Sleiman v Central Coast Council

The Site

1. The site is an irregular shape fronting Stewart Street, which forms the northern boundary for a length of 23.9m. The area of the site is 815.7m², and is located 145m west of the North Entrance beach.
2. The site is relatively flat lying, with a slight fall to the north. It is currently occupied by a single level dual occupancy dwelling at the front and shed at the rear.
3. Vegetation is sparse across the site, which is predominantly covered by grass. On the site's western boundary, within adjoining properties are three large Norfolk Pine trees, identified as T1, T2 and T3, from north to south. These trees stand over 20m high and have branches that extend across the site's western boundary.

Relevant Planning Controls

1. With respect to the proposed development, the requirements of s 4.15(1) of the EP&A Act are relevant for consideration by the Court in the granting of the DA under appeal: 4.15 Evaluation(cf previous s 79C) (1) Matters for consideration - general 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 Planning 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 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the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.
2. Also of relevance for the Courts consideration of this DA, particularly as it relates to flooding and as contended by the Council, are cll 7 and 8(d) of the State Environmental Planning Policy No 71 - Coastal Protection (SEPP 71) which state: 7 Application of clause 8 matters The matters for consideration set out in clause 8: (a) should be taken into account by a council, when it prepares a draft local environmental plan that applies to land to which this Policy applies, and (b) are to be taken into account by a consent authority when it determines a development application to carry out development on land to which this Policy applies. 8 Matters for consideration The matters for consideration are the following: … (d) the suitability of development given its type, location and design and its relationship with the surrounding area, …
3. Pursuant to the Wyong Local Environmental Plan 2013 (WLEP), the site is zoned R1 General Residential and the proposed development, as multi-dwellings is permissible in the zone. According to cl 2.3, the objectives of this zone are as follows: Objectives of zone • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To promote "walkable" neighbourhoods. • To ensure that development is compatible with the scale and character of the local area and complements the existing streetscape.
4. Also, of relevance in consideration of the DA under appeal are the aims of the WLEP, established in cl 1.2, with particular attention drawn to (h), (i) and (j) as they relate to the contentions under consideration: 1.2 Aims of Plan (1) This Plan aims to make local environmental planning provisions for land in that part of the Central Coast local government area to which this Plan applies (in this Plan referred to as Wyong) in accordance with the relevant standard environmental planning instrument under section 33A of the Act. (2) The particular aims of this Plan are as follows: …. (h) to maintain and enhance the existing character, amenity and environmental quality of Wyong, (i) to minimise risk to the community in areas subject to environmental hazards, including flooding, climate change and bush fires, (j) to promote a high standard of urban design that responds appropriately to the existing or desired future character of areas, ….
5. With respect to flooding, cl 7.2 of the WLEP is relevant for the Courts consideration as the site is located below the designated flood planning level: 7.2 Flood planning (1) The objectives of this clause are as follows: (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the land's flood hazard, taking into account projected changes as a result of climate change, (c) to avoid significant adverse impacts on flood behaviour and the environment. (2) This clause applies to land at or below the flood planning level. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development: (a) is compatible with the flood hazard of the land, and (b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. (4) A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005, unless it is otherwise defined in this Plan.
6. Also of relevance for the Courts consideration are the following sections of the Wyong Development Control Plan 2013 (WDCP), including: Chapter 3.3 on floodplain management; Chapter 5.3 on character and streetscape; Chapter 2.4 on privacy and solar access; and Chapter 3.6 on tree preservation.
7. The site is subject to the Tuggerah Lakes Floodplain Risk Management Study and Plan (2014), prepared by Council, and the State Emergency Services (SES) Wyong Shire Local Flood Plan (2013). Further to this, the respondents flooding expert relies on the flood hazard graphs provided in the Australian Institute for Disaster Resilience, Australian Disaster Resilience Handbook Collection, Guideline 7-3: Technical flood risk management guideline: Flood hazard (2014) (hereafter referred to as the flood hazard guidelines).
8. The Australian Standard for Protection of Trees, AS4970-2009 is relevance in of consideration by the Court with respect to the potential impact to the Norfolk Pine trees.

