Neometro v Maitland City Council

[2006] NSWLEC 95

Land and Environment Court

of New South Wales

CITATION:	Neometro v Maitland City Council [2006] NSWLEC 95
PARTIES:	APPLICANT Neometro Architects & Planners RESPONDENT Maitland City Council
FILE NUMBER(S):	10498 of 2005
CORAM:	Brown C
KEY ISSUES:	Development Application :- construction of a housing development for older persons or persons with a disability - neighbour amenity - streetscape - visual amenity - acoustic privacy - bushfire risk
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Rural Fires Act 1997 Rural Fires Regulations 2002 State Environmental Planning Policy (Seniors Living) 2004 Environmental Planning Policy No 5
DATES OF HEARING:	26/07/05, 07/02/06
DATE OF JUDGMENT:	03/07/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr A Pickles, barrister SOLICITORS Avendra Singh Strati & Kam RESPONDENT Mr G Williams, solicitor SOLICITORS Thompson Norrie Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

7 March 2006

10498 of 2005 Neometro Architects & Planners v Maitland City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Application No. 03/3614 by Maitland City Council (the council) for the construction of a housing development for older persons or persons with a disability at 24 Mitchell Drive, East Maitland (the site).

The site

2 The site is Lot 72 in DP 777281. It is slightly wedge shaped and has a frontage on the northern side of Mitchell Drive of 38.8 m, a maximum depth of 140.16 m and an area of 4,111 sq m. The site is presently well vegetated with some 43 mature trees. It is relatively level and is currently vacant.

3 The site is one of nine lots created in subdivision bounded by Mitchell Drive, Stronach Avenue and The Boulevarde, Greenhills. The average lot size is 4,566 sq m. The site is one of two remaining undeveloped lots within this subdivision. The Greenhills retail shopping complex is located on the opposite side of Mitchell Drive with its closest boundary being approximately 400 m from the site.

The proposal

4 The proposal seeks the construction of nine self-contained two-bedroom residential units specifically for older people or people with a disability. There is no subdivision envisaged by the proposal. It is intended that the buildings will be of one and two storey construction.

Relevant zoning controls

5 The site is zoned 2(a) Residential under Maitland Local Environmental Plan 1993. At the time of the hearing, State Environmental Planning Policy (Seniors Living) 2004 (Seniors Living SEPP) applied having come into effect on 31 March 2004. Clause 6 contains savings provisions and provides that the planning instrument in force immediately before its repeal by the Seniors Living SEPP continues to apply to and in respect of the development application if undetermined on 31 March 2004.

6 The development application was lodged on 19 September 2003 and was undetermined on 31 March 2004 so the development has been designed and is to be considered in accordance with the provisions of State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability (SEPP 5). This was the planning instrument in force prior to the coming into effect of the Seniors Living SEPP.

7 Maitland City Development Control Plan 13 - Low Density Residential Greenhills Development (DCP 13) applies to the site. DCP 13 provides requirements for development however in the event of any inconsistency with SEPP 5 the State policy must prevail.

The issues

8 The council filed a Statement of Issues containing 11 issues and a number of sub-issues. These can be conveniently grouped into the following main areas:

(1) whether the proposed development has adequate regard to neighbour amenity and streetscape, and
(2) whether the proposed development has adequate regard to visual amenity and acoustic privacy.

9 At the hearing Mr Williams, the council advocate, indicated to the Court that following amendments to the proposal that increased the front setback to 15 m (to be in accordance with DCP 13), the council accepted the conclusions of Mr Fielding that there were no grounds to refuse the development application. Because of the late arrival of the Court-appointed town planning experts report, insufficient time was available for the council to enter into Consent Orders.

10 The proceedings were heard on 26 July 2005 and extempore findings given on the above two issues. These findings are set out in pars 15 to 25.

11 There was disagreement between the parties on conditions relating to fencing and bushfire requirements, particularly the appropriate setback. The proceedings were adjourned for further discussion between the parties and the preparation of an additional bushfire report. Directions were given for the preparation, submission and response to this report. Notwithstanding the Directions, the bushfire issue involved protracted discussion between the parties and ultimately no agreement was reached. This necessitated further evidence being provided by both parties and a further hearing on 7 February 2006. The bushfire issue between the parties is:

3) whether the proposed setback of 50 metres is appropriate considering the requirements in Planning for Bushfire Protection.
The evidence

12 The parties agreed to the appointment of Mr Garry Fielding as the Court-appointed town planning expert. Mr Garry Warnes provided additional expert town planning evidence on behalf of a number of local residents adjoining and nearby the site. The local residents also provided oral evidence at the site view.

