Knox v Ku-ring-gai Council

[2016] NSWLEC 1039

Land and Environment Court

New South Wales

Medium Neutral Citation:	Knox v Ku-ring-gai Council [2016] NSWLEC 1039
Hearing dates:	28 – 29 January 2016
Date of orders:	05 February 2016
Decision date:	05 February 2016
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is dismissed. 2. Development Application No. 0001/15 for the construction of a tennis court at 8 Wahroonga Avenue, Wahroonga is refused consent. 3. The exhibits, other than exhibits 4, B and F, are returned.
Catchwords:	DEVELOPMENT APPLICATION: proposed tennis court; removal of trees; impact on endangered ecological community.
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) Land and Environment Court Act 1979 (NSW) Threatened Species Conservation Act 1995 (NSW)
Cases Cited:	Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195
Category:	Principal judgment
Parties:	Jennifer Knox (Applicant) Ku-ring-gai Municipal Council (Respondent)
Representation:	Counsel: Mr D. Clarke solicitor (Applicant) Mr C. Shaw solicitor (Respondent) Solicitors: Clamenz Lawyers (Applicant) Swaab Attorneys (Respondent)
File Number(s):	10863 of 2015

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 0001/15 for the construction of a tennis court, including a concrete slab, fencing and a controlled discharge drainage pit and the removal of trees (the proposal), at 8 Wahroonga Avenue, Wahroonga (the site) by Ku-ring-gai Council (the Council).

2. The appeal was subject to mandatory conciliation on 28 January 2016, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.

Issues

3. The Council’s contentions in the matter can be summarised as:

1. The proposal will result in an adverse ecological impact from the loss of endangered biodiversity through the removal of trees identified on the site survey (exhibit G) as Trees 40 and 42. The removal of these trees will have an unacceptable impact on the natural environment.

2. The applicant’s proposed stormwater management would give rise to an unacceptable impact on the neighbouring property.

4. The applicant’s original proposal was for the removal of Tree 40 and retention of Tree 42 (as shown on “Court Consultants plan” [the plan] dated November 2014, both sheets 1 and 2, exhibit F). During the hearing, the applicant submitted that the proposal includes the removal of Tree 42, on the basis that the removal of both Trees 40 and 42 was recommended by the Arboricultural Assessment Report (the report) submitted with the development application, notwithstanding the inconsistency between the report and the plan. Leave of the Court was not sought to amend the proposal. It is the Council’s position that the proposal contemplated the retention of Tree 42.

The site and its context

5. The site is located on the western side of Wahroonga Avenue and has a wider portion at the rear of the site, with a total area of 2,920sqm. The site is relatively flat with an open, un-piped stormwater channel running along the rear boundary. There is an existing dwelling and swimming pool on the site.

6. The site is heavily vegetated with canopy trees, which are made up of Turpentines, Brushbox, Camphor Laurel and Coral Trees.

7. The trees and their allocated numbers are noted on the site survey (exhibit G). Tree 40 is located approximately 4m from the rear, western boundary of the site, within the building footprint of the proposed tennis court. Tree 42 is located approximately 1m from the rear, western boundary, to the north of Tree 42, within the 3m proposed setback of the tennis court. Both Trees 40 and 42 are Syncarpia glomulifera (Turpentine), remnant/natural specimens of the Sydney Turpentine-Ironbark Forest (STIF).

Background and the proposal

8. The proposal is for the construction of a tennis court, 16.764m in an east-west direction and 34.013m in a north-south direction, with a surface level of RL191.15 at the highest point in the south-eastern corner of the court and constructed from synthetic grass on reinforced concrete slab (exhibit F). The proposed tennis court is setback 3m from the rear boundary, 3m from the northern side boundary and 2m from the southern side boundary. The proposed position of the pool is adjacent to an existing swimming pool on the northern side of the site.

9. The proposal includes the removal of 9 trees, including trees identified as Trees 40 and 42, according to the applicant.

