Redson Group Pty Ltd t/a Progenia v Wollongong City Council

Environmental Planning and Assessment Act 1979

1. The objects of the of the EP&A Act are as follows: (a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources, (b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment, (c) to promote the orderly and economic use and development of land, (d) to promote the delivery and maintenance of affordable housing, (e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats, (f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage), (g) to promote good design and amenity of the built environment, (h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants, (i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State, (j) to provide increased opportunity for community participation in environmental planning and assessment.
2. Section 4.15(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
3. Section 4.15(3A) of the EP&A Act further provides that: If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. …

Conveyancing Act 1919

1. Section 88B of the Conveyancing Act 1919 provides for the creation and release of easements, profits à prendre and restrictions on use of land by plans, as follows: 88B Creation and release of easements, profits à prendre and restrictions on use of land by plans (1) In this section public road and road have the meanings respectively ascribed to those expressions by the Roads Act 1993. (2) A plan shall not be lodged with the Registrar-General for registration or recording under Division 3 of Part 23 unless it indicates in the manner prescribed in respect of the plan by regulations made under this Act or the Real Property Act 1900 or in the manner required by the lodgment rules under the Real Property Act 1900: (a) what easements, if any, are intended to be created: (i) burdening land comprised in the plan and appurtenant to any existing roads shown on the plan, and (ii) appurtenant to any roads to be vested upon registration of the plan, (b) what easements, if any, referred to in section 88A are intended to be created burdening land comprised in the plan and in whose favour those easements are intended to be created, (c) what other easements or profits à prendre, if any, are intended to be created appurtenant to or burdening land comprised in the plan, and (c1) what easements or profits à prendre, if any, appurtenant to or burdening land comprised in the plan are intended to be released or partially released, and (d) what restrictions on the use of land or positive covenants, if any, are intended to be created benefiting or burdening land comprised in the plan. (3) On registration or recording under Division 3 of Part 23 of a plan upon which any easement, profit à prendre, restriction or positive covenant is indicated in accordance with paragraph (a), (b), (c) or (d) of subsection (2) then, subject to compliance with the provisions of this Division: (a) any easement so indicated as intended to be created as appurtenant to any existing public roads shown in the plan or any roads to be vested in the council upon registration of the plan shall be created and shall without any further assurance vest in the council by virtue of such registration and of this Act, (b) any easement so indicated as intended to be created pursuant to section 88A shall be created and shall without any further assurance vest in the relevant prescribed authority referred to in that section by virtue of such registration and of this Act, (c) any other easement, profit à prendre or any restriction on the use of land (not being a restriction as to user of the type that may be imposed under section 88D or 88E) so indicated as intended to be created shall: (i) be created, (ii) without any further assurance and by virtue of such registration or recording and of this Act, vest in the owner of the land benefited by the easement or profit à prendre or be annexed to the land benefited by the restriction, as the case may be, notwithstanding that the land benefited and the land burdened may be in the same ownership at the time when the plan is registered or recorded and notwithstanding any rule of law or equity in that behalf, and (iii) not be extinguished by reason of the owner of a parcel of land benefited by such easement, profit à prendre or restriction holding or acquiring a greater interest in a separate parcel of land burdened thereby, and (d) any restriction on the use of land or positive covenant that is of the type that may be imposed under section 88BA, 88D or 88E and is so indicated as intended to be created takes effect as if it had been so imposed. (3AA) On registration or recording under Division 3 of Part 23 of a plan on which a release of an easement or profit à prendre is indicated in accordance with subsection (2) (c1), the easement or profit à prendre is released. (3A) When creating a folio of the Register kept under the Real Property Act 1900 for land benefited by any easement, or for land burdened by any easement, restriction on the use of land or positive covenant, created by this section, the Registrar-General shall record in that folio, in such manner as the Registrar-General considers appropriate, the easement, restriction on the use of land or positive covenant, as the case may be. (4) Any restriction on the use of land or positive covenant created by this section shall for the purposes of this Act and the Real Property Act 1900, have effect as if it was contained in a deed.

