90 Croatia Properties Pty Ltd v Liverpool City Council

[2021] NSWLEC 1177

Land and Environment Court

New South Wales

Medium Neutral Citation:

90 Croatia Properties Pty Ltd v Liverpool City Council [2021] NSWLEC 1177

Hearing dates:

1 and 2 March 2021, final submissions 23 March 2021

Date of orders:

16 April 2021

Decision date:

16 April 2021

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) DA 828/2019 for a multi dwelling housing development at 90 Croatia Avenue Edmondson Park is refused.

(3) The exhibits are returned with the exception of exhibits 7, 8, 10, 11, A-E, O-S.

Catchwords:

DEVELOPMENT APPLICATION – multi dwelling housing under State Environmental Planning Policy (Affordable Rental Housing) 2009 – whether s 4.15(3A)(c) of Environmental Planning and Assessment Act 1979 is beneficial and facultative and scope of “widest interpretation that its language will give” – precedent – tree removal – character – cut and fill

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 3.42, 4.15, 8.7

Liverpool Local Environment Plan 2008

State Environmental Planning Policy (Affordable Rental Housing) 2009

Cases Cited:

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Zhang v Canterbury City Council (2001) LGERA 373; [2001] NSWCA 167

Texts Cited:

Land and Environment Court, COVID-19 Pandemic Arrangements Policy

Liverpool Growth Centre Precincts Development Control Plan

Minister for Planning’s Second Reading Speech to the Environmental Planning and Assessment Amendment Bill 2012

Category:

Principal judgment

Parties:

90 Croatia Properties Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
S Berveling (Applicant)
R O’Gorman-Hughes (Respondent)

Solicitors:
Conomos Legal (Applicants)
Liverpool City Council (Respondent)

File Number(s):

2020/3845

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal under the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA 828/2019 (application) by Liverpool City Council (Council). The application is for a multi dwelling housing development at 90 Croatia Avenue Edmondson Park, legally described as Lot 15 in DP 228850 (site).

The site and locality

2. I rely on Council’s Amended Statement of Facts and Contentions filed 18 December 2020 (Ex 1) for much of the material in this and the following two descriptive sections.

3. Edmondson Park, including the immediate locality of the site, is currently undergoing transition from rural to more urbanised development forms, in accordance with applicable zoning changes and the roll out of infrastructure.

4. The site itself is some 2.028ha in area. It has a frontage to Croatia Avenue of some 106.07m and is located on the eastern side of this road reserve. Some 7475m² of the site is occupied by an easement for electricity transmission (indicated as 61m wide (Ex 1, p 2)), reducing the land available for development accordingly.

5. The site is occupied by a residence and a number of structures. There are also a number of trees on site, the significance of which is a consideration in this matter.

The proposal

6. The proposal involves the demolition of existing buildings on the site, tree removal, earthworks and construction of a multi dwelling housing development. There would be in 3 stages comprising 45 two storey townhouses and associated attached garages. The project also includes provision of access driveways, hard stand parking, landscaping and road construction/widening.

7. The multi dwelling housing development would be located generally towards the western and southern areas of the site, west and south of the electricity transmission easement (easement), except for a smaller area at the north-eastern corner of the site which is also outside of the easement (Ex 1, Figure 2).

Planning provisions

8. The site is zoned R1 General Residential under the provisions of the Liverpool Local Environmental Plan 2008 (LLEP). The zone objectives are

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To ensure that housing densities are broadly concentrated in locations accessible to public transport, employment, services and facilities.

• To facilitate development of social and community infrastructure to meet the needs of future residents.

9. The development is permissible under LLEP.

10. The Applicant also relies on State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH). There is no dispute that the proposal qualifies as in-fill affordable housing under SEPPARH. Division 1 of SEPPARH specifies certain grounds which cannot be used to refuse consent provided a proposal complies, relevantly, with the nominated development standards. This proposal complies with the nominated standards, thus confining somewhat the grounds for evaluation in this application.

11. Liverpool Development Control Plan 2008 (LDCP) also applies and will be seen to be a consideration in this evaluation.

Procedural background

12. The hearing was conducted under the guidance of the Court’s COVID-19 Pandemic Arrangements Policy. More particularly, the hearing was conducted as a “virtual court room” arrangement under the “Microsoft Teams” platform. In this instance, I determined it was appropriate to conduct a site inspection which occurred immediately prior to the commencement of the hearing, in the company of the parties and a number of experts.

