Simpfendorfer v Northern Beaches Council

[2020] NSWLEC 1274

Land and Environment Court

New South Wales

Medium Neutral Citation:

Simpfendorfer v Northern Beaches Council [2020] NSWLEC 1274

Hearing dates:

17 June 2020

Date of orders:

26 June 2020

Decision date:

26 June 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1)   The Applicants are granted leave to amend their development application and to rely on amended plans;

(2)   The appeal is upheld;

(3)  The Applicants’ development application DA2017/1140 is determined by the grant of consent, subject to the condition attached at Annexure “A”;

(4)   The exhibits are returned, except Exhibits A, B and 1.

Catchwords:

DEVELOPMENT APPLICATION – consolidation of two lots into one lot – proposed construction of a dwelling house and granny flat – whether proposal is consistent with the desired future character of Oxford Falls Valley – whether potential impacts of the proposal are acceptable – grant of consent not opposed by Respondent

Legislation Cited:

Conveyancing Act 1919

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55—Remediation of Land

Warringah Local Environmental Plan 2000

Warringah Local Environmental Plan 2011

Texts Cited:

Land and Environment Court of NSW, COVID-19 Pandemic Arrangements Policy

Category:

Principal judgment

Parties:

David Andrew Simpfendorfer (First Applicant)
Jennifer Kathleen Simpfendorfer (Second Applicant)
Northern Beaches Council (Respondent)

Representation:

D Simpfendorfer (Litigant in person) (Applicants)
S Patterson (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2019/283285

Publication restriction:

Nil

Judgment

1. COMMISSIONER: David Simpfendorfer and Jennifer Kathleen Simpfendorfer (the Applicants) have appealed the refusal by Northern Beaches Council (the Respondent) of their application for review (REV2019/0016) of its decision to refuse their development application (DA2017/1140) seeking consent for construction of a dwelling house and ancillary structures on vacant land (the Proposed Development) at 57-59 Northcott Road, Cromer (the Subject Site).

2. The Subject Site:

1. comprises two lots legally identified as Lots 835 and 836 in DP 752038, and with the majority of the Proposed Development to be located within existing Lot 836;

2. has an area of 5.43 ha, with a primary frontage to Northcott Road, a secondary frontage to an unformed Crown road section of Maybrook Avenue, and a right of way access to/from Pinduro Place;

3. contains areas that are steeply sloping and which include significant rock outcrops, boulders and cliff areas.

3. The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act), and is determined pursuant to the provisions of s 4.16 of the EP&A Act.

4. The Respondent advised that the Applicants’ Proposed Development as originally lodged had been notified consistent with the requirements of the EP&A Act, and the Environmental Planning and Assessment Regulation 2000 (the EP&A Regulation).

5. Initially the appeal was listed for determination under the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

6. During those proceedings, over which I presided, I determined, consistent with the provisions of s 34AA(3) of the LEC Act, and on my own motion, that, in the circumstances of the case, the proceedings were not to continue to be dealt with under subs 34AA(2) of the LEC Act.

7. Further, consistent with the provisions of s 34AA(4) of the LEC Act, as a consequence of my decision above (at [6]), the appeal was now to be dealt with under section 34C of the LEC Act.

8. The Parties submitted at the commencement of the hearing that they had no objection to the Court having regard to matters discussed during the conciliation phase of the previous s 34AA proceedings, including in relation to photographic materials prepared by the Applicants to assist with the Court’s appreciation of the Subject Site.

9. On 25 May 2020 the Applicants sought leave to amend their development application and to rely on amended plans, and leave was granted without objection. Those amended plans sought to resolve certain contentions between the Parties in the proceedings, and reflected the recommendations of experts that had been agreed in joint conferencing and during the conciliation phase of the s 34AA proceedings mentioned above at [5].

