathurst City Council (1987) 63 LGRA 55, at 62, per Cripps CJ LEC; see also King v Great Lakes Shire Council (1986) 58 LGRA 366). Therefore, the land the subject of the existing easement does not need to be the subject of the present development application. Further, the decision of the High Court in North Sydney Council v Ligon 302 Pty Ltd (1996) 137 ALR 644 is authority for the proposition that owners consent is not required for a proposed development that relies on the use of a right of way over adjacent land, where the servient land does not form part of the development application.
3. Whilst it remains open to impose a condition of consent requiring the improvement or maintenance of the driveway on the existing easement notwithstanding that the land doesn't form part of the development application (see Currey v Sutherland Shire Council [1998] NSWSC 398 per Stein J), the engineers gave joint expert opinion that the current state of the driveway is adequate and meets the relevant Australian Standard. In light of this, there is no evidence to support the imposition of a condition requiring improvement or maintenance of the bitumen driveway over the existing easement, or to support a deferred commencement condition requiring development consent to be obtained to upgrade the driveway. Further, consistent with a concern of the Council that the driveway might not be suitable for construction vehicles, Mr Oboodi agrees to the imposition of a condition of consent that prevents construction vehicles from utilising the existing easement.
4. I note also that an area at the end of the approved central driveway remains available for fire trucks to access Lot 3 in the event of an emergency, and swept path analysis demonstrates that they will be able to turn on the site and leave in a forward direction.

Remaining concerns of the residents

1. For the above reasons, I consider that none of the concerns raised by the residents warrant refusal of the development application. The proposed dwellings respond to the topography of the site, make use of a largely cleared area on the site, and ameliorate any privacy impacts by appropriate design and screening. The adjoining dwellings retain compliant solar access to their primary areas of private open space. The construction methods to be used will be sufficient to protect the dwellings from the appropriately calculated bushfire attack level. Further, there is no evidence that there will be any biodiversity impacts as a result of the construction of the proposed dwellings. Instead, there is an ongoing obligation to maintain the vegetation in the restricted development area, which includes the removal of weed species and non-indigenous plantings, as well as an obligation to carry out the plantings in the landscape plan, which will also provide additional indigenous plantings.

Outcome of the appeal

1. I therefore find that the proposed development for the construction of the two dwellings in the design proposed is an appropriate response to the site's topography, its landscape, the applicable controls, and its location and context in the HCA. I accept that the scale, cut and fill of each dwelling is acceptable in the context and that there is no unacceptable visual impact on adjoining neighbours. The proposed design provides adequate separation to adjoining dwellings, and protects the privacy of those residents through appropriate screening and window design. Whilst the proposed landscaping may not strictly comply with the numeric requirements of the replacement plantings in the draft offset code, I consider that a net improvement in the conservation of indigenous vegetation is achieved. Given that the other planning controls of the HDCP 2013 are met, there is no basis to refuse the development application and it ought to be granted accordingly, subject to appropriate conditions of consent.

