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 planning instruments and policies

5 The application is under the State Environmental Planning Policy Seniors Living (SEPPSL). It is common ground that the Policy applies to the land, which is zoned residential. The proposal is integrated development as it is within 40m of a watercourse, and thus requires the approval of the Department of Natural Resources (DNR) under the Rivers and Foreshores Improvement Act 1949. Since the site includes native vegetation, consideration under the Threatened Species Act 1995 may be necessary, depending whether the vegetation is determined to be threatened species or an endangered ecological community.

The issues

6 The council submitted its fourth amended Statement of Issues containing ten issues of which it pressed nine. Since the Statement extends over nine pages, I summarise it here.

· Is the proposal a satisfactory response to the flood liability of the site?

· Is the proposal’s encroachment into the riparian zone within the site acceptable?

· Is the loss of trees acceptable?

· Does the proposal comply with the design principles in cl 31(c) and (g) and cls 33, 32 and 33 of the SEPPSL?

· Is the landscaping appropriate? Is the landscaping plan adequate?

· Are the objectors’ concerns valid?

Flood liability

7 During a 1:100 year flood, more than half the site would be inundated and 20% of the site is high-hazard floodway. About one-third of the site would have velocity-depth products considered unsafe for pedestrians. Since the floor levels are (at least in most cases) above the level of the (PMF), it is not proposed to evacuate the residents in case of flooding. A safe exit route is proposed to Eyles Street for medical and other emergencies.

8 The Court had appointed Mr Drew Bewsher, a hydrologist, to advise it on issues related to the flooding of the site. His advice may be summarised as follows:

· The proposed development would not have an adverse impact on the flooding of neighbouring sites.

· The velocities on the pedestrian access way from Anthony Street will be unsafe. (Mr Bewsher believes, however, that the levels of the access way could be changed so as to produce safe conditions.)

9 While Mr Bewsher does not say that the application should be refused on the grounds of flooding, he does not appear enthusiastic about the use of the site for a development under SEPPSL. In paragraph 28 of his report he states:

In normal circumstances medium density development of a significantly flood prone site, such as the one before the Court, would be considered unsuitable, or at best heavily constrained by flooding. What makes the proposed development even more heavily constrained is that the subject site is proposed for seniors or those with a disability.

10 Despite Mr Bewsher’s lack of enthusiasm, there is nothing in his report that would support a refusal, apart from the unsafe velocities on the pedestrian access from Anthony Street. No doubt, these could be overcome by changes to the levels of the access. If the application were otherwise worthy of approval, I would provide an opportunity to the applicant to make the necessary changes to the levels. I note, however, that the appeal was lodged in December 2004 and Mr Bewsher’s preliminary report became available in July 2006, so there should have been ample time to design a safe pedestrian access before the hearing.

The riparian zone

11 Because of the watercourse flowing through the site a Part 3A Permit for the development under the Rivers and Foreshores Act 1948 is necessary. The proposal is therefore integrated development under the Environmental Planning and Assessment Act 1979.

12 Clause 31 of the SEPPSL states that

The proposed development should
(a) to (f) not relevant here
(g) be designed so that no building is constructed in a riparian zone.

13 In a letter dated 1 November 2006, Ms Nikki Allwood, a Natural Resource Projects Officer of the DNR advised the applicant that the Department did not support the proposal. The reasons for the lack of support were, first, that the buildings encroached within the riparian zone and, second, that the landscaping treatment of the zone and the method of stabilising the banks appeared to be too mechanical and unlikely to bring the creek back to its natural state.

14 Having been subpoenaed by the applicant, Ms Allwood gave oral evidence during the hearing. She said that in most cases the DNR requires a riparian zone of 10m-width on either side of the banks of the watercourse. In this case, the Department had compromised by reducing the width of the riparian zone to 5m; however the reduced width was a minimum that should not be further compromised. She added that the landscape plan indicated lawn areas within the riparian zone and an intention to rock-line the watercourse. Neither of these was consistent with bringing the watercourse back to its natural state and therefore unacceptable to the DNR.

15 On the basis of the plans she was given Ms Allwood had assumed that units 5, 7 and 11 were within the riparian zone, some as close as 3m. However, the situation is actually worse than Ms Allwood assumed because she appears not to have seen the plans that show the basement parking under the northern block being outside the footprint of that block. The corner of the basement is only 1.5m from the top of the bank. Assuming that the excavation for the basement will be greater than the finished basement (in order to allow for the formwork), the disturbance through the proposed building may come to the bank itself.

16 The applicant’s advocate, Mr P Rigg, submitted that the applicant was willing to remove one offending unit (Unit 7) and that in relation to the other units encroaching within the riparian zone, the Court has the power to disregard the advice of the DNR and to change the conditions contained in the Department’s General Terms of Approval. I accept that the Court has that power, but I am reluctant to use it in this case because there has been no evidence before me that excavating to the bank of the watercourse will not result in serious environmental harm. Given that the DNR usually requires a 10m-wide riparian zone on either side of the bank and has reduced it to 5m in this case in order not to stifle the site’s development potential, the applicant should respect the 5m-wide riparian zone by not encroaching at all.

17 At this point I note that the General Terms of Approval issued by the DNR’s predecessor on 13 May 2004 are not entirely consistent with Ms Allwood’s evidence, since they establish a riparian zone of average width 10m (5m minimum) on the western side of the creek, and average width 5m on the eastern side. However, since she said in evidence that the Department would accept a 5m-wide zone (not average but minimum) on both sides, I take this to be the current position of the DNR. While the Terms of Approval do not define “average”, I assume this to be the average distance of a building from the bank, disregarding areas where there is no building or a gap between buildings. The proposal contravenes the definition of riparian zone in the General Terms of Approval as well as that defined in Ms Allwood’s evidence.

