Collins v Hornsby Shire Council

[2019] NSWLEC 1263

Land and Environment Court

New South Wales

Medium Neutral Citation:	Collins v Hornsby Shire Council [2019] NSWLEC 1263
Hearing dates:	14 and 15 March 2019
Date of orders:	13 June 2019
Decision date:	13 June 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders: (1) The Applicant is granted leave to amend the development application and rely on amended plans; (2) The appeal is dismissed; (3) Development application DA/190/2017, as amended, for the subdivision of land at 11A Newline Road, West Pennant Hills, is determined by refusal; (4) The exhibits are returned, except Exhibits 1 and G.
Catchwords:	DEVELOPMENT APPLICATION – Torrens Title Subdivision of land – one lot into two lots – whether the potential impacts to significant and indigenous trees is acceptable – whether the Applicant’s proposals for on-site detention of stormwater are acceptable.
Legislation Cited:	Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Hornsby Local Environment Plan 2013 Land and Environment Court Act 1979
Texts Cited:	Australian Standard AS4970-2009 Protection of trees on development sites Hornsby Development Control Plan 2013
Category:	Principal judgment
Parties:	Daryl Collins (Applicant) Hornsby Shire Council (Respondent)
Representation:	Solicitors:   G McKee, McKees Legal Solutions (Applicant) P Jackson, Pikes and Verekers (Respondent)
File Number(s):	2018/237337
Publication restriction:	No

Judgment

1. COMMISSIONER: Daryl Collins (the Applicant) has appealed the refusal of the Hornsby Shire Council (the Respondent) of his development application DA/190/2017 seeking development consent for the subdivision of land from one lot into two lots (referred to in these proceedings as proposed lots 51 and 52) (the proposed development) at Lot 5 in DP 1030204 at 11A New Line Road, West Pennant Hills (the Subject Site).

2. The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act).

3. The Subject Site is located adjacent to the Sydney Koala Park which is a listed heritage item (item number 786) under the provisions of Schedule 5 of Hornsby Local Environment Plan 2013 (HLEP).

4. The Subject Site is zoned R2 under the provisions of cl 2.1 of HLEP, and subdivision of land is a form of development that is permissible on the Subject Site, with consent, under the provisions of cl 2.1 of HLEP.

5. The appeal falls within Class 1 of the Court’s jurisdiction and this appeal has been heard under the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

6. As required under s 34AA, the Court convened a conciliation conference between the Parties on-site and a view of the Subject Site was undertaken. No objectors had sought to make representations to the Court in relation to the appeal.

7. The contentions between the Parties were unable to be resolved during the conciliation phase of the proceedings, and, as a consequence, the conciliation conference was terminated and the matter proceeded forthwith to a hearing.

Statutory Considerations

Environmental Planning and Assessment Act 1979

8. The objects of the of the EP&A Act are as follows:

(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,

(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,

(c) to promote the orderly and economic use and development of land,

(d) to promote the delivery and maintenance of affordable housing,

(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,

(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),

(g) to promote good design and amenity of the built environment,

(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,

(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,

(j) to provide increased opportunity for community participation in environmental planning and assessment.

9. Section 4.15(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

10. Section 4.15(3A) of the EP&A Act further provides that:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

11. Section 4.16 of the EP&A Act concerning the determination of development applications provides, inter alia, that:

4.16 Determination (cf previous s 80)

(1) General

A consent authority is to determine a development application by:

(a) granting consent to the application, either unconditionally or subject to conditions, or

(b) refusing consent to the application.

(2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.

12. Section 6.2 concerning the meaning of subdivision under the EP&A Act, and which provides that:

(1) For the purposes of this Act, subdivision of land means the division of land into 2 or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition.

Hornsby Local Environment Plan 2013

13. Development on the Subject Site is subject to the provisions of HLEP, under which the Subject Site is zoned R2 Low Density Residential. Within this zone subdivision of land as proposed by the Applicant is a permissible land use.

14. The following provisions of HLEP are of relevance in this appeal:

1. Clause 2.1 under which the Subject Site is zoned R2 Low Density Residential, the objectives of which are to:

◾ provide for the housing needs of the community within a low density residential environment.

◾ enable other land uses that provide facilities or services to meet the day to day needs of residents.

2. Clause 2.6, concerning consent conditions for subdivision of land, and which provides:

(1) Land to which this Plan applies may be subdivided, but only with development consent.

Notes.

1 If a subdivision is specified as exempt development in an applicable environmental planning instrument, such as this Plan or State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, the Act enables it to be carried out without development consent.

2 Part 6 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 provides that the strata subdivision of a building in certain circumstances is complying development.