Wollongong Local Environmental Plan 2009

1. Development on the Subject Site is subject to the provisions of Wollongong Local Environmental Plan 2009 (WLEP). The following provisions of WLEP are of particular relevance in this appeal: 1. Clause 2.1, which establishes land use zones within the area covered by the plan as provided in cl 2.2 of WLEP. The Subject Site is zoned R2 Low Density Residential., and under the provisions of cl 2.3 of WLEP, the objectives of this zone are to: • provide for the housing needs of the community within a low density residential environment. • enable other land uses that provide facilities or services to meet the day to day needs of residents. • recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area. • protect the amenity of residents. • encourage housing affordability. • enable small-scale business uses in existing commercial buildings 1. Clause 4.4, which concerns FSR and which provides as follows: (1) The objectives of this clause are as follows: (a) to provide an appropriate correlation between the size of a site and the extent of any development on that site, (b) to establish the maximum development density and intensity of land use, taking into account the availability of infrastructure to service that site and the vehicle and pedestrian traffic the development will generate, (c) to ensure buildings are compatible with the bulk and scale of the locality. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. 1. Clause 4.5, which sets out the approach to be adopted in the calculation of FSR and site area, and which relevantly provides as follows: (1) Objectives The objectives of this clause are as follows: (a) to define floor space ratio, (b) to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to: (i) prevent the inclusion in the site area of an area that has no significant development being carried out on it, and (ii) prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and (iii) require community land and public places to be dealt with separately. (2) Definition of "floor space ratio" The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area. (3) Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be: (a) if the proposed development is to be carried out on only one lot, the area of that lot, or (b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out. In addition, subclauses (4)-(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development. (4) Exclusions from site area The following land must be excluded from the site area: (a) land on which the proposed development is prohibited, whether under this Plan or any other law, (b) community land or a public place (except as provided by subclause (7)) 1. Clause 4.6, which makes provision for proponents to seek an exception to a development standard, and which, in relation to this appeal, provides as follows: (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence.

