Foster, F C v Hornsby Shire Council

[2006] NSWLEC 809

Land and Environment Court

of New South Wales

CITATION:	Foster, F C v Hornsby Shire Council [2006] NSWLEC 809 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT: Frederick Charles Foster RESPONDENT: Hornsby Shire Council
FILE NUMBER(S):	10837 of 2006
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Dwelling house: Tree removal
LEGISLATION CITED:	Hornsby Shire Local Environmental Plan 1994, (HSLEP) Environmental Planning and Assessment Act 1979, ss 79C and 97
DATES OF HEARING:	05/12/2006
EX TEMPORE JUDGMENT DATE:	12/05/2006
LEGAL REPRESENTATIVES:	APPLICANT: Mr F C Foster, applicant SOLICITORS: N/A RESPONDENT: Mr T Pickup, solicitor SOLICITORS: Storey and Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

5 December 2006

10837 of 2006 - Frederick Charles Foster v Hornsby Shire Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Hornsby Shire Council (the council) to refuse a development application to erect a new single-storey brick-veneer dwelling with a tiled roof at Lot 2, DP 20355738, Dudley Street, Asquith.

2 I visited the land in company with the parties on the morning of the hearing and heard from the applicant and the council representatives on-site.

3 I have concluded that as the tree is significant and should be preserved, the application for the dwelling house should be dismissed.

The land

4 The land is situated on the southern side of Dudley Street and is rectangular in plan. It has a front and rear boundaries of 15.26m and side boundaries of 56.39m and an area of some 853.6m2. The site has a fall of about 5m down from the rear (southern) boundary to the front (northern) boundary.

5 Erected on the land is an existing single-storey brick dwelling setback about 25m from the Dudley Street frontage. There is a freestanding carport is also located within the front setback of about 10m from the Dudley Street frontage. Growing on the land are five (5) trees including an Angophora costata, (Sydney Red Gum), a Jacaranda and Cotoneaster. The council officers assessed the Angophora as being a significant tree.

6 The locality is characterised by single-storey and two-storey dwellings, which are predominantly of brick-veneer construction with tiled roofing. However, there are some weatherboard dwellings nearby. To the west of the subject land is No 36 Dudley Street where there is a single-storey weatherboard dwelling. To the east, is No 40 Dudley Street a single-storey brick dwelling. Consent has recently been granted for the subdivision of No 40 Dudley Street, Asquith into two (2) lots.

Relevant planning controls

Hornsby Shire Local Environmental Plan 1994, (HSLEP)

7 Under the provisions of the HSLEP the land is zoned Residential A (Low Density) and the proposal as a ‘dwelling house’ is permissible with consent, [Note: cl 7, HSLEP].

8 Under cl 15 of the HSLEP development in the Residential A (Low Density) zone is not to exceed a maximum floor space ratio (FSR) of 0.4:1, and the proposal complies with this requirement.

9 The council's Dwelling House Development Control Plan, (DHDCP) is relevant and elements relating to Landscape, Flora and Fauna Protection apply to the proposal.

The proposal and its history

10 Development application No 969/06 was lodged with the respondent council on 11 July 2006 to erect a new dwelling house on the land.

11 The proposed new dwelling would include four (4) bedrooms, a study (or fifth bedroom), family room, dining room, lounge room, rumpus room, kitchen, laundry, bathroom, ensuite and double garage.

Notification

12 The application was notified to nearby owners and occupants in accordance with the council's Notification and Exhibition Development Control Plan and the council received no submissions.

13 On 27 July 2006, an officer from the council's Parks & Landscape team inspected the land and identified the indigenous Angophora costata (Tree 1).

14 By letter dated 29 July 2006, the council requested the applicant consider amending the plans to relocate the dwelling house at least 5m from the trunk of this significant tree (Tree 1).

15 On 16 August 2006, the applicant replied and disputed the council's assessment of the significance of Tree 1 and requested that the council reconsider the matter of the tree. By letter dated 23 August 2006, the council advised the applicant that it maintained the view that Tree 1 was significant and that it did not support removal of the tree.

The council’s decision

16 On 5 September 2006, the council, under delegated authority refused development application No 969/06 on the following ground:

1. The proposed dwelling house is less than 5m from Tree 1 (Angophora costata) assessed as significant by the council's Parks & Landscape team. There is adequate area elsewhere on the site to either relocate or redesign the proposed dwelling house to provide this setback. The proposal will have a detrimental impact on the health and wellbeing of this tree and does not comply with the performance criteria and objectives of the Flora and Fauna Element of the Dwelling House Development Control Plan.