(2) Development consent must not be granted for the subdivision of land on which a secondary dwelling is situated if the subdivision would result in the principal dwelling and the secondary dwelling being situated on separate lots, unless the resulting lots are not less than the minimum size shown on the Lot Size Map in relation to that land.

Note.

The definition of secondary dwelling in the Dictionary requires the dwelling to be on the same lot of land as the principal dwelling.

3. Clause 4.1 concerning minimum subdivision lot sizes, establishes that the minimum subdivision lot size applicable to the Subject Site is 500m2. Clause 4.1 also provides as follows:

(1) The objectives of this clause are as follows:

(a) to provide for the subdivision of land at a density that is appropriate for the site constraints, development potential and infrastructure capacity of the land,

(b) to ensure that lots are of a sufficient size to accommodate development.

(2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.

(3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

(3A) If a lot is a battle-axe lot or other lot with an access handle, the area of the access handle is not to be included in calculating the lot size.

(4) This clause does not apply in relation to the subdivision of any land:

(a) by the registration of a strata plan or strata plan of subdivision under the Strata Schemes Development Act 2015, or

(b) by any kind of subdivision under the Community Land Development Act 1989.

4. Clause 5.10 concerning heritage conservation, which provides, inter alia, under subclause (7) that:

The consent authority may, before granting consent to any development:

(a) on land on which a heritage item is located, or

(b) on land that is within a heritage conservation area, or

(c) on land that is within the vicinity of land referred to in paragraph (a) or (b),

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

Hornsby Development Control Plan 2013

15. The proposed development is also subject to the provisions of Hornsby Development Control Plan 2013 (HDCP), the objectives of which are to:

◾ provide a comprehensive document that provides a framework for development of land in the Hornsby Local Government Area,

◾ clearly set out the processes, procedures and responsibilities for the involvement of the community and key stakeholders in the development of land,

◾ promote development that is consistent with Council’s vision of creating a living environment,

◾ protect and enhance the natural and built environment, and ensure that satisfactory measures are incorporated to ameliorate any impacts arising from development,

◾ encourage high quality development that contributes to the existing or desired future character of the area, with particular emphasis on the integration of buildings with a landscaped setting,

◾ protect and enhance the public domain,

◾ minimise risk to the community, and

◾ ensure that development incorporates the principles of Ecologically Sustainable Development (ESD).

16. The following Parts of HDCP are of relevance in this appeal:

1. Part 1B.6, concerning tree and vegetation preservation, and which:

1. identifies certain trees and ‘prescribed trees as follows:

Prescribed Trees

a. The prescribed trees that are protected by the Vegetation SEPP and/or Clause 5.10 of the HLEP and this Section of the DCP includes:

◾ trees except exempt tree species in Hornsby Shire, as listed in Table 1B.6 (a) or subject to the Biodiversity Offset Scheme,

◾ all trees on land within a heritage conservation area described within the HLEP, and

◾ all trees on land comprising heritage items listed within the HLEP.

b. To damage or remove any tree protected under this DCP is prohibited without the written consent of Council, except in accordance with the exemptions prescribed in this part (under the heading ‘Exempt Tree Work’).

2. further provides that a tree permit is required for works within the tree protection zone (TPZ) of protected trees;:

3. confirms that a TPZ is defined as the area within:

◾9 metres of a tree with a diameter at breast height of 800mm or greater,

◾7 metres of a tree with a diameter at breast height of between 400mm and 800mm, and

◾4 metres of a tree with a diameter at breast height of 400mm or less.

4. requires that all tree pruning work must be carried out in accordance with Australian Standard AS 4373 Pruning of Amenity Trees.

2. Part 1C.1.1 concerning biodiversity, and which:

1. has the following desired outcomes:

a. Development that provides for the conservation of biodiversity including threatened species and populations, endangered ecological communities, remnant indigenous trees, regionally and locally significant terrestrial and aquatic vegetation.

b. Development that maintains habitat for native wildlife and wildlife corridors to provide for the movement of fauna species

2. includes the following prescriptive measure:

Development should seek to retain unique environmental features of the site including: mature hollow trees and other fauna habitat features

on the site.

Development should incorporate and maintain a buffer zone to significant flora and fauna.

Development should not include buildings, structures and earthworks within the required buffer zone prescribed in Table 1C.1.1(a)

3. within Table 1C.1.1(a) provides that a minimum 10m buffer should be provided in relation vegetation types including populations of threatened flora species, habitat for threatened species, locally significant bushland, groups of remnant indigenous trees.

4. includes the following note in relation to certain endangered ecological communities:

Under the NSW Scientific Committee Determination for Blue Gum High Forest and Sydney Turpentine Ironbark Forest Endangered Ecological Communities, it is noted that these communities may only be represented by the presence of remnant trees with no remnant or a highly modified understorey.

