Robinson v Hornsby Shire Council

1. LEP 2013 contains the following definition of "recreation areas": recreation area means a place used for outdoor recreation that is normally open to the public, and includes - (a) a children's playground, or (b) an area used for community sporting activities, or (c) a public park, reserve or garden or the like, and any ancillary buildings, but does not include a recreation facility (indoor), recreation facility (major) or recreation facility (outdoor).
2. However, at the hearing, the parties agreed that the Council's contention that the development is prohibited is resolved by the following condition which ensures that any consent granted is consistent with cl 5.1A of LEP 2013: "1. This consent does not authorise the use of Lot 6 for any residential purpose. Reason: Lot is zoned RE1 and reserved for the purpose of a recreation area intended to be acquired by Council as identified on the Hornsby Local Environmental Plan 2013 Land Reservation Map. 2. Tree No. 56 is to be retained and Tree No. 55 is to be removed (as identified on drawing D2 Issue T dated 9 August 2018) Reason: Amendment imposed pursuant to section 4.17(1)(g) of the Environmental Planning and Assessment Act 1979 (NSW) to contain the residential APZ within the R2 zoned land." (Exhibit O)
3. On this basis, the parties agree that the contention regarding the permissibility of the development is resolved.
4. Following consideration of the evidence presented and the submissions of the parties, I am satisfied that it is appropriate to grant development consent to the proposal. Many of the matters in contention between the parties were resolved during the proceedings through the provision of expert evidence, proposed conditions of consent or the provision of concurrence from New South Wales Rural Fire Service (NSW RFS). I am satisfied that the concerns of residents, raised in submissions and to the Court in onsite evidence, have been appropriately ameliorated and do not, on balance, form grounds that would warrant the refusal of the application. Further, I find that the proposed lots are of sufficient size to accommodate future dwelling houses and the proposed tree removal and the management of the retained vegetation is acceptable.
5. My detailed reasoning for these conclusions is provided at paragraphs [87]-[110].

The site and locality

1. The subject site is 62 Manor Road, Hornsby (Lot 3 DP 524288). The site comprises an existing battle-axe lot with an area of 1.083 hectares. The site includes two existing single-storey dwellings, of which one is proposed to be retained on proposed lot 5.
2. The rear of the existing site occupies a steep north-facing slope and contains the portion of the site zoned RE1 Public Recreation under LEP 2013. The rear boundary of the site adjoins the Berowra Valley National Park.
3. The upper part of the site is zoned R2 Low Density Residential. The street trees within the road reserve of Manor Road are a local item of heritage significance (item 494) under LEP 2013.
4. The site is within a bushfire prone area.
5. The surrounding properties include dwelling houses accessed off Manor Road. Many original allotments have been further subdivided by battle-axe subdivisions.

Planning Controls

1. Pursuant to s 4.14 of the EPA Act, the proposed development is located on bushfire prone land. The development is integrated development (s 4.47(1) of the EPA Act). The NSW RFS issued General Terms of Approval (GTAs) on 4 December 2019. The requirements of the GTAs are incorporated in the draft consent conditions at Condition 46 - 49 inclusive. Relevant to the evidence and the submissions the GTAs include at 2a: "Asset Protection Zones The intent of measures is to provide sufficient space and maintain reduced fuel loads so as to ensure radiant heat levels of buildings are below critical limits and prevent direct flame contact with a building. To achieve this, the following conditions apply: 2a. At the issue a subdivision certificate and in perpetuity, the entire site of proposed Lots 1,2, and 3 must be managed as an inner protection area (IPA). The IPA must comprise: - minimal fine fuel at ground level; - graze mowed or grazed; - trees and shrubs retained as clumps or islands and do not take up more than 20% of the area; - trees and shrubs located far enough from buildings so that they will not ignite the building; - garden beds with flammable shrubs not located under trees or within 10 metres of any windows or doors; - minimal plant species that keep dead material or drop large quantities of ground fuel; - tree canopy cover not more than 15%; - tree canopies not located within 2 metres of the building; - trees separated by 2-5 and do not provide continuous canopy cover from the hazard to the building; and, - lower limbs of trees removed up to a height of 2 metres above the ground. 2b. At the issue of the subdivision certificate and in perpetuity, the entire site of proposed Lots 4 and 5 up to the RE1 Boundary Line as shown on the subdivision plan prepared by Acor Consultants (dated 15/11/19, issue T) shall be managed as an inner protection area (IPA). This is to ensure any future dwelling upon proposed Lot 4 can sustain a 57 metre setback from the nearest bushfire hazard. The IPA must comprise: - minimal fine fuel at ground level; - graze mowed or grazed; - trees and shrubs retained as clumps or islands and do not take up more than 20% of the area; - trees and shrubs located far enough from buildings so that they will not ignite the building; - garden beds with flammable shrubs not located under trees or within 10 metres of any windows or doors; - minimal plant species that keep dead material or drop large quantities of ground fuel; - tree canopy cover not more than 15%; - tree canopies not located within 2 metres of the building; - trees separated by 2-5 and do not provide continuous canopy cover from the hazard to the building; and, - lower limbs of trees removed up to a height of 2 metres above the ground." (Exhibit 6)
2. The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for residential purpose. Regarding the consideration required at cl 7 of State Environmental Planning Policy No 55 - Remediation of Land, I accept that the likelihood of contamination is low.
3. The proposed development is subject to the provisions of LEP 2013. As noted in the preceding the site is split zoned, being zoned both RE1 Public Recreation and R2 Low Density Residential Development. Pursuant to cl 2.3(2) of LEP 2013, the consent authority is to have regard to the zone objectives in determining the application. The relevant zone objectives are: R2 Low Density Residential Zone: • 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. RE1 Public Recreation • To enable land to be used for public open space or recreational purposes. • To provide a range of recreational settings and activities and compatible land uses. • To protect and enhance the natural environment for recreational purposes. • To protect and maintain areas of bushland that have ecological value.
4. Subdivision of land and demolition works require consent, cl 2.6 and cl 2.7 of LEP 2013 respectively.
5. Pursuant to cl 4.1 of LEP 2013 the minimum lot size area is 500m² for the creation of an allotment in the residentially zoned (R2: Low Density) area of the site. The area standard excludes the area of any access handle. Each of the proposed lots complies with this development standard.
6. As the development proposes community title subdivision cl 4.1AA of LEP 2013 applies, this clause also has a minimum lot size area of 500m². Each of the proposed lots complies with this development standard.
7. No minimum allotment size applies to the land zoned RE1 Public Recreation. The development application proposes all of the land zoned RE1 Public Recreation to be held in Lot 6.
8. Before granting consent, the consent authority, or the Court on appeal, must consider the effect of the proposed development on a heritage item, in this case, the street trees within the road reserve of Manor Road: cl 5.10(4) of LEP 2013. The Respondent does not contend that the development has a detrimental impact on the significance of this item of local heritage. Based on the expert evidence before the Court and with the benefit of the site view, I am satisfied that any effect on the heritage significance of this item arising from the proposed subdivision does not warrant the refusal of the application.
9. It is accepted by the parties that the site is not identified as 'biodiversity' on the Terrestrial Biodiversity Map under LEP 2013.
10. The proposed development is subject to the provisions of the Hornsby Development Control Plan 2013 (DCP 2013). The Respondent identifies that Part 1: General, Part 3.1: Dwelling Houses and Part 6: Subdivision are relevant to the proceedings.
11. Each section of DCP 2013 contains Desired Outcomes and Prescriptive Measures. Consistent with the approach of the Court in ­Chen v Hornsby Shire Council [2016] NSWLEC 1505 (Chen v Hornsby Shire Council) at [20]: "…Desired outcomes are written as statements that describe the development sought by the Council. The prescriptive measures are described as the specific requirements that are likely to achieve the desired outcome."
12. Further, I adopt the approach detailed at [21] of Chen v Hornsby Shire Council: "The relevant provisions of DCP 2013 are a mandatory consideration under s79C(1)(a)(ii) of the Act and its provisions are a fundamental element in, or a focal point to, the decision-making process, but are not determinative (see Zhang v Canterbury City Council [2001] NSWCA 167). However, the introduction of the provisions in s79C(3A) has mandated a more flexible approach to the matters the subject of dispute between the parties. As noted by Moore in Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151 at [68] section 79C(3A)(b) of the Act requires flexibility in the application of provisions of a DCP and the consent authority is required to determine whether the alternative solution is capable of meeting the object of the controls, without compliance with the relevant standards (in this case prescriptive measures)."
13. Relevant to this appeal, section 1B.6.1 Tree preservation has the following prescriptive measure:

