Dipper v Pittwater Council

[2006] NSWLEC 273

Land and Environment Court

of New South Wales

CITATION:	Dipper & Ors v Pittwater Council [2006] NSWLEC 273
PARTIES:	APPLICANTS George and Karen Dipper RESPONDENT Pittwater Council
FILE NUMBER(S):	10035 of 2006
CORAM:	Preston CJ
KEY ISSUES:	Appeal :- modification of development consent condition requiring removal of existing trees that would grow to block views from neighbouring properties and replacement with smaller plants - whether condition within power - condition related to development by ensuring view sharing - alternative proposed condition requiring covenant to maintain trees at certain height rejected - condition modified in part to allow retention of trees where they did not affect views
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 96, s 96(6)
CASES CITED:	Newbury District Council v The Secretary of State for the Environment [1981] AC 578
DATES OF HEARING:	28/04/2006, 01/05/2006, 02/05/2006
EX TEMPORE JUDGMENT DATE:	05/02/2006
LEGAL REPRESENTATIVES:	APPLICANTS Mr M Campbell (barrister) SOLICITORS N/A RESPONDENT Mr A Pickles (barrister) SOLICITORS Mallesons Stephen Jacques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

2 MAY 2006

10035 OF 2006

DIPPER & ORS V PITTWATER COUNCIL

JUDGMENT

1 HIS HONOUR: This is an appeal to this Court under s 96(6) of the Environmental Planning and Assessment Act 1979 (“EPA Act”) against a refusal dated 23 February 2005 by Pittwater Council (“the Council”) of the applicants’ application to modify a development consent by deleting a condition of the consent.

2 Development consent number No 012/03 was for alterations and additions to an existing dwelling at 4 Fermoy Avenue, Bayview (“the consent”). The consent had been granted on 17 December 2003.

3 The alterations and additions included the erection of a first floor addition to the existing dwelling house. This first floor addition considerably reduced the scenic views to Pittwater from properties to the south and uphill of the applicants’ property.

4 The Council imposed two conditions of consent intended to maintain a view corridor, particularly over the rear yard of the applicants’ property to Pittwater. The two conditions were:

“B53. The submission of details concerning the removal of all existing conifer plants established along and adjacent to the side boundaries of the property and the replacement of these plants with low-growing shrubs with a maximum mature height of generally 2.5m. A qualified horticulturalist is to provide certification that the species selected will mature to a maximum height of generally 2.5m.
D1. All plants along and adjacent to the side boundaries of the site are to be maintained to a maximum trimmed height of 2.5m.”

5 The “existing conifer plants” referred to in condition B53 had been planted by the applicants in 2002.

6 At the time of grant of the development consent, the applicants had a class 1 appeal pending in this Court against the deemed refusal of the development application. The Council had resolved on 15 December 2003 to grant development consent on the conditions that included the two I have quoted above, subject to the applicants lodging a notice of discontinuance of the appeal.

7 The applicants agreed to this proposal and discontinued their appeal in this Court. Accordingly, the applicants accepted the conditions.

8 The applicants then carried out the development in accordance with the consent. This included the applicants taking steps to comply with the requirements of condition B53, that a qualified horticulturalist provide certification that the species selected to replace the existing conifer trees would mature to a maximum of 2.5 metres. The applicants engaged Ms Penny Hunstead, a qualified horticulturalist. Ms Hunstead, by letter dated 6 April 2004, certified that a particular species, Syzygium ‘Cascade’ (a hybrid cross of Syzygium leuhmannii and Syzygium wilsonnii) would be appropriate species and would have an approximate height of 2.5 metres and a spread of 1.2 metres.

9 On 29 August 2005, a construction certificate was issued.

10 The applicants wrote to the Council on 21 October 2004, which letter was received by the Council on 24 October 2004, seeking, pursuant to s 96 of the EPA Act, to remove condition B53.