3. Part 1C.1.2 concerning the management of stormwater, and which:

1. has the following desired outcomes:

a. Development that protects waterways from erosion, pollution and sedimentation, and maintains or improves water quality and aquatic habitats.

b. Water management systems that minimise the effects of flooding and maintains natural environmental flows.

2. includes the following prescriptive measures for developments:

c. An on-site stormwater management system that deals with detention, retention and discharge rates is required for all development involving external works to maintain environmental flow* rates in the receiving watercourses.

d. An on-site detention (OSD) system, designed in accordance with the HSC Civil Works Specification, should be provided for the following types of development:

◾Subdivision,

◾Single dwellings where required by covenant,

◾Two or more dwellings, or

◾Non-residential developments with external alterations.

e. Natural flow paths within a site and the discharge point from the site should be retained and directed to its natural catchment.

i. OSD systems should be located under driveways or hardstand areas where practicable to allow for deep soil landscaping requirements.

4. Part 3.1.2 concerning setbacks and which includes as a desired outcome that proposed developments provide setbacks that allow for canopy trees to be to be retained and planted along the front and rear property boundaries.

5. Part 3.1.3 concerning landscaping, which:

1. has as a desired outcome that developments should include landscaping that integrates the built form with soft landscaping, and which retains and enhances the tree canopy; and

2. provides that proposed buildings, ancillary structures, driveways, drainage and service trenches should be setback, inter alia, 10-20m to significant bushland as detailed in the biodiversity element of HDCP in Part 1C.1.1 (see above at [2]);

3. also provides within Figure 3.1(e) that setbacks for TPZs should be consistent with those provided in Part 1B.6 cl (h) (see above at [1(c)];

6. Part 6 concerning subdivision of land, and which states within its introduction that:

Subdivision of land is to be designed to ensure development relates to site conditions, is consistent with the existing or desired future character of the area, is located in areas where services and related infrastructure are available and protects the natural and built environment.

7. Part 6.1.1, concerning general subdivision provisions, and which:

1. includes the following desired outcomes:

a. Subdivision design that provides usable allotments that relate to site conditions.

b. Subdivision design that provides for the retention of significant landscape features and respects site constraints including:

◾significant trees,

◾remnant bushland,

◾steep topography,

◾watercourses, riparian land and stormwater overland flow paths, and bushfire hazard asset protection zones.

c. Subdivision design that provides for all necessary services and facilities, including any required extension or amplification to Council infrastructure

2. includes the following prescriptive measures:

a. Where subdivision is a permitted landuse within the zone, any proposed subdivision should demonstrate that the newly created allotments would be capable of accommodating the construction of landuses permitted within that zone and in accordance with the controls within this DCP;

b. Developable areas and accessways should be setback:

◾in accordance with the ‘Watercourses’ element in Section 1C.1.3 of this DCP,

◾10-20 metres to significant bushland as detailed in the ‘Biodiversity’ element in Section 1C.1.1 of this DCP, and

◾in accordance with the requirements of AS 4970 for significant trees to be retained.

8. Part 6.2.1 concerning subdivision of residential land, and which:

1. includes the following desired outcomes:

a. Subdivision design should maintain appropriately shaped lots to accommodate a dwelling and associated development that is compatible with a low density residential environment.

b. Subdivision design should provide setbacks to developable areas that will:

◾complement the streetscape,

◾provide for landscaping,

◾protect landscape features, and

◾provide separation between existing and future dwellings.

2. confirms that, consistent with the provisions of cl 4.1 of HLEP, that the minimum lot size following subdivision for the Subject Site is 500m2;

3. also provides under prescriptive control (c) that the size of the proposed lot may need to be greater than the area prescribed for the Subject SIte in order to achieve the minimum setbacks required from significant landscape features or to address site constraints.

4. further provides under prescriptive control (f):

f. Lot design should identify a potential developable area. This area is to accommodate the following:

◾a building envelope of 200m2 with a minimum dimension of 10 metres;

◾a principal private open space area,

◾area for parking 2 cars behind the building line, and

◾comply with the general provisions in Section 6.1

5. includes requirements in relation to open space and landscaping, including that:

a. Subdivision design should provide a principal private open space area of 24m2 for each lot. This area is to be generally level, with a minimum width of 3 metres, sited adjacent to the building envelope and behind the front setback.

9. Part 6.4 concerning access design, which includes the following desired outcomes:

a. To ensure access along private accessways to all new lots is simple, safe and direct.

b. Driveways should not be visually intrusive to the existing streetscape.

c. To limit the number of driveway crossings and additional dwellings with direct access to main roads to limit the cumulative impacts on traffic flows and safety.

