The Applicant's position on the loss of Cumberland Plain Woodland
UPG submits that although there will be removal of trees that are species of Cumberland Plain Woodland, this does not warrant refusal of the proposed development. UPG submits that the general objectives and specific controls in the PDCP 2014 cannot be read as requiring the preservation of all existing vegetation and trees on a site. UPG submits that to do so would give no work to the general objective, which uses the words "where possible" and to "minimise as far as possible". Similarly, UPG points out that other objectives refer to "favour their retention" and "encourage". UPG submits that the objectives are therefore not absolute, and the Court is entitled to look at the overall outcome. In doing so, UPG submits that the Court would take into account the benefits of the proposal in considering the impacts on the natural environment, and that the VMP approach is entirely consistent with the PDCP 2014 objectives of enhancement and preservation. Further, UPG's position is that the trees in the EDO that are to be removed are significantly degraded, and that the trees identified as being affected by potential removal by Ms Montgomery and Mr Covell will not be affected or required to be removed. In those circumstances, UPG submits that the only canopy to be lost is 909.5m² of degraded trees, and that the VMP will be effective in restoring the remaining Cumberland Plain Woodland and increasing its assemblage and canopy size, which will result in a gain of 4662m² of Cumberland Plain Woodland vegetation. In support of its position, UPG relies on the evidence of Mr Travers, Mr Kingdom and Mr Grech.
Mr Travers' evidence is that the removal of the 17 trees in the Lot 3 EDA does not cause a significant impact, given the "total omission of a diverse flora in the space of those 17 trees or nearby" (Ex 18 p 19). He considers that such a loss does not require "avoidance" in circumstances where the understorey is cleared and there is "a total lack of other abiotic resources such as logs and tree hollows and or biotic materials such as shrubs grasses… plus nutrients within a natural soil mulch" (Ex 18 p 19). His evidence is that the trees in the Lot 3 EDA are young trees with little canopy spread, mostly less than 3m in diameter, and that no other vegetation occurs under the canopy of those trees. In particular, his evidence of the impact of the loss of the trees on fauna is (Ex 18, p 26):
"These 17 trees contain no hollows that can be utilised by fauna. There are no logs on the ground that can be used by amphibians, frogs, reptiles or invertebrates for refuge. There are no shrubs, forbs or grasses that can be used by insects, birds or invertebrates which then impacts microbat foraging. There is also a constant loss of soil from the erosion caused by rain that intercepts the land harshly because of the sparse tree canopy currently in those 17 trees. In addition, the expected overland flow from the upslope neighbours land could be torrential at times. The loss of flowing opportunities for bees and or birds is insubstantial given the extent of the CPW across the wider 5 ha landscape; and the proposed expansion of the CPW. I do accept that there will be a minor loss of CPW winter flowering of the 17 E. tereticomis trees for the Swift Parrot and the Regent Honeyeater but the loss would be unmeasurable given the remaining trees are over 95% comprised of the winter flowering E. tereticomi"
Mr Travers' evidence is therefore that the trees in the Lot 3 EDA area are not sufficient to allow for the movement of arboreal mammals, passerine birds and other wildlife between other remnant areas of Cumberland Plain Woodland, contrary to the evidence of Mr Covell.
Indeed, Mr Travers opines that the site of the 17 trees (the Lot 3 EDA) and the surrounding remnant of Cumberland Plain Woodland is in a high degree of ecological decay arising from years of clearing, grazing and neglect, which has resulted in a reduction in ecological function. He considers that this manifests in a number of impacts, including a change in community structure from one contiguous vegetation community to nine separate remnant portions, a reduction of wildlife species, an invasion and establishment of exotic species, an obvious degradation of habitat such as the lack of shrubs, on-ground logs and other refugia for reptiles or amphibians, and a reduction in viable habitats.
As such, Mr Travers considers that the proposed VMP will stop this decay with respect to the area sought to be managed. The proposed VMP includes planting of the riparian corridor to create diversity, weed control works and fencing to stop deer from grazing. Further, he opines that the VMP and the proposed landscape trees will replace the tree loss with a contiguous vegetation community amounting to 2.0579ha plus a further area of landscape trees of 8944m². Mr Travers therefore opines that the result of the proposed development will be that the Cumberland Plain Woodland vegetation will be enhanced from its current 2.4861ha to 2.9523ha (an increase of 0.4662ha) which allows a net increase in Cumberland Plain Woodland vegetation, as well as the internal net biodiversity gain arising from the expected regeneration caused by appropriate management to achieve a better assemblage of species.
