JAMG Holdings Pty Ltd acting as trustee for the JAMG Property Trust v Georges River Council

[2023] NSWLEC 1233

Land and Environment Court

New South Wales

Medium Neutral Citation:

JAMG Holdings Pty Ltd acting as trustee for the JAMG Property Trust v Georges River Council [2023] NSWLEC 1233

Hearing dates:

29 and 30 November 2022, 1 December 2022 and 27 March 2023

Date of orders:

16 May 2023

Decision date:

16 May 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in an amount as agreed or as assessed.

(2) The cl 4.6 Written Request dated 14 November 2022 prepared by Jonathon Wood is upheld.

(3) The appeal is upheld.

(4) Development application No DA2021/0048 for demolition of existing dwelling house and construction of a four-storey residential flat building containing three units, basement parking for three vehicles, landscaping, tree removal and site works at 26 Martin Place, Mortdale legally described as Lot 22, Section B in DP 2921 is determined by granting consent to the application subject to the conditions in Annexure A.

(5) Exhibit 2 is returned and all other exhibits are retained.

Catchwords:

DEVELOPMENT APPEAL – residential flat building – isolated site - impact on trees - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.3, 8.15, 8.7

Hurstville Local Environmental Plan 2012, cll 1.2, 4.3, 4.4, 4.6, 5.10, 5.21, 6.1, 6.7

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

Environmental Planning and Assessment Regulation 2000, cl 55

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Texts Cited:

Australian Standard, AS4373-2007 Pruning of Amenity Trees

Australian Standard, AS4970-2009 Protection of Trees on Development Sites

Category:

Principal judgment

Parties:

JAMG Holdings Pty Ltd acting as trustee for the JAMG Property Trust ABN 65125739219 (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor)(Applicant)
A Kleiss (Solicitor)(Respondent)

Solicitors:
Piper Alderman (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/83335

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application No DA2021/0048 lodged on 12 February 2021 seeking consent for demolition of existing structures and construction of a four-storey residential flat building containing three units, one level of basement car parking for three vehicles accessed by a car lift and internal turntable, landscaping, tree removal and associated works (the Proposed Development) at 26 Martin Place, Mortdale legally described as Lot 22, Section B in DP 2921 (the Site).

2. This matter is about the impact of the Proposed Development on two separate trees referred to as T1, a Brushbox on neighbouring property at 20-24 Martin Place, Mortdale and located adjacent to the front setback of the Site. The second tree is referred to as T4, a Jacaranda on the other neighbouring property at 28-32 Martin Place, Mortdale and located adjacent towards the rear of the Site. Both of these trees will require pruning and there will be excavation works within the root Tree Protection Zone (TPZ) to facilitate the Proposed Development.

3. The Respondent’s case is that as development consent is not sought by the Applicant to remove T1 and T4, the Court must be satisfied that the Proposed Development will not result in the demise of these trees and if not so satisfied then development consent must be refused. There are no other aspects of the Proposed Development which are objected to by the Respondent. It is relevant to note that the Proposed Development, as at the date of the hearing, resolved all outstanding issues for the Urban Design and Town Planning experts and the Landscaping experts resulting in a residential flat building with an appropriate built form that allows for an improved response to the streetscape, increased articulation of side setbacks, improved internal amenity and improved landscape quality. I have reproduced the Tree Retention and Removal Plan from Ex M below at Fig 1.

Fig 1: Tree Retention and Removal Plan LA01C Rev C (Ex M)

4. The Applicant submits that the Proposed Development warrants approval. I accept the submission that the Joint Expert Reports of the Urban Designers and Town Planners (Ex 6 and Ex 9) must be the Court’s focal point in determining the merits of this development application. The Applicant submits that there is clear evidence before the Court that the excavation works and pruning in relation to the Proposed Development will have no adverse impact on the trees.