Wollongong Development Control Plan 2009

1. The Introduction to WDCP identifies that the purpose of the plan is as follows: "This DCP provides detailed guidance for development applications (DAs) to supplement the provisions of the Wollongong Local Environmental Plan (WLEP). The DCP includes objectives and controls for ensuring well designed, quality land use and development within the Local Government Area (LGA) to enhance Wollongong City as a vibrant community and desirable place to live, work and visit."
2. Chapter B1 of WDCP provides guidance and controls relating to residential developments. The objectives of this Part of WDCP are to: "(a) ensure a high standard of residential development within the City of Wollongong LGA. (b) encourage new residential development that is sympathetic to the existing streetscape and neighbourhood character of a particular locality. (c) encourage residential development that reflects the desired future character of individual suburbs within the Wollongong City LGA. (d) manage residential development in order to maximise the retention of significant remnant trees and other natural features in particular localities. (e) encourage innovative housing design and energy efficient housing which embraces the highest possible architectural, environmental and amenity standards. (f) promote residential development that achieves the principles of ecologically sustainable development. (g) encourage a mix of housing forms within the city to assist in achieving urban consolidation initiatives particularly in localities close to business centres and railway stations and to assist in providing housing affordability. (h) ensure that Crime Prevention through Environmental Design (CPTED) principles are holistically embraced in the design of any residential development."
3. Of particular relevance in the current appeal are the provisions of the following clauses of Chapter B1: 1. clause 4.1 in relation to the number of storeys permitted in residential developments, and which: 1. provides that: "The maximum building height is set by the Local Environmental Plans generally: a) R2 Low Density Residential Zones permit a maximum height of 9m - a maximum of 2 storeys. … The number of storeys acceptable will be dependent on the surrounding development, the future desired character of the area, the impacts that the proposed development has on solar access, privacy, visual amenity and overshadowing." 1. has the following objectives: "a) To encourage buildings which integrate within the streetscape and the natural setting whilst maintaining the visual amenity of the area. b) To minimise the potential for overlooking on adjacent dwellings and open space areas. c) To ensure that development is sympathetic to and addresses site constraints. d) To encourage split level stepped building solutions on steeply sloping sites. e) To encourage a built form of dwellings that does not have negative impact on the visual amenity of the adjoining residences. f) To ensure ancillary structures have appropriate scale and are not visually dominant compared to the dwelling. g) To ensure appropriate correlation between the height and setbacks of ancillary structures. h) To encourage positive solar access outcomes for dwellings and the associated private open spaces." 1. includes the following development controls of relevance in this appeal: "1. Dwelling houses on battleaxe allotments are restricted to 1 storey unless it can be demonstrates that the proposed development achieves the objectives in Clause 4.1.1 and complies with the maximum height maps in the LEP. …. 5. Landscaping may be required within the side and read setbacks to mitigate the visual impact of the building form from adjoining properties." 1. clause 4.4 in relation to site coverage: 1. the objectives of which are to: "• limit the building footprint and ensure adequate provision is made for landscaped areas, deep soil zones, permeability and private open space; • control site density; • minimise adverse impacts arising from large dwellings and ancillary structures on the amenity of adjoining and adjacent properties." 1. which, relevant to this appeal, requires that, in line with the definition of site coverage within WLEP, the maximum site coverage for a dwelling, dual occupancy, and combined maximum coverage for a principle dwelling and secondary dwelling, is 40% of the area of the lot, because the lot has an area of at least 900m2. 1. clause 4.8 in relation to building character and form: 1. the objectives of which are to: "a) ensure that development responds to both its natural and built context. b) design residential development that responds to the existing character and the future character of the area. c) ensure building design contributes in to the locality through a design that considers building scale, form, articulation and landscaping. d) encourage colour schemes that are of similar hues and tones to that within the streetscape. e) ensure buildings address the primary street frontage via entry doors and windows. f) ensure that dwellings provide appropriate passive surveillance of public spaces and street frontage. g) ensure that ancillary structures are not the dominate feature of built form." 1. and which, relevant to this appeal, provides the following building development controls: "1. The design, height and siting of a new development must respond to its site context taking into account both natural and built form features of that locality. The design of the development must have particular regard to the topography of the site to minimise the extent of cut and fill associated with dwelling construction. 2. Large bulky forms are to be avoided, particularly in visible locations. The use of extended terraces, balconies, sun shading devices and awnings will help reduce the apparent bulk of buildings. 3. New dwelling-houses within established residential areas should be sympathetic with the existing character of the immediate locality. New innovative contemporary building designs may also be permitted, where, in the opinion of Council, the development will not result in an adverse impact upon the streetscape or residential amenity of that locality, as compared to a more traditional design."
4. Chapter D1 of WDCP provides character statements for various areas within the Wollongong LGA. Relevantly, it includes the following within the description of the existing character of the Mangerton area: "Mangerton is a leafy residential suburb which is characterised by predominantly single to two storey weatherboard bungalows and brick dwelling-houses with some pockets of medium density housing in the form of villas, townhouses and walk-up residential flats. Mangerton also contains a number of streets lined with Brush Box (Lophostemon confertus), Blackbutt (Eucalyptus patens), Turpentine (Syncarpia glomulifera), Hills Fig (Ficus macrocarpa var,. hillii) trees, which add to the streetscape and leafy character of the suburb. A large remnant stand of Spotted Gum (Eucalyptus maculata) trees exists at Mt Drummond, WIN TV station site and the former RAAF site. Cabbage Tree Palms (Livistona australis), Lemon-scented gum (Eucalyptus citridoria), Brush box (Lophostemon confertus), Blackbutt (Eucalyptus pilularis), and Jacaranda (Jacaranda mimosifolia) trees also provide a leafy backdrop to the suburb."
5. It also includes the following in relation to the desired future character of the area: "Mangerton will remain a low density residential suburb with a mix of housing types, including detached dwelling-houses as well as some additional medium density villa and townhouse developments occurring within reasonable walking distance to bus stops in the suburb. The retention of the significant remnant stands of trees is important, in order to maintain the leafy character of Mangerton."
6. Chapter E17 of WDCP provides guidance and controls relating to the preservation and management of trees and vegetation in the WDCP. The objectives of this Chapter of WDCP are to: "(a) Protect trees within the City of Wollongong Local Government Area. (b) Protect and enhance native vegetation, habitat for native fauna and biodiversity. (c) Protect and enhance native vegetation for its scenic values and to retain the unique visual identity of the landscape. (d) Conserve trees of ecological, heritage, aesthetic and cultural significance. (e) Conserve significant stands of remnant vegetation. (f) Manage non-native vegetation in accordance with its cultural heritage and landscape significance. (g) Ensure that any new development considers and maximises the protection of existing vegetation in the site planning, design, development, construction and operation of the development. (h) Identify trees and other vegetation that may be pruned or removed without the necessity for a Tree Management Permit or development consent."
7. Of particular relevance in the current appeal are the provisions of: cl7.2 within Chapter E17 in relation to tree and vegetation management as part of a development proposal, and which, inter alia, states as follows: "1. As part of the assessment of a Development Application for buildings where existing trees or other native vegetation are on the site, Council will determine if the trees should be retained, can be removed or if modifications need to be made to the layout of buildings and driveways. This will be determined using criteria for evaluation of significant trees and vegetation. The Development Application must be supported by an Arborist Report that complies with Council's requirements. 2. Generally for a tree to be retained reference must be made to Australian Standard AS4790-2009 Protection of Trees on Development Sites. 3. Where Council has issued a Development Consent for a structure or building, any tree with its base within 3 metres of that building or structure on the subject land may be removed without further application to Council, provided the Council's Tree Management Officer is satisfied before the tree is removed that its base is within the 3 metre limit."