11 On 21 February 2005, the applicants’ modification application was reported to the Council’s Environment and Planning Committee. The Committee endorsed the recommendation to refuse the modification application. The reason given for refusal was:

“The proposed deletion of condition B53 cannot be supported. The retention of the Leyland Cypress trees is contrary to the requirements of DCP LP15 which requires that all canopy trees shall be indigenous to the local area.”

12 On 23 February 2005, the Council notified the applicants of its refusal of the modification application.

13 On 19 July 2005, an interim occupation certificate was issued.

14 Some time thereafter, the applicants entered occupation of the altered dwelling house.

15 On 19 January 2006, the applicants appealed under s 96(6) of the EPA Act to this Court.

16 On 23 March 2006, the Council filed a statement of issues. That statement identified four issues dealing with view loss, landscaping and natural environment, solar access and discretion. These issues stated in part the following:

“1. The development approved in consent number N0012/03 involving an upper storey addition to 4 Fermoy Avenue had an adverse impact on views available from neighbouring properties. That view loss is exacerbated to an unreasonable extent by the existing conifer trees (the “Leyland Cypress trees”) on the side boundaries of 4 Fermoy Avenue and the growth potential of those trees will further impact on views available from neighbouring properties.

2. The existing Leyland Cypress trees should be replaced by locally indigenous species.

3. The Leyland Cypress trees overshadow and have the potential to further overshadow the property at 6 Fermoy Avenue.

4. The Court should not exercise its discretion to grant consent to the modification application under the Environmental Planning and Assessment Act 1979 ( NSW ) in circumstances where the applicant has enjoyed the benefit of the development consent and seeks to avoid the burden of that development consent through modification applications.”

17 On 17 March 2006, the applicants filed a preliminary question of law which stated:

“Whether the Development Consent condition number B53 of DA N0012/03 which states:

‘The submission of details concerning the removal of all existing conifer plants established along and adjacent to the side boundaries of the property and the replacement of these plants with low growing shrubs with a maximum mature height of generally 2.5m. A qualified horticulturalist is to provide certification that the species selected will mature to a maximum height of generally 2.5m.’

is invalid and therefore unenforceable and need not be complied with.”

18 On 23 March 2006, Jagot J refused to fix the question as a preliminary question and instead ordered that the question be dealt with at the hearing of the appeal to be listed before a judge. The appeal was listed for hearing, commencing on 28 April 2006.

Question of law

19 Mr M Campbell, counsel for the applicants, submitted that condition B53 was ultra vires because it did not relate to the development. Mr Campbell referred to the various statutory provisions governing the power of a consent authority to impose conditions, including section 80A of the EPA Act, which refers in turn to section 79C. Mr Campbell invoked the threefold test of validity expounded in Newbury District Council v The Secretary of State for the Environment [1981] AC 578. This threefold test is that a condition, in order to be valid, must:

(a) be imposed for a planning purpose;

(b) fairly and reasonably relate to the development for which permission is given; and

(c) be reasonable in the sense that it must be a condition which a reasonable local authority properly advised might impose.

20 Mr Campbell submitted that condition B53 fails the second of these tests in that it could not be said that it fairly and reasonably related to the development for which permission was given, namely, the alterations and additions to the existing dwelling house.

21 Mr A Pickles, counsel for the Council, rejected this submission. Mr Pickles said that, on a proper examination of the development the subject of the application, condition B53 did fairly and reasonably relate to the development. The condition was imposed in order to preserve view sharing. View sharing was necessary because the alterations and additions had removed or obscured in part views from properties uphill of the applicants’ property.

22 I reject the submission that the condition B53 is invalid. It is quite clear that the alterations and additions that were the subject of the development application and that were approved by the development consent did have the effect of reducing the views to Pittwater from properties uphill and to the south of the applicants’ property. To compensate for this loss of view, it was necessary to preserve for the future a view corridor over other parts of the applicants’ land, notably the rear of the property.

