Concrete Pty Ltd v Hunters Hill C

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Concrete Pty Ltd v Hunters Hill C [2006] NSWLEC 803

PARTIES:
APPLICANT
Concrete Pty Limited
RESPONDENT
Hunters Hill Council

FILE NUMBER(S): 10981 of 2005

CORAM: Hoffman C

KEY ISSUES: Appeal :- subdivision of one lot into two and demolition of existing dwelling, landscape, vegetation, streetscape, heritage, harbour foreshore protection, bushfire hazard

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Rural Fires Act 1997
Planning for Bushfire Protection Act 2001
Hunters Hill Local Environmental Plan No. 1 including Amendments
Sydney Regional Plan-Sydney Harbour 2005 (SREP)

CASES CITED: Parrot V Kiama [2004] NSWLEC77.

DATES OF HEARING: 04/05/2006, 05/05/2006, 31/05/2006, 14/08/2006

DATE OF JUDGMENT:
12/29/2006

LEGAL REPRESENTATIVES:
APPLICANT
Mr J. Robson, SC
Instructed by Mr P. Costa
of Costa and Associates
RESPONDENT
Mr J. Cole
of Abbott Tout solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Hoffman

29 December 2006

10981 of 2005 Concrete Pty Limited v Hunters Hill Council
JUDGMENT

1 This is a class 1 appeal in regard to the refusal of DA No.03-1154 at 39 Bonnefin Rd, Hunters Hill, to subdivide an existing lot into two and demolish the existing house, construct an elevated 4-car carpark up near the street, associated walls, paving, landscaping, stairs down from the car park and landing at the base of the carpark, detention tank under the carpark, inter-allotment drainage and services connections.

2 The site falls steeply down from the road to level land with absolute frontage to the Lane Cove River. This lower part of the land had once been a tennis court that had been constructed level using stone retaining walls on the west side along the boundary with No.41 Bonnefin Rd, and across the river frontage on top of the foreshore embankment. The walls were about 1m-1.5m high.

3 The existing house is up near the street boundary and presents as 1-storey to the road and 2-storey to the rear. There are substantial trees on the slope below the existing house but only limited trees around the old tennis court. Below the court the foreshore is natural shrubs on rocky shelves down to the water, and mangroves at the water level.

4 Due to the slope of the land vehicle access to the proposed lower lot is not practical and the application includes a proposal to build a 4-car parking and turning area in the approximate location of the existing house. A landing and stairway is proposed near the eastern boundary in the access handle of the lower lot to provide a pedestrian access, and beside it, adjacent the boundary with No.37 Bonnefin Rd, is a future inclinator route to the lower lot.

5 The initial design of the carpark had a central stair between the 2 sets of car spaces. The stair came to a landing below the carpark from which the upper house site could be accessed from the west side and the stair and inclinator to the lower lot could be accessed from the east side of the landing.

6 A re-design of the carpark during the hearing removed the central stair to give greater setback of 1.5m for the cars from the west side boundary, and 1.5 m to 2.8 m from the east boundary. The east boundary is at a splay to the street. The new position for the stair is down to the landing on the east side adjacent No.37. The carpark is elevated to street level using stone retaining walls. There is a 3500L detention tank below each set of 2 carspaces for stormwater from the carpark area. Water from each tank is spread by a diffuser on its own allotment. An easement over the lower lot will enable the upper lot’s roof stormwater to be piped by gravity to the river. A sewer main crosses the site about half way down its length.

7 A shared central drive entry gives access to the carpark. The carspaces are setback from the street boundary about 8m on the east and about 10m on the west side due to a slightly splayed front boundary. Two trees are proposed, one at the east and one at the west end of the street boundary. Landscaped strips varying between 6m and 0.4m wide are to be along the side boundaries from the street to the rear of the carpark.

8 The existing lot has 12.5m front boundary and about 90m deep to High water mark (HWM). It is roughly rectangular, but it has a taper on the east boundary for about two thirds the length of the lot at which point it is about 23m wide. For the remaining 32m length to HWM the east boundary is parallel to the west boundary. The level land of the old tennis court commences at the foot of the slope about halfway along the length of the lot. The level at the street is about 24.6 AHD, the level at the tennis court is about 8.5 AHD. The carpark area is set a little below the street by sloping down to about 1m below at its rear or northern end.