Issues

13. I can group the issues remaining in dispute in this matter into three:

• Tree removal

• Area character

• Earthworks (extent of cut and fill).

14. Below I commence with an outline of the relevant policy and an explanation of the evidence in regard to the issues. I then consider, together, the issues of tree removal and area character, which I find to be determinative.

15. The experts providing evidence to the hearing, pertinently, are indicated in the table below.

Issue	For
Mr N Juradowitch,	Planning	Applicant
Mr P Nelson	Planning	Council
Mr S Freeman	Arborist	Applicant
Ms C Brackenridge Hughes	Arborist	Council

Tree removal

Policy

16. Part 1 of LDCP is entitled “General Controls for all Development”. Clause 3 is titled “Landscaping and Incorporation of Existing Trees” and has the following objectives:

“a) Promote landscape planning and design as part of a fully integrated approach to site development.

b) Assist in improving the climate of the local environment.

c) Retain as many existing trees as possible.

d) To provide habitat for locally indigenous plants and animals and contribute to biodiversity.

e) To encourage landscaping that is appropriate to the natural, cultural, built and heritage characteristics of its locality.

f) Improve the amenity of developments and adjoining areas by ensuring proposals adequately complement the proposed building forms and surrounding streetscape.

g) Ensure that the proposed landscape designs provide functional attributes such as privacy, shade and wind protection, while discouraging the opportunity for crime and vandalism.”

17. The Controls are as follows:

“1. Existing trees and native vegetation are to be retained, protected and incorporated into the development proposal. This is particularly important for vegetation which forms part of a ridgeline tree canopy and in foreshore and riparian areas (with the exception of weed species).

2. Prior to the commencement of the design of a development existing trees should be identified. The design of a development should consider options to retain existing trees.

3. Existing indigenous trees within any building setback should be retained where possible, as an integral component of the site’s landscaping, and to protect local habitats.

4. It is important that all plans accompanying the development application including engineering and hydraulics plans are consistent with the landscape plan. This is particularly important where trees are to be retained. For example storm water lines and excavation should not be within the drip line of trees to be retained.

Note: Where trees are located outside the normal building envelope for a development, Council will give particular attention to the retention of those trees.”

18. Council submits that the tree removal associated with the proposal does not meet LDCP requirements.

Evidence

Significance of trees

19. There was considerable disagreement in documentation prior to the hearing on the significance of the trees which would be removed with the proposal. An Arboricultural Impact Assessment and Tree Management Plan, prepared by Horticultural Management Services dated 26th October 2020 (Ex H) examined 75 trees on the site and found the trees to range from “Nil” to “Medium” landscape significance, and no trees with a Safe Useful Life Expectancy (SULE) rating of higher than 3 (retainable for 5-15 years). Mr Freeman, the Applicant’s arboricultural expert in this matter, is indicated in the document as having prepared Ex H.

20. After the site inspection on the first day of the hearing, the experts came to quite considerable agreement about the significance of the trees which would be removed with the proposal. Mr Freeman explained that when undertaking his inspection, there had been an extended dry period, or “drought”, which had affected the presentation of trees, and thus his evaluation.

21. In any event, the evidence was clear that there was good agreement that 11 of the trees which would be removed with the proposal had a high retention value and a life expectancy in excess of 40 years. These were nominated in Ex H as Trees 8, 13, 20, 22, 23, 57, 70, 71, 72, 73, 74 and 75. In regard to Tree 52, I preferred the evidence of Ms Brackenridge Hughes, essentially based on the greater consistency of the opinions expressed by her. This would bring the total to 12 of the trees to be lost with high retention value and a life expectancy in excess of 40 years.

22. I will also note that Mr Freeman’s opinion in regard to SULE ratings was sometimes cautioned by use of conditional terms like “if undisturbed”, or, “potentially”. This seemed to be giving some acknowledgement to an inherent development potential over the land associated with its zoning. There was certainly this recognition in Ex H, in the “Tree Identification Assessment Table”, where there was a regular comment that trees, later found to have high significance and retention value, were found in Ex H to be “required to be removed” due to aspects of the development proposal itself (eg within a building envelope or driveway as embodied in proposal drawings).

Other evidence in regard to tree loss

23. In the course of the site inspection, the parties, experts and myself, walked in the environs of a recently developed area at Brennan Way to the near west of the site. Ms Brackenridge Hughes made reference to the visual amenity provided by the existing trees (ie on the site) when viewed from Brennan Way.

