CBD Prestige Property v Warringah Council

[2008] NSWLEC 1207

Land and Environment Court

of New South Wales

CITATION:	CBD Prestige Property v Warringah Council [2008] NSWLEC 1207
PARTIES:	APPLICANT CBD Prestige Property Holdings Pty Limited RESPONDENT Warringah Council
FILE NUMBER(S):	10997 of 2007
CORAM:	Brown C
KEY ISSUES:	Development Application :- subdivision of land - impact on scenic quality of bushland - consistency with Desired Future Character
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Warringah Local Environmental Plan 2000
DATES OF HEARING:	17/03/08, 25/03/08, 13/05/08
DATE OF JUDGMENT:	3 June 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr J Maston, barrister SOLICITORS Websters Solicitors RESPONDENT Mr N Howie, solicitor SOLICITORS Wilshire Webb Staunton Beattie Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

3 June 2008

10997 of 2007 CBD Prestige Property Holdings Pty Limited v Warringah Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Warringah Council (the council) of Development Application 2004-1615 for the subdivision of land at Bantry Bay Road, Frenchs Forest (the site).

2 The issues raised by the council relate to the inconsistency with the desired future character of the locality and the unacceptable impact on the scenic quality of the bushland that largely surrounds the site. Previous issues relating to the disposal of stormwater and the potential impact on the red crowned toadlet were not pressed by the council following the submission of further information.

3 Additional issues were raised by local residents and interested parties and these are addressed later in the judgement.

The site and surrounding area

4 The site consists of Lot 11 in DP 257483 Bantry Bay Road and Lots 8, 9 and 10 in DP 257403 Utyana Place, Frenchs Forest. It is located at the southern end of Bantry Bay Road and adjoins Garigal National Park to the south and west, Utyana Place to the north and Bantry Bay Road to the east. The site has a slope of some 10 m from Bantry Bay Road to its western boundary. It is currently free of any improvements and vegetated over most of its area.

5 The site is generally isolated from surrounding residential development however to the north of the site there are several different social clubs/associations.

The proposal

6 The subdivision is contained within Lot 11 with Lots 8, 9 and 10 providing an Asset Protection Zone (APZ) and a Right of Way for emergency vehicles to Utyana Place. Lot 11 is generally rectangular in shape with a frontage to Bantry Bay Road of approximately 149 m, a northern boundary of approximately 130 m and a southern boundary of approximately 123 m giving a total site area of 16315 sq m.

7 The proposal provides for the subdivision of Lot 11 into a community lot (Lot 1) and 15 residential lots (Lots 2 to 16). The residential lots vary in size from a minimum of 600 sq m to around 700 sq m with the majority at 600 sq m. The subdivision varied over the hearing however the number of lots and the general layout remained unchanged.

Relevant planning controls

8 The site falls within Locality G3 : Manly Lagoon of Warringah Local Environmental Plan 2000 (WLEP 2000). The Desired Future Character (the DFC) for Locality G3 is:

The Manly Lagoon Suburbs locality will remain characterised by detached style housing with a pocket of apartment style housing in landscaped settings interspersed by a range of complementary and compatible uses. The development of further apartment style housing will be confined to the “medium density areas” shown on the map. Substantial regional parklands and bushland will remain significant elements of the locality.

Future development will maintain the visual pattern and predominant s cale of existing detached style housing in the locality except in areas marked as “medium density areas” on the map. The street will be characterised by landscaped front gardens and consistent building setbacks . Unless exemptions are made to the housing density standard in this locality statement, any subdivision of land is to be consistent with the predominant pattern, size and configuration of existing allotments in the locality.

The relationship of the locality with the surrounding bushland will be reinforced by protecting and enhancing the spread of indigenous tree canopy and preserving remnants of the natural landscape such as rock outcrops, bushland and natural watercourses. The use of materials that blend with the colours and textures of the natural landscape will be encouraged. Development on hillsides, or in the vicinity of ridgetops, will integrate with the natural landscape and topography.

The locality will continue to be served by the existing local retail centres in the areas shown on the map. Future development in these centres will be in accordance with the general principles of development control provided in clause 39.