23 Condition B53, by requiring the removal of plant material that had the capacity to grow to a height that would obscure the views and by requiring its replacement with plant material which would not have a capacity to grow higher than 2.5 metres and would not obscure views, can reasonably be said to relate to the objective of view sharing and to compensate for the view loss caused by the alterations and additions the subject of the consent.

24 Accordingly, condition B53 is within power.

Merit issues

25 Three merit issues have been raised by the Council, together with a fourth issue which deals with discretion. The three merit issues are view loss, landscaping and natural environment and solar access. I will deal with each.

View loss

26 If condition B53 were to be removed as sought in the original modification application, there is no doubt that the existing Leyland Cypress trees would grow to a height that would obscure the views to Pittwater from properties uphill of the applicants’ property.

27 For the reasons that I have given in relation to the question of law, it was reasonable for the condition to limit the height of the trees. This compensates for the loss of views that was caused by the alterations and additions to the existing dwelling house.

28 The Council’s solution in order to maintain view sharing was twofold. First, to replace the existing conifer trees which had the capacity to grow to a height which would obscure views, with trees that had an inherent genetic capacity not to grow in maturity to a height greater than 2.5 metres. This is reflected in condition B53. Secondly, the Council imposed a check on this first means of control by imposing a condition that required the replacement trees to be maintained to a maximum height of 2.5 metres. This is reflected in condition D1.

29 As I have said, the applicants’ proposal to remove condition B53 entirely would remove an important means of ensuring view sharing occurs. I reject that approach.

30 In the alternative, the applicants put forward another means of controlling the height of the trees rather than the means proposed by Council of removing the trees. This was to retain the trees but to impose a private covenant on the title of the applicants’ land which would require the applicants and their successors in title to maintain the trees at a particular height, nominated as 4 metres above existing ground level, and which would give the uphill properties that would benefit from the covenant certain rights to require the applicants to retain the trees at the nominated height and, in default, to enter upon the properties and to carry out that work at the expense of the applicants.

31 This alternative proposal was reflected in a letter to the solicitors for the Council dated 26 April 2006 which became exhibit D.

32 I reject this means of controlling the height. The far preferable planning solution is to devise a means which does not depend upon constant maintenance of landscape material. The Council’s solution achieves this goal. The Council’s solution is to replace trees which have an inherent capacity to grow higher than the desired height, with trees which have the inherent capacity to grow only to the desired height. This is the preferable solution. The alternative of a covenant is a second best solution. It involves, for the life of the development, continually maintaining plant material at a certain height. It involves constant dealings between respective owners of the properties burdened and benefited by the covenant and their successors in title. It would inevitably lead to discontent and argument between the owners. Generally, it is preferable that conditions imposed under the EPA Act should not depend upon private covenants between neighbouring properties.

33 The applicants have suggested a third alternative. This involves the removal of most of the existing conifer trees that occur in the critical view corridors. Ultimately, this proposal was amended and was shown in a plan which identified the areas in which the existing conifer trees would be retained and the areas in which the existing conifer trees should be removed. This became exhibit K.

34 In essence, the applicants proposed retaining the existing conifer trees to the west or rear of the property and in a section to the south and adjacent to the swimming pool in the rear yard of the property. The applicant proposed to remove the existing conifer trees for the length of the section of the southern side boundary starting at a point where there is a change in level from the lower terrace where the swimming pool is located to the higher level of lawn on the southern boundary, along to the front wall of the house. The applicant proposed to retain the remaining, short section of existing conifer trees in the front yard from the front wall of the house to where those trees meet with another section of hedge of a different species, Murraya paniculata. On the northern boundary, there are fewer existing conifer trees. The applicants proposed to remove those trees with the exception of the ones in the section to the west or rear of the property.

35 When this third alternative was put forward, it became evident that further evidence would be needed to show where, on the ground, the trees proposed to be retained were located and what effect those trees would have on the views to Pittwater from the uphill properties. A set of photographs was taken. They have been tendered as exhibit 12.

