Simpson v North Sydney Council

[2010] NSWLEC 1211

Land and Environment Court

of New South Wales

CITATION:	Simpson v North Sydney Council [2010] NSWLEC 1211
PARTIES:	APPLICANT R. Simpson RESPONDENT North Sydney Council
FILE NUMBER(S):	10648 of 2009
CORAM:	Tuor C - Fakes C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Residential apartment building adequacy of bushfire safety and asset protection zones. Impact on bushland and public open space zoned land in private ownership. Height, bulk and proximity of proposal to bushland and SEPP 1 objections
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Rural Fires Act State Environmental Planning Policy 1 - Development Standards State Environmental Planning Policy 65 - Design Quality of Residential Flat Development State Environmental Planning Policy 19 - Bushland in Urban Areas North Sydney Local Environmental Plan 2001
CASES CITED:	BGP Properties v Lake Macquarie City Council [2004] NSWLEC 399 CBD Prestige Property Holdings Pty Ltd v Hornsby Shire Council [2006] NSWLEC 629
DATES OF HEARING:	29/03/2010 - 01/04/2010 and 14/05/2010
DATE OF JUDGMENT:	4 August 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr I Hemmings - Barrister SOLICITORS Collin Biggers & Paisley RESPONDENT Mr P Larkin - Barrister SOLICITORS Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C
Fakes C

4 August 2010

10648 of 2009 Simpson v North Sydney Council

JUDGMENT

Introduction

1 This is an appeal under s 97 of the Environment Planning and Assessment Act 1979 (the EPA Act) against the refusal by North Sydney Council (the council) of a development application (DA 305/2005) for an apartment building and other works at 2 Vale Street, Cammeray (the site).

Background and proposal

2 A combined development and rezoning application was lodged on 14 July 2005. The application has a long and complex history involving amendments to the application and rezoning of part of the site, which was zoned from Public Open Space to Residential C under North Sydney Local Environmental Plan 2001 (Amendment 27) gazetted on 18 April 2008.

3 The history of the application is detailed in the Consolidated Statement of Facts and Contentions that is generally agreed by the parties. Although residents raised issue with certain aspects of the statement in relation to the rezoning process.

4 The proposal for which consent is sought is for

• The demolition and removal of an existing tennis court and pool,
• The erection of a residential flat building which comprises 21 apartments, associated landscaping and parking for 37 cars accessed via a double car lift and a driveway at the corner of Abbott St and Cambridge Street,
• Alterations to the existing stone dwelling house and construction of a new pool,
• Removal of 14 trees and the landscaping/vegetation regeneration of parts of the site, and
• Subdivision of the land under the Community Land Development Act 1989 into 4 lots.

5 The proposed apartment building is of 6 levels comprising (from the lowest level):

• Basement parking level 2 – car parking with storage and lift motor rooms,
• Basement parking level 1 - part car parking (at the rear), part residential including rumpus and bedroom (lower levels of units 16-21),
• Ground floor - main living areas, bedrooms, study, and decks for units 16-21.
• First floor – units 10-15 and decks,
• Second floor – units 4-9 and decks,
• Attic level – units 1-3 including decks.

6 The main entry for both pedestrians and vehicles is at roof top level off Abbot Street. The basement car parking is accessed via a double car lift. The roof is landscaped and a communal rooftop courtyard is shown above unit 3.

7 On the ground floor level there is a proposed communal open space deck on the far eastern side of the site.

8 The proposed subdivision into 4 lots comprises:

• Lot A (750 m2) to be gifted to council as ‘public open space’. This is the north western slopes of the site which are zoned Public Open Space,
• Lot 1 (1,727 m2) being the proposed community land of the scheme,
• Lot 2 (1,502 m2) being the proposed apartment building, car lift and a communal deck on the north-eastern side of the building, and
• Lot 3 (773 m2) comprising the existing dwelling, its curtilage, proposed pool and deck.

The site and locality

9 The site is located at 2 Vale Street Cammeray (Lot 10 DP 748772). It is located on the northern side of Vale Street between Cambridge Street and West Street. The site abuts Tunks Park on its northern and western boundaries. The eastern boundary adjoins residential flat buildings in Cambridge Street and the southern boundary adjoins residential flat buildings in Vale Street and Abbott Street. There is a narrow (1.22m wide) drainage easement along the eastern boundary between the site and the units at 12 Cambridge Street.

10 The site is separated from Vale Street by a sandstone cliff face that bisects the site into two plateaus. The lower plateau, not visible from the street, contains a two-storey sandstone dwelling house, stone garage, tennis court, swimming pool and surrounding garden. Access to this portion of the site is at its western end via a battle-axe driveway from Vale Street.

11 The upper plateau is a relatively small area in the southeastern corner of the property on which there are no structures but which supports a mixture of exotic and native vegetation including numerous weed species.

12 The cliff face is the dominant natural feature of the site and is approximately 10-12m high. The site falls away sharply along its northern boundary where it adjoins Tunks Park/Flat Rock Gully bushland area. To the north of this section is a creek.

13 The vegetation on the site consists of scattered planted native (endemic and non-endemic species) and exotic trees and shrubs on the lower plateau grading to weed-infested remnant bushland along the northern boundary towards the creek. A large Ficus rubiginosa (Port Jackson Fig) is growing in a scree slope on the upper/mid section of the property. The tree overhangs the lower plateau.

14 The key issues between the parties relate to whether:

i. the proposal provides an acceptable level of bushfire safety, in particular whether the asset protection zone (APZ) is of sufficient width, can be reasonably maintained and will have an acceptable impact on bushland.

ii. the height, bulk and proximity of the proposal to bushland has an acceptable impact on the bushland and views.

iii. the objections under State Environmental Planning Policy No 1 – Development Standards (SEPP 1) to building height (cl 17), building height plane (BHP) (cl 18) and landscape area (cl 20) in North Sydney Local Environmental Plan 2001 (NSLEP) are well founded.

North Sydney Local Environmental Plan 2001

15 Clause 14(2) of NSLEP states that:

Consent must not be granted to the carrying out of any development that, in the opinion of the consent authority, is inconsistent with the specific aims of this plan, the objectives of the zone or the objectives of the controls.

16 Clause 3(a) relevantly provides specific aims of the plan in relation to the character of North Sydney’s neighbourhoods. These are:

(i) promote the character of the neighbourhood and development which is compatible with neighbouring development in terms of bulk, scale and appearance, and
(ii) maintain a diversity of activities while protecting residential accommodation and local amenity, and
(iii) ensure that development on foreshore lands or land visible from the harbour or any public place does not adversely affect the appearance of that foreshore land, or the views of that land from the harbour or public place,

17 The site is zoned part Residential C and part Public Open Space under NSLEP.

18 The objective of the Residential C Zone is as follows:

The particular objectives of this zone are to encourage the provision of a range of residential accommodation, including dwelling-houses, duplexes, attached dwellings and apartments, in proximity to transport and other services.

19 Apartment buildings are permissible with consent in the Residential C Zone.

20 The section of the site zoned Public Open Space is a triangular area of land (750sqm) in the north-western corner of the site. The objectives of Public Open Space Zone are:

(a) allow for a range of open space areas which meet the needs of the community for both formal and informal recreation, and
(b) ensure sufficient public recreation areas are available for the benefit and use of the community, and
(c) allow for the enhancement and management of recreation areas in accordance with plan of management adopted by the Council under the Local Government Act 1993, and
(d) allow for the enhancement and management of recreation areas in accordance with plans of management adopted by Council under Division 6 of Part 5 of the Crown Lands Act 1989.

21 Apartment buildings are not included as a permissible use within the Public Open Space zone. Development for the purpose of bushfire hazard reduction is permissible with consent in this zone. However, the parties disagreed on whether the hazard reduction works required to provide an APZ for the apartment building are permissible. Mr Larkin, for the council, submits that these works are ancillary to the residential use and are properly characterised as an apartment building and therefore not a permissible use within the Public Open Space zone.

22 Mr Hemmings, for the applicant, submits that the bushfire hazard reduction works are not properly characterised as residential and are a permissible use within the Public Open Space zone. Further, he submits that, even if Mr Larkin’s submission is correct, then the works are permissible by virtue of cl 35(4), which provides:

(4) Consent may be granted to development on land referred to in Schedule 9 or 10 for any purpose if the consent authority is satisfied that the development will not adversely affect the usefulness of the land for the purpose for which it has been reserved.

23 The site is listed in Schedule 9 - Local open space reservations. The listing is for “DP 748772 Lot 10 (except so much of Lot 10 as shown zoned Residential C on the map marked “North Sydney Local Environmental Plan 2001 (Amendment 27)”)”.

24 The parties agreed that the effect of cl 35(4) is that the development is permissible within the part of the site zoned Public Open Space but that consent may only be granted if it will not adversely affect the usefulness of the land for the purpose for which it has been reserved. They disagreed on whether the hazard reduction works would meet this test.

25 Division 2 in Part 3 of the NSLEP includes residential zone controls. Clause 17 - Building heights, cl 18 - Building height plane and cl 20 Landscaped area - were in dispute between the parties.

26 Under NSLEP “site” is defined as:

Site the land to which an application for consent under the Act relates, excluding any land upon which the development to which the application relates is not permitted by or under this local environmental plan.

27 The parties initially disagreed whether the open space zone should be included as part of the site for the purpose of calculating the BHP and the landscape area control. However, Mr Larkin accepted that the effect of cl 35(4) is to make the development permissible within the open space zone and therefore included in the definition of site.

28 Clause 17 provides:

17. Building heights
(1) Building height objectives
The specific objectives of the building height controls are to:
(a) limit the height of buildings in residential zones to:
……
(iv) despite subparagraphs (i)-(iii), in the case of apartment buildings, in the residential C zone, three storeys or the height indicated on the map, and
(a1) promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradients, and
(b) promote gabled and hipped roofs in all residential zones and avoid other roof forms except:
……..
(ii) where it is desirable to preserve views, other roof forms that are characteristic of the area, and
(c) promote the retention of and, if appropriate, sharing of existing views, and
……
(e) maintain privacy for residents of existing dwellings and promote privacy for residents of new buildings, and
(f) prevent the excavation of sites for building works, other than for garages and carparking.
……..
(5) An apartment building in the residential C zone must not be erected in excess of 12m in height, where no other maximum height is specified in this plan or on the map.