13 Notwithstanding the concession made by the council on the planning issues, the objectors maintained their concerns individually and through the evidence of Mr Warnes. Their concerns related to the impact on the character of the area, including the streetscape, overlooking, overshadowing and acoustic privacy. Mr Warnes raised an additional concern over the internal amenity of the proposed dwellings.

14 Ms Elizabeth Ashby, an ecological consultant and Mr Daniel Copland, a bushfire consultant provided evidence for the applicant on the bushfire issue. Mr John Delaney and Mr Brian Milsom, Development Control Officers with the Rural Five Service (RFS) and Ms Rebecca Maroney, a council town planner provided evidence for the council on this issue.

Character/streetscape

15 The principal planning instrument for the proposal is SEPP 5. This document provides a range of numerical standards however there was no dispute that the proposed development satisfies these standards. The issues of the residents relate principally to the qualitative controls in cl 25 and principally cll 25A, 25B and 25C. As I understand, the concerns of the local residents relate substantially to the change in character to that anticipated by DCP 13.

16 The Court was provided with the history of the subdivision and its general intent of maintaining a treed character consistent with the subdivision name of "Greenhills". This, however, appears to have been overtaken by more recent planning controls where aged persons housing and residential flat buildings are permissible uses within the 2(a) zone, although there are no examples of these forms of development within the precinct of the 4,000 sq m lots.

17 Notwithstanding the history of the subdivision and the existence of DCP 13, SEPP 5 must be the principal planning instrument considered in this appeal. While the proposal will represent a form of development not welcomed by the local residents, it is nonetheless contemplated by SEPP 5 and the suitability of the proposal is determined by its assessment against the relevant criteria in this document.

18 The amendment to the front setback to comply with DCP 13 was an important concession made by the applicant. While it does not align with the adjoining properties, it can be said to be in sympathy with the setbacks, particularly considering its compliance with DCP 13. Even though the proposal will be clearly seen as bulkier than existing development nearby, this is not a sufficient reason to refuse the application when it is considered against the requirements of SEPP 5, particularly the density requirement. In this case the proposal does not exceed 0.5:1 floor space ratio (FSR), even on a very restrictive assessment by Mr Fielding. Clause 14 of SEPP 5 states that development consent cannot be refused on the grounds of density and scale if the proposal has an FSR of 0.5 to 1 or less.

Overlooking

19 Overlooking impacts were seen as coming from the balconies off the second bedrooms at the upper level of some units. Mr Fielding accepted that while there was some potential for overlooking, it was limited by the location and orientation of the balconies, their small area, and the fact that they were located off a second bedroom. Mr Warnes, maintained that the potential overlooking could be overcome through a redesign using a single level construction.

20 With an explanation of the potential overlooking opportunities on site, I agree with the conclusions of Mr Fielding. Units 3 to 5 generally overlook the front yard of 26 Mitchell Drive and the decks for units 7 and 9 would have only oblique views of the adjoining property. I accept that the design responds appropriately and minimises any overlooking potential.

21 The potential overlooking to the property on the opposite side at 22 Mitchell Drive is also adequately addressed by the design with appropriate orientation for units 6 and 8. In my view, the balconies in question are not likely to be a location where people congregate because of the location off a second bedroom and their very small size.

22 While concern was expressed over potential overlooking to the properties in The Boulevarde, the separation distances are in the order of 50 to 60 m, and for this reason I do not accept overlooking is an issue in this instance.

Acoustic privacy

23 Impact on acoustic privacy is generally restricted to part of the driveway along the eastern boundary with 22 Mitchell Drive. However, with the proposed fencing and likely limited traffic generated by the nine units, I accept that this is not an issue that would warrant any amendments to the proposal.

Overshadowing

24 The extent of overshadowing was shown on plans produced by the applicant. Based on these plans and taking into account that the proposal complies with the height requirements in SEPP 5 and considering the north/south orientation of the block, I agree that the overshadowing impacts are not so significant that they would warrant any change to the plans.

Internal amenity

25 The applicant provided details of the availability of sunlight to each of the units and open space areas. While not optimal, adequate open solar access is provided to the units considering the north/south orientation of the lot.

26 Overall, I accept that adequate regard has been given to the principles in cl 25A, 25B and 25C of SEPP 5 and that there are no reasons why the appeal should not be upheld based on the requirements in SEPP 5.