UPG disputes the evidence of Mr Covell with respect to the reliance on the study carried out by Wilkes et al. UPG points out that the study relates to a much larger site, of 1000ha, owned by the government and managed by volunteers without the benefit of a condition of consent or public positive covenant. UPG relies on the evidence of Mr Covell given in cross-examination, in which he agreed that the proposed VMP was enforceable through a condition of consent and a public positive covenant, which allowed the Council to do the works if they are not carried out. As such, UPG submits that the site the subject of the present development application can be easily distinguished from that which was the subject of the study by Wilkes et al.
UPG also disputes the evidence of Mr Covell with respect to the removal of trees for the purpose of the IPA and APZ, in circumstances where Mr Covell is not qualified in bushfire hazard reduction or asset protection, other than to assess its impacts on ecology. Instead, it relies on the evidence of Mr Travers, who notes that his guidelines contained in the table relied upon by Mr Covell denote the advised distance of tree trunks from the dwelling (not tree canopy, which Mr Covell assumed). On the basis of the table prepared by Mr Covell concerning the distance of each of the trees from the proposed dwellings, Mr Travers pointed out that there is only one tree, being T76, which is within 5m of a building wall, and agreed it should be removed. Consistent with the Planning for Bush Fire Protection 2006, Mr Travers did agree that trees could not have canopies within 2mof a building wall and gave evidence that if Mr Covell's measurements in the table were correct, trees 57, 61, 75, 76, 66, 67 & 62 would have to be pruned so that their canopies were not within 2m of the dwellings. However, Mr Travers did not agree with the measurements provided by Mr Covell. Instead, he had the relevant proposed dwellings (which he considered to be located close to trees) pegged out by a surveyor and made observations onsite as to the actual distances between the dwelling and the tree canopy. On that basis, Mr Travers' evidence is that only tree T76 needed to be removed and T57 pruned to comply with the standards for asset protection in the IPA.
With respect to tree T38, which Ms Montgomery opines will be adversely affected by excavation for the turning circle that encroaches into its structural root zone, UPG relies on the root mapping exercise undertaken by Mr Kingdom. Mr Kingdom attended the site and examined the soil, opining from that dig and examination that there was fill down to a depth of 700mm and therefore excavation within the vicinity of T38 would not impact the tree roots as they have had substantial fill placed over them.
UPG also relies on the evidence of Mr Grech with respect to the siting of the dwellings and the subdivision so as to minimise impact on the trees that are species of Cumberland Plain Woodland. Mr Grech's evidence is that the dwellings and EDAs are largely sited on cleared land, and the driveway is located in the same location as the current driveway so as to avoid any additional adverse impacts on trees that would be occasioned by it being located elsewhere on the site. His evidence is that if the driveway was moved, it would have an increased impact, and that the trees that are to be removed will not have a significant impact on the rural scenic quality of the locality.
As a result of this evidence, UPG submits that there is a net improvement in the Cumberland Plain Woodland on the site, and no trees will be removed other than those agreed by the arborists and the ecologists. Accordingly, UPG submits that the impact on Cumberland Plain Woodland has been minimised, and that less than 10% of the site is being cleared, consistent with the controls in the PDCP 2014. UPG therefore submits that the proposed development meets the objectives of the zone and the objectives of the standard with respect to the minimum subdivision lot size, as it will enhance the Cumberland Plain Woodland on the site and is therefore compatible with the environmental capabilities of the land and will retain and enhance its natural resources.
[2]
There is a net benefit to the community of Cumberland Plain Woodland
Whilst the SREP 20 requires consideration of "whether there are any feasible alternatives to the development", I do not consider that the Council's focus on the impacts of the development in comparison to there being a reduction in the number of lots in the subdivision to be a helpful one. It is not the not the role of the Court to assess the impact of the proposed development against that of a hypothetical alternative proposal. Instead, the Court's role is to assess the acceptability of the current proposal in light of the applicable planning instruments and planning controls, and in accordance with s 4.15(1) of the EPA Act.