Contentions

17. At the commencement of the hearing:

1. the Respondent said that a contention it had previously pressed concerning heritage considerations under cl 5.10(5) of HLEP, and related to the Sydney Koala Park that adjoins the Subject Site, was now not pressed.

2. the Applicant sought, and was granted, leave to rely on amended plans, which included the following changes to its original proposed development:

1. the amended areas of proposed lots 51 and 52 would be 968.5m2 and 1407.4m2 respectively, with the area of proposed lot 51, net of the area of its access handle, to be 563m2 (approximately);

2. the location of the indicative footprint of a dwelling on the proposed lot 51 was moved eastwards within the proposed lot such that it would be located over an area currently occupied by a swimming pool;

3. the location of an easement on its plans, identified as easement (J), which had been proposed to be located to the west of the indicative dwelling footprint, was now proposed to run along the rear, and eastern, boundary of the proposed lot 51. The purpose of the easement would be to provide for the management of stormwater flows from proposed lot 52 across proposed lot 51 for disposal via the local stormwater system;

4. a tree identified as tree T22, which had previously been proposed for removal, would be retained. The Applicant noted that while the proposed development would still require an ‘incursion’ into the TPZ of tree T22, this would not involve any excavation, and so was, in its submission, appropriate and reasonable.

18. Based on the Applicant’s amended plans, the two lots that would result from the proposed subdivisions would both be compliant with the provisions of:

1. Clause 4.1 of HLEP concerning the minimum subdivision lot sizes (see above at [14(3)]), which requires that on the Subject Site the minimum subdivision lots size is 500m2;

2. Part 6.2.1 of HDCP concerning subdivision of residential land, including car parking requirements; and

3. Part 6.4 of HDCP concerning access arrangements and their design.

19. Following the Court’s grant of leave for the Applicant to rely on its amended plans, the contentions requiring resolution in this appeal were narrowed by the Parties to the consideration of:

1. whether the Applicant’s indicative design of a dwelling, including the access driveway, for proposed lot 51, could be accommodated on the resulting allotments; and

2. whether that design was consistent with the further requirements of HDCP, in particular in relation to:

1. the potential impacts of the proposed development on certain trees located on, and adjacent to, the Subject Site.

2. the management of potential stormwater impacts of the proposed development through the provision of an acceptable on-site detention (OSD) system;

20. As a consequence the principal questions for resolution in this appeal became:

1. is the indicative footprint and design of a proposed dwelling and access driveway for proposed lot 51 acceptable in relation to the potential impacts of the proposed development on trees located on, and adjacent to, the Subject Site?, and

2. is the indicative footprint and design of a proposed dwelling and access driveway for proposed lot 51 acceptable in relation to the management of potential stormwater impacts of the proposed development through the provision an acceptable on-site detention (OSD) system?

Is the indicative footprint and design of a proposed dwelling and access driveway for proposed lot 51 acceptable in relation to the potential impacts of the proposed development on trees located on, and adjacent to, the Subject Site?

21. The Court was assisted in its consideration of this question by the evidence of the expert arborists:

1. Mr Guy Paroissien, for the Applicant; and

2. Mr Steve Wilkie, for the Respondent.

22. The particular trees of concern in this appeal, referred to hereafter as “the relevant trees”, had been identified by the expert arborists as follows:

Tree number	Scientific name (Common name)	Comment
T20	Eucalyptus resinifera (Red Mahogany)	Located on the Subject Site
T22	Eucalyptus resinifera (Red Mahogany)	Located on the Subject Site
T23	Eucalyptus saligna (Sydney Blue Gum)	Located on the adjacent Koala Park land to the west of the Subject Site
T24	Eucalyptus pilularis (Blackbutt)	Located on the adjacent Koala Park land to the west of the Subject Site
T25	Eucalyptus saligna (Sydney Blue Gum)	Located on the adjacent Koala Park land to the west of the Subject Site
T26	Eucalyptus saligna (Sydney Blue Gum)	Located on the adjacent property to the north of the Subject Site

23. In addition to their oral testimony at the hearing, the expert arborists had prepared a joint expert report, which was tendered as evidence, and in which they had agreed that:

1. each of the relevant trees was indigenous to Hornsby Shire, and with the exception of tree T20, were assessed to be significant under Council’s criteria for being individually significant and part of a significant grouping of trees, as contended by the Respondent in its Statement of facts and Contentions, which was tendered as evidence during the hearing;

2. based on the Applicant’s amended plans, there were no works proposed by the Applicant within the Tree Protection Zone (TPZ) of tree T20, and that, notwithstanding structural damage to the tree arising from a recent storm event, this tree should be retained and managed for habitat purposes;

3. the potential impacts of the indicative footprint, and design, of the proposed dwelling and of the access driveway for proposed lot 51 were significant in relation to trees T22 and T26.

