Inaty v Lane Cove Municipal Council

[2023] NSWLEC 1589

Land and Environment Court

New South Wales

Medium Neutral Citation:

Inaty v Lane Cove Municipal Council [2023] NSWLEC 1589

Hearing dates:

21-22 August 2023

Date of orders:

10 October 2023

Decision date:

10 October 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) Development consent for development application No 148/2022 for the demolition of existing structures, remediation of land and construction of a multi dwelling housing development comprising 5 units over basement parking and associated strata subdivision at 1A and 3 Bridge Street, Lane Cove, is refused.

(3) All exhibits are returned except for Exhibits A, F and 3.

Catchwords:

DEVELOPMENT APPLICATION: multi dwelling housing development in R3 Medium Density Residential zone – remediation of land – whether tree removal is acceptable

Legislation Cited:

Environmental Planning Assessment Act 1979, ss 8.7,

Lane Cove Local Environmental Plan 2009, cll 4.3, 4.4, 6.1A

Protection of the Environment Operations (Waste) Regulation 2005, cl 50

Texts Cited:

Lane Cove Development Control Plan 2010

Australian Standard AS4970-2009 ‘Protection of trees on development sites’

Category:

Principal judgment

Parties:

Constantine Inaty (Applicant)
Lane Cove Municipal Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
McKees Legal (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/63401

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Development for the purpose of multi dwelling development is proposed on a site at No 1A and 3 Bridge Street Lane Cove, which is currently occupied by two detached dwellings.

2. To this end, Development Application No 148/2022 seeks consent to demolish the existing dwellings and other structures, and relevantly, to remove mature trees on the site. In their place, five x 3-4 bedroom dwellings are proposed over basement car parking, as is strata subdivision.

3. The Development Application (the DA) was lodged with Lane Cove Municipal Council, the Respondent in these proceedings, on 1 December 2022. The DA was notified from 2 December 2022 to 18 December 2022, with a number of public submissions received in response.

4. As the DA was otherwise undetermined at the time, on 24 February 2023, the Applicant filed an appeal in Class 1 of the Court’s jurisdiction under s 8.7 of the Environmental Planning Assessment Act 1979 (EPA Act). The Lane Cove Planning Panel later refused the DA on 7 March 2023.

5. The Applicant amended the DA on 11 July 2023 by Notice of Motion comprising amended plans and other documents, later marked as Exhibit A, with annexures as follows:

1. Amended Architectural plans dated June 2023 (Annexure A)

2. Amended Landscape plans dated 27 June 2023 (Annexure B)

3. Remedial Action Plan dated 5 May 2023 (Annexure C)

4. A Certified Environmental Practitioner Site Contamination Specialist Review Remedial Action Plan dated 24 April 2023 (Annexure D)

5. Arboricultural Impact Assessment prepared by Advanced Treescape Consulting dated 30 June 2023 (Annexure E)

6. Updated Traffic and Parking Impact Assessment, prepared by Stanbury Traffic Planning dated June 2023 (Annexure F)

7. Updated Waste Management Plan dated 7 June 2023 (Annexure G)

8. Schedule of amendments (Annexure H).

6. The proceedings commenced with an onsite view at which the Court, in the company of the legal representatives and experts heard oral submissions from two residents, viewed the subject site and sites in Bridge Street and the intersecting street to the north west, known as Grace Street.

Public submissions

7. The Amended Statement of Facts and Contentions, authored by the Respondent (Exhibit 2) (ASOFAC) states that ten submissions were received in response to the notification at [3]. These submissions are contained the Bundle of Documents prepared by the Respondent (Exhibit 3). The ASOFAC also states that the documents referred to at [5] were not re-notified by the Respondent.

8. The concerns of residents heard at the onsite view may be summarised as follows:

1. Mature, significant trees are proposed to be removed, with an adverse impact on the treed character of the streetscape and locality. An insufficient area of replacement landscape is proposed.

2. Overshadowing and overlooking impacts arise from the rooftop terraces proposed to Units 1-3 fronting Bridge Street that have the effect of contravening the 2 storey character envisaged in the Lane Cove Development Control Plan 2010 (LCDCP).

3. Relatedly, the height of the proposal is out of keeping with the streetscape character. Such a height is more suited to an R4 zone.

4. The proposed setbacks are inadequate for a building with three storeys.

The site and its context

9. The site is located on the northern side of Bridge Street, between Burns Bay Road and River Road, Lane Cove.

10. The site comprises the properties known as Nos 1A and 3 Bridge Street to form a consolidated site of 1,391.3m², legally described as comprising Lot 4 in DP 20092 and Lot A in DP 364944.

11. The site itself is within the R3 Medium Density Residential zone, according to the Lane Cove Local Environmental Plan 2009 (LCLEP). Adjoining land to the north, fronting Burns Bay Road, is zoned R4 High Density Residential. Existing development in the R4 zone is generally 2-3 storey residential flat buildings, while land opposite the site on Bridge Street is zoned R2 Low Density Residential where detached dwellings of 1-2 storeys are evident.

12. Development such as that proposed is permitted with consent in the R3 zone, where consistent with the following objectives of the R3 zone:

•  To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

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

•  To encourage the erection of buildings that are designed in response to the characteristics of the site and locality.

