Navaroo Constructions Pty Ltd v Palerang Council

[2006] NSWLEC 403

Land and Environment Court

of New South Wales

CITATION:

Jenkins v Pittwater Council [2006] NSWLEC 403

PARTIES:

APPLICANT
John Jenkins

RESPONDENT
Pittwater Council

FILE NUMBER(S):

10059 of 2006

CORAM:

Hoffman C

KEY ISSUES:

Subdivision :- Adverse impacts, bushfire mitigation, endangered species, landslip risk

LEGISLATION CITED:

Pittwater Local Environmental Plan 1993
Roads Act
Bushfire Act

DATES OF HEARING:

11/10/2006

EX TEMPORE JUDGMENT DATE:

10/11/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Johnson, barrister
Instructed by: Mr D Thomas, solicitor
SOLICITORS
Hones Lawyers

RESPONDENT
Ms D Townsend, solicitor
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

11 October 2006

10059 of 2006 John Jenkins v Pittwater Council

JUDGMENT

1 This is a class one appeal, No. 10059 of 2006, between John Jenkins and Pittwater Council in regard to the refusal of consent for the subdivision into four lots of Lot 58 DP 10375 and Lot B DP 354944, being Nos. 824 and 826 Barrenjoey Road, Palm Beach.

2 The hearing began on site on 17 August 2006 and evidence of objectors, Mrs Tonkin of 822 Barrenjoey Road and Mrs Fraser of 828, were heard on-site. They are the southern and northern neighbours respectively. Mrs Tonkin was concerned about privacy and noise from the proposed driveway and any subsequent house on proposed Lot 4. The driveway to serve Lot 4 came close to her boundary and would permit overlooking into her northern windows of kitchen and living room and her private deck area. Mrs Fraser was concerned about potential overlooking to her rear private terrace from a future house on proposed Lot 3.

3 The neighbour uphill and to the rear of the site at 162 Whale Beach Road, was a large lot of 8000 sq m. I believe it was owned by the applicant and contained substantial bushland with endangered species of spotted gum forest which overlapped onto the subject properties. There was no objection to the proposal from that area, and in fact the boundary of that property, being Lot 5 DP 614921, was to be adjusted to enlarge proposed lots 3 and 4 to provide sufficient bushfire asset protection zone on the site. Another neighbour at 822A Barrenjoey Road, who had objected, had subsequently sold out.

4 The area of the combined allotments was 3,243 sq m. The land has a street frontage of 40 m and side boundaries of 80.4 m.

5 Topography: The site has a steep slope rising approximately 25 m from front to rear, with gradients varying between approximately 1 in 2.5 or 40 per cent at the street frontage to approximately 1:3 or 33 per cent at the rear building areas and with no significant lateral cross fall.

6 Vegetation: the land contains extensive tree canopy, both in the public reserve across the road, which was the foreshore of Pittwater, and in front of the site. The vegetation existed also within the front building line setback, within the centre section of the land and the adjoining rear boundary, which extended the bushland to the ridgeline about 30 m beyond the rear boundary in No. 162.

7 The locality consists of the Pittwater waterway and foreshore public open space on the western side of Barrenjoey Road, in the section immediately opposite the site and below the level of the road. The residential area consists of medium to large size residential allotments comprising predominately dwelling houses, including one, two and more step levels on the slope.

8 The houses are predominately confined to the lower and middle levels of the escarpment on this eastern side of Pittwater Road, with land on the western side of the main road down to mean high water mark used as foreshore public open space.

9 The de facto front setbacks of adjoining and nearby dwellings is generally consistent with the 10 m building line. The street frontages are landscaped with substantial remnant tree canopy. The majority of the properties enjoy high value, both close and distant water views.

10 The site is zoned Residential 2A, Residential A, under Pittwater Local Environmental Plan 1993 and is designated foreshore scenic protection area, area 1, under the dual occupancy control, geotechnical hazard, bushfire hazard, onsite detention, habitat categories 1 and 2, native wildlife protection and spotted gum forest.

11 The proposal is integrated development under the Rural Fire Service of New South Wales and referral to the Roads and Traffic Authority of New South Wales is also required under s 138 of the Roads Act.

12 The issues prior to the hearing had been reduced by negotiation and amended plans. At the hearing, consent orders were proposed. Objectors were notified of the consent orders proposed which resulted in the appearance of the two objectors mentioned.

