SNL Building Constructions Pty Ltd v Lake Macquarie City Council

[2018] NSWLEC 1152

Land and Environment Court

New South Wales

Medium Neutral Citation:	SNL Building Constructions Pty Ltd v Lake Macquarie City Council [2018] NSWLEC 1152
Hearing dates:	9 October 2017 and 27, 28 February 2018
Date of orders:	28 March 2018
Decision date:	28 March 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The orders of the Court are: (1)   The appeal is dismissed; (2)   Development application DA/1243/2016 for demolition, tree removal, lot consolidation and the construction of nineteen dwelling houses at 2 Brighton Avenue and 133 Excelsior Parade, Toronto is refused. (3)   The exhibits are returned with the exception of exhibit 4, and B.
Catchwords:	DEVELOPMENT APPEAL: residential subdivision – appropriateness of tree removal – are the impacts certain- whether the resulting visual impact is acceptable – whether the adjoining site is inappropriately isolated – impacts on adjoining neighbours – whether the intensity of the development is appropriate for the site.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy 71(Coastal Protection)
Cases Cited:	BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 Marina Bay Developments Pty Limited v Pittwater Council [2007] NSWLEC 41 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Grigorakis v Bayside Council [2016] NSWLEC 1573
Texts Cited:	“Lake Macquarie Scenic Management Guidelines” Lake Macquarie Council, 2013
Category:	Principal judgment
Parties:	SNL Building Constructions Pty Ltd (Applicant) Lake Macquarie City Council (Respondent)
Representation:	Counsel: Mr. P Larkin (Applicant) Dr. J Smith (Respondent)   Solicitors: Long Legal (Applicant) Matthews Folbigg Lawyers & Solicitors (Respondent)
File Number(s):	2017/0027228
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal arising from the refusal by Lake Macquarie City Council of development application DA/1243/2016. The application sought consent for demolition, lot consolidation and the construction of nineteen dwelling houses. Associated with the works is the removal of 206 trees from the site. The development is proposed at 2 Brighton Avenue and 133 Excelsior Parade, Toronto.

2. The original development application proposed access from both Excelsior Parade and Brighton Avenue. The joint conferencing of the traffic experts engaged by the parties concluded that there should be no egress from the development onto Brighton Avenue. Subsequently in September 2017 the applicant was granted leave to amend their development application plans to remove the access from Brighton Avenue.

3. At the commencement of the hearing the Council confirmed that, subject to the imposition of agreed conditions, the previous contentions in relation to traffic and stormwater management had been resolved by the parties.

4. However, the Council maintains the application should be refused on the following grounds:

1. the intensity of the development is unsuitable for the site;

2. the development results in unacceptable harm to the natural environment;

3. the development will result in significant adverse visual impact to the scenic value and character of the locality;

4. That the proposed development would render the adjoining site isolation and affect its feasibility of being reasonably developed in accordance with the planning controls.

The site and its context

5. The legal description of the land is Lot 15 DP 2505 and Lot 1 DP 201284. The land extends from Brighton Avenue to Excelsior Parade and has frontage and current vehicular access to both streets.

6. The site has an east west orientation with a slope that rises from about 1.3m AHD at Excelsior Parade to approximately 20.8m AHD. The site falls from this high point towards Brighton Avenue which it meets at approximately 13.2m to 16.8m AHD.

7. Topographically, the north eastern portion of the site is an elevated knoll of a small ridgeline which runs in a general north west – south east direction.

8. The location of the subject site is identified in the following aerial photograph:

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Adjoining the site to the north is No.6 Brighton Avenue, which contains nine two storey villas. To the south of the subject site is 131 Excelsior Avenue which contains a single detached dwelling.

The locality is generally characterised by a mixture of medium density residential to the north and low scale residential dwellings to the south. To the west of the site is a light industrial estate.

The site is in close proximity to and visible from Lake Macquarie.

Public submissions

12. During the conciliation phase of the proceedings the Court was addressed by a number of local residents. At the commencement of the Court proceedings a members of the public also addressed the Court. The following is a summary of issues raised in those submissions along with the written submissions received by the Council during the assessment of the application.

