Dukic v Mid Coast Council

[2020] NSWLEC 1314

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Dukic v Mid Coast Council [2020] NSWLEC 1314

Hearing dates:

14 July 2020

Date of orders:

23 July 2020

Decision date:

23 July 2020

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The orders of the Court are as follows:

(1) Leave is granted to rely on amended plans provided in Exhibit D.

(2) The appeal is dismissed.

(3) Development Application 356/2018 for construction of a multi-dwelling development comprising six (6) single storey dwellings with associated driveways, landscaping and civil works on Lot 7 Section 21 DP 758979, also known as 6 Gollan Ave, Tinonee is refused.

(4) The exhibits are retained.

Catchwords:

DEVELOPMENT APPLICATION – multi-dwelling housing development – consistency with character and streetscape – tree retention

Legislation Cited:

COVID-19 Legislation Amendment (Emergency Measures) Act 2020

Environmental Planning and Assessment Act 1979

Greater Taree Local Environmental Plan 2010

Land and Environment Court Act 1979

State Environmental Planning Policy (Koala Habitat Protection) 2019

State Environmental Planning Policy No 44 – Koala Protection

Texts Cited:

Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (March 2020)

Greater Taree Development Control Plan 2010

Category:

Principal judgment

Parties:

Drago Dukic (First Applicant)
Gospova Dukic (Second Applicant)
Stevan Dukic (Third Applicant)
Mid Coast Council (Respondent)

Representation:

Counsel:
D Dukic (Self Represented Applicants)
A Seton (Solicitor) (Respondent)

Solicitors:
Marsdens Law Group (Respondent)

File Number(s):

2019/306208

Publication restriction:

No

Judgment

1. COMMISIONER: This is an appeal against refusal of Development Application (DA) 356/2018 by Mid Coast Council (hereafter the Council) which seeks construction of a multi-dwelling housing development, comprising six (6) single storey dwellings (units) with associated driveways, landscaping and civil works on Lot 7 Section 21 DP 758979, also known as 6 Gollan Avenue, Tinonee (hereafter the site).

Background

2. The DA was lodged with Council on 16 February 2018, and after notification, nine submissions, including a petition with 25 signatures in objection was received.

3. On 1 July 2019, the DA, despite a recommendation of approval from Council staff, was formally refused on the grounds of inconsistency with the relevant planning provisions that relate to character, and potential impact to the koala population of Tinonee.

4. The applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. In response, the Land and Environment Court (the Court) ordered a conciliation between the parties, pursuant to s 34(1)(a) of the Land and Environment Court Act 1979 (the Court Act), which commenced before a different Commissioner without a site view, and in Court (by Microsoft Teams) on 1 June 2020. This approach to conciliation (and hearing) was consistent with the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020 and the Court’s COVID-19 Pandemic Arrangements Policy, which commenced on 23 March 2020.

6. As the parties were unable to reach an agreement, therefore pursuant to s 34(4) of the Court Act, the conciliation was terminated. The hearing of the appeal is held under similar circumstances as the conciliation conference, without the benefit of site view, by agreement of the parties.

7. The parties agreed to proceed by Microsoft Teams in the hearing of the appeal, and to rely on photographs, reports and plans to provide the physical and environmental context for the site. The parties also agreed that expert and relevant evidence would be provided by written reports, with no oral evidence required.

8. Prior to the hearing of the appeal, amendments to the plans that support the DA were made, for which the Court grants leave to rely on, and which the respondent does not oppose. The amended DA plans are provided in Exhibit D. The Court has not been provided with the original plans submitted with the DA, and therefore relies solely on the amended plans in Exhibit D.

9. Further to the plan amendments, together with the draft conditions (Exhibit 4) and clarification provided by the planning expert report (Exhibit 3), the Council states that the contentions as specified in the Statement of Facts and Contentions (SoFC tendered as Exhibit 1) remain for the Court’s consideration to grant consent to this DA under appeal, being:

1. inconsistency with streetscape character,

2. unnecessary tree removal, and

3. as a consequence, the proposed development is not in the public interest.