13 The issues that had been outstanding prior to consent orders being reached were:

1. Slope of site. The lots that will be created by the proposed subdivision are too steep.
2. The driveway was in places too steep.
3. The size of lots proposed is too small given the constraints of the site’s steep slope, the vegetation which exists on it and the subdivision pattern which is characteristic of this area.
4. The proposal will have an adverse impact on the existing endangered ecological community of Pittwater spotted gum forest.
6. The proposed asset protection zone for bushfire mitigation purposes extends beyond the boundary of the site, with no appropriate arrangements in place for works to be undertaken on the adjoining site.

14 The concerns of the objectors were also referred to, although the council had formed the opinion that appropriate conditions could deal with them.

15 Expert reports were brought before me at the hearing on the following aspects:

1. Geotechnical landslip risk.
2. Arboricultural considerations.
3. Endangered species, flora and fauna.
4. Traffic and on-site driveway design.
5. Bushfire controls with asset protection zone requirements.
6. Joint report of the ecological and landscape experts, Messrs Pittendrigh, Hobley and Stricker.
7. Joint report of the town planners, Messrs Barwick and Milligan.
8. Bushland management plan by Ecohort Pty Ltd, consultants.

9. Roads and Traffic Authority conditions regarding Barrenjoey Road.

16 A summary of the changes was that the bushfire asset protection zone requirements of vegetation clearance had been reconciled with the flora and fauna and endangered species experts to ensure retention of the forest canopy. Fire hydrants were also to be laid to the top of the site and the site was extended slightly into 162 Whale Beach Road in order to provide the necessary Asset Protection Zone distances.

17 Each lot had a designated building platform of approximately 175 sq m, outside which no works or structures apart from the driveway would be permitted. The type of structure was to be conditioned also to minimise excavation and impact on the bushland. This would also deal to some extent with the potential landslip risks, ensure adequate bushfire asset protection zone separation distances and to keep the future house sizes to those that would retain the bushland dominance over the built form and achieve scenic protection for this beautiful part of Pittwater.

18 The minimum lot size in the zone is 700 sq m and the proposed lots are just a little larger than that. With the particular detailed studies now carried out and the proposed conditions, the respondent became content to allow the minimum lot size that otherwise would not have been acceptable, given the constraints.

19 On the site view I was shown the route of the driveway, the trees to be kept, the trees to be removed and the positions of the proposed house platforms. There were obvious conflicts in some locations, and Mrs Tonkin’s concerns had some merit.

20 The parties agreed to adjourn to investigate these things more closely and returned to the hearing with amended plans and reports and conditions in Exhibits G, H, J, K, L, M, N, O, P and 16. These had extended the driveway to reach each building platform and so minimise damage to the intervening bushland during construction. A tree management plan was prepared. The drive entry to Lot 4 had been moved to the opposite side from Mrs Tonkin’s house and the driveway itself placed slightly lower down the allotment to minimise any overlooking, car noise and headlights that might affect her.

21 Further controls on any proposed house could be dealt with by council at the development application stage. Mrs Fraser’s concerns in regard to any proposed house on Lot 3 could also be dealt with by council at its development application stage.

22 Service pipes et cetera were to be hung under the driveway and so minimise potential damage to the bushland. A central stairway and a right-of-way between Lots 1 and 2 would provide a pedestrian walk to Lots 3 and 4 instead of having to use the very steep driveway. Two passing bays in the driveway would make it safe for cars to use. It would comply with the necessary Australian Standard and provide for service vehicles and some visitors’ cars to use the driveway, as well as residents who would have on-site parking under each house platform. Cars would be able to turn around to ascend and descend the driveway. Reversing would be unsafe.

23 In the end, the applicant relied on plans and documents in Exhibits H, J, L, O, P and these are referred to as needed in the consent orders draft conditions in Exhibit 16. During the final part of the hearing, numerous annotation were made to Exhibit 16 that refined the conditions and the parties pressed consent orders.

24 Having read the updated documents and plans, I have reached the conclusion that under the applicable statutes and controls, the objectives and requirements had been met sufficiently to enable the approval of the subdivision.

25 Therefore the orders of the Court by consent of the parties are:

1. The appeal is upheld.
2. Development Consent is granted to the subdivision of Lot 58 DP10375 and Lot B DP354944 and adjustment of the boundary of Lot 5 DP614921 to allow a 4 lot subdivision and construction of the access driveway, services installation, bush fire protection, flora and fauna conservation and designation of future building platforms in accordance with the agreed conditions as annotated in Exhibit 16 of this hearing and re-produced in Annexure ‘A’ hereto.
3. The exhibits are returned to the parties except Exhibits G, H, J, K, L, M, N, O, P, 3 and 16.

___________________

K G Hoffman
Commissioner of the Court
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