Carr v Lane Cove Council
[2008] NSWLEC 1125
•28 March 2008
Land and Environment Court
of New South Wales
CITATION: Carr v Lane Cove Council [2008] NSWLEC 1125 PARTIES: APPLICANT
Leon and Jennifer Carr1st RESPONDENT
2nd RESPONDENT
Lane Cove Council
Colin and Pamela KenchFILE NUMBER(S): 10770 of 2006 CORAM: Bly C KEY ISSUES: Development Application :- traffic congestion on right-of-way, visual impact of building on bushland setting, impacts on private open space, removal of trees, character of locality. LEGISLATION CITED: Environmental Planning and Assessment Act 1979,
State Environmental Planning Policy No. 19 - Bushland in Urban Areas,
Lane Cove Local Environmental Plan 1987,
Lane Cove Bushland Development Control No. 1 - Control of Development Adjacent to Bushland,
Lane Cove Draft Local Environmental Plan 2007CASES CITED: Carr, L and J v Lane Cove Council [2007] NSWLEC 196
Carr and Anor v Lane Cove Council [No 2] [2007] NSWLEC 603DATES OF HEARING: 13 and 14 March 2008
DATE OF JUDGMENT:
28 March 2008LEGAL REPRESENTATIVES: APPLICANT
Mr T. Robertson S. C.
with Mr I Hemmings, barrister
instructed by NRG Legsal1st RESPONDENT
2nd RESPONDENT
Ms C. Schofield, solicitor
of Pike Pike and Fenwick
Ms M. Carpenter, barrister
instructed by Mallesons Stephen Jaques
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
28 March 2008
10770 of 2006 Leon and Jennifer Carr v Lane Cove Council and Colin and Pamela Kench
Introduction and backgroundJUDGMENT
1 On 13 April 2007 Watts C dismissed an appeal and refused consent in relation to a development application for alterations and additions to the existing dwelling house at 24E Upper Cliff Road, Northwood (Carr, L and J v Lane Cove Council [2007] NSWLEC 196). The additions to the dwelling are in the form of a separate pavilion and mainly comprise a garage, a gymnasium and a swimming pool positioned within part of the rear yard of 26 Upper Cliff Road that is, by subdivision, to be incorporated into 24E Upper Cliff Road. 24E Upper Cliff Road is accessed via a right of way/carriageway that services six other properties that slope towards and overlook the Gore Creek Reserve.
2 On 21 September 2007 Jagot J set aside this decision (Carr and Anor v Lane Cove Council [No 2] [2007] NSWLEC 603) and on 21 December 2007 Preston C J admitted Mr and Mrs Kench of 24D Upper Cliff Road as a party to the proceedings.
Planning controls
3 The extended site is zoned Residential 2(A1) under Lane Cove Local Environmental Plan 1987. The proposed development is permissible with development consent. Being partly designated Environmental Protection Area, clause 11(3) provides that consent shall not be granted where the vegetation, topography or distinctive features of the land are likely to be adversely affected.
4 Also relevant are:
- Bushland Development Control No. 1 - Control of Development Adjacent to Bushland,
- State Environmental Planning Policy No. 19 - Bushland in Urban Areas,
- Rural Fires Act 1997,
- Draft Local Environmental Plan 2007
The hearing and the issues
5 The appeal, now before me for rehearing began on site when I heard from resident objectors, the Lane Cove Bushland and Conservation Society and various experts. For the purposes of the appeal, the exhibits of the previous hearing were re-tendered.
6 Having reconsidered the issues that were in dispute before Watts C, particularly in the light of the decision of Jagot J, additional materials and evidence, the council has now decided that conditional development consent can be granted and consent orders have been prepared. However the second respondent presses the issues contained in the Amended Statement of Issues (22 January 2007) in terms of the following issues that were developed at to the pre-hearing mention on 10 March 2008:
1. The implications of the development on traffic congestion during and post the construction process, and the fact that no construction management plan has been prepared;
2. The adverse visual impact of building within the bushland setting;
3. The development will have an adverse impact on the use and availability of private open space for 26 Upper Cliff Road;
4. The adverse visual impact of the removal of the trees;
5. The effect of the proposed consolidation and development, which would result in, a large block and a large house which is out of character with the present surroundings.
- Traffic
7 As for the issue of traffic congestion it was submitted that the development would pose unacceptable impacts in relation to vehicular and pedestrian safety on the carriageway during the construction phase. Also there has been in the past damage caused to property by a construction vehicle that toppled over into the Kench's property. Of particular concern is the likelihood that construction vehicles will unreasonably obstruct the steep single lane carriageway causing inconvenience and possibly an accident as well as denying access for emergency vehicles. Also of concern is the possibility that construction vehicles might damage the carriageway. Pedestrian safety would be at risk if a resident were to be confronted with a construction vehicle on the narrow carriageway.