36 Those photographs show that the section of the existing conifer trees in the front yard, which on exhibit K the applicants wanted to retain, would nevertheless have the capacity, if allowed to grow to 4 metres high, to obscure views from the front yards of properties uphill and from the street. Accordingly, the retention of these trees would be undesirable. It would be preferable that those trees be replaced by trees which have the inherent capacity to grow no higher than 3.5 metres high. This would ensure that the views to Pittwater from the front yards of properties uphill and from the public road would not be obscured.

37 The photographs also show the interface between the section on the southern side boundary where the trees would be removed and the section where the trees would be retained. As I have said, this occurs at the change in level from the lawn area in the rear yard to the terrace adjacent to the swimming pool.

38 A sight pole was erected at that point and is clearly shown in the photographs. Photographs were taken from each of the neighbours’ properties uphill. The photographs show that, if the trees were removed along the southern side boundary as proposed by the applicants, then the view corridor would be maintained for the properties uphill. The photographs also show that the trees which are shown on exhibit K as being retained, could be retained at the existing height of about 4 metres without affecting the existing views to Pittwater from the uphill properties.

39 Accordingly, the third alternative proposed by the applicants does achieve the underlying objective of condition B53 of retaining view sharing to Pittwater for the uphill properties.

40 The photographs also show that the trees to the west or rear of the property have no effect on views to Pittwater from any of the uphill properties. It is not necessary that these trees be maintained to any particular height, because regardless of the height, they will have no effect on the views. This is because the existing vegetation that is on other properties already obscures views. Accordingly, the area shown to be retained in exhibit K to the west or rear of the applicant’s property can be retained without any restriction on the height of the trees.

41 Finally, the photographs show that the existing conifers on the northern side boundary in the area shown to have trees removed next to the swimming pool, do have an effect on views from uphill properties and ought to be removed. This is what the applicant has proposed.

42 Considering the matter of view loss, the applicants’ proposal shown in exhibit K is a reasonable means of implementing the objective of sharing views, with the exception that the area of existing conifer trees in the front yard, which in exhibit K the applicant had proposed to retain, should in fact be removed and replaced with alternative plant material which has an inherent capacity to grow no higher than 3.5 metres. With that variation, the proposal put forward by the applicants can meet the underlying objective of condition B53.

43 The parameter that ought to be imposed in any replacement condition is that the existing conifer trees in the area shown in pink on exhibit K should be removed and replaced by other plant species which would grow to a maximum mature height of no more than 3.5 metres. This restriction should also apply to the area that is shown in green in the front yard of the property. In the area that is shown in cross-hatched green, which is along the southern boundary, the existing conifer trees can be retained but they should be limited to the existing height which is 4 metres. A condition should require that the trees in that area be retained to a height of 4 metres.

44 In the area on the western or rear boundary of the property boxed in green, the existing conifer trees can be retained and there need be no restriction on the height of those trees in that area.

Landscaping and natural environment

45 This Court, when determining an appeal, must apply the facts and the law that is in force at the time of the appeal. This is a necessary consequence of the appeal being a hearing de novo. At the time of this appeal, a new development control plan (DCP) and tree preservation order have come into force. These were not in force at the time when the Council granted consent originally. There were other controls in force at that time.

46 The current DCP and tree preservation order were tendered and became exhibit 11. The tree preservation order now lists as an undesirable plant, all species of the genus Cupressus, or Cypress pine. This would include the Leyland Cypress.

47 The DCP, in section C.1.1, Landscaping, has a control that all canopy trees, and a majority (more than 50 per cent) of other vegetation, be locally native species. It also contains a provision that noxious and undesirable plants must be removed from the site.

48 Conditions B53 and D1 did not require that the existing conifer trees that were to be removed should be replaced by indigenous species. The conditions simply required that the species be species that would grow to a maximum mature height of no more than 2.5 metres.

