Mortimer D K v Ku-ring-gai Council

[2007] NSWLEC 254

Land and Environment Court

of New South Wales

CITATION:	Mortimer D K and Anor v Ku-ring-gai Council [2007] NSWLEC 254 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT: Mr David Kenneth Mortimer & Mrs Leanne Shirley Mortimer RESPONDENT: Ku-ring-gai Council
FILE NUMBER(S):	10014 of 2007
CORAM:	Watts C at 1 - Taylor AC at 1
KEY ISSUES:	Subdivision :- Impact of the proposal on the Blue Gum High Forest or Sydney Turpentine – Ironbark Ecological Communities
LEGISLATION CITED:	Ku-ring-gai Planning Scheme Ordinance, (KPSO) Environmental Planning and Assessment Act 1979, ss79C and 97
DATES OF HEARING:	07/05/2007
DATE OF JUDGMENT:	9 May 2007
LEGAL REPRESENTATIVES:	APPLICANT: Mr S Kondilios, solicitor SOLICITORS: Maddocks RESPONDENT: Mr A Hudson, solicitor SOLICITORS: Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

9 May 2007

10014 of 2007 - Mr David Kenneth Mortimer & Mrs Leanne Shirley Mortimer v Ku-ring-gai Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Ku-ring-gai Council (the council) of a development application to demolish existing improvements and to subdivide into four allotments land at Lot 39, Section 4, DP 3312, being No 82 Ada Avenue, Wahroonga.

2 We visited the land in company with the parties on the morning of the hearing.

3 During the hearing, the application was amended to subdivide into two allotments and we have concluded that this amended application when considered under s 79C of the Environmental Planning and Assessment Act 1979, is satisfactory and may granted consent subject to conditions.

The land

4 The land is situated on the eastern side of Ada Avenue, Wahroonga. It is regular in shape except for the eastern boundary that follows the line of a creek bed and has a street frontage of 18m, a depth of about 51.62m and an area of some 929m2.

5 The land falls about 16 metres to rear from the front to the rear down to a watercourse that transverses the rear eastern part of the land.

6 The extent of the Blue Gum High Forest and the Sydney Turpentine Ironbark Forest - Endangered Ecological Community under the Threatened Species Conservation Act 1995 (TSC Act) and the Federal Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) has been agreed between the parties. The western extent of that forest is indicated on the amended plan of subdivision by a blue line. No trees within the forest will be impacted upon by the proposed amended subdivision.

7 Existing improvements include a two-storey dwelling with a single garage.

8 The subject land is described in the Ku-ring-gai Visual Character Study as being located within an area characterised by single dwellings on single lots with many being erected in the period from 1945 to 1968. Ada Avenue comprises an intact streetscape of uniform architectural style and with buildings erected about the same time. The following are distinguishing features within the streetscape:

· consistent generous front setbacks;

· large proportion of open space mostly to the rear of the residence and mature established gardens;

· low brick, timber or herbaceous-front boundary fences; and

· driveway and single car accommodation located at the side of residences or integrated into the dwellings.

Relevant planning controls

Ku-ring-gai Planning Scheme Ordinance, (KPSO)

9 Under the provisions of the KPSO the land is zoned Residential 2(c) and the proposed subdivision is permissible with consent.

10 Other statutory controls include:

· Threatened Species Conservation Act 1995 (TSC Act).

· Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

· State Environmental Planning Policy 1- Development Standards, (SEPP1).

· Development Control Plan 38 (Residential Design Manual) Development Control Plan No 43 (Car Parking), (DCP38)

· Development Control Plan 47 (Water Management) Development Control Plan No 56 (Notification), (DCP47)

· Riparian Policy, (Policy).

· Subdivision Code, (Code).

· Bush Fire Prone Land Map, (BFPL).

The proposal and its history

11 Development application No 1126/06 was lodged with the respondent council on 29 September 2006 to demolish the existing improvements and to subdivide the land.

12 It was proposed to create four (4) Torrens title allotments:

· Lot 391: 929m2 with 18m frontage.

· Lot 392: 1,520m2 (1,301m2 excluding right of carriageway).

· Lot 393: 1,643m2 (1,424m2 excluding right of carriageway).

· Lot 394: 929 m2 with 18m frontage.

13 It is now proposed to create two (2) Torrens title allotments:

· Lot 391: 4,154.8m2 is ‘L’ shaped with a 22.23m frontage.

· Lot 392: 929m2 with 18m frontage.

Notification

14 The application was notified to nearby owners and occupants in accordance with Ku-ring-gai Council Notification Development Control Plan No. 56, (DCP56) and the council received two (2) submissions. Concerns were expressed in respect of the:

· removal of tree Nos 352 and 356;

· removal of trees that would detrimentally impact on privacy and potentially property values;

· retention of the banana palms trees for screening and privacy reasons; and

· removal of all noxious weeds from the land prior to subdivision.

15 By letter dated 29 November 2006 the council requested the applicant provide additional information and stated:

· The application is, not supported due to the significant negative impact of the indicative building zones for Lots 392 and 393 upon Blue Gum High Forest.

· The applicant's Flora and Fauna Report needs to address the impacts of this application upon the Blue Gum High Forest- Endangered Ecological Community which is under consideration for upgrading to critically endangered status by the State and Federal Governments. All indicative future dwellings are to be located clear of the remnant bushland.

· This may require an alternate subdivision arrangement.