9 The proposed subdivision is on the centreline of the allotment at the street with reciprocal rights of way (ROW) over the driveway and manoeuvring area and the stairs down to the landing below the carpark. At the landing the upper proposed Lot 1 widens so that the access handle to Lot 2 is 3m wide along the east boundary.

10 Lot 1 has a useful length below the carpark of about 36m, with a width of about 12m at the rear of the carpark, and a width of 20.6m at the downhill end (approximately the bottom of the slope). Within the slope are some steep natural rock formations, of note is one on the eastern boundary that the inclinator would have to traverse. Large trees on Lot 1 occur within the slope in positions that are within or very close to the proposed Building Envelope for any future house. Lot 1 would have an area of 713.4 sq. m including the access area of the driveway and 2 car spaces. With the carpark area deleted it is about 577 sq m.

11 Lot 2 would have an area of 1102.5 sq. m. Its effective width at the house site is about 23m with a 1.5m wide drainage easement for lot 1 along its western boundary. This easement includes the space occupied along the western boundary by the old stone retaining wall. At the end of the drain diffusers are proposed above the river bank. Since the existing old stone retaining walls of the tennis court are to remain also at the river end of the site, the effective depth of lot 2 at the house site is about 24m, and the proposed Building Envelope is within that area. In any case the Foreshore Building Line set by the council is 15m, which is about the measurement from HWM to the top of the old tennis court retaining wall.

AMENDED STATEMENT OF ISSUES

12 The respondent says the issues are:

CHARACTER OF AREA, VISUAL IMPACT

Particulars

(a) The proposed subdivision will detract from the identity of the municipality of Hunters Hill and have a detrimental impact on the character and topography of the subject site and cause an adverse impact on the foreshore and the riverscape when viewed from the Lane Cove River and surrounding public and private areas.

SUBDIVISION

Particulars

DESIGN AND STREETSCAPE

Particulars

clause 2.4.1 off street parking is not provided behind the building line
clause 2.4.5 - no landscaping provided
clause 2.4.6 - insufficient details provided

(b) Non-compliance with clause 3.1(b) of Development Control Plan No. 15 residential development with associated carparking in that the proposal on a further reduced narrow frontage is not compatible with the character and scale of the residential development, in the immediate vicinity;

(f) Non compliance with the Building Code of Australia; the stairway on the southern boundary as proposed shows no landings (as required by the BCA) and will also affect the privacy of the neighbours at 37 Bonnefin Road. There are no details of the inclinator including foundation excavation, height above ground, carriage design, motor details, noise levels etc.

TREE LOSS

4. The proposal will require the removal of and significant adverse impacts on trees and vegetation. Particulars (a) Breach of DCP 17 clause 2.5.3.

(b) Whether consent should be granted to side boundary setbacks on the western boundary of the road frontage lot noting proximity of tree.

6. Adverse impact on amenity of surrounding residential developments including visual, views/outlook, privacy (visual and aural - noting also the inclinator proposal and lack of details), also noting the siting of the proposed dwelling on Lot 1 and uncharacteristic location in breach of the de facto building line.

7. Whether the proposal is satisfactory having regard to Bushfire Protection matters. The proposal does not comply with Rural Fire Service Requirements - Planning for Bushfire Protection 2001 , including slope and access in particular.

Particulars

9. Matters raised by objectors.

10. Whether s88B restrictions as to user and the other land controls can and should ensure the subdivision can, if approved, only proceed in conjunction with an approved complete dwelling design.

PRECEDENT

13 The respondent’s evidence was heard from:

Mr T Coote objector 31 Bonnefin Rd and President of Hunters Hill Trust.
Ms S Gaunt objector and member of the Hunters Hill Parks and Tree committee, past member Council’s Bushland Management Committee, and has managed such works on Nos 31,33,35 and 37 Bonnefin.
Mr W White objector 35 Bonnefin Rd,
Mr B McDonald architect urban planner and heritage expert.

14 The applicants evidence was heard from:

Mr P Jamieson, consulting engineer
Ms J Wells, consulting town planner.