In considering the applicable planning instruments and planning controls, I accept the submission made on behalf of UPG that they cannot be read so as to prohibit the removal of any species of the Cumberland Plain Woodland community. The general objectives in C2 of the PDCP 2014 includes an objective to "preserve existing trees and vegetation, where possible…" and the controls (at 2.1 Part C (6)(l)) envisage the removal of trees by development consent. Further, even if the controls could be read as standards that require the retention of all Cumberland Plain Woodland, s 4.15(3A)(b) of the EPA Act requires flexibility where the standards are not met to "allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development." For the reasons set out below, I have determined that the proposed development results in a net benefit for the Cumberland Plain Woodland community that is on the site, and that, therefore, the impact on that endangered ecological community is acceptable and the objectives in C2 of the PDCP 2014 to "protect and enhance native vegetation" are achieved.
Firstly, I accept that the quantum of the tree loss is acceptable in circumstances where the subdivision layout and the siting of the dwellings and driveway, as well as the driveway design, retains as much of the existing Cumberland Plain Woodland vegetation as possible. This is consistent with the control (a)(v) in 1.2.1 of Part C of D1 of the PDCP 2014. I accept the evidence of Mr Grech that the proposed development minimises its impact by siting the dwellings on land that is already cleared, and by placing the driveway where it currently exists. Only one area of the proposed development, the Lot 3 EDA, is sited in an area that results in the clearing of land. In so siting the dwellings, driveway and remaining EDAs, the extent of clearing is limited to less than 10%, which achieves compliance with control (b) in Section 4 in Part B of Part 11.1 of the PDCP 2014.
In determining that the quantum of tree loss is acceptable in the circumstances, I consider that there is no basis upon which to accept the evidence of Mr Covell that additional trees will need to be removed to comply with the requirements for the IPA of the APZ, other than one tree, T76. Given the expertise of Mr Travers in bush fire protection, I accept his evidence that the Planning for Bush Fire Protection requirements do not require removal of any trees other than T76, and that the table developed by him and relied upon by Mr Covell similarly does not require removal of any trees with trunks more than 5m away from the building footprint. Contrary to submission of the Council, there was no concession made by Mr Travers that the trees would need to be removed. Further, given Mr Travers ascertained the distance of the canopies from the building footprints by actual observation on site, I prefer his evidence with respect to the distance of the canopies from the building footprints, which would result in the trimming of the canopy of T57. I also accept the opinion of Mr Kingdom following the root mapping exercise undertaken by him with respect to T38, and that therefore T38 will not be adversely impacted by the excavation for the turning circle.
Secondly, I accept the evidence of Mr Travers that the trees within the Lot 3 EDA area form an area of Cumberland Plain Woodland that is in a high degree of ecological decay, with young trees, a lack of variation in the strata and a lack of terrestrial or arboreal opportunities for wildlife. This was not disputed by Mr Covell. As such, there is no evidence to support the Council's submission that this area of Cumberland Plain Woodland provides an essential connection to other remnant communities of Cumberland Plain Woodland. Indeed, there is no evidence of any impact on the Cumberland Plain Woodland community at large by removal of this portion, and there is no evidence that those trees form part of the landscape character of the site or the locality. As set out by Preston CJ in Bentley v BGP Properties (2006) 145 LGERA 234, ecosystem health depends on its community structure, which includes "species richness, species composition or food web architecture" and on its ecosystem functioning, which includes "productivity, nutrient dynamics, decomposition". The undisputed evidence of Mr Travers is that the trees within the Lot 3 EDA area do not have a healthy Cumberland Plain Woodland community structure.
Thirdly, the remaining trees of high retention value outside of the Lot 3 EDA area are T12, T36, T37 and T76, which are mature species (forest red gums and a rough barked apple). However, the removal of T12, T36 and T37 are necessary in order to allow the driveway to be of a width and standard adequate to accommodate a RFS vehicle and to allow a turning circle for that vehicle. I accept the evidence that movement of the driveway to the east would have a greater impact on existing trees. As discussed above, the removal of T76 is required for the APZ. Accordingly, the removal of these trees is necessary, and I accept the position of UPG that they will be adequately replaced by 25 replacement Cumberland Plain Woodland tree species proposed in the landscape plan. This achieves control (6)(l) of Part C of 2.1 of C2 of the PDCP 2014, to ensure that wherever trees are removed as a consequence of the development, "an equal or greater number of replacement trees that grow to a similar or greater height or canopy should, where practical, be incorporated into the landscaping design of the new development".
