Archiworks Architects v Willoughby City Council

[2005] NSWLEC 696

Land and Environment Court

of New South Wales

CITATION:

Archiworks Architects v Willoughby City Council [2005] NSWLEC 696

PARTIES:

APPLICANT
Archiworks Architects Pty Limited

RESPONDENT
Willoughby City Council

FILE NUMBER(S):

10692 of 2005

CORAM:

Brown C

KEY ISSUES:

Development Application :- construction of additional to create a dual occupancy - bushfire risk - bulk/scale - impact on bushland

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Willoughby Local Environmental Plan 1995

DATES OF HEARING:

21-22/11/2005

EX TEMPORE JUDGMENT DATE:

11/22/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Clay, barrister

RESPONDENT
Mr D. Miller, barrister
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

22 November 2005

10692 of 2005 Archiworks Architects Pty Limited v Willoughby City Council

JUDGMENT

1 This is an appeal against the refusal by Willoughby City Council (the council) of DA2004/28D for the erection of an additional dwelling to create a dual occupancy development at 37 Coolaroo Road, Lane Cove (the site).

2 The site comprises Lot 43 in DP14213. The irregularly shaped lot has a site area of 1090.5 sq m with a 25.23 m frontage to Coolaroo Road and a length of 54.8 m to Greenlands Road.

3 It is located on the north eastern corner of Coolaroo Road and Greenlands Road with bushland and a creek running along the rear of the property. Greenlands Road is unformed and adjoins a public footway that leads into the bushland reserve. The area is characterised by detached single and two storey 1950s and 1960s dwelling with several examples of infill residential development of later styles and rendering of face brick dwellings.

4 The proposed development is to erect a single storey dwelling in addition to and detached from the dwelling already erected on the allotment. The new dwelling will incorporate a living room, dining room, family room, kitchen, laundry, two bedrooms and two bathrooms.

5 The plan identifies a future subdivision line that results in Lot 1 having an area of approximately 524 sq m, excluding the access handle and Lot 2 having an area of approximately 542.2 sq m. The proposed floor space ratio for Lot 1 is 0.28: 1 and the FSR for Lot 2 is 0.23: 1.

6 The site is within the Residential “A2” Scenic Protection Zone under Willoughby Local Environmental Plan 1995 (the LEP). Clause 13 provides requirements for Amenity, cl 17 provides requirements for the Scenic Protection Areas and cll 27 to 34 provide requirements for dual occupancy development.

7 The site is also within a prescribed bushfire prone area. Section 79BA of the Environmental Planning and Assessment Act states development consent on bushfire prone land cannot be granted unless the consent authority is satisfied that the development conforms to the relevant specifications and requirements of Planning for Bushland Protection.

8 Development Control Plan 16 - Dwelling Houses, Dual Occupancy and Boarding Houses in Residential Zones (DCP 16) also applies, although there was no dispute that the proposed dwelling satisfied the numerical requirements of DCP 16.

9 State Environmental Planning Policy No. 19 - Bushland in Urban Areas also applies.

10 The council filed a Statement of Issues containing 9 issues and a number of sub issues. The issues relating to parking (Issue 3), height (Issue 4), engineering design (Issues 6, 7 and 8) and insufficient information (Issue 9) were not pressed by the council or addressed through the imposition of conditions or amended plans.

11 The remaining issues can be grouped into the following areas:

1. whether the proposal represents an unacceptable risk from bushfire (Issue 1) ,
2. whether the bulk of the new dwelling is acceptable (Issue 4) ,
3. whether the proposal will have an unacceptable impact on the adjacent bushland open space (Issue 2).

12 The parties agreed to the appointment of Ms Susan Hobley as the Court-appointed expert on landscape management matters.

13 Mr Ross Free, a bushfire consultant, Mr Neil Kennan a town planner and Ms Cheryl McKay an arboriculturist provided further evidence for the applicant. Ms Danielle Simpson, a development control officer with the Rural Fire Service and Ms Sarah Tesner a town planner employed by the council provided further evidence for the council.

14 As the hearing progressed, the significant issue in the proceedings related to whether the proposed development represents an unacceptable bushfire risk.

15 Appendix 2 of Table A2.4 of Planning for Bushland Protection identifies the minimum specification for residential purposes in bushfire prone areas impacted by Vegetation Group 3 as requiring a 20 m Asset Protection Zone (APZ) from the rear boundary. Approximately 50% of the proposed dwelling is located within the 20 m APZ with the dwelling setback a minimum 13 m from the rear boundary.