29 Height is defined in NSLEP to mean:

"height" in relation to a building, means the greatest distance measured vertically from any point on the building to the existing ground level, or the level of the lowest habitable floor, immediately below that point, whichever is the lower, excluding chimneys.

30 The parties agree that the proposal exceeds the maximum building height of 12m but disagree as to whether the SEPP 1 objection is well founded.

31 Under NSLEP a BHP is defined as:

Building height plane a plane projected at an angle of 45 degrees over a site, commencing, at the height specified in this plan, along a boundary of the site or along any other line or boundary specified in this plan for the purpose of establishing a building height plane.

32 Clause 18 provides:

18. Building height plane
(1) Building height plane objectives
The specific objectives of the building height plane controls are to:
(a) control the bulk and scale of buildings, and
(b) provide separation between buildings, and
(c) preserve the amenity of existing dwellings and provide amenity to new dwellings in terms of shadowing, privacy, views, ventilation and solar access.
……
(3) Building height plane control in residential C zone
A building must not be erected in the residential C zone if any part of the building will exceed a building height plane:
(a) commencing at 3.5 metres above existing ground level, and projected at an angle of 45 degrees, at all points from each of the boundaries of the site, or
(b) commencing at 1.8 metres above existing ground level, and projected at an angle of 45 degrees, at all points from each of the boundaries of the site that adjoins land within the residential A1, A2, B or F zone or open space zone, or from the centre of any road that separates the land from land within the residential A1, A2, B or F zone or open space zone.
……
(5) Building height performance criteria
Consent must not be granted pursuant to State Environmental Planning Policy No 1-Development Standards for the erection of a building any part of which exceeds a building height plane set by this clause if the building would materially:
(a) overshadow any existing or new property, or
(b) reduce the level of privacy to any existing or new property, or
(c) obstruct views from any existing or new property, or
(d) obstruct daylight or ventilation to any existing or new property.

33 The parties agree that the proposal breaches the BHP but disagree as to whether the SEPP 1 objection is well founded and whether the performance criteria in cl 18(5) are met.

34 Clause 20 provides:

20. Landscape area
(1) Landscaped area objectives
The specific objectives of the landscaped area controls are to:
(a) promote the character of the neighbourhood, and
(b) provide useable private open space for the enjoyment of residents, and
(c) provide a landscaped buffer between adjoining properties, and
(d) maximise retention and absorption of surface drainage water on site, and
(e) minimise obstruction to the underground flow of water, and
(f) promote substantial landscaping, including trees which will grow to a minimum height of 15 metres, and
(g) control site density, and
(h) minimise site disturbance.

35 Council contends that there is numerical non-compliance with the controls in cl 20(2) of the NSLEP that state that development must not be carried out in the Residential C zone if the percentage of any site area that is landscaped area is less than the minimum percentage for the site area specified in the relevant table. As the site is greater than 900 sqm, the landscaped area is to be 60% of the site area. The applicant disagrees that the numerical control is not met but has submitted a SEPP 1 objection. The parties disagree whether this is well founded.

36 Division 9 of Part 3 includes Miscellaneous Provisions. Clause 39 provides:

Excavation of land
(1) Excavation objectives
The specific objectives of the excavation of land controls are to:
(a) retain existing vegetation and allow for new substantial vegetation and trees, and
(b) minimise the adverse effects of excavation on the amenity of neighbouring properties, and
(c) minimise excavation and site disturbance so as to retain natural landforms, natural rock faces, sandstone retaining walls and the like and to retain natural water runoff patterns and underground water table and flow patterns, and
(d) ensure the structural integrity of adjoining properties.

37 The site is listed as a heritage item in NSLEP. The provisions of Part 4 apply to the site. Council did not raise any contentions in relation to the works proposed to the existing house on the site or the impact of the proposed apartment building on the house or its setting.

38 To the west the site adjoins land zoned Public Open Space and to the north the site adjoins Tunks Park, which is zoned Bushland under NSLEP. Development for the purpose of bushfire hazard reduction is also permissible with consent in the Bushland Zone.

North Sydney Development Control Plan 2002 (NSDCP)

39 NSDCP is relevant. Section 7.2 - Environmental Criteria includes controls for Topography, Properties adjoining Bushland and Views. Section 7.4 - Quality Urban Environment relevantly includes controls for Landscaped Area and Landscaping. Section 11 - Bushland includes controls for properties, which have a common boundary with Bushland and is therefore applicable to this site. The relevant parts of this section are:

11.1 Building design and siting
Siting and design
a. The siting and design of buildings and structures minimises any impacts on, and is complementary to, nearby bushland.
i. Buildings are set well back from bushland to improve survivability of building in the event of bushfire
ii. Concentrate landscaped area required by the LEP at the boundary with bushland in order to create a buffer between bushland and development
iii. Sites with a boundary adjoining bushland or sites with more than one boundary to the bushland will be given special consideration, in terms of setbacks and location of landscaped area.
iv. Do not locate buildings and other structures, such as swimming pools and decks. Minor works relating to landscaping and stormwater containment may be undertaken adjacent to bushland.
…….
vii. Do not excavate, fill, level or retain land adjacent to bushland.

40 The site is in the Cammeray Planning Area in NSDCP. The environmental criteria listed in the Cammeray Character Statement in the NSDCP include:

• Bushland is protected from the adverse effects of development – such as stormwater runoff, spread of exotic plants and weeds, and visual impact of structures
• 41 The desired future outcome for the Cammeray neighbourhood includes:
• Bushland on slopes above Tunks Park and Primrose Park
• Buffer area between development and bushland
State Environmental Planning Policy No 19 – Bushland in Urban Areas (SEPP 19).

42 SEPP 19 applies to the land zoned Public Open Space in the site and the adjoining land zoned Bushland. Council contends that the proposal does not comply with cll 6 and 9 of SEPP 19. Clause 6 provides:

Consent to disturb bushland zoned or reserved for public open space
(1) A person shall not disturb bushland zoned or reserved for public open space purposes without the consent of council

(2) Nothing in subclause (1) requires development consent for the disturbance of bushland where it is being disturbed:
(a) for the purposes of bushfire hazard reduction,
…..
(4) A consent authority shall not consent to the carrying out of development referred to in subclause (1) unless:
(a) it has made an assessment of the need to protect and preserve the bushland having regard to the aims of this Policy,
(b) it is satisfied that the disturbance of the bushland is essential for a purpose in the public interest and no reasonable alternative is available for the disturbance of that bushland, and
(c) it is satisfied that the amount of bushland proposed to be disturbed is as little as possible and, where bushland is disturbed to allow for construction work to be carried out, the bushland will be reinstated upon completion of that work as far as is possible.

43 Clause 9 provides:

Land adjoining land zoned or reserved for public open space
(1) This clause applies to land which adjoins bushland zoned or reserved for public open space purposes.
(2) Where a public authority:
(a) proposes to carry out development on land to which this clause applies, or
(b) proposes to grant approval or development consent in relation to land to which this clause applies;
the public authority shall not carry out the development or grant the approval or development consent unless it has taken into account;
(c) the need to retain any bushland on the land,
(d) the effect of the proposed development on bushland zoned or reserved for public open space purposes, and, in particular, on the erosion of soils, the siltation of streams, and waterways and the spread of weeds and exotic plants within the bushland, and
(e) any other matters which, in the opinion of the approving or consent authority, are relevant to the protection and preservation of bushland zoned or reserved for public open space purposes.

44 The parties held different opinions about the application of SEPP 19, which is discussed later in this judgment.

Other Controls

45 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP 65) and the Residential Flat Design Code (RFDC) applies to the development. No issue was pressed in relation to SEPP 65 or the RFDC.

46 The site is identified on North Sydney Bushfire Prone Land Map, which was certified by the Rural Fire Service (RFS) on 8 April 2009. Under s79BA of the EPA Act the application is required to conform to the requirements of Planning for Bush Fire Protection 2006 (PBFP). The bushfire issues are discussed later in this judgment.

47 The application was required to be referred to the Department of Water and Energy (DWE) as “integrated development” under s91A of the EPA Act, as part of the proposal is located within 40m of a river (Flat Rock Creek).

48 The hearing commenced on site where the Court heard evidence from residents whose main concerns related to:

• rezoning of most of the site from Public Open Space to Residential C,
• the increase in traffic and parking difficulties likely to be generated by the development, both during and after construction, and the impact on the existing roads,
• suitability and impacts of car ingress and egress on traffic and the amenity of those people residing in units in 56 Abbott Street and 12 Cambridge Street and closest to the proposed driveway and car lifts,
• privacy, noise and odour issues relating to the two proposed community entertainment areas (roof top and eastern ground level deck) – particularly for those residents in 8-12 Vale Street and 12 Cambridge Street,
• excessive excavation and breach of height and other planning controls,
• limited access for fire trucks and other emergency vehicles,
• potential detrimental impacts on vegetation and local wildlife,
• insufficient information regarding a construction management plan and the removal of excavated material,
• loss of views of bushland and therefore loss of amenity and property values,
• conflicts between the proposed Vegetation Management Plan and creating/maintaining an effective asset protection zone,
• noise and odour issues from the proposed garbage storage area for residents in adjoining units in 12 Cambridge Street,
• impacts of the proposed driveway on street trees,
• permissibility of the driveway access over land zoned Bushland and a ‘splay’ at 56 Abbott Street dedicated for pedestrian access to open space,
• concerns about the practicality of the subdivision plans,
• implications for public access to land zoned public open space,
• development is too dense and not in character with the surrounding development, and
• detrimental impacts on the heritage item and its curtilage.

49 Mr Hemmings submits that the majority of the concerns of the residents are largely to do with the rezoning of the site rather than the consequences of the development. We accept that the merits of the rezoning of the site are not a matter before the Court.

