Carr, L and J v Lane Cove Council

[2007] NSWLEC 196

Land and Environment Court

of New South Wales

CITATION:	Carr, L and J v Lane Cove Council [2007] NSWLEC 196
PARTIES:	APPLICANT: Leon and Jennifer Carr RESPONDENT: Lane Cove Council
FILE NUMBER(S):	10770 of 2006
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Bushland impacts
LEGISLATION CITED:	Lane Cove Local Environmental Plan 1987, (LCLEP) Environmental Planning and Assessment Act 1979, ss 79C and 97
DATES OF HEARING:	29/03/2007 and 30/03/2007
DATE OF JUDGMENT:	13 April 2007
LEGAL REPRESENTATIVES:	APPLICANT: Mr I Hemmings, barrister, with Ms D Malnersic, solicitor, instructed by Mr N O’Shae, solicitor SOLICITORS: NRG Legal RESPONDENT: Mr S N Griffiths, solicitor, with Ms R Vickers, solicitor SOLICITORS: Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

13 April 2007

10770 of 2006 – Leon and Jennifer Carr v Lane Cove Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Lane Cove Council (the council) to refuse a development application to alter and add to an existing dwelling house and to construct a gym, laundry, swimming pool, deck and carpark with four car spaces at No 24E Upper Cliff Road, Northwood, being Lot 7, DP 96768 and the eastern part of No 26 Upper Cliff Road being part of Lot 106, DP 284499. The applicant also seeks to subdivide and consolidate the land.

2 I visited the land in company with the parties on the morning of the first day of the hearing. I heard from local residents on site.

3 I have concluded that the application should fail as a result of the adverse impact of the proposal on bushland.

The land

4 The land is situated on the northeastern side of the north south section of Upper Cliff Road at Northwood. The land is irregular in shape, with an area of 610.78m2.

5 The land-locked narrow building site near the front boundary is accessed by way of right-of-carriageway linking with Upper Cliff Road.

6 There is a steep fall of about 15m from the right of carriageway to the rear boundary down to the Gore Creek Reserve at the rear or eastern side of the land. Bushland and rock outcrops predominate. Erected on the land is a two-storey dwelling house with a double carport adjacent to the driveway that serves the six dwelling houses further to the north also accessed via the right-of-carriageway that runs off a slip road below the level of Upper Cliff Road. The land has a drainage easement along the southern boundary of the land near the common boundary with No 24F Upper Cliff Road.

7 The land proposed to be annexed to No 24E Upper Cliff Road is the eastern down slope garden section of No 26 Upper Cliff Road. The existing two-storey dwelling house at No 26 Upper Cliff Road will be retained and the proposed alterations and additions to No 24E would be constructed on the presently undeveloped portion of the neighbouring property.

Relevant planning controls

Lane Cove Local Environmental Plan 1987, (LCLEP)

8 Under the provisions of the LCLEP land is partly zoned Environmental Protection Area and partly residential 2(A1) and the proposal is permissible with consent.

9 The objectives of zone residential 2(A1) under LCLEP are:

(a) to retain and where appropriate improve the existing residential amenity of a detached single family dwelling area, and
(b) to provide limited single storey villa home development whilst maintaining the existing street character and encouraging development that is in sympathy with existing neighbourhoods in the following respects:

(i) setbacks,

(ii) building mass and style,

(iii) views,

(iv) dwelling colour,

(v) landscaping,

(vi) the provision of off-street parking.

10 That part of the land designated Environmental Protection is subject to cl 11 of the LCLEP. Under cl 11(3) the “…council shall not consent to the carrying out of development on or with respect to land to which this clause applies where, in the opinion of the Council, the vegetation, topography or distinctive features of that land are likely to be adversely affected thereby.”

Other planning controls

11 Bushland Development Control No. 1 (DCP1) control of development adjacent to bushland, applies to the land.

12 State Environmental Planning Policy No 19 - Bushland in Urban Area, (SEPP19) applies.

13 The Rural Fires Act 1997, Section 100B requires a Rural Fire Safety Authority.

The proposal and its history

14 Development application No D46/05 was lodged with the respondent council in March 2005 to alter and add to the existing building and to construct a gym, laundry, swimming pool, deck and carpark with four car spaces, on the land. The applicant also seeks to subdivide and consolidate into one lot the existing lot and part of the rear of the neighbouring lot.