The site

10. The site is a regular, rectangular shape, fronting respectively, 20.12m to Gollan Avenue, which forms the northern boundary, and Beecher Street, forming the southern boundary. The total area of the site is 2,023.25m^², with side (east and west) boundaries of 100.58m each.

11. As shown in the photographs tendered in evidence (Exhibit 5), Beecher Street has a wide, grassed verge, that is separated from the residential dwellings by landscaped setbacks. Gollan Avenue presents similarly, although the verge is less substantial. The local area is dominated by one and two storey detached dwellings. Driveway entries are a range of unformed and concrete.

12. Currently the site is cleared with a few mature trees scattered across the site, primarily towards Beecher Street, although most of the site is covered by grass. An unformed driveway entry is observed from Beecher Street.

13. The site has a cross fall of approximately 6m across the length of the site, towards the rear, in a south-easterly direction.

Relevant planning controls

14. The requirements of s 4.15(1) of the EPA Act are relevant for the Court’s consideration and must be satisfied for the grant of the DA under appeal.

15. During the hearing, the Council advised the Court that the site is located within designated bushfire prone land, and therefore the requirements of s 4.14 of the EPA Act are relevant for the Court’s consideration. It is noted that this is not raised in the SoFC and the applicant at the time of the hearing was unaware of this requirement. After judgment was reserved, the applicant provided to the Court a copy of a bushfire assessment for the site that relates to the requirements of s 4.14 of the EPA Act.

16. The site is located within the R1 General Residential zone, as described in the Greater Taree Local Environmental Plan 2010 (GTLEP). Pursuant to cl 2.3 of the GTLEP, the proposed development is permissible and the parties agree that the objectives of the zone are achieved, as follows:

Zone R1  General Residential

1 Objectives of zone

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

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

17. The parties also agree that the proposed development complies with the relevant development standards of the GTLEP.

18. The Greater Taree Development Control Plan 2010 (GTDCP) is particularly relevant for the Court’s consideration of this appeal, and the parties draw the Court’s attention to the following controls: Part B, Section B1.4.1, Tinonee character statement; Part G, car parking and access; Part H, residential requirements; and Part N, landscaping.

Evidence

19. The Court was provided with written evidence from the respondent’s planning expert, Mr Glenn Apps, tendered as Exhibit 3.

20. The applicant did not provide any expert report, however, relies on documents that support the DA, tendered in Exhibit E.

Is the proposed development consistent with the streetscape character?

21. The Council contends that due to the two proposed driveways on each street frontage, totalling four driveways for the site, the proposed development is uncharacteristic because of the extent of hard surface within the front setback and the resultant deficiency in appropriate landscaping.

22. The applicant maintains that the proposed development satisfies all the requirements of the GTLEP and GTDCP, and therefore relates to the streetscape character. Mr Dukic explained that the character of the streetscape is defined by landscaping in the established 7m front setback.

23. Mr Apps in his expert report, describes the streetscape character as having an established rhythm with lots of consistent width, single dwellings with lawn and garden areas, and turfed footways. The lots have single driveways to each lot. He observes a dominance in landscaping as a major contributor to the streetscape character of the neighbourhood.

24. Mr Apps, supported by the residents description in their objections, describes the local area as having a village context, which I note is also referred to within the GTDCP as the ‘Tinonee Village’.

25. It appears from the contention that it is the location, treatment and presence of the two proposed driveways accessing the site from both street frontages that is the primary issue to be considered within the context of the streetscape character.