Evidence

1. The parties relied on the following experts: 1. Planning - Ms Salli Pendergast and Ms Tania Herbert for the applicant; and Mr Matt Thitchener for the respondent. 2. Arboriculture - Mr Russell Kingdom for the applicant; and Mr Lindsay Field for the respondent. 3. Drainage - Mr Nicholas Lane for the applicant; and Mr Steve Molino for the respondent.

Has the risk to life during a flood event been minimised and is the proposed development compatible with the known flood hazard?

1. The experts agree on the behaviour of flooding that affects the site, as it relates to source, extent, level and velocity, in events up to and including a probable maximum flood (PMF). They also agree that there are two types of flood sources affecting the site, being: failure/overtopping of the levee along Wilfred Barrett Drive, referred to as 'lake' flooding'; and 'local catchment' flooding, due to heavy rain in the area behind the levee and across the zone.
2. The Flood Risk Assessment Report, prepared by RGH Consulting Group, dated January 2018, is provided as a supporting document to the DA (Exhibit B). The applicant relies on this report to provide details to manage the risk to life associated with the proposed development, and the experts rely on elements of this report in their expert report and evidence.
3. The site is located in Council's flood planning Precinct 3, deemed as a high (flood) hazard category, which is agreed in the flooding expert report (Exhibit B).
4. The experts agree that the designed (habitable) floor level of the dwellings must be at least 0.5m above the 1 in a 100 year flood event (1% annual exceedance level), as required in the WDCP, and relevant for this site this is agreed as 2.7m above height datum (AHD). This level is established as the 'flood planning level' (FPL), as described in cl 7.2 of the WLEP. The amended plans show the lowest habitable floor level at 2.8m AHD, which is agreed by the experts.
5. The experts accept that future flood levels may be higher due to climate change effects, and that in a worst case climate change impact scenario (potentially up to 0.4m increase on current PMF levels), the designed lowest floor levels may not be sufficient to prevent water ingress to these habitable floors. They also accept that the flood planning level, established in the WLEP (cl 7.2) and described in the WDCP does not consider these climate change impacts. It is also accepted that a large number of other existing dwellings in the locality will be in the future and are currently adversely affected during a flood situation.
6. The experts do not agree whether the proposed development can sufficiently mitigate the vulnerability to human life due to flooding, by reliance on evacuation to the beach thereby to minimise the risk to life nor is compatible with the flood hazard, as required in cl 7.2(1) of the WLEP.
7. Mr Lane relies on the preparation and activation in a flood event of an Emergency Flood Management Plan (EFMP), to be developed as a condition of consent.
8. Mr Molino is particularly concerned that with the addition of the third dwelling, the risk to life will be increased because of more persons, and that the EFMP is not realistic to minimise the risk to life, which makes the proposed development incompatible with the flood hazard on the site.
9. He concedes that the site is currently utilised as two (attached) dwellings (approved as a dual occupancy dwellings in 1965, Exhibit 6). However, he contends that the addition of additional bedrooms will result in more persons potentially affected in a flood event, which increases the potential risk. He is also concerned that human behaviour in a flood event will not be consistent with the EFMP, and therefore it cannot be relied on to minimise the risk to life.
10. The flood hazard graphs provided in the expert report (Exhibit 3) are drawn from the flood hazard guidelines. The experts agree that based on their understanding of flood behaviour, the flood hazard graphs show the site, in a 1% AEP event (with depths up to 2.2m at the site), as being 'H3 - unsafe for vehicles, children and elderly'. It is also agreed that in a PMF event, the flood hazard at the site could reach 'H4 - unsafe for people and vehicles' flood category.
11. The experts agree that due to the low velocity of flood waters, this is not a significant concern to residents during an evacuation.
12. Mr Molino holds a concern regarding the potential wading depth and the quality of floodwaters, due to mixing with sewer waste, which could be a risk to human health.
13. The experts agree that shelter in place is possible up to a PMF event, as the habitable floors are above the flood planning level. However, the experts disagree whether this is a suitable option to be relied on, because persons may need to evacuate during a prolonged flood event and could take unacceptable risks.
14. The time that floodwaters could remain across the site and interaction with utility services (water, sewer and power) is a concern for Mr Molino, whom predicts flood waters could remain on the site for 'three or more days'. This is not disputed by Mr Lane, although he is less concerned as he envisages that will people mobilise prior to a flooding event as required in the EFMP and communicated by the SES.
15. The experts do not agree whether there is a safe evacuation route/s from the site during a flood event. Mr Molino contends that people will wait until it is too late and will be wading through polluted and elevated waters for some distance. They also cannot safely reach the proposed evacuation route towards the path along the beach because of the wading depth, although he accepts the beach path would not be subject to flooding and is considered a safe route once persons reach it.
16. Mr Lane considers that there are a number of potential evacuation routes from the site to safe ground, including the beach exit as proposed, depending on the time of evacuation and extent of flooding when evacuating.