8 It was also submitted that many of these concerns might have been alleviated by a construction management plan. The applicant has now agreed to a deferred commencement condition requiring the preparation of a construction management plan to the satisfaction of the council. Also agreed are conditions for the installation of a safety fence and the denial of the use of the carriageway for any purpose other than access to the site.
9 Taking into account that a construction management plan is to be prepared together with the associated conditions of consent I do not accept that there is any likelihood, beyond reason that pedestrian safety, vehicular safety or indeed the use of the carriageway generally will be adversely affected by this development. It is not unreasonable to expect that from time to time significant construction works will occur on any one of the properties within this subdivision and that as a consequence, some inconvenience and possibly even accidental damage to property may occur. Plainly this is a somewhat difficult site in terms of access, but these are not sufficient reasons to deny the kind of development here proposed.
10 As for post-construction traffic the Kench's were, in essence, concerned that by increasing the number of car parking spaces on the site from two to six the additional traffic utilising the carriageway would cause unreasonable vehicular congestion and adversely affect amenity. The provision of six car parking spaces for one residential dwelling is said to be excessive.
11 In this regard I note that the residential accommodation capacity of the dwelling is to be unchanged and on this basis I accept that on a theoretical basis traffic generation will be unchanged. Conversely the additional car parking spaces will facilitate on-site parking for visitors, a facility not presently available. Also, the four-bedroom dwelling could potentially accommodate four (and possibly more) persons each with their own car and by being able to park on site this would generate more traffic on the carriageway. In the absence of expert evidence I accept that there is likely to be an increase in the number of vehicles using the carriageway but I nevertheless accept the submission made on behalf of the applicant that this is likely to be insignificant. I certainly accept that it would be not sufficient to attract serious concern.
Visual impact
12 It was not in dispute that the existing dwelling as well as several other dwellings in the subdivision are visible from the bush track in the Gore Creek Reserve. It was also not in dispute that the extension will also be visible from the bush track although I accept that it will be less conspicuous than the existing dwellings taking into account the rock outcrops in the foreground.
13 Conversely the use of inappropriate materials, colours and finishes could make it unreasonably conspicuous. To ensure that this does not occur the applicant accepts a deferred commencement condition requiring the provision of detailed information to the council not only for the extension but also for the existing dwelling.
14 For the purposes of the construction of the extension four trees are required to be removed - two dead and two living. It is also possible that two dead trees further down slope are also to be removed. The two living trees are not dominant specimens and their appearance is largely subsumed within the canopy of other trees especially when viewed from the bush track. The removal of these trees taking into account their position at the side and towards the rear of the extension will make little difference to the canopy’s appearance.
15 Whilst not determinative of this question some weight can be given to the applicant's plans to improve the existing site drainage (including council's stormwater drain through the site) and the regeneration of native bushland on the eastern part of the extended site that will in time provide an improved landscape setting.
16 In these circumstances, taking into account the Residential 2(A1) zoning of the land and the environmental protection area (that together do not prohibit residential development), and the appropriate selection of materials colours and finishes I am satisfied that the impact on the Gore Creek Reserve that comprises bushland for the purposes of cl 9 of SEPP 19 will not be unreasonable. Consideration of the almost identical provisions of the Draft LEP (including the extended environmental protection area) results in the same conclusion. Similarly, I accept that cl 15 of the bushland DCP particularly as to materials, finishes and colours and visual impact (including undercrofts and the like) will also be complied with.
17 A significant proportion of the extended dwelling is situated within the environmental protection area. However I do not accept that, in terms of cl 11(3) of the LEP, by being able to see the proposed extensions in its landscape setting (subject to appropriate materials, colours and finishes) from the Gore Creek Reserve, this is indicative of an unreasonable adverse affectation.
Bushland
18 As indicated above the site is partly designated Environmental Protection Area and cl 11(3) of the LEP in effect requires that vegetation, topography or distinctive features are not to be adversely affected. It was submitted on behalf of the second respondent that site works and the removal of trees as proposed would infringe this requirement. However, I accept the applicant's submission that the removal of trees as proposed would not adversely affect vegetation in the sense of cl 11(3). In this regard I adopt the commonsense interpretation of vegetation in the Macquarie Dictionary, being plant life considered as a whole, and given what I have already said about the trees that are to be removed I would not conclude that such removal equates to an adverse affectation of the vegetation on and surrounding the site.