26. The GTDCP at B1.4.1 unhelpfully does not provide a character statement for the Tinonee Village, which would have described ‘the context to guide future development within the locality’. Therefore, the Court must rely on its visual observations from the photographic evidence and assessment of the relevant controls of the GTDCP, in particular:

• H1, residential development, specifically objective to “Ensure new housing integrates with the surrounding scale and character of the locality”,

• H3.4, multi-dwelling housing, specifically objective to “Ensure that development sites have sufficient site area to accommodate appropriate setbacks and open space areas, including areas for deep soil planting and natural site drainage”, and the relevant performance criteria of

• Setbacks, specifically “The minimum front street boundary setback is 7m. Where adjacent multi dwelling housing development is closer to the front boundary, the setback may be similar to that of adjacent development. Likewise, where adjacent development is set further back, Council may require a greater setback than the minimum otherwise permitted”.

• carparking and access, specifically “Entrance driveways are to be designed to the minimum width necessary to serve any development and allow safe forward in and forward out movement. For developments servicing six or more dwellings, the entrance driveway across the footpath to the building setback is to be a minimum of 5m wide”.

27. The parties agree, and I concur that the proposed development achieves the relevant performance criteria relating to minimum setbacks and car parking/access, as established in the GTDCP.

28. Therefore, to properly assess whether the proposed development satisfies the relevant objectives for residential development and multi-dwelling housing, the relevant controls established in the GTDCP for landscaping are of relevant consideration. Landscaping, in addition to setbacks and other controls, is a feature that defines the streetscape character within the local area, and in particular the treatment of the open space in the front setback, which the parties agree is a characteristic feature of Tinonee.

29. The relevant landscaping objectives in N1 of the GTDCP for consideration are:

• “Maintain or improve the overall image and character of the area by ensuring that new development does not intrude on its surroundings and that an aesthetically pleasing environment is created for all”; and

• “Maintain and improve the visual amenity of townships consistent with the identified landscape character of an area”.

30. I agree with the streetscape character assessment of the respondent’s expert, Mr Apps. The two proposed driveways in the amended plans appear as two wide expanses of concrete across the front setback, which result in minimal landscaping opportunity. From the evidence before me, this is not characteristic of the streetscape character of Tinonee. Therefore, I find that the proposed development, specifically the two concrete access driveways proposed to each street frontage, is not in character with the streetscape, both existing and future desired.

31. The proposed development does not achieve the landscaping objectives, because it does not provide an aesthetically pleasing environment and does not improve the visual amenity of the Tinonee township. The dominance of the proposed concrete driveways and resulting minimisation of landscaping in the front setbacks, is not in character with the streetscape. The proposed development, with the two driveways in each front setback, does not accommodate appropriate open space in the front setback.

32. Therefore, the proposed development does not satisfy the objectives of the GTDCP, specifically H1 and H3.4, to ensure the “new housing integrates with the surrounding .. character of the locality” and “that development sites have sufficient site area to accommodate appropriate .. open space areas”, respectively.

33. I find the proposed development is contrary to the objectives of the GTDCP as it relates to streetscape character, multi-dwelling housing and landscaping. The proposed development does not satisfy s 4.15(1)(a)(iii) of the EPA Act, and I find that consent should not be granted to the DA under appeal.

Does the proposed development make sufficient provision for the retention of the trees on the site?

34. The Council contends that as a result of the two proposed driveways on the Beecher Street frontage, the proposed development results in the unnecessary and unsubstantiated removal of native (ironbark) trees. The Council accepts, as a positive contribution, the amended design that retains the (twin trunked) Forest Red Gum, located centrally in the site.

35. Mr Dukic is concerned that the contention as it relates to the removal of the (ironbark) trees was never an issue of concern raised in his pre-DA and appeal discussions with Council. He accepts and has amended the design to retain the Forest Red Gum, as shown the amended plans in Exhibit D. Mr Dukic considers the proposed driveways are appropriate to service the site as designed.

36. The objectors have raised an issue that the trees on the site are relied on by koalas in the local area. This observation is supported by the assessment of Council’s ecologist, whom found evidence of koalas in the Forest Red Gum. He was unable to identify koala use of the ironbark trees, which are proposed for removal due to the presence of vegetation, although did not rule out their reliance on these trees. Therefore, the issue of the removal of the ironbark trees was raised with the applicant in Council’s discussions, prior to the lodging of this appeal.