Findings

1. The Court must, based on the evidence before it, determine whether the risk to life due to a flooding event (hazard) has been sufficiently minimised by the design of the dwellings and the reliance on an EFMP. The Court must also address, as contended by the respondent, whether the additional dwelling on the site, increases and poses an unacceptable risk to human life during a flood event.
2. I agree that the site is located within a flood affected area and that the site is below the nominated flood planning level (FPL). Therefore, the proposed development must consider the requirements of cl 7.2(2) of the WLEP and the Court must be satisfied for the granting of this DA.
3. It is accepted that the habitable floors are designed at and above 2.8m AHD, which is above the FPL of 2.7m applied to this site. I also accept that climate change impacts are not considered in the FPL. Clause 7.2(1)(b) of the WLEP requires consideration of the potential impacts of climate change when assessing compatibility with the flood hazard.
4. The consequence of climate change on flooding at the site is agreed by the experts to potentially result in more frequent floods and higher flood levels (up to 0.4m increase). Therefore, in a worst case scenario, the lowest habitable level of the dwellings may become inundated.
5. I also accept the expert's evidence based on the flood hazard guidelines that in a 1% AEP and a PMF event, in a flood event, the site could be in a 'H3' and 'H4' hydraulic hazard, respectively. I find that the hydraulic hazard category which guides response to a flood event will not change as a result of climate change impacts, and will remain for this site at a maximum of 'H4'. Therefore, I find no inconsistency with the absence of climate change impacts incorporated in the proposed development as it relates to site compatibility.
6. I recognise that Council was aware of climate change impact when establishing the FPL, and has not included potential climate change impact in their determination of the FPL. I therefore find no inconsistency with the FPL applied to and designed for the proposed development, and this does not cause me to consider there is an inconsistency with cl 7.2(1)(b) of the WLEP.
7. An issue that the Court in this appeal must resolve relates to whether there are sufficient and appropriate procedures for this development to sufficiently mitigate the vulnerability of persons associated with the site during flooding, and therefore minimise the risk to life in a flood event.
8. The management of risk to life is specifically required in cl 7.2(3)(c) of the WLEP, and which the Council contends is not adequately addressed by the proposed development's reliance on an EFMP, including evacuation to the beach and to be developed by condition of consent.
9. I consider that Chapter 3.3 of the WDCP is relevant for consideration, including the achievement of the objectives in Section 1.1, particularly that which requires management of the risk to life as a result of flooding. The experts and I agree that the proposed development, requires a 'performance based assessment' to demonstrate site compatibility, consistent with the flooding hazard on the site. The requirements of this assessment are detailed in Section 3.2 and Appendix C of the WDCP.
10. Based on the expert evidence, I agree that the proposed development will not change the flood behaviour pattern within or beyond the site, nor detrimentally impact flooding on adjoining lands, including residences in Stuart and Hutton Streets. Therefore, cl 7.2(3)(b) and (d) are not relevant for further consideration. Objective in cl 7.2(1)(c) of the WLEP is achieved.
11. I find that the requirements of cl 7.2(3)(e) are achieved, as there is no perceived unsustainable economic or social cost on the community as a result of the proposed development. The WDCP relies on new developments to implement self-evacuation, which is proposed by the EFMP. Therefore, the SES should not be unduly burdened, provided the EFMP is implemented effectively. The SES is equipped and capable of responding during a flood event to residents on the site if needed without undue burden on the community.
12. The effects of flooding to the internal functioning of the site and to persons related to the proposed development are a fundamental consideration for the Court in assessing whether the risk to life has been minimised and effectively managed. Relevantly, the Court must be satisfied of cl 7.2(1)(a) and (b), in addition to cl 7.2(3)(a) and (c) of the WLEP.
13. It is accepted that all the habitable floor levels in dwellings proposed in this development are designed above the FPL. As described in Appendix C of the WDCP, the compatibility of a site should be considered relative to the established flood hazard by ensuing floodwaters are not altered and sufficient freeboard is provided to habitable floors.