• (m) 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 Offset Code.

1. Part 1C General Controls, 1C.1.1 Biodiversity has the following Desired Outcomes: "• Development that provides for the conservation of biodiversity including threatened species and populations, endangered ecological communities, remnant indigenous trees, regionally and locally significant terrestrial and aquatic vegetation • Development that maintains habitat for native wildlife and wildlife corridors to provide for the movement of fauna species." And the following has the following prescriptive measures: "(a) Development should seek to - avoid potential adverse impact on biodiversity - if that impact cannot be avoided, minimise that impact, or - if that impact cannot be minimised, to mitigate the impact. (b) A flora and fauna assessment is required for development that may impact on: - land mapped as Biodiversity on HELP Terrestrial Biodiversity Map; or - native vegetation which is habitat for species listed at Schedule 1, 1A, or 2 of the Threatened Species Conservation Act 1995. (c) Development should avoid the fragmentation of existing native vegetation. … (k) Development within or adjoining land zoned or reserved for public open space should address means to protect and minimise bushfire disturbance. (l) Development should provide buffers for bushfire protection on private land, not on public land."
2. Relevant to this appeal, Section 1C 3.1 Bushfire has the following desired outcomes and prescriptive measures:

• (b) Development that balances the conservation of native vegetation and bushfire protection.
• (c) Bushfire asset protection zones should be located entirely within the development site.
• (d) Measures, such as higher fire-resistant construction standards, improved access and water supplies should be considered for infill developments where they would reduce the need for removal of significant native vegetation, providing the development still complies with 'Planning for Bush Fire Protection (2006)'.

1. Relevant to this appeal, Section 3.1.2 Setbacks has the following desired outcomes:

• (a) setbacks that are compatible with adjacent development and complement the streetscape
• (b) setbacks that allow for canopy trees to be retained and planted along the front and rear property boundaries.

1. For the indicative building footprints, the relevant future building setbacks would be: 0.9m side setback for the first store; 1.5m for the second storey element; 3m rear boundary setback for the ground floor; and 8m to the rear.
2. Based on the amended subdivision plan, the planning experts agree that the proposed subdivision and the indicative building footprints comply with the setback requirements at 3.1.2 of DCP 2012.
3. Relevant to this appeal, Section 6.1: Subdivision of DCP 2013 has the following desired outcomes:

• (a) Subdivision design that provides usable allotments that relate to site conditions.
• (b) Subdivision design should provide setbacks to developable areas that will: ○ complement the streetscape; ○ provide for landscaping; ○ protect landscape features; and ○ provide separation between existing and future dwellings.

1. The relevant prescriptive measures at Section 6.1.1 are:

• (f) lot design should identify a potential developable area. The area is to accommodate the following: ○ a building envelope of 200m² with a minimum dimension of 10 metres; ○ a principal private open space area; ○ area for the parking of 2 cars behind the building line; and ○ comply with the general provisions in Section 6.1.
• (g) if an existing dwelling is to be retained, the proposed lot should be of sufficient size and design so that the dwelling complies with the 'Dwelling House' element in Section 3.1 of this DCP.

1. Under Part 4 Division 9 of the Rural Fires Act 1997, a landowner may carry out the following vegetation clearing work on their land:

• the removal, destruction (by means other than fire) or pruning of any vegetation (including trees) within 10 metres; and
• the removal, destruction (by means other than fire) or pruning of any vegetation, (except for trees) within 50 metres of an external wall of a building containing habitable rooms that comprises, or is part of residential accommodation or a high-risk facility; or of an external wall of a building that comprises or is part of a farm shed.