10. There is a manhole to the main sewer line near the south-western corner of the existing swimming pool (exhibits B and G).

Planning framework

11. The site contains STIF, which is identified as part of an endangered ecological community (EEC) protected under the Threatened Species Conservation Act 1995 (TSC Act) (Part 3, Schedule 1). The objects of the TSC Act, at s 3, are as follows:

(a) to conserve biological diversity and promote ecologically sustainable development, and

(b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and

(c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and

(d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and

(e) to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed, and

(f) to encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving co-operative management.

12. The development application was lodged on 5 January, 2015, prior to the commencement of the Ku-ring-gai Local Environment Plan 2015 (LEP 2015) on 2 April 2015 and so the development application is to be determined as if the plan had not commenced, pursuant to the savings provision at cl 1.8A of LEP 2015 (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 [5]).

13. The site is zoned 2(c) under the Ku-ring-gai Planning Scheme Ordinance (KPSO) and the proposal is permissible with consent. The relevant objectives of the KPSO are to maintain and where appropriate improve the existing amenity and environmental character of residential zones at 1(a) and that any building or development work shall maintain or encourage replacement of tree-cover whenever possible to ensure the predominant landscape quality of the Municipality is maintained and enhanced at 2(c).

14. The Ku-ring-gai Residential Design Manual Development Control Plan No. 38 (DCP 38) applies to the proposal. The relevant objectives for site planning and environmental constraints at 3.1 of DCP 38 are as follows:

To conserve Ku-ring-gai’s landscape and habitat and ensure that the natural environment is not dominated by the built form;

To protect and conserve Ku-ring-gai’s natural, built and cultural heritage;

To discourage fragmentation of the established landscape character as a result of increased development pressures and to encourage development that reinforces Ku-ring-gai’s distinct treed canopy character;

To maintain bio-diversity within Ku-ring-gai by retaining remanent native vegetation and wildlife habitats;

To protect and improve the endangered Blue Gum High Forest, Duffy’s Forest and Sydney Turpentine Ironbark Forest ecological communities and threatened species under the Threatened Conservation Act 1985;

To design for the high rainfall and steep catchment areas of much of Ku-ring-gai in accordance with the principles of ecologically sustainable development (ESD);

To manage stormwater drainage ad run-off problems.

15. The relevant assessment criteria and design requirements for site planning and environmental constraints are as follows:

3.1.1 Tree Preservation

The proposed development should be designed and located so as to retain and minimise disturbance to as many existing trees on the site as possible.

This shall be achieved by:

Positioning dwellings, driveways, tennis courts and other structures outside the canopy spread of existing significant trees.

When retaining trees the root system, canopy spread, size, age and condition (health) of the tree needs to be considered.

3.1.3 Bio-diversity

To conserve biodiversity the proposed development should:

Protect and enhance remnant native vegetation and the wildlife, which relies upon it for food and shelter.

Identify and consider threatened species, populations, ecological communities and their habitats.

Recognise the potential and value of preserving local seed banks in the soil in-situ.

This shall be achieved by:

Creating a buffer zone between development and remnant habitat to conserve landscape and habitat.

16. The relevant objectives for open space and landscape at 4.3 of DCP 38 are as follows:

a. To maintain or enhance the predominant tree dominated landscape quality of Ku-ring-gai by retaining and replanting trees.

b. To replenish the tree canopy of Ku-ring-gai

c. To enhance the viability of bio-diversity within Ku-ring-gai by having a proportion of planting in new development that provides biolinkages between bushland reserves and by retaining remnant vegetation and wildlife habitats.

g. To protect and improve the ecological environment within and along Ku-ring-gai’s watercourses.

17. The relevant assessment criteria and design requirements for open space and landscape are as follows:

4.3.4 Landscape Character

Landscaping proposals shall enhance the landscape character of the area. Landscape proposals should:

Enhance the visual character of development when viewed from adjacent streets, parks and neighbouring properties by providing suitable landscaping so that the built form does not dominate.

