Micrah Projects Pty Ltd v Inner West Council

[2017] NSWLEC 1187

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Micrah Projects Pty Ltd v Inner West Council [2017] NSWLEC 1187
Hearing dates:	7-8 March 2017
Date of orders:	09 May 2017
Decision date:	13 April 2017
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	(1) The appeal is upheld. (2) The application to modify the conditions of consent for development application no. DARV/2016/8 is approved, subject to the amended conditions provided at Annexure 'A' and the amended hydraulic plans provided at Annexure 'B'. (3) The exhibits are returned with the exception of Exhibits 1 and A.
Catchwords:	APPEAL: Development application - tree structural root zone impacts; location of on-site detention tank.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Micrah Projects Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: Mr Pierre Saab (Applicant) Mr Mark Bonanno (Respondent)   Solicitors: Macquarie Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2016/352174
Publication restriction:	Nil

Judgment

1. Commissioner: Micrah Projects Pty has appealed the deemed refusal of an application to modify the development consent M/20/2016/178, for the construction of a new dwelling and associated works, including new car space at the rear of the property and removal of a tree, at 250 Annandale St, Annandale (the Subject Site).

2. The appeal was brought under section 97AA of the Environmental Planning and Assessment Act 1979, and was subject to mandatory conciliation under on 7 March 2017 under s34AA of the Land and Environment Court Act 1979 (LEC Act).

3. A site inspection was undertaken at the commencement of the conciliation conference. During that inspection, an oral submission was received from the neighbour in an adjoining property at 248 Annandale St, Annandale, Ms Michele Passant, who confirmed details of a written submission lodged by her in relation to the proposed development.

4. Ms Passant noted that her concerns related to the potential drainage and other water related impacts on her property, as well as potential excavation related impacts.

5. During the conciliation conference, and in response to contentions identified by the Respondent, the Applicant provided amended plans for the development.

6. Upon review of the amended plans the parties agreed that most contentions between them had been resolved. This included contentions relating to:

1. The design of the proposed development and potential impacts on streetscape;

2. The respondent’s request to delete a front sunken courtyard;

3. An exceedance of the applicable floor space ratio;

4. The design and materials of a proposed front ground level balustrade;

5. The use of polymer permanent formwork;

6. The design of windows within the northern elevation of the proposed development;

7. Landscape plan details, including plantings;

8. Potential drainage impacts.

7. However, one contention remained unresolved at the conclusion of the conciliation conference. This concerned the potential impact of the proposed development on a Melaleuca bracteata tree located at the rear of the adjoining property (248 Annandale Rd, Annandale), and close to the southern boundary of the Subject Site, along with that tree’s associated root system.

8. This contention centred on the potential for a proposed alfresco dining area and adjacent living area to impact on the Melaleuca bracteata tree and its root system. Related to this is the proposed location of an on-site detention (OSD) tank which is influenced by the design of the proposed alfresco area and living area.

9. As the Parties were unable to reach agreement on this contention, the conciliation conference was terminated pursuant to s34AA(2)(b) of the LEC Act.

10. The proceedings were then dealt with forthwith pursuant to s34AA(2)(b)(i), and on the basis of what occurred at the conciliation conference pursuant to s34AA(2)(b)(ii), of the LEC Act.

11. As all issues apart from the potential impact of the proposed development on the root system of the Melaleuca bracteata tree on the adjoining property had been agreed, the hearing was confined to the tree issue.

Leave granted to rely on amended plans

12. At the commencement of the hearing the Court granted the Applicant leave to rely on an amended application including amended plans prepared by Development Design Pty Ltd dated 20 March 2017, and the following documentation:

1. A ground footing and slab plan – Wehbe consulting (dated 1.03.17).

2. A hydraulic plans (4 sheets) prepared by Wehbe consulting for management of stormwater (dated 07.03.17).

3. An annotated hydraulic plan (drawing number SW572-2 prepared by Wehbe consulting and dated 07.03.17) providing further detail to the construction design for the stormwater management system.

Do the amended plans mitigate the potential impacts on the tree?

13. In opening, the Applicant submitted that the amended plans, including the proposals for the location of footings for the slab at the rear of the property and the revised location of the OSD tank, would mitigate the potential impacts of the proposed development on the structural root zone (SRZ) of the Melaleuca bracteata tree.

14. This tree had been identified as ‘Tree 2’ in a Preliminary Aboricultural Assessment Report prepared by Redgum Aboriculture & Horticultural Consultants (dated 12 June 2015), tendered as evidence in the hearing.

15. A report by GBG Australia providing the results of an investigation to locate the position of roots emanating from Tree 2 (dated 26 February 2016) was also tendered as evidence.