24. During the hearing, the arboricultural experts agreed that there would be significant local visual or aesthetic benefit, as experienced from viewing positions on Brennan Way, were trees on the site to be retained. In reference to a photograph forming part of Ex 12, Mr Freeman agreed that those trees contributing included Trees 8, 20, 22 and 23.

25. Mr Nelson agreed canopy trees on the site provided significant landscape amenity to the Brennan Way streetscape and to other areas. He noted the benefits of retaining canopy trees to help filter views of the electricity stanchions and cables.

26. Mr Juradowitch pointed to LDCP provision referring to the need to retain trees “as possible”. He indicated he could not support development for housing near these sorts of trees. He referenced what he suggested as a common historical position of Council to allow tree removal of this kind and supported this approach. The concern was that as trees (like those on site) mature they drop branches and are dangerous. Air photos, sourced from Nearmap, were used to show pre-existing vegetation and clearing for approved development as part of the transition of the site environs from more rural to more urbanised development.

27. Both of the Applicant’s experts referred to proposed future landscaping, including road reservation plantings which would exceed the trees to be removed. I note the landscape plan shows 26 Spotted Gums (75 Litre) with a mature height of 25-30m, and over 100 other tree plantings with 6m plus mature height (Ex Q, Drawing 1794.GD.06).

28. I note that these experts also referenced the fact that the site had received bio-diversity certification. However, I agree with Ms Brackenridge Hughes that this has limited relevance to the question of tree removal for issues not related to biodiversity.

Area character

29. The proposal was seen by Council to not provide a suitable response to either the existing character of the area or the future envisioned character for the area.

Policy

30. LLEP establishes certain character provisions with its zone objectives and development standards.

31. Clause 15 of SEPPARH requires a consent authority to take into consideration the Seniors Living Policy: Urban Design Guidelines for Infill Development (2004) (Ex 8). Council does not believe adequate regard has been given to Ex 8 and believes its concerns in regard to tree removal and streetscape character as well as the regrading of the site are supported by the design provisions embodied in Ex 8.

32. Clause 16A of SEPPARH requires a consent authority to take into consideration “whether the design of the development is compatible with the character of the local area”.

33. Part 2.11 of LDCP focuses on Edmondson Park. The area character statement commences as follows:

“1.4 Character Area Statements

As the Edmondson Park Release Area will create a new town centre with large areas of surrounding residential neighbourhoods and village centres. It is important that there is variety, diversity and choice in living, working and recreational environments. There is more to development than land use and density. It is important that the built form, layout, style and public domain reinforce the desired character for each area, and gives an identity and sense of place to different areas within Edmondson Park. The character areas are:

- The Town Centre,

- Village Centres,

- Enterprise Corridor,

- Urban,

- Urban Transition,

- Suburban, and

- Residential Large Lot.

The character areas are loosely tied to the minimum dwelling density maps (LLEP 2008), refer to Figure 5 for the locations of Character Areas.”

34. Character areas are then identified through mapping (LDCP Part 2.11 Figure 5). The whole of the site is identified as within a “suburban” character area on this map, as is the land across Croatia Road to the west; whereas land to both immediate north and south of the site boundaries is shown as “urban transition”. Below I reproduce the character area statements for both suburban and urban transition character areas:

“Suburban (Zone R1, 14dw/Ha)

1. This predominantly low density residential area is characterised by 1 - 2 storey detached and semi-detached homes in a rich landscaped setting. A minimum net residential density of 14 dwellings per hectare is required. Housing typically features verandahs fronting onto the street, overhanging eaves. Lots are typically between 400 and 700sqm.

2. The public and private domain features informal native and non-native planting that requires little watering, and attracts native flora and fauna. Verges in the public streetscape are soft landscaped, containing low level ground cover and multiple tree species spaced 8 – 12m apart.

…

Urban Transition (Zone R1, 17 & 21dw/Ha)

1. The Urban Transition Character Area is a predominantly residential zone that provides a transition between the more urban higher density and the more suburban lower density character areas. Urban Transition reinforces the legibility and structure of Edmondson Park through the framing of the secondary routes, village centres and parkland.

2. It comprises a range of housing to cater for varying household needs including low rise apartments, attached, semi-detached and detached housing. A minimum net residential density of 17 or 21 dwellings per hectare is required. Lots for detached residential dwellings are typically between 250 and 400sqm.

