SLushY Pty Limited v Ku-ring-gai Council - [2021] NSWLEC 1394 - NSWLEC 2021 case summary — Zoe

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SLushY Pty Limited v Ku-ring-gai Council

[2021] NSWLEC 1394

Land and Environment Court (NSW)|2021-06-08

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Court

Land and Environment Court (NSW)

Decision date

2021-06-08

Source

Original judgment source is linked above.

Judgment (32 paragraphs)

[1]

Judgment

COMMISSIONER: SLushY Pty Limited (the Applicant) has appealed the deemed refusal by Ku-ring-gai Council (the Respondent) of its development application (DA0536/19) seeking consent for the demolition of existing structures and the construction of a 74 place childcare centre with lower ground floor car parking, landscaping and associated works (the Proposed Development) at 102 Kissing Point Road, Turramurra, also legally described as Lot 13 in DP 12795 (the Subject Site).
The Proposed Development is for the purposes of "Centre-based child care facilities" as defined in the dictionary to Ku-ring-gai Local Environmental Plan 2015 (KLEP), and includes: 1. a lower floor level containing: 1. parking for 15 vehicles, with access from Boronia Avenue; 2. an office with reception and lobby area; 3. storage areas for outdoor equipment; and 4. a bin storage area; 1. a ground floor area containing: 1. four playrooms, two covered transition areas, a quiet room, a covered pergola, an accessible toilet and two children's bathrooms; and 2. three storerooms, a kitchen and entry foyer; 1. at grade parking for two cars; 2. an attic level containing a communications cupboard, utilities area, air conditioning and storage; 3. lapped and capped acoustic fencing of 1.8m height along a portion of the northern boundary of the Subject Site and fencing of 1.5m height along the southern boundary; 4. landscaping, including plantings to replace trees that are proposed to be removed; 5. stormwater drainage works.
The development application was made by the Applicant which is the owner of the Subject Site, in accordance with the requirements of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation).
The appeal comes to the Court under the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and falls within class 1 of the Court's jurisdiction.
Proposed Development had been notified consistent with the provisions of Ku-ring-gai Development Control Plan 2015 (KDCP) and cl 77 of the EP&A Regulation. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

[2]

Objector submissions

The following six objectors provided oral submissions, supported by written notes, to the Court at the commencement of the proceedings on site: 1. Ms Kristina Willis, speaking on behalf of Ms Bronwen Sandland and Ms Lyn Mickan, both residents of Kissing Point Road; 2. Ms Anne O'Sullivan, who also provided a submission on behalf of Ms Candice Tang and Mr Mark Xue, all residents of Boronia Avenue; 3. Ms Emma Boers, a resident of Boronia Avenue; 4. Mr Tony Stock, a resident of Kissing Point Road; 5. Ms Karen Ireland, a neighbour to the Subject Site on Boronia Avenue; and 6. Mr Richard Frecker, on behalf of Steven and Michele Gao, also neighbours to the Subject Site, on Kissing Point Road.
The submissions raised many common concerns in relation to the following aspects of the Proposed Development, including: 1. the compatibility of the Proposed Development with the character of the local area; 2. the sufficiency of the Applicant's proposed parking on-site and whether users and staff of the proposed centre would park on Boronia Avenue leading to a loss of on-street parking in the area; 3. potential traffic and parking impacts, including in relation to pedestrian safety of adults and children, noise and amenity issues, and disturbance to what residents perceived to be an otherwise quiet residential area; 4. the potential impacts of the additional traffic generated by the Proposed Development on the health of residents in the vicinity of the Subject Site; 5. the adequacy of sight lines for vehicles entering and exiting the Subject Site via the proposed driveway on Boronia Avenue; 6. potential noise impacts from the operations of the child care centre, and the impacts of that noise on people working from home and on retired residents who had planned to "age in place"; 7. the adequacy of the Applicant's proposed noise mitigation works including the proposed acoustic fencing; 8. potential impacts arising from excavation of the Subject Site, including from vibrations generated by the works and their impacts on adjacent properties; 9. the adequacy of the proposed setbacks from boundaries to the child care centre building; 10. the potential for increased movement of people in the area to give rise to increased levels of crime in an otherwise low crime area; 11. the proposed location of the storage area for waste bins; 12. potential impacts on the streetscape adjacent to the Subject Site, including in relation to the potential loss of trees; and 13. the potential impact on privacy that may arise through the proposed removal of some trees on the Subject Site.

[3]

Environmental Planning and Assessment Act 1979

Section 4.15(1) of the EP&A Act provides as follows: (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.
Section 4.15(3A) of the EP&A Act also provides: Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority - (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria.

[4]

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017

The Proposed Development is subject to the provisions of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (the Child Care SEPP), which aims to facilitate the effective delivery of educational establishments and early education and care facilities across the State of NSW.
Clause 8(1) of the Child Care SEPP provides that: Subject to subclause (2), if there is an inconsistency between this Policy and another environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.
The following further provisions of the Child Care SEPP are of particular relevance in this appeal: 1. Clause 22, which provides that the consent authority must not grant development consent to development to which this clause applies except with the concurrence of the Regulatory Authority, and specifically: 1. Clause 22(1) which requires that: (1) This clause applies to development for the purpose of a centre-based child care facility if - (a) the floor area of the building or place does not comply with regulation 107 (indoor unencumbered space requirements) of the Education and Care Services National Regulations, or (b) the outdoor space requirements for the building or place do not comply with regulation 108 (outdoor unencumbered space requirements) of those Regulations. (2) The consent authority must not grant development consent to development to which this clause applies except with the concurrence of the Regulatory Authority. 1. Clause 23, concerning centre-based child care facilities, the definition of which confirms the Proposed Development is such a facility, provides matters for consideration by consent authorities as follows: Before determining a development application for development for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline, in relation to the proposed development. 1. Clause 25, which provides non-discretionary development standards for a centre-based child care facility, as follows: (1) The object of this clause is to identify development standards for particular matters relating to a centre-based child care facility that, if complied with, prevent the consent authority from requiring more onerous standards for those matters. (2) The following are non-discretionary development standards for the purposes of section 4.15(2) and (3) of the Act in relation to the carrying out of development for the purposes of a centre-based child care facility - (a) location - the development may be located at any distance from an existing or proposed early education and care facility, (b) indoor or outdoor space (i) for development to which regulation 107 (indoor unencumbered space requirements) or 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations applies - the unencumbered area of indoor space and the unencumbered area of outdoor space for the development complies with the requirements of those regulations, or (ii) for development to which clause 28 (unencumbered indoor space and useable outdoor play space) of the Children (Education and Care Services) Supplementary Provisions Regulation 2012 applies - the development complies with the indoor space requirements or the useable outdoor play space requirements in that clause, (c) site area and site dimensions - the development may be located on a site of any size and have any length of street frontage or any allotment depth, (d) colour of building materials or shade structures - the development may be of any colour or colour scheme unless it is a State or local heritage item or in a heritage conservation area. (3) To remove doubt, this clause does not prevent a consent authority from - (a) refusing a development application in relation to a matter not specified in subclause (2), or (b) granting development consent even though any standard specified in subclause (2) is not complied with. 1. Clause 26, which concerns the applicability of the provisions of development control plans in relation to centre-based child care facilities, and which provides as follows: (1) A provision of a development control plan that specifies a requirement, standard or control in relation to any of the following matters (including by reference to ages, age ratios, groupings, numbers or the like, of children) does not apply to development for the purpose of a centre-based child care facility - (a) operational or management plans or arrangements (including hours of operation), (b) demonstrated need or demand for child care services, (c) proximity of facility to other early education and care facilities, (d) any matter relating to development for the purpose of a centre-based child care facility contained in - (i) the design principles set out in Part 2 of the Child Care Planning Guideline, or (ii) the matters for consideration set out in Part 3 or the regulatory requirements set out in Part 4 of that Guideline (other than those concerning building height, side and rear setbacks or car parking rates). (2) This clause applies regardless of when the development control plan was made.