Contentions

1. As discussed above at [11], the remaining contentions in this appeal concern the compliance of the proposed development in relation to the FSR, the proposed removal of trees from the Subject Site, the applicable storey height controls, and landscaping along the southern boundary of the proposed development.
2. The specific questions requiring resolution in this appeal are: 1. Is the FSR of the proposed development compliant with the provisions of WLEP? 2. Should the Applicant's proposed removal of trees on the Subject Site be approved? 3. Is the Applicant's design of the proposed building for the Subject Site compliant with the storey height control in WDCP? 4. Is the proposed presentation and landscaping on southern side of the proposed development acceptable?
3. These contentions are considered below seriatim.

Is the FSR of the proposed development compliant with the provisions of WLEP?

1. The definition of FSR applicable in this appeal is provided in cl 4.5(2) of WLEP, as follows: The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.
2. The definition of site area for the purposes of cl 4.5(2) is provided in cl 4.5(3) as follows: In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be: (a) if the proposed development is to be carried out on only one lot, the area of that lot, or (b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out.
3. The Subject Site is a single lot.
4. Relevantly, cl 4.5(4) of WLEP provides that certain areas are to be excluded from the calculation of site are, as follows: The following land must be excluded from the site area: (a) land on which the proposed development is prohibited, whether under this Plan or any other law, (b) community land or a public place (except as provided by subclause (7)).
5. The contention in relation to the compliance or otherwise of the proposed development with the relevant FSR standard under WLEP cl 4.4, turned on differing interpretations of cl 4.5(4)(a) by the Parties. Specifically, the Parties differed in their view as to whether the area that is the subject of the s88B instrument over the Subject Site constituted an area of land on which the proposed development is prohibited, under WLEP or any other law, in this case, the Conveyancing Act 1919.
6. Mr Reilly for the Respondent said that the purpose of the s88B instrument was to restrict any proposed development on the Subject Site to areas outside the land that was the subject of the s88B instrument. He submitted that this restriction-as-to-use served, in effect, as a prohibition on any development within that portion of the Subject Site burdened by the s88B instrument. As a consequence, Mr Reilly further submitted that this area of the Subject Site should be excluded from the calculation of site area for the purposes of determining the FSR of the proposed development.
7. Mr Reilly said that if the land burdened by the s88B instrument were to be excluded from the calculation of site area, the proposed development was not compliant with the FSR control applicable to the Subject Site.
8. Mr Nash for the Applicant said that while the s88B instrument served to 'restrict' development on that portion of the Subject Site burdened by the instrument, the Court had the power to set aside or vary the s88B instrument, and as such the proposed development was not prohibited from that land. He said that, for the purposes of the EP&A Act, a prohibition and a restriction were demonstrably different concepts. He further submitted that this interpretation should preferred to that of the Respondent's on the following basis: 1. section 88B of the Conveyancing Act 1919 speaks in terms of a 'restriction on the use of land' and does not speak of a prohibition; 2. a s88B restriction can be varied or dispensed with, and a Council, or the Court on appeal, has the power to suspend the operation of a s88B instrument, whereas a prohibition cannot be so varied or suspended. 3. the definition of control in the EP&A Act (see s 1.4) expressly distinguishes between the words 'restrict' and 'prohibit', as follows: "control" , in relation to development or any other act, matter or thing, means: (a) consent to, permit, regulate, restrict or prohibit that development or that other act, matter or thing, either unconditionally or subject to conditions, or (b) confer or impose on a consent authority functions with respect to consenting to, permitting, regulating, restricting or prohibiting that development or that other act, matter or thing, either unconditionally or subject to conditions… (emphasis added)
9. As a consequence, Mr Nash submitted that a 'restriction' must be distinguished from a 'prohibition' in their application within an environmental planning instrument under s 3.14 of the EP&A Act, including within a local environment plan such as WLEP, and its provisions.
10. Having considered the submissions of the Parties, I agree with the Applicant's submission that a s88B restriction does not operate as a prohibition, for the reasons outlined above [35(1)] to [35(3)], which I adopt.
11. Consequently, the measurement of site area for the purpose of calculating FSR of the proposed development should not, in my assessment, exclude that area of the Subject Site that is subject to the s88B instrument.
12. The Parties had agreed during the hearing that if I agreed with the Applicant's submission that the measurement of site area did not exclude that area of the Subject Site subject to the s88B instrument, then I should conclude that the FSR of the proposed development would be compliant with the provisions of cl 4.3 of WLEP, and I have so concluded.

Should the Applicant's proposed removal of trees on the Subject Site be approved?