50 Council did not raise traffic, parking and access issues in relation to the development. In the absence of expert evidence to the contrary, we accept that the traffic and parking impacts of the proposal have been adequately assessed by council and are acceptable. In particular, we agree that the proposed car access at the corner of Abbot and Cambridge Street is the only reasonable access point to the site. The access off Vale Street to the existing dwelling would not provide an appropriate alternative. We note that the issues raised in relation to the permissibility of the driveway encroaching on land zoned Bushland has been resolved through an amended driveway design. The parties agree that there is no impediment to the use of the splay off 56 Abbott Street for the driveway access.

51 The other issues raised by the residents generally reflect the contentions raised by council.

52 The Court heard expert evidence from:

For the council
• Ms D Laidlaw, planner
• Mr Swain, fire expert
• Dr Mills, ecology consultant
• Mr J Baybrooke, geotechnical engineer

For the applicant
• Mr P Grech, planner
• Dr Wotherspoon, fire expert and ecology consultant
• Mr W Davies, geotechnical engineer

Zoning

53 Apartment buildings are permissible with consent within the Residential C zone. Mr Hemmings and Mr Larkin both referred to BGP Properties v Lake Macquarie City Council [2004] NSWLEC 399 at para 117 and 118 where McClellan CJ states that:

117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects ( Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.

54 Mr Hemmings submits that the site was specifically rezoned by council to permit medium density housing and that the development application was exhibited at the same time as the rezoning. He submits that the zoning in this case is ‘more than neutral’ and that the form of development is what is envisaged by the zoning. In his submission the zoning should be given considerable weight.

55 Mr Larkin submits that the key words are “in some form” and it is the council’s position that the proposed development is of excessive height, bulk and scale and results in unacceptable environmental impacts. In his submission the zoning is neutral.

Findings

56 The rezoning of part of the site from Public Open Space to Residential C under NSLEP Amendment 27 was gazetted on 18 April 2008. As such it is site specific, relatively recent and has involved public consultation and consideration by council. Given these factors and that an earlier form of the development application was exhibited with the rezoning application, we accept Mr Hemmings’ submission that the zoning should be given considerable weight.

57 However, while we accept that an apartment building is one use envisaged for the site we do not accept that the concurrent exhibition of the development application provides a tacit approval for the form of apartment building proposed. We note that the reports to council on the rezoning, including the independent report prepared by GHD, considered that a “substantially reduced design” would address issues through the development assessment process. Clearly an assessment under s79C is required and the environmental impacts of the proposal need to be assessed independent of the application to rezone the land.

58 We note that NSLEP Amendment 27 included a change to the listing of the site in Schedule 9 of NSLEP to exclude the area of land to be zoned Residential C. However, no amendment was made to cl 35(4) or the applicable planning controls, in particular, the definition of ‘site’. The resultant method of calculating the BHP in cl 18 and Landscape area in cl 20 includes the area zoned Public Open Space.

Bushfire impacts
Background

59 When the development application was lodged in July 2005, it was not required to be referred to the Rural Fire Service (RFS) under s79BA of the EPA Act as it was not identified and mapped as ‘bush fire prone land’ in accordance with s 146(2) of the EPA Act. However, the RFS was consulted over the proposed rezoning and the development application on a number of occasions. Correspondence from the RFS states that the bushland adjoining the site poses a bushfire risk and that the site should be afforded appropriate protection measures.

60 Bushfire Environmental Services prepared a ‘Bushfire Protection Assessment’ (BES Report) for the applicant in March 2007. This was referred to the RFS for advice under s79C of the EPA Act. The RFS completed a NSW RFS 79C Development Assessment Sheet, dated 11 May 2007. The site was assessed as “infill development” and as a “performance based application”. The assessment includes comments which include

The proposed building is not placed in a worse BF [bushfire] situation than the adjoining development.

The proposed development provides greater separation/protection to adjoining development than the existing development.

The proposed construction “level 3” addresses wind, smoke, embers and radiant heat. Given the likely BF [bushfire] behaviour direct flame contact is not expected on the proposed development

61 The assessment refers to measures to minimise the risk of bush fire attack and provide protection for emergency services personnel, residents and others assisting the fire fighting activities. These measures include that a defendable space be provided onsite, an APZ be provided and maintained for the life of the development as an Inner Protection Area (IPA) and that the building be constructed of suitable materials. The RFS recommended conditions, which reflected this assessment, by letter dated 28 May 2007.

62 An independent review of the rezoning of the site was undertaken for council by GHD. Its final report of 13 June 2007 identified shortcomings with the BES report in regard to:

• Inadequate analysis of predominant north east summer winds, effects of gully winds, resulting in an underestimation of bushfire risk, rate of spread, fire run, and fire intensity and behaviour;
• No assessment of management of asset protection zone (APZ) on steep slope, noting that the Rural Fire Service (RFS) recognises that there are fire management and environmental issues associated with constructing and maintaining APZs on slopes of more than 18 degrees.

63 However, the report considered that the shortcomings could be adequately resolved through the development assessment process with a substantially reduced development design.

64 A RFS file note dated 2 March 2009, in response to a request from residents to review its previous assessment states: “RFS is satisfied with the proposed development given the protection measures recommended and the nature of the threat”. This advice is confirmed in an undated letter to residents.

65 An inspection was held on site on 7 April 2009 with representatives of RFS, DWE, council and the applicant to try to resolve issues in relation to conflicts between the objectives of the Riparian Zone and the APZ. The meeting resulted in an agreement in principle as to the boundary between these areas and how these areas are to be implemented. This agreement was reflected in the revised Vegetation Management Plan for the site prepared by Abel Ecology dated 30 April 2009 (VMP).

66 In September 2008, council resolved to adopt a ‘Bushfire Prone Land Map’ (Bushfire Map) that includes the northern part of the site and the adjoining public open space areas to the north and south-east as Category 2 – buffer zone of 30m. The Commissioner of the RFS certified the Bushfire Map on 8 April 2009.

67 The RFS, in a letter dated 16 June 2009, recommended a number of conditions. Although the letter is dated after the Bushfire Map had been certified, it states that:

The NSW Rural Fire Service recognises that this development application is not impacted by a certified Bush Fire Prone Land Map. It is the opinion of the NSW Rural Fire Service that the bushland adjoining the site poses a bushfire risk and therefore the site should be afforded with appropriate protection measures, which in this case are those outlined in Planning for Bushfire Protection 2006.

68 The letter also states that the recommended conditions are based on an assessment of revised plans, additional documentation received for the proposal and a site meeting undertaken on 7 April 2009. The conditions refer to the BES Report, the VMP, PBFP and AS3959-1999 Construction of buildings in bush fire-prone areas.

69 Mr Hemmings submits that the bush fire protection measures proposed in the development are consistent with the conditions recommended by the RFS and will achieve an acceptable level of safety given the threat.

70 Mr Larkin submits that the RFS gave advice on two wrong assumptions: firstly, that there was no Bushfire Map and secondly, that a north-east fire path was not an issue.

Bushfire threat and protection measures

71 Dr Wotherspoon, Dr Mills and Mr Swain held different opinions about the interpretation of PBFP and the assumptions and inputs made in various models for predicting fire behaviour for the site.

72 Mr Swain contends that apart from the possibility of a fire from the north and north-west that the predominant fire path (including a crown fire) is from the north-east, especially if one was to be deliberately started in the bushland to the west of the Northbridge suspension bridge. The proposed protection measures have not adequately taken this threat into account given the type and extent of vegetation to the north east of the site and his experience of weather patterns. He acknowledged that the Fire Danger Index (FDI) for Sydney (FDI 100) has taken into account factors such as the potential for a north east wind and the drying out of fuel load.

73 Dr Wotherspoon agreed that any fire would probably start as a result of arson and would be a spot fire. It is therefore less likely, and would take longer, to develop into a large fire. In addition, the complex terrain, dominance of mesic weed species in the under and mid storeys, and the structure and pattern of the vegetation with gaps in the canopy is such that a crown fire is highly unlikely and the proposed fire protection measures are appropriate.

74 The experts disagreed on the inputs into bushfire threat models. The main points of difference were the classification of the vegetation type, the slope of the land along which the fire path would most likely travel and the separation distance from the closest habitable part of the building to the fire front. Dr Wotherspoon considers that ‘rainforest’ is the best description for the model (as identified in the Bushfire Map). Mr Swain considers that ‘dry schlerophyll’ is appropriate (as identified in the BES Repot). The significance of the vegetation classification means that there are differences between the expected fuel loads.

75 The results of these differences mean that Dr Wotherspoon has modelled inputs that result in a radiant heat flux (a measure of heat energy impacting on a surface) of about 29 kW/m2, which permits the proposed level 3 construction.

76 Based on his inputs, Mr Swain contends that the radiant heat flux is closer to 76 kW/m2, which is a flame impact and as such, a level 3 building is not designed to withstand this category of attack.

77 The fire experts held different opinions on the likely path of a fire from the north-east and the likely fire front. Although, they agreed that the RFS bushfire assessment model assumes a fire front of 100 m attacking at right angles, which is not possible on this site and that a 50 m fire front was a reasonable assumption. If it approached from the north-east, the flank of the fire would pass the building, although they disagreed on the time that this would take.

78 After discounting for a reduced fire front, Mr Swain recommends a minimum 14m APZ be maintained on the north-eastern side of the property. He considers the proposed fire wall to be of little value but is content with the proposed 10m APZ on the north-western boundary. Whereas Dr Wotherspoon considers that the generally 10m modified APZ, agreed to by the RFS, is adequate. Mr Swain agreed that PBFP provides a performance-based approach to APZs.

79 The experts disagreed about the provision of an adequate defendable space. PBFP defines ‘Defendable space’ as:

An area within the asset protection zone that provides an environment in which a person can undertake property protection after the passage of a bush fire with some level of safety.

80 Dr Wotherspoon states that the RFS is satisfied that there is an adequate defendable space on the site. Mr Swain agreed that under the definition of ‘defendable space’ in PBFP there is such a space on the site however, based on his experience, he considers that the defendable space should be the 14m he recommends as the minimum APZ for the north east part of the site.

81 In considering the APZ, Mr Swain acknowledged that he had not taken into account the Bushland Rehabilitation Plans: Tunks Park Bushland 2001 (Rehabilitation Plan) and the Draft Bush Fire Risk Management Plan 2008 (Bushfire Plan) prepared by the Manly, Mosman, North Sydney Bush Fire Management Committee.