3. Buildings are predominantly 2 storeys, with potential for 3 storeys along parks, adjacent to ‘Urban’ Character Area, and to reinforce corners. Buildings will contain medium setbacks and good landscaping.

4. The public streetscape is formal in arrangement and transitional in character, containing large trees in soft verges spaced 8m apart.”

35. LDCP also includes a section titled “Controls for Residential Development in Suburban areas”, which is said to apply to “land identified in Liverpool LEP 2008 Dwelling Density Map as having a minimum density of 14 Dwellings / Hectare” (LDCP Part 2.11 Section 5.1), wherein the subject site is located. The Section is contextualised with the following background statement (ibid):

“Development within the 14 Dwellings / Hectare area is primarily intended for Dwelling houses, Semi detached dwellings and Attached dwellings. Whilst multi-dwelling housing and residential flat buildings are permitted in the R1 zone, they are not favoured in the 14 dwellings/Hectare area. Refer to controls in the Urban (28dw/Ha) section for multidwelling housing and residential flat buildings.”

36. In this Section and in relation to the topic “Site Planning”, the objectives and controls include the following:

“Objectives

a) To ensure that the dwelling is sensitive to site attributes, such as streetscape character, natural landform, drainage, existing vegetation, land capability, slope, solar access and if relevant, heritage items.

...

Controls

1. The dwelling layout must be designed around the site attributes such as slope, existing vegetation, land capability and/or solar access (See Figure 42 for a site analysis plan).

…”

37. Points of contrast in Part 2.11 of LDCP between Section 5 and Section 4 (titled “Controls for Residential Development Urban Transition areas (17&21 Dwellings/Hectare)” were pointed out by Council. The background statement was as follows:

“Development within the 17 and 21 dwellings/hectare areas are primarily intended for Multi Dwelling Housing, Semi-detached dwellings and Detached dwellings. Residential Flat Buildings are not preferred in the 17 or 21 dwellings/hectare areas (however, if proposed, they are subject to objectives and controls for the urban 28 dwellings/hectare area).”

Evidence

38. The planning experts agreed in oral evidence that the visual catchment of the site comprised the “local area” for the purposes of character analysis.

39. In evidence, Mr Juradowitch indicated that he believed the local character was founded on removing existing vegetation and relying on street tree planting to establish landscape presence in the streetscape and neighbourhood (Ex 1, par 49):

“The character of the locality is one where built form dominates over the natural landscape, with few retained trees and the majority of new tree planting confined to street trees.”

40. Mr Nelson referenced LDCP inconsistencies including ambitions for a “rich landscaped setting” (Ex 1, par 58(c)). He also referenced the Seniors Living Policy and was of the opinion that the proposal had not given due consideration to "the wider range of elements that contribute to neighbourhood character, including topography and landform ... and trees and vegetation in both streets and gardens" (Seniors Living Policy, p 4).

Earthworks

41. There was general agreement that the proposal would involve the regrading of the site almost in its entirety. Council saw this as including excessive cut and fill in light of the policy provisions. There was agreed evidence that the site, somewhat steeper than some other nearby gentler sloping sites, would reasonably be expected to have greater cut and fill than nearby sites.

42. The concern with the proposal in regard to the extent of cut and fill, or lack of responsiveness to natural landform, for me, is most particularly related to its impact on tree retention capabilities. Because I find tree loss a determinative issue there is no need to examine the question of cut and fill in detail.

Consideration

43. I will consider the first two issues, tree loss and area character, together.

44. It is quite clear that the proposal is not at all consistent with the provisions of LDCP in regard to tree retention and related area character ambitions. Above, a series of provisions of the LDCP are reproduced which indicate considerable ambitions that existing trees and native vegetation be considered in design conception and (selectively) retained as integral elements in a process leading to transition of this peri-urban land to a more intense residential use (see the objectives and controls relating to the incorporation of existing trees in landscape design at Part 1 of LDCP reproduced at [16]-[17], and the “site planning” objectives and controls at Part 2.11 of Section 5.1 of LDCP reproduced at [36]). The related outcome goals are concerned with microclimate, visual amenity and biodiversity.