14. I accept that the designed level of the lowest habitable level of the proposed dwellings is at 2.8m AHD, which is above the FPL (as shown in Exhibit A), and this seeks to address the site compatibility requirements. I find that the proposed development satisfies cl 7.2(1)(b) of the WLEP. The site, as proposed to be developed, is compatible with the flood hazard of the land, and also satisfies cl 7.2(3)(a).
15. It is agreed that floodwater inundation at this site is likely to be a 'rare' event. However, I do not fully agree with Mr Molino that an EFMP, could not adequately mitigate any potential harm to persons associated with the site, and therefore minimise the risk to life from flooding. I explain my findings below.
16. The DA primarily relies on an EFMP, to be provided by way of a condition of consent, to satisfy cll 7.2(1)(a) and 7.2(3)(c) of the WLEP.
17. Determining flood risk for the DA under appeal, which for this assessment focuses on human life, has two components: hazard; and vulnerability. The experts agree, and I accept that the proposed development cannot reduce the flood hazard itself, as this is a force controlled beyond the site. The proposed development can however seek to mitigate and thereby minimise the risk to life when exposed to a flood event, through addressing the vulnerability of these persons. The experts agree that the focus of the consideration for the Court should be on persons associated with the site and not the community as a whole.
18. The applicant seeks to reduce the vulnerability of persons associated with the site to flooding hazard through reliance on an EFMP. The EFMP provides for identification of appropriate evacuation procedures and implementation of response prior to and during a flood event.
19. I explain below why I agree that the measures proposed by the applicant are capable of sufficiently managing and thereby minimising the risk to life from flooding. I consider the vulnerability of people on the site can be reduced sufficiently by preparation of an EFMP and appropriate signage, as proposed in the conditions of consent. However, I make note that this is contingent on the EFMP being based on the recommendations and observations of the Flood Assessment Study.
20. Both parties agree that a flood warning sign should be erected on the site to communicate the future flood risk to residents, which is provided in the conditions of consent. I agree this is appropriate to support the management of risk to life in a flood event.
21. The assessment of flood risk and use of 'private plans' to support evacuation in an attempt to mitigate risk is described in the NSW Government Flood Development Manual: the management of flood liable land (2005) (FMP 2005). Relevantly in the FMP 2005, Section N7.1 states: "Floods are highly variable in frequency and severity and this influences two critical planning assumptions, available flood warning time and likely consequences. If, in an actual flood, there is a significant variation between assumptions and reality, even a well written plan may fail unless intelligent on-the-day adaptation is implemented."
22. I understand this to require an EFMP that is both adaptable and appropriate for the circumstances in which it is being applied. It must consider and address the source, height, extent, velocity and frequency of flooding.
23. The Flood Risk Assessment report addresses all the requirements specified in Appendix C of the WDCP. I am satisfied that this report provides sufficient information to form the basis to inform an effective EFMP. The details provided in the report on the proposed evacuation route to the beach I consider, are appropriate, although as discussed by the experts, other alternative evacuation routes to safe ground should also be provided in the EFMP. These safe routes should be shown diagrammatically on the any signage on the site that relates to flood response.
24. I consider that the proposed development, as three residential dwellings to be held in the same ownership (i.e. no subdivision of the lot proposed), has the capacity to manage the risk to life through effective implementation of an EFMP, and that the residents will also be able to adapt to the particular circumstances of a flood event. In this particular situation, with no subdivision proposed and as explained by the applicant, the three dwellings will be resided in by the same family members, where they will have the ability to support and direct the more vulnerable members of the family.