18 I am strengthened in this conclusion by the requirement in the SEPPSL not to construct buildings in the riparian zone. While cl 31 uses the word “should” rather than “must”, the clause makes it nevertheless clear that the expectation of the makers of the Policy is that riparian zones will be kept free of buildings.

19 The intrusion of this proposal into the riparian zone is unacceptable and justifies refusal of the application. I return to this issue in paragraph 30.

Loss of trees

20 The council contends that the Blue Gums on the site constitute a Blue Gum High forest, an endangered ecological community under the Threatened Species Act 1995. However, in the evidence of Dr Stephen Ambrose, an ecologist retained by the applicant, the trees on the site are not a viable group and should not be regarded as an ecological community. The parties agree that there are significant trees on the site, in particular several Sydney Blue Gums and Rough Barked Apples and, ideally, these should be retained.

21 The Court had appointed Mr David Ford as the expert arborist. Mr Ford appears to accept Dr Ambrose’s opinion that the trees on the site are not an ecological community. He advised the Court that three Sydney Blue Gums (Trees 21, 22 and 29) are of the greatest value and that their retention is feasible. As regards the numerous trees that are to be removed, Mr Ford noted that some of them are not healthy specimens while new planting may compensate for the removal of those that are healthy. He suggested planting up to a dozen Sydney Blue Gums in the northwest corner of the site. The density of planting may be at 3m between trunks.

22 I accept Mr Ford’s evidence to the extent that the removal of the trees is not a reason for the refusal of the application. I do not think that a dense forest of Blue Gums is sensible in what would be the only bit of useable garden space of a retirement home. Mr Scott Gatenby, a consultant arborist retained by the council, pointed out rather convincingly that the elderly residents are likely to find such trees dangerous and would press for their removal and substitution by more domesticated plants. If this application were otherwise worthy of approval, it would be necessary to accept the loss of trees without full compensatory planting.

Clauses 31, 32 and 33 of the SEPPSL

23 The above clauses are concerned with fitting into the neighbourhood (cl 31(c); visual and acoustic privacy (cl 32); and solar access (cl 33).

24 The Court had appointed Mr Tony Moody, a consultant town planner as the expert on planning issues. In Mr Moody’s opinion, the proposal performs acceptably on the three above criteria. However, Mr Moody noted that the drawings leave numerous issues undetermined and he ends his report with a list of questions. The applicant responded to only some of these at the time of the hearing.

25 In my opinion, most of the undetermined issues could be resolved, though I note again that, two years after lodging the appeal, the applicant should have resolved them.

Landscape and landscaping plan

26 The proposal includes boardwalks that are above PMF levels without any access to the grounds of the development. The landscaped gardens are intended only to be looked at, not to be walked in. In the council’s submission, this is unsatisfactory for a Seniors Living development. According to the applicant’s architect, the decision to prevent access to the grounds was on the advice of Mr Bewsher, who considered that access would be dangerous. However, Mr Bewsher denies giving this advice, which, if it had been given, would seem to me to be absurd. The grounds are likely to be inundated to a dangerous level only infrequently, at which time the heavy rain will warn people to go back to their units. I can see no danger in using the grounds in dry weather, which is in any case the time they tend to be used.

27 To allow the future residents to use the landscaped grounds of the development would require no more than access steps from the boardwalk to the ground at two or three points. This would be a relatively easy alteration to make to the landscape plans. However, the riparian zone would need to be kept out of circulation, not because it is unsafe but in order to allow the regeneration of the creek’s banks. I think that this is a difficult challenge to the landscape designer, though it is capable of resolution.

28 The more serious shortcoming of the landscape plans is that they do not indicate finished ground levels. Without levels a landscape plan does not provide the Court with even a vague idea of what it is approving. In summary, while the landscaping proposal is not a reason for refusal, if this application was otherwise worthy of approval, the landscape plans would need to be fundamentally changed.

The objectors’ concerns

29 The Court heard the evidence of several objectors to the proposal and visited the homes of some of them. The main concern was with flooding, while those objectors whose properties adjoined the site were also concerned about visual impact, overlooking and overshadowing. In Mr Moody’s opinion, those impacts of the proposal are acceptable.

30 Given that the application is to be refused, there is no purpose in describing the detailed concern of individual objectors.

The applicant’s request for leave for amended plans

31 At the conclusion of the hearing, Mr Rigg made an application to have the matter adjourned allowing the applicant to amend its proposal by deleting Unit 7. If the removal of that unit were likely to result in an acceptable development, I would be inclined to grant the request notwithstanding the very long time that this appeal has been with the Court. However, the removal of unit 7 would not cure the proposal’s major flaw, which is that the basement excavation under the northern building comes to the bank of the watercourse, thus breaching both the DNR’s General Terms of Approval and cl 31(g) of the SEPPSL. To overcome this basic and serious problem the applicant would have to either drastically change the proposal or present evidence to the effect that excavating so close to the watercourse does not lead to unacceptable impacts. In either case, an adjournment is inappropriate and there is no alternative to the refusal of the application. The appeal is therefore dismissed.

Orders

1. The appeal is dismissed.

2. Development 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 is determined by refusal.

3. The exhibits are returned.

_________________
Dr John Roseth
Senior Commissioner