45. It is equally clear that very low priority indeed has been given to such LDCP provisions in the proposal. This is apparent in the evidence on both the procedural aspects and the design outcome itself. In regard to procedure, there was a misalignment in the analysis and documentation which might have otherwise allowed an applicant to understand the significance of site vegetation. That is, the original arboricultural impact assessment (Ex H) made a premature assumption that development would be prioritised over tree retention. This fails the intent of Control 2 of Part 1 cl 3 of LDCP. Little needs to be said about the design outcome itself, in that it is generally accepted that the proposal would clear nearly all the trees, notwithstanding the findings of the experts as to their significance.

46. A central point in the case relates to the interpretation of the use of development control plan provisions in general, and the significance of this proposal’s inconsistency with LDCP in particular. I need to spend a little time on this given what is evident to be a considerable history of the allowance of more or less wholesale clearing of trees, in the recent past, for subdivision and development in the site environs (Ex 1 par 62). The historical aerial photography evidence was particularly elucidating in that regard (Ex 2, Annexure E). I will start with this legal point.

Interpretation of the significance of the proposal’s inconsistency with LDCP

47. In the Applicant’s closing submissions and closing reply submissions (provided, respectively, to the Court on 12 March 2021 and 23 March 2021 and referenced forthwith, again respectively, as ACS and ACRS), the Applicant points to ss 3.42(1) and 4.15(3A) of the EPA Act and certain caselaw. Section 3.42(1) is reproduced below, where I also highlight (by way of italicisation) the points of emphasis raised by the Applicant (ACRS, par 10):

3.42 Purpose and status of development control plans

(1) The principal purpose of a development control plan is to provide guidance on the following matters to the persons proposing to carry out development to which this Part applies and to the consent authority for any such development—

(a) giving effect to the aims of any environmental planning instrument that applies to the development,

(b) facilitating development that is permissible under any such instrument,

(c) achieving the objectives of land zones under any such instrument.

48. In respect to s 3.42(1) of the EPA Act, the Applicant was emphasising LDCP’s function as a guidance document. That is to say, differentiating it from a statutory planning instrument, with in this case LLEP clear in its intent to permit multi housing development on this site. The Applicant also pointed to s 3.42(1)(b) of the EPA Act emphasising the phrase “facilitating development”.

49. In regard to s 4.15(3A) of the EPA Act, the Applicant emphasised subparagraph (b) and the obligation it imposes on a consent authority to be flexible and allow reasonable alternative solutions when there is non-compliance with a development control plan standard relating to an aspect of the development. Section 4.15(3A) was seen to be “remedial or beneficial legislation” (ACS, par 13). In support, the Applicant made reference to the Minister for Planning’s Second Reading Speech to the Environmental Planning and Assessment Amendment Bill 2012 dated 24 October 2012 (‘Minister’s SRS’), which provided for the incorporation of now s 4.15(3A) into the EPA Act. I will return to this later. I reproduce s 4.15(3A) in full below:

(3A) 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.

50. The Applicant also relies on an aspect of a Land and Environment Court planning principle framed by McClellan CJ in Stockland Development Pty Limited v Manly Council (2004) 136 LGRA 254; [2004] NSWLEC 472 at [86]-[87] which was that “a development control plan which has been consistently applied by a Council will be given significantly greater weight than one which has only been selectively applied”.

51. Council (the Respondent) also provided commentary in regard to s 4.15(3A) of the EPA Act in its closing submissions (filed 17 March 2021 and forthwith referenced as RCS). The key point here was in regard to subs (c) to s 4.15(3A). Council put that subs (c) “does not permit the consent authority to consider the provisions by reference to the assessment of past applications” (RCS, par 36). The suggestion was that this would rule out the Applicant’s submissions in regard to historical development applications which had been indicated to have approved considerable clearing of native vegetation.

52. In support of its arguments, Council referenced what it put as the “ordinary meaning of the words” embodied in subs (c) (RCS, par 41), but also referenced caselaw indicating that such provisions need to “be construed having regard to the context and purpose” (CIC Insurance Ltd v Bankstown Football Club Ltd (1995-1997) 187 CLR 384; [1997] HCA 2 at 408 and Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355; [1998] HCA 28 at [78]). In regard to context and purpose, Council then also referenced the Minister’s SRS related to the now provisions at s 4.15(3A) of the EPA Act.