9 Clause 21(1)(a) of LEP 2000 provides that the land can be subdivided so long as the resulting allotments can be developed in accordance with LEP 2000. For a Category Two development, cl 12(1) provides that the development must be consistent with the relevant Part 4 General Principles of Development. The relevant parts of Part 4 are Development near park, bushland reserves and other public open spaces (cl 52), Retaining unique environmental and features on sites (cl 56) and Protection of existing flora (cl 58).

10 Clause 12(2) provides that before granting consent, the Court must be satisfied that the development will comply with the relevant requirements of Parts 2 and 3 (cl 12(2)(a)) and development standards for the development set out in the Locality Statement. Clause 12(3)(b) requires the Court to be satisfied that the development is consistent with the DFC.

11 In the G3 Locality, the maximum housing density is 1 dwelling per 600 sq m of site area, (excluding the area of any access corridor), buildings are not to exceed 8.5 m in height, the minimum front building setback is 6.5 m, the minimum side building setback is 0.9 m, the minimum rear building setback is 6 m and the minimum area of landscaped open space is 40% of the site area.

Evidence

12 Ms Deborah Laidlaw provided evidence for the council and Dr Richard Lamb and Mr Chris Young provided evidence for the applicant. The following local residents and interested parties provided evidence on site:

• Ms Sandra Gillies of Penrose Place,
• Mr Hosny Guirguis of Yaraman Avenue,
• Mr Brian Malligan of 1st Frenchs Forest Scout Group, Nandy Avenue,
• Mr Kevin Levy of Parni Place,
• Dr Con Harris of Morgan Road,
• Mr Ray Cox of Austin Avenue,
• Mr Ivo Psenicny of Graham Crescent,
• Ms Ann Sharp of Brighton Street, Harbord and
• Mr David Parsons of Alambie Crescent.

13 The local residents and interested parties raised the following concerns:

• high risk of bushfires,
• environmental impacts on Garigal National Park, including loss of vegetation, weed infestation, and visual impacts,
• impact on the natural topography,
• inconsistency with WLEP 2000,
• ongoing compliance with the conditions of consent,
• potential failure of the stormwater disposal system,
• potential impact on new residents from activities at the Scout Hall,
• inconsistency with the heritage/conservation values of the area.

14 The Court also had the benefit of the submissions provided to the council when the development application was advertised.

The subdivision
The original proposal

15 While the proposed lots all satisfied the minimum area of 600 sq m, I am not satisfied that it could be said that the proposed lots can be reasonably developed in a manner anticipated by the DFC based on the available evidence before the Court. The location of future dwellings on each lot was restricted by the location of the APZ. This has the effect of creating larger front setbacks than the minimum 6.5 m for the DFC. This in itself is not necessarily a concern however in this case, it effectively pushes the location of any dwelling towards the rear of each lot and limits the area available for a dwelling. The hypothetical dwelling designs for each lot (as shown on Exhibit G) appear to be identical and have dimensions of approximately 10 m x 16 m. It is not clear whether the dwellings are single storey or double storey however the building pad is relatively small.

16 Also, further amendments were made to the stormwater disposal system that was not properly represented on the documentation provided to the Court.

17 On 25 March 2008, the following Directions were made:

1. The applicant file and serve an amended subdivision plan that
• refects the design of the stormwater engineers (Exhibit B),
• provides a reduced number of lots that provides an area between the front setback (or APZ in this case) and the rear setback that more closely reflects the area contemplated by the Desired Future Character for the site,
• indentifies and includes in the amended subdivision plan, any further rock outcrops not previously identified,
• indentifies and includes in the amended subdivision plan, all trees that will contribute to the screening of any dwellings,
• indentifies and includes in the amended subdivision plan, a building platform for each lot that allows for the retention of rock outcrops and trees previously mentioned above.