5. The Applicant also relies on the terms of s 1.3(c), (e) and (g) of the EPA Act submitting that the acceptance by the Court that the perceived impacts to trees T1 and T4 warrant the refusal of the application would clearly thwart the promotion of the orderly and economic use of 26 Martin Place, Mortdale. Likewise, cl 1.2 of the Hurstville Local Environmental Plan 2012 (HLEP) provides the aim to encourage and co-ordinate the orderly and economic use and development of land that is compatible with the local amenity. The Applicant submits, and I agree, that “to refuse this development application would be tantamount to sterilising the redevelopment potential of 26 Martin Place, Mortdale which is zoned R3 and contemplates more than just a single storey dwelling house.”

6. Having considered all the evidence, I am satisfied that the Proposed Development warrants the grant of development consent on the basis of a merit assessment as supported by the expert evidence and I am satisfied to the extent necessary, that the Proposed Development will not result in the demise of T1 and T4 and conclude that development consent may be granted. I set out my reasons below.

7. The proceedings commenced with an onsite view. The Site is proposed to be developed is an isolated residue site situated within the R3 Medium Density Residential zone subject to the provisions of HLEP (Urban Design and Town Planning Joint Expert Report, Ex 6, page 4).

8. No objectors gave evidence. However, the Respondent tendered a response to the informal notification of the Proposed Development following amendments pursuant to leave granted on 23 November 2022 (Ex 3).

9. The Respondent’s Amended Statement of Facts and Contentions (ASOFAC) filed 18 October 2022 (Ex 1) provides the description of the Site, which the parties agree is an isolated site with an area of 360m² and a 10m street frontage. There are 2 trees (T1 and T4) which are located on adjoining neighbouring properties for which the Applicant does not seek development consent for removal. The only contention that remains unresolved is contention 1.2 titled “Adverse Impact on Trees” and relates solely to T1 and T4. The Respondent contends that the Proposed Development will result in impacts on T1 and T4 as follows:

1. Works and development within the TPZ;

2. Pruning to allow the demolition and construction;

3. Ongoing maintenance pruning.

10. It is not contested that there will be impacts to T1 and T4 as a result of the Proposed Development. It is noted that pruning of the trees will be subject of a separate consent or approval in accordance with the Draft/Proposed Conditions of Consent (Ex 10). Having considered all the evidence, I do not find that, as a consequence of the Proposed Development, these impacts will inevitably result in the demise of either T1 or T4.

11. The Arboricultural Impact Assessment dated 29 November 2022, at Sheet 3 (Ex L) describes the two relevant trees as follows:

1. Tree 1 Lophostemon confertus (common name: Brushbox) is on adjacent allotment: mature single trunk tree with an upright forest form; upright trunk/s and balanced canopy and branch development. No evidence of significant branch pruning. High landscape significance. The tree appears stable and its branch attachment appears sound. The tree is considered to be in good health and displays good vigour.

1. Height 13m

2. Canopy spread 13m

3. Diameter at Breast Height (DBH) 730mm

4. Diameter Above Buttress (DAB) 850 mm

5. Foliage condition good

6. Canopy deadwood <5%. No evidence of pests, disease, cavity, bracket fungi

7. Safe Useful Life Expectancy (SULE) 1 (Long – life span greater than 40 years)

8. TPZ radius 8.80m Area of TPZ 243.30m²

2. Tree 4 Jacaranda mimosifolia (common name: Jacaranda) is on adjacent allotment: mature multi trunk with an upright spreading form; upright trunk/s and majority of canopy and branch development is towards the east. No evidence of significant branch pruning. High landscape significance. The tree appears stable and its branch attachment appears sound. The tree is considered to be in moderate health and displays good vigour.

