Ronro Pty Limited v Port Stephens Council

[2003] NSWLEC 300

>

Land and Environment Court

of New South Wales

CITATION:	Ronro Pty Limited v Port Stephens Council [2003] NSWLEC 300
PARTIES:	Applicant Ronro Pty Limited Respondent Port Stephens Council
FILE NUMBER(S):	10630 of 2003
CORAM:	Watts C
KEY ISSUES:	Development Application :- Loss of vegetation Loss of habitat for the Koalas Impact on visual amenity Draft Local Environmental Plan (DLEP) and Western setback
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979; ss 79C, 97 Port Stephens Local Environmental Plan 2000, (PSLEP2000) Nelson Bay (West) Housing Guidelines, (Guidelines) Draft Amendment No 13, PSLEP2000, (Draft Am13)
CASES CITED:
DATES OF HEARING:	13, 14 and 15 October 2003 and a number of mentions, the last held on 12 November 2003
DATE OF JUDGMENT:	11/19/2003
LEGAL REPRESENTATIVES:	Applicant Mr J Kildea, barrister instructed by Mr R Winter, solicitor Reimer Winter Williamson Respondent Mr A Galasso, barrister instructed by Ms R Webb, solicitor Sparke Helmore

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10630 of 2003

Watts C

19 November 2003

Ronro Pty Limited

Applicant

v

Port Stephens Council

Respondent

Introduction

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal of Port Stephens Council (the council) of a development application to erect an attached dual occupancy development at Lot 1, DP 1036034 known as No 15 Tareebin Road, Nelson Bay.

2 I visited the site in company with the parties on the morning of the second day of the proceedings.

3 I have concluded that the application should succeed, as I am satisfied that the Eucalyptus piperita, T3, near the front boundary would probably survive in the short-term during construction of the building and driveway and while replacement trees grow to maturity. Its retention would provide the necessary screening vegetation and maintain a potential food source or habitat for the Koala.

The site

4 The site is situated on the western side of Tareebin Road and has a frontage of 23.005m, a depth of 31.135m on the north and 28.14m to the south and an area of some 600.9m2. The site is vacant and slopes steeply down to the road with a fall of around 7m over the building platform. Significant remnant vegetation remains on the land. Two trees are particularly important. One tree known as T3 is a Eucalyptus piperita or Sydney Peppermint that is about 30m high with a spread of around 20m and diameter at breast height (DBH) of 1.2m is said to be the third most preferred food tree of the Koala. The other tree, T2, is an immature specimen near the northern boundary. A third tree, T2, on the northern side boundary has recently died probably as a result of disturbance of the site and neighbouring sites during the construction of an uphill driveway.

5 The site is burdened by the easement for access and services on the western uphill side of the site created under DP 1010034, which would reduce the usable area by about 90m2 (as calculated by the council using information from the deposited plan). The private ‘concrete roadway’, known as ‘Fairviews’, within that easement, is shown in the survey plan in Exhibit B.

6 The residential area nearby is characterised by a mixture of housing types and designs. Opposite in Tareebin Road are single dwelling houses. Land abutting the site to the north and south is vacant.

Relevant planning controls

Port Stephens Local Environmental Plan 2000, (PSLEP2000)

7 Under the PSLEP2000, which was gazetted on the 29 December 2000, the site is zoned Residential 2(a), and dual occupancy development is permissible with consent.

8 The relevant aims of PSLEP2000 is to:

(a) provide for appropriate planning and environmental control over the use and development of land within the area of Port Stephens, in order to uphold and promote the objectives of the Environmental Planning and Assessment Act 1979, and provide an updated and simplified plan for the area of Port Stephens, and achieve the objectives of each zone referred to in clause 10, and
(b) …
(c) …
(d) promote community involvement and participation in environmental planning and development assessment, and
(e) ensure that existing and future residents enjoy a range of attractive living environments and have access to a wide range of services and amenities, and
(f) allow flexibility within the planning framework so as to encourage orderly, economic and equitable development while safeguarding the community's interest, and
(g) ensure that development has regard to the principles of ecologically sustainable development.

9 The objectives of the Residential "A" Zone are:

(a) to encourage a range of residential development providing for a variety of housing types and designs, densities and associated land uses, with adequate levels of privacy, solar access, open space, visual amenity and services, and

(b) to ensure that infill development has regard to the character of the area in which it is proposed and does not have an unacceptable effect on adjoining land by way of shading, invasion of privacy, noise and the like, and

(c) to provide for non-residential uses that are compatible with the area and service local residents, and

(d) to facilitate an ecologically sustainable approach to residential development by minimising fossil fuel use, protecting environmental assets and providing for a more efficient use of existing infrastructure and services, and

(e) to ensure that the design of residential areas takes into account environmental constraints including soil erosion, flooding and bushfire risk.