[5]

Child Care Planning Guideline

The Child Care Planning Guideline (the Guideline) states that: "State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (the SEPP) determines that a consent authority must take into consideration this Guideline when assessing a development application (DA) for a centre-based child care facility ('child care facility'). It also determines this Guideline will take precedence over a Development Control Plan (DCP), with some exceptions, where the two overlap in relation to a child care facility."
The objectives of the Guideline are to: "• promote high quality planning and design of child care facilities in accordance with the physical requirements of the National Regulations; • ensure that child care facilities are compatible with the existing streetscape, context and neighbouring land uses; • minimise any adverse impacts of development on adjoining properties and the neighbourhood, including the natural and built environment; • deliver greater certainty to applicants, operators and the community by embedding the physical requirements for service approval into the planning requirements for child care facilities."
Section 2 of the Guideline provides design quality principles for centre-based child care facilities in relation to context, built form, adaptive learning spaces, sustainability, landscape, amenity and safety. Principles 1 and 2 of the Guideline, which concern context and built form were of particular relevance in this appeal. They provide as follows: 1. Principle 1 - Context "Good design responds and contributes to its context, including the key natural and built features of an area, their relationship and the character they create when combined. It also includes social, economic, health and environmental conditions. Well-designed child care facilities respond to and enhance the qualities and identity of the area including adjacent sites, streetscapes and neighbourhood. Well-designed child care facilities take advantage of its context by optimising nearby transport, public facilities and centres, respecting local heritage, and being responsive to the demographic, cultural and socio-economic makeup of the facility users and surrounding communities" 1. Principle 2 - Built Form "Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the surrounding area. Good design achieves an appropriate built form for a site and the building's purpose in terms of building alignments, proportions, building type, articulation and the manipulation of building elements. Good design also uses a variety of materials, colours and textures. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook. Contemporary facility design can be distinctive and unique to support innovative approaches to teaching and learning, while still achieving a visual appearance that is aesthetically pleasing, complements the surrounding areas, and contributes positively to the public realm."
Section 3 of the Guideline identifies matters for consideration which support the design principles and must be considered by the consent authority when assessing a DA for a child care facility, and these include the following matters that are of relevance in this appeal: 1. Section 3.2, which concerns local character, streetscape and the public domain interface, and which includes matters for consideration including: 1. Consideration C5, which has the following objective, and detailed considerations: "Objective: To ensure that the child care facility is compatible with the local character and surrounding streetscape C5 The proposed development should: ● contribute to the local area by being designed in character with the locality and existing streetscape; ● reflect the predominant form of surrounding land uses, particularly in low density residential areas ● recognise predominant streetscape qualities, such as building form, scale, materials and colours ● include design and architectural treatments that respond to and integrate with the existing streetscape ● use landscaping to positively contribute to the streetscape and neighbouring amenity ● integrate car parking into the building and site landscaping design in residential areas." 1. Section 3.3, which concerns building orientation, envelope and design, and which includes matters for consideration including: 1. Consideration C15, which has the following objective, and detailed considerations: "Objective: To ensure that the built form, articulation and scale of development relates to its context and buildings are well designed to contribute to an area's character. C15 The built form of the development should contribute to the character of the local area, including how it: ● respects and responds to its physical context such as adjacent built form, neighbourhood character, streetscape quality and heritage ● contributes to the identity of the place • retains and reinforces existing built form and vegetation where significant ● considers heritage within the local neighbourhood including identified heritage items and conservation areas ● responds to its natural environment including local landscape setting and climate ● contributes to the identity of place"

[6]

Ku-ring-gai Local Environmental Plan 2015

The Subject Site is located on land zoned R2 Low Density Residential under the provisions of cl 2.3 of KLEP. The objectives for the R2 zone are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.
Clause 6.3 of KLEP provides as follows: (1) The objective of this clause is to protect, maintain and improve the diversity and condition of native vegetation and habitat, including - (a) protecting biological diversity of native fauna and flora, and (b) protecting the ecological processes necessary for their continued existence, and (c) encouraging the recovery of threatened species, communities, populations and their habitats, and (d) protecting, restoring and enhancing biodiversity corridors. (2) This clause applies to land identified as "Biodiversity" on the Terrestrial Biodiversity Map. (3) Before determining a development application for development on land to which this clause applies, the consent authority must consider - (a) the impact of the proposed development on the following - (i) any native vegetation community, (ii) the habitat of any threatened species, population or ecological community, (iii) any regionally significant species of plant, animal or habitat, (iv) any biodiversity corridor, (v) any wetland, (vi) the biodiversity values within any reserve, (vii) the stability of the land, and (b) any proposed measure to be undertaken to ameliorate any potential adverse environmental impact, and (c) any opportunity to restore or enhance remnant vegetation, habitat and biodiversity corridors. (4) 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 consistent with the objectives of this clause, and (b) is designed, and will be sited and managed, to avoid any potentially adverse environmental impact or, if a potentially adverse environmental impact cannot be avoided - (i) the development minimises disturbance and adverse impacts on remnant vegetation communities, habitat and threatened species and populations, and (ii) measures have been considered to maintain native vegetation and habitat in parcels of a size, condition and configuration that will facilitate biodiversity protection and native flora and fauna movement through biodiversity corridors, and (iii) the development avoids clearing steep slopes and facilitates the stability of the land, and (iv) measures have been considered to achieve no net loss of significant vegetation or habitat. (5) In this clause - biodiversity corridor means an area that facilitates the connection and maintenance of native fauna and flora habitats and, within the urban landscape, includes areas that may be broken by roads and other urban elements and may include remnant trees and associated native and exotic vegetation.
Clause 6.5, concerning stormwater and water sensitive urban design provides: (1) The objective of this clause is to avoid or minimise the adverse impacts of urban stormwater on the land on which development is to be carried out, adjoining properties, native bushland, waterways and groundwater systems. (2) Before granting development consent to development on any land to which this Plan applies, the consent authority must be satisfied that - (a) water sensitive urban design principles are incorporated into the design of the development, and (b) riparian, stormwater and flooding measures are integrated, and (c) the stormwater management system includes all reasonable management actions to avoid any adverse impacts on the land to which the development is to be carried out, adjoining properties, native bushland, waterways and groundwater systems, and (d) if a potential adverse environmental impact cannot be feasibly avoided, the development minimises and mitigates the adverse impacts of stormwater runoff on adjoining properties, native bushland, waterways and groundwater systems. (3) For the purposes of subclause (2)(a), the water sensitive urban design principles are - (a) protection and enhancement of water quality, by improving the quality of stormwater runoff from urban catchments, (b) minimisation of harmful impacts of urban development on water balance and on surface and groundwater flow regimes, (c) integration of stormwater management systems into the landscape in a manner that provides multiple benefits, including water quality protection, stormwater retention and detention, public open space, and recreational and visual amenity, (d) retention, where practical, of on-site stormwater for use as an alternative supply to mains water, groundwater or river water.

[7]