Joint Experts

Mr R A Free the parties had agreed that he be appointed as a Joint Expert by the Court on Bushfire issues.
Ms C MacKenzie the parties had agreed that she be appointed as a Joint Expert by the Court on Arboricutural issues.

The Evidence

15 The experts noted that below No. 37 is another battleaxe lot with river frontage, No.35 Bonnefin. There is a fairly recent house on it approximately level with the proposed Lot 2 building envelope. I was told that lot had been created in 1927 and had development rights as a result. It is set in amongst vegetation.

16 Nos. 31 and 33 are an earlier battleaxe subdivision dating from 1908; and on No.31 is an old timber framed 2-storey house over a boatshed practically overhanging the water. It is a heritage item. The earliest notes of it are 1890, and it was known as Dempsey’s Boatshed from 1908 to 1956.

17 On No.33 up near the street above the boatshed is another heritage item, a 1960’s cottage designed by noted Melbourne architect Roy Grounds.

18 Across the bend in the river that creates a small bay to which the subject site faces, is Boronia Park a heritage item of landscape, through which, on the point opposite the site, a road comes to the water to an old punt crossing of the Lane Cove River. The site is in plain view at close quarters from there, across about 100 m of water as measured on Exhibit 2.

19 The foreshore of Boronia Park and extending around past the subject site has mangroves and is designated for environmental and wetlands protection Zone W2 under the Sydney Regional Plan-Sydney Harbour 2005 (SREP). Development is required to maintain, protect and enhance foreshore and water scenic quality, and views to and from the water at public places, landmarks and heritage items.

20 Under its related SREP development control plan, the area is Landscape Character Type 13 that notes minimal intrusion of development so that vegetation dominates, and development is to retain this character that gives enclosure and tranquillity to the waterway. The guide on development discourages buildings with boxy shapes with flat or skillion roofs, and expresses concern about cumulative impact on the foreshore of new development.

21 These aspects relate to the respondent’s concern that the “indicative house design plans” that are part of the application, are thought to be 2-storey high boxy shapes with almost flat skillion roofs. Also if this subdivision is approved it may encourage Nos 41 and 43 Bonnefin (that are similar sized and located lots) to seek subdivision, thus creating cumulative impacts on the foreshore. Amongst these impacts are loss of the large trees on proposed lot 1 that the respondent says will expose any house on Lot 1 to view whereas at present they screen houses from the waterway. It would also open up the existing canopy line along Bonnefin Rd that will expose more houses to view on the uphill side of the street. Successive new battleaxe subdivisions may also be sought on lots east and west of the site that could in time erode the waterway foreshore character sought to be retained by the statute and controls.

22 A contributor to this impact is the requirements of the Rural Fire Service (RFS). Boronia Park has significant bushland some of which is High Fire Hazard classification, and the site is within the designated Fire Hazard Buffer Zone. The RFS require the site to be maintained as an Inner Asset Protection Area under the Planning for Bushfire Protection Act 2001. This means removal of trees to obtain canopy separation to limit the spread of fire, and clearing of understorey to reduce combustible fuel.

23 Ms MacKenzie the arborist thought that with considerable care and special footings at the design stage, any house on Lot 1 could keep some of its big trees even with the site disturbance likely. This somewhat tenuous evidence was superceded when the bush fire hazard requirements came into evidence.

24 Mr Free analysed the fire hazards of the site and said that tree clearing to prevent spread of fire would be needed, notwithstanding that the big trees on site might wish to be retained for other reasons. That aside, he concluded that the one thing that would prevent subdivision is the inability of the Lot 2 house to provide a 20m Inner Asset Protection Zone on its own land, as required by the bushfire quidelines. The house had only 1.8m to 3.5m boundary setbacks, and no arrangement on adjoining properties to clear vegetation to provide the protection zone. The adjoining Nos 41 and 43 Bonnefin lots to the north are also in the fire hazard buffer area, and the parts of them on the riverflat are bushland, and do not meet the guidelines. In any case the guidelines do not favour protection zones overlapping property boundaries due partly to the obvious potential for neighbour disputes, and interference with propertry rights. Mr Free agreed that the RFS is the ultimate decision maker on what is necessary.