Concern that the development will:

1. have a devastating visual impact on scenic amenity of the locality;

2. have a detrimental visual impact on the view from Lake Macquarie;

3. dominate the currently vegetated ridgeline and remove 99% of the vegetation on the site;

4. result in the loss of flora and fauna habitat as well as destroy a wildlife corridor;

5. result in potential impacts to bird life;

6. be excessive in excessive bulk and scale;

7. be an over development of the site given its constraints;

8. increase traffic in local roads and concerns that the proposed vehicle ingress and egress points are unsafe;

9. compromise the existing residential amenity and character of the area;

10. result in a loss of view to the Lake from adjoining properties;

11. reduce the visual amenity of the outlook from adjoining properties;

12. result in overshadowing of adjoining properties with solar access to some units being reduced to below three hours;

13. result in erosion and siltation from excavation works and land clearing;

14. be contrary to the objectives of the residential zone which aims to maintain and enhance the residential amenity and character of the surrounding area;

15. result in excessive noise;

16. provide a precedent for a bulkier and more intense form of development in the area and damage the unique characteristics of the locality;

17. result in privacy impacts for the adjoining development to the north due to overlooking;

18. result in unmanaged construction impacts, especially dust generation.

Planning Controls:

13. The development application is integrated development pursuant to Section 91 (now section 4.6) of the Environmental Planning and Assessment Act 1979. This section specifies that all development within a mine subsidence district (excluding exempt development) is considered ‘integrated development’. The subject site is within a mine subsidence district. General terms of approval from the Mine Subsidence Board were received on 30 August 2016.

14. The development is within the mapped coastal zone and is subject to the provisions of State Environmental Planning Policy 71- Coastal Protection (SEPP 71). The aims of this policy relevant to the matters in dispute are:

(1)  This Policy aims:

(a)  to protect and manage the natural, cultural, recreational and economic attributes of the New South Wales coast, and

…

(e)  to ensure that the visual amenity of the coast is protected, and

…

(g)  to protect and preserve native coastal vegetation, and

..

(k)  to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area, and

..

15. At cl. 5 the policy states: In the event of an inconsistency between this Policy and another environmental planning instrument, whether made before or after this Policy, this Policy prevails to the extent of the inconsistency.

16. Pursuant to cl. 7 the following matters are to be taken into account by a consent authority when it determines a development application to carry out development on land to which this Policy applies.

The matters for consideration are the following:

(a) the aims of this Policy set out in clause 2,

(b) existing public access to and along the coastal foreshore for pedestrians or persons with a disability should be retained and, where possible, public access to and along the coastal foreshore for pedestrians or persons with a disability should be improved,

(c) opportunities to provide new public access to and along the coastal foreshore for pedestrians or persons with a disability,

(d) the suitability of development given its type, location and design and its relationship with the surrounding area,

(e) any detrimental impact that development may have on the amenity of the coastal foreshore, including any significant overshadowing of the coastal foreshore and any significant loss of views from a public place to the coastal foreshore,

(f) the scenic qualities of the New South Wales coast, and means to protect and improve these qualities,

(g) measures to conserve animals (within the meaning of the Threatened Species Conservation Act 1995) and plants (within the meaning of that Act), and their habitats,

(h) measures to conserve fish (within the meaning of Part 7A of the Fisheries Management Act 1994) and marine vegetation (within the meaning of that Part), and their habitats

(i) existing wildlife corridors and the impact of development on these corridors,

(j) the likely impact of coastal processes and coastal hazards on development and any likely impacts of development on coastal processes and coastal hazards,

(k) measures to reduce the potential for conflict between land-based and water-based coastal activities,

(l) measures to protect the cultural places, values, customs, beliefs and traditional knowledge of Aboriginals,

(m) likely impacts of development on the water quality of coastal waterbodies,

(n) the conservation and preservation of items of heritage, archaeological or historic significance,

(o) only in cases in which a council prepares a draft local environmental plan that applies to land to which this Policy applies, the means to encourage compact towns and cities,

(p) only in cases in which a development application in relation to proposed development is determined:

(i) the cumulative impacts of the proposed development on the environment, and

(ii) measures to ensure that water and energy usage by the proposed development is efficient.

17. Lake Macquarie Local Environmental Plan 2014 (LEP 2014) applies to the site. Pursuant to LEP 2014 the site is zoned R3 Medium Density Residential. Development for the purposes of ‘multi dwelling housing’ is permissible with consent in the zone.

18. The relevant objectives of the R3 zone are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To maintain and enhance the residential amenity and character of the surrounding area.