•  To maximise the residential amenity of medium density housing in the area.

•  To provide for a suitable visual transition between high density residential areas and lower density residential areas.

•  To ensure that landscaping is maintained and enhanced as a major element in the residential environment.

The issues are distilled

13. The site contains contaminated soil. As this is central to the proceedings, it is relevant to summarise the nature of that contamination.

14. However, as the proposal seeks consent for the removal of a number of mature trees, in part due to the level of contamination on the site, it is helpful to first locate those trees on the site.

15. Ten trees are proposed for removal, due in part to the location of the basement car parking, and in part, due to contamination found on the site. Those trees proposed to be removed are identified by the Arboricultural Impact Assessment prepared by Advanced Treescape Consulting (Exhibit B, Tab E) (Arboricultural Assessment) as Trees T02, T03, T05, T06, T07, T08, T11, T12, T13 and T14.

16. An excerpt from the Arboricultural Assessment identifying the relevant trees and shrubs is re-produced below (p 27):

17. The Respondent contends that the removal of all but five trees on the site removes the majority of the existing tree canopy cover, and that an additional tree, Tree T04, may also require removal due to the degree of incursion required by earthworks required to construct the basement.

18. In broad terms, the Respondent submits that the Applicant has ‘reverse engineered’ the proposed development, and used a finding of contamination on the site as grounds for the removal of trees, rather than seeking to remediate the site and retain those trees. In particular, Tree T12 and T13 may be capable of being retained in the event the proposal provided for the same, and if a certain method of remediation in the root zone of those trees is followed.

19. The Respondent considers the removal of such an extent of tree canopy, as that proposed, contrary to the aims of the LCLEP, at cl 1.2(2), that relevant provide:

(a)  to establish, as the first land use priority, Lane Cove’s sustainability in environmental, social and economic terms, based on ecologically sustainable development, inter-generational equity, the application of the precautionary principle and the relationship of each property in Lane Cove with its locality,

(b)  to preserve and, where appropriate, improve the existing character, amenity and environmental quality of the land to which this Plan applies in accordance with the indicated expectations of the community,

(c)  in relation to residential development, to provide a housing mix and density that—

…

(ii)  is compatible with the existing environmental character of the locality…

20. Likewise, Part C2, Section 2.7 of the LCDCP invokes the provisions of Section 1.6 of the LCDCP to limit cut and fill and its effect on mature trees, in the following terms:

“(f) Excavation or fill is not to result in the loss of any significant mature trees within the side, front or rear boundary setbacks.”

21. According to the Respondent, the removal of such an extent of tree canopy also disrupts the visual continuity of vegetation evident in Bridge Street, that is required to be maintained by Part C2, Section 2.8 of the LCDCP. Control (c) provides:

“(c) Visual continuity of open space corridors and vegetation elements in the block is to be maintained by the position of buildings.”

Remediation of the land is proposed

22. At the commencement of the hearing, the Applicant sought to rely on an amended Remedial Action Plan dated 16 August 2023 and prepared by GCA (the Amended RAP). The Respondent initially objected to the tender of the document as it was received on the eve of the hearing and contains substantial changes that were not tracked to facilitate an understanding of those changes.

23. On the following day, the Applicant provided a copy of the Amended RAP with changes tracked that the Respondent confirmed it was able to deal with, and the Amended RAP was Annexed to the joint expert report of the arboricultural experts (Exhibit 7).

24. The Amended RAP overlays the tree canopy on the site with test pit locations, marked R1-R6 (Figure 4), re-produced below. Contaminated soils were identified in test pits R3 and R5.

25. The nature of the contamination found on the site is described at various locations in the Amended RAP as follows:

“NEPM 2013 Health Investigation Level (HIL-A):

Carcinogenic Polycyclic Aromatic Hydrocarbons (PAH) in the fill material in nine (9) DSI samples and one (1) PSI sample;

Total PAH in the fill material in two (2) DSI samples;

Lead in the fill material in one (1) DSI sample;

NEPM 2013 Ecological investigation level (EIL):

Lead (Pb), Copper (Cu) and Zinc (Zn) in the fill material in one (1) DSI sample;

NEPM 2013 Ecological screening level (ESL):

Total Recoverable Hydrocarbons (TRH) >C₁₆-C₃₄ (F3) in the fill material in two (2) DSI samples;

Benzo(a)pyrene (BaP) in the fill material in 12 DSI samples and two (2) PSI samples;

NEPM 2013 Management Limits:

TRH F3 in the fill material in (1) DSI sample.”

(Amended Remedial Action Plan, 16 August 2023, p 8).

26. The level of Benzo(a)pyrene (BaP) contamination found in test pits R3 and R5 in the figure re-produced at [24] is said to be 250% the relevant assessment criteria, is classified as hazardous waste (p 43), and the Amended RAP advises approval must be obtained from the NSW EPA for its disposal in accordance with cl 50 of the Protection of the Environment Operations (Waste) Regulation 2005 (p 65).

27. It is relevant to note that the Amended RAP identifies six trees, T04, T09, T10, T15, T15a and T16 that are not impacted by contamination and so are capable of retention.