82 An objective of Bushfire Plan is to:

• manage fuel to reduce the rate of spread and intensity of bush fires, while minimising environmental/ecological impacts.

83 In the Bushfire Plan, Tunks Park East (to the east of the development site just to the west of the Northbridge Bridge), is classified as Priority 2A or Very High Risk Rating). Tunks Park West (the area agreed that was closest to the proposed development) is classified as a Priority 4 or Medium Risk Rating. The action described for both parts of Tunks Park is given as ‘community education’ – education brochure/letter/liaise major stakeholders, and ‘hazard reduction’ – mechanical and or prescribed burning. The schedule states that this is to be done annually. Table 3.2 in the plan more closely specifies the strategy of ‘hazard reduction’ as – ‘Manage fuel loads; bushland structure and accessibility; Perform annual maintenance along APZ and maintain annual Hazard Reduction Works Program; Manage land as per North Head Fire Management Plan’.

84 Mr Swain agreed that the APZ referred to in the Bushfire Plan is that required, under s63 of the RF Act, to be maintained by councils or any public authority, to take steps to prevent bush fires spreading on or from its land onto adjoining properties. Mr Swain also agreed that the Rehabilitation Plan and the Bushfire Plan and the obligations on councils under s 63 would all be relevant considerations in determining the risk of fire to the site.

85 Mr Swain stated that under s 63 of the RF Act, the council would be required to undertake hazard reduction on its land in proximity to the existing developments, including the existing dwelling on the site, but would not be required to do so for the proposed development as the APZ for the proposed dwelling is required under PBFP to be completely inside the property boundary. Dr Wotherspoon contends that the modified APZ agreed to by the RFS will be within the property boundary and that it does not rely on hazard reduction works in the adjoining council land.

Maintenance of the APZ

86 The VMP states that the site (excluding the Riparian Zone) will be managed as an IPA. Figure 3.1 of PBFP provides a graphical representation of an IPA. The VMP outlines the maintenance requirements for the IPA, which include: a minimum canopy separation of trees and shrubs of 2m; average density for ground covers of 4 plants/sqm; dry fuel load of 2-5t/ha; and planting of large trees at 15m spacings and small trees at 5m spacings. However, no large trees are to be planted on bank areas.

87 Mr Swain and Dr Mills held different opinions to Dr Wotherspoon as to the feasibility of maintaining the APZ as an IPA due to the steepness of the land and the fuel levels.

88 Dr Wotherspoon contends that despite the quite steeply sloping land, it is possible for appropriately trained and experienced bush regenerators to work safely on such slopes. He stated that 1t/ha equates to removing about 1kg of debris/sqm and that to reduce the fuel load to the level required for an IPA is not onerous. This work would be undertaken once a year in conjunction with bush regeneration works and in accordance with the VMP.

89 Mr Swain considers that the slope of the site is such that it is a practical impediment to the management of the APZ. He also considers the fuel loads to be significantly greater than as estimated by Dr Wotherspoon and that more frequent maintenance would be required. He stated that the proposal does not meet the requirements of s 3.3(d) of PBFP which provides:

An APZ should not be located on land steeper than 18 degrees as:
• Some management practices are impossible and all become difficult;
• The environmental consequences of ground clearing [destabilisation of the slope resulting in landslip, slump erosion or landslide ] may not be acceptable; and
• The canopy of the fuels in the forests and woodlands are more readily available to a fire

90 Mr Swain estimates the slope to range from about 21 degrees at the eastern end to about 35 degrees at the western end of the site.

91 Dr Mills also observed that because of the requirements that the APZ be managed as an IPA very few of the plant species indicated in the VMP would be able to be planted as an IPA limits the amount of vegetation to reduce fuel loads and to enable easy access for maintenance. He stated that no trees could be planted within this area.

Findings

92 Mr Larkin submits that Mr Swain’s evidence should be preferred as it takes a more cautious approach. He states that the inputs and assumptions used by Dr Wotherspoon are artificially low and that the fire protection measures are inadequate, including the extent of the APZ and the feasibility of managing it as an IPA. Further, he submits that the development would adversely affect the bushland and the usefulness of the purpose for which the Public Open Space was reserved. He submits that the requirements of PBFP should not be departed from and that the RFS gave advice on two wrong assumptions: firstly, that there was no Bushfire Map and secondly, that a north-east fire path was not an issue.

93 Mr Hemmings submits that the bush fire protection measures proposed by the applicant are not grounds for refusal of the development for the following reasons: the RFS found the bushfire threat to be low and a canopy fire unlikely, a performance-based modified APZ is adequate, the level 3 construction is appropriate, there is a defendable space, it is feasible and possible to carry out hazard reduction works on steep land and that the impact of the hazard reduction on the public open space will not be adverse and will not affect its usefulness for the purpose for which it was reserved. Furthermore the RFS and council considered the bushfire threat to the site as part of the rezoning to permit residential development and found it to be acceptable.

94 The key issue between the fire experts, based on their different assumptions, resulted in contrary opinions about the extent of the APZ. In summary, the difference is that Mr Swain recommends a minimum 14m APZ be maintained on the north-eastern side of the property and accepts the 10m APZ on the north-western boundary. Whereas, Dr Wotherspoon concluded that a 10m APZ would be required but that the modified APZ, agreed to by the RFS, is adequate.

95 Dr Mills prepared a plan, which was agreed by Dr Wotherspoon and Mr Swain that illustrates the extent of encroachment into Tunks Park that would result if a minimum 10m wide APZ were to be required. This shows that the majority of a 10m APZ is within the property boundary but it extends up to 4m into Tunks Park in the north east corner. This would extend a further 4m in the north east corner if Mr Swain’s APZ were accepted. We note that Mr Swain stated that his recommended APZ would be required even if another form of residential development were proposed on the site.

96 The modified APZ, agreed to by the RFS, is identified on Figure 1 of the VMP. It requires that part of the site, between the building and its northern boundary (excluding the Riparian Zone), to be managed as an IPA. The APZ would generally be 10m or greater from the habitable parts of the building, including the balconies, to the property boundary. However, it is reduced to a minimum of 6m adjoining the building in the north east corner of the site. The APZ extends up to 6m into the area of the site zoned Public Open Space.

97 We do not accept Mr Larkin’s submission that the RFS advice should be discounted as it is based on wrong assumptions. Firstly, while there was initially no Bushfire Map, the development application and the rezoning application were referred to the RFS, which acknowledged that “the bushland adjoining the site poses a bushfire risk and that the site should be afforded appropriate protection measures”. The RFS assessed the application in accordance with the PBFP and confirmed this assessment by visiting the site. It accepted a performance based approach and agreed that the fire protection measures proposed achieved an acceptable level of safety, given the threat. The RFS considered the BES Report, which identified the north east fire path. The BES report does not identify the fire path as posing the same extent of threat as stated by Mr Swain or identified in the GHD report, however, we are satisfied that based on the evidence the threat posed by this fire path has been adequately considered and that appropriate protection measures incorporated into the design.

98 We are satisfied that the development meets the requirements of s79BA of the EPA Act which provides:

79BA Consultation and development consent-certain bushfire prone land
(1) Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land unless the consent authority:
(a) is satisfied that the development conforms to the specifications and requirements of Planning for Bushfire Protection , ISBN 0 9585987 8 9, produced by the NSW Rural Fire Service (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document), that are relevant to the development, or
(b) has consulted with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire.

99 The RFS has been consulted and is satisfied that the development conforms to the requirement of PBFP. The detailed evidence of the fire experts does not demonstrate any fatal fault in the assumptions on which it based its assessment sufficient to warrant refusal of the application.

100 The land in the APZ is steeper than the 18 degrees recommended in PBFP and it will need to be regularly maintained to reduce fuel loads. While this is not an easy task we accept that it can reasonably be undertaken. Section 3.3(d) of PBFP states that:

Where it can be demonstrated that these issues can be effectively managed, APZs on steeper sites will be considered as an exceptional circumstance.
…..
Effective slopes in excess of 18 degrees will require a detailed performance assessment

101 The RFS has accepted the proposed performance assessment approach and did not raise an issue with the proposed APZ and its ongoing maintenance.

102 The VPA and the VMP require that both rehabilitation and hazard reduction works be undertaken on the site, including the land zoned Public Open Space, even after it is transferred to council ownership. We accept that this obligation can be fulfilled, albeit with a degree of difficulty. We note that even if this development were not to occur there would be a requirement under s 63 of the RF Act that hazard reduction works occur on the Public Open Space zone and within Tunks Park to minimise risk to the existing house on the site and to other properties in Vale Street. The application should not be refused on the basis that it is not feasible to maintain the APZ.

103 In reaching this conclusion, we note that there is a degree of inconsistency in that the RFS accepted a reduced APZ of 6m in the north east part of the site, which is agreed is the predominant fire path, whereas an APZ of 10m is provided in the north west part of the site which poses less of a threat and is where the land is the steepest.

104 After reviewing the evidence, we have no reason to depart from the findings of the RFS and its subsequent recommendations. The threat of bushfire is not high, specifically the threat of crown fire is low; the terrain, vegetation and proposed vegetation management practices would limit the spread of a ground fire; level 3 construction is proposed to the new building and the existing house; there is an adequate defendable space and APZ that can be maintained, albeit with a degree of difficulty. Overall, the bushfire measures meet the requirement of PBFP. They clearly achieve a better level of protection than that currently provided for the existing house on the site and other adjoining development.

105 The experts held different opinions about the impact on the bushland resulting from the removal and pruning of trees and the clearing and rehabilitation works in the APZ and from the proposed building. They also held different opinions on the appropriateness of the APZ within the Public Open Space Zone.

Tree removal, pruning and regeneration

106 The evidence of Dr Mills and Mr Ford is based on the assumption that no canopy separation of the trees is required in the APZ and therefore pruning is only required for the Blackbutt trees below the development to provide clearance from the building for bushfire purposes. They agreed that tress Nos 5, 7, 9, 15, and 16 would require pruning to achieve the required separation from the closest point of the building and that major pruning is required for trees Nos 7 and 15. We note that this assumption contradicts the VMP, which requires a 2m separation between the canopies of trees.