Nelson Bay (West) Housing Guidelines, (Guidelines)

10 The Guidelines were adopted by the council, as an interim policy, at a meeting on the 28 January 2003 and have been prepared in the context of the council's adopted urban settlement principles and the Port Stephens Urban Settlement Strategy (October 2002).

11 These Guidelines incorporate initiatives from an Urban Housing Workshop held in November 1999, a Councilors’ Workshop in August 2001 and a Community Workshop held in Nelson Bay in February 2002 and August 2002, and contain recommendations to reflect and respond to varying site constraints and to facilitate more appropriate residential densities and overall site specific planning requirements. The site is within the Hill Tops Precinct of the Guidelines and it is recommended that dual occupancy housing be prohibited in this area.

Draft Amendment No 13, PSLEP2000, (Draft Am13)

12 On the 8 May 2003 the council resolved to prepare a draft local environmental plan, known as (Draft Amendment No 13) to PSLEP2000 and this draft was exhibited from 15 May 2003 to 13 June 2003.

13 On 26 August 2003, the council considered a report that recommended referral of Draft Am13 to the Minister for gazettal.

14 The Draft Am13 would aim:

a) to identify an area as the Nelson Bay (West) Area and to divide that area into precincts, and

b) to prohibit development for the purposes of dual occupancy housing and urban housing in the Hill Tops Precinct of that area, and

c) to recognise neighbourhood character and visual characteristics in area by introducing minimum site area provisions for residential development so as to achieve more appropriate densities and better site responsive design within the area, and

d) to exclude the use of State Environmental Planning Policy No 1 - Development Standards for the development standard of the minimum area per dwelling in the Nelson Bay (West) Area.

Port Stephens Comprehensive Koala Plan of Management, (CKPoM)

15 The CKPoM was prepared in accordance with State Environmental Planning Policy No 44-Koala Habitat Protection, (SEPP44). The principle aim of the CKPoM is:

The proposal and its history

16 Development application No 16-2003-487-1 was lodged with the respondent council on 25 March 2003 to erect an attached dual occupancy development on the site.

17 It is proposed to remove some mature trees and under-storey vegetation in the footprint of the proposal and to construct the dual occupancy development, with separate vehicular access to each dwelling. One vehicular access would be off the existing ‘concrete roadway’ in a right-of-carriageway known as ‘Fairviews’ and the other from Tareebin Road.

18 Each attached dwelling would be two-storeys in height and stepped down the slope towards the Tareebin Road frontage.

19 The original proposal is described in architectural plans prepared by David Hilliard Architect dated 18 September 2003 and the landscape management plans prepared by Dewsnap Landscape Design dated 26 September 2003.

20 The council received the amended landscape plan and additional documentation on 6 August 2003. The amended architectural plans show the deletion of part of the western section of the building, some decks, and courtyards. The location of some external walls has been altered and would reduce the gross floor area by 4.1m2 and the area of the decks by 11.5m2. The courtyards would be reduced by 20.6m2. A single garage and carport would replace the double garage proposed for the western unit. The precise position of the retained trees and the access road are now shown.

21 The council received a Flora and Fauna Assessment Report on 11 April 2003 for the development application.

Further amended plans

22 In a telephone hook-up the applicant’s landscape consultant Ms Slaytor gave evidence that the Eucalyptus piperita, T3 would stand a better chance of survival were the Tareebin Road driveway removed from near its base. Responding to that evidence the court called-back the parties and requested further evidence on this point. As a result the applicant’s architect Mr Hilliard prepared further amended architectural plans [Note: Exhibit U amended 23 October 2003] that showed the driveway from Tareebin Road located near the southern boundary and setback 1.5m from the Eucalyptus piperita, T3. On 24 October 2003 Dewsnap Landscape Design amended the landscape management plan to accord with the further amended architectural plans. The parties considered these plans, produced written evidence and final submissions were heard on Wednesday 12 November 2003.

Notification

23 The original application was notified to nearby owners and occupants for a 14-day period, in accordance with the council's public notification policy under Development Control Plan PS 10 - Building Standards and Notification Procedures for Development Applications and no objections were received.

24 In respect of the further amended plan in Exhibit U, Mr K Tarry, the owner of neighbouring land to the south at No 13 Tareebin Road, provided a letter of support, [Note: Exhibit Z letter dated 30 October 2003]. In that letter he noted, “…the garage will be located 900mm at its closest point to my northern boundary. I raise no objection to the proposed development or the proposed modified design of the garage”

The council’s decision

25 The council had not determined the original application when the appeal was filed.

The hearing

26 The appeal was filed on 3 June 2003 as a deemed refusal.

27 At the hearing the court heard evidence on behalf of the respondent council from:

• Mr P R Pollard, specialist architect/ urban designer [Note: Statement of evidence Exhibit 5];
• Ms M G Woodland, arborist and Manager Campus Environmental Services [Note: Statement of evidence Exhibit 7 and supplementary Exhibit 8 and joint report with Ms Slaytor in Exhibit 14];
• Dr A P Smith, Environmental consultant, [Note: Statement of evidence in Exhibit 9 and conferred with Mr Wilson see Exhibit 15]
• Ms A J Gale, Development Planner, Port Stephens Council, [Note: Statement of evidence in Exhibit 3 and supplementary in Exhibit 4.