24. The expert arborists had expressed differing opinions within their joint report concerning the potential impacts of the indicative footprint, and design, of the proposed dwelling and the access driveway on trees T23, T24, and T25.

25. In response to these differing opinions, and as a basis for their possible reconciliation, the Applicant proposed several draft conditions of consent for the consideration of the expert arborists, and the Court, at the hearing. These draft conditions were tendered as evidence at the hearing (Exhibit F).

26. The Applicant submitted that, should the Court be minded to grant consent with conditions, the imposition of these further three draft conditions, would require that:

1. a restrictive covenant pursuant to s 88B of the Conveyancing Act 1919 should be created to prevent the carrying out of any works including ground level changes within a distance of 8m from the centre of the trunk of tree T26. The purpose of this draft condition was said to be for the retention of, and minimisation of potential impacts on, tree T26;

2. the driveway access to proposed lot 51 would be constructed in a manner detailed in the draft condition, which, importantly, would see the driveway constructed on a sand base and without the need for excavation works that might otherwise disturb the root systems of certain of the relevant trees. The purpose of this draft condition was said to be the retention of, and minimisation of potential impacts on, trees T22, T23, T24 and T25;

3. a drainage line, as described in the Applicant’s draft condition 3, would be constructed at the same time as the driveway access would be constructed, with the final location, design and construction of the drainage line to be approved and supervised by a supervising arborist. The purpose of this draft condition was said to be to minimise any potential impacts of future drainage lines on the root systems of the relevant trees.

27. During the hearing, and to further assist consideration of these matters, the Applicant tendered a set of calculations, prepared by Mr Paroissien, in relation to the extent of encroachment of the indicative dwelling footprint and access driveway into the TPZs of the relevant trees. Mr Wilkie said that he accepted the accuracy of Mr Paroissien’s calculations.

28. Mr Paroissien had also provided his assessment of the calculated TPZ encroachment levels for each tree, along with his opinion on the acceptability of those encroachments. Mr Paroissien’s assessment used a sliding scale of encroachment levels with descriptors that ranged from no impact to low, moderate and high impact levels, as follows:

Extent of impact on the TPZ of a tree	Descriptor of impact level
0%	No impact of significance
0 to 10%	Low
10 to 15%	Low to moderate
15 to 20%	Moderate
20 to 25%	Moderate to high
25 to 35%	High
>35%	Significant

29. Mr Wilkie adopted the descriptors within the Australian Standard AS4970-2009 (AS4970), entitled ‘Protection of trees on development sites’, as the basis for his assessment of the extent of encroachment of the indicative dwelling footprint and access driveway into the TPZs of the relevant trees. These descriptors are:

1. Minor encroachment, where the proposed encroachment is less than 10% of the TPZ and is wholly outside the so-called structural root zone (SRZ) of the tree; and

2. Major encroachment, where the proposed encroachment is greater than than 10% of the TPZor is within the SRZ of the tree.

30. Based on Mr Paroissien’s revised calculations, the expert arborists provided the following further assessments of the potential impacts of the indicative dwelling footprint and access driveway into the TPZs of the relevant trees:

1. concerning tree T22:

1. Mr Paroissien said that the cumulative encroachment was calculated to be 10.05% of the tree’s TPZ, which he considered was a low to moderate level of encroachment and was acceptable;

2. Mr Wilkie said that while the amended plans, including the proposed relocation of the drainage easement (J), and the proposed conditions of consent (see above at [26]), had reduced the potential impacts on this tree, those potential impacts had not, in his opinion, been fully mitigated;

2. concerning tree T23,

1. Mr Paroissien said that the cumulative encroachment was calculated to be 0.74% of the tree’s TPZ, which he considered was a low level of encroachment and was acceptable;

2. Mr Wilkie concurred with Mr Paroissien’s assessment, and said that under the descriptors used within AS4970, the impact would be ‘minor’, and, in his opinion, acceptable. He added that these potential impacts would be further mitigated by the proposed conditions of consent (see above at [26]).

3. concerning tree T24,

1. Mr Paroissien said that the cumulative encroachment was calculated to be 10.02% of the tree’s TPZ, which he considered was a low to moderate level of encroachment, and was acceptable;

2. Mr Wilkie said that while the amended plans, had reduced the potential impacts on this tree, those potential impacts had not been fully mitigated. Mr Wilkie also said that, in his opinion, while the avoidance of excavation in the construction of the access driveway was helpful, it could not be assumed that this would avoid the driveway having an impact on the growing conditions of tree T24.