10. The Applicants’ amended plans seek consent for the construction of the following:

1. a principal dwelling containing:

1. six bedrooms;

2. four bathrooms;

3. a kitchen, loungeroom, dining room, study, family room, garden room, rumpus room and storage;

4. an attached two car garage and a detached two car garage concrete driveway area including a turning space for a fire vehicle;

2. a granny flat “Coach House” including:

1. a one car garage;

2. a kitchen/living room;

3. two bedrooms; and

4. a bathroom;

3. a studio building, bathroom and storage room;

4. a driveway with a length of 220m with a width varying between 4m and 6m, plus batters and cross drainage;

5. associated connections to sewerage, water utilities, electricity and telecommunications, water tanks, and ancillary site works;

6. a reduced asset protection zone (APZ) around the proposed dwelling for a distance varying between 36m and 59m, with graduated clearing to maintain a 15% canopy coverage within the APZ;

7. the retention and removal of specific canopy and/or habitat trees, as well as certain understorey vegetation, some of which would facilitate the establishment of an APZ around the dwelling;

8. establishment of garden and lawn areas in the vicinity of the proposed dwelling.

11. The Applicants’ amended plans were notified on 3 June 2020, and this notification advised recipients that the appeal had been listed for hearing on 17 June 2020.

12. The Respondent advised that it had received a further five submissions in response to this most recent notification of the Applicants’ amended plans, and those submissions were provided to the Court during the proceedings.

13. At the commencement of the hearing, the Applicants sought leave once more to amend their development application and to rely on further amended architectural and other plans. These further amended plans included only minor revisions principally concerning the manner of connectivity between two elements of the Proposed Development. Leave to rely on the further amended plans was granted without objection.

14. Consistent with the Court’s current COVID-19 Pandemic Arrangements Policy, the Court did not undertake a view of the Subject Site in person. However, as noted above (at [8]) the Applicants were able to provide a series of photographs of the Subject Site taken from a variety of perspectives across the site which assisted the Court to appreciate, in more depth, a range of issues that had been in contention between the Parties.

Statutory Considerations

Environmental Planning and Assessment Act 1979

15. The objects of the EP&A Act are as follows:

(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,

(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,

(c) to promote the orderly and economic use and development of land,

(d) to promote the delivery and maintenance of affordable housing,

(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,

(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),

(g) to promote good design and amenity of the built environment,

(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,

(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,

(j) to provide increased opportunity for community participation in environmental planning and assessment.

16. Section 4.15(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

Warringah Local Environmental Plan 2011

17. Development on the Subject Site is subject to the provisions of Warringah Local Environmental Plan 2011 (WLEP 2011).

18. Clause 1.3(1A) of WLEP 2011 confirms that WLEP 2011 does not apply to land identified on the Land Application Map as being a “Deferred Matter”.

19. The Land Application Map identifies the Subject Site as a Deferred Matter, and so the provisions of WLEP 2011 do not apply to the Subject Site. As a consequence, development on the Subject Site is subject to the provisions of the environmental planning instrument that preceded WLEP 2011, that being Warringah Local Environmental Plan 2000 (WLEP 2000).

Warringah Local Environmental Plan 2000

20. For reasons provided above at [19], development on the Subject Site is subject to the provisions of WLEP 2000, the purposes of which are:

(a) as far as possible, to integrate into one document all environmental planning instruments affecting the development of land in Warringah and ensure that this plan is the sole environmental planning instrument applying to the land to which it relates, and

(b) to describe the desired characters of the localities that make up Warringah and relate the controls on development to the achievement of the desired characters of those places, and

(c) to establish limits to the exercise of discretion with regard to the control of development, and

(d) to provide decision-making processes appropriate to the nature and extent of discretion to be exercised.

Note. The term development is defined broadly by the Environmental Planning and Assessment Act 1979 (the EP&A Act) and includes the erection of buildings, the carrying out of works, the use of land or of a building or work on that land, and the subdivision of land.

21. The following provisions of WLEP 2000 are of relevance this this appeal:

1. Part 2, which identifies what development requires consent, and which further provides:

1. under cl 12, matters to be considered before consent is granted;

2. under cl 14, that development of land within a locality can be classified as one of Category One, Category Two or Category Three development, noting that Category Two development, which applies to the Applicants’ Proposed Development (see below at [(2)(e)(ii)]) is considered within WLEP 2000 to be development that may be consistent with the desired future character of the locality.