1. Height 16m

2. Canopy spread 17m

3. DBH 220, 240, 200, 200, 430, 240mm

4. DAB 560mm

5. Foliage condition good

6. Canopy deadwood 10%. The tree is heavily infested with Ivy on the trunk and branches

7. SULE 3 (Short – life span from 5 to 10 years)

8. TPZ radius 9.10m

12. The circumstances of T4 changed since I originally reserved judgment on 1 December 2022 and the Court was notified of that fact by Online Court communication by the Respondent, with the consent of the Applicant, on 1 March 2023. The communication reads as follows:

“On 21 February 2023 we received an email from the Applicant’s solicitor, Paul Vergotis, advising that a major overhanging limb of the Jacaranda tree on the site (referred to as T4 in evidence and submissions) snapped in the high winds caused by the storm event of 18 February 2023.

On 22 February 2023 the Applicant filed a Notice of Motion seeking to re-open the matter for mention before you, accompanied by a supporting affidavit of Alicia Chryssochoides detailing the events of 18 February 2023.

On 28 February 2023 the Applicant withdrew its Notice of Motion. The reason provided being that the Applicant does not wish to press the Notice of Motion for financial reasons.

This matter having been brought to the attention of the parties, we consider that it is appropriate for the Court to be advised of this change in circumstances on the basis that the damage done to Tree 4 in the recent storm may be relevant to your evaluation of the likely impacts of the development on Tree 4 required by s 4.15 of the Environmental Planning and Assessment Act 1979 (NSW) and to the evidence that you heard on this issue.

We further consider that it would be appropriate for the arboricultural experts to confer and provide a short supplementary joint expert report advising the Court whether (and if so, in what respect) the damage done to T4 in the storm event of 18 February 2023 affects the evidence that they have provided to the Court on the retention of Tree 4.”

13. By my own motion, I listed the matter for mention hearing on 2 March 2023 and made the following orders:

1. As a consequence of the loss of a major limb, the Expert Arborists Mr Kenworthy and Ms Howden are to inspect the Jacaranda T4 on or before 21 March 2023 and confer to prepare a Supplementary Joint Expert Report to be filed by 4 pm Friday 24 March 2023.  Such report is limited to whether as a result of their inspection of T4 their evidence given at the hearing of this matter changes and if yes to state how and why.

2. The matter is listed for Online Court Midday Monday 27 March 2023 for the parties to confirm the direction above has been complied with.  If so, I will reserve judgment and if not the matter is to be listed before me.

14. A Supplementary Arboricultural Joint Expert Report (Supplementary Arboricultural JER) in relation to T4 was filed 24 March 2023 and is marked Exhibit N. Ms Howden and Mr Kenworthy considered the Affidavit of Alicia Chryssochoides sworn 22 February 2023, annexed to the report, and undertook separate site inspections to prepare the report. The experts agree that one of the multi trunks and branching of T4 failed at approximately 8m above ground level. They agree that a first Order trunk, a second Order branch and a smaller third Order branch of T4 was reported to have failed. Ms Howden confirms that her opinion does not change and, that notwithstanding the recent failure, the pruning as outlined on sheet 9 in the Arboricultural Impact Assessment report (Footprint Greed 26/8/2022) (Ex B, Tab 9) will alter the form of T4 but the Proposed Development itself is unlikely to have a significant impact on T4. Mr Kenworthy is of the opinion that the “natural domed canopy, typical for the Species of tree will be ruined.”

15. I reserved my judgment on 27 March 2023.

16. The parties rely on the evidence of experts contained in joint expert reports filed with the Court as follows:

1. Arboricultural Joint Expert Report (Arboricultural JER) prepared by Melanie Howden for the Applicant and Craig Kenworthy for the Respondent filed 7 November 2022 (Ex 4);

2. Supplementary Arboricultural Joint Expert Report (Supplementary Arboricultural JER) prepared by Melanie Howden for the Applicant and Craig Kenworthy for the Respondent in relation to T4 filed 24 March 2023 (Exhibit N);

3. Landscape Joint Expert Report prepared by Matthew Taylor for the Applicant and Craig Kenworthy for the Respondent filed 8 November 2022 (Ex 5);