19. Pursuant to cl. 2.3(2) of LEP 2014 the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

20. Lake Macquarie Development Control Plan 2014 (DCP 2014) applies to the application.

21. At cl. 1.7 of DCP 2014 the plan identifies a number of guidelines to the DCP. It states: Guidelines are provided to supply detailed information on the technical requirements for specific matters. Included in the list of applicable guidelines is “Scenic Quality Guidelines”.

22. Controls for Development within Residential Zones are contained within Part 3 of DCP 2014. At cl. 1.3 the stated aims for development in residential areas are:

The aims of LM DCP 2014 for development in Residential Zones are:

1. To ensure development responds to the characteristics of the site and the qualities of the surrounding urban environment, or the desired future character.

2. To support the principles of Ecologically Sustainable Development. 3. To inspire innovative design for all forms of development within the residential zones.

4. To ensure development does not have adverse impacts on residential amenity

23. Relevant to these proceedings at cl. 2.2 DCP 2014 provides the following objectives and controls for scenic values.

Objectives

a. To ensure that the scenic values of the City are protected and enhanced.

b. To ensure that developments visible or adjoining the coastline, Lake Macquarie or ridgelines maintain and enhance the scenic value of these features.

Controls

1. A landscape and visual impact assessment is required for development identified in Table 1 unless specified by Council. A landscape and visual impact assessment must be prepared in accordance with section 7.3 of the Scenic Management Guidelines.

2. Developments must be designed and sited to complement their location through:

i. the retention of existing vegetation,

ii. incorporating appropriate landscaping,

iii. minimising cut and fill,

iv. building design and articulation compatible with natural context, and

v. colour and material selection.

24. The parties agree that by reference to Table 1 in cl. 2.2 the development requires a visual impact assessment.

25. Clause 2.12 of DCP 2014 states:

Objectives

a. To avoid and minimise impacts on native flora and fauna.

b. To protect and enhance significant flora and fauna, vegetation communities, and significant habitat on the site and surrounding development sites.

c. To protect and enhance ecological corridors and increase the connections between habitats.

d. To ensure rehabilitation of degraded areas.

Controls

…

4. Development should be designed to avoid impacts on native flora and fauna, and minimise any unavoidable impacts. Significant flora and fauna species, vegetation communities and habitat should be protected and enhanced through appropriate site planning, design and construction.

…

Council argues that objective (a)(d) and control (4) are relevant to the application.

26. Relevant to these proceedings at cl 2.19 DCP 2014 provides the following objectives and controls in relation to lot amalgamation in the R3 zone:

Definition: an isolated lot means an allotment that is bounded on all sides (excluding any road frontage) by existing (or approved) medium to high-density residential or commercial development that will preclude the development of the allotment beyond a dwelling house or dual occupancy dwelling or a two storey commercial building.

Objectives

a. To avoid isolated lots with limited development potential.

b. To support efficient development and increase floor space yields on amalgamated sites.

c. To encourage the consolidation of development lots to allow efficient use of land.

d. To minimise the number of driveway crossings from the street or lane.

Controls

1. Site amalgamation should not result in an isolated lot this is unviable for redevelopment to the scale and intensity desired for the locality.

2. Development that would result in the creation of an isolated lot must provide for a future extension incorporating the isolated lot or demonstrate that the isolated lot can be developed independently.

3. Development that would result in the creation of an isolated lot must be supported by documentation that demonstrates in writing that an offer to purchase has been made to the owner(s) of the isolated lot and the owner has refused to negotiate. A Licensed Valuer must base the offer on at least one recent independent valuation.

4. Development that would result in the creation of an isolated lot must comply with the Planning Principles established by the Land and Environment Court in Melissa Grech v Auburn Council [2004] NSWLEC 40, Cornerstone Property Group Pty Ltd v Warringah Council [2004] NSWLEC 189; Karavellas v Sutherland Shire Council [2004] NSWLEC 251; provide for a future extension incorporating the isolated lot, or demonstrate that the isolated lot can be developed independently.

27. The following provisions of cl. 3.6: Building Bulk are relevant to the appeal:

Objectives

a. To minimise the visual impact of development when viewed from adjoining properties, the street, waterways and land zoned for public recreation purposes.

b. To ensure future development responds to the desired future character of the area and that its bulk and scale is not excessive.

c. To provide adequate separation between buildings.