Provide on maturity a contribution to Ku-ring-gai’s tree canopy.

Retain and protect existing significant trees, shrubs and gardens.

4.3.5 Tree Preservation

Landscape proposals should be integrated with existing trees. Trees will be valued and conserved as an integral feature of the area and their dominate role in the landscape will be protected and enhanced.

This should be achieved by:

Avoiding alterations to existing ground levels.

Planting compatible species.

Confining building works where appropriate to pre-existing building footprints.

4.3.9 Biodiversity

Proposed landscaping works shall protect and enhance vegetation to conserve and promote biodiversity.

This must be achieved by:

Minimising disturbance to existing vegetation on the site and adjoining bushland.

18. The Water Management Development Control Plan No. 47 (DCP 47) applies to the proposal. DCP 47 includes at 6.7.3 that tennis courts must be constructed as on-site detention systems unless other approved.

19. The Sydney Water ‘Guidelines for Building Over/Adjacent to Sydney Water Water and Wastewater Assets’ dated 15 April 2013 (exhibit A) includes the following at page 17, in relation to ‘driveway, paving’ and permitted excavation and building works and technical requirements:

Construction over or covering of maintenance structure access cover not permitted.

Public submissions

20. The adjoining neighbour to the rear of the site provided evidence at the commencement of the matter on site. The neighbour is broadly supportive of the proposal on the basis that the removal of trees adjacent to the rear boundary and the construction of the tennis court may assist in reducing flooding on his property from the stormwater channel at the rear of the site during periods of heavy rainfall.

Expert evidence

21. Expert evidence was provided on behalf of the applicant by Mr Malcolm Bruce (arboriculture and ecology) and on behalf of the Council by Mr Guy Paroissien (arboriculture) and Mr John Whyte (ecology).

22. Mr Bruce and Mr Paroissien agreed on the following:

• Trees 40 and 42 are remnants of STIF EEC and are of moderate to high and high landscape significance from a landscape amenity perspective;

• Tree 40 is of good health, however there is some evidence of a potential structural issue at 12m as evidenced by support wood/bark striations on the underside of a branch junction at this point, however, it is not considered this junction is at risk of failure in the short term and there is no evidence that the tree is currently unstable or at risk of failure;

• Tree 42 is of good health and the tree exhibits evidence of potential structural issues but there is no evidence available to suggest the tree is at risk of failure or structurally compromised. The tree has a canopy bias to the north-west. Further testing of the extent of potential decay at the large pruning wound in the basal trunk on the SW side is recommended, as is root mapping to assist in identifying the extent of structural roots generally and potential loss of root function on the south-west side would assist in confirming the tree’s structural integrity.

• The sustainable retention of Tree 42 is not feasible with the proposed position of the tennis court. A 6.6m offset from Tree 42 would reduce the encroachment of the tennis court to less than 10% of the tree protection zone (TPZ) and that a 5m offset combined with an above grade tennis court would encroach less than 20% of the TPZ and could provide for retention of the tree.

23. According to Mr Bruce, the retention of Tree 42 after removing all surrounding and supporting trees “would be foolish” (exhibit 2, p 5).

24. The arboricultural experts disagreed on the potential extent/severity of the wind and sunlight exposure issues if the adjacent trees were to be removed; Mr Bruce is of the opinion the impact of the removal of trees in the vicinity of Trees 40 and 42 will be significant enough to warrant their removal and Mr Paroissien disagreed, as he is of the view that the removal of trees in the vicinity of Trees 40 and 42 will not be significant enough to substantiate a case for their removal.

25. According to Mr Whyte, the removal of Trees 40 and 42 will further fragment the STIF community and fragmentation is recognised as a key threatening process to STIF. According to Mr Bruce, the VMP addresses the potential loss of canopy by planting advanced Turpentines and other endemic lower canopy species. In Mr Whyte’s view, the plantings proposed by the VMP will take many years to achieve the same maturity as the existing trees and any proposal should first seek to avoid any impacts on the STIF.