25. The assumption posed by Mr Molino that only 25% of people will respond appropriately in a flood event, specifically to evacuate in a timely manner I find cannot be relied upon, as there are many factors which influence human behaviour. I find that the proposed development can manage these influencing factors. A few reasons why people may not respond appropriately in a flood event include a person's: ability/capacity to respond including sickness and agility; understanding of the evacuation procedures including language skills and knowledge; willingness to take instruction; and ability to find alternative lodging once evacuated.
26. Flood management procedures to reduce the flood risk, as proposed by the applicant, including signage and an EFMP, must be able to overcome these (human) constraints. I believe what is proposed is capable of doing this. The EFMP however must be based on the Flood Risk Assessment report to be consistent with the approach identified in the WDCP to manage the risk to life on the site.
27. I do not require the EFMP as a deferred commencement condition, nor to be signed off by the Council as suggested in the respondents draft conditions, although I do require the EFMP to rely on and be informed by the Flood Risk Assessment report. This report provides a sound basis to develop an EFMP and is consistent with the requirements of Section 3.2 of the WDCP.
28. With regards to the risk of drowning and to human health due to exposure to elevated and contaminated flood waters during evacuation, as raised by Mr Molino, I agree this could pose a risk to life, particularly if contaminated waters are ingested. However, I consider that the limited exposure time for people to reach safe, high ground and the relatively shallow depth of low velocity floodwaters sufficiently reduces this potential impact.
29. The residents of the proposed development will have sufficient information from the SES warnings and be directed by the EFMP, to provide capacity and time to evacuate prior to flooding at the site, thereby minimising the risk to life. The experts agree and I accept, that a flood warning to evacuate will be issued in excess of 6 hours of the flood waters reaching the site, and will be broadcast by SES, as per the Wyong Shire Local Flood Plan (2013).
30. I do not consider that the additional (third) dwelling on the site will make the EFMP ineffective to minimise risk to life. I do not accept Mr Molino's assertion that the additional dwelling on the site unacceptably increases the risk on the basis that there are potentially more people.
31. Density, as posed by the Council as a constraint to the proposed development (being three dwellings rather than two), I find is not a basis to refuse this development for reasons provided above. I accept that the performance based flood assessment required in Section 3.2 of the WDCP discourages new development in floodway areas, and that 'modest development may be considered on a merit basis', as described in Council's relevant Fact Sheet. An assessment relies on the Tuggerah Lakes Floodplain Risk Assessment Management Plan to inform the potential flood impact relevant to this site. This is the basis on which the Court has considered the proposed development.
32. I find that the assessment undertaken by the applicant in the Flood Risk Assessment report has addressed the elements that require consideration for a performance based flood assessment. Future development particularly that which results in an increased density is not prohibited in a Precinct 3 area. However, it must be demonstrated that mitigation measures have been sufficiently adopted to manage the potential risk to life. Evacuation must be 'via a safe low hazard route' with a wading distance less than 200m. I accept that the proposed evacuation to the beach is via a safe low hazard route, which is located less than 200m from the site.
33. I consider the designed level of the lowest habitable level of the proposed dwellings, together with the requirements for emergency signage and an EFMP, sufficiently minimises the risk to life from a flooding hazard. I therefore find the proposed development satisfies cl 7.2(3)(c) and cl 7.2(1)(a) of the WLEP. The proposed development is compatible with the flood hazard as it relates to the site, and satisfies cl 7.2(1)(b) and cl 7.2(3)(a). As a result, I find that cl 7.2 of the WLEP is satisfied by the proposed development.
34. I also find that cl 1.2(2), specifically (i) of the WLEP, is satisfied by the proposed development. The proposed development will not result in further risk to the community from flooding.
35. Based on the proposed design of the dwellings and evacuation/flood management procedures to be developed as conditions of consent I am satisfied the requirements of cll 7 and 8(d) of the SEPP 71 have been met. The site is suitable for the proposed development, and I am satisfied the proposed flood evacuation procedures can be properly implemented and therefore the potential risk to life from flooding will be sufficiently minimised.