Notification
15 In March 2005 the application was notified to nearby owners and occupants and the council received five submissions. These included comment:
· Lane Cove Bushland and Conservation Society: “…As a majority of the development is within the Environmental Protection Zone... it should be refused.” However if approved, [the application] should be subject to conditions. eg recycling of grey water, retention of trees and bush fire considerations.
· No 24A Upper Cliff Road: Strong support for the proposal particularly in relation to the provision of off-street parking.
· No 28 Upper Cliff Road: Concerns relating to the approved proposal being within Environmental Protection Zone, preservation of trees, extra traffic within the subdivision, impact on bushland and effect of construction activity.
· No 24F Upper Cliff Road: Increased parking and congestion to the right of carriageway, increase stress to the infrastructure and foundations on the land, over building on the land, disturbing the existing flora and fauna and validity of extension of right of carriage way to the consolidated allotment.
· No 24D Upper Cliff Road: Clarification as to the extent of the alterations and additions to the dwelling, resultant increase in vehicle traffic to carrying out building work, engineer’s report on suspended roadway to carry construction vehicles conditions which should be attached to any approval and the validity of extension of right of carriageway to the consolidated allotment.

16 On 17 May 2005 the applicant provided additional information including a plan showing the proposed subdivision of the land.

17 On 16 June 2005 the council requested further information of the applicant and on 24 June 2005 that further information was received.

The council’s decision

18 By notice dated 30 August 2005 the council refused the application for the following reasons:

1. Pursuant to Section 79C(1)(a)(i) of the

Environmental Planning and Assessment Act 1979, as amended, the proposal as submitted is contrary to the provisions of Lane Cove Local Environmental Plan 1987, as amended, Development Control Plan No 1 in that the proposed building works are located within an Environmental Protection Area and adjoining 10 metre buffer area, which would not:

A. protect adjoining land, both public and private, from altering moisture conditions, nutrient levels and soil movement, and
B. retain and protect natural topographical features.
2. Pursuant to Section 79C(1)(a)(i) of the

Environmental Planning and Assessment Act 1979, as amended, the proposal as submitted is contrary to the provisions of State Environmental Planning Policy No 19, in that Council is of the view that the proposal will have a detrimental impact on the adjacent open space bushland in respect of visual landscape, natural landforms, increased water run-off, construction impacts and the increased spread of weeds.

3. Pursuant to Section 79C(1)(a)(i) of the

Environmental Planning and Assessment Act 1979, as amended, a complete and detailed assessment of the proposal in terms of the provisions of the Act and Lane Cove Local Environmental Plan 2000, as amended, cannot be made as there is insufficient information with regard to:

A. Council’s Code and development Application Checklist for Dwelling Houses, Fences, Private Swimming Pools and Outbuildings, in relation:
(a) external dimensions of en-suite and pavilion to existing dwelling.
(b) dimensions of deck, swimming pool, carport and store room of proposed structure.
B. Vehicle turning manoeuvrability, the turning path proposed for all four (4)-car parking spaces using the B85 design template.
C. The added driveway extension does not provide adequate clearance to make a 3-point turn and is severely restricted for vehicles to exit the site in a forward manner.
D. Non-compliance with AS 2890.1 Section 5.4 – opening width of carports.

The hearing

19 The appeal was filed on 30 August 2006 and is within time.

20 At the hearing the court heard evidence on behalf of the respondent council from:

· Ms L Carmichael, daughter of the Curleys of No 28 Upper Cliff Road, Northwood;

· Mrs P E Kench, resident of No 24D Upper Cliff Road, Northwood;

· Mr C T Kench, resident of No 24D Upper Cliff Road, Northwood;

· Mr A R Addario, resident of No 24F Upper Cliff Road, Northwood;

· Mrs E Addario, resident of No 24F Upper Cliff Road, Northwood;

· Mr E Armstrong, consultant town planner; and

· Mr T Matheson, Bushland Manager, Lane Cove Council.