4. concerning tree T25,

1. Mr Paroissien said that the cumulative encroachment was calculated to be 9.8% of the tree’s TPZ, which he considered was a low to moderate level of encroachment, and was acceptable;

2. Mr Wilkie said that, while the amended plans had reduced the encroachment in to the TPZ of tree T25 to less than 10%, and so would represent a minor level of encroachment under the AS4970 descriptors, the potential impacts on this tree had not, in his opinion, been fully mitigated;

5. concerning tree T26,

1. the expert arborists agreed that the total incursion into the TPZ of tree T26 was 24.5%, which they said represented a major level of encroachment under AS4970 and moderate to high level of impact under the descriptors applied by Mr Paroissien;

2. Mr Paroissien said that, having given consideration to all the factors required to be considered under s 3.3.4 of AS4970 in relation to the Applicant’s indicative dwelling design, in his opinion the potential impacts on the TPZ of tree T26 were acceptable, provided the Applicant’s proposed conditions of consent (see above at [26]) were imposed with any grant of consent. Mr Paroissien also said that should the Applicant’s indicative design of a dwelling be changed, any final design would be the subject of a separate assessment process;

3. Mr Wilkie said that, in his opinion, the Applicant’s first draft condition of consent (see above at [26(1)]), tendered as part of Exhibit F, should be further strengthened through requiring that, rather than the 8m distance proposed by the Applicant, no works should be undertaken within the entire TPZ of tree T26. The expert arborists had agreed that this would be a distance of 11.4m from the centre of the trunk of that tree;

31. The Court was further assisted in its consideration of these tree matters by testimony from the Parties’ expert planners:

1. Mr Andrew Minto, for the Applicant; and

2. Mr Thomas Dales, for the Respondent.

32. During his testimony, Mr Minto said that, in his opinion, the indicative dwelling design could be accommodated on the Subject Site.

33. In response to a question from the Respondent, Mr Minto agreed that the upper level of the Applicant’s indicative dwelling would be located under several limbs of tree T26, and could potentially interfere with those limbs. Mr Minto added that should the Applicant seek to mitigate that impact by removing or pruning any of the limbs of tree T26, those limbs could only be pruned or removed with the consent of the owner of the adjoining land on which the trunk of tree T26 was located.

34. Having considered the evidence of the experts I have reached the following conclusions:

1. I accept the assessment of the expert arborists that the potential impacts on tree T20 are minor and acceptable;

2. I prefer the evidence of Mr Paroissien in relation to tree T22, and I agree with him that the potential impacts on this tree are minor, and acceptable, given:

1. the Applicant’s relocation of proposed easement (J) under its amended plans, and

2. the encroachment in to the TPZ of 10.05%, which I assess to be acceptable;

3. the inclusion of the Applicant’s proposed condition of consent concerning the construction of the access driveway;

3. I accept the agreement of the arborists that the potential impacts of the proposed development on tree T23 would be minor and acceptable, and would be assisted by adoption of the Applicant’s proposed conditions of consent.

4. I prefer the evidence of Mr Paroissien in relation to tree T24, and I agree with him that the potential impacts on this tree are minor, and acceptable, given:

1. the estimated potential encroachment into the TPZ is 10.2%, which I assess to be acceptable;

2. the inclusion of the Applicant’s proposed condition of consent concerning the construction of the access driveway;

5. I prefer the evidence of Mr Paroissien in relation to tree T25, and I agree with him that the potential impacts on this tree are minor, and acceptable, given:

1. the encroachment in to the TPZ of 9.8%, which I assess to be acceptable;

2. the inclusion of the Applicant’s proposed condition of consent concerning the construction of the access driveway;

35. I have also considered the potential impacts on tree T26 of the Applicant’s indicative dwelling and access driveway design, and the Applicant’s proposed draft conditions of consent concerning the mitigation of those potential impacts, and I have reached the following conclusions:

1. I accept the agreement of the expert arborists that the encroachment of the Applicant’s indicative dwelling and access driveway into the TPZ of tree T26 would be some 24.5%, which would be a major encroachment into the TPZ of tree T26 under the descriptors within AS4970;

2. the Applicant’s proposal for the creation of a restrictive covenant under s 88B of the Conveyancing Act1919 to prevent works within an 8m distance from the centre of tree T26, while drafted with the intent of retaining, and minimising potential impacts on the tree:

1. was not supported by consistent evidence from the expert arborists (see above at [30(5)(b)] and [30(5)(c)]);

2. is not consistent with the provisions of Part 1C.1.1, which includes a requirement for a 10m buffer to, inter alia, locally significant bushland and groups of remnant indigenous trees, in order to achieve its prescriptive measure that:

Development should incorporate and maintain a buffer zone to significant flora and fauna. Development should not include buildings, structures and earthworks within the required buffer zone prescribed in Table 1C.1.1(a)

3. on the basis of the conclusions above at [(1)] and [(2)], the provisions prescriptive measure (a) of Part 6.1.1 of HDCP (see above at [16(7)(b)]), cannot be satisfied because neither the scale nor the nature of any potential future encroachment into the TPZ of tree T26 from a dwelling on proposed lot 51, can be confirmed.