107 Dr Mills and Mr Ford agreed that all the trees indicated for retention on the site plan (February 2010) could be retained although they agreed that the Blackbutt tree (No 14) is half dead and its removal is not significant. Although this tree is shown on the site plan as being retained it is shown as removed on the Landscape Plan, which would form part of any approval and we have assumed it is to be removed. The experts did not refer to pruning of Blackbutt tree (No12), which is shown on the site plan as overhanging the building and would therefore require pruning to achieve the required separation.

108 Dr Mills expressed concern that nearly all the trees on the site will either be removed or pruned and that there are no replacement trees due to the size of the development and the requirements of the bushfire measures.

109 Dr Mills sees a direct conflict between vegetation retention and reconstruction as indicated in the VMP and the requirements for an IPA for bushfire protection. He stated that:

The requirements for such a zone are such that no more trees could be planted, existing trees need to be regularly pruned, sometimes heavily, few shrubs could be planted in the understorey and there would need to be continual removal of the heavy fuel load accumulated through litter fall from the Blackbutt trees. All this means that the bushland will never be anywhere near a natural forest, despite what the vegetation plan appears to be aiming at.

110 Dr Wotherspoon states that the VMP does not seek to create a natural forest except in the Riparian Zone. In his opinion, the land is degraded and the removal of weeds and their replacement with native species will improve the ecological values of the site and the adjoining land.

Planning for Bush Fire Protection

111 Mr Swain and Dr Mills held different opinions to Dr Wotherspoon about the appropriateness of providing an APZ in the Public Open Space zone as it would be transferred to council ownership.

112 Mr Swain and Dr Mills stated that PBFP seeks to restrict an APZ to the site of the development. Mr Swain referred to s 3.3(b) of PBFP which states that easements for APZs:

….should not be considered where the adjoining land is used for a public purpose, where vegetation management is not likely or cannot be legally granted (eg …council bushland reserve...)

113 Mr Swain also refers to s 3.4(d) which states that:

In some cases a development may be proposed on land with a split zoning. Bushfire protection measures may not necessarily be compatible with one of these zones

114 Dr Wotherspoon confirmed that the APZ is to be entirely within the site which is currently owned by the applicant and that an ongoing obligation to maintain the APZ within the Public Open Space zone is established, even if it is gifted to council.

State Environmental Planning Policy 19 – Bushland in Urban Areas

115 Dr Mills considers that providing an APZ within public open space both on the site and in Tunks Park is contrary to the aim of SEPP 19 to control development on adjoining land to ensure that public bushland is protected.

116 Dr Wotherspoon stated that there is no intact natural vegetation on the site or adjoining in Tunks Park as detailed in council’s Fauna Rehabilitation Plan 2003 for Tunks Park and that the aim of SEPP 19 is not offended.

117 Ms Laidlaw and Mr Grech held different opinions on whether the proposal met the requirements of SEPP 19. Ms Laidlaw’s stated that:

Bushland, such as that which forms part of the Cammeray Neighbourhood, is recognised as an important community resource for reasons including, but not limited to, its intrinsic aesthetic and scenic value and its recreational value.

118 In Ms Laidlaw’s opinion, the proposal will be able to be seen from the bushland and the proposed link. The proximity of the proposal to the bushland, the works proposed within the bushland and the proposal’s bulk and scale will have an adverse visual impact on the bushland, which is inconsistent with the aims of SEPP 19.

119 In Mr Grech’s opinion, it is unlikely that the people will be able to access the bushland below the proposal or that it will be able to be seen. He considers that the development will be screened by vegetation and is of acceptable bulk and scale and provides an appropriate interface with the bushland. In his opinion it meets the aims of SEPP 19.

Clause 35(4) of North Sydney Local Environmental Plan

120 Ms Laidlaw and Mr Grech considered whether the proposed APZ complied with cl 35(4) of NSLEP. They agreed that the purpose for which the site was reserved for Public Open Space is its particular qualities as bushland and as a potential public access connecting with Tunks Park.

121 Ms Laidlaw and Mr Grech disagreed on the likely location of proposed link. Mr Grech considered that the track would be along the creek as indicated on Map 4 of the Rehabilitation Plan, which is outside the site. Whereas, Ms Laidlaw considers that the location of the track is unresolved but is likely to be from the road reserve on top of the cliff along the informal path which currently exists on the site which was used during the inspection of the site by the Court.

122 In Ms Laidlaw’s opinion the extent of landscaping, bushfire protection and drainage works resulting from the development within the Public Open Zone would result in the perception that this land is within the Residential C zone and part of the curtilage to the apartment building. She acknowledged that the effect of cl 35(4) is that the development potential of the Public Open Space zone can be incorporated into the proposal. However, in her opinion, the bulk of the proposal and the works within the open space have an unacceptable impact on the bushland qualities and the future link and adversely affect the usefulness of the land for which it was reserved.

123 Mr Grech considers that the use of the open space as rehabilitated bushland with fire hazard management works is consistent with the purpose for which it was reserved, whether in private or public ownership. Further, the dedication of the land at no cost to council creates a reasonable expectation that it will be counted as part of the site’s development potential and provides a significant public benefit.

North Sydney Development Control Plan

124 Ms Laidlaw and Mr Grech held different opinions about whether the proposal had an acceptable impact on the Bushland given the requirements of NSDCP in relation to bushland and the character of the Cammeray Neighbourhood.

Findings

125 For the reasons we discuss below, we find that the pruning and removal of trees and the clearing required for the APZ will result in filtered views of the proposal which due to its height, bulk and scale will have an unacceptable impact on the aesthetic and scenic values of the bushland. The APZ will also reduce the effectiveness of the Public Open Space zone to provide a vegetative buffer between the development and Tunks Park. The proposal should be further setback and reduced in height to limit the extent of pruning required to provide separation between the existing trees and the building. This will assist in reducing the impact of the proposal when viewed from the bushland.

Planning for bush fire protection

126 Section 3.3 of PBFP recognises that to require ongoing hazard reduction work on land that adjoins a development site or that is used for a public purpose is difficult to achieve. Section 3.3 of PBFP also refers to land with split zones, which occurs on this site, the principle concern being that an APZ may be incompatible with one of the zones. The proposed APZ is part of the site and is currently owned by the applicant. It will be gifted to council with an obligation to maintain the APZ through the VPA and the VMP. Hazard reduction work is permissible within the Public Open Space zone and the rezoning of the site clearly envisaged that an APZ would occur within the part of the site zoned Public Open Space. The proposal therefore meets the requirements of s 3.3 of PBFP. However, we find that the incursion of the APZ into the Public Open Space zone should be kept to a minimum to limit the extent of clearing and pruning and assist in the retention of exiting trees.

State Environmental Planning Policy No 19 – Bushland in Urban Areas

127 The parties agree that SEPP 19 applies to the site but disagree on the application of cl 6. Mr Larkin submits that as the Public Open Space zone is to be disturbed for hazard reduction works, which are properly characterised as being for a residential purpose and therefore cl 6(2)(a) of SEPP 19 does not apply. He referred to CBD Prestige Property Holdings Pty Ltd v Hornsby Shire Council [2006] NSWLEC 629 where Moore C determined that certain works proposed for hazard reduction in an open space zone are “merely subsumed elements of a development application for subdivision on the residentially zoned land.” In Mr Larkin’s submission, consent is required for the works under cl 6(1) of SEPP19 and they do not meet the tests in cl 6(4). Mr Larkin, further submits that the development on that part of the site that adjoins the Public Open Space zone and the Bushland Zone in NSLEP do not meet the tests in cl 9(2)(d) because of the fire issues and visual impact.

128 Mr Hemmings submits that the works are for hazard reduction and therefore consent is not required under cl 6(2)(a), and that even if this were not the case, the tests in cl 6(4) are met, as are those in cl 9(2)(d).

129 Clause 4(1) of SEPP 19 defines bushland to mean:

Land on which there is vegetation which is either a remainder of the natural vegetation of the land or, if altered, is still representative of the structure and floristics of the natural vegetation.

130 Clause 4(2) and (3) provide:

(2) A reference in this policy to bushland zoned or reserved for public open space purposes is a reference to bushland within an area or zone identified by an environmental planning instrument as open space ) other than for private recreation)
(3) A reference in this Policy to disturbing bushland is a reference to removing vegetation from the bushland or causing a change in the natural ecology of the bushland resulting in the destruction or degradation of that bushland.

131 Bushfire hazard reduction is not defined in SEPP 19. The following definition in the Rural Fires Act 1997 (RF Act) provides an appropriate guide:

Bushfire hazard reduction work means:
(a) the controlled establishment or maintenance of fire breaks on the land, and
(b) the controlled application of appropriate fire regimes or other means for the reduction or modification of available fuels within a predetermined area to mitigate against the spread of bush fire,
but does not include construction of a track, trail or road.

132 PBFP includes a similar definition of bushfire hazard reduction work.

133 Clause 6(1) of SEPP 19 states:

A person shall not disturb bushland zoned or reserved for public open space purposes without the consent of the council.

134 Clause 6(1) therefore only applies to that part of the site which is zoned Public Open Space and only if it is being disturbed.

135 Clause 6(2) states:

(2) Nothing in subclause (1) requires development consent for the disturbance of bushland where it is being disturbed:
(a) for the purposes of bushfire hazard reduction,

136 The type of development on that part of the site zoned Residential C is not part of the consideration for whether or not consent is required under cl 6 of SEPP 19. It is only the activity, which is being carried out in the Open Space Zone, which is relevant. The question being whether the bushland is being disturbed for the purpose of bushfire hazard reduction. In our opinion, this question is answered in the affirmative.

137 It was not disputed that the bushland was being disturbed for hazard reduction or that activities other than hazard reduction works were proposed within the Open Space Zone. This is distinguishable from the decision of Moore C where the works proposed in an open space zone appear to be beyond what could reasonably be considered as being for the purpose of bushfire hazard reduction, including fire trails and a water quality pond.