Controls

1. Building height, scale, and roof form must relate to the topography and the

…

5. The scale and massing of landscape planting must be adequate to reduce the visual bulk of development.

28. At Part 9 DCP 2014 provides controls for specific land uses. Section 11 of this part provides controls for Multi Dwelling Housing.

29. Cl. 11.1 Site Requirements has an objective “to ensure that Multi Dwelling Housing developments are located on sites with sufficient size and street frontage to accommodate the required building envelope, car parking, landscaping, and private open space”. The Council argues the application varies control “4: The development site must have a minimum width of 18 metres at that road frontage.”

30. Section 11 at cl. 11.5 contains provisions for landscaped area. It states:

Objectives

a. To enable landscape planting in the front setback areas that enhances the streetscape.

b. To enable landscape planting in the side and rear setback areas that enhances residential amenity.

c. To conserve significant vegetation.

…

Controls:

1. Development must provide a landscape area that is at least 10% of the total lot area.

2. An area must have a minimum width of 2 metres to be included in the landscape area calculations.

3. Where a multiple dwelling housing development is proposed to directly adjoin land zoned R2 Residential an additional landscaped area with a minimum area of 10% of the total lot area must be provided along the full length of the boundary with the R2 Residential Zone.

4. Pervious surfaces selected for the purpose of stormwater infiltration must be designed by a suitably qualified engineer.

Note: The landscaped area is in addition to the principal private open space requirement.

31. The relevant provisions of the “Lake Macquarie Scenic Management Guidelines” (the Guidelines) are detailed later in the judgement.

Expert Evidence

32. In line with the issues in dispute in the proceedings the parties engaged experts in arboriculture, visual impact, traffic engineering and town planning. Expert reports were filed in each of these disciples. I have read and considered these reports in the assessment of the application.

The experts for the applicant were:

1. Mr Ken Hollyoak – Traffic Engineering.

2. Mr. Paul Grech– Town Planning.

3. Mr John Atkins– Aboriculture.

4. Ms Stacey Brodbeck – Visual Impact.

The experts for the Council were:

5. Mr Craig McLaren – Traffic Engineering.

6. Mr Brian McDonald – Town Planning.

7. Mr Danny Draper – Aboriculture.

8. Mr. Noel Corkery – Visual Impact.

The issues:

33. The issues for the Court to determine in the proceedings are:

1. whether the proposed removal of trees within the site to facilitate the development is acceptable;

2. whether the impact of the proposed residential dwellings on the adjoining residential properties is acceptable; and

3. whether, by reference to Section 2.19 of DCP 2014, the development results in the isolation of the adjoining property (131 Excelsior Parade).

Is the proposed removal of trees within the site to facilitate the development acceptable?

34. Council argues that the development results in “the unacceptable loss of remnant vegetation” and proposes “limited landscaping treatment which will result in unacceptable adverse impacts to the character and high scenic value of the site and its contextual setting” (Exhibit 4).

What trees are to be removed?

35. It is Mr Draper’s evidence that “the preliminary arborists report recorded 218 trees on the site, 15 trees of high significance and proposed the retention of 35 trees including 7 trees of High Significance”. It is Mr Draper’s conclusion that “the removal of 183 trees from 218 trees will remove and diminish the natural bushland or vegetated character of the city” (Exhibit 10).

35. Mr Atkins’ states that 218 trees were recorded on site in the Preliminary Arborist Report. However two of the species are exempt under Section 2.13 of DCP 2014. He notes that following the finalisation of this report “an additional 8 young Corymbia Maculata – Spotted Gum, 6-13m high were recorded within the vicinity of the existing dwelling adjacent the site boundary”. Further he clarifies that tree 36 and 37 are a single tree, bifurcated from a short trunk. On this basis Mr Atkins concludes that there are 223 trees located on the subject site (Exhibit 10).

36. In oral evidence Mr Atkins’ confirmed that a hand held GPS unit was utilised to locate vegetation on the site for the purposes of the Preliminary Arborist Report and for the identification of trees for retention and removal (Exhibit B). He acknowledged this methodology has a margin of error of +/- 3m.

37. Further to the Preliminary Arborists Report the applicant has tendered a detailed site survey identifying surveyed tree locations and heights. The tabulated data within this survey nominates 215 trees within the boundaries of the site (trees 85 and 86 as well as 219-228 being located on adjacent sites). Based on this data the applicant nominates 31 trees for retention (Exhibit A).