1. These provisions are generically referred to as the 10/50 rule. The provisions are supported by a NSW RFS Vegetation Clearing Code of Practice.
2. Relevantly, amongst other exclusions, clearing under the 10/50 rule cannot be inconsistent with any condition of development consent or approval under the EPA Act that identifies and requires the retention and management of vegetation for conservation purpose: NSW RFS Vegetation Clearing Code of Practice, p 13.

Public Submissions

1. In accordance with the provisions of the DCP 2012, the development application was notified to adjoining and nearby properties. Several concerned residents gave oral evidence at the commencement of the proceedings on site.
2. The objections concerning the amended plans before the Court raise the following main issues:

• Concern about the proposed loss of biodiversity, the impact on canopy trees and the heritage-listed trees in Manor Road;
• Loss of connectivity in the tree canopy that currently provides a vegetated corridor between the southern and northern sides of Manor Road through to the Berowra Valley National Park and Hornsby Quarry;
• A temporary access way should be constructed at Stage 1 to protect the retained trees;
• No bushfire safety authority has yet been provided;
• The dwelling proposed for retention will require an asset protection zone of 57m;
• A smaller subdivision that proposed 2-3 lots and a narrower driveway would be a more sensitive development option;
• The addition of more residential properties in Manor Road will complicate evacuation in times of bushfire. Manor Road is a winding dead-end road at the top of a ridge and is high risk for a bushfire;
• Any habitat of the powerful owl must be retained and the previously lost habitat of the glossy black cockatoo reinstated;
• An aboriginal heritage assessment should be provided by the Applicant;
• The proposal to provide the Asset Protection Zone (APZ) on future public land is unacceptable;
• Proposed lot 2 is irregular in shape and has areas of less than 12m in width. The size and shape of the lots do not have adequate regard to the site constraints and the need to accommodate a future dwelling;
• Proposed lots 3 & 4 will result in substantial tree loss and amenity impacts for the adjoining properties;
• Tree loss will be greater than indicated by the Applicant as much of the site will be required to be managed as an Inner Protection Zone (IPZ);
• The turning head for the proposed access way will not accommodate the Council's waste truck or an RFS vehicle;
• The amended subdivision design has the potential to affect the health, vigour and longevity of Trees 2 & 3 which are identified as Angophora Costata;
• Lots 3 & 4 are large in area and are therefore theoretically capable of further subdivision. A means of ensuring further subdivision is not possible should be incorporated in any consent;
• The indicative building footprints for proposed lots 2 & 3 should be amended to show a rear setback of 8m to ensure the privacy of adjoining property owners at 64 & 66 Manor Road;
• The number and size of the proposed lots are not acceptable and should be reduced to three orderly lots which would be more in keeping with the character of the area and ensure the retention of a significant number of the mature trees;
• The site contains many trees comprising large Blackbutts, Red Mahogany's, Sydney Red gums, Turpentine's and other important species. Some of these trees contain hollows that are essential habitat for species such as Parrots, cockatoos (including Glossy Black), Powerful and BooBook owls, possums and gliders. The extent of proposed tree removal to support the development is opposed;
• The access way width is non-compliant with the RFS document 'Planning for Bush Fire Protection (2006)';
• There are inconsistencies between the documents in the development application: the arboriculture, engineering and bushfire reports conflict;
• The scope of the land zoned RE1 Public Recreation is closer to 30%, the bushfire report is inaccurate;
• It is unacceptable for the Applicant to rely on fuel reduction in the RE1 land to protect future dwellings;
• The retained building sits within the 57m APZ from the RE1 land and the vegetation hazard;
• Proposed lots 2 & 3 should be amalgamated to be a configuration and size more consistent with the neighbouring properties;
• Whilst the Applicant has had a site inspection undertaken by the Metropolitan Local Aboriginal Land Council, the letter provided does not constitute an Aboriginal Cultural Heritage Assessment Report as required by the relevant Office of Environment and Heritage guidelines;
• The amended plans remain unacceptable and have not addressed many of the communities concerns;
• The dwelling that is proposed to be retained is dilapidated and unliveable, yet is proposed to occupy the largest lot; and
• The proposed tree removal ignores the draft LEP and the Interim Heritage Order as well as the Heritage Significance Assessment prepared by Dr Lamb and Associates.

Experts

1. No bushfire experts were called by the Respondent. Mr Short provided an expert statement on bushfire (Exhibit D) as well as preparing the Bushfire Assessment Report (Exhibit E) on which the Applicant relies.
2. The parties engaged the following experts to joint conference and prepare expert reports on the matters in contention: Area Applicant Respondent Arboriculture Mr Paroissien Ms Howden Ecology Mr McKinnon Mr Hood Town Planning Mr Minto Mr McKennan

1. The oral and written evidence of the experts is summarised below.

Bushfire

1. The Applicant relies on Revision 5 of the Bushfire Assessment Report (dated 22 November 2018) which was prepared in response to the amended subdivision design (4 residential lots). The assessment has been completed in accordance with Planning for Bush Fire Protection 2018 (PBP 2018).
2. The Bushfire Assessment Report identifies the following:

• The vegetation type within and adjacent the site is: forest to the north aspect, managed residential to the east and west aspects, and managed to the south.
• The effective slope is: ○ north: 15-20 degrees. ○ east: variable within managed properties (between 9.08% -17.72% downslope). ○ west: variable within managed properties (between 4.57% -14.55% downslope).
• The site has a fire danger rating (FDI) of 100.
• The required APZ is 57m to meet Bushfire Attack Level (BAL) 29.