25 I allowed the applicant at the end of the first part of the hearing to receive an advice from the RFS of its requirements. On resumption of the hearing in August, the RFS, under s 100B of the Rural Fires Act 1997, said the subject land (Lots 1 & 2) had to be kept as Inner Asset Protection Zone. This meant tree clearing on the site but not on adjoining land. Pedestrian access to lot 2 would be acceptable provided:

1. Due to the distance from the existing fire hydrants, a new hydrant be established within 90m of the furthest point of any house on Lot 2.
2. The 90m is not a radial distance, it must be measured along the route that a hose would have to be laid, or,
3. A 5000L bushfire tank be built into Lot 2 with a 3kw petrol/diesel pump and 65mm storz fitting and ball or gate valve installed.
4. Any final consideration and approval could only be given on lodgement of architectural plans.

26 Mr Free said, part of the RFS requirements for inner protection zones is that sufficient trees would need to be removed to avoid interlocking canopies and give separation to minimize spread of fires. Also there be no canopy overhanging a house, probably due to potential for an ignited tree crown to drop burning debris onto the roof and/or the heat radiating from a burning crown could ignite a house. Trees on the subject site and large trees on adjoining sites have canopies that would partly overhang any house in the building envelope of Lot 1.

27 It was put to Mr Free that the site is in the outer part of the Bushfire Buffer Zone to the forest in Boronia Park, as shown in Exhibit H. He said it is in the outer part in fact the buffer boundary is about half way across No. 37 Bonnefin. But the High Hazard forest is to the north-west of the site, less than 100m from the Lot 1 and the Lot 2 building envelopes as measured on Exhibit H, and for bushfire, that is the worst direction due to typical fire patterns and winds for a bushfire to “jump” to the site.

28 It appeared that the subdivision proposal constituted “integrated development” under the Act that required more stringent conditions than would no subdivision and a single house or an attached dual occupancy on the lot.

29 Another, but minor aspect is the sewer connection. As mentioned above the sewer crosses the site partway up the slope. As a result the house on Lot 2 would require a holding tank and pump to lift the sewage up for discharge into the sewer pipe.

30 Another aspect is the long stairway and the inclinator being not part of this application; the drawings are said to be indicative only to demonstrate feasibility. Mr McDonald was concerned about aural and visual privacy and noise nuisance for the houses on No.37 and 35 due to both facilities being so close to them. He commented that the route of the inclinator had to go over a large rock outcrop, and that it would have to be excavated to achieve a uniform gradient that did not exceed the usual maximum design gradient for inclinators. Natural rock outcrops were sought to be retained for scenic protection. Also any excavation would be directly adjacent the house on No.37.

31 During the hearing the applicant disputed that the site is within a Foreshore Scenic Protection Area under the Hunters Hill LEP No.14 - Heritage Conservation. The authorised map was tendered in Exhibit 2, and indeed the site is within the FSPA. This triggers cl 18A and Ms Wells and Mr Jamieson said those considerations had been covered in their reports. The considerations are;

1. The appearance and visual quality of the proposed development when viewed from the waterway.

32 As might be expected the provisions of the SREP raise similar considerations with more guidelines on assessment.

33 In the plans, and evidence and submissions there is a continuous planter strip 55 m long shown along the eastern boundary adjoining No.37. It is intended to give some screening from the inclinator and the stairway that would be 36m long. To get over the same rock outcrop as the inclinator, it would have to be highly elevated, or the rock excavated and built out of masonry to hold soil for vegetation. No.37 is at zero side setback in places where the excavation would occur and may be undermined. The respondent said that these works of inclinator, stair, planter strip or box and services to Lot 2 needed more detail to understand the impacts. In traversing the rocky topography there could be other impacts, including being obvious from the water, and traversing the critical Root Zone of a significant tree T6 adjacent the boundary on No. 37 Bonnefin.

34 Mr McDonald said the design of the indicative house on Lot 2 was not the real concern, it was the impact of any house down on the foreshore flat that would be seen from Boronia Park being a heritage item, and the waterway, in a position where other houses except for Dempsey’s Boatshed did not occur. He said most of the other houses were set in the treeline, and unobtrusive. With the bushfire and other requirements any Lot 2 house would be a new element in the scenic protection area, and any Lot 1 house would also be in plain view.