38. The tendered landscape plan identifies documents 29 trees for retention (Exhibit A).

39. In the joint report Mr Draper argues that trees 21 and 22 (proposed for retention) should be excluded due to their proximity to the proposed pathway (Exhibit 11).

40. The joint report of the arboricultural experts and their oral evidence proceeds on the basis of the retention of 27 trees within the site.

41. As part of the joint conferencing of the town planning experts Mr McDonald prepared a composite plan utilising information from the arborist’s report and the architectural plans. The resulting plan is appended to the joint report at Appendix C. Following this analysis Mr McDonald concludes:

The consolidated map shows the high value trees shaded green. The arborist’s report states that trees 89, 104, 110, 118, 148, 194 and 217 are in the centre of the site and are unlikely to be retained; ringed orange on the consolidated map. When a transparency of this map is placed over the site disturbance map only trees 101, 104 and 165, shaded darker green are outside areas of disturbance – 3 high value trees. Of the other trees shown on the arborist’s report maps about 11 trees (shaded yellow) are situated outside the area of disturbance.

(Exhibit 6)

43. On this basis Mr McDonald concludes that the level of disturbance (excavation, fill and construction) will impact more trees that the number nominated by the applicant.

44. Mr McDonald concludes that the application plans “provide no reliable information about which high value trees and other trees are proposed by the applicant for retention causing uncertainty about the outcome on the site”. Further he concludes that based on his analysis “at best 3 high value trees and 11 other trees will be retained which equates to 6.28% of the trees on this visually prominent ridgeline” (Exhibit 6).

45. In the Councils Statement of Facts and Contentions they assert that Trees 24, 29, 44, 102, 106, 108, 109, 122, 123, 124, 125, 159, 163, 164 and 209 (all proposed to be retained) cannot be retained “without a redesign of the proposal” (Exhibit 4).

46. It is Mr Draper’s evidence that:

No retained trees should have a sealed driveway to a lawfully used building (that is not exempt or complying development) and is on the same allotment as the building, constructed within 3 metres of the edge of trunk to protect retained trees from future removal and provide sufficient space for root plate development without future conflict with the built structures. Neither of the 2 Arboricultural reports prepared for the site contained an overall site plan showing the locations and associated numbering of all the trees assessed. The Landscape Plan also did not show the numbers of retained trees. This has hindered the assessment of impact on the trees proposed to be retained. The development should be refused until such details are provided and can be assessed to determine impact on trees.

(Exhibit 11)

47. Mr Atkin’s disagrees with the preceding assessment and argues the trees nominated to be retained will not be affected by earthworks as “all proposed level changes will be well beyond the structural root zones and largely beyond the tree protection zones for each tree” (Exhibit 11).

48. It is Mr Grech’s evidence that the reasonableness of any tree removal needs to be considered in the context of the zoning of the site. He argues:

… it is reasonable to expect that to achieve the planned outcome for the site zoned for medium density housing, not all existing trees can be retained. This does not mean that no trees should be retained, but there should be a balanced outcome that retains a reasonable number of trees with higher retention value in locations that consider internal and external design parameters.

The Arborist Report (Treeology Pty Ltd 23 August 2015) identifies 218 trees on the site of which 15 have high retention value. The proposal involves the retention of 35 trees (including 7 trees of high retention value) out of the 218 existing trees (16%). As noted above the trees to be retained are in logical positions that provide clusters that would be visible from the Lake and continue to mark the ridgeline and are mostly in common open space areas away from service lines.

Those trees identified of high retention value to be removed are mostly located towards the centre of the site. If all trees of high retention value were to be retained the ability to satisfy the planned intent of the site to provide medium density housing would be significantly diminished. Accordingly, I am of the view that the proposal provides an acceptable outcome that balances both considerations.

(Exhibit 6)

Are the trees remnant vegetation or ‘bushland’?

49. Cl. 2.13 of DCP 2014 “Preservation of Trees and Vegetation” at objective (b) seeks to maintain the natural bushland or treed character of the City.

50. The experts disagree whether the vegetation on the site is appropriately described as “remnant vegetation” or “bushland”.

51. Mr Draper argues that the site “is highly disturbed, but contends that it contains remnant vegetation as fragmented bushland comprising an assemblage of tree species consistent in appearance and floristics with adjacent bushland, and coexists on the site in a disturbed form with exotic weeds, ground covers and cultivated turf grass” (Exhibit 11).