Are there potential adverse impacts to the Norfolk Pine trees located on adjoining properties as a result of the proposed development?

1. The Council raises a concern that the proposed development, primarily as it relates to townhouse 1 (TH1), located at the rear (south) of the site, will have an unacceptable impact to the Norfolk Pine trees located across the western boundary of the site, within properties identified as 99, 101 and 103 Hutton Road. In particular, the potential impact to T3 as a consequence of the proximity of TH1 could lead to poor tree health, reduced life expectancy and tree failure.
2. The experts agree in their expert report, Exhibit 4, on the size, life and current condition of the three Norfolk Pine trees, identified as T1, T2 and T3. They also agree that these trees should be retained, and that root mapping and a Tree Management Plan (TMP) is required, as specified in the Australian Standard for Protection of Trees, AS4970-2009. They agree that the proposed development (specifically TH1) encroaches over 10% of the tree protection zone (TPZ) of T3.
3. The experts agree that there is currently insufficient information provided in the supporting documents to the DA under appeal to determine the actual root mass and dimension for these trees, and that there is potential impact to these trees, particularly T3 from the proposed development, as currently designed (and before the Court for consideration).
4. The experts disagree whether this relevant information can be appropriately provided by condition of consent to ensure the proposed development is designed in a manner that will not adversely impact these trees.
5. The experts agree that the proposed construction of the western half of TH1 on a suspended slab with piers could potentially limit any adverse impact to the roots of T3, as shown in amended plan, DA 23(3), in Exhibit A. However, Mr Field is concerned that the absence of root mapping does not currently provide sufficient information to ensure these piers are located in places that will minimise impact to the roots of T3. The location of piers depends on root mapping and guidance of the engineer and arboculturist, by condition of consent.
6. The experts disagree whether there is sufficient understanding of the proposed 'leaky' stormwater system beneath TH1 to provide an effective moisture control system for the root zone of T3. No engineering details of the proposed leaky stormwater system are provided in evidence, nor has the system been assessed by the experts. It is dealt with by condition of consent.

