Warringah Council v Windy Dropdown Pty Limited & Anor

Land and Environment Court (NSW)|2000-06-14|Before: Cowdroy J

The application for modification of the consent made on 16 December 1999 specifically excludes the proposed filling within the landscape preservation area of lot 14 of the subdivision. If it always had been Mr Franks intention to place fill in this area, such intention was, on the evidence, not communicated to council and there is no consent which authorises such work. In these circumstances, the Court finds that the fill was placed upon lots 12, 13 and 14 in the landscape preservation area in breach of the conditions of the consent. Accordingly there has been a breach of the provisions of s 76A(1)(b) of the EP&A Act. The fill on the lots to the west of the land namely lots 16, 17 and 18, Mr Franks has acknowledged his obligation to remove such fill.

The respondents have submitted that the Court would exercise discretion and not require removal of the fill in the landscape preservation area. In support of such submissions the respondents rely upon the evidence of the author of the conservation plan, Mr Brooks who has provided an affidavit. Mr Brooks states inter alia:- The completed works contained and protected the features that were identified as being of cultural significance. The new landscaping is of a high order and will recapture the essence of the original setting of the historic house within a relatively short period of time. The introduction of new levels in landscaped conservation area behind the original boundary wall along the eastern sector of the site north of the Windy Dropdown curtilage is acceptable in order to achieve a complimentary solution of a high standard that would match the new houses. The sense of enclosure of the old external precinct wall has been retained, albeit with the levels of the land behind raised to give improved outlook from the new buildings. Unfortunately Mr Brooks was absent from Australia during the hearing and was not available for cross-examination.

The council has led evidence to the contrary. Mr Warwick Mayne-Wilson, conservation landscape architect, testified that in his opinion whilst the integrity of the house which has been the subject of appropriate preservation filling of lot 12, 13 and 14 is inconsistent with council's plan for the development of the land. He confirmed the observations of Mr Brooks as set out in the Conservation Plan that the boundary wall provided the important function of creating a sense of enclosure. He observed that the wall provided mutual privacy for the public and residents was now greatly reduced. Mr Mayne-Wilson said that the effect of the fill was to provide a viewing platform which is visible to those using the adjacent coastal walk and vice-versa. Contrary to Mr Brooks opinions, Mr Mayne-Wilson considered that rather than retaining a sense of enclosure, a sense of exposure had been created not only to the occupants of the lands but also to the public who might use the walkway.

Mr Mayne-Wilson observed that Mr Brooks was not a qualified landscape architect. He considered that the current planting was representative of only a rough copy of the original heath. He opined that the increased level of fill on the land is not in keeping with the overall topography and vegetation on the land. He considered that the fill in the landscape preservation area was excessive as was the newly laid sandstone boulders which had been placed along lot boundaries.

Ms Penelope Ann Goldin, a town planner for the council considered the application made by the respondents on 23 September 1999 to modify the consent by the filling of lots 12, 13 and 14 within the landscape preservation area which was rejected by council. In her report to council she expressed her views as follows:- The existing character of the site and place can be described as of coastal cliff and headland character. It slopes from the south and west boundaries down to a low point in the north-east corner of the site. The original natural ground levels of the site join the coastal reserve to the immediate east of the site. The proposal alters the character of the site by altering the land levels to an unnatural level which is not complementary to its joining with the coastal reserve topography to the immediate east. The proposal makes no attempt to relate to the site and does not provide a visual transition between the site and the coastal reserve.

It is considered that the increased land levels will have a major detrimental and overbearing visual impact when viewed from the coastal reserve. It will provide an unacceptable and detrimental impact on the visual privacy of users of the coastal reserve.

The Court has had the benefit of a view and has been able to observe the features noted by Mr Brooks, Mr Mayne-Wilson and Ms Goldin. The Court finds that the opinions of Mr Mayne-Wilson and Ms Goldin accurately reflect the current visual features of the land. If there had been a sense of 'enclosure' within the site, that sense is no longer apparent. The sense of the enclosure of the land is also lost as the visual exposure of persons standing within the filled area overlooks the public reserve.

Mr Franks adduced evidence that the cost of removal of the fill would be substantial. Based upon his experience he said that it would cost approximately $250,000 to $300,000 to remove. This quantum was disputed by the council. Evidence was adduced from Mr Ross Picard, Infrastructure Services Manager of the council that the cost of removal would be estimated at $156,590. Such estimate was detailed and the Court considers it to be a more accurate calculation than Mr Franks unsubstantiated assessment. Taking into account the scale of the development of the land and the fact that the fill has been placed in breach of the conditions of consent the Court considers that orders for the removal of the fill are warranted.

The respondents rely upon Woollahra Municipal Council v Alcaine (1986) 59 LGRA 40 as demonstrating that the power of the Court need not necessarily be exercised by the making of an order. However each case depends upon its own facts and the Court possesses wide powers either to make or refrain from making such orders as it sees fit: see F Hannan Pty Ltd v Electricity Commission of New South Wales (1985) 66 LGRA 306 at 311-312; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341.

