Lend Lease Development Pty Limited v Manly Council
[1999] NSWLEC 3
•02/04/1999
Land and Environment Court
of New South Wales
CITATION:
Lend Lease Development Pty Limited -V- Manly Council [1999] NSWLEC 3
PARTIES
Lend Lease Development Pty Limited Manly Council
NUMBER:
10362 of 1996
CORAM:
Pearlman J
KEY ISSUES:
:- Modification
subdivision approval
additional lot
environmental impact
LEGISLATION CITED:
Modification
subdivision approval
additional lot
environmental impact
DATES OF HEARING:
12/17/1998; 12/18/1998
DATE OF JUDGMENT DELIVERY:
02/04/1999
LEGAL REPRESENTATIVES:
Mr M G Craig QCSolicitors:
Makinson & d'ApiceMr W P O'Rourke, Solicitor
Solicitors:
Deacons Graham & James
JUDGMENT:
Introduction
1. These proceedings involve an application made under s 96 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) for the modification of a development consent granted by this Court on 26 February 1997.
2. In essence, the modification is to create an additional lot in an approved subdivision in place of two lots which were deleted from the subdivision which was originally sought.
3. The original development application covered a number of discrete parts of St Patrick’s Estate at Manly. In relation to one of those parts, precinct 1, the original development application sought approval for a subdivision into 14 lots. On appeal from the council’s deemed refusal of the original development application, the Court granted development consent for a subdivision of precinct 1, subject however to a condition, numbered 20, which provided that allotments 6 and 7 were to be deleted from the proposed subdivision.
4. What is now sought is a modification which creates a new lot, numbered 6, in place of allotments 6 and 7, so as to produce a 13 lot subdivision in a configuration set out in a plan numbered SP.03.S.01.DA (“the new plan”). As well as delineating the new lot 6, the new plan makes a number of consequential minor changes to the approved configuration, affecting the size of some of the proposed lots, the proposed access handle and the numbering of the lots.
5. Accordingly, the modification which is sought is the replacement of existing condition 20 with a new condition as follows:
“20 The subdivision of Precinct 1 shall be reduced to a 13 lot subdivision (together with the proposed road and right of way) as shown on the drawing prepared by Whelans Australia Pty Limited dated 27 October 1997 entitled “Proposed Section 102 Amended Subdivision” and numbered SP.03.S.01.DA.”
The issues
6. Three issues are raised:
· whether the new lot 6 will have an adverse environmental impact upon the adjacent drainage gully;
· whether, in accordance with s 96(2)(a) of the EP&A Act, the development the subject of the consent as modified is substantially the same development; and
· whether the new lot 6 will have an adverse impact upon the amenity of the adjoining property at 35 Bower Street.
The gully
7. One of the constraints of development within precinct 1 is the existence of an intermittent watercourse or gully which traverses precinct 1 at its the south-eastern end. The gully is about 5 metres wide with rock walls on either side approximately 1.5 to 2 metres high.
8. In my earlier judgment ( Lend Lease Development Pty Ltd v Manly Council (1997) 92 LGERA 420 at 434) I made the following findings in relation to the gully so far as it affected the proposed subdivision upon precinct 1:
“There will … be an impact in relation to drainage across the gully traversing lots 6 and 7. I accept the evidence that the natural state of that gully can only be preserved by fixing an adequate building setback. The result of such a setback would be that it will in effect reduce the size of both lots 6 and 7 to an inappropriate level. It would be preferable to exclude those lots from any consent … .”
9. There is no issue between the parties that there should be some setback or buffer zone between the gully and the new lot 6. The real dispute between them is the extent of that setback or buffer zone.
10. Mr R J Morse, who is an environmental scientist, adhered to the evidence which he gave on behalf of the council in the initial appeal, which was that a 10 metre setback from the bank of the flowline of the gully was necessary to preserve the riparian zone, to maintain the integrity of the gully itself and to maintain catchment water quality. In giving evidence in this present application, Mr Morse explained that he considered the overland flow path to be between 20 and 40 metres, and, in his professional judgment, that required a vegetated buffer strip (free of all human activity, including gardening) of a width of 10 metres. However, Mr N V Mann, a surveyor who gave evidence on behalf of the council, calculated that the western bank of the gully is within 10 metres at right angles from the proposed boundary of the new lot 6 for the whole of the length of that boundary. Accordingly, Mr Morse’s recommendation will not be met if the modification is approved.