Bushfire
The issue

27 The bushfire issue centred on the assessment of the predominant vegetation class. The council maintained that based on Planning for Bushfire Protection the vegetation was Vegetation Group 1 – Forest and required an 80 metre setback whereas the applicant maintained (also based on Planning for Bushfire Protection) the adjoining vegetation was Vegetation Group 2 – Woodlands and Heaths. This classification required a 50 metre setback and was satisfied by the proposal.

The planning framework

28 The proposed development is classified as a "special fire protection purpose" under s 100B(6) of the Rural Fires Act (RFS Act). These are developments that by their use, present limited mobility issues. In the event of bushfire, residents may be difficult to evacuate and/or are more susceptible to smoke impacts (cl 4.12 Planning for Bushfire Protection).

29 Section 79BA of the EPA Act provides that a development consent cannot be granted for a "special fire protection purpose" on bushfire prone land unless the consent authority is satisfied that the development conforms to the relevant specifications and requirements of Planning for Bushfire Protection (s 79BA(1)(a)) or consulted with the Commissioner of the Rural Fire Service (RFS) (s 79BA(1)(b)).

30 The site is identified on the council's Bush Fire Prone Land Map (see Attachment 1). Part of the site is marked "red" (or the darker shading on Attachment 1) and is identified as within 100 meters of high or medium bushfire hazards (cl 3.2.2 Planning for Bushfire Protection). These areas typically suffer the impacts of bushfires from adjacent vegetative areas. The area marked "red" is located at the southern end of the site and forms an approximate line measured 35 metres from the south west corner and 25 metres from the south east corner. The area marked "red" falls totally within the undeveloped 50 metre setback to the rear or southern boundary. The area marked "red" also extends across a residentially zoned battle-axe to the south to an area marked “orange” (or the lighter shading on Attachment 1) and represents bush prone fire land. The orange area generally represents public open space named Brooklyn Park.

31 In accordance with s 100B(1)(b), and as the site is identified as bush fire prone land for a special fire protection purpose, the proposed development is subject to an application to the RFS for a bush fire safety authority under s 100B(3). Clause 46 of the Rural Fires Regulations 2002 (the Regulations) provides the matters to be included in the application required for a bush fire safety authority by s 100B(4). Even though the application was not originally considered as a special fire protection purpose this was remedied through further consideration by the RFS. By way of letter dated 25 August 2005, the RFS has indicated that they were not prepared to grant a bush fire safety authority under s 100B(3) for a number of reasons to the special fire protection purpose. Several reasons contained in the letter are now issues in these proceedings. Several other issues contained in the letter were accepted by the applicant and imposed as conditions.

32 The methodology for vegetation classification is found in cl A2.2 of Planning for Bushfire Protection. Clause A2.2 (1) states:

Vegetation is classified by structure using Fig A2.2 derived from AUSLIG (1990) and by description using Table A2.1. Vegetation types are aggregated into 3 groups, determined by their fuel loadings (assumed under unmanaged conditions to represent an extreme scenario as the danger is the lifetime of any proposed development) and fire behaviour characteristics.

33 Clause A2.2 (3) states, in part:

Assessment assumes a worst-case scenario where there is no fuel management, fire history and absence of any other mitigating factors.

34 Clause A2.3.2 requires an assessment of the vegetation "over a distance of at least 140 metres in all directions from the proposed building line on the development site". With existing residential development to the east and west and Mitchell Drive to the north, there was agreement that the assessment of the vegetation should be carried out only in southerly direction.

35 Figure A2.2 provides a pictorial key to the structural forms of different vegetation and relates the forms to specific vegetation structures identified in Table A2.1.

36 Table A2.1 provides the following relevant classification and description of vegetation for the purposes of bushfire assessment:

Dry sclerophyll forest; - Vegetation Group 1 - Vegetation Structures 5, 9 - Max Fuel Load 25 t/ha - Trees 10 – 30 m high; 30-70% foliage cover, understorey of sclerophyllous low trees and tall shrubs or grass, usually dominated by eucalypts.
Woodland ; - Vegetation Group 2 - Vegetation Structure 6 - Max Fuel Load 25 t/ha - Trees 10 – 30 m high; 10-30% foliage cover dominated by eucalypts, understorey low trees to tall shrubs dominated by Acacia, Callitris or Casuarina.

37 Table A2.3 provides the minimum specification for an Asset Protection Zone (APZ) based on the vegetation classification and slope. Based on this table Vegetation Group 1 requires an 80 metre APZ whereas Vegetation Group 2 requires a 50 metre APZ.