21 On behalf of the applicant evidence was given by:

· Mrs C Lloyd, resident of No 24A Upper Cliff Road, Northwood;

· Mr A Smith, consultant town planner;

· Dr S Ambrose, ecologist; and Mr D Ford, consulting arborist.

22 Mr G Swain, provided his comments in relation to the GTAs by facsimile dated 28 February 2007 in Exhibit 13

The issues

23 On 22 January 2007 the council filed an amended statement of issues.

ENVIRONMENTAL PROTECTION AREA
1 A large portion of the proposed building and pool are within land which is designated ‘Environmental Protection’ under a map forming part of the Lane Cove Local Environmental Plan 1987.
In the opinion of the Council the vegetation, topography and distinctive features of the land are likely to be adversely affected by the development (including its associated engineering works, footings, retaining walls, paving, arrangements for onsite detention and disposal of water and bushfire asset protection zone management requirements) and, as such, the proposal is in contravention of clause 11 of the Lane Cove LEP.
BUSH LAND
2.1 The development site adjoins and contains Bushland within the meaning of Lane Cove Development Control Plan No. 1 - Control of Development Adjacent to Bushland and the development is contrary to the aims and objectives thereof.
2.2 The development site is categorised partly as Buffer Area and otherwise as Bushland Area for the purposes of DCP 1 and, as such, neither buildings nor swimming pools are permitted thereon.
2.3 No Bushland Rehabilitation and Maintenance Plan as required by DCP 1 has been submitted.
2.4 The proposal will have an adverse visual impact when viewed from adjoining bushland in the Gore Creek Reserve contrary to clause 15 of DCP 1.
3 The development is proposed on land, which adjoins bushland zoned or reserved for public open space purposes, and clause 9 of SEPP 19 applies.
4 The development is likely to have an adverse affect adjoining bushland in terms of:

RIGHT OF CARRIAGE WAY
5 The existing right of carriageway over the adjoining property does not extend to the proposed consolidated lot.
NB: This is capable of being dealt with by a deferred commencement condition.
TRAFFIC
6 Deleted after further amendment of the plans.
[The vehicle manoeuvring and parking areas are not adequate for the proposed additional vehicles and do not comply with the Australian Standards.
Particulars

(a) The driveway extension does not provide adequate clearance to make a three-point turn to allow vehicles to leave the site in a forward manner.

(b) Further information is required to assess whether manoeuvrability of the vehicles and turning paths comply with the relevant standards, for example a B58 design template.

(c) The proposed development does not comply with AS 2890.1, section 5.4 opening width of carports.]

DRAINAGE EASEMENT
7 It is not appropriate to build over a drainage easement. Adequate detail and information indicating the non-disturbance of this easement, or in fact an alternative easement has not been provided with the application.
IMPACTS ON EXISTING RESIDENTIAL OCCUPANCIES ON THE LAND
8 The development will have an adverse impact on the existing residential occupancy on part of the subject site being 26 Upper Cliff Road, in as much as:
8.1 it will unreasonably curtail the availability and use of the private open space; and
8.2 the construction of proposed carport and gym will detract from the visual amenity, landscape amenity and privacy.
Particulars
Zone 2(a)(ii) and (iii) Objectives LEP 1987.
Clause 9(3) of the LEP 1987.
Lane Cove DCP - Residential Zones Part VII (Residential Subdivision) Objective 1.
ISSUES RAISED BY OBJECTORS
9.1 The majority of the development is within the Environmental Protection Zone and should be refused.
9.2 Preservation of trees on the subject property.
9.3 Increased parking and congestion to the right of carriageway.
9.4 Increased stress to the infrastructure and foundations on the land.
9.5 Building on the land, disturbing the existing flora and fauna, and bushland and effect of construction activity.
9.6 Validity of extension of right of carriage way to the consolidated allotment.

24 The salient issue was bushland impacts.

The evidence and findings

Bushland impacts

25 By letter dated 9 February 2007, the Rural Fire Service provided General Terms of Approval (GTA) for the integrated development application the subject of this appeal. Condition 7 of those GTAs required under s 100B of the Rural Fires Act 1997, states, [Note: Exhibit 4, p 120]:

The entire property shall be managed as an Inner Protection Area as outlined in Section 4.2.2(b) of ‘Planning for Bushfire Protection 2001’ .