49 However, having regard to the new DCP and the tree preservation order, if there is to be a modification of the conditions, it is desirable to try and accord with the new policy objective reflected in the DCP and the tree preservation order. If the existing conifer trees are removed in the areas that I have earlier indicated in the preceding section dealing with view loss, there will be ample opportunity to replace those trees with indigenous species.

50 However, one should not be too strict in relation to this. For example, in the area of the front yard there is an existing hedge along the eastern or front boundary and the front section of the southern boundary of a non-indigenous species, namely Murraya paniculata. For aesthetic and landscaping reasons, it may be that a continuation of that species would make for a more pleasing hedge in the location of the front yard than replacement with an alternative species. That, however, is a matter which the applicant and the Council can determine in light of these reasons.

51 Apart from that section, it would be desirable that the existing conifer trees along the balance of the southern side boundary and the northern side boundary be replaced with indigenous species. I note that the applicants’ horticulturalist, Ms Hunstead, had proposed to replace the existing conifers with an indigenous species, being of the genus Syzygium. The proposed plant is a hybrid, but nevertheless it is of a genus that is indigenous. That plant species may be an appropriate one. However, there is a suite of indigenous species set out in the Council’s booklet, “Native Plants For Your Garden”, which was tendered and became exhibit H. I am sure that there is a range of different species that would be suitable and which the applicant and the Council could find to be appropriate.

52 If these guidelines are adopted, the objectives of removing most of the undesirable plants will be achieved, together with replacing at least 50 per cent of the plant material removed with indigenous species. That would be a reasonable compromise in the circumstances.

Solar access

53 The issue of solar access did not loom large in the proceedings. Obviously, any plant material planted on the southern side boundary of the applicants’ property, which corresponds with being the northern side boundary of the properties to the south, would have the effect of overshadowing the properties to the south. It matters not whether the plants are the existing conifer trees or any replacement indigenous species. Either way, the plants will have the effect of overshadowing the properties to the south.

54 The extent of overshadowing has been calculated and the calculations were tendered as exhibit 4. The calculations show that a proportion of the rear yard would be overshadowed. However, if the tree height is maintained to a height of 3.5 metres in the area in which I have required that there be a height restriction of that kind, and to 4 metres for the balance of the hedge, such restrictions would have a reasonable effect in mitigating the extent of overshadowing on the rear of the property to the south.

55 There is no need to take any further measures to control solar access to the rear of the property to the south of the applicant.

Discretion

56 The applicants have put forward as one of the reasons for their primary contention that the condition B53 should be removed, that compliance with the condition would cause hardship to them. The hardship falls into the following categories.

57 First, the existing conifer trees have now grown to a height that they form an effective screen which gives privacy to the applicants on their property. This privacy has become even more important now that consent has been granted to alter and extend the dwelling house on the neighbouring property to the immediate south and that works have now been undertaken pursuant to that development consent. The higher and extended location of the dwelling house on the property to the south will enable greater overlooking, particularly of the rear yard of the applicants’ property. If the existing conifer trees are required to be removed, there will be a period of time when the rear of the applicants’ property will be exposed before the replacement plants grow to a height that would afford the degree of privacy that is now offered by the existing conifer trees.

58 Secondly, the applicants say that the removal of the trees, which by now have grown to at least 4 metres, would involve considerable cost. Certainly, replacement with advanced specimens which would give a similar degree of privacy as the existing conifer trees would be very expensive. A quote was put forward by Ms Hunstead in the order of $20,000.

59 The Council submits that any hardship of these kinds that might be incurred by the applicants has been brought about by their own conduct. The conifer trees were planted in 2002. The development consent was granted in December 2003. At that point in time the trees could have been removed and replaced at a far lower cost than the cost that would now need to be incurred. Furthermore, if that had been done at the time of grant of consent, there would have been some two and a half years of growth, which would have meant that the applicants would now be starting to get some privacy screening by the plant material that could have been planted at that time.