4. as a consequence my conclusion above at [(3)], the Applicant has not demonstrated that the proposed lot 51 would be capable of accommodating the construction of land uses permitted within the R2 zone and in accordance with other controls in HDCP, specifically those in Part 1C.1.1;

5. the conclusion at [4] would remain, or be strengthened, should the Court entertain granting consent with a condition that increased the scale of the Applicant’s proposed s 88B instrument to reflect either:

1. the 10m buffer required under Part 1C.1.1 of HDCP; or

2. the 11.4m TPZ area of tree T26, as proposed by Mr Wilkie.

36. I have also given consideration to the requirements under cl 4.15(3A) of the EP&A Act (see above at [10]), in relation to the Applicant’s amended plans, and its further submissions in relation to conditions of consent.

37. Insofar as these plans and proposed conditions represent alternatives that might satisfy the objects (in this case the ‘desired outcomes’) of the controls in Parts 1C.1.1and 6.1.1 of HDCP (see above at [16(2)(a)] and [16(7)(a)]), I have concluded that these are not achieved by the Applicant’s proposed development, as complemented by its proposed additional draft conditions of consent for the following reasons:

1. in relation to the desired outcomes of Part 1C.1.1, the Applicant’s proposed development, as amended, and with the Applicant’s proposed conditions of consent, is not, in my assessment, a development that provides for the conservation of biodiversity including threatened species and populations, endangered ecological communities, remnant indigenous trees, regionally and locally significant terrestrial and aquatic vegetation; and

2. in relation to the desired outcomes of Part 6.1.1, the Applicant’s proposed development, as amended, and together with its proposed additional draft conditions, is not in my asssessment:

1. a subdivision design that provides usable allotments that relate to site conditions, and

2. a subdivision design that provides for the retention of significant landscape features, and respects site constraints, including in relation to significant trees, and remnant bushland,

38. Consequently, having considered the provisions of cl 4.15(3A) of the EP&A Act in relation to the provision of flexibility, I find that the Applicant’s proposed development is still unable to achieve the objects of cll 1C.1.1 and 6.1.1 of HDCP.

Is the indicative footprint and design of a proposed dwelling and access driveway for proposed lot 51 acceptable in relation to the management of potential stormwater impacts of the proposed development through the provision an acceptable on-site detention (OSD) system?

39. Part 1C.1.2 of HDCP (see above at [16(3)]) requires, under prescriptive measure (d), that a subdivision development should provide an on-site detention (OSD) system, designed in accordance with the HSC Civil Works Specification.

40. The Applicant’s proposed development, as amended, does not provide an on-site detention system designed in accordance with the HSC Civil Works Specification, and so is not compliant with the provisions of HDCP Part 1C.1.2.

41. Notwithstanding this non-compliance, under the provisions of s 4.15(3A) of the EP&A Act (see above at [10]), if a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority, if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards, is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development.

42. Part 1C.1.2 of HDCP does not identify ‘objects’ for its controls but does include two ‘desired outcomes’, identified above at [16(3)(a)], that I consider constitute the objects of the control. These are:

a. Development that protects waterways from erosion, pollution and sedimentation, and maintains or improves water quality and aquatic habitats.

b. Water management systems that minimise the effects of flooding and maintains natural environmental flows:

43. The Applicant has submitted that, should the Court be minded to grant consent to its proposed development, the objects, that is the desired outcomes, of Part 1C.1.2 would be achieved through the inclusion of the following condition, which the Respondent had drafted, the Applicant embraced, and which would need to be satisfied prior to the issue of a subdivision certificate:

40. Creation of easements

The following matter(s) must be nominated on the plan of subdivision under s88B of the Conveyancing Act 1919:

…..

c) The creation of a ‘Positive Covenant’ over approved Lot 51 requiring that any future development is to provide an on-site detention system. The on-site detention system is to have a capacity of 5 cubic metres and a maximum discharge of 8 litres per second into Council’s drainage system in accordance with Council’s prescribed wording.

44. The Court must, therefore, decide whether the inclusion of this proposed condition of consent is a reasonable alternative solution that would achieve the objects, that is the desired outcomes, of Part 1C.1.2 for dealing with the OSD requirements of the development.

45. The Applicant in its closing submissions said that this appeal was largely concerned with ensuring that the proposed subdivision of the Subject Site would not give rise to any unacceptable potential impacts on the relevant trees identified above at [22], located on, and adjacent to, the Subject Site. I agree with this summation.