28 On behalf of the applicant evidence was given by:

• Ms S A Slaytor, consulting arborist and landscape designer, [Note: Statement of evidence in Exhibit G];
• Mr B C Wilson, ecological consultant, [Statement of evidence in Exhibit L];
• Mr R J Bennett, town planner, [Statement of evidence in Exhibit E]; and
• Mr I B Grant, town planner and urban designer, [Statement of evidence in Exhibit H].

The issues

29 On 4 July 2003 the council filed a statement of issues.

1. Whether the proposed development is appropriate in terms of its inconsistency with Clause 44 of the Port Stephens Local Environmental Plan 2000 ("the LEP").

2. Whether the proposed development is consistent with the Aims of the Port Stephens Local Environmental Plan 2000 (Draft Amendment No. 13) ("DLEP No. 13").

3. Whether the proposed development is a prohibited land use within the Hill Tops Precinct of the Nelson Bay (West) Area pursuant to Clause 16 and 19 of the DLEP No. 13.

4. Whether the proposed development is consistent with the Nelson Bay (West) Housing Guidelines ("the Housing Guidelines").

4.1 The proposed development is inconsistent with the purposes and objectives of the Housing Guidelines (Clause 2.1).

4.2 The proposed development does not comply with the side setback requirements relating to walls and screened balconies and terraces (Clause 4.7).

4.3 The proposed development does not comply with the side setback requirements relating ro primary windows or balconies of living, dining and main bedrooms (Clause 4.7).

4.4 The proposed development does not comply with vegetation area requirements (Clause 2.1).

5. Whether the proposed development is appropriate in view of its adverse impacts on visual amenity, streetscape and character of the area.

6. Whether the proposed development is appropriate in terms of its inconsistency with the Port Stephens Comprehensive Koala Plan of Management.

7. Whether the proposed development is appropriate in view of the physical constraints of the site.

8. Whether the proposed development is appropriate in terms of the loss of vegetation.

9. Whether the proposed development is appropriate in terms of the public interest.

30 The following emerged as the salient issues:

• Loss of vegetation;
• Loss of habitat for the Koalas;
• Impact on visual amenity;
• DLEP; and
• Western setback.

Loss of vegetation with the original application

31 This topic relates to Issue 8 and underscores a number of the other issues. The applicant proposes to retain Trees T1 and T3, however, Ms Slaytor, for the applicant, sought to severely lop Tree T3 to reduce it’s height to 5m.

32 Mr Pollard stated in respect of the original plans that, “…[t]he proposal, whilst making an attempt to preserve three trees, is of definite concern in relation to the vegetation on the site.” [Note: Exhibit 5 p 5].

33 Ms Woodland and Ms Slaytor in a joint statement agreed in respect of the original plans: [Exhibit 14 pp 1 and 2: Joint report of Ms Woodland and Ms Slaytor]

• In respect of the pruning of T3 that an aerial inspection of the crown would be required to check the attachment of live growth. Weight reduction pruning would be required to mitigate the risk of failure under AS 4373-1996;
• That within the ‘regeneration zone’ an experienced bush regenerator would be required to manage the landscaped area. This person would supervise clearing of building footprint and would relocate seedlings and suitable mature species (eg Doryarthes);
• A consulting arborist is to supervise the clearing of the building footprint, construction if the driveway and excavation of the garage near T3. The installation of services should be south of T3 and or outside the building footprint with a 1500mm wide setback.

A chain mesh protective fence is to be used around T3.

34 Ms Slaytor for the applicant and Ms Woodward for the respondent, agreed that Tree T2 on the northern boundary was dying and should be removed. In Exhibit 10 the experts agreed that the retained Eucalypts are characteristic of the area but disagreed as to the extent to which the original proposal would impact on those retained trees.

35 Ms Woodward considered the retention of Koala habitat necessary, and for this purpose the height of Tree T3 was critical, however, she said that the ‘western failed scaffold’ and attached growth could be removed. [Note: Exhibit 14 p1]

36 Ms Slaytor was concerned that Tree T3 might not have a long life because of its defects. She recommended lopping to protect the tree and ‘targets’ likely to be installed under this tree on the small residential lot. [Note: Exhibit 14 p 2]. In late oral evidence Ms Slaytor suggested that the driveway should be located near the southern boundary to avoid interference with Tree T3, [Note: Oral evidence in telephone hook-up 15 October 2003].