Ku-ring-gai Development Control Plan 2015

The Proposed Development is subject to the provisions of KDCP, and Part 18 of KDCP provides guidance to biodiversity matters, including: 1. the following explanation for the application of controls within Part 18: "The urban forest, formal reserves and natural resources of Ku-ring-gai are fundamental elements of its character and support biodiversity of national, state, regional and local significance. Greenweb (as shown on the Greenweb map - Part 18R.1) is Ku-ring-gai's Biodiversity mapping for the management of significant vegetation and habitat, biodiversity corridors and waterways throughout the LGA. The mapping facilitates a consistent and strategic approach to biodiversity management. This includes lands mapped as 'areas of biodiversity significance' within the KLEP 2015 (Clause 6.3 Biodiversity Protection), broken down into four categories: I Core Biodiversity Lands; ii Support for Core Biodiversity Lands; iii Landscape Remnant; iv Biodiversity Corridors and Buffer Areas. … The objectives and controls in this Part applies to development activities or works that will have an impact on areas identified as Greenweb, mapped in this DCP. Within these areas, this Part guides the development activities or works in meeting the aims and objectives of the KLEP 2015 (Clause 6.3 Biodiversity Protection)." 1. Part 18.1 concerning general controls applicable to the Council's Greenweb area, which relevantly includes the following: 1. objectives, which are: "1. To preserve the natural environment of Ku-ring-gai in the social, economic and environmental interest of the community. 2. To retain, consolidate and improve existing bushland, significant vegetation and habitat for flora and fauna. 3. To support the protection and recovery of critical habitat, regionally significant and threatened ecological communities, species and populations. 4. To capture carbon, contributing to climate control. 5. To allow for adaptation of native flora, fauna and ecological communities to climate change controls," 1. control 1, which states: "Development must be designed and sited to minimise impact on any distinctive environmental features and to conserve the areas of vegetation and/or habitat of the highest ecological value on and adjacent to the site, and to minimise fragmentation and edge effects. The development design should also integrate consideration of bushfire, ecological impacts and management and include: i) consideration of buildings, access, stormwater and utilities; ii) choosing parts of the site to develop where features are not present; iii) modifying the size, layout or construction methods to minimise on and off site disturbance and impacts; iv) locating built structures to reduce fragmentation of open space areas and vegetation (including canopy); v) locating buildings to take advantage of environmental features; vi) implementing a soil and water management plan to limit impact; vii) avoiding importing soil from outside the site; viii) selecting native plant species that are present on site, preferably seeded from species on the site; ix) selecting plant species that enhance local fauna habitat. Note: Habitat and distinctive environmental features may include: - cliffs and rock outcrops; - remnant bushland and trees; - tree hollows; and - natural watercourses." 1. Part 18.4 concerning areas mapped as 'landscape remnant' on Ku-ring-gai Council's Greenweb mapping tool, and provides: 1. objectives, which are: "1. To maintain smaller Key Vegetation Communities remnants as 'stepping stones', providing habitat, seedbank and pollination resources (facilitating gene flow) and supporting flora and fauna resilience. 2. To maintain and restore smaller remnants of Key Vegetation Communities across a range of topographies. 3. To protect trees within Key Vegetation Communities that provide food, shelter or nesting resources for native fauna, or that are of exceptional aesthetic value." 1. controls of relevance in this appeal, which include: "Control 1: Avoid locating development on land identified as - Landscape Remnant; on the Greenweb map. (Refer to maps in 18R.1 of this Part); … Control 3: Planting within land identified as Landscape Remnant on the Greenweb map is to consist of: i) not less than 50% locally native species; ii) species that reflect the relevant vegetation communities within the area; and iii) a mix of groundcover, shrubs and trees, and is to exclude monocultures." 1. Part 18.7 concerning requirements in relation to the application of the concept of no net loss in relation to biodiversity conservation, and which provides: 1. objectives, which are: "1. To ensure maintenance of vegetation (particularly) canopy within the LGA, Covering a range of habitats, species and age classes. In recognition of the social and ecosystem services provided. 2. To facilitate continuity of the ecological diversity currently alive in the locality. 3. To increase the level of security for significant vegetation and habitat. 4. To allow for reasonable development while maintaining and enhancing biodiversity and ecological integrity. 5. To provide a range of mechanisms to achieve no net loss of significant vegetation or habitat. 6. To ensure that where biodiversity values need to be offset, policy requirements are applied consistently across developments and in such a way as to enhance the ecological integrity across the LGA" 1. controls of relevance in this appeal as follows: "Control 1: Development proposals must seek to achieve no net loss of significant vegetation or habitat. Retention of vegetation and habitat in situ is the preferred method of biodiversity conservation. In the event that loss of vegetation is unavoidable, the loss must be mitigated and/or offset. Note: Both informal compensatory measures and formal offsetting include a number of ecological, administrative and financial risks. The inclusion of such measures within a proposal does not preclude Council requiring redesign of, or refusing consent to, a proposal on grounds of biodiversity loss. Control 2: Any application for works within the Greenweb, must be accompanied by a proposal to protect, enhance or create habitat on or off site, where it: i) requires the removal of native vegetation; or ii) will negatively affect actual or potential habitat of fauna or flora; or iii) is likely to cause degradation to vegetation or habitat. Control 3: No net loss of significant vegetation or habitat may be achieved by: i) retention and protection of existing significant vegetation and habitat; or ii) informal compensatory measures: - planting and habitat creation, especially where it improves connectivity; - rehabilitation of degraded areas; or - translocation of plants or soils;"

[8]

Contentions

At the commencement of the hearing the Applicant sought leave to rely on amended plans and leave was granted without objection. The amended plans included: 1. amended architectural plans DA01 and DA04 that provided: 1. alterations to the south-western wall of the basement that had been moved towards Kissing Point Road, resulting in an increase to the basement area; 2. as a consequence of the change above (at [(a)], the width of car parking spaces 12, 13, 14 and 15 had been increased to 2.6m for each space; 1. amended landscaping plans identified as "FINAL - revision 5 playspace/landscape design plan PLANTS" and "FINAL - revision 6 tree and full site plan - front landscaping" that provided: 1. for removal of certain Christmas bush plants (Ceratopetalum gummiferum) and their replacement by species more in keeping with required streetscape; 2. for removal of proposed bamboo plantings; 3. changes to privacy plantings in the proposed playspace in the north-western area of the Subject Site; 4. for the planting of larger Camelia shrubs which had been added in response to comments provided by Council's Landscape Officer, particularly in the front landscaping area. 1. an amended set of stormwater management plans and drawings, that included the following: 1. provision of two additional stormwater pits to collect runoff from the proposed play areas and to provide for nutrient control; 2. provision of a 200mm x 100mm outlet to the street kerb from the other pit in the play area; 3. provision of a 150mm Unplasticized Polyvinyl Chloride (UPVC) pipe connecting one of the pits to the pit in the driveway; 4. details of the Model for Urban Stormwater Improvement Conceptualisation (MUSIC) outputs updated demonstrating the Proposed Development's reductions in total suspended solids (TSS) in compliance with Ku-ring-gai Council's TSS targets.
The Respondent also noted that: 1. it had referred to the Applicant's development application to the NSW Department of Education pursuant to the provisions of cl 22(1) of the Child Care SEPP (see above at [(a)]); and 2. the Department of Education had confirmed in its letter in reply of 9 April 2021 that it had determined that the concurrence of the Department as Regulator was not required for the development application.
The Parties also confirmed that, based on the evidence of their experts, the Applicant's amended plans and agreed conditions of consent, the following matters that had been in contention in the appeal were resolved and not pressed by the Respondent: 1. the compatibility of the Proposed Development with the character of the area, in relation to which the Parties expert planners, Mr Jeremy Swan (for the Applicant) and Mr Stuart Wilson (for the Respondent), had agreed in their joint expert report that: 1. the Proposed Development results in a development that is appropriately located within the site and has a built form being part single, part two storey that is consistent with the character of the streetscape framed within a landscaped setting and the bulk and scale of the built form is acceptable; 2. the northern façade of the Proposed Development is adequately articulated due to its staggered building setbacks from the northern boundary which provide for an increase in setback distances as the building height increases; 3. existing and proposed landscaping will assist in visually softening the Proposed Development's built form as viewed from the public domain or adjoining properties; 4. the Proposed Development provides for a reasonable level of passive surveillance to Boronia Avenue due to the quantity, placement and dimensions of the proposed southern elevation windows; 5. the Applicant's proposed curved roof tiles should be replaced with terracotta tiles having a flat profile, and the Applicant's proposed wall cladding should be replaced by brick, and that in this amended form the building would: 1. contribute to the local area by being designed in character with the locality and existing streetscape; 2. include design and architectural treatments that were responsive to, and which would integrate with, the existing streetscape. 1. these changes could be the subject of conditions imposed with any grant of consent. 1. the adequacy of the Applicant's proposed unencumbered indoor space, in relation to which the Parties' expert planners had agreed that the Applicant's architectural plans demonstrate that a sufficient amount of unencumbered indoor space has been provided for the Proposed Development's anticipated 74 children; 2. the adequacy of the Applicant's proposed access and parking arrangements, in relation to which the Parties' expert traffic engineers, Mr Brian O'Connell (for the Applicant) and Mr Garry Kennedy (for the Respondent) had agreed in their joint expert report that: 1. the proposed layout of, and access to, the car parking area complies with the requirements of the relevant Australian standards; 2. while the proposed development provides car parking that falls short of the car parking requirements set out in Part 22 R.1 of KDCP by two car spaces, the parking provided within the proposed development is adequate given: 1. the allocation of 13 spaces for use by parents to drop off children which would provide certainty that all parent drop-off and pickup activity will occur on site; 2. the availability of on street car parking in close proximity to the proposed development which, on the basis of surveys undertaken by ROAR Data Pty Ltd, is for the most part unused; and 3. the evidence of the Respondent's expert traffic engineer that it was unlikely that any car parking would be required on street for use by staff and users of the Proposed Development. 1. the acceptability of the accessibility design and arrangements of the Proposed Development, in relation to which the Parties' accessibility experts, Ms Lindsay Perry (for the Applicant) and Mr Stuart Wilson (for the Respondent) had agreed that: 1. the attic level spaces constitute an area that is exempt from accessibility requirements under the Building Code of Australia; 2. on the basis of corrected reduced level (RL) data on the Applicant's plans the Applicant's design of its accessible ramp is acceptable. 1. the adequacy of the Applicant's proposed design of its stormwater management arrangements, in relation to which the Parties' advised that the Applicant's stormwater management plans were acceptable and satisfied the provisions of cl 6.5(2) of KLEP (see above at [21]); 2. the location of the staff room in the Applicant's Proposed Development, in relation to which the Parties' expert planners had agreed that the staffroom is appropriately located in close proximity to the areas conducting the administrative functions provides a reasonable level of internal amenity; 3. the acceptability of the Applicant's landscape design, which the Respondent had said could be resolved through the imposition of appropriate conditions of consent, and in relation to which the Applicant has prepared amended landscape plans (see above at [23(2)]); 4. other matters relating to the consistency of plans and drawings which had been resolved through the Applicant's provision of further information.
As a consequence of the advice provided by the Parties (above at [25]), the matters remaining in contention in the appeal were limited to: 1. the potential biodiversity and tree impacts of the Applicant's Proposed Development; along with 2. consideration of the public submissions received at the commencement of the site view (see above at [8]), which had included reference to the potential loss of trees from the Proposed Development.
A part of the Subject Site contains land mapped as being of importance for terrestrial biodiversity under the provisions of cl 6.3 of KLEP.
This terrestrial biodiversity land is illustrated in the picture below drawn from the terrestrial biodiversity map in KLEP. The mapped area falls across the southern most corner of the Subject Site. The Subject Site is marked with a cross ('x') on the drawing below.
At the hearing the Parties agreed that one cheese tree (Glochidion ferdinandi) and a blackbutt eucalypt (Eucalyptus pilularis), identified as tree N7, were located within the green shaded area which represents the mapped areas of terrestrial biodiversity to which the provisions of cl 6.3 of KLEP apply.
The area on the Subject Site that is shaded green within the terrestrial biodiversity map, is also identified as a blue shaded 'landscape remnant' within the Council's Greenweb mapping tool for the purposes of Part 18 of KDCP.
The Greenweb mapping of the Subject Site (marked once again with a 'x') is illustrated in the picture below, taken from Ku-ring-gai Council's Greenweb mapping tool.
Areas land mapped as landscape remnants are subject to the provisions of Part 18.4 of KDCP (see above at [22(3)]).
The Subject Site also contains an area mapped as a 'canopy remnant', but which during the on-site view did not appear to correlate to on-site features. Indeed a portion of the canopy remnant appeared to cover areas of the rear yard on the Subject Site that contained no canopy remnants and consisted of grassed spaces. No contentions were pressed by the Respondent in relation to the canopy remnant mapping identified on the Greenweb mapping tool.
Specifically, the contentions pressed by the Respondent in the hearing related to the following matters: 1. the potential impacts of the Proposed Development on the viability of two liquidambar trees, identified as trees T1 and T2, located on the front eastern corner of the lot at the intersection of Boronia Avenue and Kissing Point Road; 2. the Applicant's proposed removal of three cheese trees at the rear of the Subject Site to facilitate the construction of the proposed driveway into the child care centre from Boronia Avenue, together with a proposal for replacement of these three trees with nine cheese trees to be planted on the Subject Site; 3. the potential impacts of the Applicant's proposed construction of the access driveway from Boronia Avenue on the root system of a cedar tree (Cedrus deodara) identified as tree T7, and whether these are acceptable given the provisions of cl 6.3 of KLEP and Part 18.1 of KDCP; 4. the potential impacts of the Applicant's proposed construction of the access driveway from Boronia Avenue on the root system of the blackbutt tree N7 and whether these are acceptable given the provisions of cl 6.3 of KLEP and Part 18.1 of KDCP.
The Court was assisted in its consideration of these matters by the evidence of the Parties' expert ecologists, Dr David Robertson (for the Applicant) and Mr John Whyte (for the Respondent) and their expert arborists, Mr Mark Hartley (for the Applicant) and Ms Lisa Durland (for the Respondent).