53. Contrasting itself from the Applicant’s position that much be taken from a conclusion that the provisions of s 4.15(3A) of the EPA Act are beneficial and facultative, Council submits that the intention of the provisions, at subs (c) at least, was (RCS, par 40):

“ …to avoid a situation where consent authorities were becoming increasingly reluctant to depart from the guidance of a DCP because of a concern that those decisions might act as a precedent binding future decisionmakers (be it the Council or the Court on an appeal)”.

The submission is that mindful of the Minister’s SRS, both the purpose and ordinary meaning of s 4.15(3A) of the EPA Act would have it that “a DCP provision cannot be considered in connection with the assessment of past applications” (RCS, par 41).

Finding in regard to inconsistency with LDCP provisions

54. Having regard to s 3.42 of the EPA Act, the Applicant correctly gives emphasis to the guidance status of LDCP provisions, with a mind to giving effect to the aims of LLEP and in this case the objectives of the R1 General Residential zone under it. The Applicant also pointed to s 3.42(1)(b), emphasising the phrase “facilitating development” [47]-[48]. I will note here that my own reading of the subsection would not draw me to the conclusion that a principal purpose of a development control plan is to “facilitate (permissible) development” per se. Rather, subs (b) is indicating the principal purpose of a development control plan is to “provide guidance” on the facilitation of permissible development. Or put another way, a development control plan should spell out other more detailed matters involved in the pathway to approval of permissible development. When read in the context of the whole s 3.42, development control plans can be thought of as undertaking the facilitative project of providing particulars which, in this case, lead to the “giving effect to” LLEP’s aims and “achieving” the R1 zone objectives.

55. The pertinent zone objectives, cited at [8], are the first, third and fourth; and might be summarised as seeking to meet housing needs in a low density or low scale setting with high level residential amenity maintained.

56. LLEP’s aims are broader brush, and are reproduced below:

(aa) to protect and promote the use and development of land for arts and cultural activity, including music and other performance arts,

(a) to encourage a range of housing, employment, recreation and services to meet the needs of existing and future residents of Liverpool,

(b) to foster economic, environmental and social well-being so that Liverpool continues to develop as a sustainable and prosperous place to live, work and visit,

(c) to provide community and recreation facilities, maintain suitable amenity and offer a variety of quality lifestyle opportunities to a diverse population,

(d) to strengthen the regional position of the Liverpool city centre as the service and employment centre for Sydney’s south west region,

(e) to concentrate intensive land uses and trip-generating activities in locations most accessible to transport and centres,

(f) to promote the efficient and equitable provision of public services, infrastructure and amenities,

(g) to conserve, protect and enhance the environmental and cultural heritage of Liverpool,

(h) to protect and enhance the natural environment in Liverpool, incorporating ecologically sustainable development,

(i) to minimise risk to the community in areas subject to environmental hazards, particularly flooding and bush fires,

(j) to promote a high standard of urban design that responds appropriately to the existing or desired future character of areas.

57. I note these aims again include that of meeting housing needs, but express wider concerns in regard to prosperity, sustainability and well-being. There is a specific reference (at subcl (j)) to the promotion of “a high standard of urban design that responds appropriately to the existing or desired future character of areas”.

58. Having regard to the provisions of LDCP, as drawn to my attention, there is nothing that I am aware of to suggest other than they provide Council’s attempt to align itself with the provisions of s 3.42 of the EPA Act. That is, facilitating the process of giving effect to LLEP’s aims and achieving the R1 zone objectives.

59. Then I turn to s 4.15(3A) of the EPA Act. Having read the Minister’s SRS, I do agree with the Applicant that the provisions are intended to be “remedial”. Here, I understand the term remedial in the sense that s 4.15(3A) is intended to address instances where the law is not operating as intended. In this case, the Minister indicates the provision is related to unintended consequences of the application development control plans in the evaluation of applications. In turn I agree that the Applicant’s suggestion that s 4.15(3A) should be “construed so as to provide the most complete remedy of the situation within the confines of the actual language employed in it” is correct.

60. Having regard to the appropriateness of beneficial construction, the Applicant is also correct in its suggestion that s 4.15(3A)(b) of the EPA Act can be read as, in part, singly requiring a consent authority be flexible in applying LDCP’s provisions. I do find that there is a problem for the Applicant with regard to the rest s 4.15(3A)(b) but I will come to that below.