37. Council agrees that the site is not designated as a habitat for the protection of koalas, as described in either the State Environmental Planning Policy No 44 – Koala Protection (SEPP 44) or the more recent State Environmental Planning Policy (Koala Habitat Protection) 2019. However, argues that the observed presence of koalas on the site, specifically in the Forest Red gum, does not preclude the reliance of koalas on the ironbark trees and therefore, these trees should also be protected.

38. The arborist report that supports the DA, as provided in Exhibit E, is brief and non-specific. It does not mention the (Forest Red Gum) tree that is proposed to be retained by name, only to agree that the ‘tree is located between proposed units 3 and 4’, which I must presume relates to the Forest Red Gum should be protected. The report makes no reference to the significance or health of the ironbark trees proposed for removal. I find that the Applicant’s arborist report, relied on for this DA is deficient and insufficient to inform the Court on whether these trees should be retained or should necessarily be removed.

39. The burden of evidence is on the applicant to provide sufficient detail to inform the Court in its assessment. I have no evidence before me of the significance of these ironbark trees to the ecological habitat of the local area, including whether their removal would be detrimental to the native fauna, such as the koalas or whether they are healthy.

40. I am therefore unable to determine the environmental impact of the proposed development, and am not satisfied that the requirements of s 4.15(1)(b) of the EPA Act are sufficiently addressed.

41. The (ironbark) trees proposed for removal, as shown in the photographs provided in evidence, appear in character with the local area and potentially provide a connection to the native vegetation adjacent to the site. It is unfortunate that Council have recently approved a new development that removed a similar stand of trees on an adjoining lot, although I accept that the depth of that lot is much smaller than found on the site. It is however not sufficient to allow the trees on the site to be removed because they were similarly removed on the adjoining site.

42. I accept that the Council have no objection to the proposed landscaping plan should the ironbark trees be approved for removal. However, I find that tree removal proposed for the site is a result of the design of the proposed development, and am not satisfied that these trees need to be removed at all. A different design that did not have a driveway directly to unit 6 from the street or parking on the western side would potentially not necessitate the removal of some of the ironbark trees, and which would be more consistent with the streetscape, and provide a better environmental outcome.

43. Therefore, I find that based on the evidence before me, the removal of the nominated trees on the site does not satisfy the relevant objective in the N1.4 of the GTDCP “to retain existing vegetation where possible”, and the DA is inconsistent with the requirements of s 4.15(1)(a)(iii) of the EPA Act.

Conclusion

44. The proposed development has been assessed by the Court, based on the evidence provided, including the DA’s amended supporting plans, documents, expert reports and photographs.

45. In my assessment, I find that the proposed development is not in the public interest because it is not consistent with the streetscape character and could potentially result in an unacceptable environmental impact due to the removal of native trees. Therefore, s 4.15(1)(e) of the EPA Act is not satisfied.

46. In summary, I find that the DA does not satisfy the requirements of the EPA Act, specifically subss 4.15(1)(a)(iii), (1)(b) and (1)(e). The Court has made no determination of the DA’s satisfaction of s 4.14 of the EPA Act.

47. The appeal that relates to DA 356/2018 is refused, pursuant to s 4.16(1)(b) of the EPA Act.

Orders

48. Consequently, the orders of the Court are as follows:

1. Leave is granted to rely on amended plans provided in Exhibit D.

2. The appeal is dismissed.

3. Development Application (DA) 356/2018 for construction of a multi-dwelling development comprising six (6) single storey dwellings with associated driveways, landscaping and civil works on Lot 7 Section 21 DP 758979, also known as 6 Gollan Ave, Tinonee is refused.

4. The exhibits are retained.

…………………….

Sarah Bish

Commissioner of the Court

**********

Amendments

28 July 2020 - Typographical error at [3] corrected.

Decision last updated: 28 July 2020