4. Urban Design and Town Planning Joint Expert Report (Urban Design and Town Planning JER) prepared by Gabrielle Morrish, Urban Designer and Architect, and Stuart McDonald, Town Planner for the Respondent and Karla Castellanos, Urban Designer, and Jonathon Wood, Town Planner for the Applicant filed 15 November 2022 (Ex 6);

5. Supplementary Urban Design and Town Planning JER (Ex 9).

17. In response to the ASOFAC, the Applicant sought and was granted leave to rely on Amended plans on 23 November 2022. The affidavit of Alicia Chryssochoides of 16 November 2022, at paragraph 11, provides that the Urban Design and Town Planning experts concluded in the Urban Design and Town Planning JER that the amended architectural plans as annexed to that JER, if relied upon, would resolve the urban design and town planning contentions in dispute. The Proposed Development includes the following ‘further refinements’:

1. A reconfiguration of basement footprint including reconfiguration of the lift and fire stair;

2. A rearrangement of bulky goods and waste storage areas and addition of storage lockers;

3. Improved ground floor lobby design and introduction of double-sided lift to assist with accessibility;

4. Increased setback of 500mm for car lift entrance and use of vertical battens to reduce visual bulk;

5. Amended communal open space to provide improved BBQ area and use of back yard;

6. Relocation of fire stairs to western boundary;

7. Adjustments to lift core and fire stairs across all units with improved internal amenity;

8. Removal of concrete roof over Unit 3 with provision of retractable roof element to minimise height exceedance;

9. Overall reduction in Floor Space Ratio (FSR) whereby the Proposed Development is fully compliant with the 1:1 FSR development standard;

10. An improved materials palette on all elevations.

18. Further amendments to the Proposed Development were made by the Applicant during the proceedings and the Court notes:

1. The Respondent agrees pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending the Proposed Development by the following documents:

1. Design Verification Statement filed 18 November 2022 (Ex E);

2. BASIX Certificate issued 22 November 2022 and NatHERS Certificate filed 24 November 2022 (Ex F);

3. Arboricultural Impact Assessment dated 29 November 2022 (Ex L); and

4. Landscape plans filed 30 November 2022 (Ex M).

19. The Respondent filed Proposed/Draft Conditions of Consent on 1 December 2022 (Ex 10) and the Court notes that condition 27 remains contested but that otherwise the proposed conditions of consent are agreed. I will come back to the terms of condition 27.

20. In relation to the remaining issue in dispute, the Court had the benefit of the written and oral evidence of Craig Kenworthy for the Respondent and Melanie Howden for the Applicant. Ms Howden also prepared the following documents which are in evidence before the Court:

1. Arboricultural Impact Assessment dated 29 November 2022 (Ex L);

2. Arboricultural Impact Assessment dated August 2022 (Tab 9, Ex B);

3. Root Mapping Plan (Ex H).

21. I will consider what the evidence is as to the impact on T1, the Brushbox at the front and adjacent to the Site and on T4, the Jacaranda at rear and adjacent to the Site. Both trees are expected to be pruned and have excavation in and around the tree root zone.

22. In relation to pruning, it is agreed that branch pruning will be required on T1 and T4 to facilitate the Proposed Development on the Site (Arboricultural JER page 2). I note that proposed condition 28 (Ex 10) provides for a separate tree pruning approval being required and provides as follows:

“28. Tree pruning required for trees 1 and 4, prior to Construction Certificates

(a) Any necessary pruning of overhanging branches relating to the neighbours’ trees, T1 – Lophostemon confertus located within No 20 -24 Martin Place and Tree 4 – Jacaranda mimosifolia, located within No 28-32 Martin Place, is subject to a separate tree pruning approval application to Council, whilst approval must be sought by the owners of the trees in writing, prior to any works commencing.

(b) Pruning shall be conducted in accordance with – AS 4373-2007, Pruning of amenity trees, Pruning class – “S” – Selective pruning – clause 7.2.4 and completed by a minimum, AQF Level 3 Arborist.”