61. There is also a difficulty for the Applicant, or at least its expert Mr Juradowitch, in the argument, that significant weight should be given to the fact that there had been departures from the LDCP in the assessment of other nearby development applications, where clearing had been allowed. The point has some almost involuntary resonance, given that questions around the consistency of application of controls are commonly faced by the Court in regard to contraventions of development standards in local environmental plans and the use of cl 4.6 of such plans (see for example Wehbe v Pittwater Council [2007] NSWLEC 827; [2007] 156 LGERA 446 at [47]). However, s 4.15(3A)(c) of the EPA Act provides for a quite different statutory setting in regard to development control plans, and the Minister’s SRS needs to be reviewed in regard to questions of context and purpose of the statutory provision to appreciate this. I quote relevantly below (RCS, par 39):

“I turn now to the important provisions of the bill. Local environmental plans and State environmental planning policies zone land. They contain the principal development standards relating to issues like height and floor space ratio. They also contain broad aims and objectives that seek to guide in general terms how development is to be carried out. Councils have always been able to provide additional guidance—I stress "guidance"—through development control plans. The problem this bill addresses is twofold. First, development control plans have gone from guiding development to being given the same weight, and sometimes seemingly more weight, than the relevant local environmental plans. This follows court decisions that have determined greater weight will be given to plans that are consistently—that is, repeatedly—applied. As a result, councils have become increasingly unwilling to depart from the guidance provided in the development control plan when assessing applications. …

…

The bill provides that where a development application does not comply with a standard, the consent authority must apply the development control plan flexibly and allow alternative solutions to address those aspects of the development. Under the new provisions the consent authority may consider the provisions of the development control plans only in connection with the assessment of the particular application and is not to have regard to how the provisions in the development control plans have been applied previously or might be applied in the future…”

62. I agree with Council that the plain reading of s 4.15(3A)(c) of the EPA Act is the correct one. This is clear from the Minister’s words that consent authorities may only consider the provisions of the development control plans “in connection with the assessment of the particular application and (are) not to have regard to how the provisions in the development control plans have been applied previously or might be applied in the future” (as quoted in the paragraph above). There might be a question as to whether a beneficial and facultative interpretation of s 4.15(3A)(c) should go one way, but not the other. The Minister’s SRS seems to be highlighting a concern that applications were being refused on the basis of precedent, and inappropriately so. The distinct setting might be thought to be that where refusal determinations were coming about unreasonably, and that it is only this (inappropriate refusals) that was sought to be “remedied”. But it seems to me that it would be unreasonable to take the view that the “actual language employed at s 4.15(3A)(c)” could be read that way. If that was the intention then the provision would have been drafted in a different manner.

63. I would conclude in regard to this interpretation question that I need to recognise development control plans as guidelines only and to be flexible in applying their provisions in any event. So the Applicant is quite correct in noting that s 4.15(3A)(b) of the EPA Act “does not require compliance with the objects of the relevant standards” (ACS par 19). But there is nothing I have seen or heard in regard to this matter that would suggest other than it is appropriate for me to have regard to LDCP controls as a focal point of the decision making process (Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 at [75]).

Flexible application of LDCP provisions

64. The general clearing of the site’s significant trees would bring a high level of non-compliance with LDCP provisions relating to “Landscaping and Incorporation of Existing Trees” (Part 1 cl 3). While I accept the Applicant’s submissions that some clause objectives would be achieved in terms of replanting (“174 trees to replace the current 75 trees on site”, ACS par 26), there would be no reasonable reading that could say that the objectives to Part 1 cl 3 of LDCP would be achieved here notwithstanding the application’s non-compliance with controls. That is there is no particular relief for the Applicant under the provisions of s 4.15(3A)(b) of the EPA Act, noting the general requirement for flexible application of such provisions which I consider below.

65. Tree clearing, to the extent proposed here, and the general insensitivity to site attributes displayed in the proposal, are at odds with certain provisions of cl 5.2 to Part 2.11 of LDCP. These provisions sit within the specific part of LDCP concerned with Edmondson Park and have been called up by Council in regard to its contentions relating to responsiveness to intended character.

66. Objective (a) to cl 5.2 of LDCP is not achieved (see [36], but briefly here the call is for dwellings to be “sensitive to site attributes, such as streetscape character, natural landform, drainage, existing vegetation, land capability, slope …”), nor is the related control achieved (ibid, “…dwelling layout must be designed around the site attributes such as slope, existing vegetation …”). Again there is no particular relief under s 4.15(3A)(b) of the EPA Act. I consider the issue of flexible application below.