[11]

Is the Applicant's proposed removal of three cheese trees consistent with the provisions of cl 6.3 of KLEP?

The provisions of cl 6.3 of KLEP are provided above at [20], and the clause applies to land identified as "Biodiversity" on the Terrestrial Biodiversity Map.
As illustrated above at [27], the biodiversity land on the Subject Site includes an area in its southern corner occupied by one of the three cheese trees proposed for removal by the Applicant.
The provisions of subcl 6.3(4) require that consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development achieves the provisions of subcll 6.3(4)(a) and 6.3(4)(b).
Addressing first the provisions of subcl 6.3(4)(b), the Proposed Development must either be designed, and will be sited and managed, to avoid any potentially adverse environmental impact. The Proposed Development will impact on a cheese tree within the area mapped as terrestrial biodiversity land on the Subject Site.
The subclause goes on to provide that if the development cannot be designed to avoid potential impacts then it must: 1. minimise disturbance and adverse impacts on remnant vegetation communities, habitat and threatened species and populations, which in my assessment is satisfied given that the impact of the proposed Development will be the removal of a single cheese tree within the terrestrial biodiversity map, and that tree does not, in my assessment, represent a remnant vegetation community nor habitat, and does not represent a threatened species or population; 2. consider measures to maintain native vegetation and habitat in parcels of a size, condition and configuration that will facilitate biodiversity protection and native flora and fauna movement through biodiversity corridors, and which in my assessment have been considered through the Applicant's proposed planting of nine replacement cheese trees both in the location of the three cheese trees proposed for removal, and elsewhere on the Subject Site; 3. avoid clearing steep slopes and facilitates the stability of the land, which, in my assessment is satisfied as the Subject Site does not contain steep slopes, and in its final configuration will facilitate stability of the Subject Site, albeit that the stability of the land was not a matter raised in contentions within the appeal; 4. consider measures to achieve no net loss of significant vegetation or habitat, and in relation to which the Applicant's proposal to provide nine replacement cheese trees to compensate for the loss of the three cheese trees proposed for removal demonstrates that the required consideration has been given.
On the basis of my findings above (at [46]), I am satisfied that the provisions of cl 6.3(4)(b) have been satisfied.
Clause 6.3(4)(a) provides that development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development is consistent with the objectives of this clause.
The objective of cl 6.3 of KLEP was identified above (at [20]) and is to protect, maintain and improve the diversity and condition of native vegetation and habitat, including: 1. protecting biological diversity of native fauna and flora, and which I am satisfied is achieved by the Proposed Development through its proposed replacement of the cheese trees removed by nine cheese trees along with the evidence of the expert ecologist at the hearing in which they confirmed that the replacement trees would also provide ecological stepping stones that would, inter alia; 1. provide habitat and facilitate genetic flows; and 2. support fauna, including ringtail possums, and insects such as butterflies (referred to in the hearing as lepidoptera), which in my assessment would facilitate resilience in the local populations of these species. 1. protecting the ecological processes necessary for their continued existence, which in my assessment would be achieved through the continuing presence of cheese trees on the Subject Site in numbers greater than exist at present; 2. encouraging the recovery of threatened species, communities, populations and their habitats, which in my assessment is not relevant to the present appeal as there is no suggestion from either the Respondent or local objectors that the Proposed Development would have any potential impact on any threatened species, communities, populations or their habitats; 3. protecting, restoring and enhancing biodiversity corridors, which I am satisfied would be achieved through the Applicant's proposed planting of nine replacement cheese trees on the Subject Site.
Based on the above considerations I am satisfied that the Applicant's proposed removal of three cheese trees, and their replacement with nine cheese trees on the Subject Site; 1. is consistent with the objective of cl 6.3 of KLEP; 2. satisfies the provisions of cl 6.3(4)(a) of KLEP; and 3. satisfies the provisions of cl 6.3(4)(b) of KLEP as the apply to the Subject Site.

[12]

Is the Applicant's proposed removal of three cheese trees consistent with the provisions of Part 18.7 of KDCP?

The provisions of Part 18.7 of KDCP are provided above at [22(4)], in relation to which the Applicant submits that: 1. given the constraints of its driveway design which is required to facilitate entry to the underground parking area, the proposed impacts on the three cheese trees cannot be avoided. I accept this submission based on the requirements for parking access to the Proposed Development and the benefit that would be afforded by the provision of off-street parking for staff and for pick up and drop off of children; 2. because the impacts cannot be avoided, managed or mitigated, it proposes to provide replacement plantings and nine cheese trees would be planted to offset the three trees proposed for removal, including the cheese tree located in the Greenweb area. The offset plantings would be positioned along the rear boundary of the Subject Site with 2 Boronia Avenue, and on its eastern boundary with 100 Kissing Point Road.
The Parties' expert ecologists agreed at the hearing that the proposed offset plantings would be viable and are likely to be maintained in a hedged form that would provide ecological stepping stones in the environment.
The provisions of Part 18.7 of KDCP include controls requiring that: 1. development proposals must seek to achieve no net loss of significant vegetation or habitat, noting that retention of vegetation and habitat in situ is the preferred method of biodiversity conservation. It also requires that, in the event that loss of vegetation is unavoidable, the loss must be mitigated and/or offset. I am satisfied that the Proposed Development complies with this control through the proposed planting of nine replacement cheese trees to offset the unavoidable loss of three native cheese trees arising from the requirements to access the parking on the Subject Site; 2. any application for works within the Greenweb, must be accompanied by a proposal to protect, enhance or create habitat on or off site, where, inter alia, it requires the removal of native vegetation. As previously confirmed, in my assessment the Applicant's proposed replacement cheese tree plantings will create habitat at least equivalent to that proposed to be removed within the Greenweb area on the Subject Site in compliance with this control; 3. no net loss of significant vegetation or habitat may be achieved, inter alia, by informal compensatory measures such as planting and habitat creation, which in my assessment, is achieved by the Proposed Development through its proposed compensatory cheese tree plantings.
Based on my consideration above (at [53]), I am satisfied that the Applicant's proposed removal of three cheese trees and their replacement with nine newly planted cheese trees, is consistent with the provisions of Part 18.7 of KDCP in relation to no net loss.