1. The Applicant proposes the following actions with respect to the removal and future management of the following mapped trees on the Subject site. The species and common name of each tree are provided in parentheses following its identifying number: 1. Trees #3 (Araucaria cunninghamiana - Hoop Pine), #4 (Eucalyptus botryoides - Bangalay, Southern Mahogany) and #5 (Corymbia maculata - Spotted Gum), located towards the southern boundary of the Subject Site, and which are proposed for removal; 2. Tree #6 (Corymbia maculata - Spotted Gum), located just within the eastern extension of the proposed building, and which is proposed for removal; 3. Trees #7 (Angophora costata - Smooth Barked Apple, Sydney Red Gum) and #8 (Corymbia maculata - Spotted Gum), located centrally within the Subject Site and outside the rear of the proposed building envelop, and which are proposed for retention; 4. Trees #9 (Eucalyptus botryoides - Bangalay, Southern Mahogany), #10 (Eucalyptus botryoides - Bangalay, Southern Mahogany) and #11 (Eucalyptus botryoides - Bangalay, Southern Mahogany), located towards the rear, eastern portion, of the Subject Site well outside the proposed building envelop, and which are proposed for retention;
2. The Applicant also proposes planting 14 replacement trees, including one located at the front (western end), and 13 at the rear, of the proposed dwelling as compensatory plantings.
3. All of these trees fall within that area of the site burdened by the s88B instrument referred to above at [5] and [6].
4. The Applicant submitted that the Court has the power to set aside or modify s88B instruments under s 39(2) of the LEC Act which provides: In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
5. The Applicant drew to the Court's attention to the fact that the exercise of this power, specifically in relation to the release of a restriction-as-to-use, had been discussed in the judgment of Lloyd J in MacDonald v Mosman Municipal Council [1999] NSWLEC 215 at [13], and had been applied recently by Acting Commissioner Maston in his decision in Goldberg v Waverley Council [2017] NSWLEC 1613.
6. Based on these cases, and the submission of the Applicant, I accept that it is within power for me to modify or to require the extinguishment of the restriction-as-to-use that applies to the Subject Site, if I find that, on merit, the removal of the trees as proposed by the Applicant should be approved.
7. During opening submissions, Mr Nash for the Applicant said that, in his assessment, the appeal centred on the issues associated with the s88B instrument and the operation of this instrument as a building exclusion zone for that area of the Subject Site burdened by it.
8. Mr Nash further submitted that the matters that the Court was required to consider under s 4.15 of the EP&A Act in determining the Applicant's development application did not include considerations of the restriction on title arising from the s88B instrument, but rather focused on a merit assessment of the proposed development against the controls in WLEP and WDCP.
9. Mr Nash submitted that the Applicant's proposals for tree removal and retention, along with its proposals for compensatory plantings (described above at [40]) would result in a net gain in terms of numbers of trees and tree canopy outcomes for the Subject Site and would improve the character of the site and locality.
10. Mr Reilly, for the Respondent, submitted that the Applicant's proposed tree management regime was contrary to the following provisions of WDCP: 1. objectives (a), (b) and (c) in cl 4.8 of WDCP Chapter B1 and associated controls (see above at [20(3)]); 2. the character statement for Mangerton (see above at [21] and [22]); 3. the requirements of cl 7.2 of Chapter E17 of WDCP concerning tree and vegetation management as part of a development proposal (see above at [24]).
11. During the hearing, expert evidence on arboricultural matters was provided by Mr Ross Jackson for the Applicant and Mr Guy Parroissien for the Respondent.
12. As noted above at [8], this appeal was heard under s 34AA of the LEC Act, and the Parties agreed that material and discussions that formed part of the conciliation discussions undertaken prior to the hearing could, as required, be relied upon during the hearing.
13. Following the site view and before the commencement of the proceedings, the arboricultural experts prepared further supplementary advice to complement evidence presented within their joint expert report. Both the joint report and supplementary advice were tendered as evidence at the hearing, without objection.
14. Within their joint report, filed with the Court in August 2018, and prior to the granting of leave to the Applicant to rely on amended plans, the arboricultural experts had agreed that the proposed development as initially filed: 1. was inconsistent with objectives (b), (c), (e) and (f) of Chapter E17 (see above at [23]) of WDCP concerning the preservation and management of trees and vegetation, noting that the tree identified as Tree #3 is a Hoop Pine and not native to the local area; 2. was inconsistent with objectives (b), (c), (d) and (f) of Chapter B1 of WDCP concerning residential development; 3. did not reflect the desired future character of Mangerton as required under objective (c) of Chapter B1 of WDCP as it does not retain significant remnant stands of vegetation which is identified within the character statement for Mangerton in Chapter D1 of WDCP as important for the maintenance of the leafy character of Mangerton; 4. did not maximise the retention of significant trees on the site' and that, as a consequence, it was inconsistent with the desired future character of Mangerton.
15. Notwithstanding the preparation of amended plans by the Applicant (see above at [7] and [12]), the Respondent said that the amended proposal remained inconsistent with the objectives of Chapters B1 and E17 of WDCP, and did not reflect the desired future character of Mangerton as provided in Chapter D1 of WDCP.
16. In their supplementary advice, the arboricultural experts confirmed that, if the Court were minded to grant consent to the Applicant's proposed development, including proposals for tree removal and retention, then the complementary plantings required of the Applicant to compensate for the loss of the trees proposed for removal should include six canopy trees.
17. They further confirmed that the Applicant's proposed compensatory plantings included this number of new canopy tree plantings. They agreed that the replacement canopy trees would achieve a mature canopy cover within a period of 15 to 20 years, and that the success of these plantings would require care from the owner across this period, and the replacement of any trees that might be lost across that period.
18. The experts also provided a list of tree species from which these compensatory trees should be selected, and the Applicant agreed that, to the extent that its plans required modification, it would accept doing so to reflect the recommendations of Mr Jackson and Mr Paroissien.
19. The supplementary advice provided by Mr Jackson and Mr Paroissien included their opinions regarding each of the trees proposed for removal and those proposed for retention under the amended plans.