Fourthly, I accept the evidence of Mr Travers that the proposed VMP and the landscape plan will result in a significant ecological offset in the form of a conservation reserve along the existing riparian corridor. This will result in a net increase in the quantity of Cumberland Plain Woodland vegetation on the site, as well as an internal net biodiversity gain arising from the expected regeneration caused by appropriate planting and management to achieve a better assemblage of species and better community structure. This is achieved through replanting and conservation within the existing Cumberland Plain Woodland along the riparian corridor, and landscaping to expand the area of Cumberland Plain Woodland. I also consider that the mechanisms for compliance with the VMP, contained in the proposed conditions of consent, distinguish the proposed VMP from the study by Wilkes et al over a larger area where regeneration of the Cumberland Plain Woodland community was not achieved.
For the above reasons, I find that the proposed development minimises the loss of Cumberland Plain Woodland species, enhances and extends the community of Cumberland Plain Woodland on the site, causing a net benefit to that community, and puts in place proper mechanisms to manage that community. This is consistent with the planning policies within cl 6 of SREP 20, and achieves the objectives and relevant controls in the PDCP 2014.
As a result of my findings with respect to the impact of the proposed development on the Cumberland Plain Woodland, I do not accept the Council's position that the proposed development is inconsistent with the objectives of the zone and of the minimum subdivision lot size development standard on account of the removal of trees or the impact of the development on the community of Cumberland Plain Woodland.
[3]
The adequacy of the written request concerning the minimum subdivision lot size
The final form of the written request, lodged pursuant to cl 4.6 of the PLEP 2010, is attached to the Addendum Joint Town Planning Report prepared by Ms Van Etten and Mr Grech, and is dated 15 July 2019.
The request is required to address that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and that sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). As outlined above and explained at [38] I am required to be satisfied that the request adequately addresses these matters.
The written request seeks to establish that compliance with the development standard is unreasonable or unnecessary in two ways. Firstly, it seeks to demonstrate that the objectives of the standard are achieved notwithstanding the non-compliance with the minimum lot size. Secondly, it seeks to demonstrate that compliance is unreasonable or unnecessary in circumstances where the Council has exercised flexibility in the application of the minimum subdivision lot size and the character of the area includes lots that are below the minimum lot size. In particular, the request demonstrates that 23 lots within the locality have an area less than 1ha (excluding access handles and rights of carriageway), and that there have been 4 approvals by the Council of subdivision applications that resulted in lot sizes smaller than the minimum subdivision lot size. The written request sets out the details of each of the 4 approvals, and identifies the 23 lots in the locality with an area less than 1ha.
The written request also seeks to establish that there are a number of environmental planning grounds that justify the contravention of the standard. They are as follows:
The proposed development does not cause any material amenity impacts;
The proposed development will facilitate the management of the riparian corridor at the rear of the site and will enhance the CPW on the site through the implementation of the VMP;
The proposed development will not result in a lot size that is out of character with the area;
The proposed development is for an integrated subdivision and housing development, which provides certainty as to the outcome and its compliance with the objectives of the minimum subdivision lot size development standard;
The development provides additional housing that is compatible with the existing and planned character of the area and the objectives of the zone;
The proposed development would be consistent with the following objects of the EPA Act to promote "the orderly and economic use and development of land", to protect the environment, and to promote "good design and amenity of the built environment".
The request also describes the extent of variation (on p 5) by describing the nature of the 4 lots that comply with the lot size, and explaining that the access corridor containing the driveway connecting to Mt Vernon Road is excluded from the lot size calculation. It then states that "The area of proposed Lot 1 is not a battle-axe lot and has an area of 9,218m². This represents a variation of 782m² (a 7.8% variation)." The request then goes on to explain that the area required for the turning of RFS trucks is proposed to be subject to a restriction on the use of the land, which has been excluded from the lot area calculation from lots 2, 3, 4 and 5, although it need not be so excluded. The request then states that:
"If the restriction as to use relating the area set aside for the possibility of turning RFS trucks was not excluded from the calculation of lot area, and the additional area above 1 hectare in Lots 2 to 4 was redistributed to Lot 1, the variation to Lot 1 would be 342m2 (3.4%). This would be readily achievable with a minor realignment of boundaries."