37 Both Ms Slaytor and Ms Wooland agreed that “…any clearing of native vegetation outside the building footprint is not recommended except where services are proposed on the southern boundary and for scaffolding 1500mm [from] the building footprint.” [Note: Exhibit 8 p 1 quote]

38 Ms Woodward considered T3 to be “…under threat from loss of water (paving) and particularly from changes of level necessitated by the steepness of the driveway. The deep cut required for the construction of the garage will also impact the tree.” [Note: Exhibit 7 pp1-2]. She gave T3 a 0% chance of survival if the proposal were to proceed on the basis of the original plans.

39 Ms Woodland stated in respect of T3, [Note: Exhibit 8 p 3]:

This mature tree should be left in an undisturbed nature zone around its PRZ (protective root zone) and have careful, remedial structural pruning. This tree is a habitat tree and requires all its associated community of vegetation support. The tree should have an experienced arborists attention throughout the nearby construction period.

40 She continued, [Note: Exhibit 8 pp 5 and 3:

Tree No 3-The medium to long-term survival of this tree with the intended driveways and changed soil levels, even with remedial pruning is not considered a viable prospect. This tree should be treated with respect…and a vegetation community should exist around its protective root zone…
I would suggest this large tree would have a limited life span of at most 3 – 5 years.

41 Ms Gale was concerned that Trees T1 and T3 might not survive the construction of the building and driveway. [Note: Exhibit 4 p 3]

Loss of vegetation with the further amended application

42 As a result of concerns for the health and vigour of the Eucalyptus piperita T3, the applicant further amended the plans to relocate the Tareebin Road driveway to near the southern boundary of the land and setback 1.5m from that tree. [Note: Exhibit U amended 23 October 2003]. This change was shown in the plans prepared by Mr Hilliard amended 23 October 2003 and in the further amended landscape plan by Dewsnap Landscape Design amended 24 October 2003. There was consensus that these October plans would reduce the adverse impact of the earlier twin driveways to the proposed Tareebin Road garage as the twin driveways, would have been partly within the primary root zone (PRZ) of Tree T3.

43 Of the further amended plans Mr Pollard stated, [Note: Exhibit 18 report dated 5 November 2003]:
I concur that the proposed changes to the driveway go some way to lowering the poor odds for the survival of Tree T3- however, my understanding of the delicate nature of this species, combined with its maturity would suggest that the degree of disturbance via excavation and construction still pose a high threat to the tree’s medium term survival.

44 In respect of the survival of Tree T3 Ms Gale stated, [Note: Exhibit 18 report dated 7 November 2003]:
I believe that the [further] amended proposal does to an extent improve the situation…however; ultimately I believe the development will result in the loss of this tree. The proposed setback of 1.5 metres remains a reasonably small setback given the maturity of the tree. Further, the issues raised relating to excavation required for the garage to fulfil acceptable driveway profiles, together with the difficulty in vehicles manoeuvring and using the driveway design as proposed ultimately means the loss of the tree.

45 In respect of Tree T3 Ms Woodland stated, [Note: Exhibit 18 report dated 7 November 2003]:
I agree that the proposed changes to the driveway are an improvement of what was previously proposed which would I believe have inevitably lead to the loss of the Tree T3.
The proposed intervention constitutes the maximum that should be technically be undertaken for this tree. The age and sensitivity of this tree species, remains of concern in regard to the ongoing viability of the tree. It is essential that no overfill from the constructed driveway increase the levels around this tree and that root disturbance is kept to an absolute minimum.

46 Ms Slaytor supported the application on the basis of the further amended plans. She said, [Note: Exhibit X]:

The amended layout is preferable to that previously proposed and improves the likelihood of retaining Tree 3 because:

1. the setback from Tree 3 of 1500mm will avoid conflict with the raised root crown to the south of this tree;

2. The footprint of fill below the driveway will be limited to the area south of Tree 3, avoiding the need to place fill near the trunk and of preventing direct contact between same;

3. Deleting the driveway from north of Tree 3 removes potential targets should branch failure occur;

4. retaining a larger area to both the north and south of Tree 3 preserves natural grade levels and underlying tree roots; additional vegetation in these areas can be retained.

47 She recommended a raised kerb be placed on the northern edge of the driveway to stop drivers of cars entering onto the area around the base of Tree T3. She was sought to establish mass planting of the difference in levels within the council verge. Also she specified that porous fill material (eg 40mm gap graded gravel) should be used below the driveway, presumably, to allow air to penetrate to the roots of the tree as much as possible. Protective fencing would be also required around the base of the Tree T3 during construction.

48 The proposal is for an attached dual occupancy development so the footprint of the proposal would be kept to a minimum when compared to a detached dual occupancy development. The applicant also argued that the proposal would be of no greater in bulk than a dwelling house with a similar FSR that would be permissible on the site. The proposal complies with the required FSR of 0.5:1 with a FSR of 0.47:1 or a gross floor area of some 284m2.

49 It is proposed to maintain around 35.5% of the site as landscaped area as is indicated in the landscape management plan in Exhibit C, slightly in excess of the council’s requirement of 35%. [Note: See compliance table in Exhibit R p 5]. Despite the additional driveway over that of a single dwelling house, the landscaped area would return around the base of Tree T3 as shown in the amended landscape management plan, [Note: Exhibit V].