35 It would also bring a new element into the shoreline visible catchment of the heritage item boatshed. Whilst he did not think that would be sufficient for refusal, further subdivisions and other houses closer to the river would diminish the vegetative dominance along the foreshore and the boatshed would have less presence as an early and individual building in that part of the river. There would be no impact on the other heritage building at No. 33 Bonnefin, he said.

36 The SREP identified this part of the foreshore and river as Type 13 and intended that views to and from the water should remain undisturbed as far as possible. The applicant’s inference that this part of the river is more like Type 14, a partly developed foreshore area, could not be supported.

37 He was directed to a set of fairly recent houses in a subdivision in Boronia Ave, just to the west of No. 43 Bonnefin. Their roofs are visible from the water, and they have vegetation around them and are directly adjacent the High Hazard Bushfire zone. Mr McDonald did not think it was comparable.

38 It seemed to me that those buildings, appeared lower and further setback from the river, and are less obtrusive than any house on Lot 2 or on Lot 1. The bushfire requirements of integrated development in this subdivision did not appear to apply to that development, perhaps it was before the Bushfire Act. The respondent submitted that an attached dual occupancy on the site away from the foreshore may be more acceptable.

39 Mr McDonald was questioned on streetscape impact. He agreed in the end that any house or houses on the site would have parking up at the street level at the front. Other houses in the street had garages closer to the road than this proposal. The carpark area would open views to the water where none existed now, it was true. It was noted that persons building on waterfront land may not be content with open shared carparking for very long. Most houses in Bonnefin had garages, or at least carports.

40 The applicant put that the whole of the site is zoned residential and that if no building is wanted down at the foreshore part (in addition to the 15m FSBL setback) then it should have been zoned to that effect. The applicant has a reasonable expectation of development. Also, if the tree protection and scenic landscape issues are to be as wished by the respondent the only place to put a new building is down at the foot of the slope.

41 The respondent pressed that another type of development may be acceptable. This is a heavily constrained site. It is likely that any re- development will be larger than the existing 1950’s cottage, and the difficult terrain suggests something where the existing house and the proposed carparking area is located, perhaps extending a little down hill of that.

42 The impacts of the current proposal are significant both at the subdivision stage and the future development that would result. It is a case where full subdivision and building details need to be in the application as indicated by case law in Parrot V Kiama [2004] NSWLEC77.

43 The matters of real concern in coming to a conclusion in this appeal are:

a) T his is a highly visible site in terms of the SREP, it is seen from the water of Lane Cove River, and the land of Carrington Beach and Boronia Park.

b) The critical foreshore to be protected is the 15m FSBL setback, but the statutes extend the important conservation, scenic protection and heritage considerations beyond the 15m to include the overall character of this part of the Lane Cove River and foreshore including the corridor of vegetation along the foreshore from Boronia Park to Fig Tree Bridge, and its prominent backdrop of tall trees on the hill slope and the ridgeline, with houses seen in amongst the trees.

c) The streetscape character in Bonnefin includes the trees as well as the buildings.
d) In both harbour/river scenic protection and streetscape issues, the treeline is almost continuous in amongst the houses all the way along. The subdivision itself may not take out the significant trees on this site, but any subsequent development must for reasons of:

1. bushfire protection requirements

2. even if the bushfire requirements do not take the trees, the steepness of the slopes means excavation in the Primary Root Zones as close as 1 m from significant trees T2 and T3 on the site and treesT4 and T5 and T6 just off the site on adjoining properties. Tree T1 is in the middle of the Lot 1 Building Envelope so it goes definitely. Tree T8 is the only large tree that is probably safe, but the arborists agree it is senescent and should be removed!