28. The Amended RAP also proposes a two-step method of remediation in the event that further contamination is found in the root zone of trees on the site. The first step would be to scrape back soil within the root zone to a maximum depth of 500mm, after which a geotextile fabric layer may be laid to ‘cap and contain’ any remaining contamination in order to restrict access, over which fill should be added to restore natural ground levels.

Arborist evidence

29. Experts in Arboriculture were directed to confer in respect of the proposed removal of trees. Mr Louis Putnam Gray, on behalf of the Respondent, and Mr Kingdom, on behalf of the Applicant, conferred in the preparation of a joint expert report filed with the Court on the eve of the hearing (Exhibit 7).

30. The Applicant’s expert, Mr Kingdom authored the Arboricultural Assessment referred to at [15].

31. The location of the test pits at [24] is also plotted on figures contained in the Arboricultural Assessment (Appendix 1b), along with the location and alignment of trenches in which Mr Kingdom undertook root mapping in the vicinity of certain trees.

32. The focus of the evidence of the arboriculturists is primarily on two trees: T04 and T12. I note Mr Gray’s observation, at par 23 of the joint expert report, that the trees present on the site are in good health and condition, despite the level of pollutants found within the soil.

33. Tree T04 is described in the Tree Schedule at Section 5.0.1 (p 8) of the Arboricultural Assessment (Tree Schedule) as a Jacaranda Mimosifolia of 20m in height, having a Tree Protection Zone (TPZ) with a radius of 7.44m, a Structural Root Zone (SRZ) with a radius of 3.06m, and a Useful Life Expectancy (ULE) described in Appendix 9 as a tree “that may live for more than 40 years but would be removed to allow the development of more suitable individuals.”

34. On the basis of the root mapping recorded in the Tree Schedule, Mr Kingdom’s conclusion is that the proposed built form represents an incursion of 14.12% into the TPZ of T04, which, in his oral evidence, he regards as acceptable given the particular roots identified ranged from 85mm–120mm in diameter, that he considers to be 2^nd or 3^rd order roots that would regenerate if cut as a result of the works.

35. A comment in the Tree Schedule states:

“2. Soil contamination management will not impact this tree. There will be an acceptable impact on this tree. Retain and protect.

3. TPZ fencing is required as per Appendix 8. The size of the TPZ is shown in this table (radius of full TPZ) and highlighted in yellow.”

36. Mr Gray relies on the summary on p 15 of the same Arboricultural Assessment to conclude the incursion would exceed 19.69%. When excavation for the nearby basement wall to Stair 5 is factored, requiring a 300mm “over-excavation” as depicted in a typical section on Drawing DA-304, Mr Gray estimates the incursion would exceed 20%, and so represent a moderate to high impact on T04.

37. The Arboricultural Assessment contains detailed plan and section views of the root mapping trench completed by Mr Kingdom. Appendix 2d contains the plan and section view of the trench in proximity to T04, which Mr Kingdom believes illustrates a certain root pattern centralised at a location unlikely to produce significant roots in the location of the Stair to Unit 5.

38. Tree T12 is described in the Tree Schedule as a Eucalyptus Botryoides, commonly known as a Bangalay tree, of 18m in height, having a TPZ with a radius of 10.02m, a SRZ with a radius of 3.25m and a ULE described in Appendix 9 as a tree “that may live for more than 40 years but would be removed to allow the development of more suitable individuals.”

39. Mr Kingdom has also undertaken root mapping in the TPZ of T12 and through a portion of test pit R5. Mr Kingdom’s assessment, at par 23 of the joint expert report, is that the roots of T12 intermix with those of trees being removed: T05, T06, T07, T08, T11 and T13 and so T12 must also be removed.

40. That said, Mr Kingdom also acknowledged in his oral evidence that Bangalay trees are reasonably tolerant of works in the root zone.

41. Mr Gray notes, at par 21 of the joint expert report, that the TPZ of T12 is an area of 315.42m². When the area of three test pits is overlaid with the TPZ and SRZ of T12, the incursion of the test pits represents only 6.97%, which is considered minor under Australian Standard AS 4970-2009 ‘Protection of trees on development sites’ (AS4970).

42. Mr Kingdom cites the further investigation that is proposed to extend from existing test pits depicted in Figure 5 of the Amended RAP where additional sampling is to occur, that may identify it is necessary to remove more soil in order to remediate the site, and Figure 3 of the Amended RAP shows 17 sampling locations to be undertaken after demolition of the existing structures on the site. Nine locations are in areas of soil proposed to be retained. Eight are in locations where hazardous waste has been identified by previous testing.

43. In the event that additional contamination is found, the Amended RAP proposes the two-step remediation method summarised at [27].

44. However, the method recommended in the amended RAP for remediating soil within the root zone of trees is not supported by Mr Kingdom’s oral evidence, as removing soil from the SRZ of a tree can lead to decline in the health of the tree, and lead to failure of the tree. Installing geotextile fabric with fill placed on top is also not favoured as AS4970 does not support either scraping, nor fill being placed in the root zone.