26 Section 4.2.2(b) of ‘Planning for Bushfire Protection 2001’ deals with components of an asset protection zone, (APZ) and incorporates an outer protection area (OPA) and an inner protection area (IPA). Fuel loadings specified for an IPA are, [Note: Exhibit 8, p16]:

· minimum fine fuel at ground level;

· no path for the transfer of fire to the development, that is the fuels are discontinuous;

· the presence of few shrubs and trees is acceptable if these do not touch or overhang the building; are well spread out so as to not form a continuous canopy; are not species that retain dead material or deposit excessive quantities of ground fuel in a short period or in a danger period; located far enough away from the house so that they will not ignite the house by direct flame contact or radiant heat emission.

27 Thus, I understand the entire property to be the vegetated eastern part of No 26 Upper Cliff Road proposed to be annexed to No 24E Upper Cliff Road and the down slope vegetated part of No 24E Upper Cliff Road would be managed as an IPA under the GTAs.

28 Dr Ambrose stated, before being informed of the requirements of the Rural Fire Service, that, [Note: Exhibit C, pp 4 and 9]

…it would be preferable, but not essential, from an ecological perspective, to manage the vegetated areas on the subject site so that there is:

· a structurally diverse stand of vegetation with a mix of native tree, shrub and ground cover and grass species local to the area and free of exotic species;

· a canopy and understorey layer dominated by local sandstone gully tree and shrub species;

· a mesic layer of tall shrubs and small trees including species presently occurring in Gore Creek Reserve; and

· a mesic ground layer composed of native understorey species including ferns, vines and grasses.

29 Dr Ambrose, Messrs Ford and Matheson jointly conferred on 6 March 2007, after receipt of the GTAs and in respect of Issue 1 did not reach agreement. Dr Ambrose and Mr Ford did not wish to comment preferring instead the view that this is a planning issue rather than an ecological one. Mr Matheson on behalf of the council stated, [Note: Exhibit 12, p 4]:

A large portion of the proposed building and pool are within land which is designated ‘Environmental Protection’ under a map forming part of the Lane Cove Local Environmental Plan 1987. In the opinion of the Council the vegetation, topography and distinctive features of the land are likely to be adversely affected by the development (including its associated engineering works, footings, retaining walls, paving, arrangements for on-site detention and disposal of water and bushfire asset protection zone management requirements) and, as such, the proposal is in contravention of clause 11 of the Lane Cove LEP.

30 Similarly, in respect of Issue 2 the applicants’ experts did not feel qualified to comment.

31 In respect of Issue 3, Dr Ambrose commented that the site, [Note: Exhibit 12, p6] “…down slope of the proposed footprint retains more bushland character, than the weedy upslope area, but there is still a high level of weed invasion…” He continued, [Note: Exhibit 12 p 6]:

· The applicant will have greater incentive to implement the bush regeneration plan if it was part of the development conditions, rather than if it was not developed.

· If the applicant did not follow through in relations to the proposed development it would be appropriate for Lane Cove Council to take action. In comparison refusing the development does not provide much incentive to manage the bushland within the site.

· …although some native canopy trees and natural landforms occur on the subject site, ‘bushland’ (as defined under DCP1) does not occur on the site because the vegetation currently lacks the floristic structure, diversity and richness of local vegetation communities.

· The buffer area should be set off the property boundary and appropriately managed.

32 Mr Matheson considered the environmental protection zone, (EPZ) defines the edge of the bushland, and that distinct characteristics defining bushland still exist on the site. He suggested that the buffer area should be setback upslope of the EPZ line as the buffer does not need any bushland qualities and would provide a transition between building and the environment. [Note: Exhibit 12, p 6].

33 The evidence of the experts suggests that within the building footprint there is weed invasion but down slope of the proposed footprint some bushland character is retained. If development were to occur as proposed that bushland character would be controlled under the inner protection area, (IPA) requirements and would be likely to change and would not achieve the ideal preferred by Dr Ambrose.

34 Mr Smith was of the opinion that the bushland area under DCP1 on No 26 Upper Cliff Avenue would be down slope and to the east of the 10m-wide buffer area, and the building area under DCP1 would be the footprint of the applicant’s proposed structure.