50 The original application was assessed by the applicant against the statutory instruments and found to be in compliance, except for the density and deck setback provisions of the Nelson Bay (West) Housing Guidelines and the side, rear setbacks and maximum site coverage of the Draft DCP LD15. [See compliance table in Exhibit R pp 3 and 5].

51 Under cl 44(3)(f) of the PSLEP the council, or the Court on appeal, must consider the likely extent and effect of carrying out the development on vegetation on the land. I am satisfied that the October amendments to the plans would improve the changes of survival of Tree T3. I accept the evidence of Ms Slaytor and the evidence of the council’s witnesses that the Tree T3 would have a better chance of survival if the further amended plans were carried into effect. Additional native planting, including Koala species, as proposed, would augment the existing trees. As a consequence I would not refuse the application for reason of loss of vegetation.

Loss of habitat for the Koalas

52 This topic relates to Issue 6. Dr Smith considered the Sydney Peppermint, T3 is “…the third most preferred food tree of the Koala in the Port Stephens region after Swamp Mahogany and Parramatta Red Gum (Phillips et al 2000).” “The proposal does not include any measures for replanting with Koala food trees or Koala habitat.” [Note: Exhibit 8 p 8]

53 Dr Smith and Mr Wilson agreed that: [Note: Exhibit 15 pp 1-2]

1. Habitat on the lot is consistent with the preferred Koala habitat if the vegetation on adjacent and nearby lots is taken into account.

2. At worst, habitat on the lot could be considered supplementary Koala habitat (within the meaning of the CKPoM).

3. Regardless of whether the habitat on the lot is preferred or supplementary the CKPoM requires that the following performance criteria be met:

(a) …
(b) maximise retention and minimise degradation of native vegetation.
(c) …
(d) make provision for restoration or rehabilitation of areas identified as Koala habitat.
(e) …
(f) not compromise the safe movement of Koalas across the site.
(g) …
(h) minimise the threat posed by dogs, motor vehicles and swimming pools.

4. Compliance with performance criteria (b) would be satisfied if 35% of the lot were retained as native vegetation and this portion included and protected the best quality Koala food trees on the lot. (ie T3)

5. Compliance with performance criterion (d) will be satisfied if known Koala food tree species (see list in CKPoM) occurring in the locality (ie within 200m) are used as components in landscaping and rehabilitation of the retained 35%.

6. The cumulative impact of the development is potentially increased by having a dual occupancy rather than a single occupancy if this proposal becomes a precedent for other lots in the subdivision.

54 Mr Pollard stated:

…because of the extremely limited site area in relation to the development footprint, and because of excavations and changes in level about the trees, they will not survive. As no new Koala food trees are proposed in the landscape plan, there is a probable negative impact in terms of the KCPoM.

55 Ms Woodland and Ms Slaytor have addressed the longevity of the Eucalyptus piperita T3, and the fact that the further amended landscape plan proposes the regeneration of indigenous species, which if properly carried out would include Koala food trees.

56 Ms Gale noted that vegetation on the land is of significance for habitat for native flora and fauna and is classified as preferred Koala habitat under the CKPoM. [Note: Exhibit 3 p 13]

57 Mr Bennett concluded that the development is not inconsistent with the CKPoM. [Statement of evidence in Exhibit E p 11]

58 I am satisfied that Koala habitat and food tree, Tree T3, would be retained at least in the short-term and would be augmented by other native species, including Koala trees, and as a result I would not refuse the application for this reason.

Impact on visual amenity

59 Mr Grant for the applicant, considered the proposal would not present a ‘bulky scale’ to the streetscape when viewed from Tareebin Road. He was of the opinion that the proposal would be less bulky and less visually prominent than other buildings in Tareebin Road. He was satisfied that the proposed muted tones of finishes would assist in this softening the visual impact so that the proposed building would not dominate the landscape.

60 Mr Grant concluded that [Statement of evidence in Exhibit H p 9];
“…the development as proposed is appropriate to its physical context, does not fly in the face of the purposes and objectives stated in Section 1.2 of the Guidelines and that it is not therefore inconsistent with them.”

61 Mr Bennett for the council maintained that the proposed building would “…fit into the landscape rather than on top of it,” and would retain trees. [Note: Exhibit E p 9]

62 Ms Gale, for the council stated: [Note: Exhibit 3 p 7]
…that although the proposal is an improved building design than that of the previous proposal, the building remains a substantial building on a sensitive parcel of land. In my opinion, the development will have a detrimental impact on the visual appearance of the site, when viewed either from the immediate street frontage (Tareebin Road) or from other significant locations within the Nelson Bay locality and Port Stephens waterway.
Whilst the proposal includes retention of several trees and provision of landscaping, it is questionable whether the proposed tree retention is realistic given the construction required to develop the site as currently proposed.
Overall the development of the site for a dual occupancy is considered overbearing and out of character and potentially will result in a change to the visual character of the area and scenic quality generally taken as characteristic to this locality.