Submissions

26. Mr Clarke submits that the proposed position of the tennis court is the only option for locating a tennis court on the site because the existing pool and the sewer manhole preclude locating a tennis court further to the east to avoid the TPZ of Trees 40 and 42. In his opinion, it is not feasible or reasonable to destroy an existing swimming pool so as to relocate the proposed tennis court. Furthermore, the outcome of creating approximately 400sqm of unusable land on the western side of the tennis court is a poor design outcome that reduces the amenity of the land.

27. Mr Clarke further submits that the implementation of the VMP will achieve a better long-term outcome by enhancing the remainder of the STIF community via weed removal and planting works.

28. Mr Shaw submits that as a matter of jurisdiction the court does not have power to assess the removal of Tree 42 as the applicant refused to amend its application so as to formally include its removal.

Findings

29. I accept the agreed evidence of the arboricultural experts. I prefer Mr Paroissien’s evidence that the impact on Trees 40 and 42 of the removal of trees in their vicinity does not substantiate a case for removing Trees 40 and 42, on the basis of the agreed evidence of the experts that both Trees 40 and 42 are in good health.

30. I accept Mr Whyte’s evidence that the removal of Trees 40 and 42 will further fragment the STIF community and fragmentation is recognised as a key threatening process to STIF.

31. I do not accept that the tendering of exhibit A, the Sydney Water publication, is sufficient evidence to establish the applicant’s submission that the position of the sewer manhole on the site presents an intractable constraint for positioning the tennis court. I am not satisfied that the option of moving the sewer line and/or manhole has been fully explored and I therefore do not accept the applicant’s submission that there is no alternative position for a north-south orientated tennis court on the site. Instead, the applicant has simply given greater weight to the retention of the existing swimming pool and positioning the court as far to the rear of the site as possible, than to the retention of Trees 40 and 42, in determining the desired position for a tennis court.

32. During the conciliation phase of the proceedings, Mr Paroissien indicated that he considered a tennis court positioned 7.5m from the rear boundary, with a finished level approximately 120mm above the existing ground level (which would require the repositioning of the sewer manhole and the removal of the swimming pool), would be acceptable, as it avoided the majority of the TPZ of both Trees 40 and 42. I do not accept the applicant’s submission that a 7.5m setback between the tennis court and the rear boundary is necessarily “unusable land”. It may not be active recreational space; however it could be used to create a landscaped/treed passive area that provides ambience and privacy to the site. It cannot be described as a “poor design outcome that reduces the amenity of the land” on an allotment of nearly 3000sqm.

33. I am not satisfied that the proposal has adequately addressed the desirability of retaining and minimising disturbance to remnant native vegetation on the site in order to maintain Ku-ring-gai’s biodiversity. While the VMP may indeed enhance the STIF community in the long run, I prefer Mr Whyte’s evidence that the proposal should first seek to avoid any impacts on the STIF.

Conclusion

34. Trees 40 and 42 are Syncarpia glomulifera (Turpentine), remnant/natural specimens of the Sydney Turpentine-Ironbark Forest, which is identified as part of an endangered ecological community. In considering all of the evidence before me, I am not persuaded that the removal of Tree 40 is warranted, as there is the potential for an alternative position for a north-south orientated tennis court of the same dimensions on the site that would substantially avoid the TPZ of both Trees 40 and 42. Under these circumstances, the adverse ecological impact of the proposal from the loss of endangered biodiversity is unacceptable.

35. Given my findings in relation to the removal of Tree 40, it is not necessary to address Mr Shaw’s jurisdictional question regarding Tree 42.

Orders

36. The orders of the Court are:

1.   The appeal is dismissed.

2.   Development Application No. 0001/15 for the construction of a tennis court at 8 Wahroonga Avenue, Wahroonga is refused consent.

3.   The exhibits, other than exhibits 4, B and F, are returned.

_____________________

Susan O’Neill

Commissioner of the Court

**********

Decision last updated: 09 February 2016