11. In the light of that evidence, the council’s case is that the s 96 application should be refused.
12. In response, the applicant’s case is that the buffer strip as proposed is adequate for the preserving the riparian zone, the gully banks and water quality. Evidence to support its case was given by Mr R P Higgins, one of the engineers who designed the stormwater drainage system for precinct 1, by Mr N Ingham, town planner, and by Mr F D Fanning, environmental consultant.
13. Mr Higgins’ evidence was that the on-site stormwater detention system which will be implemented in accordance with the conditions of consent will be adequate to control overland flow, and that therefore it is not necessary to create any buffer zone other than as presently proposed. If the Court were minded in addition to impose a requirement for a buffer strip of 2.5 metres within the new lot 6 adjacent to its boundary, that would be more than acceptable. Mr Higgins did not accept the necessity for a 10 metre buffer and he was critical of the material upon which Mr Morse relied to base his professional judgment that a 10 metre width was required. In particular, Mr Higgins criticised Mr Morse’s reliance upon a graph adapted from material originally produced by Scott and Furphy, which, Mr Higgins said, related more to a pre-construction phase rather than post-construction.
14. Mr Ingham’s opinion was that the boundary of the new lot 6 was not the critical factor in the determination of the appropriate buffer zone. Rather, the issue was to ensure that there was a buffer zone between the development, or dwelling, upon the new lot 6 and the bank of the gully. Mr Ingham said that it would be reasonable to set any dwelling back from the boundary for a distance of six metres (on analogy with the Manly Residential Development Control Plan 1986, which provides for a setback of that width where development is adjacent to open space and National Park areas). If that were so, then the buffer zone would be adequate to protect the gully, although it would resolve any doubt to require native vegetation to be planted along the boundary of the new lot 6 to a depth of about 2.5. metres.
15. Mr Fanning also supported the provision of a buffer zone between the gully and the new lot 6, but his opinion was that the proposed location of the new lot 6 provides an adequate buffer. He stated that, in his opinion, the new lot 6 would not be affected by much overland flow, and that the predominant supply of water into the gully is not derived from the locality of the new lot 6.
16. I consider that the gully warrants preservation and protection. Although the gully is not in a pristine state (Mr Fanning reminded the Court that it was infested in parts with weeds and rubbish and that was confirmed by a report from Mr J Hodges which was tendered), and although it only intermittently carries water, it is a natural gully and it does flow across the site to the waters of Shelly Beach. No expert disagreed with this assessment of the gully, and all agreed that a buffer zone is required.
17. In determining the width of a buffer zone, I prefer the evidence of Mr Morse. He has expertise in geomorphology and he considered the soils and erosion hazards. The Scott and Furphy graph was adapted by Mr Morse for the purpose of reaching his recommendation, but it was not the only material on which he relied. He also took into account the draft NSW Riparian Policy issued by the Department of Land and Water Conservation. Ultimately, he came to a professional judgment that a buffer zone of 10 metres in width was required. Furthermore, I accept Mr Morse’s opinion that it is water quality, not water quantity, that is in issue. It may be the case, as Mr Higgins postulated, that the on-site stormwater detention system will control overland flow from precinct 1 and beyond, but I accept Mr Morse’s opinion that the buffer zone is designed to protect the gully from sheet water in the area of precinct 1, and the new lot 6 in particular, arising after intense storm events. I conclude therefore that a buffer zone of 10 metres should be provided.
18. As Mr Mann’s survey evidence shows, a buffer zone of that width cannot be achieved without encroachment over the boundary into the new lot 6. There is, of course, nothing exact about the figure of 10 metres, and it should not be rigidly applied. But Mr Mann’s evidence showed that the extent of encroachment (if the width of 10 metres is applied) occurs along the whole of the proposed boundary and is substantial, being up to 5 metres at one point. Mr Mann’s evidence was unchallenged, and, despite being cross-examined extensively by Mr Craig QC on behalf of the applicant as to the basis of his calculations, his evidence was not shaken.