To permit the fill to remain on the land would be contrary to the specific requirements of the conditions of consent which were obviously formulated with considerable foresight to ensure that the private and public amenity of the land and the public reserve would be preserved.

As to remaining issue concerning the removal of trees, the Court has been provided with a diagram prepared by Mr Draper which establishes that trees have been removed from places in which it is apparent that engineering or building works would not have justified their removal. No expert evidence exists to challenge Mr Draper's detailed assessment. The Court accordingly considers that appropriate orders are warranted to ensure the re-planting of substitute trees upon the land.

A concrete block wall has been erected between lots 17 and 18 without council consent. The respondents are agreed that the wall will be removed. An order to provide for the removal is required.

A number of fig trees have been planted outside the land adjacent to the boundary wall. The respondents are willing to remove such trees and an order is appropriate to provide for such removal.

The fill on lots 16, 17, 18 of the subdivision is acknowledged by the respondents to have been placed on such lots temporarily. There is no immediate urgency to the removal of such fill. An order is to provide that such fill is to be removed before transfer of any such lots is effected or prior to any building approval being granted for such lots.

The Court directs that the applicant prepare draft declarations and orders to implement the findings of the Court referred to above and to submit the orders to the Court.

The Court grants leave to the parties to approach the Registrar within 5 days to obtain a date for the purpose of final orders and costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

27. The application to fill the land within the landscape preservation area of lot 14 of the subdivision was expressly excluded from the application to modify the consent no 1673DA made on 16 December 1999 in respect of lot 14. All plans lodged with the council are consistent only with the conclusion that the original contours of the land, as modified in a minor way following completion of the engineering works were to be retained. In addition, the report of Jack Hodgson Consultants Pty Limited dated 15 July 1998 states, `It was also decided to reduce the height of the fence to the proposed ground level ...'. The ground level at that time has been recorded. Mr Phillip Gardener, surveyor has compiled the levels of the land within the landscape preservation area from plans prepared by Mr Byrnes dated 11 August 1998 and compared them to the present. In the north-west corner the level of the land in the landscape preservation area has been raised by 2.61 m. The north-east corner of the land has raised by 1.23 m. Increases in the levels of the land has also taken place in lots 12 and 13. During the course of the drainage works, man-hole facilities were constructed to a level which corresponded with the ground level identified by Jack Hogdson Consultants Pty Limited in their letter of 15 July 1998. Mr Franks acknowledged that he arranged for the extension of the height of the man-holes so that they are now flush with the present level of the fill.

28. In summary, the overwhelming evidence establishes that the levels of the land in the landscape preservation area as they existed at the 15 July 1998 were regarded by council and the respondent's engineers to be the final levels.

29. The application for modification of the consent made on 16 December 1999 specifically excludes the proposed filling within the landscape preservation area of lot 14 of the subdivision. If it always had been Mr Franks intention to place fill in this area, such intention was, on the evidence, not communicated to council and there is no consent which authorises such work. In these circumstances, the Court finds that the fill was placed upon lots 12, 13 and 14 in the landscape preservation area in breach of the conditions of the consent. Accordingly there has been a breach of the provisions of s 76A(1)(b) of the EP&A Act. The fill on the lots to the west of the land namely lots 16, 17 and 18, Mr Franks has acknowledged his obligation to remove such fill.

30. The respondents have submitted that the Court would exercise discretion and not require removal of the fill in the landscape preservation area. In support of such submissions the respondents rely upon the evidence of the author of the conservation plan, Mr Brooks who has provided an affidavit. Mr Brooks states inter alia:-

The completed works contained and protected the features that were identified as being of cultural significance. The new landscaping is of a high order and will recapture the essence of the original setting of the historic house within a relatively short period of time. The introduction of new levels in landscaped conservation area behind the original boundary wall along the eastern sector of the site north of the Windy Dropdown curtilage is acceptable in order to achieve a complimentary solution of a high standard that would match the new houses. The sense of enclosure of the old external precinct wall has been retained, albeit with the levels of the land behind raised to give improved outlook from the new buildings.

Unfortunately Mr Brooks was absent from Australia during the hearing and was not available for cross-examination.

31. The council has led evidence to the contrary. Mr Warwick Mayne-Wilson, conservation landscape architect, testified that in his opinion whilst the integrity of the house which has been the subject of appropriate preservation filling of lot 12, 13 and 14 is inconsistent with council's plan for the development of the land. He confirmed the observations of Mr Brooks as set out in the Conservation Plan that the boundary wall provided the important function of creating a sense of enclosure. He observed that the wall provided mutual privacy for the public and residents was now greatly reduced. Mr Mayne-Wilson said that the effect of the fill was to provide a viewing platform which is visible to those using the adjacent coastal walk and vice-versa. Contrary to Mr Brooks opinions, Mr Mayne-Wilson considered that rather than retaining a sense of enclosure, a sense of exposure had been created not only to the occupants of the lands but also to the public who might use the walkway.

