Sky Design and Concepts Pty Ltd v Pittwater Council

[2007] NSWLEC 628

Land and Environment Court

of New South Wales

CITATION:

Sky Design and Concepts Pty Ltd v Pittwater Council [2007] NSWLEC 628
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICATION
Sky Design and Concepts Pty Ltd

RESPONDENT
Pittwater Council

FILE NUMBER(S):

11044 of 2005

CORAM:

Hussey C

KEY ISSUES:

Section 96 Modification :- Removal of fill on waterfront embankment, impact on trees, wildlife corridor

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Pittwater Local Environmental Plan

DATES OF HEARING:

29/06/2007 and 21/08/2007

 
DATE OF JUDGMENT: 

28 September 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. May, litigant in person

RESPONDENT
Ms M. Carpenter, barrister
Instructed by Ms K. Burke
of Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

28 September 2007

11044 of 2005 Sky Design and Concepts Pty Ltd v Pittwater Council

JUDGMENT

Background.

1 This appeal arises from council's refusal of a s 96 modification application for a dwelling house located at 220 McCarrs Creek Road, Church Point. The original conditional development consent was granted by the Court on 19 December 2005.

2 The subject site is one of a number of properties on the western side of McCarrs Creek Road, which face west towards a large Public Reserve along the McCarrs Creek waterway, a small tributary of the Pittwater waterway. It has a water frontage to the eastern bank of the creek and the land rises steeply to the main road, from which it against vehicular access. There is a relatively steep shoulder embankment from the edge of the existing road pavement to the property boundary.

3 Pursuant to the original consent a 1-storey dwelling and suspended carpark at the road boundary have been constructed. According to the details submitted to the Court, some variations to the approved plans have been undertaken during the dwelling construction.

4 The s 96 application initially proposed the following modifications:

(i) access doors to the storage space;
(ii) retaining walls and change to natural ground level;
(iii) change in size of the window in the bathroom and the provision of additional window in the wet wall;
(iv) change in the location of access stairs;
(v) addition of block wall to the parking area;
(vi) conditions 81 and 82 to be deleted, and
(vii) handrail at dwelling roof top.

5 Following the provision of more detailed information from the applicant, further conferencing between the parties and discussions at the on-site hearing on 29 June 2007, agreement was reached by the parties to some of the aforementioned detailing modifications.

6 Consequently, the remaining outstanding issues mainly concern aspects of the dwelling at the waterfrontage, identified as follows:

• Condition 23; requiring the soil levels on the waterfront embankment to be returned to the original levels by way of removal of the fill in this area that was considered a threat to the remaining trees.
• Condition 24; requiring replacement planting of 4 Swamp Oaks on the embankment;
• Condition 25; removal of the timber retaining structures constructed on the road shoulder to protect new plantings,
• Condition 26; requiring gaps for wildlife passage to be provided under the rear boundary fencing on the waterfront embankment.

The Evidence

7 In response to these issues, evidence was presented by Mr G Paroissien - consulting arborist for Council and Mr S Gatenby - consulting arborist for the applicant. These experts conferred and prepared a joint report in the form of Exhibit 9 showing required upgrading works within the waterfront embankment area designated as ABCD.

8 Mr Paroissien expressed concern that the excavations undertaken at the back of the dwelling adjacent to the storage room and consequential placement of the excavated material on the embankment would interfere with the root system of the existing Swamp Oaks and should be removed and the entire area mulched. Also, based on his assessment of the expected life of the waterfront vegetation, suitable replacement planting should be undertaken.

9 Contrary to this, Mr Gatenby says that as the soil build-up on the embankment varies in their between approximately 50 mm and 200 mm, he considers it is only necessary to remove the soil from immediately adjacent to the trunks of the affected trees to provide an air gap of at least 100 mm.

10 The property owner Mr May expressed his desire to maintain the fill area on the embankment to provide outdoor recreational area for his family. He also noted that there was an existing approval for a jetty structure at the waterfront.

Conclusions

11 In determining this s 96 application, I note initially that it relates to substantially the same development and that the objectors have been notified of the modifications.

12 With respect to the merits of the application, it is apparent from the view that additional excavation has been undertaken at the rear of the dwelling to form the courtyard and this has likely resulted in some of the surplus spoil being placed on the embankment, over the tree (Swamp Oak) root zone. As such I accept Mr Paroissien that this filling has most likely contributed to the demise of one of these trees.

13 When the original development was approved, consideration was given to the desirability of from maintaining some screening along the waterway by way of the existing Swamp Oaks and new trees. Accordingly, I am satisfied that the maintenance of appropriate vegetation along the waterfront is reasonable in terms of the original consent and DCP provisions.

14 Under the circumstances, I consider an appropriate balance is for the fill material to be removed within a 1m radius of the existing tree trunks and replaced with appropriate inorganic mulch that satisfies bushfire protection requirements. Also, 4 new trees to be planted in the waterfront area (ABCD), as agreed by the arborist, with such trees being of a species approved by Council in appropriate locations and with mulching.

15 With regard to the waterfront wildlife corridor, I am satisfied to rely on the evidence of Mr Paroissien that this should be maintained for bandicoots and other native animals. As the corridor can be provided at the bottom of the existing fence (i.e. openings of approximately 200mm x 100mm), this is a reasonable condition to be imposed and the detailed locations should be approved by Council.

16 The other outstanding matter concerns the timber retaining structures on the road shoulder in McCarrs Creek Road. I accept the evidence that the shoulder is relatively steep and the road corridor is generally well vegetated and Mr May would like maintain this character. Also, that the Lilli pilly planted in the structures act as a form of fire barrier, which I accept is likely to be beneficial in this area.

17 As there is no objection from the road authority to the retention of these small retaining walls, I consider it reasonable that they be allowed to remain in order to protect and stabilise the vegetation on this steep road shoulder, subject to them being maintained in a safe condition.

18 Apart from these matters, the parties are in agreement to the other minor detailing modifications, including the handrail around part of the dwelling roof top, adjustment of the external stairway alignment and requirement for geotechnical verification. On the basis of the details provided to the Court and my observations at the view, I am satisfied that these matters can be covered by the modifications shown on the respective amended plans.

1. The appeal is allowed.
2. The s 96 Modification to DA No 442/05 for the construction of a dwelling house, driveway and car parking platform at 220 McCarrs Creek Road, Church Point is allowed, subject to the conditions in Annexure A.
3. The exhibits may be returned except for 2, 6, 9 and A.

___________________

R Hussey
Commissioner of the Court
ljr

09/10/2007 - 2-storey to 1-storey - Paragraph(s) paragraph 3