2. The applicant to advise the Court, by e Court, by close of business 27 March 2008 whether an amended subdivision plan will be prepared or whether the application is to be considered on the details provided at the hearing. If an amended subdivision plan is to be prepared the date on which it is to be filed and served.
The revised proposal

18 At the time of the Directions were given to the parties, Mr Maston for the applicant, indicated that an amended subdivision plan had been prepared based on revised requirements for bushfire protection (see Attachment 1). This had the effect of reducing the amount of area required for an APZ thereby providing greater areas on each lot for the erection of a dwelling. The revised subdivision plans were filed on 17 April 2008 (Exhibit J) together with a report from the Mr William Hamer, the surveyor responsible for the revised subdivision plan. Ms Laidlaw provided supplementary evidence on 24 April 2008 and Mr Young on 30 April 2008. A further mention was held on 13 May 2008 to address some minor issues between the parties, including the filing of conditions of consent for the amended subdivision plan.

19 The revised proposal provides for the same number of lots but with greater areas provided for the erection of a dwelling. The revised proposal also reflects the revised stormwater disposal system.

The impact of the subdivision
The evidence

20 Ms Laidlaw, Dr Lamb and Mr Young provided a joint report that identified the areas of agreement and disagreement. The experts also had the opportunity to explain their particular positions to the Court on the site view from various locations around the site based on 5 height poles that were placed on Lots 2, 4, 10, 12 and 15 to indicate the maximum height of 8.5 m for a likely dwelling.

21 Ms Laidlaw states that LEP 2000 does not create a presumption in favour of the subdivision at any given density, rather it may be appropriate and that consent authority must be satisfied as to consistency with the DFC. Ms Laidlaw is the opinion that the relevant provisions of LEP 2000 are not able to be satisfied. While the applicant may be able to demonstrate how a satisfactory development can be achieved through a more detailed site analysis this has not been done to her satisfaction. In her view, the number of lots and subdivision pattern should be guided by the site analysis identifying how the bushland character could be retained, whether on larger lots each with the capacity of supporting interspersed planting to maintain the predominantly "bushland" character" or alternatively by using the less visually/ecologically sensitive parts of the site for development and maintaining tracts of retained vegetation. To support her position, Ms Laidlaw provided an indicative sketch showing a subdivision at a lower density of 7 lots. She states this provides greater flexibility in the siting of dwellings, a greater balance with the canopy trees available to be retained, a larger area outside the APZ and the location of dwellings away from the ridgeline.

22 Dr Lamb and Mr Young adopt a different approach to Ms Laidlaw. They take the view that there must be a presumption that the land is suitable for subdivision and eventually dwellings and as such the use is going to require the removal of the bushland under storey and some trees. Therefore the visual exposure of what will occur on the site is unavoidable and there will be a significant contrast to the existing vegetated condition of the site. Mr Young adds that the land has undergone the statutory planning process in the formulation of LEP 2000 and has been deemed suitable for housing. It has not been set aside for open space or parklands therefore LEP 2000 accepts that the land will not remain bushland and will be developed in a similar fashion to other areas within the G3 Locality.

23 Dr Lamb and Mr Young reiterate the agreement of all experts that the existing tree vegetation cover is not of intrinsic ecological or scenic value in itself and that the extent to which clearing would occur as part of the subdivision and development process cannot be a valid reason for refusal of the application. Dr Lamb maintains that there is the potential for sufficient vegetation unaffected by the works on individual lots to be conserved to provide a sense of continuity with the adjacent bushland setting. This sense of continuity would be extended with the development of the residential lots and the likely associated landscaping.

The revised proposal

24 Ms Laidlaw notes that the number of residential lots has not been reduced and the average size of these lots has not materially changed. In her opinion the proposed lots are characteristic of a "suburban residential" environment and inconsistent with the DFC by not reflecting a "residential/bush" character. To achieve this, lots of at least 1100-1200 sq m would be necessary. The variation to the APZ and the rear setback makes a small difference to the extent of trees that can potentially be accommodated within the site.

25 The revised subdivision plan also does not protect any of the rock outcrops identified within the proposed residential lots. Further, the revised subdivision plan provides for an additional five trees to be removed than under the original subdivision plan.