Conditions of consent

1. The conditions of development consent, which were provided to the Court on 13 March 2019, have been largely agreed between the parties. However, they require the imposition of three deferred commencement conditions. The first requires a registered plan of subdivision to be submitted to the Council, which I accept is appropriate given that the subdivision is required to be effected before development consent for the erection of dwellings can commence.
2. The second proposed deferred commencement condition requires a site-specific tree protection plan to be approved by the Council, and the third requires an amended landscape plan to be approved by the Council. There does not seem to be any basis upon which these two matters are required to be satisfied prior to the operation of the consent, although an opportunity for submissions on the same has not yet been given.
3. In an attempt to avoid a deferred commencement condition with respect to the landscape plan, Mr Oboodi provided an amended landscape plan dated 6 March 2019 that had been prepared by his landscape architect in consultation with the arborist, bushfire expert and ecologist. However, given that there were no directions to allow the amended landscape plan to be filed, that landscape plan is not formally before the Court. Nevertheless, given that the evidence on arboriculture was based on the sketch landscape plan prepared by Ms Mackenzie, it seems appropriate for a final landscape plan to be prepared so that it can be the subject of the development consent, rather than imposing a deferred commencement condition.
4. Mr McKee also raised an issue, by email on 7 March 2019, concerning a potential conflict between the landscape plan for the proposed development, and the landscape plan for the subdivision development, which is referred to in the development consent for subdivision. To achieve consistency and avoid the need for future modification, he has suggested the imposition of the following condition: "The Landscape plan prepared by Aspect Designs dated 6 March 2019 Revision E replaces and supersedes the Landscape plan referenced in the subdivision consent (DA 320/2015) being the plan prepared by Aspect Design Subdivision Landscape Plan 10816 LD01 dated August 2016."
5. Additionally, Mr Oboodi opposes the following condition on the basis that a hydrant is being provided in lieu of the water tanks: "46. Water and Utilities The intent of measures is to provide adequate services of water for the protection of buildings during and after the passage of a bush fire, and to locate gas and electricity so as not to contribute to the risk of fire to a building. To achieve this, the following conditions shall apply: … b) Water is to comply with the requirements of section 4.1.3 of 'Planning for Bush Fire Protection 2006', including: (i) In recognition that an unreliable reticulated water supply exists, a 5000 litre water supply shall be provided for fire fighting purposes upon each lot. (ii) If an above ground tank is to be installed it shall be manufactured of concrete or metal and raised tanks are to have their stands protected. Plastic tanks shall not be used. (iii) If an underground tanks is to be installed it shall have an access hole of 200mm to allow tankers to refill direct from the tank. The gate or ball valve, pipes and tank penetration are adequate for full 50mm inner diameter water flow through the Storz fitting and are metal. (iv) A 65mm metal Storz outlet with a gate or ball valve shall be provided. (v) All associated fittings to the tank shall be noncombustible. (vi) An 'SWS' marker shall be obtained from the local NSW Rural Fire Service and positioned for ease of identification by brigade personnel and other users of the SWS. In this regard: a. Markers must be fixed in a suitable location so as to be highly visible; and b. Markers should be positioned adjacent to the most appropriate access for the static water supply."
6. On 15 March 2019, a further email was received from McKees Lawyers indicating that the applicant will agree to include a condition requiring the construction management plan to restrict construction truck movements to be over the central driveway over Lot 1 on 88 Malton Road. However, a condition of this nature does not appear to be included in the conditions provided by the Council to the Court.
7. As such, it is appropriate for an opportunity to be given to the parties to make submissions on the amended landscape plan, on the deferred commencement conditions and on the changes to the conditions sought or agreed to by Mr Oboodi. Prior to the matter being listed for submissions, I consider that it would be useful for the Council to provide feedback to Mr Oboodi on the amended landscape plan so that any further amendments can be made to that plan prior to it being filed in the Court.
8. The Court directs that: 1. The respondent is to provide feedback to the applicant on the amended landscape plan dated 6 March 2019 by 1 July 2019. 2. By 8 July 2019 the applicant is to file and serve an amended landscape plan that is consistent with the changes set out in the Landscape Plan prepared by Catriona Mackenzie dated 27 February 2019 (Exhibit H) and meets the requirements of an asset protection zone. 3. The matter is listed for submissions on 16 July 2019 at 4pm. 4. The Exhibits are returned, except for Exhibits C, D, E, H, 8, 9, 10 and 11. 5. Pending the making of final orders in the proceedings, liberty to restore is granted on 2 days' notice.

Addendum made on 5 August 2019

1. Subsequent to the delivery of the above reasons and the making of the directions recorded at [91], Mr Oboodi provided further amended Landscape Plans and a Tree Protection Plan, both of which the Council considers acceptable in the context of my findings. As such, the two corresponding deferred commencement conditions referred to in [85] are not required.
2. Further, there is now a proposed condition of consent that reflects the agreement of Mr Oboodi for the Construction Management Plan to restrict the construction truck movements to the approved central driveway.
3. The only condition of consent that remains in dispute is the condition requiring the provision of a 5000 litre water supply on each lot for fire fighting purposes, referred to in [88]. This condition is sought to be imposed by the Council as it is a condition that the Rural Fire Service suggested be imposed by letter to the Council dated 9 October 2018.
4. However, the evidence of Mr Swain at the hearing is that with the installation of a hydrant at the end of the approved central driveway, which forms part of the subdivision approval, the water supply by a 5000 litre tank would not be required. His evidence is that the hydrant at that location satisfies the hose length required to provide protection to each of the buildings. This evidence is supported by a letter from him dated 30 July 2019 (Ex K), which confirms that: "The location of the Hydrant satisfies the hose line lengths required by AS 2419.1 - 2005 in respect of providing a water supply for structural [property] and bushfire fighting operations, to both dwellings and also the managed Asset Protection Zone and the vegetation within the Restricted Development Zone in the rear of each allotment."
5. The construction certificate for the approved subdivision has now been issued, and requires the provision and installation of a double head feed hydrant in accordance with the bushfire engineer's report. Further, on 15 March 2019, Sydney Water granted approval for the connection of the hydrant to the water supply main.
6. On the evidence of Mr Swain, I accept that the installation of the hydrant is sufficient to provide an adequate water supply for use for protection against bushfire, and that the condition requiring the installation of a 5000 litre water supply is not required.
7. For the reasons expressed in my substantive judgment, development consent should be granted subject to conditions of consent that reflect the final landscape plan and tree protection plan, and what I have determined with respect to the water supply. Those conditions are contained in Annexure A.
8. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted for the construction of a two-storey dwelling house on each of Lot 2 and Lot 3 created by the approved subdivision of 88 Malton Road, Beecroft, subject to the conditions of consent in Annexure A. 3. Exhibits G, J and 12 are returned. …………………………… J Gray Commissioner of the Court Annexure A (91.0 KB)

Amendments 05 August 2019 - See addendum for final orders: [92]-[99] 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: 05 August 2019