16 Mr Free considered that the proposed minimum APZ of approximately 13 m to be satisfactory subject to the erection of 1.8 m high radiant heat barrier along the rear boundary and the use of Level 3 construction for the dwelling. Ms Simpson maintained that the 20 m APZ should be provided in accordance with Planning for Bushland Protection. She stated that she does not consider the proposal to fall within cl 4.6 relating to Infill Development because the proposal will place additional people in a bushfire risk situation. She distinguishes the erection of the dual occupancy development to a situation where the site was undeveloped and an application was made for a single residential dwelling.

17 In considering the competing evidence I accept the evidence of Ms Simpson for a number of reasons. Importantly, the requirements in s 79BA requires the Court to be satisfied that the proposal conforms to the relevant specification in requirements of Planning for Bushland Protection, otherwise consent cannot be granted. It is a higher and more onerous test than that proposed by s 79C where it is only necessary that consideration be given to a range of matters in the assessment of a development application.

18 Ms Simpson’s interpretation of the Infill Development requirements in Planning for Bushland Protection was not accepted by Mr Free. While the rationale of Ms Simpson’s approach has some merit, it is not particularly clear from a reading of cl 4.6. The clarification of this section would be clearly helpful for the range of people involved in using this part of Planning for Bushland Protection. In any event the clause supports Ms Simpson’s approach and goes on to state:

“Reliance on construction standards alone will not be adequate to provide appropriate levels of safety for the development and people accessing, egressing the development during a bushfire. Separation of vegetation from development is considered crucial to meeting performance criteria for protection of buildings built in fire prone areas .

19 This approach is reiterated in cl 5.1.1.

20 The use of Level 3 construction is also questionable when considered against the requirements in cl 5.3 where it states that construction should not proceed where the building has been identified as being at “unacceptable risk’”. In this case the building is deemed to be at “unacceptable risk’” as it is within a “flame zone” based on the assessment in Table A3.3 of Planning for Bushland Protection.

21 I also accept Miss Simpson’s evidence on the unsuitability of a radiant heat barrier to absorb and/or deflect radiant energy that would otherwise be absorbed by a building surface.

22 Clause 6.3 of Planning for Bushland Protection states that the use of radiant heat barriers have a major limitation in that they are less effective for forest and woodland situations or Vegetation Groups 1 and 2 where flame heights can be anticipated to be larger than grasslands. In this case the site is Vegetation Group 3, however the classification is based on the size of the remnant forest area rather than the type of forest, which falls within Vegetation Groups 1 and 2. Even accepting that the limited remnant forest area would likely limit the potential for canopy fires, the use of a radiant heat barrier is questionable based on the Vegetation Groups 1 and 2 that adjoin the site.

23 For the previously mentioned reasons the appeal must fail on the basis that the Court is not satisfied that the proposal conforms to the relevant specification and requirements of Planning for Bushland Protection. Even accepting that some variation to the specification and requirements of Planning for Bushland Protection is possible, I do not accept that Mr Free make out a sufficient case for the variation proposed.

24 As a fallback position the applicant asked the Court to consider the use of the adjoining public reserve to achieve the 20 m APZ. The use of the area controlled by a Plan of Management was acceptable to Miss Simpson.

25 In considering the alternate proposal, I am not satisfied that it is a viable option for a number of reasons. Planning for Bushland Protection addresses the approach in some detail in cl 4.2 and states that:

“Bushfire protection measures that are essential to a development must occur on the site of the proposed development unless the most exceptional circumstances apply”.

26 I do not accept that any exceptional circumstances apply in this case. There has been a long history of matters that have come before the Court and the principles set out in cl 4.2 has been confirmed on a number of occasions. Examples of these cases are set out within the clause.

27 Additionally, no evidence was provided to confirm that this was acceptable to the council. From the evidence produced on the ongoing management of Coolaroo Reserve, it would appear that the use of the area as an APZ would be inconsistent with the vegetation management envisaged by Action Plan 16.

28 For these reasons I see no benefit in agreeing to the applicant’s request for an adjournment to further pursue this approach.

29 For completeness I will briefly deal with the other remaining issues. The town planning issues were largely addressed through the amended plans that provided a dwelling of complying height, although the issue of bulk was still pressed by the council. With the benefit of the site view and the amended plans I accept the proposal is satisfactory in relation to bulk and scale.

30 The landscape relationship with the adjoining reserve was addressed on site with details of the proposed tree removal and pruning. There was agreement that a landscape plan could be produced that would achieve an acceptable design outcome. I accept this conclusion.

31 For the preceding reasons the orders of the Court are:

1. The appeal is dismissed.
2. DA2004/28D for the erection of an additional dwelling to create a dual occupancy development at 37 Coolaroo Road is refused.
3. The exhibits are returned.

___________________

G T Brown
Commissioner of the Court
ljr