The evidence

38 Clause A2.2 (1) provides three separate matters to be considered in the assessment of the vegetation classification. These are:

Predominant vegetation class

39 Using Table A2.1 in Planning for Bushfire Protection, Ms Ashby states that the main determinants in the classification of the vegetation are the height of the main canopy trees and their foliage cover. To determine the classification, Ms Ashby undertook three transects for tree height and foliage cover within an area 140 metres from the southern boundary (or approximately 190 metres from the rear building line). In summary, crown size and width were measured and used to calculate the crown separation ratio that in turn is converted to a percentage crown cover. Sufficient data was collected to satisfy the mathematical model used for this exercise. The results indicated a mean height of 15.9 metres based on 40 trees and a mean foliage cover of 26.5%.

40 According to Planning for Bushfire Protection and Specht et al (1974) Ms Ashby concludes that the vegetation falls, on average, within the relevant descriptors of Woodland, being trees 10-30 metres tall with a foliage cover between 10-30%.

41 Mr Milsom and Mr Delaney come to a different conclusion. The structural formation of predominant vegetation types that influence fire behaviour is found in Figure A2.2. In their view, and if during the assessment of a vegetation type there is conflict in the assessment between ecological terminology, structure and fuel loads, the greater threat is the overriding factor. Even though Ms Ashby identifies a mean foliage cover of 26.5%, Mr Milsom and Mr Delaney state that it is appropriate to take into account any sections of the vegetation that form a continuous canopy and have a projected foliage cover, including the understorey, greater than 30%. As this occurs to the south of the site, the appropriate classification is Forest.

Fuel loads

42 Mr Delaney provided evidence on fuel loads. He measured surface fuel at seven different locations in accordance with Overall Fuel Hazard Guide (1999). Measurements of surface fine fuel, elevated fuels and tree bark percentages were taken at locations that provided both maximum fuel levels as well as selective areas that provided lesser fuel levels within the disturbed/modified portions of Brooklyn Park. The measurements are located at points up to approximately 300 m from the rear building line. They provide for single readings of 8 t/ha (tonnes per hectare), 10.5 t/ha, 20 t/ha, 22.5 t/ha, 35 t/ha and two readings of 25 t/ha.

43 The applicant provided no evidence on fuel loads but relied on the measurements of Mr Delaney.

Slope

44 There was no dispute that the land to the north fell within the 0 - 5 degree down slope classification.

45 Mr Delaney states that the vegetation on slopes within Brooklyn Park will affect the behaviour of bushfire. No management practices have been identified for Brooklyn Park and vegetation within this area is capable of and is currently revegetating and can achieve a maximum average fuel load of 20.85 t/ha.

Findings

46 On the question of the predominant vegetation class I agree with the conclusions reached by the applicants experts. Clause A2.3.2 provides that Figure A2.2 and Table A2.1 are to be consulted and the predominant vegetation class chosen from the three groups in Table A2.1.

47 In this case, the vegetation characteristics fit comfortably within the Woodland classification. The undisputed evidence was that the vegetation satisfied the assessed maximum fuel load, tree height and under storey low trees. On the latter descriptor, Ms Moroney confirmed the dominant Acacia understorey.

48 The significant difference between the parties was the foliage cover. Mr Milsom and Mr Delaney rely on observations of tree canopies touching to conclude that this was more consistent with Group 1 vegetation in Figure A2.2 and as such was appropriately classified as Forest. The touching of tree canopies is not a descriptor in Table A2.1 although it is a matter that is appropriately addressed as part of the foliage cover descriptor and the pictorial structural forms in Figure A2.2. As I understand, Mr Milsom and Mr Delaney also relied on the statement in cl A2.3.2 that states, "where a mix of vegetation types exist the type providing the greater hazard is said to predominate".

49 In my opinion, the applicant’s conclusions on foliage cover must be preferred for a number of reasons. Firstly, the undisputed evidence of Ms Ashby is that the vegetation has a mean foliage cover of 26.5%. This mean foliage cover directly addresses the foliage cover descriptor and is consistent with Group 2 vegetation in Figure A2.2. Mr Milsom and Mr Delaney expressed no concern over the methodology and results achieved by Ms Ashby through her transect analysis. On a purely visual assessment, Ms Ashby stated that she would come to the same conclusion.

50 Secondly, Mr Milsom and Mr Delaney did not provide a percentage foliage cover figure despite the need to establish such a figure to address this descriptor Table A2.1. It is also difficult to reconcile the undisputed mean foliage cover of 26.5% with the conclusions of Mr Milsom and Mr Delaney that the touching of tree canopies is so prevalent that it warrants a Group 1 classification.