138 The principle submission of Mr Larkin is that the hazard reduction works in this case, are properly categorised as residential as they are required only as a consequence of the apartment development in the adjoining zone. The nature of hazard reduction works means that they will generally be carried out for the purpose of minimising risk and improving bushfire safety for adjoining development. In our opinion, this does not mean that they are subsumed or catagorised into the adjoining land use, as cl 6 makes no reference to the use of adjoining land and applies only to that part of the site zoned Public Open Space.

139 We therefore find that consent is not required pursuant to cl 6(2) of SEPP 19. This does not obviate the need to gain consent for the hazard reduction works in that part of the site zoned Public Open Space under NSLEP.

140 Clearly the impact of development on adjoining bushland is an important consideration, which is dealt with under the requirements of cl 9 of SEPP19. The key question is therefore whether cl (9)(2) is satisfied. In this regard, the hazard reduction works, which are a consequence of the development, are relevant.

141 If Mr Swain’s evidence were accepted, clearing for the APZ may be required within the Bushland Zone in Tunks Park. Mr Larkin referred specifically to cl 9(2)(d) of SEPP 19 and submits that the effect of the development on the adjoining bushland is unacceptable due to the clearing. Further, he submits that the proximity of the development, its height, bulk and scale will have an adverse visual impact on the bushland, which is exacerbated by the clearing required for bushfire protection.

142 For the reasons outlined earlier, Mr Hemmings submits that the proposal meets cl 9 of SEPP 19, particularly given that the Public Open Space is on private land and is part of the site. The VPA gifts the land to council and the VMP requires rehabilitation of the both the APZ and the Riparian Zone which, in Mr Hemmings’ submission, will improve the area. Further, the development will still be screened from the bushland and not have an adverse visual impact.

143 We note Dr Wotherspoon’s evidence that there is no intact native vegetation within Tunks Park. However, this opinion is not supported by the numerous other expert reports, which either accompanied the application or were made in response to it. No submission was made that the Public Open Space zone was not “bushland” as defined under SEPP 19 or that the provisions of SEPP 19 were not applicable to the development. Rather, the submissions centred on whether SEPP 19 was adequately addressed, in particular cl 9(2)(d).

144 We accept Dr Mills’ evidence that the hazard reduction work for the APZ required by the proposal will affect the bushland that is zoned for open space purposes and that this will not enable a natural forest to be established. However, there is a degree of weed infestation in the bushland and through the works proposed under the VMP these weeds will be removed and degree of native understorey will be retained and rehabilitated within the APZ. The Riparian Zone is outside the APZ and it will be rehabilitated.

145 We acknowledge that the site in the Public Open Space zone is not publicly owned and remains in private ownership but will be gifted to council through the VPA with ongoing obligations on the community title for rehabilitation and maintenance of the APZ.

146 The development is an infill development between the existing house and 12 Cambridge Street. Hazard reduction works are likely to be required regardless of whether this development or another development occurs on the site.

147 Further, we note that there was no dispute between the parties that the proposal would have an unacceptable effect on the erosion of soils, the siltation of streams, and waterways and the spread of weeds and exotic plants within the bushland which are the particular matters referred to in cl 9(d) of SEPP 19.

148 However, cl 2(1)(b) of SEPP 19 includes the general aim to protect and preserve bushland because of:

(b) its aesthetic value,

149 Clause 2(2)(g) includes the specific aim:

(g) to protect bushland for its scenic values, and to retain the unique visual identity of the landscape,

150 The effect of the development on the aesthetic and scenic value of the bushland is a relevant consideration under cl 9(2)(d) and (e). We accept Ms Laidlaw’s evidence that the proposal, in its current form, will have an unacceptable impact on the aesthetic and scenic value of the bushland.

Clause 35(4) of North Sydney Local Environmental Plan

151 Mr Hemmings submits that consent can be granted for hazard reduction on the privately owned but publicly zoned land, in accordance with cl 35(4) and Schedule 9 of the NSLEP, as it will not adversely affect the usefulness of the land for the purpose for which it has been reserved. He refers to report to council of 16 February 2003 on the rezoning which states:

….only the corner portion of the land has any value as public open space. Having the corner of the land in public ownership would allow for the establishment of a link between Tunks Park bushland (to the north east of the subject property) and parkland to the west of the subject property.

152 Mr Hemmings submits that ‘purpose’ for which the land is reserved is as a link between two parts of the adjoining bushland and that the ‘usefulness’ for this purpose is not adversely affected as the link is shown as a track on Map 4 of the Rehabilitation Plan as being outside the site and within the Riparian Zone, which does not form part of the APZ and will therefore not be impacted upon. On the contrary, in Mr Hemmings’ submission the works proposed in the Riparian Zone will enhance the ecological value of this area. Further the carrying out of hazard reduction works on that part of the site which is zoned Public Open Space is not inconsistent with council’s Bushland Fire Management Policy 1997 (Bushfire Policy) which requires hazard reduction works within Tunks Park.

153 Mr Larkin submits that the location of the link is not final and that the hazard reduction works required for the APZ will adversely affect the bushland within the Public Open Space Zone. In his submission, a smaller development with a greater setback is feasible and would eliminate the need for an APZ within this zone.

154 We accept that the purpose for which part of the site was reserved Public Open Space is primarily to create a link between two areas of bushland. However, the purpose is also to protect bushland and to provide a vegetative buffer to limit the impact of the development on Tunks Park. Due to the steepness of the land it is unlikely to be used for recreation purposes other than to provide a link.

155 While a track is indicated on the Rehabilitation Plan, this document is dated 2001, prior to the rezoning of the land, and we do not accept that this will necessarily be the final location of a track, particularly as the report to Council in 2003 refers to the need to retain the Public Open Space zoning on part of the site to enable a link to be established. Further the report to council of 25 June 2007 indicates that an informal pathway would occur in the north west corner of the site, in what appears to be the Riparian Zone. This report recommended that only 170sqm of the 750sqm to be zoned as Public Open Space was required to achieve the public pathway. It considered that the remainder of the area is of no particular value as usable open space but should be protected as bushland as part of the undeveloped part of the site and included in the proposal’s landscaped area. It also recommended development be set back above RL42 and RL43 to reduce the impact on bushland and restrict development to the more disturbed areas of the upper slopes of the site. We note that the independent assessment by GHD made similar recommendations.

156 There is a strong likelihood that the track will occur within the open space zone that is within the site, probably within the Riparian zone, however its exact location is unknown. If the track were to be located in that part of the Public Open Space zone that is to be utilised as an APZ for the development, we find that the APZ would impact on the amenity of the track by reducing the bushland, but not to the extent that it adversely affects the usefulness of this purpose of the open space to provide a link.

157 Hazard reduction is a permissible use within the Public Open Space zone and is identified within the Bushfire Policy as an activity that will occur within Tunks Park. The APZ will reduce the extent of vegetation that will be in this area and to some degree the amenity it provides to people using the track. However, it will also remove the weeds from bushland and ensure its ongoing maintenance and rehabilitation. On balance, we find that the provision of an APZ will affect the bushland, however, the affect will not be so adverse that it will not achieve this purpose of protecting bushland for which it was reserved.

158 However, in reaching this conclusion we acknowledge that the provision of the APZ will reduce the effectiveness of the area to provide a vegetative buffer between the proposal and Tunks Park given the height, bulk and scale of the proposed development. In this regard, we find that the usefulness of this purpose for which the public open space is reserved is not met and that the proposal would need to be further setback and reduced in height to provide an effective buffer and limit its impact on Tunks Park.

Planning impacts
Height

159 The Laidlaw and Mr Grech agreed that cl 17 of the NSLEP specifies a height of 12 m and that the development in part complies and in part breaches the control. The agreed areas of non-compliance are the northern edge of the ‘attic’ and ‘second’ floor levels, including the parapet (+380 mm); the pergola adjacent to the northern side of the apartments at the ‘attic’ level (+2.38 m); lift overruns at the eastern end, middle and western end of the building (between +1.45 m and +2.9 m); car lift (+2.3 m); walkway pergola along most of the length of the roof top (+2.1 m); and the roof top communal room (generally +2.4 m with a small part at +5.35 m where it is located above units 20/21 at basement level).

160 The planning experts also agreed that the height plane is not always marked correctly on the architectural drawings as these depict a height above existing ground level and not, as required, above the lowest habitable floor.

161 Ms Laidlaw and Mr Grech agreed that the relevant objectives of the height control are set out in cl 17 of NSLEP. They disagreed whether the objectives are met.

162 Ms Laidlaw states that the proposal is four storeys measured in a vertical line at any point and appears as five storeys in elevation, has a flat rather than a gabled or hipped roof form, adversely impacts on views and involves excavation other than for parking. The objectives of cl 17 are therefore, in her opinion, not met by the development and the exceedance of the 12m height control exacerbates this impact.

163 Ms Laidlaw is of the opinion that the applicant has misconstrued the term ‘attic’ in the description of the uppermost level. She considers that the 12m height control includes the provision of a gabled/hipped roof and incorporates a tolerance for sloping sites in that it allows for a sub-floor which should avoid or limit the need for excavation. Ms Laidlaw contends that the tolerance allowed for a pitched roof has been used to provide a fourth floor contained within vertical walls and relies on excavation to bench habitable floors below ground level thus allowing the sub-floor tolerance to be used for habitable space.

164 Mr Grech considers that the site is not typical of where the height control would be expected to apply. The proposal will partly comply and partly not comply with the height control due to the terrain and slope of the land. Mr Grech does not agree that a pitched roof is either necessary or appropriate for the site as the building is roughly at the height of the cliff face and will generally not be visible from surrounding streets. He considers that the flat roof provides greater amenity for the occupants as it provides more direct and secure access as well as incorporating landscaping which, in his view, will also provide a better outlook for the residential flats above. He does not consider the height will unreasonably impact on views or that there is excessive excavation.

Building height plane

165 The planners agree that the 3.5 m BHP in cl 18(3)(a) of the NSLEP applies to the southern and eastern boundaries and that as a consequence of cl 35(4), it also applies to the northern boundary. They also agree that the 1.8 m BHP in cl 18(3)(b) (land adjoining open space zoned land) applies to the western boundary.