[4]
The Council's submissions on the request
The Council's position is that the cl 4.6 request has failed to demonstrate that, firstly, complying with the development standard is unreasonable and unnecessary and that, secondly, there are sufficient environmental planning grounds to justify the contravention. With respect to the first, the Council submits that the evidence of 23 approvals with variations to the minimum lot size do not provide any indication as to whether the Council was the consent authority, whether the site contained endangered ecological community, or whether the documents in support of the development applications contained adequate information in terms of surveyed levels, tree removal and ecological impacts. The Council submits that these are fundamental to understanding how and why other applications may have been supportable with reduced lot sizes.
With respect to the environmental planning grounds put forward in the request, the Council submits that the request fails to establish that the benefits proffered by the development justify the contravention of the minimum lot size development standard. The Council relies on Initial Action Pty Ltd v Woollahra Municipal Council, in which Preston CJ of LEC considered that the focus of cl 4.6(3)(b) is on that aspect of the development that contravenes the standard. In light of this, the Council says the focus should be on the deficiency in the size of Lot 1, and submits that the request fails to tether the benefits which are said to arise from the proposal to the variation to the size of Lot 1.
[5]
The Applicant's submissions on the request
UPG submits that the request adequately establishes that compliance with the standard is unreasonable or unnecessary in circumstances where each of the objectives of the standard are met notwithstanding the non-compliance of Lot 1, and in circumstances where the standard has been virtually abandoned through the approval of at least 4 variations in the immediate locality and the existence of 23 lots in the locality with an area less than 1ha.
UPG also submits that the Court is able to discern from the document that it demonstrates that compliance with the standard is unreasonable or unnecessary on the basis that the departure is minimal, and there is no real impact from the non-compliance. In Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94 this was given as another basis upon which compliance could be seen to be unreasonable or unnecessary. Although this basis is not explicitly stated in the request as one upon which compliance would be unreasonable or unnecessary, UPG relies on the decision in Gejo Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1712, in which the cl 4.6 request was considered as a whole. UPG points out that this basis is supported by the evidence of Ms Van Etten and Mr Grech, who agree that the numerical non-compliance is minimal, and the evidence of Ms Van Etten and Mr Cowell, who were unable to identify any real impact arising from the size of Lot 1.
The submission of UPG is that the written request also demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard, in three ways. First, the application is made on an integrated basis to include both the subdivision and built form, which allows a clear demonstration of the actual impacts of the development. UPG submits that this achieves the object of the EPA Act for "orderly and economic" use and development of land, which constitutes an environmental planning ground in accordance with the decision in Initial Action Pty Ltd v Woollahra Municipal Council. Second, the implementation of the VMP will provide protection and restoration to the degraded Cumberland Plain Woodland. Third, the departure is qualitatively and quantitatively minor.
In the course of submissions, I questioned Mr Staunton on whether the access handle could be an environmental planning ground. In response, Mr Staunton agreed and relied on page 5 of the request and the breakdown of the variation to the lot size that is described on page 5 and elsewhere in the request.
[6]
Findings on the written request
I am satisfied that the request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. It does so by establishing that the relevant consent authority has not consistently applied the minimum lot size, with the results that there are 27 lots of less than 1ha within the locality. In those circumstances, it is unreasonable and unnecessary to require strict compliance with the standard. This is consistent with what is commonly described as the fourth "way" in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827, in which compliance with a standard can be established as being "unreasonable or necessary" if the standard has virtually been abandoned by the Council's own actions in departing from the standard. Whilst the request doesn't establish that the standard has been completely abandoned, the request clearly demonstrates that the Council has exercised flexibility in the application of the minimum subdivision lot size and there are already a proportion of lots in the locality that are both below the minimum lot size, and of similar size to that proposed in Lot 1. This is mapped out in the request, demonstrating the precise locations of each of the undersized allotments and their size, the majority of which are between 8500m² and 9500m². In such circumstances, it is unreasonable and unnecessary to require all of the lots in the proposed development to strictly comply with the minimum subdivision lot size. Further, I do not accept the Council's submission that more details are required of each approval. It is sufficient to establish that the Council has regularly exercised flexibility to dispense with strict compliance, that the result is a large number of lots in the locality with lot sizes similar to that proposed, and that, therefore, strict compliance would not be reasonable or necessary.