26 In terms of character, Mr Young states that an assessment of the 214 lots in the area reveal that 36% (or 77 lots) are within the range of the lot sizes submitted in the original application of 600-712 sq m. The median lot size also falls within this range and the closest residential lots to the site (the corner of Grattan Crescent and Bantry Bay Road) have areas of 602 sq m and 593 sq m.

27 Further, the limited rock outcrops originally identified were the result of an inspection of the site by the experts with the result that only the rock outcrop on the south-western area Lot 1 was identified. Although the revised plan has identified further rock outcrops, Mr Young states that while rock were exposed at other locations on the site, these instances did not constitute rock outcrops. Based on further inspections of the site Mr Young questions the rock outcrops identified are in fact rock outcrops. The impact of the emergency access road on an existing outcrop can be addressed by a condition that is not opposed by the applicant.

28 For building envelopes, Mr Young notes that the DFC requires a minimum 150 sq m per lot. The revised subdivision plan provides for areas between 205 and 390 sq m for the location of a dwelling on the proposed lots so compliance is achieved.

Findings

29 Clause 12(3)(b) requires that before granting consent the consent authority must be satisfied that the proposed development is consistent with the desired future character described in the G3 Locality Statement.

30 The difference between the evidence of Ms Laidlaw and Dr Lamb and Mr Young was not necessarily that the site should not be developed for residential development but rather the extent of any development. The differences related to whether the proposed subdivision was consistent with the DFC, particularly whether the proposed subdivision:

• maintained the visual pattern and predominant scale of existing detached style housing in the locality,
• is consistent with the predominant pattern, size and configuration of existing allotments in the locality,
• reinforced the relationship with the surrounding bushland by protecting and enhancing the spread of indigenous tree canopy and preserving remnants of the natural landscape such as rock outcrops, bushland and natural watercourses, and
• integrated with the natural landscape and topography being a development on a hillside or in the vicinity of ridgetops.

31 As a starting point, I accept that the site can be used for residential development. LEP 2000 provides this opportunity through the requirements included within the G3 Locality Statement and consequently is subject to the quantitative standards for density, height, landscaped area and setbacks. It is also subject to the qualitative requirements in the DFC. In my view, it is a question of balancing the quantitative and qualitative standards taking into account its particular location and the characteristics of the proposed development.

32 There was no disagreement between the parties that the assessment of any visual impact should relate to the likely erection of dwellings on each of the proposed lots rather than a consideration of the visual impact of simply the subdivision of the land where the visual impact would be limited to the works associated with the subdivision. From the site view, any residential development on the site would not be visible from the existing urban development to the north and from the east. Depending on the particular location, parts of the proposed residential development will be visible from the west and particularly from the viewing location at The Bluff. The Bluff forms part of a regularly used walking track through Garigal National Park. The panoramic outlook from this location extends from Bantry Bay in the south to Grattan Avenue and is currently free from most building development except for glimpses of the buildings for the social clubs/associations in Grattan Avenue. The southern part of the proposed development will be more easily viewed from The Bluff as the northern part of the development will be partly screened by existing vegetation within the Garigal National Park. The development will also be able to be viewed from the south, also within Garigal National Park.

33 There can be no doubt that the residential use of the site will impact on the outlook from Garigal National Park. The most significant impact will be from The Bluff because of the natural viewing platform that provides significant views over a large part of Garigal National Park and its location on a regularly used walking track. Any form of residential development (including the 7 lot indicative proposal of Mr Laidlaw) will disrupt the largely natural outlook that currently exists from The Bluff and also other parts of Garigal National Park.

34 In balancing the quantitative and qualitative standards in LEP 2000 I am generally satisfied that the evidence of Dr Lamb and Mr Young should be accepted. I am not satisfied that a significant reduction in the density (as suggested by Ms Laidlaw) provides a commensurate reduction in visual impact although it must be accepted that the fewer number of dwellings will reduce the amount of built form that can be viewed and consequently the visual impact. Put simply, I am not satisfied that a reduction in the number of dwellings from 15 to say 7, results in such a significant reduction in the visual impact that the number of lots should be reduced, considering the numerical requirements within the G3 Locality Statement.