2. Part 4, which provides general principles of development control, and which further provides:

1. under Division 4, provisions concerning site planning and building design, including in relation to:

1. the provision and location of services (cl 54);

2. retaining distinctive environmental features on sites (cl 56);

3. development on sloping land (cl 57);

4. the protection of existing flora (cl 58);

5. watercourses and aquatic habitat;

2. under Division 6, provisions concerning soil and water management, including in relation to:

1. erosion and sedimentation (cl 78);

3. Schedule 5, concerning State policies;

4. Schedule 6, concerning the preservation of bushland;

5. Appendix B, which provides locality statements for the Narrabeen Lagoon Catchment, and more specifically for Locality B2 Oxford Falls Valley, within which the Subject Site is located. The B2 Locality Statement:

1. describes the desired future character of the locality as follows:

“The present character of the Oxford Falls Valley locality will remain unchanged except in circumstances specifically addressed as follows.

Future development will be limited to new detached style housing conforming with the housing density standards set out below and low intensity, low impact uses. There will be no new development on ridgetops or in places that will disrupt the skyline when viewed from Narrabeen Lagoon and the Wakehurst Parkway.

The natural landscape including landforms and vegetation will be protected and, where possible, enhanced. Buildings will be located and grouped in areas that will minimise disturbance of vegetation and landforms whether as a result of the buildings themselves or the associated works including access roads and services. Buildings which are designed to blend with the colours and textures of the natural landscape will be strongly encouraged.

A dense bushland buffer will be retained or established along Forest Way and Wakehurst Parkway. Fencing is not to detract from the landscaped vista of the streetscape.

Development in the locality will not create siltation or pollution of Narrabeen Lagoon and its catchment and will ensure that ecological values of natural watercourses are maintained.”

2. confirms that development of the purpose of housing is Category Two development;

3. confirms a number of controls in relation to built form within the locality, including in relation to:

4. housing density;

5. building height;

6. setbacks;

7. landscape open space.

Contentions

22. As identified above at [13], at the commencement of the hearing, the Applicants sought leave to rely on further amended plans, and leave was granted without objection.

23. The Applicants submitted that their further amended plans were responsive to Respondent’s contentions, and to matters raised by the planning and ecological experts in their joint reporting, in the following ways:

1. the Applicants now propose to consolidate the two lots forming the Subject Site under a single title;

2. the Applicants’ proposed dwelling has now been positioned on the 120m contour on the Subject Site, rather than on the 125m contour, and has been moved laterally by a distance of some 20m;

3. the ridgeline of the proposed dwelling has been lowered from an RL of 133.13 to an RL of 128.35;

4. the Applicants’ previously proposed basement level of the dwelling has been removed so that the dwelling is now proposed to be a two-storey built form, and so reducing the bulk and scale of the Proposed Development;

5. the exterior colour pallet to be used on the Proposed Development has been modified to assist with its siting within a natural setting, and is acceptable to the Respondent;

6. as a consequence of the above adjustments to the location of the proposed dwelling, its bulk and scale, and its finishes, the overall visibility of the Proposed Development to a distant observer has been reduced, and the proposed dwelling would no longer crest the natural ridgelines of the Oxford Falls Valley when viewed from public lands;

7. the Applicants’ driveway, landscaping and engineering plans, along with other supporting reports concerning biodiversity management and specific tree management requirements, have been amended to reflect the above changes to the design of the Proposed Development;

8. the area of the Proposed Development’s required APZ has been reduced through moving the southern APZ boundary northwards, and through amendments to the Bushfire Attack Level (BAL) construction standards applicable to the Proposed Development;

9. as a consequence of changes to the location, and the reduced area, required for the APZ, the area of land proposed by the Applicants for inclusion within a conservation area on the Subject Site had been increased. That conservation area would be subject to a s 88E instrument made under the provisions of the Conveyancing Act 1919. The Applicants submitted, and the Respondent accepted, that this would secure in perpetuity the conservation tenure of the residual bushland on the Subject Site. The Applicants said that the proposed conservation area:

1. would include lands to the west of the Applicants’ proposed driveway outside of the APZ as well land to the west and south of the required APZ; and

2. would be managed consistent with the Applicants’ revised Biodiversity Plan, which would be referenced on the title of the Subject Site through registration of the s 88E instrument;

