Galea v Hornsby Shire Council

[2007] NSWLEC 181

Land and Environment Court

of New South Wales

CITATION:

Galea v Hornsby Shire Council [2007] NSWLEC 181

PARTIES:

APPLICANT
Frank Galea

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

11126 of 2006

CORAM:

Hoffman C

KEY ISSUES:

Development Application :- subidivision of 7 lots, endangered species, endangered ecological community, allotment design, private open space, landscaping, access way, density.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hornsby Local Environmental Plan 1994
Sydney Regional Environmental Plan No. 20 - Hawkesbury Nepean Rivers
Rural Fires Act 1997

DATES OF HEARING:

29/03/2007

EX TEMPORE JUDGMENT DATE:

29 March 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. McKee, solicitor
of McKee Legal Solutions

RESPONDENT
Mr T. Pickup, solicitor
of Storey & Gough
Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

29 March 2007

11126 of 2006 Frank Galea v Hornsby Shire Council

JUDGMENT

1 This is a Class 1 Appeal No. 11126 of 2006 between Frank Galea and Hornsby Shire Council in regard to a proposed subdivision on seven lots on Lot 3, DP 18922 at No. 124 Castle Hill Road, West Pennant Hills.

2 The subdivision is an existing large residential parcel and the proposal is for six house lots varying between 500 and 600 sq m in area and one community lot being an access way along the eastern boundary. The proposal includes areas within the total parcel that contain the endangered species and ecological community of Blue Gum High Forest. It is intended to protect and provide maintenance and re-planting in three such areas on the site. One of them is along the Castle Hill Road frontage, another one along the western side boundary and the third at the rear of the allotment to include connectivity over to a very large tree called tree 16 in the north-east corner of the allotment.

3 Attending the on-site hearing for the respondent was

• Mr T. Pickup, solicitor
• Mr N. McCarry, town planner
• Mr J. Slaven, ecologist
• Ms A. Rzepecky, arborist

4 Attending for the applicant was:

• Mr G. McKee, solicitor
• Ms C. Cudilla solicitor
• Mr P. Hurley, town planner
• Mr S. House, ecologist
• Mr M. Hartley, arborist
• Mr F. Galea, applicant

5 Attending were also near by neighbours:

• Ms L. Stewart, 122a Castle Hill Road,
• Mr P. Stewart, 122a Castle Hill Road, being eastern neighbours of the proposal.
• Ms M. Ingacio, 6 Scott Court, being a northern neighbour of the proposal.
• Mr B. Wells, 20 Edward Bennett Drive, also has frontage to Scott Court but is not an immediate neighbour of the property,
• Mr J. De Andrade of 7 Scott Court also not an immediate neighbour and
• Ms K. Henson of 8 Scott Court being a northern neighbour of the proposal.

6 The objectors concerns largely related to density of development, considering it to have too many allotments and too many houses for the size of the land, together with loss of existing tree vegetation.

7 The issues in the case were:

1. The proposed development is contrary to objective (c) of the Residential A (Low Density) Zone under Hornsby Local Environmental Plan in that it does not provide for development that is within the environmental capacity of a lt density residential environment.
Particulars

a) The development of six residential lots and an access way will impact on the retention of the identified areas of remnant Blue Gum High Forest on the site.

b) The future development of proposed lot 7 will impact on trees 16 and 23 which have been identified as significant trees.

c) The future development of proposed lot 6 will require the removal of tree 26 which has been identified as a significant tree.

d) The building platform shown on proposed lots 3 and 4 are located less than the required 4 m setback from trees 6 and 15 respectively which have both been identified as significant trees.
Density
2. The proposed development does not comply with the Density Element of Council’s Residential Subdivision DCP in that: the size of proposed lots 2 and 7 will not allow sufficient area clear of the identified areas of remnant Blue Gum High Forest to enable the siting of a dwelling, ancillary buildings, private open space, access and parking and vehicle manouvering areas.