60 There is some force in what the Council says. It is never a desirable outcome to have to remove and replace landscaping that is pleasant and serving some purpose. There obviously is going to be a hiatus period.

61 Nevertheless, the objective that conditions B53 and D1 was designed to achieve was a meritorious one in planning terms. It can still be achieved with the modifications that I have suggested. Some of the hardship to the applicants will be mitigated by retaining the trees along the west or rear boundary and that section of the existing conifer trees to the southern boundary adjacent to the swimming pool. The balance can be replaced reasonably quickly. There will be a period of time for the replacement trees to grow to the maximum height approved, but in the circumstances that is a reasonable compromise.

62 In the circumstances, the discretionary considerations do not mitigate against the solution that I have proposed.

63 For these reasons, I would uphold the appeal in part by way of modifying conditions B53 and D1 so as to allow the proposal put forward in the plan that is exhibit K with the qualifications that I have earlier given in the section on view loss in the reasons for judgment. Because it will be necessary to draft a condition which reflects the reasons I have given, I propose to give the parties the opportunity to formulate short minutes of order which will reflect these reasons. The matter can then be listed before me again and I will make orders in accordance with those short minutes of order, provided they reflect the reasons that I have given.

5 MAY 2006

ORDERS

64 The Court makes the following orders:

1. The appeal be upheld.

2. Condition B53 and D1 of Development Consent N0012/03 be replaced with Conditions B53 and D1 shown in the Annexure marked “A”.

3. The Applicant pay the Respondent’s costs of reopening the hearing on 1 May 2006 in the sum of $3,000.

10035 OF 2006

DIPPER & ORS V PITTWATER COUNCIL

Annexure A

Proposed amended condition B53 and Condition D1

B53 (a) The existing conifer plans located along and adjacent to the central section of the southern side boundary of the property, hatched and marked A in the attached diagram marked “1”, and the existing conifer plants located along and adjacent to the northern side boundary of the property, also marked A in Attachment 1, are to be removed and replaced with alternative indigenous plant species which will grow to a maximum mature height of 3.5 metres. The alternative plant species that are to replace the existing conifers are to be selected from:

(i) the list attached and marked “2”, being List of Suitable Alternative Plant Species; or

(ii) any other species from section 5 “Rolling Hills and Lower Slopes” of the booklet prepared by Pittwater Council entitled “Native Plants for your Garden”. If the alternative plant species is selected from this booklet and not from the list in Schedule 2, a qualified horticulturalist is to provide certification that the species selected will mature to a maximum height of generally 3.5 metres.


(b) The existing conifer plants located along and adjacent to the eastern end of the southern side boundary of the property, marked B in Attachment 1, are to be removed and replaced with Murraya paniculata plants are not planted at this located then a qualified horticulturalist is to provide certification that the species selected will mature to a maximum height of generally 3.5 metres.

(c) The works referred to in paragraphs (a) and (b) are to be completed by 6 November 2006.

D1 All plants located along and adjacent to the western end of the southern boundary, marked C in Attachment 1, are to be maintained to a maximum trimmed height of 4.0 metres. All other plants planted in locations along and adjacent to the side boundaries of the property marked A and B in attachment 1 are to be maintained to a maximum trimmed height of 3.6 metres.

“2”
List of Suitable Alternative Plant Species


Species contain under section 5 “Rolling Hills and Lower Slopes (RH)” of “Native Plants For Your Garden” brochure prepared by Pittwater Council

1 Banksia spinulosa
2 Callistemon polygalifolium
3 Leptospermum polygalifolium
4 Grevillia sericea
5 Dodenea triquetra
6 Melaleuca hypericifolia
7 Rapanea variabilis

Species not contained under section 5 “Rolling Hills and Lower Slopes (RH” in “Native Plants For Your Garden” brochure prepared by Pittwater Council

8 Baeckia virgata
9 Aemena cvs.
10 Syzygium cvs.
11 Rainforest spp.

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