45. While not the subject of submissions, the above position taken by Mr Kingdom appears directly contrary to that expressed on p 17 of the Arboricultural Assessment, authored by him, which states, relevantly:

“As specified in the above-mentioned GCA report it may be possible to cap the contamination using a permeable geotechnical material. This will have an acceptable impact on these trees.

Further details of capping methodology will need to be examined.”

46. In closing submissions, the Applicant characterises the methods proposed in the Amended RAP as not more than a ‘contingency plan’ in the event that subsequent investigation identifies further contamination, notwithstanding there is, as of today, no known contamination.

Landscape evidence

47. The Respondent contends that the proposed development provides inadequate landscaping in essentially two respects;

1. Firstly, the proportion of the site given over to deep soil landscape area fails to achieve 35% of the site area, as required by provisions of the LCDCP; and

2. Secondly, that landscaping provided beyond that in deep soil is no substitute and does not achieve the replacement ratio required by provisions of the LCDCP in any event.

48. The landscape experts, Mr Robert Frew, on behalf of the Applicant, and Mr Ted Webster on behalf of the Respondent, conferred in the preparation of a joint expert report (Exhibit 5).

49. Mr Webster calculates the proposal only achieves 23.62% deep soil zones on the site, which is a shortfall of 11% or 153.67m² (Exhibit 5, Appendix 5).

50. By contrast, the Applicant submits the proposal achieves deep soil zones of 29% of the site area (Exhibit B, Tab 1, Drawing DA-009), comprising 25.6% deep soil zones, with minimum 3m width, and an additional 3.2% natural deep soil with less than 3m width. Additional to this figure is a further quantum of landscaping provided in planters of 1.3m depth to an area over structure that is equivalent to 11.2% of the site area. The total landscaping areas for the proposal is therefore 40%, according to landscape drawing to LPS34 23-080 / 3 (Exhibit B, Tab 2).

51. That said, the Respondent identifies certain, possibly typographic, discrepancies in the calculations above, including: Drawing DA-009 states the site area is 1,319m², and not 1,391m². Furthermore, the total area of landscape shown in architectural and landscape plans differ despite a similar or same extent shown as being calculated. While the areas shown on architectural and landscape plans should match, the architect shows an area of 383.3m², and the landscape plans show 402.3m². This discrepancy remained unexplained.

48. The Respondent contends the provisions of the LCLEP are reflected in the objectives of Part C2, Section 2.6 of the LCDCP that are relevantly:

“The objectives for landscaped area are:

1 To provide privacy and amenity.

2 To retain and provide for significant vegetation, particularly large and medium sized trees and to provide continuous vegetation corridors.

3 To conserve significant natural features of the site.

…”

53. The relevant Provisions at Section 2.6, are:

“a) Landscaping is to relate to the ground level of the dwelling by direct access from a living area.

b) A minimum of 35% of the site is to be landscaped area with a minimum width of 3.0m. For attached dwellings, this refers to each allotment individually.

…”

54. The requirement for a minimum of 35% of the site to be landscaped area is repeated by the table at Section 1.6 of the LCDCP, which further defines that area is to be deep soil. The quantum is also further explained by a note below the table that, for attached dwellings as is the case here, the landscaped area is calculated per lot, and not on the basis of the development overall.

55. It is on this basis that Mr Webster also contends, in the joint expert report, that the private open space (POS) to units 1-3 is deficient as follows:

• Unit 1 – 39.78m² of 216.5m² = 18.37% or 75.77m² is required

• Unit 2 – 38.97m² of 203.85m² = 19.11% or 71.35m² is required

• Unit 3 – 48.51m² of 236m² = 20.5% or 82.60m² is required

56. “Landscaped area” is defined in the Dictionary of the LCDCP as follows:

“Landscaped area means part of a site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area.”

While “Deep soil zones” is defined by the Dictionary as follows:

“Deep soil zones are areas of natural ground with relatively natural soil profiles retained within a development. Buildings, basement carparks, swimming pools, tennis courts, patios and decks, and impervious surfaces such as paved areas, driveways, carparking and roofed areas are NOT included as part of the deep soil zone.”

57. The Landscape Plans, prepared by Conzept Landscape Architects (Exhibit A, Tab B) show a number of canopy trees proposed in the front setback. At the outset of the hearing, this included two Angophora Costata, capable of achieving a mature height of 20m, and a Glochidion Ferdinandi, capable of achieving a mature height of 10m.

58. Responsive to the Respondent’s concern at the compatibility of underlying soil conditions with Angophora, the Applicant proposes a condition of consent to substitute these Angophora with Bangalay trees, capable of achieving a mature height of 25m.

59. Mr Webster agrees that the Bangalay trees as now proposed are capable of achieving a mature height of 25m, and that their addition to the front setback of Units 1-3 enhances the streetscape.

60. The Applicant submits firstly, site contamination provides a basis for tree removal, that is not unreasonable, and, secondly, that the canopy tree species now selected achieves a 1:1 replacement ratio.

61. Both are matters dealt with in Part J, Section 1.4 of the LCDCP in the following relevant terms:

“3. The development should retain existing trees where reasonably possible and should not require unnecessary tree removal. Indigenous canopy trees should be provided where space permits. In particular, where tree removal is required compensatory tree planting is required. Street trees are a community asset and approval to remove because of a development application is not readily available.