[13]

Is the Applicant's proposed removal of three cheese trees consistent with the provisions of Part 18.4 of KDCP?

The provisions of Part 18.4 of KDCP were identified above (at [22(3)]), and include the following objectives: 1. to maintain smaller Key Vegetation Communities (KVCs) remnants as 'stepping stones', providing habitat, seedbank and pollination resources (facilitating gene flow) and supporting flora and fauna resilience; 2. to maintain and restore smaller remnants of KVCs across a range of topographies; 3. to protect trees within KVCs that provide food, shelter or nesting resources for native fauna, or that are of exceptional aesthetic value.
As is immediately evident from a review of the three objectives of Part 18.4 of KDCP, the purpose of Part 18.4, and the focus of each of its objectives, relates to securing particular outcomes in relation to vegetation communities identified as KVCs.
The KVCs referred to in Part 18.4 of KDCP, as well as in other parts of Part 18 in KDCP, were identified and mapped within the Ku-ring-gai Biodiversity and Riparian Lands Study 2013, which is referred to specifically in Part 18.8 of KDCP.
The vegetation associated with the landscape remnant mapping on the Subject Site includes one of the three cheese trees (G. ferdinandi) proposed for removal. The cheese tree is a common and widespread species, and does not constitute a KVC.
Within the boundaries of the Subject Site there is no vegetation community that would be identifiable as a KVC from the Ku-ring-gai Biodiversity and Riparian Lands Study 2013.
As a consequence, because the Proposed Development does not seek consent to remove any KVC elements on the Subject Site, nor to remove any trees associated with a KVC, the Proposed Development achieves the objectives of Part 18.4 to the fullest extent that it can.
I have also considered the compliance of the Proposed Development's proposed removal of three cheese trees, including the removal of the one cheese tree mapped as being located within the area mapped as landscape remnant, with the controls within Part 18.4 of KDCP and conclude as follows: 1. in relation to the control requiring that any development on the Subject Site avoid locating development on land identified as landscape remnant, as identified above at [51], the Proposed Development cannot and does not avoid development on land identified as landscape remnant insofar as it relates to the cheese tree mapped as being located within a landscape remnant in Council's Greenweb mapping; 2. in relation to the control requiring that vegetation retention and rehabilitation on sites that include land identified as landscape remnant be designed to improve connectivity with existing vegetation and habitat, I am satisfied that, based on the evidence of the Parties' expert ecologists concerning the utility of the plantings as ecological stepping stones, the Applicant's replacement plantings of cheese trees are designed to provide connectivity and habitat that will be used by local fauna; 3. in relation to the control requiring that planting within land identified as landscape remnant on the Greenweb map should consist of: 1. not less than 50% locally native species, the Proposed Development complies as the plantings proposed within the Greenweb area on the Subject Site will be 100% native species; 2. species that reflect the relevant vegetation communities within the area, the Proposed Development complies given that the Applicant's replacement plantings are the same species as those proposed for removal; and 3. a mix of groundcover, shrubs and trees, and is to exclude monocultures, the Proposed Development does not comply with the control given that the proposed plantings in the landscape remnant are of the Subject Site are all cheese trees planted to replace those trees that will be removed by the Proposed Development.
Notwithstanding the non-compliance of the Proposed Development with controls 1 and 3(iii) of Part 18.4 of KDCP, s 4.15(3A)(b) of the EP&A Act provides that if the provisions of a DCP set standards with respect to an aspect of the development, and the development application does not comply with those standards, the consent authority, or the Court on appeal, is to be flexible in applying those provisions and is to allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development.
As noted above, and for the reasons identified (at [60]), I am satisfied that the Applicant's proposed removal of three cheese trees, and their replacement by nine cheese trees, achieves the objectives of Part 18.4 to the fullest extent possible.
Consequently, I conclude that proposals with respect to the removal and replacement of cheese trees on the Subject Site is a reasonable alternative solution that: 1. achieves the objects of the controls in Part 18.4 of KDCP; 2. merits the application of flexibility in applying those controls pursuant to the provisions of s 4.15(3A) of the EP&A Act; and 3. should be allowed.

[15]

Are the potential impacts of the Applicant's proposed construction of the access driveway from Boronia Avenue on the root system of a cedar tree (Cedrus deodara) identified as tree T7, acceptable?