20. In summary, the experts agreed that all of the trees proposed for removal or retention were located within the building exclusion zone (ie that area of the Subject Site burdened by the s88B instrument), and their assessments of each tree were as follows: 1. Trees #3 and #5: Mr Jackson assessed these trees as being of low landscape value and concluded that their removal was acceptable. Mr Paroissien assessed the trees as being of moderate landscape value, and concluded that they form part of a group of trees of high landscape significance; 2. Tree #4: both experts agreed that this tree had a short useful life expectancy (ULE), was of moderate landscape value, but with a reduced retention value based on its short ULE; 3. Tree #6: both experts agreed that this tree was of moderate to high landscape significance, had a long ULE, and, notwithstanding its proposed removal, was worthy of retention; 4. Trees #7 and #8: both experts agreed that these trees were of high landscape significance and are proposed for retention. However, they held differing opinions as to whether the retention of the trees could be sustained, as follows: 1. Mr Jackson was of the opinion that: 1. for reasons provided by him in the supplementary advice document, these trees could be retained following construction of the proposed development notwithstanding that the area around these trees trunks would be subjected to an increase level of use by residents; 2. the results of root mapping he had undertaken supported his opinion that the retention of the trees would be sustained post development; 3. inspections of these two trees should be undertaken by arboricultural expert at a minimum every two years for the purposes of managing the trees to ensure their long term retention. 1. Mr Paroissien said that, in his opinion, the sustained retention of these two trees was unlikely following development. He said that he based this opinion on the following: 1. the likely encroachment of the Applicant's proposed dwelling and associated developments within the tree protection zones (TPZ) identified for each of Trees #7 and #8. The experts agreed that the proposed development would intrude into 14.82% of the TPZ of Tree #7, and into 34.8% of the TPZ of Tree #8; 2. it was likely that over time there would be increased pressure from residents of the development once constructed to seek approval for the pruning and/or removal of these trees over time as they were, in his opinion, likely to be viewed by the residents as a potential nuisance or hazard in respect of the dwelling; 3. the intrusion of the proposed development into 34.8% of the TPZ of Tree #8 could cause an increase in the amount of wood that would be lost from that tree, and that this would also result, over time, in increased pressure from residents for its removal. 1. Tree #9: experts agreed that this tree would not be impacted by the proposed development but that it had a reduced retention value due to it having a short ULE. 2. Trees #10 and #11: the experts' agreed that these trees had moderate to high landscape significance, and that the proposed development would not have any impact on the substance of the trees nor put their long term, sustained, retention at risk.
21. During the hearing, the experts confirmed their conclusions as recorded within their supplementary advice, and added the following points: 1. Mr Jackson said that, in his opinion, the sustained retention of Trees #7 and #8 would be assisted by the facts that: 1. the footprint of the proposed development does not intrude into the structural root zone of either Tree #7 or Tree #8; 2. the clay nature of the B horizon of the soil surrounding the trees was helpful to the trees in terms of nutriments and water supply; 1. Mr Paroissien said that: 1. he remained concerned that the locations of Trees #7 and #8, close to the footprint of proposed development, would lead to issues of hazard (arising from the potential for wood drop) and maintenance (arising from the production of leaf and other litter from the trees), and that this would create pressure from future residents of the dwelling to prune the trees or to have them removed; 2. he was particularly concerned that the footprint of the proposed dwelling impacted on almost 35% the tree protection zone of Tree #8, which he said would result in an increase in the amount of wood being lost from the tree. He added that this would further increase pressure from future residents to have the tree removed; 3. he agreed with a proposition put by Mr Reilly for the Respondent that the proposed compensatory planting could create shadows that might affect the efficiency of solar panels proposed to be located on the roof of the proposed dwelling; 4. the proposed loss of vegetation on the southern side of the Subject Site would decrease the effectiveness of the north/south vegetation corridor through the Subject Site, although he noted that the proposed compensatory plantings would assist to maintain that link.
22. In response to a question from the Respondent, Mr Jackson agreed that he had witnessed situations where pressure had been exerted to remove a tree where it represented a nuisance or hazard risk to a dwelling.
23. Mr Jackson added that a vegetated north/south corridor link already existed at the rear of the Subject Site and he said that the proposed compensatory plantings would assist to maintain, and possibly enhance, that vegetated link across the rear of the Subject Site.
24. In closing, Mr Nash for the Applicant said that: 1. the objectives of the relevant controls in WDCP can be achieved without all the trees within the area burdened by the s88B instrument being retained; 2. the Applicant has adequately responded to the constraints of the site through the retention of certain trees and the proposed complementary plantings; 3. the Applicant had embraced Mr Paroissien's proposal for a minimum of six canopy trees to be included within the proposed compensatory plantings; 4. the combination of tree retention and compensatory plantings would retain the desired future character of Mangerton; 5. to the extent that Mr Paroissien had expressed concerns that pressure might be exerted by a future resident for the removal of Trees #7 and #8, which are proposed by the Applicant for retention, the Court should not speculate on this matter, as any such proposed removal of those trees would require a separate development application and would be subject to a separate assessment process; 6. the tree root mapping conclusions of Mr Jackson had not been challenged by the Respondent; 7. the proposed compensatory plantings would renew the life cycle of trees on the Subject Site.
25. Mr Reilly for the Respondent said that: 1. The Applicant's proposed development did not adequately respond the constraints of the Subject Site; 2. the Applicant's amended plans, whilst increasing the number of trees proposed for retention, did not alter the proposal to such an extent that the initial agreements of the arboricultural experts (see above at [53]) in relation to compliance of the proposed development with controls in WDCP would change; 3. the proposed development remained non-compliant with the relevant controls within WDCP as identified at [53]; 4. any proposed development on the Subject Site should be located outside of the are burdened by the s88B instrument so that all trees within that area are retained, including Tree #6, which the experts had agreed was of moderate to high landscape significance, had a long ULE, and was worthy of retention.