…

12. Trees that are removed as part of the DA process must be replaced at a 1:1 ratio. Replacement trees must be able to reach the potential mature dimensions of the removed tree.”

Stormwater

62. Stormwater concept plans prepared by Capital Engineering Consultants (Exhibit D) provide for collection of stormwater in a tank located below the basement car park. Disposal of the water is proposed via a pump out system connected to the kerb adjacent to the kerb crossing in Bridge Street.

63. However, the Respondent contends that, in the event the Court is minded to grant consent to the proposed development, a condition requiring amendments to the stormwater plans should be imposed so that the pump out system in the basement is connected to a street drainage pit, and not the street kerb. This is because the pump out system can be expected to operate frequently and for extended periods of time, resulting in a constant stream of water and algae building up on the street kerb in dry periods.

64. The Applicant argues that such a drainage system is appropriate on the site because:

1. Firstly, it is located in an elevated position in the catchment so that surface and subsurface drainage is limited.

2. Secondly, on the basis of groundwater monitoring boreholes logs recorded in the Geotechnical Investigation Report conducted by GCA Consulting dated 13 August 2021 (Exhibit A, Tab 12) that did not encounter groundwater.

3. Thirdly, because the Respondent’s preferred alternative of a 375mm diameter pipe laid in the road reserve, connected to a pit in the vicinity of Grace Street some 80m away from the site, is cost prohibitive.

65. However, Mr Maran Muthiah, expert for the Respondent, considers the circumstances of the site will be significantly changed from those observed by ground water monitoring as a result of excavation, and construction of new built form that is surrounded by new fill. In essence, this newly permeable fill will permit overland flow and other water, such as that used for garden maintenance, to find its way to the basement tank, resulting in greater reliance on the pump out system.

66. The experts disagree on the duration each day the pump out system is likely to operate. Mr Wahbe, for the Applicant, states in the joint expert report (Exhibit 4) a duration of 31.5 minutes each day that the Applicant submits cannot be described, as it is in the ASOFAC, as a ‘constant stream’. Furthermore, Mr Wahbe notes the pump out system requires 1,800L of storage in order for the pump out to be triggered, but concedes no assessment has been undertaken by him of the cumulative effect of pump out systems in the street.

67. While Mr Muthiah did not contribute a calculation in the joint report, his oral evidence is that the pump is likely to operate for 1.043 hours each day due to increased seepage from that assumed by the Applicant.

68. In forming this view, Mr Muthiah also identifies what he considers to be evidence of moisture in the borehole logs appended to the joint expert report, at Appendix 2.

69. According to Mr Wahbe, the degree of seepage to the pump out tank depends on whether the basement is tanked or not. Mr Wahbe described the difference between a tanked basement, or a conventionally drained basement construction.

70. In essence, a tanked basement is akin to ‘sinking a swimming pool’ into the excavated ground so that the perimeter walls to the basement present an impermeable barrier to any ground water seepage. It is generally achieved by reinforcing the perimeter of the excavation with sheet or contiguous piles, with a means to drain any water seeping through the piles captured on the internal, or basement side, of the basement wall.

71. By contrast, a conventionally drained basement assumes excavation at what Mr Wahbe describes as a safe batter, and over-excavation of between 300-500mm, to permit the installation of a membrane to the external face of the basement wall, and ‘ag-line’ drainage to capture water and direct it away from the external face of the basement perimeter. For clarity, it is this over-excavation that Mr Gray considers, at [36], to be in close proximity to T04.

72. The Applicant seeks the deletion of a condition proposed by the Respondent that requires tanking of the basement so that the above excavation, membrane and drainage can be adopted instead.

Planning

73. The Respondent’s planning contentions essentially fall into two categories;

1. Firstly, Units 1-3 fronting Bridge Street are inconsistent with the character of the street, and with recent similar multi dwelling development. In particular, the proposed rooftop terrace presents, in part, a third storey.

2. Secondly, the Units do not receive the required duration or extent of solar access required by relevant provisions of the LCDCP.

74. A joint expert report was prepared by Mr Andrew Minto, on behalf of the Applicant, and Mr Rajiv Shankar, on behalf of the Respondent (Exhibit 8).

Character

75. Units 1-3 fronting Bridge Street are each provided with a rooftop terrace, accessed by enclosed stairs and a passenger lift that the planning experts agree constitutes a third storey.

76. I record here that the experts also agree the proposal is within the height permitted by the relevant standard at cl 4.3 of the LCLEP, and is also within the standard for floor space ratio, at cl 4.4 of the LCLEP.

77. Notwithstanding that compliance, the Respondent contends the rooftop terraces are contrary to the character of the area, fail to provide a transition between the R4 zone to the north, and R2 zone opposite the site on Bridge Street, and exceed the relevant number of storeys provision in the LCDCP.

78. More specifically, the Respondent contends the proposal contradicts the following provisions of Part C2 of the LCDCP:

1. The objectives of Section 2.1 relevantly provide:

“…

1 Development is compatible and complementary to the visual and environmental character of surrounding residential areas.

…”

2. The objectives of Section 2.3 relevantly provide, in respect of streetscape:

“5 To ensure the existing topography and landscape setting are enhanced and reinforced by new development.