The Applicant proposes the retention of the cedar tree T7, notwithstanding the potential impacts on its root system that would result from construction of the access driveway from Boronia Avenue.
The cedar tree, of species Cedrus deodara, is a Himalayan Pine, is not native and while on one reading it is subject to the provisions of Part 18 of KDCP, it is also: 1. located outside the terrestrial biodiversity mapping applicable to the Subject Site, and so the provisions cl 6.3 of KLEP are not engaged by tree T7; 2. located outside Council's Greenweb mapping applicable to the Subject Site, and so the provisions of Part 18 of KDCP are not engaged.
Notwithstanding this, tree T7 constitutes a "tree" for the purposes of Part 13 of KDCP concerning tree and vegetation protection because it is a perennial plant with at least one self-supporting woody, fibrous stem of 5m or more in height.
Control 2 in Part 13.1 requires that the injury of any tree, including through the severing of a root with a diameter of more than 5cm, is prohibited without the written consent of Council, unless the tree is exempt in accordance with the exemptions prescribed in Part 13.2. Tree T7 is not an exempt tree. The Proposed Development includes works that would require the severing of four roots of tree T7 of greater than 5cm in diameter.
The Australian Standard for the protection of trees on development sites is AS4970-2009 (AS4970) which provides guidance in relation to deciding which trees are appropriate for retention and the means of protecting those trees during construction works.
The standard identifies in its clause 3.1 that the tree protection zone (TPZ) is the principal means of protecting trees on development sites, and that the TPZ is an area isolated from construction disturbance so that the tree remains viable.
However, clause 3.3.1 of AS4970 notes that it may be possible to encroach, via excavation, compacted fill or machine trenching, into or make variations to the standard TPZ. The standard distinguishes between minor and major encroachments into a TPZ, and notes that if the proposed encroachment is greater than 10% or if the excavation proposed intrudes into the structural root zone (SRZ) of a tree it is considered to be a major encroachment.
In these circumstances the encroachment requires that the project arborist demonstrate that the tree would remain viable and it requires that the area lost to encroachment should be compensated elsewhere, and in a manner that is contiguous with the TPZ impacts.
The standard also notes that demonstrating the on-going viability of the tree impacted by proposed excavation may require root investigation by non-destructive methods and consideration of factors provided in clause 3.3.4 of AS4970, including the following two considerations that are particularly relevant in this appeal: 1. the location and distribution of roots determined through root mapping; and 2. the potential loss of root mass resulting from the encroachment: the number and size of roots.
The Parties' expert arborists agreed that tree T7 is healthy, is up to 60 years in age, and has good prospects for long term viability in its current circumstances. It was identified by the Applicant's arborist as a tree with high retention value, and the Applicant does propose its retention.
The Applicant's expert arborist, Mr Hartley, had calculated that construction of the driveway access to the on-site parking area within the Proposed Development would: 1. intrude by some 35.4% into the TPZ associated with tree T7, based on a TPZ radius of 11.2m; 2. intrude in to the SRZ of the tree T7, which had a radius of 3.3m; 3. require the severing of eleven roots of T7 with diameters between 3cm and 10cm, including four roots of diameter greater than 5cm.
The Parties' expert arborists stated in their joint report that they agreed that the radius of the TPZ of tree T7 was 10.9m.
At the hearing, the Parties' expert arborists agreed in oral evidence that the potential impact of the Proposed Development on tree T7, including the proposed intrusion into its SRZ, would not affect the tree's stability.
As a consequence, I am satisfied that the proposed intrusion of the Proposed Development into the SRZ of the tree is acceptable since, the purpose of the SRZ relates only to the structural stability of the tree.
Notwithstanding their agreement in relation to the potential impact of the Proposed Development on the structural stability of tree T7, the expert arborists did not agree on the likely impacts of the Proposed Development on its viability as required under the provisions of clause 3.3.3 of AS4970.
The Respondent's expert arborist, Ms Durland, said that, in her opinion, the Applicant's expert arborist had not demonstrated that: 1. tree T7 would remain viable following construction of the Proposed Development; and 2. an adequate area was available as compensation for the proposed major encroachment into the tree's TPZ as required under clause 3.3.3 of AS4970.
Ms Durland also said that, while acknowledging that much of the adjacent to the Subject Site and the TPZ of tree T7 is not currently developed or disturbed, and that this land is contiguous with the TPZ of tree T7: 1. there is no guarantee that the adjoining land would remain unencumbered such that it might compensate for the lost area of tree T7's TPZ; and 2. the contiguous area of land identified to compensate for the encroachment into the TPZ of tree T7, should be provided on the Subject Site so that a condition of consent could be imposed to ensure the retention of this compensatory land for the purpose of protecting the TPZ of tree T7.
Applicant's expert, Mr Hartley, said that, in his opinion: 1. while the provisions of AS4970 were suggestive of potential measures that may be applied to address a major encroachment into the TPZ of a tree, the use of the word 'should' rather than 'must' indicated that the compensatory measures identified were not prescriptive nor obligatory; 2. the location of tree T7 adjacent to other lots with unencumbered space provided adequate opportunity for the tree to compensate for the potential impact on its root system within its TPZ; 3. based on his experience in transplanting trees, where tree root loss might be up to 80% of its root mass without impacting on tree viability or success of transplantation, it was likely, in his assessment, that the impact of the Proposed Development on the root system of tree T7 would be minor, and would not impact on the viability of the tree; 4. he had estimated, using what he described as an allometric method (that is, a method based on the relationship between the size of the tree and its root mass) drawn from scientific literature but adapted to the circumstances of the Proposed Development, that the root mass of tree T7 that would be removed as a consequence of the Proposed Development represented some 3.7% of the tree's total root biomass; 5. based on his evidence above (at [(2)] to [(4)]), he concluded that the Proposed Development was compatible with the long term viability of tree T7.
Having considered the evidence of the experts in their joint expert report, as well as in other aboricultural reports tendered at the hearing from both Mr Hartley and Ms Durland, I have concluded: 1. I agree with the expert arborists advice in their joint report, and as confirmed on oral testimony, that securing certainty concerning the potential impacts of the Proposed Development on the long term viability of tree T7, or on other trees, is almost impossible; 2. given the fact that certainty of outcomes in this situation cannot be attained, on the balance of probabilities, I am satisfied that the Applicant, supported by its expert arborist, Mr Hartley, has demonstrated that: 1. the area of the TPZ of tree T7 that would be encroached by the Proposed Development can be adequately compensated for through the availability of areas contiguous with the TPZ that remain unencumbered; and 2. tree T7 would remain viable following works to construct the Proposed Development, given the normal protection measures that would be afforded it during construction through the imposition of conditions with any grant of consent to the Proposed Development. 1. while I don't rely on it for my conclusions above (at [(2)]), the outcomes of Mr Hartley's allometric analysis based the published work of Tritton and Hornbeck (1992), and adapted by him to the circumstances of the Proposed Development, provides a further basis supporting the balance of probabilities conclusion I have made above at [(2)].
I further conclude that the potential impacts of the Applicant's proposed construction of the access driveway from Boronia Avenue on the root system of the Himalayan cedar tree (Cedrus deodara) identified as tree T7 are acceptable.

[17]

Are the potential impacts of the Proposed Development on tree N7 consistent with the provisions of cl 6.3 of KLEP?

The provisions of cl 6.3 of KLEP are provided above at [20], and the clause applies to land identified as "Biodiversity" on the Terrestrial Biodiversity Map.
As illustrated above at [27], the biodiversity land includes the location of tree N7 adjacent to the Subject Site and potentially impacted by the Proposed Development.
The provisions of subcl 6.3(4) require that consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development achieves the provisions of subcll 6.3(4)(a) and 6.3(4)(b).
Addressing first the provisions of subcl 6.3(4)(b), the Proposed Development must either be designed, and will be sited and managed, to avoid any potentially adverse environmental impact. The Proposed Development will impact on tree N7 within the area mapped as terrestrial biodiversity land on the Subject Site.
The subclause goes on to provide that if the development cannot be designed to avoid potential impacts then it must: 1. minimise disturbance and adverse impacts on remnant vegetation communities, habitat and threatened species and populations, and in my assessment: 1. tree N7, which is a single street tree, does not constitute a remnant vegetation community. In arriving at this conclusion I am mindful that, in combination with other species, blackbutts like tree N7 can occur within a blue gum high forest community. However, I do not assess this to be the case in relation to tree N7 and I have no evidence that would support its recognition as forming part of a blue gum high forest community in its current circumstance; 2. any impact on the habitat provided by tree N7 has been minimised through its proposed retention under the Proposed Development; 3. tree N7 does not represent a threatened species and or population. 1. consider measures to maintain native vegetation and habitat in parcels of a size, condition and configuration that will facilitate biodiversity protection and native flora and fauna movement through biodiversity corridors, and which in my assessment such measures have been considered through the Applicant's proposed retention of tree N7; 2. avoid clearing steep slopes and facilitates the stability of the land, which, in my assessment is the case in relation to the Proposed Development as the Subject Site does not contain steep slopes, and in its final configuration will facilitate stability of the Subject Site, albeit that the stability of the land was not a matter raised in contentions within the appeal; 3. consider measures to achieve no net loss of significant vegetation or habitat, which I am satisfied has been done by the Applicant in this case as demonstrated by the proposed provision of three additional street trees (one blackbutt and two Angophora costata trees) which would mitigate the loss of tree N7 should the proposed works impact on its viability.
On the basis of my findings above (at [46]), I am satisfied that the provisions of cl 6.3(4)(b) of KLEP have been satisfied.
Clause 6.3(4)(a) provides that development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development is consistent with the objectives of this clause.
The objective of cl 6.3 of KLEP was identified above (at [20]) and is to protect, maintain and improve the diversity and condition of native vegetation and habitat, including: 1. protecting biological diversity of native fauna and flora, and which I am satisfied is achieved by the Proposed Development through its proposed retention of tree N7 and the provision of an additional three street trees, which would; 1. provide habitat and facilitate genetic flows; and 2. support fauna, including ringtail possums, and insects such as butterflies (referred to in the hearing as lepidoptera), which in my assessment would facilitate resilience in the local populations of these species. 1. protecting the ecological processes necessary for their continued existence, which in my assessment would be achieved through the continuing retention of tree N7 and through the Applicant's provision of three additional street trees; 2. encouraging the recovery of threatened species, communities, populations and their habitats, which in my assessment is not relevant to the present appeal as there is no suggestion from either the Respondent or local objectors that the Proposed Development would have any potential impact on any threatened species, communities, populations or their habitats; 3. protecting, restoring and enhancing biodiversity corridors, which I am satisfied would be achieved through the Applicant's proposed retention of tree N7 along with its provision of three additional street trees.
Based on the above considerations I am satisfied that the potential impacts of the Proposed Development on tree N7 are consistent with the provisions of cl 6.3 of KLEP as they apply to the Subject Site.

[18]

Are the potential impacts of the Proposed Development on tree N7 consistent with the provisions of Part 18.4 of KDCP?