However, I am not satisfied that the written request has adequately addressed that there are sufficient environmental planning grounds to justify contravening the development standard. The environmental planning grounds identified in the request largely describe the benefits of the proposed development, but there is nothing in the request that informs how those benefits justify, or arise from, the contravention of the minimum lot size development standard. In that respect, I accept the submission of the Council that the request fails to tether the benefits which are said to arise from the proposal to the variation to the size of Lot 1. As stated by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council, "The focus of cl 4.3(3)(b) is on the aspect or element of the development that contravenes the development standard", and "The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole" (at [24]) None of the benefits described in the request justify the contravention of the minimum lot size development standard. Specifically, it is not sufficient to state that it is an integrated development application, or that the proposed development enhances the Cumberland Plain Woodland and provides additional housing. Whilst these are benefits of the proposed development, they do not justify, or inform, the breach of the minimum lot size development standard in Lot 1. Similarly, whilst the request states that there will be an absence of impacts, this is an outcome of the proposed development that is not tethered (in the request) to the contravention of the minimum lot size development standard. Further, the fact that the Lot 1 will not be out of character with other lots in the locality is true, but of itself, that doesn't constitute an environmental planning ground that informs or justifies the departure from the minimum lot size. This is distinct from cases such as Gejo Pty Ltd v Canterbury-Bankstown Council, where the contravention of the development standard was justified to achieve consistency in the streetscape with other sites that breached the relevant development standard. In the present case and in the present request, the departure from the standard in Lot 1 is not justified by any such outcome.
I consider that the existence of the access handle could constitute an environmental planning ground, but contrary to the submissions made on behalf of UPG, it is not addressed in the request in a manner that justifies the size of Lot 1. Instead, it is described as providing access to Lots 2, 3, 4 and 5 and to outline how the lot sizes for Lots 2, 3, 4 and 5 are calculated (and how Lot 1 could be increased in size with a minor adjustment to the boundaries). There is nothing in the request that informs how the existence of the access handle justifies, or informs, the non-compliance with the minimum lot size for Lot 1. Given that the state of satisfaction required by cl 4.6(4)(a)(i) depends upon the contents of the written request, the Court is constrained by that request and I cannot, independently of the request, draw my own conclusions as to what environmental planning grounds might justify the contravention of the development standard. As stated by Payne JA in RebelMH Neutral Bay Pty Limited v North Sydney Council at [4] (emphasis added):
"Properly construed, a consent authority has to be satisfied that an applicant's written request has in fact demonstrated the matters required to be demonstrated by cl 4.6(3)."
As a result, I do not reach the state of satisfaction required by cl 4.6(4)(a)(i), and therefore, pursuant to cl 4.6(4), I am precluded from granting development consent and the appeal must therefore be dismissed.
[7]
Remaining matters for consideration
As set out above, the Council raised a number of other contentions in the proceedings, on the basis of which it says that the Court should refuse the development application. This includes the amenity impacts of the proposed development, its visual impact, its bulk and scale and the extent of earthworks. Expert opinion evidence was put before the Court with respect to each of these contentions. Findings on each of these contentions would be informative in the determination on whether the development is consistent with the objectives of the zone, and with the objectives of the minimum subdivision lot size development standard.
However, having reached the conclusion that there is no power to grant development consent on account of not reaching the state of satisfaction required by cl 4.6(4)(a) of the PLEP 2010, there is little benefit in determining the remaining matters in dispute.
[8]
Application for costs pursuant to s 8.15(3)
On 7 May 2019, the return date of a notice of motion filed following the first adjournment of the hearing, I made orders granting leave to UPG to amend its application. Those amendments included:
A reduction in the footprint of the dwellings proposed on lots 4 and 5, from 6 bedroom dwellings to 3 bedroom dwellings.