The hearing

17 The appeal was filed on 13 September 2006.

18 Mr F C Foster the applicant gave evidence. Mr D Hoye, Tree Management Coordinator gave evidence on behalf of the council, [Note: Exhibit 4].

19 Mr N McCarry (B.T.P), Team Co-ordinator, Hornsby Shire Council, prepared the statement of basic facts dated 16 November 2006.

The issues

20 On 12 October 2006 the council filed a statement of issues.

IMPACT ON SIGNIFICANT TREE

Angophora costata, which is located on the western boundary of the site.

Particulars

Particulars

a) The proposed development has not been designed to retain an existing significant tree, which has potential as a fauna habitat.
b) The proposed dwelling house has not been designed to minimise disturbance to an existing significant tree, which adds to the visual amenity of the area.

21 The removal of the tree is the salient issue.

The evidence and findings

Removal of the tree

22 Mr Foster contested the council’s statement of significance for Tree No 1, the Angophora costata and stated:

On 20 October 2006 I discussed those Prescriptive Measures with Hornsby Councils Environmental Scientist Mr Jamie Slaven. He confirmed that none of the Prescriptive Measures apply to 38 Dudley St Asquith. It is not in a Bushland Conservation Area, Core Bushland, Bushland Corridor, Fauna Habitat Link or classed as Other Significant Bushland. Nor is it adjacent to any of those areas, or adjacent to a National Park, Nature Reserve or public open space. He indicated that 38 Dudley Street is in an ordinary suburban area.
I believe that the Element Objectives and Performance Criteria of the Flora and Fauna …can be interpreted in many different ways unless the Prescriptive Measures are also taken into account. In particular statements like “Vegetation which adds to the visual amenity of the area should be retained”, and “Dwelling-houses should be designed to minimise disturbance to existing vegetation”, need to have their boundaries set by the Prescriptive Measures.
I do not agree that the tree is well formed, as it is heavily biased to the east. The upper trunk curves that way and approximately 90% of the bulk above the trunk is on the east side. Having observed this growth habit for 24 years, I am now concerned about the risk to my car and carport if the branches fall during storms or strong winds. I believe it would be reckless to redesign or reposition the house, as has been suggested, so that it is within striking distance of the lopsided overhang from Tree 1. Furthermore, many of the roots which anchor Tree 1 against strong westerly winds are close to the surface at 36 Dudley Street, i.e. outside of my control in a block ripe for subdivision and redevelopment. Please note that I would have preferred to build the house 10m from the front boundary, but decided on 14m because of family concerns about the very large tree at 40 Dudley Street.
It is noted that Council has not mentioned:

My reasons for this application are in summary:

(a) Tree 1 fails to meet criteria 5, 7 and 11 of tree assessment sheet 2 and is therefore not significant.
(b) It is not practical to relocate or redesign the proposed dwelling to provide a 5m setback.
(c) Tree 1 is lopsided and it would be unsafe to build only 5m from it.
(d) The intended future subdivision of 36 Dudley Street would cause a further requirement for removal of Tree 1.
(e) Non-compliance with the Flora and Fauna Protection Element of the DCP are based on a loose and inconsistent interpretation of the document.

23 The council’s position as expressed by Mr Hoye, was that the Angophora costata, Tree No 1, was assessed as significant by the council's Parks & Landscape team. The proposed dwelling house would be less than 5m from that tree and would have a detrimental impact on the health and vigour of this tree. In the council officer’s opinion there is adequate area elsewhere on the land to either relocate or redesign the proposed dwelling house to provide a reasonable setback to Tree No 1. The council is also concerned that the proposal would not comply with the performance criteria and objectives of the Flora and Fauna Element of the Dwelling House Development Control Plan.

24 I accept that the Angophora costata, Tree No 1, is significant and worthy of preservation when assessed under the council’s Tree Management Plan, dated October 2000, [Note: Exhibit 7]. As the proposed new dwelling house would be closer than 5m to the base of this tree, the development application for the dwelling house is refused consent. It would be practical to reposition the dwelling house to be clear of the tree but the applicant declined to accept a conditional consent.

25 For the above reasons, the appeal is dismissed.

Orders
26 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No 969/06 lodged with the respondent council on 11 July 2006 to erect a new dwelling house at Lot 2, DP 203557, 38, Dudley Street, Asquith, is refused consent.

3. The exhibits except for Exhibits A, 1, 2 and 3 are returned.

S J Watts

Commissioner of the Court

sw

16/01/2007 - To clarify the name of the person representing the respondent - Paragraph(s) Cover sheet