35 Mr Armstrong considered that the bushland area under DCP1 would be to the east of the environmental protection zone boundary as shown on the LCLEP map. Thus, in his view the buffer zone would be up-slope of that boundary and the building area would be further upslope and might encompass the existing building on the land at No 26 Upper Cliff Avenue. Thus, there was a wide discrepancy of views between the two town planners that only apparently came to light during the hearing. This was despite there having been consultation between the two in order to prepare the joint town planning statement in Exhibit 11. This discrepancy is obvious when the plan in Exhibit E, (Mr Smith’s map of bushland area, the buffer area and building area under DCP1) is compared with Exhibit 17 showing the footprint of the proposal in blue and the line of the buffer area and bushland area under DCP1 according to Mr Armstrong.

36 On the site inspection I satisfied myself that there is some weight in Mr Armstrong’s contentions.

37 The Rural Fire Service has issued its GTAs have regard for the publication prepared by the Department of Planning ‘Planning for Bushfires’. These GTAs would require the applicant, if approval were granted to the present application, to maintain that part of the subject land down slope and to the east of the footprint of the proposal as an IPA and unlike what is normally understood as bushland area under DCP1.

38 Thus, even if one were to accept the position of the bushland area under the DCP1 as determined by Mr Smith there would be a conflict between the GTAs and the desire to maintain bushland area in the location suggested by him. As Mr Armstrong’s bushland area under the DCP1 would be greater in area the conflict would be also greater, were one to seek to maintain that IPA under ‘Planning for Bushfires’.

39 I do not accept the evidence of Mr Smith as to the location of the three planning areas under DCP1, as I consider that he has not approached the task of locating the three areas under DCP1 wholly from a planning point of view and was guided more by pragmatism. He placed his building area under the DCP1 in the location of the footprint of the proposal and then located proceeded to locate the buffer and bushland areas. I would attribute a higher aim to the methodology required under the DCP1.

40 Mr Armstrong’s bushland area relates well to the existing dwelling on the land, and if no development application were lodged in respect of No 26 Upper Cliff Road one might expect the status quo to remain and that much of the down slope areas of that lot could be maintained as bushland. This area could be rehabilitated as bushland, were there a will. Even without the will, degraded bushland on the eastern part of No 26 Upper Cliff Avenue could remain for others to rehabilitate later. If approval were granted to the present application, the ‘bushland area’ as defined under DCP1 would be either built upon or controlled by the GTAs. There was no evidence to the contrary, that this outcome would be expected to be unlike vegetation that is uncontrolled under the GTAs. Thus, I consider that the present application must fail, as the proposal, being down slope of the existing dwelling on No 26 Upper Cliff Avenue, would be likely to be in conflict with the council’s long-stated intention of maintaining a bushland area under DCP1.

41 In addition, I accept the evidence of Mr Armstrong that the vegetation, topography and distinctive features of the land are likely to be adversely affected by the proposal, including its associated engineering works, footings, retaining walls, paving, arrangements for onsite detention/disposal of storm water and bushfire asset protection zone management requirements, and thus would be contrary to the intention of cl 11 of the LCLEP.

42 Flowing from this conclusion, I am also satisfied that under SEPP19, that if the land outside the footprint of the existing and proposed buildings were managed as an IPA there would be a strong likelihood that there would be a detrimental impact on the adjacent bushland in Gore Creek Reserve in respect of the landscape, natural landforms, within the visual catchment, increased water run-off, construction impacts and the increased spread of weeds.

43 For the above reasons, the appeal is dismissed.

Orders
44 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No D46/05 lodged with the respondent council in March 2005 to alter and add to an existing dwelling house and to construct a gym, laundry, swimming pool, deck and carpark with four car spaces together with subdivision and amalgamation of the land at No 24E Upper Cliff Road, Northwood, being Lot 7, DP 96768 and the eastern part of No 26 Upper Cliff Road, Northwood, being part of Lot 106, DP 284499 is refused consent.

3. The exhibits except for Exhibits A, B, C, E, 1, 2, 3, 10 and 17 are returned.

S J Watts

Commissioner of the Court

sw