26. Having considered the evidence of the arboricultural experts, and the submissions of the Parties, I have concluded that I agree with the submission of Mr Reilly for the Respondent that the design of the proposed development has not responded adequately to the constraints of the Subject Site because: 1. consistent with the evidence of Mr Paroissien, the intrusion of the proposed development into 34.8% of the TPZ of Tree #8 would place the sustained retention of this tree at risk; 2. as agreed by the experts, Tree #6 is a tree that is worthy of retention based on its moderate to high landscape value and its long ULE;
27. Based on this, I have concluded that the proposed development does not comply with Control 1 under cl4.8 of Chapter B1 of WDCP which is concerned with building character, and which requires, inter alia, that: "1. The design, height and siting of a new development must respond to its site context taking into account both natural and built form features of that locality."
28. I have also concluded that the proposed development is inconsistent with the description of the desired future character of Mangerton in Chapter D1 of WDCP which states that: "The retention of the significant remnant stands of trees is important, in order to maintain the leafy character of Mangerton."
29. As a consequence I have further concluded that the proposed development is in breach of objectives (a) and (b) of cl4.8 of Chapter B1 of WDCP which provide that proposed developments must: "a) ensure that development responds to both its natural and built context. b) design residential development that responds to the existing character and the future character of the area."
30. Further, as a consequence of my conclusions above at [66] to [68], I have concluded that the proposed development does not comply with objectives (b), (c), (d) and (f) of Chapter B1 of WDCP which are to: "(b) encourage new residential development that is sympathetic to the existing streetscape and neighbourhood character of a particular locality. (c) encourage residential development that reflects the desired future character of individual suburbs within the Wollongong City LGA. (d) manage residential development in order to maximise the retention of significant remnant trees and other natural features in particular localities. … (f) promote residential development that achieves the principles of ecologically sustainable development."
31. Finally, I have concluded that the proposed development does not comply with objectives (b), (c), (e), and (g) of Chapter E17 of WDCP concerning the preservation and management of trees and vegetation, and which require the Applicant to: "(b) Protect and enhance native vegetation, habitat for native fauna and biodiversity. (c) Protect and enhance native vegetation for its scenic values and to retain the unique visual identity of the landscape. … (e) Conserve significant stands of remnant vegetation. … (g) Ensure that any new development considers and maximises the protection of existing vegetation in the site planning, design, development, construction and operation of the development."
32. I note that s 4.15(3A)(b) of the EP&A Act requires that: If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: … (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development.
33. The Applicant has proposed that the loss of canopy trees as a consequence of the proposed development, and the consequent non-compliance of the proposed development with the above cited provisions of WDCP, can be adequately addressed through a commitment to compensatory plantings, as detailed in the amended plans for which leave was granted.
34. The arboricultural experts provided evidence that if the canopy trees proposed for removal were to be removed following a grant of consent, then it would be appropriate to require the planting of six replacement canopy trees in the rear area of the Subject Site. One canopy tree is also proposed as a compensatory planting at the front of the Subject Site.
35. I have considered this alternative solution in relation to whether it provides a basis for the proposed development to achieve the objects of the provisions of WDCP identified above at [68] to [70], and I have concluded that: 1. it does not achieve the objects of Control 1 under cl 4.8 of Chapter B1 of WDCP as it does not ensure that the development responds to its natural context, nor does it assist the development to respond to the desired future character of the area as this requires the retention (and not replacement) of significant remnant stands of trees; 2. it does not achieve the over-arching objects of Chapter B1 of WDCP, as it does not: 1. provide a new residential development that is sympathetic to the character of Mangerton; 2. provide a residential development that reflects the desired future character of Mangerton, notably through the retention of the significant remnant stands of trees; 3. maximise the retention of significant remnant trees and other natural features on the Subject Site, and 4. achieve the principles of ecologically sustainable development, as it does not, in my assessment, adequately integrate the environmental, economic and social considerations of the appeal. 1. it does not achieve objectives (b), (c), (e), and (g) of Chapter E17 of WDCP, as it does not: 1. "protect and enhance native vegetation, habitat for native fauna and biodiversity"; 2. "protect and enhance native vegetation for its scenic values and to retain the unique visual identity of the landscape"; 3. "conserve significant stands of remnant vegetation", and . 4. "maximise the protection of existing vegetation" on the Subject Site through the site planning and design of the development.
36. On the basis of the above, I find that the Applicant's proposed development is not in the public interest and should not be approved.
37. I note that it was the evidence of the arboricultural experts that the replacement plantings proposed by the Applicant, would take some 15 to 20 years to reach maturity, and so would also require a similar time to replace fully the level of amenity afforded to local residents by the existing trees. I further note that this outcome would be predicated on future residents providing on-going maintenance and care of the new plantings.
38. While I do not rely on this point in arriving at my finding at [75], I am of the opinion that the proposed removal of canopy trees from the Subject Site as part of the proposed development would also represent a loss of amenity by neighbours on adjoining properties. In this respect I acknowledge that this is consistent with the evidence of the objectors as recorded above at [8(1)] and [8(2)]. I view this as supportive to my finding at [75] that the Applicant's proposed development is not in the public interest.