16. As the remaining contention related to potential impacts on Tree 2, the Parties only called expert aboricultural evidence. This was provided by Mr Shields for the Applicant and Mr Morgensen for the Respondent.

17. It was the testimony of Mr Shields that under the amended plans and supplementary materials tendered in evidence (see [12] above), the proposed alfresco area and living area would sit on a slab base, supported by a pier and beaming arrangement that would place no weight on the soil beneath the structure.

18. He noted that this structure would sit above, rather than on, the ground beneath, and as a consequence would facilitate air flow, and so aeration of any Tree 2 root system elements, below the slab. Mr Shields was also of the expert opinion that the amended plans and hydraulic plans would facilitate the provision of an adequate water supply to the root system of Tree 2.

19. Mr Shields further noted that the location and excavation of sites for placement of piers would be hand excavated under his supervision so as to avoid any physical impact on the root system of Tree 2 and other roots in the area.

20. Mr Shields said that the revised location of the OSD tank, as provided for in the annotated hydraulic plan tendered, would shift a further 400mm to the north compared with its position in the amended plans and would sit 600mm off the northern boundary.

21. As a consequence, Mr Shields was of the opinion that the OSD tank now sat outside the SRZ of Tree 2 and would only marginally intrude on the 10% encroachment allowable on the so-called Tree Protection Zone (TPZ) as defined under the Australian Standard for protection of trees on development sites (AS4970-2009).

22. In response to Mr Shields’ testimony, Mr Morgensen agreed that the amended plans, and revised arrangements for the location of the OSD tank, represented an improved outcome for Tree 2 compared with the previously approved development.

23. Nevertheless, Mr Morgensen added that, in his view, further improvements could be made to protect the SRZ of Tree 2. In particular, Mr Morgensen expressed a preference that wooden decking be used in the alfresco area above the SRZ.

24. The Parties discussed with the experts various alternative arrangements for the location of structures and the OSD tank with a view to further reducing potential impacts of the proposed development on Tree 2.

25. The arboriculture experts eventually agreed that the amended design, with the OSD tank located shifted 400mm to the north and set 600mm off the northern boundary of the Subject Site, and as proposed by the Applicant in the annotated hydraulic plan:

1. represented a significant improvement in relation to management of potential impacts to the SRZ of Tree 2

2. provided no worse an outcome than other alternatives considered.

Conclusion

26. Based on the evidence of the experts as outlined, and in particular the experts’ satisfaction with the final location and design for the OSD tank, I am satisfied that:

1. the final proposed arrangements for the alfresco and living areas, and location of the OSD tank, as proposed by the Applicant represents a significant improvement to the mitigation of potential impacts of the development on Tree 2 compared to the previously approved plans;

2. other options considered during the proceedings would not provide any further mitigation to the potential impacts on Tree 2 when compared to the Applicant’s amended plans, the Applicant’s approach to the installation of the rear slab and associated pierings, and the location identified for the OSD tank.

27. As a consequence, I conclude that the Applicant’s proposed development, as represented by the amended plans, and as modified by the annotated hydraulic plans, tendered during the proceedings, provide the optimal outcome with respect to mitigating potential impacts on Tree 2, and should form the basis for finalisation of conditions of consent for the proposed development at 250 Annandale St, Annandale.

Directions

28. As the judgement in this matter relies on amended plans developed through the conciliation stage of the s34AA process, final conditions of consent will need to be prepared to reflect those plans before I am able to make final orders. Accordingly, In make the following directions:

1. The parties are directed to file, by no later than Friday 28 April 2017, agreed amended plans and final conditions of consent, consistent with the amended plans, and the annotated hydraulic plans referred to in my reasons for judgement.

2. On filing of the agreed amended plans and conditions of consent, orders will be made in chambers.

Addendum made on 9 May 2017

29. In accordance with the terms of paragraph [28] of my judgment of 13 April 2017 the parties have provided me with the agreed amended plans and conditions of consent. I am satisfied that the amended plans and conditions of consent accord with my findings and accordingly I make orders in chambers as follows:

30. The orders of the Court are:

1. The appeal is upheld.

2. The application to modify the conditions of consent for development application no. DARV/2016/8 is approved, subject to the amended conditions provided at Annexure 'A' and the amended hydraulic plans provided at Annexure 'B'.

3. The exhibits are returned with the exception of Exhibits 1 and A.

…………….

Michael Chilcott

Commissioner of the Court

352174.16 Annexure A (C) (43.3 KB, pdf)

352174.16 - Annexure B (3.29 MB, pdf)

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Amendments

09 May 2017 - Final Orders made

Decision last updated: 09 May 2017