The provisions of Part 18.4 of KDCP were identified above (at [22(3)]), and includes the following objectives: 1. to maintain smaller KVCs remnants as 'stepping stones', providing habitat, seedbank and pollination resources (facilitating gene flow) and supporting flora and fauna resilience; 2. to maintain and restore smaller remnants of KVCs across a range of topographies; 3. to protect trees within KVCs that provide food, shelter or nesting resources for native fauna, or that are of exceptional aesthetic value.
As was identified previously in this judgment, it is evident from a review of the three objectives of Part 18.4 of KDCP, the purpose of Part 18.4, and the focus of each of its objectives, relates to securing particular outcomes in relation to vegetation communities identified as KVCs.
The KVCs referred to in Part 18.4 of KDCP, as well as in other parts of KDCP's Part 18, were identified and mapped within the Ku-ring-gai Biodiversity and Riparian Lands Study 2013, referred to in Part 18.8 of KDCP.
The vegetation associated with the landscape remnant mapping includes one of the single blackbutt proposed for retention, which does not constitute a vegetation community as would be required for its identification as a KVC from the Ku-ring-gai Biodiversity and Riparian Lands Study 2013.
As a consequence, because the Proposed Development does not seek consent to remove any KVC on the Subject Site, nor to remove any trees associated with a KVC, the Proposed Development achieves the objectives of Part 18.4 to the fullest extent that it can.
I have also considered the compliance of the Proposed Development's retention of the blackbutt tree mapped as being located within the area mapped as landscape remnant, with the controls Part 18.4 of KDCP and conclude as follows: 1. in relation to the control requiring that any development on the Subject Site avoid locating development on land identified as landscape remnant, as identified above at [51], and while the Proposed Development does not require the removal of tree N7, the Proposed Development includes works within the mapped landscape remnant which cannot be avoided and is required to achieve access to the parking on the Subject Site; 2. in relation to the control requiring that vegetation retention and rehabilitation on sites that include land identified as landscape remnant be designed to improve connectivity with existing vegetation and habitat, I am satisfied that the Applicant's provision of additional street tree plantings will provide improved connectivity and habitat that will be used by local fauna; 3. in relation to the control requiring that plantings within land identified as landscape remnant on the Greenweb map should consist of: 1. not less than 50% locally native species, the Proposed Development does not seek to alter the species composition present in that area associated with tree N7, which it proposes to retain; 2. species that reflect the relevant vegetation communities within the area, the Proposed Development does not seek to alter the species composition present in that area associated with tree N7, which it proposes to retain; and 3. a mix of groundcover, shrubs and trees, and is to exclude monocultures, the Proposed Development does not seek to alter the species composition present in that area associated with tree N7 (noting that the proposals concerning the cheese trees on the Subject Site were discussed separately (see above at [41] and following).
Notwithstanding the non-compliance of the proposed Development with control 1 of Part 18.4 of KDCP (see above at [102(1)]), s 4.15(3A)(b) of the EP&A Act provides that if the provisions of a development control plan set standards with respect to an aspect of the development, and the development application does not comply with those standards, the consent authority, or the Court on appeal, is to be flexible in applying those provisions and is to allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development.
As noted above, and for the reasons identified (at [60]), I am satisfied that the Applicant's proposed retention of tree N7 along with the proposed additional street tree planting, achieves the objectives of Part 18.4 to the fullest extent possible.
Consequently, I conclude that proposals with respect to the retention of tree N7 is a reasonable alternative solution that: 1. achieves the objects of the controls in Part 18.4 of KDCP; 2. merits the application of flexibility in applying those controls; and 3. should be allowed.
I further conclude that the Proposed Development therefore satisfies the provisions of Part 18.4 of KDCP.

[19]

Are the potential impacts of the Proposed Development on tree N7 consistent with the provisions of Part 13.1 of KDCP

Tree N7 constitutes a "tree" for the purposes of Part 13 of KDCP concerning tree and vegetation protection because it is a perennial plant with at least one self-supporting woody, fibrous stem of 5m or more in height.
Control 2 in Part 13.1 requires that the injury of any tree, including through the severing of a root with a diameter of more than 5cm, is prohibited without the written consent of Council, unless the tree is exempt in accordance with the exemptions prescribed in Part 13.2. Tree N7 is not an exempt tree, nor is it proposed for removal.
The Parties aboricultural experts confirmed during the proceedings that the Proposed Development includes works that would require the severing of three roots of tree N7 of greater than 5cm in diameter.
As previously noted, the Australian Standard for the protection of trees on development sites (AS4970) provides guidance in relation to deciding which trees are appropriate for retention and the means of protecting those trees during construction works.
The standard identifies in its clause 3.1 that the TPZ is the principal means of protecting trees on development sites, and that the TPZ is an area isolated from construction disturbance so that the tree remains viable.
Clause 3.3.1 of AS4970 notes that it may be possible to encroach, via excavation, compacted fill or machine trenching, into or make variations to the standard TPZ. The standard distinguishes between minor and major encroachments into a TPZ, and notes that if the proposed encroachment is greater than 10% or if the excavation proposed intrudes into the SRZ of a tree it is considered to be a major encroachment.
In these circumstances the encroachment requires that the project arborist demonstrate that the tree would remain viable and it requires that the area lost to encroachment should be compensated elsewhere, and in a manner that is contiguous with the TPZ impacts.
The standard also notes that demonstrating the on-going viability of the tree impacts by proposed excavation may require root investigation by non-destructive methods and consideration of factors provided in clause 3.3.4 of the standard, including the following two considerations that are particularly relevant in this appeal: 1. the location and distribution of roots determined through root mapping; and 2. the potential loss of root mass resulting from the encroachment: the number and size of roots.
The Parties' expert arborists agreed that tree N7 is healthy, is up to 60 years in age, and has good prospects for long term viability in its current circumstances. It was identified by the Applicant's arborist as a tree with high retention value, and it is proposed for retention.
The Applicant's expert arborist, Mr Hartley, had calculated that construction of the driveway access to the on-site parking area within the Proposed Development would: 1. intrude by some 34.5% into the TPZ associated with tree N7; 2. intrude in to the SRZ of the tree N7; 3. require the severing of three roots of N7 with diameters greater than 5cm (7cm, 8cm and 12cm).
The Parties' expert arborists stated in their joint report that they agreed radius of the TPZ of tree N7 was 7.9m and its SRZ had a radius of 2.9m.
Arborists agreed in their oral evidence at the hearing that that the potential impact of the Proposed Development on tree N7 would not affect the tree's stability.
As a consequence, I am satisfied that the proposed intrusion of the Proposed Development into the SRZ of the tree is acceptable since the purpose of the SRZ relates only to the structural stability of the tree.
Notwithstanding their agreement in relation to the potential impact of the Proposed Development on the structural stability of tree N7, the expert arborists did not agree on the likely impacts of the development on its viability as required under the provisions of clause 3.3.3 of AS4970.
The Respondent's expert arborist, Ms Durland, said that in her opinion the Applicant's expert arborist had not demonstrated to her satisfaction, that: 1. tree N7 would remain viable following construction of the Proposed Development; and 2. the Proposed Development had not compensated for the major encroachment by the development into the tree's TPZ as required for a major encroachment under clause 3.3.3 of AS4970.
Applicant's expert, Mr Hartley, said that, in his opinion: 1. while the provisions of AS4970 were suggestive of potential measures that may be applied to address a major encroachment into the TPZ of a tree, the use of the word 'should' rather than 'must' indicated that achievement of the compensatory measures identified, while desirable, was not prescriptive nor obligatory; 2. the location of tree N7 provided adequate opportunity for the tree to compensate for the potential impact of the Proposed Development on its root system in the TPZ; 3. based on his experience in transplanting trees, where tree root loss might be up to 80% of its root mass without impacting on tree viability or success of transplantation, it was likely that the impact of the Proposed Development on the root system of tree N7 would be minor, and would not impact on the viability of the tree; 4. he had estimated, using what he described as an allometric method (that is, a method based on the relationship between the size of the tree and its root mass) drawn from scientific literature but adapted to the circumstances of the Proposed Development, that the root mass of tree T7 that would be removed as a consequence of the Proposed Development represented some 9.7% of the tree's total root biomass; 5. based on his evidence above (at [83(2)] to [83(4)]), he concluded that the Proposed Development was compatible with the long term viability of tree N7.
Having considered the evidence of the experts in their joint expert report, as well as in other aboricultural reports tendered at the hearing from both Mr Hartley and Ms Durland, I have concluded that: 1. I agree with the expert arborists advice that securing certainty concerning of outcome in relation to the potential impacts of the Proposed Development on the long term viability of tree N7, or other trees impacted by a development, is almost impossible; 2. on the balance of probabilities, I am satisfied that the Applicant, supported by its expert arborist, Mr Hartley has demonstrated that: 1. the area of the TPZ of tree N7 encroached on by the Proposed Development can be compensated for elsewhere given the areas contiguous with the TPZ that remain unencumbered; and 2. tree N7 would remain viable following works to construct the Proposed Development, given the normal protection measures that would be imposed through the grant of consent to the Proposed Development. 1. while I don't rely on it for my conclusions above at [84(2)], the outcomes of Mr Hartley's allometric analysis based the published work of Tritton and Hornbeck (1992), and adapted by him to the circumstances of the Proposed Development, provides a further basis supporting the balance of probabilities conclusion I have made above at [(2)]).
I further conclude that the potential impacts of the Applicant's proposed construction of the access driveway from Boronia Avenue on the root system of the blackbutt identified as tree N7 are acceptable.