· All trees along and within 6 metres of the drainage line that will require removal or are likely to be negatively impacted by the drainage works are to be positively identified and described and in the applicant's Tree Report.

· Council does not agree that the remnant vegetation is Sydney Sandstone Gully Forest.

The council’s decision

16 When the appeal was filed the council had not determined the application. However, by a notice dated 22 February 2007, the council refused the subdivision application for the following reasons:

1. The proposal would have a detrimental impact upon the natural environment.
a) Negative impact from the proposal upon the. Blue Gum High Forest and Sydney Turpentine Ironbark Forest - Endangered Ecological Community.
2. The applicant has failed to address impacts on threatened species
a) The original and the revised fauna and flora report has failed to identify the remnant Blue Gum High Forest (BGHF) and possibly Sydney Turpentine Ironbark Forest (STIF). Which are both-listed as Endangered Ecological Communities. (EEC) under the State

Threatened Species Conservation Act 1995 (TSC Act) and the Federal Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

b) The original and the revised flora and fauna report fails to adequately consider the impacts of the ecological endangered communities and tree clearing on the natural environment.
c) The original and the revised flora and fauna report has failed adequately to address the requirements of the new seven part test in the EPA & Act 1979 (as amended).
3. The proposal fails to comply with the requirements of Planning for Bushfire Protection 2001 as required by the EPA & Act 1979 (as amended).
a) The clearing of the vegetation will impact upon the local environment as it is likely to cause accelerated erosion, sedimentation of the creek and will impact upon the riparian zone on site. This would also be contrary to the guidelines set out by the Rural Fire Service for works near creeks, which require vegetation buffers along creeks.
4. Public Interest
a) The proposal is not in the public interest.

Issues 1-3 indicate an overdevelopment of the site.

The hearing

17 The appeal was filed 9 January 2007 as a deemed refusal.

18 At the hearing the court had the benefit of written evidence from Dr P Smith, ecologist, on behalf of the respondent council.

19 On behalf of the applicant, Mr M Couston, ecologist, provided written evidence.

20 Dr Smith and Mr Couston provided a joint report dated 24 April 2007 concerning the issues related to the bushland ecological communities on the land.

21 Ms N Sarwary, Development Assessment Officer of Ku-ring-gai Council prepared the statement of basic facts dated 22 February 2007.

The issues

22 On 6 March 2007 the council filed a statement of issues.

1. Whether the site contains the endangered ecological communities of:
(a) Sydney Turpentine - Ironbark Forest and/or
(b) Blue Gum High Forest,

(Threatened Species Conservation Act 1995)

2. If the site contains one or both endangered ecological communities ("the EECs") then whether the:
(a) removal of the trees and vegetation for the building platforms,
(b) removal of the trees and vegetation for the drainage line and associated works,
(c) direct and indirect impacts from soil erosion, sedimentation and runoff from the construction, post construction (4 dwellings) and subsequent residential use of the land, and
(d) the necessary bushfire management requirements for the site when it is developed for 4 dwellings,

individually and in combination are likely to significantly affect, in terms of section 78A(8)(b) of the EPA & Act 1979, the EECs on the site so that a species impact statement is required.

individually and in combination would so adversely affect the vegetation on the land that the development application should be refused.

5. Whether the bushfire mitigation measures including asset protection zones and an increase to the turning head for the driveway (when the allotments are developed with dwellings) will adversely impact on the vegetation on the site.

23 The salient issue was the likely adverse impact of the proposal on the Blue Gum High Forest or Sydney Turpentine – Ironbark Ecological Communities. However the parties agreeing to its presence and extent resolved this issue.

The evidence and findings

Likely adverse impact of the proposal on the Blue Gum High Forest or Sydney Turpentine – Ironbark Ecological Communities

24 During the course of the hearing the parties agreed to the presence and spatial extent of Blue Gum High Forest and Sydney Turpentine – Ironbark Ecological Communities. The agreed extent of the forest was as that defined within Dr Smith’s Statement of Evidence. Given that the development proposal was subsequently amended to reduce the subdivision to the development of two lots at the front of the subject land (391 and 392), the primary impacts on the forest (i.e. removal of trees) were negated.

25 The future dwellings on Lots 391 and 392 will be contained with the ‘Indicative Building Zones’ identified on the subdivision plan. The specific (hydraulic) design of a storm water runoff system and mitigation of related impacts on the creek system to the eastern boundary of the subject land will be considered at the development application stage for the individual dwellings.

26 In addition, the impacts arising from location of the proposed storm water runoff and sewerage reticulation pipes through the centre of the forest were also considered. It was agreed by the parties to mitigate any possible adverse impacts on the forest by placing the pipe system along the southern boundary within the forest on Lot 391. Further, it was also agreed to reduce disturbance of the forest root zone by placing the pipes upon raised concrete pads.

27 For the above reasons, the appeal is upheld.

Conditions

28 The conditions are those in Exhibit 5 as amended during the hearing.

Orders
29 Our orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No 1126/06 lodged with the respondent council on 29 September 2006 to demolish the existing improvements and to subdivide into four allotments [now amended to two] land at Lot 39, Section 4, DP 3312, being No 82 Ada Avenue, Wahroonga, is approved subject to Conditions 1 to 66, in Annexure A.

3. The exhibits except for Exhibits A, 1, 2, 4, and 5 are returned.

S J Watts
Commissioner of the Court Dr M P Taylor
Acting Commissioner of the Court

30/05/2007 - To correct land dimensions - Paragraph(s) 4