23. Notwithstanding the pruning that will be required, Ms Howden’s opinion is that T1 and T4 are capable of being retained in conjunction with the Proposed Development and that the branch pruning is unlikely to have a significant impact on the overall health and condition of the trees provided that the work is undertaken by a qualified (minimum Australian Qualification Framework (AQF) Level 3) and experienced arboricultural contractor and in accordance with AS4373-2007 Pruning of Amenity Trees. Ms Howden’s opinion is that despite requiring selective branch pruning, T1 and T4 will continue to provide a contribution to the greening and visual landscape character of the area. (Arboricultural JER page 2)

24. Mr Kenworthy’s opinion is that “squeezing a narrow building upon this size block will alter the growing environment detrimentally to both T1 and T4” (Arboricultural JER page 3) but does not contradict Ms Howden that these trees will continue to provide a contribution to the greening and visual landscape character of the area.

25. The proposed pruning is detailed in Sheet 9 of Ex L for T1 as “Significant branch pruning”. However, during oral evidence Ms Howden clarified that it was her opinion that the pruning required for T1 would not be significant because, following the onsite inspection at the commencement of the hearing, Ms Howden clarified that the second Order branch pruning of T1 would no longer be required, namely the branch of T1 towards the street and as a result the pruning of T1 will no longer be significant.

26. In her oral evidence, Ms Howden stated that she has applied the consideration set out at clause 3.3.4 of AS4970-2009 “Protection of Trees on Development Sites” (AS4970-2009) to form her view that the TPZ encroachments to T1 will not interfere with its viability or ongoing well-being. Ms Howden makes express reference to AS4970-2009 in the Arboricultural JER pages 3 and 4, in response to Particular 1.2(b) of the ASOFAC.

27. In particular, in relation to T4, Ms Howden acknowledges that “the proposed basement footprint, ground floor footprint and On Site Detention (OSD) footprint will result in the removal of 24% of the area of the calculated TPZ” (Arboricultural JER page 4) and then explains as follows:

“…where developments propose encroachments of greater than 10% of the area of the TPZ, AS4970-2009 identifies that other factors such as tree species and tolerance to disturbance, age, vigour, size of the tree, the location and distribution of tree roots etc need to be considered. AS4970-2009 also suggests that where development encroachments are greater than 10% of the area non-destructive root investigation may be required when making assessments of the potential impacts on trees.”

28. Ms Howden undertook explorative root investigations on the Site as detailed in Appendix A to the Arboricultural Impact Assessment (Ex B, Tab 9) (Sheets 11 to 14, Ex L) and further illustrated in the Roof Mapping Plan (Ex H). The purpose of the investigation was to ascertain the actual number and size of the tree roots emanating from T1 and T4.

29. There is a Tree Protection Plan during demolition at Sheet 7 and during excavation and construction at Sheet 8 of Ex L. The impact of T1 and T4 is set out in Sheet 6 as follows:

1. T1: the Proposed Development is “unlikely to have significant impact on root systems” and branch pruning will be required. The plan is to retain T1 with specific and general tree protection measures.

2. T4: the Proposed Development is “unlikely to have significant impact on root systems” and branch pruning will be required. The plan is to retain T4 with designed specific and general tree protection measures.

30. Mr Kenworthy’s opinion in the Arboricultural JER at page 6 is that “T4 has been afforded for its lifetime an unobstructed growing environment both above and below the ground and hence why the tree, to this day, is of high landscape significant and high retention value.” Mr Kenworthy’s opinion regarding the TPZ encroachment for T4 is as follows:

“…a 24.2% encroachment into T4s TPZ …constitutes as a MAJOR encroachment. The encroachments BELOW GROUND include the OSD and stormwater piping, services room, bulky storage room and basement. I have prepared a Tree Incursion Plan to demonstrate visually, the incursions that the proposal has…” (Arboricultural JER at page 8)

31. The evidence is that the Proposed Development will result in canopy loss to T1 between 10% and 12% and to T4, prior to the storm branch damage, between 15% and 20%.

