Alan G Turner and Associates v Hornsby Shire Council

[2006] NSWLEC 94

Land and Environment Court

of New South Wales

CITATION:	Alan G Turner & Associates v Hornsby Shire Council [2006] NSWLEC 94
PARTIES:	APPLICANT Alan G Turner & Associates RESPONDENT Hornsby Shire Council
FILE NUMBER(S):	11042 of 2005
CORAM:	Moore C
KEY ISSUES:	Development Application - Subdivision :- Retention of significant trees
LEGISLATION CITED:	Subdivision Development Control Plan
DATES OF HEARING:	9 February 2006
EX TEMPORE JUDGMENT DATE:	02/09/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr B Hones, solicitor Hones Lawyers RESPONDENT Mr T Pickup, solicitor Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

9 February 2006

11042 of 2005 Alan G Turner & Associates v Hornsby Shire Council

JUDGMENT

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Hornsby Shire Council (the council) of Development Application 303/2004 for the Torrens Title subdivision of one allotment into two allotments and the development of an existing shed and carport at 27 Cardinal Avenue, Beecroft (the site) being Lot 17 DP 21629.

2 I had the opportunity to inspect the site in company with the legal representatives of the parties; the Court-appointed planning and arborist experts and ecological experts advising both the council and the applicant. I had the opportunity to hear further evidence in Court from the Court-appointed arborist and from the ecological experts giving evidence on behalf of the applicant and the council.

3 I also had the opportunity, during the course of the inspection, to hear informal evidence from a number of the residents relating to their concerns and to inspect both the site and to view back into the site from a number of the surrounding properties.

4 During the course of the hearing, the applicant has sought and, not being opposed by the council, been granted leave to amend the proposed plan of subdivision in two significant respects.

5 The first, which arose from a matter put to the parties on the site, splays the driveway at its western end accessing the proposed rear allotment in a fashion which will marginally detract from the available private open space for the front dwelling but will have the effect of removing the driveway sufficiently from a Sydney Bluegum, a melaleuca and a casuarina so that those trees, which had been identified in the tree survey as trees 4, 5 and 6 and which had been proposed for removal, could be retained.

6 As a consequence of the evidence given by the expert witnesses and a sketch drawn by Mr Draper, the Court-appointed arborist, the applicant also sought and was granted leave to amend the indicative building footprint for the site from one which was rectangular and of some 260 sq m (exceeding by 60 sq m the minimum required by the council’s Subdivision Development Control Plan [the DCP]) to one of some 230 sq m in an "L shape" with a modest extension to the south but with a significant withdrawing from the east. This withdrawal from the east permits the retention of tree 8, one of the Sydney Bluegums on the site of some significant degree of maturity.

7 These modifications were raised as the retention of Sydney Bluegums on the site was the dominant ecological and arboreal issue pressed by the council in these proceedings.

8 The evidence given by Mr Slaven, the council’s environmental scientist, on the ecological issues, was that if the proposal were modified so that the only Bluegum to be removed were to be tree 10 such single removal, coupled with the proposed planting of a new Sydney Bluegum at the street frontage area of the front allotment when also coupled with the additional plantings (specified by Mr Draper) of turpentines and casuarinas which would provide a degree of addition to the middle storey canopy on the site, these modifications rendered the proposal acceptable.

9 To that mere acceptability is added the value of a further proposal put to and accepted by the applicant for the planting of an additional turpentine in the rear private open space of the front allotment.

10 This now means that there will be no net loss of Sydney Bluegums as a result of the application (although I accept that there will be a considerable period of time, probably beyond the lifetime of any of the participants in the proceedings, before the new Sydney Bluegum reaches maturity) but added to that there will be a significant degree of enhancement to the native mid canopy and understorey species on the site.

11 For that reason I am satisfied, on those issues, that the amended proposal, subject to the conditions reflecting that the proposed trees (including the additional turpentine) are required to be planted prior to the release of the linen plan, is rendered acceptable.

12 There were, however, a number of other issues which I am obliged to consider pursuant to s 79C of the Act arising out of the residents’ submissions that were made with respect to the proposal.

13 The first of those is a submission made by Mr Smith, the owner and occupier of the adjacent premises to the south (being 25 Cardinal Avenue), concerning tree 2 which is a significantly sized eucalypt located immediately adjacent to the driveway at the entrance to the property, which driveway will become the driveway to the rear allotment.