63 I am satisfied that the proposal if coloured in earth tones, in the manner proposed, would not dominate the landscape and would be acceptable below the ridge line, in its context. If the further amended landscaped management plan were put into place the new planting and regeneration would offset the loss of vegetation. I would not refuse the application for this reason.

DLEP

64 I have given the DLEP’s proposed prohibition on dual occupancies, little weight in my consideration of this application. I am satisfied that it could not be seen as ‘imminent or certain’ given that it would be in contravention with the s 117 directions and that if followed would lead to a significant reduction in the number of dwellings planned for Port Stephens.

Western setback

65 The western setback is to a private road and there are no planning controls that would require the proposal to be setback further than proposed. Few people would be affected by the position of the proposal to the private road. In the circumstances I would not refuse the application for this reason.

66 For the above reasons, the appeal is upheld.

Conditions

67 The conditions are those in Exhibit 12 as amended during the hearing. The proposal to lower the floor of the garage by 250mm, in Exhibit U is referred to in Condition 1.

68 Following the requirements of Ms Slaytor in Exhibit X the following condition was added:

21.17 A raised kerb is to be placed on the northern edge of the driveway to stop drivers of cars entering onto the area around the base of Tree T3.

Orders

69 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 16-2003-487-1 lodged with the respondent council on 25 March 2003 and amended on 23 October 2003, to erect an attached dual occupancy development at Lot 1, DP 1036034 known as No 15 Tareebin Road, Nelson Bay, is approved subject to Conditions 1 to 31 in Annexure A.
3. The exhibits with the exception of Exhibits 2, 12, B, M, U, V and X are returned.

S J Watts

Commissioner of the Court

Conditions of development consent

Annexure A

Ronro Pty Limited

v

Port Stephens Council

1. The development shall take place in accordance with the plans and documentation submitted with the application including the architectural plans DA 1/5RI to 5/5RI dated 18 September 2003, as amended 23 October 2003 in Exhibit U and the Statement of Environmental Effects in Exhibit M. It is proposed lower the floor of the garage by 250mm to 77.25m AHD; and the driveway is shown repositioned the near the southern boundary in the landscape management plan in Exhibit V.

2. Certification is to be prepared by a registered surveyor and submitted to the Principal Certifying Authority at the following stages of construction:

a) On completion of ground floor construction, confirming that the floor levels are in accordance with the Reduced Level indicated on the approved plan.

b) When the roof has been completed, confirmation that the building does not exceed the Reduced Level, as indicated on the approved plan.

3. Landscaping shall be carried out in accordance with an approved landscaping plan in accordance with the landscape management plan dated 26 September 2003 in Exhibit C. The landscaping must be completed prior to issue of Occupation Certificate.

4. The vegetation marked on the approved plan shall be retained. Such vegetation must be clearly identified on the site prior to commencement of work.

5. Certification shall be submitted (NatHERS or equivalent) demonstrating that each unit complies with Council’s minimum 3.5 star energy efficiency rating pursuant to Port Stephens Energy Smart Homes (DCP) PS 9. Certification shall be submitted to the Principal Certifying Authority for approval prior to issue of the Construction Certificate.

6. Detailed architectural and engineering plans are to be endorsed by the Geotechnical Engineer prior to the issue of the Construction Certificate.

7. A monetary contribution is to be paid to Council, pursuant to Section 94 of the Environmental Planning and Assessment Act 1979, towards the provision of the following public facilities in the locality:-

Open Space and Recreation ($3,238)

Community Facilities ($475)

Emergency Services ($225)

Library Book Acquisition ($110)

Roads and/or Intersections ($711)

Note:

a) The above contributions have been determined in accordance with Port Stephens Section 94 Contribution Plan No 6-Tomaree Peninsula. A copy of the Contributions Plan may be inspected at Council's Customer Service Counter, 116 Adelaide Street, Raymond Terrace.

b) Contributions are to be paid prior to issue of construction certificate.

c) The amount of contribution payable under this condition has been calculated on the basis of costs as at the date of consent. In accordance with the provisions of the Contributions Plan, this amount shall be INDEXED at the time of actual payment in accordance with movement in the Consumer Price Index as published by the Australian Bureau of Statistics. In this respect the attached fee schedule is valid for twelve months.

8. The construction of the building, including the roof, shall be in materials of a low reflective quality. Details of colours and materials are to be provided prior to issue of Construction Certificate.

9. A colour scheme is to be prepared and submitted to Council providing full detail of the colour and character of all external building materials and finishes to be used. Colour scheme details are to be provided prior to issue of Construction Certificate.

10. Details for the proposed method of tree and root zone protection for all trees to be retained on site, (where appropriate) during construction shall be submitted to and approved by Council prior to issue of the Construction Certificate.

