Alafaci v Hurstville City Council

[2009] NSWLEC 1359

Land and Environment Court

of New South Wales

CITATION:

Alafaci v Hurstville City Council [2009] NSWLEC 1359

PARTIES:

APPLICANT
Anthony Alafaci

RESPONDEN
Hurstville City Council

FILE NUMBER(S):

10373 of 2009

CORAM:

Tuor C

KEY ISSUES:

DEVELOPMENT APPLICATION :- construct a dwelling with a swimming pool
impact on significant tree

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hurstville Local Environmental Plan 1994
Greater Metropolitan Regional Environmental Plan 2 - Georges River Catchment
Draft Greater Metropolitan Regional Environmental Plan 2 - Georges River Catchment

DATES OF HEARING:

24 September 2009

EX TEMPORE JUDGMENT DATE:

24 September 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Staunton, barrister
Solicitors
Philip Gengos & Co

RESPONDENT
Mr P Rigg, solicitor
of Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

24 September 2009

10373 of 2009 Alafaci v Hurstville City Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

1 This is an appeal against the refusal by Hurstville City Council (council) of a development application (07/DA-420) under the Environmental Planning and Assessment Act 1979 to construct a part 2, part 3-storey dwelling with a swimming pool at Lot 3/37 Woodlands Avenue, Lugarno.

2 At the commencement of the hearing the key issues between the parties were whether:

(a) the design of the development will ensure the retention of a large Angophora costata tree (Sydney Red Gum);
(b) the building footprint is too large and the landscaped open space is too small;
(c) the building height and external wall height is acceptable; and
(d) the side boundary setbacks are adequate.

The site and its context

3 The site is irregular in shape with an area of 1,279 sqm. It is burdened by restrictions on title for services, access and drainage. Excluding these restrictions, the developable area of the site is about 783 sqm. The width of the site ranges from 11 to 18m with a length of about 116m. It has a cross-fall of 12m from the north-east corner to the south-east corner. The site contains a number of rock outcrops and trees, including the Sydney Red Gum, which is located on the eastern boundary of the site.

4 The site is part of a recent 11 lot subdivision. Adjoining the site to the west is a road known as Coachwood Place, which provides the main vehicular access into and out of the subdivision. Adjoining the site to the east is 1 Coachwood Place, known as Lot 2/37 Woodlands Avenue, which contains a part 2 and part 3-storey dwelling house with terraced gardens. Adjoining to the south are other existing dwelling houses, which form part of the residential subdivision. To the north of the site are two storey dwelling houses, being 8 Coachwood Place and 45 Woodlands Avenue.

Planning controls

5 The site is zoned Residential 2 under Hurstville Local Environmental Plan 1994 (LEP 1994). The development is permissible with consent.

6 Greater Metropolitan Regional Environmental Plan 2 - Georges River Catchment and Draft Greater Metropolitan Regional Environmental Plan 2 - Georges River Catchment apply to the site, however, no issues were raised regarding compliance with these instruments.

7 Hurstville Development Control Plan 1 (DCP 1) is also relevant, including s 5.4 - single dwelling houses, s 3.2 - car parking, s 4.3 - outbuildings and s 5.9 - swimming pools.

Evidence

8 The Court visited the site and heard evidence from residents whose principal concerns were the likely impact of the proposal on the Sydney Red Gum and the ability to enforce conditions of consent to ensure the ongoing health and vitality of the tree.

9 The Court heard arboricultural evidence from Mr P Castor, for the council and Mr D Ford, for the applicant. Mr T Moody, for the council and Mr G Goodyear, for the applicant provided planning evidence. These experts recommended amendments to the plans to increase the landscaped area of the proposal and changes to the location of the pool and deck design and the floor level of the utilities area to reduce the impact of the proposal on the Sydney Red Gum. The experts also recommended the retention of two other trees (trees 6 and 7), and suggested further changes to the design to ensure the retention of these trees.

10 The changes recommended by the experts have been incorporated into amended plans. As these changes reduce the impact of the development they were not required to be notified in accordance with DCP 1. The objectors were provided with copies of the amended plans and made further submissions reiterating their concerns about the retention of the Sydney Red Gum and compliance with conditions.

11 The Court must assume that there will be compliance with conditions of consent and, in the absence of alternate expert arboricultural evidence to the contrary, that the Sydney Red Gum can be retained in accordance with the recommendations of Mr Castor and Mr Ford.

12 On the basis of the amended plans, the planning experts are satisfied that the amended plans address their concerns and have concluded that:

the amended plans represent a good planning outcome for the site and a reasonable development when assessed against the relevant controls and subject to appropriate conditions.

13 The planning experts recommended two conditions in relation to privacy, which have been incorporated into the proposed conditions of consent.

14 The planners considered that the amended proposal complies with the requirement for landscape open space in DCP 1, if based on the developable area of the site. The deep soil area complies in relation to both the overall area of the site and the developable area of the site. The proposal also complies with the side setback controls in DCP 1. There is a minor non-compliance with the height control in DCP 1, however, the planners consider this to be acceptable as it results from the slope of the site and the majority of the building is below the height control and the non-compliance does not result in adverse impacts.

15 The arborists also agree that the amended plans address their concerns and that, subject to appropriate conditions, the Sydney Red Gum tree could be retained.

16 I accept the evidence of these experts and that the issues between the parties are therefore resolved.

17 I note the comments of the residents and the planners that careful attention is required to the implementation of the conditions approval to provide ongoing management of the site and compliance during construction. I emphasise the importance of the applicant’s responsibility to implement the conditions of consent and of council to enforce and take action against any breaches to ensure the ongoing health and vitality of the Sydney Red Gum tree.

18 The Orders of the Court are therefore;

1. The appeal is upheld.
2. The development application (07/DA-420) to construct a part 2/part 3 storey dwelling with a swimming pool at Lot 3/37 Woodlands Avenue, Lugarno, is approved subject to the conditions in Annexure A.
3. The exhibits, except exhibits 4, A, B, M, N and O, may be returned.

4. Pursuant to s.97B of the Environmental Planning and Assessment Act 1979 the applicant is ordered to pay the costs of the respondent council that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of this appeal which are agreed in the amount of $20,000.00.

___________________

Annelise Tuor
Commissioner of the Court
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