3. these trees grow on steep rocky ground, so the roots probably extend well beyond the canopy drip-line. Root mapping has not been done as yet, it may or may not enable some to be saved with careful design and construction methods, and site management to avoid contaminants. But all that is not known at this stage.
4. Unlike No. 35 Bonnefin that is outside the bush fire buffer zone, replanting of new trees and/or dense shrubbery in the body of the subject site to retain foreshore scenic and heritage character is not an option given the RFS requirements. The 2 trees proposed up at the Bonnefin St boundary would assist in the streetscape considerations, but not have any great value for the REP considerations.

e) Clause 26 of the REP requires that cumulative impacts be considered on views and vistas to and from public places, landmarks and heritage items. It is obvious from the evidence that the subject site, with houses on it, must be out of character with the existing scenic character, of tree and vegetation dominance and houses only seen amongst trees. This site if subdivided and developed will have 2 large 2-storey houses and a substantial carparking structure with either none or a couple of trees, and they will stand out to the observer contrary to the other houses in the vicinity. The visual assessment montage Plate 18 Exhibit E taken from Boronia Park illustrates that particularly when the evidence shows the trees in the montage screening the house on Lot 1 must be removed.

f) Constructing the carpark area and the planter strip that will, in places, need to be masonry over rock to hold soil, as part of the subdivision, will abut zero setback structures on No.37 and No.41 Bonnefin (see exhibit N). Although that can probably be dealt with, details of how are not in the subdivision application. The extensive stairway and inclinator, although not part of this application, are essential components of any access to Lot 2 and directly abut structures and a significant tree on No.37, and must excavate or build over natural rock outcrops. The impacts of these cannot be properly assessed and are inevitable results of any subdivision consent. The indicative house plans are not part of this application, but they are sufficient to determine that any house on Lot 2 is not conducive to achieving the planning outcomes sought by the applicable statutes and controls.
g) The respondent also pressed Issue 2 in that if Lot 1 is a Hatchet shaped lot then the carpark area must be deleted from the lot area giving a lot size of about 577 sq. m when the minimum is 700sq.m. The form of Lot 1 looks like a hatchet shape on plan view, and it could be construed that the development constitutes two hatchet shaped lots. That has the effect of reducing the landscape area calculations below the minimum for Lot 1. The shapes of the lots in this proposal have really evolved from the narrow street frontage and the topography that necessitates the carparking within the part of the site at the top of the steeply sloping land. It is really these constraints that demonstrate on such a site more room is needed to be able to place two detached houses on it, and to meet the other scenic and heritage and bushfire protection requirements of the statutes for both harbour front land under the State legislation, and prominent and sensitive land under the Hunters Hill legislation. Whether or not Lot 1 is hatchet shaped, the evidence shows, even with 1800 sq m for the whole site, the constraints do not allow a satisfactory outcome based on the current proposal.

44 Overall, I find Issues 1, 2, 4, 7 and 11 determinative and sufficient for refusal of the proposal.

45 The Orders of the Court are:

1. The appeal is dismissed.
2. The exhibits are returned to the parties except Exhibits 8, Issues from Exhibit 9, 10, 11, 12, 13, 14, 16, 18, A, B, C, D, E, F, G, H, L, M and N.

___________________

K G Hoffman

Commissioner of the Court

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Concrete Pty Ltd v Hunters Hill C [2006] NSWLEC 803

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CITATION:	Concrete Pty Ltd v Hunters Hill C [2006] NSWLEC 803
PARTIES:	APPLICANT Concrete Pty Limited RESPONDENT Hunters Hill Council
FILE NUMBER(S):	10981 of 2005
CORAM:	Hoffman C
KEY ISSUES:	Appeal :- subdivision of one lot into two and demolition of existing dwelling, landscape, vegetation, streetscape, heritage, harbour foreshore protection, bushfire hazard
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Rural Fires Act 1997 Planning for Bushfire Protection Act 2001 Hunters Hill Local Environmental Plan No. 1 including Amendments Sydney Regional Plan-Sydney Harbour 2005 (SREP)
CASES CITED:	Parrot V Kiama [2004] NSWLEC77.
DATES OF HEARING:	04/05/2006, 05/05/2006, 31/05/2006, 14/08/2006
DATE OF JUDGMENT:	12/29/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr J. Robson, SC Instructed by Mr P. Costa of Costa and Associates RESPONDENT Mr J. Cole of Abbott Tout solicitors

[2006] NSWLEC 803

29/12/2006