[21]

Consideration of objector submissions

The list of objectors who made oral submissions at the commencement of the on-site view was provided above (at [8]), and the matters of concern raised in the submissions were also summarised above (at [9]).
In addition to these submissions, the Council's bundle included written submissions made by residents in response to the notification of the Applicant's development application. Issues raised in these submissions were consistent with those raised during the on-site view.
A number of the concerns identified in objector submissions had also been identified by Council in its amended statement of facts and contentions tendered as evidence at the hearing. These included: 1. the compatibility of the Proposed Development with the character of the area, including matters concerning the bulk, scale and presentation of the proposed childcare centre building; 2. the compliance of the proposed access and parking arrangements with the applicable Australian Standard and controls in KDCP; 3. potential impacts on trees on the Subject Site and adjacent to it.
The contentions concerning the compatibility of the Proposed Development with the character of the local area, and matters concerning traffic and parking, including safety issues arising from traffic associated with the Proposed Development, were addressed and resolved in the hearing through the evidence of the Parties' expert planners and traffic engineers, and by the proposed imposition of conditions of consent (see above at [25]).
The matters concerning tree loss impacts have been considered by me in this judgment.
A number of matters raised by objectors were not identified as contentions by the Respondent in the appeal because the Respondent had assessed that, on the basis of expert reports provided by the Applicant, those matters were satisfactorily addressed within the design of the Proposed Development. These matters included issues relating to acoustics impacts and the design of acoustic fencing to mitigate potential amenity impacts of adjoining residents, and management of waste associated with operation of the proposed childcare centre.
Certain other matters had been addressed through the provision of specialist reports by the Applicant within its development application, as amended, and so have not needed to be the subject of directions for preparation of further expert evidence. These included matters concerning potential impacts in relation to noise, stormwater, and waste management.
Some matters of concern to residents, and not explicitly addressed during the hearing, have also been addressed through the proposed conditions of consent and I consider that they are satisfactorily resolved. These include: 1. the design of the Applicant's waste and recycling facilities including its external waste storage area which, notwithstanding their representation in any plans, must be constructed so as to be consistent with proposed condition 90. This condition requires that the external waste storage area facilities should, be adequate for the purposes of likely waste generation volumes, enclosed, and have rendered walls; 2. matters relating to the operation of the Proposed Development, including its hours of operation, the collection of waste from the childcare centre, and communication of complaints to management of the centre, which would be resolved to my satisfaction through the proposed imposition of condition of consent 74, which requires that the Applicant's plan of management should confirm: 1. the childcare centre's hours of operation as 7:30am to 6pm; 2. contact details and processes for dealing with complaints concerning the operation of the centre; 3. a review mechanism for the plan including provision for consultation with neighbours; 4. the location for placement of waste bins on the footpath and the times for their collection; 5. that all deliveries are to be made during hours of operation of the centre.
Two further matters were identified by objectors at the on-site view relating the potential for the increase in traffic associated with the childcare centre to elevate health risks for locals and the potential for the centre to attract individuals, presumably clients or staff, who might pose a risk to the security of the area. These were matters that were not identified by the Respondent as warranting consideration as contentions in the proceedings. I am satisfied that such concerns, while no doubt genuinely held, are not matters that are supported by any evidence, either formal or anecdotal, and are unlikely to result in material consequences as a consequence of the grant of consent to the Proposed Development.
In this regard, I embrace the views expressed by Justice Robson in Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143, a judgment also concerning the Respondent in this appeal, and in which; 1. at [75]-[78], his Honour notes: "75 I have referred above to my consideration of the extensive objections received to the proposal which were generally reflected in the issues initially raised by Council in its earlier Statement of Facts and Contentions and, to some extent, thereafter raised in the Association's contentions. Before considering the discrete issues raised, a number of preliminary matters should be stated. 76 First, where land by its zoning 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 whether development is appropriate. As has been frequently stated by this Court, whilst the fact that a particular use may be permissible is generally a neutral factor, a planning decision must generally reflect an assumption that development which is consistent with the zoning will be permitted. This is because the Act provides a complex regime, including extensive public participation, to determine the nature and intensity of development which may be appropriate at any site, and accordingly weight should be given to the outcome of this process (see BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 at [117]-[118] per McClellan CJ of LEC). 77 Second, the above does not mean that the Court must not give close consideration to all matters otherwise required pursuant to s 79C of the Act. Whilst I take account of the fact that many of the issues initially identified by Council are no longer pressed, each of the issues that are now before the Court require consideration based upon the evidence now available. 78 Third, the extensive and well-considered objections to the proposal are clearly indicative of extensive local community concerns. While these concerns are understandable, they must be closely considered in the context of the amended application and the evidence now before the Court, particularly the expert evidence." 1. at [106]-[108], his Honour addresses the matter of objector evidence as follows: "106 Finally in relation to the extensive objector evidence, it is clear that the proposal will result in a noticeable change to the site and the manner in which it is used. The Court is required to consider the local residents' evidence and give it appropriate weight, as it forms part of the public interest consideration of the proposal. As noted, I have read and considered all written objections lodged with Council in respect of the proposal and have received oral evidence. 107 In considering community responses to an application such as that before the Court, an evaluation must be made on the reasonableness of the claimed perceptions of the adverse effect on residents' amenity. The concept of amenity is wide and the statutory scheme under the Act gives effect to the broadest conceivable scope of "likely impacts" of a proposed development. An evaluation of reasonableness includes identifying objective evidence that can support a factual finding of an adverse effect on the amenity of the objectors many of whom are local residents. Of course, a fear or concern without rational justified foundation, is not a matter which by itself can be considered as an amenity (or indeed social) impact (Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133 at [192]-[195])." 1. at [108], his Honour makes his concluding remarks which accord with my own assessment of the outcomes in this appeal, as follows: "108 In addition to the carefully presented objections made by those residents who gave evidence, there were extensive and detailed objections made by many others. I have no doubt that those who objected to the proposal have expressed their concerns sincerely. However, although there will be discernible effects that will result from the proposal, the evidence of the various experts leads me to the view that the amenity impacts the subject of the residents' complaints are not sufficient on their own or in a cumulative sense to warrant refusal of the development application. I am satisfied on the evidence before me that the relevant planning concerns raised by the objectors has been, and is able to be, addressed by the plans presently before the Court and the proposed conditions of consent."

[29]

Conditions of consent

The Parties have provided draft conditions of consent that are largely agreed. These were tendered by the Applicant during the proceedings, and included, within proposed condition 21, requirements, accepted by the Applicant, that its landscape plan be amended as follows: 1. the water gum (Tristaniopsis laurina) proposed along the southern boundary is to be replaced with a Blueberry Ash (Elaeocarpus reticulatus); 2. the landscape plan shall accommodate 9 x cheese trees (Glochidion ferdinandii) in place of 9 x of the proposed lillypillys; 3. the proposed planting within lands mapped as 'Landscape Remnant' on the Greenweb map are to include not less than 50% locally native species or species that reflect the relevant vegetation communities within the area and a mix of groundcover, shrubs and trees (excluding monocultures) in accordance with Part 18.4 of the KDCP; 4. density of groundcovers species are to be increased to 4 plants per 1m².
Proposed condition 21 also requires that the Proposed Development shall maintain a replacement planting ratio of 3:1 for native trees proposed to be removed on the Subject Site.
In closing the Respondent noted that the Applicant had proposed the deletion of proposed condition 60 concerning requirements for hand excavation within specified radii of certain trees on the Subject Site. The Respondent said that it pressed the imposition of proposed condition 60, specifically in relation to the liquid amber trees T1 and T2 at the front of the Subject Site, and tree N7, being the blackbutt tree located within Council's verge adjacent to the Subject Site. I agree with the Respondent's submission on this condition, and agree that condition 60 should be retained in relation to trees T1 and T2 , and tree N7.
The Respondent also said that while it welcomed the Applicant's proposed inclusion of a condition 75 concerning street trees, it did not view the imposition of this condition as sufficient to offset the potential impact of the Proposed Development on tree N7. I agree that the inclusion of proposed condition 75 should not be read as an offset for the potential impact of the Proposed Development on tree N7 given that tree N7 is proposed for retention and all efforts should be made to support its long term viability. However, I am satisfied that proposed condition 75 will result in a positive contribution to both the biodiversity outcomes of the Proposed Development and well as to the general amenity of the local area, and that it should be imposed in the form proposed by the Applicant.

SLushY Pty Limited v Ku-ring-gai Council

At a glance

Court

Decision date

Source

Judgment (32 paragraphs)

Parties

Cases Cited (5)

Cited By (1)