32. Mr Mayne-Wilson observed that Mr Brooks was not a qualified landscape architect. He considered that the current planting was representative of only a rough copy of the original heath. He opined that the increased level of fill on the land is not in keeping with the overall topography and vegetation on the land. He considered that the fill in the landscape preservation area was excessive as was the newly laid sandstone boulders which had been placed along lot boundaries.

33. Ms Penelope Ann Goldin, a town planner for the council considered the application made by the respondents on 23 September 1999 to modify the consent by the filling of lots 12, 13 and 14 within the landscape preservation area which was rejected by council. In her report to council she expressed her views as follows:-

The existing character of the site and place can be described as of coastal cliff and headland character. It slopes from the south and west boundaries down to a low point in the north-east corner of the site. The original natural ground levels of the site join the coastal reserve to the immediate east of the site. The proposal alters the character of the site by altering the land levels to an unnatural level which is not complementary to its joining with the coastal reserve topography to the immediate east. The proposal makes no attempt to relate to the site and does not provide a visual transition between the site and the coastal reserve.

34. The Court has had the benefit of a view and has been able to observe the features noted by Mr Brooks, Mr Mayne-Wilson and Ms Goldin. The Court finds that the opinions of Mr Mayne-Wilson and Ms Goldin accurately reflect the current visual features of the land. If there had been a sense of `enclosure' within the site, that sense is no longer apparent. The sense of the enclosure of the land is also lost as the visual exposure of persons standing within the filled area overlooks the public reserve.

35. Mr Franks adduced evidence that the cost of removal of the fill would be substantial. Based upon his experience he said that it would cost approximately $250,000 to $300,000 to remove. This quantum was disputed by the council. Evidence was adduced from Mr Ross Picard, Infrastructure Services Manager of the council that the cost of removal would be estimated at $156,590. Such estimate was detailed and the Court considers it to be a more accurate calculation than Mr Franks unsubstantiated assessment. Taking into account the scale of the development of the land and the fact that the fill has been placed in breach of the conditions of consent the Court considers that orders for the removal of the fill are warranted.

36. The respondents rely upon Woollahra Municipal Council v Alcaine (1986) 59 LGRA 40 as demonstrating that the power of the Court need not necessarily be exercised by the making of an order. However each case depends upon its own facts and the Court possesses wide powers either to make or refrain from making such orders as it sees fit: see F Hannan Pty Ltd v Electricity Commission of New South Wales (1985) 66 LGRA 306 at 311-312; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341.

37. To permit the fill to remain on the land would be contrary to the specific requirements of the conditions of consent which were obviously formulated with considerable foresight to ensure that the private and public amenity of the land and the public reserve would be preserved.

38. As to remaining issue concerning the removal of trees, the Court has been provided with a diagram prepared by Mr Draper which establishes that trees have been removed from places in which it is apparent that engineering or building works would not have justified their removal. No expert evidence exists to challenge Mr Draper's detailed assessment. The Court accordingly considers that appropriate orders are warranted to ensure the re-planting of substitute trees upon the land.

39. A concrete block wall has been erected between lots 17 and 18 without council consent. The respondents are agreed that the wall will be removed. An order to provide for the removal is required.

40. A number of fig trees have been planted outside the land adjacent to the boundary wall. The respondents are willing to remove such trees and an order is appropriate to provide for such removal.

41. The fill on lots 16, 17, 18 of the subdivision is acknowledged by the respondents to have been placed on such lots temporarily. There is no immediate urgency to the removal of such fill. An order is to provide that such fill is to be removed before transfer of any such lots is effected or prior to any building approval being granted for such lots.

42. The Court directs that the applicant prepare draft declarations and orders to implement the findings of the Court referred to above and to submit the orders to the Court.

43. The Court grants leave to the parties to approach the Registrar within 5 days to obtain a date for the purpose of final orders and costs.

Planning and Assessment Act 1979

CITATION : Warringah Council v Windy Dropdown Pty Limited & Anor [2000] NSWLEC 110 APPLICANT Warringah Council PARTIES : RESPONDENT Windy Dropdown Pty Limited & Anor FILE NUMBER(S) : 40027 of 2000 CORAM: Cowdroy J KEY ISSUES: Development :- development consent for subdivision creating land preservation area upon heritage site - developer filling land contained in the land preservation area without approval - orders for removal of ill and for re-instatement of land preservation area - unauthorised removal of trees - order for re-instatement of trees. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A(1)(b) F Hannan Pty Ltd v Electricity Commission of New South Wales (1985) 66 LGRA 306 ; CASES CITED: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 ; Woollahra Municipal Council v Alcaine (1986) 59 LGRA 40 DATES OF HEARING: 19/4/00, 20/4/00, 29/5/00, 30/5/00, 31/5/00, 1/6/00, 2/6/00 DATE OF JUDGMENT: 06/14/2000

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