Findings

1. The Court must, based on the evidence provided for the DA under appeal, determine whether the three Norfolk Pine trees (T1, T2 and T3), which are located on adjoining properties to the west of the site, have been sufficiently considered and protected for their life, and whether they could be detrimentally impacted by the proposed development.
2. I agree with the experts that root mapping and a TMP is required to support the DA based on the proposed development. However, I do not find it sufficient that this fundamental work, specifically the root mapping, be dealt with by a condition of consent, as proposed by the applicant. This information is essential to inform the design of the proposed dwellings on the site, particularly TH1, and by agreement of the experts could potentially impact T3, as the most at risk tree.
3. The experts agree, and I am satisfied that the rainwater tank for TH1 must not be located over the root zone of T3. I accept the amended design for the rainwater tanks of TH1, as shown in plan DA02(2).
4. I accept the evidence of the experts that a suspended slab with pier construction as proposed for TH1 could serve to limit the impact to the root zone of T3. However, without fully understanding the extent and depth of the root zone of these trees, particularly the structural root zone (SRZ) of T3, this concept remains hypothetical.
5. I note the potential for impact to these trees was identified during the onsite view of the conciliation conference on 23 January 2019, and as a result the Council amended its SoFC to raise this issue as a contention on 22 March 2019. Therefore, the applicant has known about this issue and the need to satisfy the Court since March 2019, and yet did not act on it. Despite minor changes to the (TH1) dwelling design, such as slab with piers and moving the rainwater tanks, the applicant did not take a necessary step, as required by the experts, to understand the extent of roots and potential for impact on the Norfolk Pine trees. To rely on this information by way of condition of consent is unreasonable.
6. The applicant, through its expert Mr Kingdom, relies on a hypothetical approach to determining the extent of roots of the Norfolk Pine trees, based on the Australian Standard formulas, without actually undertaking on the ground root mapping. These trees are determined by Mr Kingdom as of 'high significance'. Therefore, I find that mapping of the root zone for these trees to inform architectural design is required to understand the potential impact to these trees from the proposed development, particularly as it is agreed that potentially up to 20% of the root zone is covered for T3.
7. The practicality of a 'leaky' stormwater system to provide sufficient moisture to the roots of T3 has not been well explored by the experts. There is no engineering consideration of the viability of this approach before the Court and I am not satisfied this approach will work on the site. The respondents' expert, Mr Fields was not able to confirm in evidence whether this was a reasonable option and I have been provided insufficient evidence to consider this option, including feasibility, benefits and impacts. There is no engineering evidence before me as to whether this is an effective approach. The stormwater experts have not turned their mind to the feasibility of this option, and it is not described in the stormwater plan, DA 02(2). I do not accept this lack of information can be dealt with by condition of consent.
8. The absence of relevant information on the tree roots, and potential impact from structural incursion and lack/excessive moisture does not sufficiently address the requirement of the proposed development to protect these trees. There is potential for these trees to fail if impacts are not properly managed. Due to the location of the trees to existing and proposed dwellings, particularly T3, this impact could be catastrophic if a tree or limb was to fall on a person or dwelling.
9. Due to the (high) significance of these trees and the agreed position of the experts to protect them, I find that I have insufficient information to determine the potential impact to these trees. I find the approach to rely on root mapping by condition of consent is unacceptable and inappropriate to protect these trees.
10. My assessment of addressing insufficient information to be satisfied after the grant consent is consistent with the findings of Preston CJ in the Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86 at [97] as follows: "[97] The development application will be "ineffective and incomplete" whilst so ever the development application does not contain the information and is not accompanied by the documents that the EPA Act and the Regulation require to be provided in order for the consent authority to validly exercise the power to determine the development application. There can be no valid determination of the development application until there is substantial compliance with such statutory prescriptions: McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 at [189]."
11. I do not accept the proposition advanced by the applicant that the failure to provide an appropriate level of information can be overcome by the grant of conditions of consent. To take such an approach provides no certainty to the Court that the application could protect these trees and there is a minimal risk to life.
12. The reliance on a condition of consent that defers detail after consent is granted, and which could potentially result in works that could impact the Norfolk Pine trees, is inconsistent with the legal principal established in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 (Mison). In this judgment, at [740] Clarke JA states: "[740] Where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent could be regarded as final."
13. Preistley JA, Clarke JA and Meagher JA, in their opening statements at [1] of the Mison judgment recognise the significance of ensuring conditions complement the consent being sought, as described below: "[1] If a condition imposed upon a purported consent to a particular development application pursuant to s 91(1) of the Environmental Planning and Assessment Act 1979 has the effect of significantly altering the development in respect of which the consent is made or if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which application was made then the purported consent is not a consent to the application (at 734)."
14. Further work is required by the applicant, as agreed by the experts, prior to development consent, to better understand the potential impact to the Norfolk Pine tree roots. The risk to property and life if the trees fail has not been addressed nor mitigated sufficiently.
15. The information that supports the DA under appeal and evidence before the Court does not satisfy the aims of Chapter 3.6 of the WDCP. I find that based on the amended plans and proposed conditions of consent, the requirements of AS4970-2009 and Chapter 3.6 of the WDCP are not satisfied and this contention remains unresolved.
16. The weight to be applied to the non-compliance of a DCP is helpfully explained by Commissioner O'Neill in Kirzner v Manly Council [2013] NSWLEC 1016, [33] as follows: "The emphasis to be given to a DCP is addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ, at par 75, raises three important propositions. First, and although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision making process but it is not in itself determinative."
17. The lack of information to protect the Norfolk Pine trees, which may impact on life and surrounding property, is therefore inconsistent with s 4.15(1)(a)(iii), (b) and (c) of the EPA Act. On this basis, I find the grant of consent for this DA under appeal is not warranted.

Is the proposed development in character with the locality?

1. The Council contends that the proposed development is not in character with the locality, due to its bulk and scale and does not complement the existing streetscape.
2. The respondent's experts explain that the proposed design is not consistent with the 'seaside and coastal' architecture, reflected across the zone. The 'boxy' design of the dwellings and reliance on privacy screens provides limited articulation and detracts from the presentation to the streetscape.
3. Ms Herbert considers the 'industrial' design of the proposed development inconsistent with the character of the area. She specifically addresses the prominence of the parapets above the balconies, which she considers creates a 'boxy' perception.
4. Ms Herbert describes the character of the area as low scale residential, with traditional pitched roof, articulated entry ways, front balconies and a mixture of colour/textures.
5. Mr Thitchener however describes the character of the local area as a mix of single and multi-dwelling developments with a range of finishes. He draws the Courts attention to a number of similarly designed (multi)dwellings in the locality, including across the street at 30-32 Stewart Street.
6. Mr Thitchener accepts that these other dwellings in the area do not rely on privacy screens to the street/front, as proposed in this development. He considers the proposed privacy screens add 'texture' and are not inconsistent with a seaside character. He also accepts that the front privacy screens are not for solar protection and not as necessary as the side screens, which serve the purpose for solar minimisation and privacy to adjoining residents, as raised by objectors.
7. Mr Thitchener agrees that the location of the waste bins should ensure that odour is not an issue for residents and for ease of access. He addresses this in the amended plan DA01(6), which are agreed by the experts that bins should be at the rear of the dwellings.