51 Thirdly, preference must be given to the scientific approach adopted by Ms Ashby compared to the random visual observations of Mr Milsom and Mr Delaney. Areas of vegetation clearly do not have a consistent density and it is not appropriate to simply identify one area in a group of vegetation and extrapolate the characteristics of that area to the wider area. For this reason Ms Ashby’s more rigorous and scientific approach must be preferred. While some criticism was levelled at Ms Ashby and her ecological approach, it is nonetheless an appropriate method to address the foliage cover descriptor in Table A2.1. It was also an approach recommended by the RFS in one of the meetings between the parties prior to the hearing.

52 The determination of the predominant vegetation requires a "best fit" assessment of the characteristics of the vegetation in question and the descriptors within the three groups in Table A2.1. In this case, I have little trouble in concluding that the vegetation is consistent with Group 2 vegetation. The conclusions of Mr Milsom and Mr Delaney would have been given greater weight if the vegetation had more descriptors consistent with Group 1 vegetation. I readily accept that if there was less certainty over the descriptors between Group 1 and Grouped 2 classification then preference should be given to the more onerous requirements in the Group 1 classification.

53 In coming to this conclusion I accept that Brooklyn Park is a potential fire source however it is not a matter that, in my opinion, would change the vegetation classification. Brooklyn Park is located 127 metres from the site. This needs to the compared to cl A2.3.2 that requires an assessment of the vegetation "over a distance of at least 140 metres". It is also relevant that the separation between Brooklyn Park and the site is a residentially zoned block of land that while not developed at present, has potential for development in the future. The fact that the vegetation is still growing is not a phenomenon exclusive to the site. In my opinion, it is properly addressed through cl A2.2 (3) where the assessment in Planning for Bushfire Protection assumes a worst-case scenario where there is no fuel management, fire history and absence of any other mitigating factors.

Conditions

54 The following conditions are in dispute:

Condition 7(a)

55 This condition requires the applicant to obtain a bush fire safety authority by s 100B prior to the issue of a construction certificate. The applicant opposes the condition as it is unnecessary. The council maintains that the requirement is still necessary because of the provisions of the RFS Act.

56 Section 39(6A) of the Land and Environment Court Act 1979, in relation to integrated development provides that the Court is not bound to refuse an application for development consent because the approval body has decided not to grant its approval (s 39(6A((b)). Further, the Court may determine an appeal even though a development consent granted as a result of the appeal is inconsistent with the general terms of approval of an approval body (s 39(6A((c)).

57 If necessary, s 39(6A) also states that s 93 of the EPA Act applies to a development consent granted as a result of the appeal. In essence this requires an approval body ,i.e., the RFS in this case, to grant approval subject to conditions that are not inconsistent with the development consent.

58 While there was some initial dispute as to whether the application was integrated development (see par 31), the evidence suggests that it was considered as integrated development by the RFS at the hearing. On this basis, the condition can be deleted.

Condition 5

59 This condition requires an instrument under s 88B to address requirements for the type, repair and maintenance of fencing required by other conditions of approval. As these requirements can be appropriately addressed through the enforcement of the other conditions in the approval this condition can be deleted.

Condition 7(b)

60 This condition requires the applicant to upgrade the existing access arrangements to provide for increased pavement width, restriction on the parking of vehicles and the construction of a turning area at the rear of the property for a bushfire tanker. Mr Pickles submitted that the condition should be deleted if the Court accepted the applicant’s submissions on the southern setback. The council maintains that it is necessary because of the need to gain access to the land at the rear in the event on bushfire.

61 This was a requirement that was not addressed by the experts in their oral evidence although Mr Copland, in his written statement, supports the condition. As there was no expert evidence to support the deletion of the condition it should remain.

Condition 7(d)

62 This condition requires all dwellings to be of Level 1 construction where as the applicant submits that it is unnecessary based on the vegetation classification and setback. The imposition of this condition flows directly from the assessment of the adjoining vegetation. Having found that this vegetation is appropriately classified as Group 2 – Woodland, Table A3.3 categorises the bushfire attack as Low. This category does not require Level 1 construction so the condition can be deleted.

Orders

63 The Orders of the Court are:

1) The appeal is upheld.
2) Application No. 03/3614 for the construction of a housing development for older persons or persons with a disability at 24 Mitchell Drive, East Maitland is approved subject to the conditions in Annexure A.
3) The exhibits are returned with the exception of exhibits 2, 8, and A.
______________
G T Brown
Commissioner of the Court