19. The applicant endeavoured to meet this result by pointing out that any dwelling upon the new lot 6 will be set back 6 metres from the boundary, and hence there will in fact be a buffer zone between the bank of the gully and such dwelling of at least 10 metres. But Mr Morse’s evidence was that the buffer zone should be free of all human activity - encroachment into the area of the new lot 6 itself will not meet that criterion, because it will encompass the backyard of any dwelling on that lot. The applicant’s response is to suggest a positive public covenant requiring a strip of native vegetation running at a depth of 2.5 metres along the boundary of the new lot 6. The council expressly renounced acceptance of an obligation to enforce such a covenant, and there can be little assurance that successive owners (or their tenants) will ensure that such an obligation is complied with.
20. My conclusion, therefore, is that the modification application should be refused. If a setback of 10 metres in width is required, and I accept that it is, the configuration presently proposed will not meet it.
21. This is, of course, sufficient to dispose of the proceedings, and it is not necessary for me to deal with the remaining issues. They were, however, the subject of evidence and argument, and it is appropriate that I set out my conclusion in relations to them.
Substantially the same development
22. Section 96(2)(a) of the EP&A Act provides that a development consent may be modified if the consent authority “… is satisfied that the development to which the consent as modified relates is substantially the same development”.
23. Mr O’Rourke, for the council, submitted that that criterion is not satisfied in this case. That follows, he said, from two particular impacts. First, the new lot 6 is located closer to the gully than the two lots, numbered 5 and 8, in the subdivision as approved. Secondly, 35 Bower Street, which formerly shared only part of its boundary with the subdivision, now shares almost the whole of its boundary with the new lot 6.
24. I do not accept that these impacts, taken together or separately, make the development the subject of the proposed modification a development substantially different from that which was approved. They are impacts which must be taken into account in the determination of the modification application (s 96(3)), but they do not substantially change the development as approved. It remains a subdivision of precinct 1, and the change, in essence, is merely the addition of another lot and minor re-configuration of some of the existing lots.
25. In my opinion, the development as modified is substantially the same development as that which was approved, and the modification application should not be refused on this account.
The impact on No 35 Bower Street
26. Mr R N Fisher is one of the occupants of No 35 Bower Street. He objected to the original development application, and gave oral evidence in these present proceedings indicating his concern.
27. Lot 5 of the subdivision as approved shares a common boundary with No 35 for only a short distance. But, if the new lot 6 is approved, most of the rear boundary of No 35 will be a shared boundary with the new lot 6.
28. In these circumstances, Mr Fisher’s principal concern is the impact upon the privacy of the occupants of No 35. He fears that the view from the new lot 6 will intrude into two bedrooms, a bathroom, a downstairs living area and a spa/bathroom in the dwelling on No 35.
29. I take Mr Fisher’s concern into account, but it would not be sufficient justification on its own to refuse to grant the modification. The zoning of precinct 1 permits subdivision and residential development with consent (see Lend Lease v Manly at 424). It is not the subdivision itself which gives raise to Mr Fisher’s concern. It is, rather, the privacy impact of a future dwelling on the new lot 6. That is a matter to be taken into account in any approval for the erection of such a dwelling, and ameliorative measures, such as siting and vegetative screening, can be required if warranted at that time.
Conclusion
30. In summary, therefore, I have concluded that the modification which is sought will have an unacceptable impact upon the preservation and protection of the gully which traverses precinct 1. For that reason, the modification application must be refused.
31. I recognise that it may be possible (although I express no conclusion on the matter) to re-configure the subdivision layout on precinct 1 in such a way that a buffer zone as described of not less than 10 metres in width will be achieved. If that is so, then the applicant will be required to make another modification application if it wishes to take the benefit of an additional lot, because no such alternative configuration is the subject of the present application.
32. My orders therefore are as follows:
1. The application for modification of the development consent granted on 26 February 1997 is determined by refusal of consent.
2. The exhibits may be returned.
I make no order as to costs.
I HEREBY CERTIFY THAT THIS AND THE PRECEDING 8 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.
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