6 To achieve development of a scale and appearance which is in keeping with the predominant traditional or emerging street and neighbourhood character.

…”

And Provision a) is also in the following terms:

“a) New buildings are to recognise and respond to the lot pattern and rhythm of dwellings within the street.

…”

3. Section 2.8 which provides guidance for Building Design, relevantly:

“c) Visual continuity of open space corridors and vegetation elements in the block is to be maintained by the position of buildings.

…

f) On sites with a slope in excess of 5% each dwelling is to have a separate ground floor level with the difference being equal to the average slope of the site.

…

i) Height

I. The maximum number of storeys for attached dwellings or townhouses in the R3 zone is 2 storey

II. The maximum number of storeys for a villa is 1 storey.

…”

79. Mr Minto is of the view that the rooftop terraces are not prohibited in the R3 zone, and are largely not visible from the public domain, but for the stair and lift enclosure when viewed from across the road or further uphill from the site on Bridge Street.

80. Furthermore, when the roof form and parapets of recent development in Bridge Street and Grace Street are considered, such as the development at 13-15 Bridge Street that presents with high clerestory windows virtually mimicking a third storey, the proposal is compatible and similar to such development for which consent has been granted.

81. Finally, as the perimeter of the rooftop terrace is enclosed by deep landscape planting, concerns at overlooking to neighbouring properties are resolved; leaving a development that will present as two storeys and, not unlike many contemporary proposals, capped with vegetation.

82. The Applicant proposes to lower the stair and lift enclosure, illustrated in an amended photomontage (Exhibit H), that is agreed to be lower than the adjoining development at 1 Bridge Street, and is less visible but not wholly concealed by perimeter landscaping. Furthermore, the Applicant proposes conditions of consent that prohibit amplified music on the rooftop terrace, and a restriction as to the location of any shade structures to be behind the stair and lift enclosure to minimise their visibility from the public domain.

83. Mr Shankar accepts the amendments to the rooftop terrace resolve privacy and overlooking concerns to the adjoining property at 1 Bridge Street but maintains a third storey form, still partly visible in Exhibit H, fails to achieve the appropriate transition in height and density between the R3 and R2 zone.

Solar Access to units

84. As stated at [73(2)], the parties agree that not all units receive the duration or extent of solar access required by Part C, Section 2.9.2 of the LCDCP that provides:

“a) Dwellings within the development site and any residential development beyond the site are to receive a minimum of 3 hours sunlight to habitable rooms and to at least 50% of the private open space between 9am and 3pm on 21 June.

b) Where existing development currently receives less sunlight than this requirement, this should not be unreasonably reduced. Shadow diagrams are required with development applications to show solar access and the extent of overshadowing.”

85. Shadow diagrams, sun eye diagrams and solar area breakdowns are provided in the architectural plans (Exhibit F) in 18 drawing sheets numbered as DA-450 – DA-469.

86. Mr Minto believes the proposed development provides private open spaces that are desirable and highly accessible in the form of the rooftop terraces to Units 1-3. When the rooftop terraces are factored into solar access calculations, a complying duration of solar access is received by the private open space to those dwellings, accessible via lift directly from the ground floor living space.

87. Mr Minto relies on a table at par 26 of the joint expert report that he summarises at par 27 in the following way:

“2 of the 5 dwellings will receive compliant solar access to more than 35m² of private open space on the winter solstice.

4 of the 5 dwellings will receive compliant solar access to more than 25m² of private open space on the winter solstice.

All dwellings will receive compliant solar access to an area of open space on the winter solstice.”

88. However, Mr Minto acknowledges shortfalls in the duration of solar access to Unit 5 that result from it being compromised by the location and setback of the existing residential flat building located to its north, fronting Burns Bay Road.

89. That said, Mr Minto relies on a sun compliance table at par 23 of the joint expert report, re-produced from Drawing DA-450 and DA-451, that shows Unit 5 receives 4 hours of solar access to a first floor rumpus room, and an adjoining north-facing balcony. It also shows the private open space to the ground floor of Unit 5 does not receive solar access between 9am – 3pm on the winter solstice.

90. In summary, Mr Shankar’s evidence is, firstly, that the rooftop terraces cannot be included in the calculation of private open space and are not directly accessible from the living area. Secondly, in respect of solar access to Unit 5, overshadowing from neighbouring buildings is a constraint inherent to the site that should be considered at the outset of the design of the proposed development.

Consideration

91. While the site is currently, and has historically been, residential use, there is no contest the land is contaminated, and should be remediated. The concentration of contaminants is unsafe for human exposure and soil remediation is required if the site is to be made suitable for development of the sort proposed.

92. While that is not in question, whether the impact of the proposed development on Trees T04, T12 and T13 is an acceptable environmental impact, is. On this, the Arboricultural Assessment advances conflicting views.

93. As stated at [34]-[35], Mr Kingdom’s Arboricultural Assessment considers the impact from development on the roots of T04, and any remediation in the vicinity of T04, to be acceptable.