32. Mr Kenworthy was asked his opinion as to the cumulative impacts on T1 and T4. Mr Kenworthy’s evidence is at Transcript, 30 November 2022, p 58 (50):

“WITNESS KENWORTHY: Loss of 25.2% of T4's TPZ, which constitutes two parts of the Australian Standards, what consists of a root system of a tree.  The pruning of T4 and the pruning of T1, and both trees are very susceptible to vertical shoots, as Mr Vergotis took us to yesterday down in the next street that was sitting underneath the powerlines and they do shoot up vertically.  This form will occur around the north and north east side of the jacaranda where continual cuts in perpetuity will be formed and to the south, southwest quadrant of T1, totally ruining the form that the other quadrants don't have.  As I said, the loss of 25.2% to the T4, the change in hydrology from the east where this moisture was actually ‑ and it's shown in the survey plan when we were standing there yesterday.  I see eventual loss of T4.

I can see if I lived ‑ in part it goes into a landscape section where that ground that the T4's remaining TPZ will more than likely be either concrete ‑ so that's likely ‑ I don't know.  I can reframe it if you want, but I'm just saying practically, down the track, to make a useable area, who knows what's going to happen down the track.  But I see ‑ I thought T1 yesterday wasn't in the best condition.  I don't know what Melanie thought of that.  The canopy was sparse.  It looked at bit sparser than previous.  I do see that T1 in further decline, especially with ongoing pruning, and just the impacts from construction alone, that we don't get to see.  As I said in Australian Standards, long after the consent has been granted that the tree will fall into decline and it's going to be real pity, so.  A shame.”

33. For the avoidance of any doubt, I give no weight to any speculative opinion evidence as to any illegal future works or illegal future pruning in making my findings and forming my conclusions.

34. Ms Howden was similarly asked what her opinion was as to the cumulative impacts of the Proposed Development on T1 and T4. Ms Howden did not believe that the Proposed Development would result in the demise of T1 and T4 as follows (Tcpt, 30 November 2022, p 65 (40)):

“CHRYSSOCHOIDES: Do you think the cumulative impacts to the TPZ and canopies for tree 1 and tree 4 will result in the fatality of either of those trees?

WITNESS HOWDEN: No I don't.

CHRYSSOCHOIDES: Do you think everything proposed can be managed by conditions, appropriate conditions?

WITNESS HOWDEN: Yes, I do.”

35. I note that Ms Howden’s opinion remains unchanged (Supplementary Arboricultural JER, Ex N).

36. On balance, I prefer the evidence of Ms Howden because she has provided thorough and considered evidence directly responsive to the Proposed Development. Mr Kenworthy’s evidence provided assistance to the Court and I accept his opinion that the canopy of each T1 and T4 will be impacted upon to different degrees. I find that I am not satisfied that the Proposed Development will inevitably result in the demise of T1 or T4 in the short to medium term. However, having made that finding, I am satisfied that the SULE of T4 is not the same as the SULE of T1 and it is possible that the demise of T4 may be some time in the short to medium term but not as a direct result of the Proposed Development.

37. I have carefully considered all the evidence and submissions and I will now deal with the contested wording for condition 27.

38. Tree protection during construction is provided for in proposed condition 27 (Ex 10). This proposed condition of consent is contested as to the location of the protection fencing within the TPZ of T4. However, both versions refer to compliance with AS4970-2009.

39. The Applicant seeks the following wording for consent condition 27:

“The following seven (7) trees shall be retained and protected in accordance with the Tree Protection Plans on sheet 7 & 8 in the Arboricultural Impact Assessment, dated 29/11/22, Revision 3 (Footprint Green):”

40. The Applicant’s position is that appropriate conditions as set out in the conditions (and in particular Condition No 27) are able to ensure the protection of all seven trees to be retained during the construction phase of the development and for the ongoing protection and management of the trees on the Site, and importantly, T1 and T4 located on adjoining properties.

