Radray Constructions v Hornsby Shire Council - [2007] NSWLEC 34

Land and Environment Court

of New South Wales

CITATION: Radray Constructions v Hornsby Shire Council [2007] NSWLEC 34

PARTIES:
Applicant:
Radray Constructions Pty Ltd
Respondent:
Hornsby Shire Council

FILE NUMBER(S): 11650 of 2004

CORAM: Roseth SC

KEY ISSUES: Development Application :- building on riparian zone, development under Seniors Living SEPP

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Rivers and Foreshore Improvement Act 1948
Threatened Species Act 1995

DATES OF HEARING: 23/01/2007, 24/01/2007 and 25/01/2007

DATE OF JUDGMENT:
31 January 2007

LEGAL REPRESENTATIVES: Applicant:
Mr P Rigg, solicitor of Deacons Lawyers
Respondent:
Mr R Graham, solicitor of Abbott Tout

JUDGMENT:

- 10 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

31 January 2007

11650 of 2004 Redray Constructions Pty Ltd v Hornsby Shire Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Hornsby Shire Council of an application to demolish the existing buildings and erect a Seniors Living development containing 18 dwellings over basement parking on lot 12 DP 571045 (15 Eyles Avenue) and lot 3 DP 201713 (15 Anthony Street), Carlingford.

The site

2 The site, while large at 3,787m2, is highly constrained. It has access from both Eyles Avenue and Anthony Street. More than half of it is inundated in the 1:100 flood event. In heavy floods the velocity of water makes it unsafe to move around on the grounds. An open watercourse flows northward through the centre of the site to become a tributary of Devlins Creek. It contains substantial native trees, in particular Sydney Blue Gum and Rough-Barked Apple. Its boundaries are common with the side and rear boundaries of several properties facing Eyles Avenue and Anthony Street.

The proposal and its history

3 The applicant proposes to demolish the existing buildings on the site and to erect a development for seniors and people with a disability containing 18 dwellings above basement parking. The basements are to be well below the ground floors of the dwellings, which are more than one metre above natural ground level. A series of boardwalks, at levels above the Probably Maximum Flood (PMF), traverses the site to provide safe access and exit during flood.

4 The applicant lodged the development application in March 2004. Following notification, the council received 16 objections. The council ‘s Planning Committee determined the application by refusal in October 2004. The applicant lodged the appeal in December 2004 relying on amended plans Revision B. Between April and July 2005, the applicant amended the plans another three times, the July set being Revision E. The Court allocated hearing dates for October 2005; however, in September 2005 the applicant sought successfully to vacate the dates in order to amend the plans again. Another set of hearing dates were set aside in August 2006; however, the applicant again sought to vacate these in order to rely on further amended plans. The matter finally came to a hearing in January 2007, more than two years after the lodgement of the appeal.

Relevant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWLEC 34
Decision Date: 31 January 2007

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard an appeal by Radray Constructions Pty Ltd against Hornsby Shire Council's refusal of a development application to demolish existing buildings and erect a Seniors Living development. The site in question is highly constrained, with more than half inundated in a 1:100 flood event and containing a watercourse that flows northward. The applicant proposed to build 18 dwellings over basement parking. The council received 16 objections, and the Planning Committee determined the application by refusal. The applicant appealed, relying on amended plans.

The court identified several issues, including whether the proposal satisfactorily addressed the flood liability of the site, whether the proposal's encroachment into the riparian zone was acceptable, whether the loss of trees was acceptable, and whether the proposal complied with the design principles in the State Environmental Planning Policy Seniors Living (SEPPSL). The court also considered whether the landscaping was appropriate and if the objectors' concerns were valid.

The court found that the proposed development would not have an adverse impact on the flooding of neighbouring sites, but unsafe velocities on the pedestrian access from Anthony Street could be overcome by changing the levels of the access. However, the unsafe velocities could have been addressed before the hearing. The court also found that the proposal encroached within the riparian zone and that the landscaping treatment of the zone was too mechanical and unlikely to bring the creek back to its natural state. The intrusion of the proposal into the riparian zone justified the refusal of the application. The removal of trees was not a reason for refusal, as the trees on the site were not a viable group and should not be regarded as an ecological community.

The court found that the proposal performed acceptably on fitting into the neighbourhood, visual and acoustic privacy, and solar access. However, the drawings left numerous issues undetermined, and the landscaping plans did not indicate finished ground levels. The objectors' concerns were mainly about flooding, visual impact, overlooking, and overshadowing, but the court found those impacts acceptable.

The court dismissed the applicant's request for leave to amend the proposal by deleting Unit 7, as it would not cure the proposal's major flaw of breaching both the Department of Natural Resources' General Terms of Approval and cl 31(g) of the SEPPSL. The appeal was dismissed, and the development application was determined by refusal. The exhibits were returned.

Orders