The relocation of the EDAs on lots 4 and 5 so that they are accommodated downslope of the dwellings in lieu of laying pipes through the riparian corridor to soil absorption beds on the other side of the riparian corridor.
The reduction in the footprint of the dwelling proposed on Lot 2 to retain more trees.
An updated flora and fauna report and amended proposed VMP, and an updated arboricultural assessment report to assess the trees to be removed as a result of the amended development application.
A revised landscaping plan.
Revised stormwater plans and engineering plans for the driveway, which show that there will be no cut and fill works in the road alignment, provide details of the pier and beam construction of retaining walls and the driveway, and reduce the extent of the fill for the building footprints.
At that time, I also made an order pursuant to s 8.15(3) of the EPA Act for UPG to pay the Council's costs thrown away as a result of the amendment.
Since that time and following the resumption of the hearing in July, two further amendments to the application were permitted by the grant of leave. The first was on 18 July 2019, which:
Amended the engineering plans as a result of the joint conferencing, to provide additional information in relation to the chainage at the lip of the driveway for the cross-section between chainage 0 and 10 and to vary the depth of a grass swale to be consistent with the MUSIC modelling.
Amended the Soil and Site Assessment for Onsite Wastewater Disposal through the joint conferencing of experts, by modifying the wastewater disposal areas on Lot 1 and 2, repositioning the raised absorption bed on Lot 4, repositioning the aerated wastewater treatment system on Lot 3, recalculating the downslope batter for the raised soil absorption bed on lot 3, excluding 31m² of the irrigation area, and providing additional measurements.
Amended the cl 4.6 request to provide additional detail.
Amended the landscape plans to restore planting to the Lot 1 garage.
The second was on 6 September 2019, at which time a consolidated set of plans were tendered (Ex H). Those plans included amended architectural plans, which were amended to reflect the changes that were made as a result of the grant of leave on 18 July 2019.
The Council seeks further orders pursuant to s 8.15(3) in respect of each amendment. Section 8.15(3) provides as follows:
(3) If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent. This subsection does not apply to proceedings to which section 34AA of the Land and Environment Court Act 1979 applies.
UPG opposes those orders on the basis that each of the amendments can be described as a "minor amendment", in respect of which the mandatory order is not required to be made. On both occasions, I reserved the question of the costs order under s 8.15(3) for later determination.
With respect to the amendments made on 18 July 2019, the Council submits that one has to have regard to the cumulative and overall effect of the amendments, in the context and location of the proposed development. In doing so, the Council submits that the changes to the engineering plans and the wastewater system are more than a "minor amendment" as they change the setbacks between the proposed EDA and the Lot 3 dwelling, and they are the sixth amendment to the plans. Further, the Council submits that the cl 4.6 request is not a minor amendment but a "new" request.
With respect to the amendments made on 6 September 2019, the Council submits that in terms of cumulative impacts, the changes to the plans deal with a key concern of the Council expressed by Ms Montgomery as to the effect of the driveways on the Cumberland Plain Woodland trees, in the locations of Lot 3 and 4. Further, the changes deal with the concern of the council's wastewater expert in respect of the EDA and its relationship with the stormwater buffers in Lots 1 and 2. As a result, the Council submits they make a cumulative change to the application that cannot be described as a "minor amendment".
I do not accept the Council's submissions that the amendments to the development application made on either 18 July or 6 September constitute something more than a "minor amendment". In considering the nature and extent of the amendment for the purpose s 8.15(3), one must have regard only to the amendment that is before it, not to the history of amendments that have been made to the development application in the course of the appeal proceedings.
The amendments made on 18 July 2019, when considered in the context of the development application, are minor, even when considered cumulatively. The cl 4.6 request contained some additional information, but did not result in a 'new' request, contrary to the Council's submission. The amendment to the driveway is minor when considering the size and length of the driveway as a whole, and the change to the location of the different areas in the Wastewater plans (from Version 7 to Version 8) are similarly minor when considering the extent and detail of the proposed subdivision and dwellings. The Council agreed that the changes to the landscape plan were minor. I am satisfied that, considering all of these changes cumulatively and in the context of the development application as a whole, they are "a minor amendment" and I am therefore not required to make an order for costs pursuant to s 8.15(3).