41. The Respondent’s position is that this is an unacceptable outcome for T1 and T4. The Respondent maintains that the application should be refused due to the impact on these trees including the proposed encroachment into their TPZs. However, if the Development Application is approved it is accepted by the Respondent that the Applicant cannot establish protective fencing around the TPZ area of the trees.

42. I have considered the content of the Tree Protection Plans on sheet 7 and 8 of the Arboricultural lmpact Assessment, dated 29 November 2023, Revision 3 (Ex L) which I reproduce below at Fig 2 and Fig 3.

Fig 2 Sheet 7 “Tree Protection Plan – Prior to and During Demolition”

Fig 3 Sheet 8 “Tree Protection Plan – Prior to and During Excavation and Construction”

43. I am satisfied that the Applicant’s wording for condition 27 is appropriate in all the circumstances.

Findings and conclusion

44. Having considered carefully the evidence of the experts, I prefer the evidence of Ms Howden and accept her opinions resulting from her forensic and sophisticated analysis of both T1 and T4. I acknowledge that there will be impacts on both T1 and T4. However, for the purpose of determining the appeal, I am satisfied by the evidence that the Proposed Development will not inevitably result in the demise of T1 and T4.

45. I accept that AS4970-2009 does not prohibit development encroachments of greater than 10% of the areas of calculated TPZ.

46. I am satisfied that any encroachment into the root zone and canopy of T1 will not constitute a major encroachment and the impacts, if any, are negligible in terms of the ongoing viability of T1. Appropriate conditions for the construction phase of the Proposed Development are to be imposed.

47. I am satisfied that any encroachment into the root zone and canopy of T4 can be undertaken in accordance with AS4970-2009 and that the impacts on T4 will not inevitably result in the demise of T4. Appropriate conditions for the construction phase of the Proposed Development are to be imposed.

48. As all other contentions have been resolved by the amendments to the Proposed Development, I conclude that development consent can be granted for the Proposed Development subject to conditions of consent.

Jurisdictional prerequisites

49. There are jurisdictional prerequisites that must be satisfied before development consent may be granted. The parties identified the jurisdictional prerequisite of relevance in these proceedings including the terms of cl 4.6 HLEP providing for an exception to the Height of Building development standard in cl 4.3 of the HLEP.

Is the contravention of the Height of Building development standard justified?

50. The Applicant relies on a cl 4.6 Written Request dated 14 November 2022 prepared by Jonathon Wood (Ex C, Annexure G).

51. Clause 4.3 of the HLEP stipulates a maximum building height of 12m. The Proposed Development exhibits the following building height elements:

1. Upper Level Roof Slab: 12.3m (2.5%)

2. Parapet: 12.55m (4.58%)

3. Lift Over-run: 12.42m (3.5%)

52. The Site is described in the ASOFAC as having a 1.31m fall from the Martin Place frontage to the rear boundary over a site depth of 35.815m resulting in a falling gradient of 3.7%.

Fig 4 HEIGHT PLANE – from Cl 4.6 Written Request Ex C, Tab 4

53. The Town Planning experts agree that the minor height breach of the height development standard for the lift over-run and part of the parapet and roof slab is not unreasonable given the need to mitigate impacts on the trees located on adjoining properties and to accommodate the natural fall of the Site towards the rear (Ex 6, paragraphs 62 and 67).

54. I have considered the Written Request and I am satisfied that the cl 4.6 Written Request adequately demonstrates that compliance with the Height of Building development standard is unreasonable or unnecessary because the Proposed Development remains consistent with the objectives of the development standard (cl 4.3(1) HELP), as set out on page 9 of the Written Request.

55. I am satisfied further that the cl 4.6 Written Request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard as set out at page 11 of the Written Request. In particular, the Proposed Development results in a better design outcome consistent with the following objects in s 1.3 of the EPA Act:

(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources

…

(g) to promote good design and amenity of the built environment.