67. I would say here that I do not agree with the Applicant that the particular reference in cl 5.1 of LDCP, that multi dwelling housing “(refer) to controls in the Urban (28dw/ha) section”, might excuse a multi dwelling housing development located in the 14 dwellings/ha area from all of the controls in cl 5. In my view the “site planning” objectives and controls naturally associate with the 14 dwellings/ha character area described in cl 5.2.

68. When I have a mind to the need for flexibility, but with LDCP as a focal point all the same, I am looking for reasons why the proposal might be acceptable, mindful of the larger scheme of things, including the aims of LLEP and the zone objectives. I have earlier indicated that these aims and objectives include those of meeting housing needs, but also have regard to prosperity, sustainability and well-being, and a high standard of urban design [57]. As an aside, I have indicated that LDCP brings these points down a notch by providing for controls seeking outcomes in relation to microclimate, biodiversity and local amenity [46].

64. Three arguments of the Applicant warrant mention here, all relate to oral evidence from Mr Juradowitch. First is the point of Mr Juradowitch that the local character was that of removing existing trees and replanting new street trees, with which the proposal was aligned. This seems to me a fair conclusion based on the site inspection and aerial photographic evidence.

65. Second was Mr Juradowitch’s oral evidence that it was not appropriate to retain trees in this setting for safety reasons. That is that as they mature trees drop branches, potentially causing harm to people or property. Mindful of this, Mr Juradowitch believed it not “possible” to retain the trees in this instance (reference LDCP Part 1, cl 3(c) – see [16]). Mr Juradowitch called on his long term experience in subdivision here. However, I prefer Mr Nelson’s oral evidence that, in his experience, it has regularly been possible to retain significant trees in multi dwelling housing development. Mr Juradowitch was unable to answer a question as to why this matter was not raised by the arborist experts and, more generally, I note that in development applications before the Court, today at least, it is most regular practice to provide for the retention of significant trees in the vicinity of quite intense development with suitable protection zones. It is reasonable to accept a baseline position that some trees are able to be retained in development sites with appropriate attention.

66. Third is Mr Juradowitch’s oral evidence that it was the economics that was driving the need for tree clearing. That is, the rich landscape setting sought by Council was not happening due to the costs associated with land development and the objective of providing housing at reasonable price points (“meeting housing needs”). The problem with this argument is that it leads to a placing of the “meeting housing needs” argument above the other LLEP aims and zone objectives, something there is no evidence in support of.

67. Apart from the general benefits sought to be achieved relating to microclimate, biodiversity and local amenity [44], the departures from LDCP’s provisions in regard to tree retention and character are unreasonable in this case for the following two reasons: (1) the fact of the “skylining” of certain of the site trees when viewed from public and private land to the west (our viewing point at Brennan Way as one example) - here I accept the opinions on the importance of tree retention for this reason from Council’s experts and that the relevant trees included Trees 8, 20, 22 and 23, and (2) the opportunities to have some canopy trees remaining to filter views of the electricity infrastructure (staunchions and cables).

68. The proposal is also misaligned with cl 15 of SEPPARH and in particular the design provisions embodied in Ex 8, in regard to both the general benefits outlined above (microclimate, biodiversity and local amenity) and these two specific matters relating to visual amenity benefits directly associated with tree retention.

69. I am also generally persuaded by Mr Nelson’s opinion that it is reasonable to expect that design for multi dwelling house, and the more flexible capacity to provide for dwelling placement, access and services in this form of development, provides an enhanced capacity to retain some of the more important tree groups on the site.

Conclusion

75. I agree with Council that the presence of high quality mature trees should have been integrated into the planning for the proposal, rather than ignored. This failing is determinative in this instance. Tree retention is an aspiration in LDCP and to this extent this is also a failing in regard to character ambitions for the site environs.

76. In this case I do not have to consider in detail the contention relating to earthworks. Suffice to say that there is nothing in the Applicant’s case in regard to this contention that otherwise provides support for the proposal’s failings in regard to tree retention and character ambitions.

77. For the reasons outlined above it is not appropriate to grant development consent to the application.

78. The Court orders:

1. The appeal is dismissed.

2. DA 828/2019 for a multi dwelling housing development at 90 Croatia Avenue Edmondson Park is refused.

3. The exhibits are returned with the exception of exhibits 7, 8, 10, 11, A-E, O-S.

…………………………

P Walsh

Commissioner of the Court

Decision last updated: 16 April 2021