1. Further, the Bushfire Assessment states: "The proposal has been designed to comply with PBP 2018 acceptable solutions for residential subdivision. The following has been incorporated into the development: - a minimum carriage width of 4m, - in forest, woodland and heath situations, rural property access roads must have passing bays every 200m that are 20m long by 2m wide, making a trafficable width of 6m at the passing bay; and - a minimum vertical clearance of 4m to any overhanging obstructions, including tree branches; and a suitable turning area in accordance with Appendix 3; and - curves have a minimum inner radius of 6m and are minimal in [number] to allow for rapid access and egress; and the minimum distance between outer and inner curves is 6m, and - the cross fall is not more than 10°; - and maximum grades for sealed roads do not exceed 15° and not more than 10° for unsealed roads; and - a development comprising more than three dwellings has formalised access by dedication of a road and not by right of way. … A turning head has been provided at the end of the driveway which meets the requirements of a Category 1 fire tanker to turn." (Exhibit E)
2. Mr Short's statement of evidence (Exhibit D) identifies the following in relation to the required management of the APZ's: "The management of asset protection zones shall be: An APZ is a buffer between a bushfire hazard and buildings which is managed to minimise fuel loads to reduce the spread of fire thereby reducing radiant heat, ember and flame attack. The RFS have produced Standards for Asset Protection Zones (Standards for APZs) that provides the required standard to be achieved in establishing and maintaining APZs. The Standards for APZs require extensive modification of vegetation such that an area will not support a bushfire. Recommendations include: "- Raking or manual removal of fine fuels. Ground fuels such as fallen leaves, twigs (less than 6mm in diameter) and barks should be removed on a regular basis. - Mowing or grazing of grass. Grass needs to be kept short and, where possible green. - Removal of trees, shrubs and understorey. The control of existing vegetation involves both selective fuel reduction (removal, thinning and pruning) and the retention of vegetation. Prune or remove trees so that you do not have a continuous canopy from the hazard to the asset. Separate tree crowns by two to five metres. A canopy should not overhang within two to five metres of a dwelling. Native trees and shrubs should be retained as clumps or islands and should maintain a covering of no more than 20% of the area." (Exhibit D)
3. It is Mr Short's evidence that: 1. "The APZ standards are designed to ensure that future buildings can conform to the deemed to satisfy arrangements under the National Construction Code (NCC)". 2. Further, he notes that: 3. "The RFS would not approve the subdivision of land for a residential or rural-residential subdivision purpose when the building foot print is unable to meet the necessary setbacks to provide for future houses outside BAL 29/ greater than 19kW of radiant heat at a proposed building for an asset protection zone" (Exhibit D).
4. In his oral evidence, Mr Short was questioned about the consistency of the Bushfire Assessment, the arboriculture report and the civil engineering drawings. Mr Short confirmed in his oral evidence that:

• he worked with the Applicant's arboriculture expert, Ms Howden, to determine the appropriate trees for retention or removal based on a multi-faceted analysis that included the retention value of the tree and the requirements of the APZ's.
• In terms of the retention of Tree 20, its retention is not in conflict with the requirements of the GTA's provided by RFS.

1. Finally Mr Short confirmed that the concurrence of the RFS was provided on the current version of the subdivision plans (Exhibit B).
2. Mr Cottom confirmed in his submissions that the Council's contentions regarding Bushfire Protection are resolved.

Ecology

1. In response to the Council's original Statement of Facts and Contentions the Applicant's ecology expert provided additional written evidence, tendered as Exhibit H. In particular, Mr McKinnon addresses the concerns raised by the Council about the Powerful Owl (Ninox strenua). This issue was also raised by members of the public in their submissions to the Court. Mr McKinnon's evidence concludes: "Whilst the study area could be utilised as foraging habitat by the Powerful Owl, there was no evidence of use (eg wash, owl pellets) of the hollow bearing trees in the study area and more appropriate nesting sites are situated to the west of the study area in Berowra Valley National Park (Ecoplanning 2018c). The Flora and Fauna Assessment (Ecoplanning 2018c) concluded that no significant impact would occur to the Powerful Owl as a result of the proposal in accordance with Section 5A of the Environmental Planning and Assessment [Act] 1979 (EP&A Act) (ie Assessment of Significance) and associated guidelines (DECC 2007). It is noted that substantial avoidance measures have been implemented since the assessment against s5A of the EP&A Act for the Powerful Owl was undertaken, including a revision of the proposal, which reduced the proposed subdivision from a proposed seven (7) lots to four (4), resulting in a substantial reduction in the Asset Protection Zone. Further, Tree No. 8, a large hollow bearing Eucalyptus pilularis (Blackbutt) is now proposed for retention." (Exhibit H)
2. The ecology experts agree in their joint report that: "…the subject land is a suburban block with lawns, gardens and remnant vegetation comprising Blackbutt Gully Forest (Community L1) (Smith and Smith 2008). In the Statewide vegetation classification (Tozer et al 2010, in OEH 2019), this is the equivalent of the Plant Community Type (PCT), Smooth -barked Apple- Turpentine - Blackbutt tall open forest on enriched sandstone slopes and gullies of the Sydney region (PCTID: 1841), which is not listed as a threatened endangered ecological community (TEC) under the Commonwealth Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act) or the NSW Biodiversity Conservation Act 2016 (BC Act)." (Exhibit 4)
3. Further, the ecology experts agree that:

• No hollow-bearing trees are proposed for removal.
• No threatened plant species listed under the EPBC Act or BC Act occur on the subject land.
• The Powerful Owl, listed as vulnerable under the BC Act, has previously been observed onsite, however, has not been observed nesting in the study area.