…

56. I note further that resulting from the topography of the Site and the design response to limit changes to natural ground in the vicinity of trees.

“Strict compliance could be achieved through further ‘cut’ into the Site to achieve a compliant height, however this would lead to:

Poorer streetscape interface with the lobby areas to Martin Place;

Poorer amenity to the ground floor Unit 1 by pushing the finished floor level below the ground level which is not desirable from an amenity perspective;

Further impacts on the trees adjoining sites (T1 and T4) through altering ground levels at the front and rear of the Site – ie the desire has been to maintain the front setback of the Site at the existing natural ground levels to limit impacts on trees. To lower the finished floor levels of the building would require further ramping and adjustment to finished ground levels in the front setback are to maintain compliance with accessibility standards.” (Written Request page 11)

57. I accept that the building has been designed to ensure that all habitable floor space is contained below the maximum building height line which indicates that the variation is not simply a means of achieving development yield on the Site, but a site-specific design response.

58. The zone objectives are addressed on page 12 of the Written Request and I am satisfied that the Proposed Development is in the public interest because it is consistent with the objectives of the particular development standard and consistent with the objectives for development within the R3 Medium Density Residential zone in which the development is proposed to be carried out (cl 4.6(4)(a)(ii), HLEP).

59. The Court is satisfied that the Applicant’s Written Request seeking to justify the contravention of the development standard in cl 4.4 of the HELP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the HLEP and that the Proposed Development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

60. The Applicant’s Detailed Site Investigation (DSI) report prepared by Geotechnical Consultants Australia dated 19 July 2022 (Ex B, Tab 12) satisfies s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 in relation to contamination of land. The DSI concludes that the potential for contamination is low and the Site is suitable for the Proposed Development provided that recommendation which appear at paragraph 16 of the DSI are satisfied. I am satisfied that these recommendations are incorporated into the Draft/Proposed Conditions of Consent (Ex 10).

61. The State Environmental Planning Policy (Transport and Infrastructure) 2021 requires the referral of proposed developments within 5m of an exposed overhead electricity powerline (s 2.48(1)(b)(iii)). At Tab 21 of the Respondent’s Bundle of Documents, Ex 2, includes a letter from Ausgrid which does not raise any issue with the Proposed Development and there is a condition of consent requiring any approval to relocate any power pole to be obtained prior to the issue of any construction certificate.

62. The Applicant has provided updated BASIX certificates (Ex F) as required by the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

63. The Proposed Development satisfies or complies with jurisdictional prerequisites in the HLEP as follows:

1. The FSR proposed is 0.99:1 complying with the cl 4.4 development standard of 1:1;

2. The land does not contain a heritage item nor is it within a heritage conservation area (cl 5.10);

3. The Site is not in a flood planning area (cl 5.21);

4. The Site is not mapped as being in any class of acid sulfate soils for the purpose of cl 6.1;

5. Clause 6.7 provides for essential services and the Applicant has provided a Deed of Agreement Granting Easement (Ex K) satisfying cl 6.7(d).

64. For these reasons, I am satisfied that the jurisdictional prerequisites have been satisfied and that development consent may be granted.

Orders:

65. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979 in an amount as agreed or as assessed.

2. The cl 4.6 Written Request dated 14 November 2022 prepared by Jonathon Wood is upheld.

3. The appeal is upheld.

4. Development application No DA2021/0048 for demolition of existing dwelling house and construction of a four-storey residential flat building containing three units, basement parking for three vehicles, landscaping, tree removal and site works at 26 Martin Place, Mortdale legally described as Lot 22, Section B in DP 2921 is determined by granting consent to the application subject to the conditions in Annexure A.

5. Exhibit 2 is returned and all other exhibits are retained.

E Espinosa

Commissioner of the Court

83335.22 Annexure A (398880, pdf)

83335.22 Landscape Plans (3270140, pdf)

83335.22 Architectural plans (1640479, pdf)

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Decision last updated: 16 May 2023