Allotment Design
3. The proposed development does not comply with the Allotment Design element of the Residential Subdivision DCP in that:

a) the lot design does not minimise impacts on significant trees and the remnant areas of Blue Gum High Forest.

b) Proposed building envelopes on lots 3, 4 and 7 are not located a minimum of 4 m from significant trees identified as trees 6, 15 and 23 respectively,

c) The future development of proposed lot 7 will impact on a significant tree identified as tree 16 as it is likely that any access and turning area required to service this lot will be located within the required 6 m setback from this tree.
Private Open Space
4. The proposed development does not comply with the Private Open Space element of the Residential Subdivision DCP in that there is insufficient area on proposed lot 2 to enable the required 120 sq m of private open space clear of any access way and the remnant Blue Gum High Forest.
Landscaping
5. The proposed development does not comply with the Landscaping element of the Residential Subdivision CP in that:

a) It does not preserve significant trees, trees that add to the environmental character of the area and areas of remnant Blue Gum High Forest.

b) the building envelope design does not maximise the number of trees retained on the site, and

c) Some of the proposed building envelopes are not located the required 4 m setback from significant trees (or in the case of tree 16, the recommended setback of 6).
Access way Design
6. The proposed development does not comply with the Access way Design Element of the Residential Subdivision DCP in that the linking driveway between the main access way turning area and the rear of proposed lot 2 should be 4 m wide not 3 m as so as to permit landscaping as required by this element.
Insufficient Information
7. No waste management plan for the demolition, design, construction and ongoing management of the proposed development has been lodged s required by Council’s Waste Minimisation and Management DCP.

8 At the hearing plans were tendered in Exhibit A and B and C that deal with some of the issues, and further information had been furnished prior to the hearing. Having heard the evidence and considered the submissions the determinative component of this subdivision proposal is Lot 7 that contains both trees 16 and 23 as significant trees together with a number of other trees that are intended to be retained as shown in Exhibit C.

9 The applicant had brought a number of model home designs to indicate how some of them might fit onto the building envelopes as shown on the lots on the subject plans. One of these demonstrated Lot 7.

10 There were, in order to protect the root systems of the trees, setbacks of 6 m and 4 m proposed and accepted by the applicant as a requirement of any condition of consent. However, these setbacks are far short of the actual canopy circumferences of these two trees. It meant that any house on Lot 7 would be beneath the canopy of both trees with the potential danger of branch drop, and the potential consequences in the long term of removal of the trees due to the small size of the allotment containing large trees which restrict the location for construction of a house and the provision of private open space and room to manoeuvre cars in and out of a garage and to turn around.

11 Lot 7 also had concerns for the objectors due to the fact that the building envelope comes within one metre of the rear boundary when council’s controls require a 3 m minimum setback or 5 m if it were to be used as private open space. There was concern over potential overlooking and bulk and scale for the neighbours to the north. It seems to me that if the appropriate setbacks were maintained instead of the 1 m proposed, that their concerns at least on those issues would not be sufficient for refusal of subdivision proposal.

12 It is primarily the significance of trees 16 and 23 and the importance of retaining the remnant Blue Gum High Forest on the subject property that gives determining weight.

13 Another element of this is that the areas intended to retain the groups of trees within the property are intended to have a fenced barrier around the areas identified by the ecologist, to prevent any owners of the allotments implementing normal domestic backyard maintenance or building facilities within the ecological enclosures. These areas effectively reduce the available land within five of the allotments in the proposal.

14 Lot 6 is the only lot that may be less constricted, but it depends for that on the removal of trees 26 and 27 over which there was some disagreement between the arborist and the ecologists in their value. They are the only Ironbarks at the northern end of the site within the subject property and added to the biological diversity within the Blue Gum High Forest.

15 Another matter in relation to Lot 7 is that in the demonstration of the potential house layout it is necessary, on Lot 7 (because of it being at the end of the private right of way access) to enable the usual two car garage to be constructed with an area to turn around within the allotment in order to exit in a forward direction. Otherwise it would be necessary to reverse through a corner from the allotment into the access way and along the access way for quite a distance to a turn around area shown on the plan.

16 The site does front Castle Hill Road which is a very busy street and for safety purposes a car exiting the site must do so in a forward direction. Lot 7 simply does not have the space clear of the ecological enclosure containing tree 16, and the house envelope, the latter having to dog leg around tree 23.

17 I have concluded overall that the proposal has not taken adequate consideration of the identified areas of remnant Blue Gum High Forest endangered ecological community which forms a natural constraint in any subdivision and subsequent development of the land and that the issues 1 and 2 are determinative.

18 Therefore the Orders of the Court are:

1. The appeal is dismissed.

2. The exhibits are returned to the parties except Exhibits 1, 2, 6, 7, 8, A, B and C.

___________________

K G Hoffman
Commissioner of the Court
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