94. However, in the letter enclosed at Attachment A of the Arboricultural Assessment dated 8 September 2022, Mr Kingdom advances a different view, stating:

“The location and depth of these roots indicate that it probably comes from one of the first order roots and it would be considered detrimental to the stability for the long-term viability of this tree [T04] if this dense cluster of relatively large roots were removed.

Based on the information gained from the root mapping, I would recommend the below ground basement be located no closer than 5m from the centre of the trunk of this tree. This location would ensure that the stability and long-term viability of the tree would not be impacted.” (Arboricultural Assessment, 8 September 2022, pp 63-64)

95. A further reference is made to this cluster of roots:

“Trench 3 was specifically excavated to identify any roots from Tree 4 in the south-eastern corner of the site. It was shown that there are a group of roots within the trench. These are tension roots, and it would not be appropriate to remove those roots. If the intrusion was to be reduced to the permitted 10% as specified in AS 4970:2009 Protection of trees on development sites (Australian Standard 2009), an acceptable intrusion below ground car park could be successfully constructed with an acceptable impact on the tree.”

96. Likewise, in respect of Tree 12 and 13, the Arboricultural Assessment finds the impact of development is both acceptable, and adverse.

97. On p 10, the Arboricultural Assessment states that soil remediation management will not impact Trees T12 or T13. This is consistent with Mr Kingdom’s oral evidence that the extent of remediation likely in the TPZ of T12 is minor, and Bangalay’s are known to be tolerant of works in the root zone.

98. However, on p 16, the Arboricultural Assessment states that remediation works will have a significant negative impact on T12 and T13 as follows:

“…A soil contamination report has been conducted by Geotechnical Consultants Australia (GCA) at the site and it has identified soil contamination mainly towards the rear of the site surrounding Trees 12 & 13, and close to Tree 4. In the report dated 13/07/22 it clearly shows that extensive works within the tree protection zone is required to remediate the contamination that has been identified. These works would have a significant negative impact on Trees 12 & 13. The retention of Trees 12 & 13 is not able to be supported due to the size of the tree protection zone. The location of these trees fact [sic] that there is extensive soil contamination within the tree protection zone. Remediation involves removal of soil in areas where we have identified tree roots.”

99. While the Amended RAP proposes further validation and sampling in the vicinity of T12, I accept the Respondent’s submission that the Applicant has not designed the proposal on the assumption T12 will be retained.

100. The site analysis, at DA-005, (Exhibit F) supports this submission. The site analysis depicts a site that is featureless, with the analysis, to the extent one has been undertaken, wholly focused on external influences on the site such as the solar path, prevailing winds and noise generated from Bridge Street.

101. Existing trees are instead depicted on Site Bulk Excavation Plan, DA-097 and Site Demolition Plan, DA-098.

102. However, while the Site analysis appears deficient, I do not regard this as fatal to the appeal. The Arboricultural Assessment locates T12 more than 10m from the rear boundary. Provisions dealing with excavation, at Part C Sections 1.6 and 2.7 of the LCDCP, cited at [20], seek to retain mature trees located within the side, front or rear setbacks.

103. According to Part C Section 2.4.4(a) of the LCDCP, a rear setback of at least 3m applies to the site. Tree T12 is not within the rear setback. As such, the removal of Tree T12 as a result of excavation does not offend Provision (f) at [20].

104. By contrast, T04 is shown in the architectural plans to be located within the rear setback. Tree T04 is proposed to be retained. However, for the reasons that follow, I find the impact on T04 from the proposed development is likely to be moderate to high, if not fatal:

1. Firstly, root mapping in the vicinity of T04 was not undertaken where built form is proposed to be closest to T04, in the location of the Basement Laundry and Stair 5 in Unit 5. When asked why root mapping was not completed in this area, Mr Kingdom explained the root mapping was completed in accordance with instructions provided to him by the Applicant, and not for any arboricultural reason.

1. Secondly, while the location of the built form closest to T04 is not dimensioned on the Basement or Ground Floor Plans, it appears identical to the extent of excavation shown on the Site Bulk Excavation Plan. An excerpt of the Basement Plan and Site Excavation Plan are re-produced below:

Figure 1 - excerpt from Bulk Excavation Plan DA-097

Figure 2 - Excerpt from Basement Plan DA-100

3. However, it is in this location that ‘over-excavation’ is said by Mr Wahbe to be necessary to construct the basement wall, apply a layer of membrane to the external face, and install drainage. The plans inserted above not provide for such ‘over-excavation’.

4. Thirdly, and relatedly, Section detail DA-304, labelled ‘Typ.Ext Waterproofing Detail’, for whatever reason, does not show the ‘safe batter’ Mr Wahbe advises would be required.

5. Fourthly, not one of the sections on drawing DA-304 extend to show the basement level where the built form is closest to T04. It is only logical that the deeper excavation is required, the greater the setback at the ground surface that results from a safe batter. Adopting levels shown on the architectural plans, the finished floor level of the basement is at RL 60.6, the ground floor at RL 64.5, and the natural ground level shown on Section 4-Tree 4 (DA-304) is 850mm higher than the ground floor level. This results in an excavation of around 4.75m in depth in this location that is not shown in section or plan view, including, evidently, on the Site Bulk Excavation Plan at DA-097 as the area of excavation appears identical to the footprint of Unit 5 in this location. Clearly, a vertical excavation line has been shown, and not excavation with a ‘safe batter’.