35 In my view, there is merit in the evidence of Dr Lamb that the subdivision and that the future dwellings would not have any unreasonable visual impacts considering the legislative framework in which the application must be considered. While the Court was taken to a number of prominent locations around the site, I accept that there is likely to be minimal visual effect from a large number of other locations within the Garigal National Park (that is, beyond those observed on the site view). Combined with the existing tree retention and additional landscaping proposed with the development application, including landscaping associated with future dwellings (although in the longer term), there will be a reasonable level of vegetative screening . I note that the DFC does not suggest that any new dwellings should not be visible. I am satisfied that the proposed development will have an acceptable relationship with the surrounding bushland.

36 It must also be remembered that the proposed development seeks only the subdivision of land and that further applications will be required for the erection of dwellings. At this stage, more informed consideration can be given to protecting and enhancing existing trees and preserving remnants of the natural landscape such as rock outcrops. In my view, the details provided as part of the amended application are sufficient to address the DFC requirements relating to bushland and natural landscape features.

37 I accept the evidence of Mr Young that the proposed subdivision is consistent with the predominant pattern, size and configuration of existing allotments in the locality. A test of consistency does not mean a replication of the existing subdivision pattern. I do not place significant weight on the detailed assessment of the size of existing lots in the area by Ms Laidlaw and Mr Young although it confirms that the area contains a range of lot sizes. I am also mindful that the site is relatively isolated from other residential development in the area. Considering the numerical requirements in the DFC, I am satisfied that the proposed subdivision is consistent with existing allotments in the locality.

38 I also accept that the proposed development satisfactorily integrates with the natural landscape and topography. The proposal generally follows the contours of the land and provides no excessive amounts of cut and fill. Based on the site view, likely dwellings to be constructed on the lots will be contained within the foreground of existing vegetation on the ridgeline.

39 For the reasons mentioned above I find that the proposal is consistent with the DFC in that it reinforces the relationship with the surrounding bushland by protecting and enhancing the spread of indigenous tree canopy and preserving remnants of the natural landscape such as rock outcrops, bushland and natural watercourses, and integrates with the natural landscape and topography being a development on a hillside or in the vicinity of ridgetops.

40 I also find that the development is consistent with the relevant parts of Part 4 of LEP 2000.

Resident concerns

41 A consistent concern of the residents was the unsuitability of the site for the proposed development and its more desirable use as part of the Garigal National Park. While where is clearly a logical and practical basis to this concern, it is however an inescapable fact that LEP 2000 provides the opportunity for it to be developed for residential purposes. It is in this context that the application must be considered.

42 The question of bushfire threat was also a consistent concern raised by the residents. Mr Laidlaw also questioned the most recent APZ’s. As set out in Mr Young's evidence, the revised APZ’s have been formulated in conjunction with the NSW Rural Fire Service and the conditions of consent contain their General Terms of Approval.

43 The proposed means of stormwater disposal was the subject of lengthy discussion between experts from the applicant and the council prior to the hearing and ultimately there was agreement that the proposed system would adequately deal with the storm water generated from the site. In the absence of any expert evidence to refute this agreement, I accept that the disposal of stormwater is properly addressed.

Conditions

44 There was agreement between the parties on the draft conditions of consent with the exception of conditions 65, 76 and 102. These conditions relate to the requirement by the council for the erection of a specific type of boundary fence (condition 65), its ongoing maintenance (condition 76) and the inclusion of the boundary fencing in the Community Management Statement By-laws (condition 102).

45 I agree with the inclusion of these conditions as it is appropriate that there be fencing to delineate the public areas from the site.

46 The applicant also proposed additional conditions relating to the provision of a Water Cycle Management Study and amendments to the Community Management Statement. The latter ensures that the Community Association is aware of its obligations in relation to a range of documents prepared in support of the subdivision.

47 I accept that the applicant’s additional conditions should be included in the consent.

Orders

48 The Orders of the Court are:

1) The appeal is upheld.
2) Development Application 2004-1615 for the subdivision of land at Bantry Bay Road, Frenchs Forest is approved subject to the conditions in Annexure A.
3) The exhibits are returned with the exception of Exhibit J.

_____________
G T Brown
Commissioner of the Court