[9]
The outcome of the appeal
Having reached the conclusion that, pursuant to cl 4.6(4) of the PLEP 2010, there is no power to grant development consent, the appeal must be dismissed and the development application refused.
The Court orders that:
1. The appeal is dismissed.
2. The development application for a 5-lot subdivision and construction of a dwelling on each subdivided lot at 264-270 Mount Vernon Road, Mount Vernon is refused.
3. The exhibits are returned, except for Exhibit D, H, 17 and 18.
…………………………
J Gray
Commissioner of the Court
[10]
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Decision last updated: 28 January 2020
Parties
Applicant/Plaintiff:
Universal Property Group Pty Ltd
Respondent/Defendant:
Penrith City Council
Cases Cited (8)
Matters for determination
As set out above, proposed Lot 1, created by the proposed development, does not comply with the minimum subdivision lot size development standard. As such, cl 4.6 of the PLEP 2010 precludes the grant of development consent, unless the matters described in subcl (4) are satisfied. As set out by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118, for there to be power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that:
The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i));
The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i));
The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), and;
The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)).
In accordance with the decision of the Court of Appeal in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130, the Court, in exercising the functions of the consent authority, must "in fact" be satisfied of each of the above matters. The state of satisfaction that compliance is "unreasonable or unnecessary" and that there are "sufficient environmental planning grounds" to justify the contravention of the standard (the first two dot points above) must be reached only with regard to what is contained in the cl 4.6 request. As I stated in Abrams v Council of the City of Sydney [2019] NSWLEC 1583 at [33]:
"Whilst the evidence in the proceedings can assist in understanding the request and in considering the adequacy of the request, it cannot supplement what is in the request."
On the other hand, the state of satisfaction that the proposed development is in the public interest (the last two dot points above) can be reached by considering the evidence before the Court, without being limited to what is contained in the cl 4.6 request.
A number of the contentions raised by the Council overlap with the matters required to be considered in cl 4.6(4)(a) of the PLEP 2010. In particular, it is the Council's case that the proposed development is not consistent with either the zone objectives or the objectives of the standard, largely on account of the removal of Cumberland Plain Woodland. The removal of trees and the impact of the development on the community of Cumberland Plain Woodland are also raised as separate contentions in the proceedings, and were fully argued at the hearing and were the cause of the adjournment of the hearing to allow for amended plans to reduce the impact.
In considering the development application, I deal first with the impact of the development and the removal of trees on the community of Cumberland Plain Woodland. This informs whether the proposed development is consistent with the objectives of the zone and the objectives of the minimum subdivision lot size development standard. A determination in favour in the Council with respect to the impact on Cumberland Plain Woodland would likely lead to a finding that there is no such consistency and, by extension, preclude consent being granted by virtue of the failure to reach the state of satisfaction required by cl 4.6(4)(a)(ii) of the PLEP 2010.
Second, I consider what is required of cl 4.6(4)(a)(i) of the PLEP 2010, that is, the adequacy of the request to establish the matters required by cl 4.6(3) of the PLEP 2010. It is at this point that I have reached the conclusion that the request does not adequately establish sufficient environmental planning grounds to justify the contravention of the minimum lot size development standard, and that consent must be refused on that basis.
Third, had the findings with respect to cl 4.6(4)(a)(i) been favourable to UPG, I would have then considered the remaining issues, including the amenity impacts of the proposed development, its visual impact, its bulk and scale and the extent of earthworks. This would then inform the outcome with respect to cl 4.6(4)(a)(ii). However, having not reached satisfaction that the request adequately establishes the matters required by cl 4.6(4)(a)(i) of the PLEP 2010, there is little utility in determining the remaining matters in dispute.
Similarly, I find that the amendments to the architectural plans to reflect the changes to the driveway and other changes made on 18 July 2019, are simply consequential upon those changes and are a "minor amendment". They make no other changes to the design of the dwellings, and make changes only to reflect those earlier amendments.
In finding that each of the amendments was a "minor amendment", the mandatory order pursuant to s 8.15(3) is not required to be made. As there is no other power pursuant to which a Commissioner of the Court can order costs when dealing with proceedings pursuant to a direction under s 36 of the Land and Environment Court Act 1979, I decline to make any order as to costs.