46. Consequently, in order to assess whether the imposition of proposed condition 40 is able to achieve the objects of Part 1C.1.2 of HDCP, it is necessary to determine whether it could be implemented by the Applicant within its proposed development but without giving rise to further potential impacts on the relevant trees.

47. During the hearing, the Respondent asked Mr Paroissien whether, in his opinion, it was important to know the proposed location for Applicant’s OSD system in order to assess the potential impact of the proposed development on the relevant trees

48. In response, Mr Paroissien conceded that this would be a relevant consideration. Mr Paroissien also said that he had provided recommendations within the joint report of the expert arborists that would assist in identifying potential locations for the OSD system that would minimise potential impacts on the relevant trees.

49. Having considered the submissions of the Parties, and the evidence before me, I have concluded that I cannot be satisfied, based on the proposed condition of consent (proposed condition 40), that the Applicant has demonstrated that its proposed development, as amended, would:

1. achieve the desired outcomes of Part C1.1.2 of HDCP, or

2. be capable of providing an on-site detention (OSD) system, designed in accordance with the HSC Civil Works Specification, as is required for a proposed subdivision under the provisions of Part C1.1.2 of HDCP.

50. I base this conclusion on the following reasons:

1. having considered the potential impacts of the proposed dwelling footprint and proposed access arrangements on the relevant trees located on, and adjacent to, the Subject Site in some detail (see above at [21] to [38]), it is clear that the Subject Site is constrained by the location of the relevant trees and their related TPZs;

2. I have already concluded that the Applicant has not demonstrated that the proposed lot 51 would be capable of accommodating the construction of landuses permitted within the R2 zone and in accordance with other controls in HDCP, specifically those in Part 1C.1.1. The use of the Subject Site is, in my assessment, constrained by the location of the relevant trees and their related TPZs;

3. the Applicant has provided no plan containing options for the location of the OSD that would be required under the provisions of Part 1C.1.2 of HDCP.

4. Part 1C.1.2 of HDCP recommends that OSD systems should be located under driveways or hardstand areas, where practicable, to allow for deep soil landscaping requirements. However, the Applicant has proposed that the design of the access driveway should avoid excavation in order to avoid impacts on the relevant trees in this appeal.

5. given these constraints, and in the absence of any design options for the provision of an OSD system on the Subject Site, I am unable to be satisfied that provisions of Part 1C.1.2 of HDCP could be delivered by the Applicant should its proposed subdivision be approved.

Conclusions

51. Having considered the evidence of the expert arborists and planners, and the submissions of the Parties, I have concluded that:

1. The Applicant’s proposed development is not consistent with the provisions of Parts 1C.1.1 and 6.1.1 of HDCP (see above at [35], as it would not result in a development that:

1. conserves biodiversity including threatened species and populations, endangered ecological communities, remnant indigenous trees, regionally and locally significant terrestrial and aquatic vegetation

2. includes a subdivision design that provides usable allotments that relate to site conditions, and

3. includes a subdivision design that provides for the retention of significant landscape features, and respects site constraints, including in relation to significant trees, and remnant bushland

2. the Applicant’s proposed development, as amended, and including its proposed conditions of consent, does not satisfy the provisions of Part 1C.1.2 concerning the management of stormwater, as it does not provide an on-site detention (OSD) system, designed in accordance with the HSC Civil Works Specification, as required for a subdivision development.

3. the Applicant’s proposed development is, therefore, inconsistent with HDCP’s objective to protect and enhance the natural and built environment, and ensure that satisfactory measures are incorporated to ameliorate any impacts arising from development;

4. the Applicant’s proposed development, as amended, when considered together with its proposed conditions of consent, does not satisfy the provisions of cl 4.15(3A) of the EP&A Act with respect to the provision of flexibility in the application of HDCP in relation to reasonable alternative solutions;

5. further, in relation to the provisions of cl 4.15 (d) and (e) of the EP&A Act, and as a consequence of the conclusions above at [1], [2], [3] and [4]:

1. the proposed development’s potential impacts on biodiversity are not acceptable; and

2. the Subject Site is not suitable for the proposed development;

6. the proposed development is not in the public interest;

7. the Applicant’s development application DA/190/2017 should not be approved;

Orders

52. The orders of the Court are:

1. the Applicant is granted leave to amend the development application and rely on amended plans;

2. the appeal is dismissed;

3. development application DA/190/2017, as amended, for the subdivision of land at 11A Newline Road, West Pennant Hills, is determined by determined by refusal;

4. the exhibits are returned, except Exhibits 1and G.

……………………….

Michael Chilcott

Commissioner of the Court

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Decision last updated: 13 June 2019