6. I have considered whether the soffit to Stair 5 could be poured to match the incline of the stair, and so rise as Stair 5 nears the SRZ of T04 and reduce the need for excavation in this location. I conclude it cannot. The Basement Floor Plan shows a laundry located under Stair 5 that requires a lower slab at the level of the basement, below the rising flight of Stair 5.

7. The result of all this is that if the basement level was shown on the sections drawn on DA-304, as it should be, and the typical section on DA-304 is applied, as the Applicant submits is correct, and Mr Wahbe’s evidence at [71] is adopted so that a safe batter is assumed, it is only reasonable to conclude that the result would be an incursion into the SRZ of T04 that is not accounted for in the arboricultural assessment, the architectural or landscape plans. Instead, it is more likely to exceed 20%, consistent with Mr Gray’s evidence, and encroach into the SRZ of T04.

8. Furthermore, while not dimensioned, if reasonable assumptions were made as to the location of the basement on Section detail DA-304, by reference to the dimension shown on the Frist Floor Plan DA-102, the incursion would be located much closer than 5m from the centre of the trunk of this tree, which is clearly not in accordance with Mr Kingdom’s written advice, re-produced at [94].

105. For the reasons outlined above, I must prefer Mr Gray’s evidence that the incursion in to the TPZ of T04 is likely to be greater than 20% and I find no reason to discount Mr Kingdom’s written advice at [94]-[95] that such an incursion would be detrimental to the stability and long-term viability of T04. Accordingly, whether or not contaminated soil extends into the root zone of T04, for the reasons set out at [104], I find the impact of the proposed development on T04 would require its removal.

106. While the removal of T04 is not, of itself, prohibited, its removal is not, in my view, desirable, for the following reasons:

1. Firstly, removal of T04 would result in the loss of a significant mature tree in the rear setback of the site as a consequence of excavation, contrary to the Part C2, Section 2.7, Provision (f) of the LCDCP.

2. Secondly, T04 currently provides an amenity to the subject site and surrounding properties. Its removal, as a consequence of earthworks would, without question, adversely impact the amenity of adjoining properties such as 1 Bridge Street and the residential flat buildings to the rear of the site, fronting Burns Bay Road. Such a consideration is a consideration required of the Court on appeal by cl 6.1A of the LCLEP. Public submissions received from residents at both 86 and 88 Burns Bay Road (Exhibit 3, folios 30, 33-35, 36) and 1 Bridge Road (Exhibit 3, folios 17-24), express concern at the loss of mature trees on the site, and the loss of visual privacy that would result from such removal.

3. Thirdly, its loss would appear to result primarily from a lack of accuracy and care in depicting works associated with earthworks and excavation in plans and sections describing the development the subject of the development application, and secondarily from conflicting arboricultural advice.

4. Alternatively, or additionally, if the basement were to be tanked, Mr Wahbe believes the safe batter and clearance from the basement wall could be reduced by use of shoring. However, the Applicant seeks the deletion of the condition proposed by the Respondent that requires the basement to be tanked on the grounds that the site is not within a flood zone and there is no engineering basis to require this condition.

5. Instead, the Applicant proposes a condition at Condition A.2, proposed in the closing stages of the hearing and provided to the Court after it reserved its decision, to make changes to the basement by imposing a condition that is in the following terms:

“The location and design of the basement construction shall not reduce the level of proposed deep soil landscaping and all basement wall structure is to be within the external wall of the basement as shown in the consent plans and shall ensure compliance of the car park layout with the relevant Australian Standards. The setback of the basement adjoining Tree 4 from the eastern boundary is to be 5035mm.”

6. Put simply, the condition proposed by the Applicant fails to provide certainty as to the development that would result from such a condition. The uncertainty takes two forms:

1. Firstly, the setback dimension proposed does not resolve the Court’s concern expressed at [104(8)].

2. Secondly, the Applicant acknowledges that imposing the condition it seeks would have the effect of requiring changes to Unit 5 that are not before the Court but would alter the location of Stair 5, the adjoining lift, and the landing adjacent to Bedroom 1 at a minimum. This does not include changes at the basement level such as to the Laundry, and perhaps car parking spaces serving Unit 5.

107. In arriving at this conclusion, I place particular weight on two factors:

1. Firstly, what appears to be contradictory opinions contained in the arboricultural evidence prepared on behalf of the Applicant in respect of the impact of both remediation and the proposed works to give effect to any consent for the development, in particular to T04.

2. Secondly, the limited comfort that can be derived from the architectural plans and sections in Exhibit F as to the impact of excavation and earthworks in the vicinity of T04 when regard is had to the arboricultural evidence at [94]-[95].

Orders

108. The Court orders that:

1. The appeal is dismissed

2. Development consent for development application No 148/2022 for the demolition of existing structures, remediation of land and construction of a multi dwelling housing development comprising 5 units over basement parking and associated strata subdivision at 1A and 3 Bridge Street, Lane Cove, is refused.

3. All exhibits are returned except for Exhibits A, F and 3.

T Horton

Commissioner of the Court

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Decision last updated: 10 October 2023