1. In his oral evidence Mr Hood accepts that the ecology contentions, and his concerns previously expressed in the joint report (Exhibit 4), are resolved by the following deferred commencement condition: "Deferred Commencement Pursuant to Section 4.16(3) of the Environmental Planning and Assessment Act 1979, this consent does not operate until the following information is submitted to Council: 1.1 Integrated Bushfire and Vegetation Management Plan a) An Integrated Bushfire and Vegetation Management Plan (IBVMP) shall be prepared for proposed lots 1-6. The IBVMP shall consolidate matters to address the following: i) Provide an Asset Protection Zone (APZ) map that ensures the APZ is wholly contained within lots 4 and 5 (figure 8 in Bushfire Assessment Report by BlackAsh dated 22 November 2019) ii) Establishment and ongoing management of the APZ iii) Vegetation management and landscaping across the site iv) Offsetting in accordance with Council's Green Offsets Code b) The IBVMP shall address the APZ requirements including: i) Methodology for establishing and maintaining vegetation within the APZ, including retention of all trees other than those listed in condition 3(a) below except where separate approval referred to in condition 3(b) is obtained ii) Permanent marking of the APZ extent iii) Prioritise removal of weed species and retention of native species. iv) Retention of native vegetation in clumps where possible as described in the NSW RFS publications Planning for Bushfire Protection 2006 (Appendix 5) and Standards for asset protection zones. v) Use of hand tools around trees and vegetation to be retained. c) The IBVMP shall address the vegetation management, landscaping and offsetting requirements for Lot 6 including: i) Offsetting within Lot 6 is required in accordance with Council's Green Offsets Code. The conservation significance assessment map has identified vegetation on the site as Support for Core. The associated offset ratio for Support for Core with an action of Enhance and Protect is 4:1. ii) Species planted within the site must be characteristic of Peppermint Angophora Forest as described in Native Vegetation Communities of Hornsby Shire 2008 Update (Smith & Smith 2008) iii) Provide a schedule of works and general specification that demonstrates compliance with landscaping and weed management in accordance with the following: a. the timing of landscape and vegetation management works b. protocols for planting, establishment, maintenance and replacement (including retention of all trees except where separate approval of Council is obtained) c. species, numbers, pot size and height of plants to be used d. Plant stock shall be sourced from a native nursery utilising Sydney basin stock d) The works provided for above shall be implemented in accordance with the IBVMP from the date of the Subdivision Certificate and will be in place for 3 years from that date. The IBVMP shall be reviewed upon completion of this initial 3-year period and updated for a further 3 years with a review and update every 3 years. Monitoring should occur at a minimum of every 3 months for the first year to ensure that weed control is well managed and plantings have established. Monitoring of the site after the first year should occur annually. Reporting on the implementation of the first 3 years of the IBVMP should occur annually with the annual reports provided to Council's Natural Resources Branch. Reason: The development of a consolidated IBVMP will provide the developer and current and future landowners with a single document describing the required vegetation management actions across the site. Such information must be submitted within 36 months of the date of this notice. This consent will lapse if the applicant fails to satisfy Council as to the matters specified in the conditions above within 42 months of the date of this notice." (Exhibit 8)

Arboriculture

1. The arboriculture experts prepared two joint reports, the second report specifically addressing the amended plans. At the conclusion of the joint conferencing process the areas of expert disagreement remain as follows:

• The likelihood of the removal of Tree 20 and Tree 9 arising from the proposed subdivision and proposed building footprints.
• The potential for detrimental impact to Tree 7 from the construction of the access way.
• The long term retention of Trees 21 and 22.

1. In their joint evidence, the experts agree that Tree 18 is required to be removed because of its low life expectancy and potential hazard.
2. Prior to the commencement of their oral evidence, the arboriculture experts proposed the following agreed conditions, seeking to address some of their areas of disagreement. The condition is agreed by the parties. "Tree 20 A restriction to use is to be created on Lots 2 & 3, within a 6m radius of Tree No. 20 where existing soil levels are to be retained. Encroachments involving excavation or impervious surfaces such as paving or dwelling shall be restricted to a maximum of 12% (44m2) of the area of the tree's Tree Protection Zone (10.8 metre radius from centre of trunk - total TPZ=367m2). In addition to the dwelling and impervious surfaces, further encroachments of light weight structures such as elevated decking, is permitted to a maximum of 6% (22m2) within the TPZ of Tree No. 20. The following works are prohibited within the restricted area being 6m radius of Tree No. 20: - Changes to existing soil levels; - The installation of hard landscaping such as paving surface; - Excavation with the exception of isolated pier footings associated with elevated deck structures. Tree 7 - A Construction Sequence/Method Statement Plan with appropriate tree protection measures is to be prepared by a structural engineer in consultation with an AQF 5 Arborist for construction of the proposed driveway shown on Subdivision Plans Rev. T (ACOR,2019b) in the vicinity of Tree No. 7, which includes the following: - detailed engineering plans showing existing and proposed levels, the location of the subject tree and the extent of the tree protection zone and structural root zone; - plans showing the extent of excavation to achieve the design levels and the location of excavation associated with the weight bearing piers; - details of any formwork or with specifications; - the location of tree protection fencing and or trunk armouring along with specifications; - a construction method statement that includes a sequential construction procedure, itemised construction tasks and itemised construction tasks where the works are to be supervised by a project arborist; - how the construction process or tasks would respond to unforeseen circumstances, such as the need for additional excavation to achieve design levels, exposing significant tree roots over 30mm in diameter etc.; - Services, including gas, water, telephone are to be laid below the proposed driveway without further excavation or are to be installed using trenchless technology; - No fill is to be used in conjunction with the driveway construction within the identified Tree Protection Zones (TPZ) of Tree 7 & 8; and - any other matters relevant from a construction or engineering perspective. The Construction Sequence/Method Statement Plan is to be submitted to Hornsby Council for approval prior to commencement of any civil works for the subdivision. Replacement Planting (between T8 and T2) 8 new indigenous canopy trees are to be planted and maintained to maturity between T8 and T2." (Emphasis altered) (Exhibit P)

Tree 9

1. Tree 9 is identified on the Proposed Subdivision Plan (Exhibit B) as being required to be removed to accommodate the indicative building footprint for proposed Lot 2. Ms Horden's evidence is that"to retain Tree 9 a building footprint with typical footings would need to be setback a minimum of 5.0m from the tree'" (Exhibit 3).
2. Mr Paroissien agrees that: "the proposed lot size and shape does not have adequate regard to the site constraints to enable sustainable retention of this tree as there is insufficient space in the Lot area to provide for the sustainable offset from the tree"' (Exhibit 3).

Trees 21 & 22

1. The Arboricultural Impact Assessment (AIA) (Exhibit N) identifies:

• Tree 21: Eucalyptus pilularis, Blackbutt as "mature single trunk tree with a tall forest form; an upright trunk/s and balanced canopy and branch development. No evidence of significant branch pruning."
• The AIA allocates Tree 21 a Very High landscape significance and a Safe Useful Life Expectancy (SULE) of 1.
• Tree 22: Eucalyptus pilularis, Blackbutt as a "mature single trunk tree with a tall forest form; an upright trunk/s and balanced canopy and branch development. No evidence of significant branch pruning."
• The AIA allocates Tree 22 a Very High landscape significance and a SULE of 2 due to evidence of past pests, presence of a trunk wound and epicormal growth.