166 The planners disagree as to whether the BHP applies to the internal boundary between community lot 1 (apartment building common land) and lot 3 (heritage building). Mr Grech considers that this is not required by the definition of ‘site’ nor by cl 18 and that the relationship between the apartment building and the heritage house is acceptable and not raised in the Statement of Facts and Contentions. Ms Laidlaw considers a logical planning purpose would be served by applying the BHP to these different lots. However, her main concern is that, notwithstanding the applicability of the BHP to the inter-lot boundary, the height and bulk of the development is excessive relative to the existing heritage house.

167 Ms Laidlaw and Mr Grech agree that the variation to the BHP on the northern side is a maximum of 3.5m and about 1.3m on the southern side.

168 The experts agree that the BHP objectives are set out in cl 18(1) of NSLEP. However, they disagree whether the objectives are met.

169 In Ms Laidlaw’s opinion, the proposal does not meet the objective of the BHP to control the bulk and scale of buildings. The site adjoins Public Open Space and Bushland zones and she considers, the proposal will adversely impact on the scenic, aesthetic and recreational value of the bushland. The effect of cl 35(4) enables the BHP to be measured at 3.5m at the boundary of the site rather than 1.8m at the boundary of the Public Open Space Zone. In Ms Laidlaw’s opinion, this already permits a bulk of building beyond that which would normally occur adjoining public open space and any exceedance beyond the BHP is unacceptable. She considers that the non compliance of up to 3.5m, where the BHP intersects the northern elevation, presents excessive bulk to the bushland.

170 As with the height control, Mr Grech considers that the strict application of the BHP to steep and irregular terrain, such as the development site, can result in distorted restrictions when compared with ‘flat land’ situations. In his view, the compliance or otherwise with the BHP is understandably variable due to the terrain and that the proposal should be considered on its merits. In his opinion, the bulk of the proposal will not result in any unacceptable impacts external to the site and it responds to its context.

171 The planners also disagree on whether the performance criteria in cl 18(5) need to be separately satisfied to the objectives in cl 18(1). They agree that the privacy and overshadowing impacts of the proposal are limited and meet the performance criteria in cl 18(5)(a), (b) and (d) of the NSLEP and as such consider they are not grounds for refusal. However, they disagree whether the proposal would materially impact on views and therefore whether the proposal satisfies cl 18(5)(c). Ms Laidlaw says that there is a material impact on views from the proposed building but she concedes that this is not as a result of that part of the building which breaches the BHP.

Landscape area

172 NSLEP defines landscaped area as:

Landscaped area of a site means the part of the site that is generally at existing ground level, that is not occupied at or above or below ground level by any building structure, swimming pool or hard-surfaced tennis court, or the like, that is or is proposed to be predominantly landscaped by way of plantings, gardens, lawns, shrubs or trees and that is available for use and enjoyment by the occupants of the building erected on the site, but does not include any areas set aside for driveways and parking.

173 The definition of “site area” and the operation of cl 35(4) enable that part of the site which is zoned Public Open Space to be included as landscaped area. The experts disagreed on whether 60% of the site area (including the public open space) was provided as landscaped area. Mr Grech stated that the landscape area was 60.26%, whereas Ms Laidlaw estimated a minor non compliance and the area to be 59.7%.

174 The experts disagreed on whether the proposal met the objectives of the landscaped area control, in particular to promote the character of the area (cl 20(1)(a)), control site density (cl 20(1)(g)) and minimise site disturbance (cl 20)(1)(h)). Ms Laidlaw accepted that due to the effect of cl 35(4) the variation to the numerical landscape area control is minor. However, she considered that the Public Open Space zone effectively becomes part of the landscape curtilage necessary for the development. In her opinion, the development is larger than would otherwise be anticipated and impacts on the Public Open Space zone and the Bushland zone.

175 Mr Grech stated that it is clearly the intent of the planning controls to permit the Public Open Space zone to be included as part of the landscape area for the site. In his opinion, the landscape area controls the footprint of the development which is not beyond what is anticipated. The public open space, whether in private or public ownership, contributes to the amenity and setting of the building.

Views

176 There is agreement that views to the development from the north and north east would be limited and partly screened by bushland. Ms Laidlaw considers that the development will be very apparent from the properties and the parkland to the west and north west (off Quarry Street) where it will form a substantial backdrop to the retained heritage building.

177 Ms Laidlaw also considers that the development will be very evident in views from properties to the south and south east. She contends that a four storey flat roof building has a very different impact and a materially greater bulk and scale than the same floor plan constructed with a gabled or hipped roof. She states that the plane of a gabled roof recedes from the viewer and appears of lesser bulk than floors within a vertical wall.

178 In Ms Laidlaw’s opinion the proposal is likely to be viewed from the future link through the open space, depending upon its final location.

179 Ms Laidlaw recognises that it is not unreasonable that the proposal can be seen, but in her opinion the height, bulk and scale of the proposed development will have an unreasonable impact on views to the bushland and will compromise the views from the adjoining bushland and from properties on the opposite side of Tunks Park. She stated that although the proposal is three buildings, it is unbroken and is a long, massive built form, its northern facade is a four storey vertical elevation in close proximity to the bushland and extending into the steeply sloping part of the site.

180 Mr Grech considers that views from the adjoining properties to the rear will be over a landscaped roof or past the building to expansive views of the bushland in Tunks Park. The properties in Quarry Road are a substantial distance and landscaping will screen views to the proposal. In his opinion, the proposal would not be able to be viewed from the proposed pathway, whether this is located at the lower level, along the creek, or at a higher level in the Public Open Space zone within the site.

181 Mr Grech considers the form of the proposal is what is anticipated by the planning controls and that it will be screened by bushland. In his opinion it will have an acceptable impact on views whether to or from the bushland.

Character of the neighbourhood

182 The site is part of the Cammeray Neighbourhood under NSDCP. Ms Laidlaw considers that, notwithstanding the nearby residential flat buildings, the main impact will be the relationship of the proposed developed to the bushland. She notes that the Character Statement includes the environmental criterion to protect bushland from the visual impact of structures and that bushland on the slopes above Tunks park are identified. She does not accept that the proposal’s impact on bushland is acceptable on the basis that “nobody will see it” or that it is screened by bushland. In her opinion, it will be seen and is of a bulk and scale that is unsympathetic to the character of the area given its proximity to and impact on bushland.

183 Mr Grech is of the opinion that the proposal has no unacceptable impact on amenity, the character of the broader Cammeray locality, the use of Tunks Park or views from the park. He believes that the building will be substantially screened by vegetation and sufficiently modulated with a variety of building elements with the effect of reducing its visual impact from the bushland.

Excavation

184 Ms Laidlaw and Mr Grech disagree on whether the proposal involves excessive excavation. Ms Laidlaw states that the excavation is not only for parking but also is required to provide habitable floor space, it alters the natural landform of the site and is greater than what is anticipated by applying the relevant controls of height, BHP and landscaped area.

185 Mr Grech states that the extent of excavation is not excessive considering the size of the site, the requirement for basement parking and as it primarily involves the removal of fill used to construct the existing tennis court.

Findings

186 The principle disagreement between the planners is whether the height and bulk of the development and its proximity to the bushland have an acceptable impact on views and the character of the area.

187 Mr Hemmings submits that the site is “unique” due to its topography and constraints. As such a strict application of the planning controls is not feasible and they need to be interpreted given the particular characteristics of the site.

188 Mr Grech also considers that the strict application of the height and BHP to steep and irregular terrain, such as the development site, can result in distorted restrictions when compared with ‘flat land’ situations. Further, he considers that the planning controls explicitly include the Public Open Space zone within the site area for the purpose of calculating Landscape area and BHP. He therefore concludes that the development is consistent with what is anticipated for the site.

189 Ms Laidlaw states that the Height, BHP and Landscaped area controls are the “principle means by which NSLEP controls height, bulk and scale and density”. The plan does not include a floor space ratio control. Her principle concern is that the proposal is “too big” and it will have an unacceptable impact on the bushland character of the area. In her opinion, this is exacerbated by the proposal’s non compliance with the height, BHP, landscape area and excavation controls.

190 We accept that the site has characteristics that provide opportunities and constraints for development and that a strict application of the numerical controls is difficult. The key question is whether the proposal meets the objectives of the controls. This question is relevant not only for those parts of the building which comply with the numerical controls but also for those parts of the development which do not comply with the controls in NSLEP and can only be varied through the application of SEPP 1.

191 The site was specifically rezoned under NSLEP Amendment 27 to permit medium density residential development. As stated above considerable weight is to be given to the zoning of the land. Amendment 27 retained cl 35(4), which enables that part of the site to be included in the calculation of BHP and Landscape Area. It is self evident that this enables a larger building than if only that part of the site zoned Residential C were included in the calculations. Further, it anticipates a greater impact on the land zoned Public Open Space, which is in private ownership, than would be anticipated if the land were in public ownership. Clearly this recognises that the open space land is to be gifted to council and has therefore enabled its “development potential” to be transferred to the Residential C land.

192 Within this planning framework we find that the proposal, in its current form, is of height, bulk and setback that is unacceptable for the following reasons:

193 The height control in cl 17 of NSLEP includes objectives to limit the height of apartment buildings in the Residential C zone to three storeys or the height indicated on the map (cl 17(1)(a)(iv)) and to promote gabled or hipped roofs except, where it is desirable to preserve views, other roof forms are acceptable (cl 17(1)(b)(ii)).

194 The northern elevation of the building is four habitable floors, which rise vertically in the same plane above one level of basement parking. The fourth habitable level (second floor) has a flat roof.

195 The southern part of the building is also four habitable floors over two levels of basement parking. The fourth habitable floor (attic level) has a flat roof and would appear as a fifth level setback from the floor below (second floor).

196 We accept Mr Grech’s opinion that within the context of the site the flat roof form of the attic level is acceptable provided it does not impact on views or result in materially more bulk than an attic floor within a hipped or gabled roof. We accept Ms Laidlaw’s evidence that the flat roof of the attic level results in more view loss to the apartments to the south than would occur from a gable or hipped roof.