11. Stormwater runoff from the site shall be collected and detained on-site. Provide a total storage volume of 6 cubic metres. Permissible site discharge shall be limited to 6 litres per second. The 1% AEP discharge of 45 litres per second shall be catered for, within an overland flowpath to the public road or reserve. Where appropriate the system shall incorporate infiltration principles, ensure that there is no adverse effect on structures and adjoining property. Details shall be approved by an accredited certifier, or Council prior to issue of the Construction Certificate.

12. All building work must be carried out in accordance with the provisions of the Building Code of Australia.

13. Construction work that is likely to cause annoyance due to noise is to be restricted to the following times:-

• Monday to Friday, 7am to 6pm;
• Saturday, 7am to 1pm (if inaudible on residential premises);
• No construction work to take place on Sunday or Public Holidays.

When the construction site is in operation the L10 level measured over a period of not less than 15 minutes must not exceed the background by more than 10dB(A). All possible steps should be taken to silence construction site equipment.

14. Occupation of any buildings shall not take place until the building has been completed in accordance with the approved plans, specifications and conditions of this approval unless approval to occupy an incomplete building is granted by Council or an accredited certifier. Approval to occupy will not be given if any health or safety defects exist. NOTE: If an accredited certifier approves occupation of a dwelling the accredited certifier is to immediately notify Council in writing.

15. A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out:

a) stating that unauthorised entry to the work site is prohibited, and

b) showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours.

Any such sign is to be removed when the work has been completed.

This clause does not apply to:

a) work carried out inside an existing building, or

b) building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out.

16. If the work involved in the erection or demolition of a building:

a) is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or

b) building involves the enclosure of a public place.

A hoarding or fence must be erected between the work site and the public place.

If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.

a) The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.

b) Any such hoarding, fence or awning is to be removed when the work has been completed.

17. Approval to occupy, close or partially close the footpath adjacent to the property to which this approval relates shall be the subject of a separate application. Without specific approval, storage of materials on or closure of the footpath is prohibited.

18. Retain all live trees protected by Council's Tree Preservation Order, other than those affected by the location of the building and driveways. Approval for removal of trees is limited to a distance of three (3) metres from the building and a three (3) metre wide driveway strip. A development application must be made to Council for the removal or pruning of any other tree or trees on the property ($15.00 application fee applies)

19. If the soil conditions require it retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided, and adequate provision must be made for drainage.

Note: Where retaining walls exceed 600 mm in height and/or are adjacent to property boundaries, details of the method of construction are to be submitted to Council for approval prior to erection.

It is recommended that the construction of any retaining walls be carried out prior to the commencement of any other work while the area is readily accessible and to prevent any movement of soil and/or potential damage to adjoining properties.

20. A “KEEP PORT STEPHENS WATERWAYS POLLUTION FREE” sign is to be displayed for public viewing on the site at the commencement of site works and during construction of the development and is to remain in place until completion of works.

21. Note

: Kerb & Gutter not damaged.

Site inspection revealed that the allotment proposed to be developed and the adjoining allotments do not have damage to the footpath or kerb & gutter.

You are advised that if damage is noted at final inspection the builder will be held responsible for repairs. If an accredited certifier is the ‘Principle Certifying Authority’, the certifier is to notify Council of any damage to the street kerb/gutter/footpath at occupation/final inspection stage.

22. NOTE: The conditions relating to building construction do not represent an exhaustive assessment under the provisions of the Building Code of Australia (BCA) as no construction certificate application has been received by Council. Design amendments may be required for BCA compliance, which may necessitate amendment of this approval under S96 of the Environmental Planning & Assessment Act 1979.

23. Development shall take place in accordance with plans, specifications and other details (including energy efficient scorecard/NatHERS report) submitted.

24. The building site is to be adequately protected and drainage controlled to ensure that erosion and sediment movement is restricted to the site. Council and the Environmental Protection Authority may issue ‘on the spot’ fines if breaches of the Clean Waters Act 1970 are detected. The applicant/builder will be responsible for restoration of any erosion and removal of sediment from the stormwater drainage system.

25. Any site disturbance that may cause stormwater to be directed into the regeneration zone on site should be bunded and stormwater controlled by diversion and mitigation.

26. Vehicular access to the property, during construction of the dwelling is to be via the southern lane of the approved driveway access off Tareebin Road, to be constructed by the applicant prior to any other site works. An alternate access via the all weather road (Fairview Circuit) may be used for delivery of materials & trades.

27. A waste containment facility to Council's requirements is to be provided on the building site immediately after the first concrete pour for the building and is to be regularly serviced. Council and the Environmental Protection Authority may issue ‘on the spot’ fines if breaches of the Environmental Offences and Penalties Act, are detected.

Note: Your attention is drawn to your responsibility to control any litter arising from building works associated with this approval.

28. Approved toilet accommodation for all workers on the building site is to be provided from the time that work commences until the building is complete.