1. Both trees 21 and 22 are marked in the subdivision plans as being retained and are located in proposed Lot 5.
2. Mr Paroissien's evidence concerning Trees 21 and 22 is as follows: "… I am also concerned about the long term retention of trees 21 and 22 (Eucalyptus pilularis, Blackbutt). Both trees are identified to be of very high landscape significance. Tree 21 has a long predicted Useful Life Expectancy (ULE) and 22 a medium ULE. It is acknowledged that there are existing structural issues identified for Tree 22 and its longer term retention may not be sustainably achieved." (Exhibit 3)
3. In the joint report, Mr Paroissien recommends that a specific condition of consent be placed on any approval enforcing the retention of Trees 20 and 21 and limiting the potential for future tree removal under the RFS 10/50 rule. Such a condition is included in the agreed conditions at Condition 5: "Removal of Existing Trees This development consent permits the removal of trees numbered 9, 10, 13, 14, 15, 16, 17, 17.1, 18, 19, 23, 24, 25, 33, 35, 36, 37, 38, 39, 41, 44, 47, 49, 53, 54, 55 and 65 as identified on plan number aiatr1.1 rev.0.6 prepared by Footprint Green Pty Ltd, dated 13/12/18. The removal of any other trees requires separate approval in accordance with the Tree and Vegetation Chapter 1B.6 Hornsby Development Control Plan 2013 (HDCP)." (Exhibit 8)

Town Planning

1. The earlier town planning contention that the proposed subdivision is prohibited development has been resolved by the parties (refer to [21]).
2. The remaining town planning contentions relate to:

• whether the proposed lots are of sufficient size to accommodate future dwelling houses; and
• whether the subdivision design is responsive to the site conditions, the existing character and/or the design future character of the locality.

1. The evidence of the town planning experts on these remaining contentions is summarised in the following.
2. Mr Kennan argues that the subdivision design of the proposed development is inconsistent with DCP 2013, in particular, Part 6.2. He argues that:

• The desired outcome for urban subdivision is that "subdivision design maintains appropriately shaped lots to accommodate a dwelling and associated development that is compatible with a low density residential development."
• In determining what a 'low density residential environment' is, he argues that it is appropriate to consider the subdivision pattern of existing lots in proximity to the site. In this case, those lot sizes are in the range of 700m² to 1400m².
• Proposed Lots 2 and 3, although complying with the 500m² standard, involve the requirement to remove significant trees (Trees 9, 19 and 20) to accommodate the building footprints.

1. Mr Kennan concludes that: "It is my view that it is not satisfactory to say that because Lots 2 & 3 meet the minimum lot size development standard of 500m2 that this gives licence to remove significant trees. I am of the view that a more appropriate subdivision pattern, which would combined Lots 2 & 3, would be consistent with the above Prescriptive Measure of Part 6.2 of the HDCP which anticipates that lots may, indeed, need to be larger than the minimum to maintain significant Trees 9, 19 and 20. I am of the view that there is no reason why larger lots could not be achieved on the Site to retain significant Trees 9, 19 and 20 and also be consistent with the character of the low density residential environment in the vicinity of the site." (Exhibit 2)
2. In the alternative, Mr Minto argues that the proposed subdivision is consistent with the requirements of Section 6.2 of DCP 2013, as demonstrated by the achievement of the minimum lot size and the compliance of the proposed building footprints with Council's residential development controls.
3. Concerning Mr Kennan's criticism of Lot 2, Mr Minto argues that:

• the lot has a width greater than 12m at the building line adjacent the primary frontage;
• it is capable of supporting a 200sqm building footprint with a minimum dimension of 10m; and
• the building footprint indicated for Lot 2 complies with the residential controls and provides a private open space area that is greater than the minimum. (Exhibit 2)

1. Mr Minto disagrees with Mr Kennan's analysis of the surrounding subdivision pattern and argues that "Proposed lot 2 is of a shape which is not inconsistent with other existing irregular shaped allotments in the vicinity" (Exhibit 2).
2. In relation to the potential tree removal to accommodate the proposed building footprints, Mr Minto states: "AM agrees that the indicative dwelling plans prepared in support of the proposal would necessitate the removal of Tree 9. AM is of the opinion that the removal of a healthy tree is not an uncommon outcome as part of a subdivision application and is often necessary to provide for the orderly and economic development of land. Notwithstanding the removal of Tree 9, AM is of the opinion that the subject property will continue to support a significant number of significant trees and will continue to make a positive contribution to the tree canopy of this part of the Hornsby Shire." (Exhibit 2)

Submissions

1. Dr Smith argues that the proposed development, as amended, warrants approval. He makes the following broad submissions in support of the grant of consent to the application:

• the selective tree removal now proposed by the Applicant will retain the visual amenity that the site provides to adjoining residents and the streetscape of Manor Road. The application allows for the retention of trees with high visual significance and these are augmented by the further tree planting agreed by the arborists in Exhibit O (refer to [63])
• Tree 19, proposed to be removed, does not contribute significantly to the tree view of the site from the public domain (or adjoining private property) as it is obscured by Tree 20. Tree 20 is to be retained.
• The Court should accept the evidence of Mr Minto that the single tree removal of Tree 19, albeit a healthy tree, does not warrant refusal of the application when the proposed development is assessed against the planning controls and the zone objectives.
• Overall, the development application provides significant environmental benefits. Dr Smith details this as follows: "The application is seeking to protect some 200 trees on the RE1 zoned land by way of condition 1. So in terms of the environmental benefit of the application, currently we have a very large lot with an existing use right to continue to use that land for residential purposes. We are now imposing a condition that requires that land not to be used for residential use by virtue then protecting and ensuring the protection of some 200 plus trees"' (Tcpt, 17 December 2019, p 2 line 25)
• The management and development of the site is consistent with the GTAs from NSW RFS. Ms Howden's oral evidence confirms that to implement the GTAs no further trees are required to be removed.
• The agreed conditions of consent require the retention of Tree 20 (amongst other retained trees) which would protect them from removal under the RFS 10/50 rule.