197 The second floor is clearly of greater bulk than an attic floor contained within a gabled or hipped roof form. The second floor in elevation appears little different to the other floors below except that there is no roof over the terraces and the dividing blade walls are lower.

198 In our view the building does not meet the objective to limit the height to three storeys. It is clearly floor storeys with arguably an attic level above.

199 The northern part of the building extends into steeply sloping areas of the site and there is considerable excavation to provide both parking and habitable floor space. There is no evidence that the extent of excavation is fill for the tennis court. These factors exaggerate the height of the building. The proposal therefore does not meet objectives of cl 17(1)(a1) and (f).

200 The height is not limited to 12m as required by cl 17(5). The structures that exceed the 12m height limit include the car lift, the lift overruns, part of the northern edge of the attic and second floor, the access pergola and the common room. These structures, when compared to the size of the overall development, are relatively small and we acknowledge that the car lift cannot be reduced in height without impacting on the cliff as it provides access off street level. The impact of these structures when viewed from the apartments to the south (based on the elevations) appears to also be limited. However, when combined with the form of the attic floor (based on the view analysis drawings) there is an impact, which is beyond what is envisaged by the planning controls. We therefore find that the SEPP 1 objection to cl 17 is not well founded.

201 The objective of the BHP in cl 18(1)(a) to control the bulk and scale of buildings is not met. The building has a frontage of about 60m to the bushland. It is articulated through techniques such as staggering into three built forms, setbacks of the attic floor and use of materials. However, we find that despite these measures it is of unacceptable bulk to be placed in close proximity to land zoned Public Open Space and Bushland. The non compliance of the second level with the BHP further exacerbates the already unacceptable bulk and its proximity to the bushland. We therefore find that the SEPP 1 objection to cl18 is not well founded.

202 Further, although not raised in the contentions or in submissions, we accept Ms Laidlaw’s opinion that bulk of the building as it relates to the existing heritage house is of concern whether or not the BHP applies. We note that the Urban Design Advisory Panel also raised concerns about this aspect of the proposal as did residents.

203 We accept that whether or not there is a non compliance with the numerical landscape area control in cl 20(2) it is minimal and results in no material impact. As a consequence of cl 35(4), the Public Open Space zone is included as part of the open space calculation and the objectives of the landscaping clause are met. Clearly without its inclusion, the objectives would not be met. However, by including the area it becomes effectively part of the curtilage of the development and there is a degree of conflict between its role as landscape area for the site and its role as public open space. Principally, this conflict results in whether the proposal “promotes the character of the neighbourhood” and “controls site density”.

204 We share Ms Laidlaw’s concerns that the combined effect of the height, BHP and Landscape controls result in a building that is “too big” given the topography of the site and its proximity to bushland.

205 Mr Grech considers the bulk and scale of the proposal is what is anticipated by the planning controls and that the proposal will not be visible from most vantage points and will be screened by vegetation.

206 Mr Hemmings submits that:

As was apparent from the view, existing buildings within the area……were clearly visible from various public and private viewing locations. That is simply a consequence of the carrying out of development, even when it is on the bushland fringe. Relevantly, development was visible from public and private viewing locations both when that development was perched on the top of the cliff (such as numbers 6-16 Vale Street) and where it descended over the cliff line (12 Cambridge Street)
……
It is true that the building will not be invisible from all viewing locations (whether public or private). That is neither Ms Laidlaw’s intent nor that of the planning controls that apply to the land. However, …the extent to which the built form will be perceived behind the existing canopy of trees is entirely consistent with the council’s controls, the rezoning of the land, the aims and objectives of the LEP and zone and the character (current and future desired) of the locality.

207 We accept Mr Hemmings submission that it is not the intent of the planning controls that the building should be invisible. However, the proposal requires the site to be maintained as an IPA and for existing trees to be removed and pruned which will significantly reduce the screening of the building. We accept Ms Laidlaw’s evidence that the proposal will be visible from certain vantage point and that it is of a height, bulk and scale that is beyond what is envisaged for the planning controls given the particular characteristics of the site and its proximity to bushland and open space.

Ecology

208 Dr Mills and Dr Wotherspoon agreed that there would not be a significant impact upon threatened species or communities as a result of the development and the APZ as proposed. Dr Wotherspoon considered that there would be an improvement in habitat for flora and fauna biodiversity generally as well as for threatened species.

Geotechnical

209 Mr Lloyd and Mr Davies prepared a joint experts’ report in which there were no areas of disagreement.

210 Of concern to both experts is the proposed use of a ‘spreader pit’ to discharge storm water and water captured by the roofs and other structures. The pit or trench to be located on the northern side of the excavation in order to ‘rehydrate the upper section of the slope, thereby not disrupting the natural drainage pattern of the land, as required by NSLEP’. It is their concern that the geotechnical sensitivity of the steep slope is potentially very adversely affected by the system proposed for the dispersal of stormwater and that alternative methods such as trickle or spray irrigation could be considered.

211 The applicant has accepted the use of an alternate system, which the parties have agreed can be dealt with through conditions.

212 Both experts agreed that a number of other conditions, relating to geotechnical matters, would be required if development consent is given.

Heritage

213 While not raised as a contention, we acknowledge Ms Laidlaw’s concern about the height and bulk of the building adjoining the heritage building. The RFS requires the existing building to be upgraded to level 3 construction. Mr Staas, a heritage consultant, has provided a report that examines the works which would be required to meet this requirement and their impacts on the heritage significance of the building. He has recommended specific works that should be undertaken to meet the RFS requirement and limit the impact on the building. Mr Staas’ recommendations would need to be incorporated into any conditions of consent.

Garbage collection

214 Council’s garbage policy requires that where garbage is stored internally it needs an external collection point inside the site. The proposed location is in close proximity to the 12 Cambridge Street. We acknowledge that this location will impact on the residential amenity of these neighbours, However, we recognise that there appears to be no other suitable location on the site suitable for a garbage collection point.

215 Further we recognise that the applicant has endeavoured to limit the impact through the combination of measures which results in putrescible waste being compressed and contained within sealed plastic bags to limit any odour impacts. The garbage area is shielded and will not be used for storage of garbage other than on collection days.

216 Nonetheless, a proposed condition that further investigates the relocation of the garbage area or on street collection to reduce the potential noise impact is appropriate.

Conclusion

217 For the reasons discussed above we find that in its current form, the height, bulk and proximity of the building to the bushland are beyond what is anticipated by the planning controls. In particular, the requirement of the proposal to provide an APZ as an IPA in the Public Open Space zone does not meet cl 35(4) of NSLEP in that it will adversely affect the usefulness of the Public Open Space land to provide a bushland buffer to limit the impact of the development which is one of the purposes for which it was reserved.

218 The proposal also does not meet the aim in cl 2(1)(b) and cl 2(2)(g) and the considerations in cl 9(2)(d) and (e) of SEPP 19 in that the proposed building will adversely impact on the aesthetic values, scenic qualities and unique visual identity of the adjoining bushland, which will be exacerbated through the pruning and removal of trees and clearing of vegetation for the APZ.

219 The proposal also does not meet the objectives of cl 17 - Height of NSLEP in that it is greater than three storeys with a flat roof, extends into the steeper slopes of the site and involves excavation other than for parking. The proposal does not meet the objective of cl 18 – Building Height Plane in NSLEP in that the bulk and scale of the building in proximity to the bushland is excessive. The proposal also does not meet relevant requirements in NSDCP for the Cammeray Neighbourhood, particularly given that the protection of bushland from visual impact of structures is an environmental criteria.

220 In reaching this conclusion, we find that a building, which is further setback and reduced in height would potentially address these concerns. This would require that the following changes to be made:

i. Setback

221 The northern elevation (including the terraces) of levels -1 Basement, Ground, First and Second is to be further setback from the northern boundary by a minimum of 2.5m.

222 The width of -2 Basement should be a minimum width to accommodate no more than the required number of car spaces. We note that the plans do not number the parking spaces and it would appear that more than the required number of spaces are provided in the two basement levels.

223 The setback should not be achieved by any material reduction in the setback to the cliff face.

224 The increase in setback will reduce the extent of pruning of the existing trees to increase their effectiveness to provide canopy screening of the building; limit the development to generally the disturbed area of the site (around RL42 and RL43) and reduce the intrusion of the 10m IPA into the Public Open Space zone, thereby potentially enabling more vegetation to be provided in this zone to screen the development and rehabilitate bushland.

ii. Height

225 The common room and a habitable floor (other than the attic) are to be deleted. We acknowledge that the car lift will not be able to be reduced in height as the level is required to provide access off the street. However, the other structures which exceed the 12m height limit will be lowered. This combined with the lowering of the attic floor and the deletion of the common room will reduce the impact of these structures when viewed from the units to the south. It will also bring the building further below the canopy height of trees to reduce its visibility when viewed from the opposite side of Tunks Park and will reduce the overall perception of the height of the building when viewed from the slopes below the development from any future track. It will also reduce the height of the building in relation to the existing house better retaining its setting as a heritage item.

226 With these changes the flat roof of the attic is acceptable as the building will read as three storeys.

227 We are satisfied that these changes will reduce the impact of the proposal to an acceptable level and not result in the proposal being so markedly different as to require a further development application.

228 We acknowledge that these changes may reduce the number of apartments and require internal redesign. As these changes were not discussed, in any detail, with the applicant during the hearing, it is appropriate to allow the applicant time to consider the implications of this decision.

229 If the applicant chooses not to amend the application as outlined above, Orders will be issued in Chambers dismissing the appeal.

230 If the applicant chooses to adopt the proposed changes, Orders will be issued in Chambers upholding the appeal once the amended plans, conditions, VPA and VMP which reflect this decision are finalised.

1. The applicant is to advice the Court by ecourt on 9 August 2010 whether it intends to amend the application to reflect this decision. If so, the applicant is to file and serve sketch plans which incorporate the changes by 13 August 2010.
2. The parties are to attend a mention on 19 August 2010 with an agreed timetable for finalising the plans, conditions, VMP and VPA.
3. Liberty to relist the matter on two days notice.

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Annelise Tuor
Commissioner of the Court

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Judy Fakes
Commissioner of the Court