Findings

1. The Court agrees with Mr Thitchener on the extent of the local area, which I find includes the extent of the R1 zone across the Entrance North. I agree that the character of the area is under transition, from single level, weatherboard dwellings to single, attached and multi-dwellings of various designs, colours and textures. These various design, colours and textures reflect the transition of character as contended in the WDCP and occurring across the zone.
2. I observed onsite that there are other buildings of similar, if not more bulky presentation to Stewart and Hutton Streets, which are designed to accommodate multi-dwelling developments. Apart from the extensive privacy screens, which I explore below, the proposed design of the dwellings is not inconsistent with the existing, emerging and future character of the locality.
3. I agree with the respondents experts that the privacy screens proposed at the front of the dwellings detracts from the visual aesthetics of the design, and I consider they serve no useful purpose, except to add unnecessary bulk. The front of the dwellings face north, therefore the living spaces are not adversely affected by oppressive direct sun. There is sufficient distance across the road (Stewart Street) to other dwellings, so that privacy is not an issue.
4. I accept the privacy screens proposed and designed on the western and eastern sides of the balconies of each dwelling serve a purpose for privacy and solar management, therefore they should remain as designed.
5. However, the privacy screens located on the front balcony (northern) of each dwelling should be removed from the design of the dwellings. They serve no amenity purpose and detract from the presentation of the dwellings. The removal of these screens at the front will also promote ensure solar access is provided to the internal living space and balconies of the dwellings.
6. The effect of removing the privacy screen at the front of each of the dwellings resolves in my mind the contention as it relates to bulk and scale. The dwellings will appear more consistent with the streetscape and character of the locality. I am satisfied that with the removal of these privacy screens, the objectives of the zone in cl 2.3 of the WLEP are achieved by the proposed development.
7. I therefore find that the aims of the WLEP, established in cl 1.2, with particular attention drawn to (h) and (j) are capable of being satisfied based on the amended design as proposed by the Court. The amended design is capable of being consistent with the existing and future character of the area, including the zone. The suggested changes to the design, by deletion of the privacy screens at the north face of the dwellings, can be dealt with condition of consent.
8. I find that the requirements of Chapter 5.3 of WDCP and cl 1.2 of WLEP are capable of being satisfied by the proposed amended design, with the removal of the north facing privacy screens on each dwelling.

Conclusion

1. The proposed development has been assessed by the Court, based on the DA's (amended) supporting plans, documents and conditions of consent to satisfy a number of requirements of the relevant planning instruments, and in particular those is dispute: cll 7 and 8 of the SEPP 71; and cll 1.2, 2.3 and 7.2 of the WLEP.
2. However, I find there is insufficient information before the Court in consideration of the DA under appeal to satisfy me that the Norfolk Pine trees will be protected by the proposed development, particularly that they would not become a potential risk to life and property. I therefore find that s 4.15(1)(a)(iii), (b) and (c) of the EPA Act is not satisfied.
3. On this basis, I find that s 4.15(1)(e) is not satisfied, as I am unable to be convinced that the proposed development is in the public interest.
4. I am not satisfied that the proposed development is lawful and complies with the relevant provisions of the EPA Act. I refuse consent to DA under appeal.

Orders

1. Consequently, the orders of the Court are as follows: 1. Leave is granted to rely on: amended plans, dated 10 October 2019; and conditions of consent, dated 4 October 2019. 2. The appeal is dismissed. 3. Development Application 134/2018 to demolish an existing dwelling and construct multi-dwelling housing consisting of three separate dwellings on Lot 29 DP 17615, also known as 15 Stewart Street, The Entrance North is refused. 4. The exhibits, except for Exhibits 7, 4, B and C are returned. ……………………. Sarah Bish Commissioner of the Court

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: 13 November 2019