14 Mr Smith, alone in these proceedings, contended for a requirement for the removal of that tree. Mr Draper’s evidence is that there is no arborological reason for its removal and that it can be retained subject to a number of conditions relating to construction activities associated with the driveway.

15 The council does not in any way suggest that it would be appropriate for that tree to be removed.

16 Whilst I understand Mr Smith’s concerns, I am satisfied that they do not provide any basis for requirement for removal of the tree. It would, however, be prudent if the conditions required, as part of the removal of dead wood from the significant eucalypts on the site, that the applicant be required to remove any significant dead wood elements from tree 2 as well as from the “to be retained” Bluegums at the rear of the site.

17 I also considered the question of whether or not it would be appropriate to require a minor deviation to the driveway at the front of the house. Mr Draper’s evidence was that there was no arborological reason for that to occur whilst Mr Moody’s evidence, as the court appointed planner, was that there might be some minor merit in doing so to remove the gun barrel treatment to the drive. I noted, from the walk around the block, that most, if not all, of the driveways in the immediate vicinity are of a straight line presentation and it seemed to me that no significant benefit was to be obtained by requiring modification to the driveway at the front.

18 A matter was raised by the Beecroft Cheltenham Civic Trust concerning the amenity of the residents of the dwelling to be retained on the front allotment as a consequence of the proximity of the driveway to the wall of that dwelling. Such concern is consistent with the provisions of the DCP.

19 I asked Mr Moody, on site, whether he considered that there would be an adverse impact on the occupants of the front house so as to warrant refusal. It was his evidence, based on a maximum of ten vehicle movements per day up and down the driveway, that the impact on the amenity of that residence would not be sufficient as to warrant refusal of the application. Having viewed the neighbourhood and considered that evidence I am satisfied that that issue does not warrant either modification or refusal of the application.

20 I should turn, further, to a number of matters of detail which are raised as objections in these proceedings but which, for the reasons which follow, it is not appropriate for me to consider as they are properly matters that will require to be considered by the council in the light of any development application for the construction of a dwelling within the identified dwelling footprint.

21 In the first of those concerns expressed by Mr and Mrs Morris as to drainage from proposed lot 1 to their property, which is located on a battleaxe allotment immediately to the south of the proposed building footprint.

22 I am satisfied, on the basis of the drainage plans provided by the applicant coupled with the information I have that the council considers those acceptable and does not press any issue with respect to them, that the roof water from any dwelling constructed on the proposed dwelling footprint is capable of being discharged to the street stormwater drainage in Cardinal Avenue.

23 As to the question of whether there will be any further impact on either the Morris property, the Madison property, or the Braddock property as a consequence of external hard surface areas not forming part of the roof, that is not a matter which it is appropriate for me to consider in these proceedings as it will require consideration of an individual and detailed application for the construction of such structures and drainage arrangements for them.

24 It is also a matter which those persons will have the opportunity to have considered by the council and will have the opportunity to make their own submissions about at the time any application is made for the erection of a dwelling.

25 A similar position prevails with respect to Mr and Mrs Morris’ concerns about overlooking of their bedroom at the first floor and the issue of floor levels in the proposed dwelling on the identified building footprint. Those are matters that would require consideration at the development application stage.

26 I do, however, note in these proceedings that I was obliged to have regard to the separation between the edge of the building footprint on proposed lot 1 and the Morris residence.

27 It was Mr Moody’s evidence that that separation conformed with the requirements of AMCORD for separation of residences in residential areas. It would also seem to me that, to the extent that there might be concerns, the questions of floor level and the questions of landscaping, particularly plantings along the southern boundary of the site and the western boundary of the site as it faces the Madison property, are matters to be dealt with at the development application stage.

28 The building footprint should be protected by a public positive covenant in favour of the council and that was not opposed by the applicant. The conditions are so to provide for that in the usual form so that the applicant would provide a draft of that covenant for settlement with the council prior to release of the linen plan. As a consequence, I am satisfied that, on the basis of the amended application:

1. The appeal will be upheld;
2. Development Application 303/2004 will be determined by the granting of development consent subject to revised conditions that will need to be settled between the parties and the filing of a revised plan of subdivision reflecting the amendments contained in exhibits C and G; and
3. Exhibits A, B, C, F and G will be retained but all other exhibits may be returned.

Tim Moore
Commissioner of the Court