10. the reduction in the required APZ area for the Proposed Development had removed a risk that its APZ would crossover the area of an existing bushfire control area abutting three neighbouring properties, at 33, 35, and 37 Pinduro Place, and which was already the subject of a s 88B instrument made under the provisions of the Conveyancing Act 1919. As a consequence of avoiding any crossover between the proposed s 88E instrument and the existing s 88B instrument, the Applicants submitted that trees within the bushfire control area covered by the existing s 88B instrument would not be subject to the 15% canopy coverage requirement associated with the Inner Protection Area within the Proposed Development’s APZ;

11. the Applicants’ revised Tree Preservation and Fencing Plan had confirmed the identification of trees proposed for retention and those proposed for removal to the satisfaction of the Respondent and its experts.

24. The Applicants had provided an updated BASIX certificate reflecting their amended plans to assure compliance with the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX).

25. At the hearing, the Respondent said that it had considered the provisions of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) and it was satisfied that the Applicants’ Proposed Development is compliant with the provisions of SEPP 55 because:

1. the Proposed Development would not involve a change of use on any of the land specified in cl 7(4) of SEPP 55; and

2. representatives of the Respondent had undertaken numerous inspections of the Subject Site and had not identified any past activities, including in relation to illegal dumping, that would give rise to the potential for contamination of the Subject Site.

26. At the hearing, the Court was assisted by the evidence of Mr Alex Keller, town planner, and Mr Brendan Smith, ecologist, both engaged by the Respondent.

27. The Applicants confirmed that they did not need to rely on any further evidence of their expert town planner, Mr Josh Taylor, and ecologist, Dr Daniel McDonald, beyond that provided within the joint expert reports to which they contributed with Mr Keller and Mr Smith, and that had been tendered as evidence at the hearing.

28. Mr Keller confirmed that he was satisfied that the town planning contentions raised by the Respondent had been satisfied by the Applicants’ further amended plans and accompanying reports. In particular, he noted that:

1. Council’s internal engineers had agreed that the amended plans for management of stormwater and drainage on the Subject Site were acceptable and that they had ensured that water falling on the Subject Site would be directed further onto, and not off, the site, mitigating potential impacts from stormwater flows from the Proposed Development within the Narrabeen Lagoon catchment;

2. the Proposed Development had included appropriate riparian buffers of more than 40m width around watercourses on the Subject Site;

3. the design of the driveway associated with the Proposed Development was acceptable to the Respondent and was also said to be acceptable to residents of lots neighbouring the Subject Site.

29. Mr Smith confirmed in his oral evidence that:

1. the construction level now proposed for the Applicants’ Proposed Development had enabled the scale of the required APZ to be reduced, and that this, along with the amended location of the proposed dwelling, would ensure that bush rock outcrops on the Subject Site would not be impacted;

2. the habitat of red crowned toadlets, and of the heath monitor, would not be adversely impacted by the Proposed Development;

3. the location of proposed garden beds within the Proposed Development were now more appropriately located away from bush rock outcrops;

4. the management of the required APZ for the Proposed Development would be consistent with the Applicants’ Biodiversity Management Plan;

5. all matters identified as contentions related to ecology issues had been satisfactorily resolved by the Applicants through their amended plans.

30. As a consequence of the amended plans, and further amended documentation provided by the Applicants, and the evidence of the planning and ecology experts, the Respondent confirmed that all of the contentions it had raised in the appeal been resolved to its satisfaction. These included contentions in relation to:

1. the desired future character of Locality B2 – Oxford Falls Valley;

2. distinctive environmental features of the Subject Site;

3. the protection of existing flora;

4. the mitigation of potential impacts on threatened species;

5. the preservation of bushland;

6. the sufficiency of information provided by the Applicants in relation to threatened species and bushfire risk assessment.