Consideration of further contentions

1. Having found that the proposed development should not be approved based on my finding at [75], I do not need to address the remaining contentions in relation to the potential non-compliance of the proposed development with the storey height control and landscaping controls within WDCP.

Conclusion

1. As noted above, I have concluded that: 1. the FSR of the proposed development is compliant with the provisions of cl 4.3 of WLEP (see above at [39]); 2. The Applicant's proposals for removal and retention of trees within that area of the Subject Site burdened by the s88B instrument is not compliant with the requirements of WDCP (see above at [68] to [70]); 3. The Applicant's proposed plantings to offset the proposed removal of trees do not, on a merit assessment, provide an acceptable alternative solution to strict compliance with the controls as they do not satisfy the objectives of those controls breached by the proposed removal of trees on the Subject Site (see above at [74]).
2. As a consequence, as noted at [75], I find that the Applicant's Development Application No. DA2017/265 for construction of a two-storey dwelling, including tree removal and landscaping should is not in the public interest and should not be approved.

Orders

1. The orders of the Court are: 1. The appeal is dismissed; 2. Development Application No. DA2017/265 for construction of a two-storey dwelling, including tree removal and landscaping, is determined by refusal. 3. The exhibits are returned, with the exception of Exhibits A and 6.

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: 06 December 2018