1. In response to Council's contention regarding the proposed lot sizes, Dr Smith states:

• The development is consistent with the zone objectives.
• The lot sizes proposed comply with the minimum lot sizes in LEP 2013, namely: "(a) to provide for the subdivision of land under a community title scheme at a density that is appropriate for the site constraints, development potential, and infrastructure capacity of the land. (b) to ensure that community title lots are of a sufficient size to accommodate development."
• The agreed position of the planners is that the indicative building footprints detailed in Exhibit 6 comply with the DCP residential controls.
• Pursuant to s 4.15(3A) of the EPA Act, as the application meets the prescriptive controls of DCP 2013, a more onerous standard cannot be required by the Council.
• That the Court should apply the planning principles in Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (Project Venture v Pittwater) at [22]-[31] in determining the compatibility of the proposed development with the R2 Low Density Residential zone. Further, the determination of compatibility with the desired future character should be informed by the planning controls (lot size, building envelope controls etc).

1. Finally, the Applicant notes its agreement to a condition on the consent that allows for the imposition of a building envelope on each of the proposed lots (consistent with the building envelopes nominated on the subdivision plan) and a restriction on Lots 4 & 5 prohibiting further subdivision.
2. The relevant agreed conditions are: "Restriction on Building Envelope - Dwelling Houses Lot Nos 2, 3, 4 & 5. A restriction as to user must be created under s88B of the Conveyancing Act 1919 and registered on the approved Lots Nos. 2, 3 and 4 requiring that dwelling houses on the approved lots must be generally in accordance with the building footprints for the respective lots as detailed on the approved subdivision plan drawing titled Proposed Subdivision Plan D2 Issue T dated 15.11.19 prepared by ACOR Consultants Pty Ltd. Note: The restriction must nominate Council as the authority to release, vary or modify the restriction. Restriction as to User - Protection of Land from Further Subdivision To inform current and future owners that approved Lot 4 and approved Lot 5 are constrained from further subdivision, a Restriction as to User must be created under Section 88B of the Conveyancing Act 1919 prohibiting subdivision of the respective lots. Note: The wording of the Restriction as to User must be to Council's requirements and Council must be nominated as the authority to release, vary or modify the Restriction."
3. In the alternative, Mr Cottom maintains that the development does not have adequate regard for the development controls in DCP 2013. In particular, the controls at Part 6.1 and 6.2 as the subdivision does not adequately seek to retain trees identified to be of landscape significance.
4. Further, Mr Cottom argues that Lots 2, 3 and 4 are 'squeezed' in the subdivision design of the site and are unreasonably close to the adjoining owners. Mr Cottom supports the concerns of these residents that the proposed subdivision will cause privacy impacts.
5. Based on the Arboriculture Impact Assessment (Exhibit N), Mr Cottom raises concern that Tree 8, whilst of high landscape value, is also noted as having "evidence of pest, disease, cavity (fungi)". Mr Cottom concludes "in my submission, the condition for new planting between Trees 2 and 8 wouldn't provide sufficient comfort that the continuing existence of Tree 8 is a major factor in favour of the Applicant in relation to the effects of the tree removal proposed on the landscape significance of the site." (Tcpt, 17 December 2019 p 15 line 25.).
6. Mr Cottom disagrees with Dr Smith approach to the application of s 4.15(3A) of the EPA Act to the setback requirements of DCP 2013, and Dr Smith conclusion that the Respondent cannot require a further setback than the numerical figure. Mr Cottom argues that Part 6.2 of DCP 2013 envisages greater setbacks than the numerical amount may be required where the retention of significant landscape features is required. Mr Cottom argues this approach is consistent with the evidence of Mr Kennan and should be adopted by the Court.

Findings

1. At the close of the evidence and submissions I am asked to consider whether the proposed development is appropriate in relation to the following main areas of dispute:

• whether the proposed tree removal and the management of retained vegetation is acceptable;
• whether the proposed lots are of sufficient size to accommodate future dwelling houses; and
• whether the subdivision design is responsive to the site conditions, the existing character and/or the design future character of the locality.

1. Further, I am required to undertake an assessment of the merits of the application under s 4.15 of the EPA Act, in particular, to take into consideration the submissions received when determining the application.

Tree removal

1. I note the agreement of the ecology experts that Council's earlier concerns are resolved by the imposition of the proposed deferred commencement consent proposed in accordance with s 4.16 of the EPA Act (refer to [58]).
2. I am satisfied with that the matters proposed in the deferred commencement condition are appropriately certain and have clearly expressed outcomes, objectives and identified criteria. The implementation of the deferred commencement condition will result in a material number of additional trees, characteristic of the Peppermint Angophora Forest, being planted and maintained in Lot 6.
3. I note the condition seeks to avoid the circumstance of a lapsed deferred commencement consent by providing a timeframe of 36 months for the submission of information, before a lapsing time for the consent of 42 months. Consistent with the decision of the Court in Dennes v Port Macquarie-Hastings Council [2018] NSWLEC 95 at [39]-[40] if the Council fails to be satisfied with the information submitted the consent would lapse on the expiration of 42 months from the grant of consent. This period is sufficient, and the nomination of the earlier period for submission is superfluous. I have deleted the reference to the 36 month timeframe from the consent.
4. I accept the agreement of the ecologist and am not persuaded that the proposed development is inconsistent with the controls detailed in Part 1C.11: Biodiversity of DCP 2013.
5. I am satisfied that the proposed subdivision is consistent with the requirement at (m) of Section 1B.6.1 Tree Preservation (refer to [31]) in that the subdivision design accommodates sufficient space for replanting and augmentation of the existing tree cover. Further, such replanting forms part of the development consent for the subdivision.
6. In terms of the remaining disagreement between the arborists, I am satisfied on their evidence that Tree 20 is capable of retention and is further required to be retained by the consent (refer to [63]). I am equally persuaded by the arborists agreed condition that tree 7 is capable of retention and the conditions proposed for its management are a proportionate and appropriate means of ensuring its protection during construction.
7. I accept Mr Paroissien's proposed condition which clarifies the trees to which consent for removal is granted, and those which are required to be retained. I note such a condition would in effect 'turn off' the ability to remove these trees under the 10/50 rule, ensuring their retention following residential construction.
8. I am satisfied that the agreed condition imposing of a restriction as to user on Lots Nos. 2, 3 and 4 requiring that future houses be generally in accordance with the building footprints on the approved subdivision plan will provide further certainty to the retention of existing and new tree plantings.
9. I am persuaded by Mr Minto's evidence of the reasonableness of the nominated removal of the trees identified in Exhibit B, and in particular Tree 9 in the context of the planning controls.
10. I am satisfied that the proposed tree removal arising from the subdivision works does not warrant refusal of the subdivision application. My reasoning is as follows:

• The site is part zoned R2 Low Density Residential and part zoned RE1 Public recreation under LEP 2012. At the time of the gazettal of LEP 2012, the extent of the subject site zoned R2 Low Density exceeded the minimum lot size control contained in LEP 2012. It is implicit therefore that the instrument envisaged, subject to merit assessment, the site had the potential for further subdivision.
• The subdivision design, for which consent is sought, complies with the minimum lot size control in LEP 2012.
• Whilst the preceding circumstances are not an entitlement to develop, as noted in BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [17]-[18], such circumstances should be given weight by the Court: "In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site".
• Based on the evidence and the site view, I am satisfied that the visual amenity provided by the existing trees on site has been given appropriate consideration by the Applicant. The view of the tree-lined canopy from Manor Road and the surrounds will remain through both the mandated retention of Trees 1-3, 6-8 and 20-22 as well as the requirement for additional planting to allow for those trees to be succeeded in the future by trees planted as part of the subdivision works.
• I accept the evidence of Mr Short and Ms Howden that the conditions of concurrence provided by the NSW RFS on 4 December 2019 (refer to [19]) is not in conflict with the subdivision plan and will not necessitate the need for further tree removal.

Subdivision Design

1. It is the agreed evidence of the planners that future dwellings (if contained within the building footprints indicated) will comply with the residential development controls in DCP 2013. Namely: sections 3.1.2 Setbacks, 3.1.3 Landscaping, 3.14 Openspace, and 3.1.7 Vehicular access and parking. This is demonstrated by Exhibit C. Given the proposed building footprints are compliant with these controls, I am satisfied the remaining matters of sunlight access and privacy are appropriately dealt with at the application stage for any future dwellings.
2. I accept and adopt the submissions of Dr Smith at [80] that the effect of s 4.15(3A)(a) of the EPA Act is that given the minimum lot size control of 500m² at 6.2.1 (a) of DCP 2013 is met, a more onerous standard cannot be sought.
3. Further, I am not persuaded that the Respondent has established that the subdivision design fails to achieve the minimum setbacks from significant landscape features, or that greater lot areas are required to address specific site constraints.
4. Mr Kennan argues that the proposed subdivision is inconsistent with a low density residential environment. I am not persuaded by his reasoning that the existing subdivision pattern when read with the controls at 6.2 of DCP 2013, necessitates larger lots on the subject site to be "consistent with the character of the low density residential environment in the vicinity of the site" (Exhibit 2). I am not persuaded that the proposed subdivision design is incompatible with the existing character of Manor Road in proximity to the site. It is clear from a visual analysis of the aerial photograph in Exhibit 2, and my observations on site, that many of the properties in close proximity to the subject site have been the subject of further subdivision over time. Some in a form similar to that proposed by this application.
5. I prefer and adopt the submission of Dr Smith that the Court should apply the planning principles in Project Venture v Pittwater in determining the compatibility of the proposed development with the R2 Low Density Residential zone. And, that the determination of compatibility with the desired future character should be informed by the planning controls (lot size, building envelope controls etc.). Having given these factors consideration, I am satisfied any physical impacts on surrounding development arising from the subdivision are acceptable and that the subdivision is in harmony with the pattern of allotments surrounding it and the character of the street. I find that the proposed subdivision is not inconsistent with the zone nor the low density residential environment.
6. I am satisfied that nothing inherent in the subdivision design warrants refusal of the application.

Public Interest

1. I accept the submission of Dr Smith that there is an inherent benefit that arises from the grant of consent to the subdivision. I conclude that those benefits arise from:

• The separation of the land zoned RE1 Public Recreation (for future acquisition by the Council: cl 5.1 LEP 2013) to be wholly contained in one allotment, Lot 6.
• The removal of any potential for residential use of Lot 6 (refer condition 2 in Annexure A).
• The exclusion of the APZ from Lot 6 (Exhibit E).

1. Further, I am satisfied that the deferred commencement condition will result in the planting of additional vegetation characteristic of Peppermint Angophora Forest within Lot 6 as a result of the grant of consent.
2. I am satisfied that a number of concerns of residents have been ameliorated by amendments to the subdivisions design, the provision of GTAs from NSW RFS, recommended conditions by the experts, or as a result of expert evidence. Whilst the residents may express a preference for a subdivision with a smaller number of lots, that is not the application before the Court.
3. During the proceedings, I raised with the parties the concerns of residents about the potential for future re-subdivision of lots 5 and 6 into smaller lots. The Applicant agrees to a condition requiring a restriction on title prohibiting the further subdivision of these two lots.
4. Following an evaluation of the merits of the development application under s 4.15(1) of the EPA Act, I am satisfied the application warrants approval, subject to the conditions included at Annexure A.

Orders

1. Having had regard to all of the evidence before me, I am satisfied that it is appropriate to grant development consent to the proposal.
2. The orders of the Court are: 1. The appeal is upheld. 2. Consent is granted to DA/151/2018 for demolition, tree removal and community title subdivision of existing Lot 3 DP 524288 into six lots and new building work to the retained dwelling subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of Exhibits A, B, J, O, P and 1.

Commissioner of the Court Annexure A (131 KB, pdf) 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: 12 February 2020