31. At the hearing, the Respondent drew the Court’s attention to the desired future character statement within WLEP 2000 for Locality B2 Oxford Falls Valley, and said that it was satisfied that the Applicants’ Proposed Development, as represented by its amended plans, was consistent with this statement because:

1. it is for detached style housing that conforms with the housing density standards within WLEP 2000 applicable to the Subject Site;

2. it is of low intensity and involves low impact uses of the Subject Site;

3. it would not disrupt the skyline when viewed from Narrabeen Lagoon, nor from the Wakehurst Parkway;

4. it would protect the natural landscape of the Subject Site, including landforms such as bush rock outcrops and cliff lines, and vegetation on the site;

5. the dwelling and associated structures proposed by the Applicants would be located such that the dwellings were grouped, and so that they and the proposed driveway would minimise disturbance of vegetation and landforms;

6. proposed fencing would not detract from the landscaped vista of the streetscape;

7. it would not give rise to siltation or pollution of Narrabeen Lagoon or its catchment and is designed to ensure that the ecological values of natural watercourses are maintained through the design of drainage and stormwater management arrangements on site and through the maintenance of riparian buffers around watercourses.

32. The Respondent noted that, in response to the most recent notification of the Applicants’ amended plans, one objector had raised matters concerning the potential impact of the Proposed Development on indigenous heritage, which had not been identified as a contention in the appeal.

33. The Respondent advised that it had referred this submission to Council’s Aboriginal Heritage Officer for review. That officer had acknowledged receipt of the objector submission concerning aboriginal heritage and responded that:

1. an Aboriginal Cultural Heritage Due Diligence Assessment had been completed in relation to the Proposed Development in March 2019;

2. notwithstanding a conclusion of the due diligence assessment that the site had a low probability for the occurrence of Aboriginal objects or for places of cultural significance to be present on the Subject Site, the Officer had recommended that a “cautionary approach” must be adopted as part of any construction works related to the Proposed Development to ensure that machinery operators act with care and attention to landscape details on-site;

3. clear demarcation of work site boundaries must be put in place prior to the Applicants undertaking any preliminary earthworks on the Subject Site;

4. conditions should be included with any grant of consent that required that in the event that Aboriginal items are identified during earthworks on the Subject Site, work should cease and recommended protocols should then be followed in relation to the find.

34. The Aboriginal Heritage Officer also noted that the Metropolitan Local Aboriginal Land Council (MLALC) had been informed of the Applicants’ Proposed Development and the nature of works that formed part of that development.

35. The Officer had advised that the MLALC had been invited to provide comments in relation to the Proposed Development, but no submission conveying comment had been received, nor had any concerns in relation to the proposal been conveyed in another form.

36. The Respondent’s draft conditions of consent for the Proposed Development include conditions 34 and 50 that respond to the recommendations of the Aboriginal Heritage Officer in relation to mitigation of potential impacts of the Proposed Development concerning indigenous heritage on the Subject Site.

37. The Respondent also submitted in closing that, in addition to its satisfaction that the Applicants’ Proposed Development had addressed all contentions raised in the appeal, it was further satisfied that matters raised by objectors in response to notification of the Applicants’ plans and amended plans had been resolved, and that it did not oppose the grant of consent.

Conclusions

38. Having considered the submissions of the Parties, and the evidence of the experts, I am satisfied that the Applicants’ Proposed Development:

1. is consistent with the relevant general principles for development within Part 4 of WLEP 2000 as identified above at [21(2)];

2. is compliant with the relevant provisions of SEPP 55 and SEPP BASIX (see above at [25] and [24]), which include jurisdictional preconditions to the grant of consent;

3. complies with the relevant requirements of Part 2 of WLEP 2000 identified above at [21(1)];

4. contains no matter which requires compliance with the provisions of Part 3 of WLEP 2000 which concerns the reservation of lands for a public purpose; and

5. is consistent with the desired future character of the Oxford Falls Valley for reasons provided above at [31];

39. Consequently, I conclude that the Applicants’ Proposed Development is in the public interest and should be approved.

40. I note that the Respondent sought no order as to costs.

Orders

41. The Court orders that:

1. The Applicants are granted leave to amend their development application and to rely on amended plans;

2. The appeal is upheld;

3. The Applicants’ development application DA2017/1140 is determined by the grant of consent, subject to the condition attached at Annexure “A”;

4. The exhibits are returned, except Exhibits A, B and 1.

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A (285919, pdf)

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Decision last updated: 26 June 2020