29. Protection of vegetation on and adjacent to site:

29.1 Retain all live trees protected by Council's Tree Preservation Order, other than those affected by the location of the buildings and driveways. This includes the trees specifically nominated for retention, regardless of their proximity to the proposed buildings. A development application must be made to the Council for the removal or lopping of any other tree or trees on the property (no fee required).

21.2 The trees numbered T1 and T3 on the annexure to the statement of evidence of Ms S Slaytor are to be protected throughout the construction process under the direction of a qualified Arborist.

21.3 The trees identified on the Landscaping Plan Exhibit V intended to be retained shall, be retained and the following conditions 21.4 to 21.8 shall apply to them.

21.4 Prior to any works commencing on the site a qualified arborist is to oversee the installation of ‘weld mesh’ type 2.4m high protective fencing around the full extent of defined regeneration areas to be retained. In addition to this fencing, the critical and protective root zone of trees nominated for retention shall be pegged where these zones extend beyond the nominated regeneration zone.

21.5 The foundations of any part of any building within the pegged root zone of any of the trees to be retained are to be constructed by means of augured concrete piers in accordance with specifications certified by a structural engineer. Such piers and the excavations for the piers and footings must not intersect any major root system. [Footings shall not be placed within the critical root zone of any trees nominated for retention].

21.6 Such piers shall be sunk under the supervision of a qualified, experienced arborist on site.

21.7 All heavy machinery shall be excluded from the pegged protective root zone (PRZ) of each tree to be retained.

21.8 Existing vegetation within the regeneration zone and between Lots 1 /Lot 2 and Lots 1/11 shall be protected by 2.4 m high ‘weldmesh’ type fencing, set back 1500mm from the approved outside walls. No entry of workers or vehicles is to occur into the regeneration zone, nor are any service routes to traverse the nominated zone.

21.9 Full tree protection shall be installed in respect of each tree retained including fencing around and boarding on each tree.

21.10 The ground level within the pegged root zone of each tree to be retained shall not be raised or altered from the present natural soil level, with the exception of the special aerated fill (eg. 40mm gap graded gravel), immediately beneath the approved driveway to Tareebin Road. This aerated fill is to be placed in strict accordance with the directions of an arborist, and under his/her supervision.

21.10 In the pegged root zone of all retained trees there shall be no change in level from natural ground level.

21.11 Prior to issue of occupation certificate there shall be planted in accordance with the Landscaping Plan Exhibit V, at least 12 semi-mature trees of the varieties as specified.

21.13 In addition to the retaining of all vegetation within nominated regeneration areas on the site, for landscaping purposes tube stock of species indigenous to the site are to be planted in clustered, structured communities, throughout the rehabilitation (but not regeneration) areas. The clustered, structural community plantings are to contain as many indigenous representative species for each structural layer as possible. (Ground cover, grasses, low, medium, tall shrub layer and Koala habitat tree species should be represented). Nominated regenerated areas are to be kept free of weed and builders debris for the duration of the construction period. The council verge is to be mass planted around the proposed Tareebin Road driveway to stabilise the bank of fill retaining the driveway and to direct pedestrians to a ramped footpath.

21.14 The trees and understorey in the road reserve to the east of the subject lots and the trees and under-storey within the road reserve adjacent to adjoining lots are to be fenced with weld-mesh type fencing to protect vegetation from entry of vehicles, pedestrians, building materials etc. No access to the subject site via this area of the road reserve is permitted during the construction period other than upon the constructed approved single driveway.

21.15 Vegetation on adjoining lots is to be protected from entry from the construction sites by the erection of weld-mesh type fencing on the Applicant’s land.

21.16 The landscaping and regeneration zone are to be suitably maintained for the life of the development.

21.17 A raised kerb is to be placed on the northern edge of the driveway to stop drivers of cars entering onto the area around the base of Tree T3.

30. If the soil conditions require it, retaining walls associated with the erection of the building or other approved methods of preventing movement of the soil must be provided, and adequate provision must be made for drainage. No retaining walls are to be constructed other than those approved.

NOTE: The conditions relating to building construction do not represent an exhaustive assessment under the provisions of the Building Code of Australia (BCA) as Council has received no construction certificate application. Design amendments may be required for BCA compliance, which may necessitate amendment of this approval under S96 of the Environmental Planning & Assessment Act 1979.

31. Prior to issue of the Construction Certificate the architectural and structural engineers plans are to be endorsed by a qualified Geotechnical Engineer as complying with Section 4.2 of the Geotechnical Report by Coffey Partners Report dated 3 September 2003.

Advices

a) This approval relates to Development Consent only and does not infer any approval to commence excavations or building works upon the land. A Construction Certificate should be obtained prior to works commencing .
b) The developer is responsible for full costs associated with any alteration, relocation or enlargement to public utilities whether caused directly or indirectly by this proposal. Such utilities include water, sewerage, drainage, power, communication, footways, kerb and gutter.

S J Watts