19 That part of the extended site that is to be utilised for the proposed extension has recently been cleared of most vegetation and I accept that this vegetation predominantly comprised weed/non-native species. I also here acknowledge the existence of other elements of bushland including rock outcrops and topography. Had the extended site comprised pristine bushland then this proposal may not have been successful. However the reality is different and notwithstanding my acceptance of the evidence (of the Lane Cove Bushland and Conservation Society) that this area is capable of being regenerated to the same standard as nearby bushland, taking into account the provisions of the applicable planning controls and the conclusions generally reached throughout this judgment the loss of some bushland not determinative of the application.
Private open space
20 According to the plan of subdivision of 26 Upper Cliff Road to extend the applicant's site, this property will, after subdivision, have an area of 905 square metres and the rear yard be reduced to an area of about 170 square metres (9m x 19m by scale). The owners of this property have no concerns about this, nor was there any evidence to suggest a failure to meet any relevantly applicable standard
21 However the Kench's contend that there will be an adverse impact because the private open space will be greatly diminished and because visual amenity will be impinged as a result of the applicant's proposed driveway that is to be positioned close to the new western boundary of the site.
22 It cannot be disputed that the proposed subdivision will significantly reduce the private open space of 26 Upper Cliff Road. But the open space can still be functional and even taking into account the changed outlook from this property I do not accept that this matter attracts any determinative significance.
Character
23 The Kench's contend that the proposal will result in a large block and a large house, which will be out of character with the present surroundings. More particularly the proposed new lots having an area of 1285 square metres is significantly larger than the six lots in the subdivision that have areas of between 600 and 650 square metres. Also the extended dwelling house with its six car parking spaces would be much larger than other houses in the locality. Together these matters indicate that the objectives of the Residential 2(A1) zone that seek to improve the existing residential amenity of a detached single family dwelling area are not met.
24 In response the applicant submits that there are other large houses and other large allotments nearby that have areas in the order of 1200 square metres (for example 28 and 30 Upper Cliff Road). Also the design of the house is such that it will read as two separate buildings.
25 I do not accept, other than when viewed directly from the east that the proposed extended building will read other than as a single building. However, even though it will be larger than many other homes in the locality it will not be so large as to be seriously out of character. In this context I note that the house will be seen from the public domain to the east and I have already concluded that there will be no adverse impact on the Gore Creek Reserve and that the environmental protection area requirements are not infringed. Taking these matters into account together with the fact that the proposed lot size is not uncommon in the area I do not accept this to be a determinative issue.
Site access
26 It was drawn to my attention that the applicant's land is burdened by a restriction as to use that prohibits the site from being used to provide access to any land outside the subdivision. In one sense this is to occur given that the rear yard of 26 Upper Cliff Road that is to be incorporated into the site is outside the subdivision. However, once the applicant's land is consolidated it will for planning purposes be effectively incorporated into the subdivision and when this occurs no access to land outside the subdivision will be provided. On this basis I do not accept to be a matter of determinative significance.
27 There is also an issue involving access to the extended site essentially across the council's stormwater easement. I accept the applicant's submission that this is a matter that must and can be resolved by the applicant before any consent can be utilised and should not be an impediment to the granting of consent as sought.
Conclusions
28 It was submitted that approval of this application would constitute a precedent that would have adverse consequences for this locality. Having found no fatal flaw in this application and concluded that this development proposal should be approved, and bearing in mind that any future application will need to be determined on its own merits I am not satisfied that any justifiable concerns as to adverse precedent arise.
29 Having considered the issues raised by the second respondent and concluding that none of these is such as to warrant refusal of the application and taking also into account the fact that the council now supports the proposal I have decided that the appeal should be upheld and conditional development consent granted.
30 As for the conditions, the second respondents seek a different deferred commencement condition dealing with the right of way, essentially for the purpose of protecting the interests (including expenses) of the other property owners in the subdivision taking into account the use of the carriageway and the installation of services. The alternate condition also takes into account the contention that the right of way cannot be used to provide access to different land altogether, this being contrary to the existing terms of the easement. I have already dealt with this matter.
31 In essence the applicant submits that because of the landowners' interest in the land the right-of-way can only be created by agreement or by compulsion (s40 of the Land and Environment Court Act or s. 88K of the Conveyancing Act) and that these processes can ensure that the second respondents' private issues are dealt with. Also unnecessary is the condition dealing with services.
32 I have not been persuaded that the deferred commencement conditions as sought by the second respondent are necessary to protect the landowners' interests taking into account the above-mentioned necessary processes. The conditions will therefore be in accordance with those agreed between the applicant and the council. .
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- T A Bly
Commissioner of the Court
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