52. Mr Atkins argues that whilst the site contains mostly trees of native species common to the area these trees are not remnants of original vegetation. He argues: “It is my experience that tree species of Spotted Gum (Corymbia maculata) and Ironbark (Eucalyptus paniculata), typical of the plant species on the site, have very large trunk diameters consist with the era prior to (the) development of the site”. Using the survey undertaken in preparing the Preliminary Arborist Report (Exhibit B) he concludes that “… more than half of the trees on the site are not remnants of original vegetation but are new growth or regrowth from clearing after development.” (Exhibit 11)

53. Further Mr Atkins argues the vegetation on the site does not contain trees nominated on the significant tree register and is not “bushland”. He argues:

The vegetation present is mostly regrowth from previous clearing with invasive species present throughout the site. Much of the site is cleared and mown, a dwelling is present and access via vehicles has been developed many years ago. I state that this site was most likely previously cleared of bushland for the purposes of use back when the dwelling was built. Regrowth from stumps with small trunk diameters constitutes most of the tree forms on the site.

…

Typically in bushland a range of shrubs and understorey tree species are found that are clearly no longer present.

…

The site is no longer bushland and while native species are present, so to are numerous exotic and weed species.

(Exhibit 11)

54. In acknowledging that LEP 2014 and DCP 2014 provide no definition of “bushland”, in his oral evidence Mr Atkins provided the following description of bushland based on his expertise: Vegetation is predominately native species; has a range of tiers or layers categorised as grasses, shrubs or intermediate species and a dominant canopy layer.

55. For the subject site Mr Atkins considers that the level of disturbance is also a relevant consideration in determining whether the vegetation on the subject site is “bushland”.

56. RPS Australia East Pty Ltd has prepared an ecological assessment of the subject site. This report describes the flora as follows:

A total of 55 flora species were identified within the study area during field surveys including 30 exotic and 25 native species.

The canopy layer was dominated by native species including Corymbia maculata (Spotted Gum) (dominant), Eucalyptus paniculata (Grey Ironbark) and Eucalyptus acmenoides (White – Mahogany) in the canopy.

The dominant species in the shrub layer was Polygala myrtifolia, with other non-native species sporadically occurring including Lantana camara (Lantana) and Cinnamomum camphor (Camphor laurel). Pittosporum undulatum (Sweet Pittosporum) intermittently occurred in the shrub layer.

The ground later displayed a high level of non-native species, primarily garden plants,

…

(Exhibit B)

57. In oral evidence Mr Atkins acknowledged that the ecological assessment identifies three characteristic layers to which he refers, but maintains his view that the vegetation on the subject site is not “bushland”. He argues that whilst a dense tree cover of native species remain on the site the rest of the vegetation is highly disturbed and are the remains of a private garden (Exhibit 11).

58. In the alternative Mr Larkin concludes: “I agree the site is highly disturbed, but contend that it contains remnant vegetation as fragmented bushland comprising an assemblage of tree species consistent in appearance and floristics with adjacent bushland, and coexists on the site in a disturbed form with exotic weeds, ground covers and cultivated turf grass” (Exhibit 11).

How is retention value assessed?

59. Within the planning documents relevant to the proceedings there is no specific methodology or criteria for the assessing trees or giving a ranking to trees for retention.

60. As an appendix to the Preliminary Arborist Report Mr Atkins details the steps he has taken to determine the retention values assigned to individual or groups of trees. These steps he took broadly are: to determine sustainability (or remaining useful life expectancy); assess the landscape significance of the trees; and finally apply a matrix of the two criteria to determine and overall retention value.

61. With relevance to these proceedings to applying these criteria to have a “high retention value” a tree would need to have:

• a sustainability value of more than 15 years and a landscape significance rating of very high; or

• a sustainability value of more than 40 years and a landscape significance rating of high.

(Exhibit B)

62. The criteria for very high, high and moderate landscape significance utilised by Mr Atkins are extracted below (emphasis added):

…

2. Very High

•The tree has a strong historical association with a heritage item (building/structure/artefact/garden etc) within or adjacent the property and/or

• exemplifies a particular era or style of landscape design associated with the development on the site; or

• The tree is listed on Council’s Significant Tree Register; or

• The tree is locally indigenous and representative of the original vegetation of an area and the tree is located within a defined Vegetation Link/ Wildlife corridor or has known wildlife habitat value;

• The tree has a very large live crown size exceeding 200m²; a crown density exceeding 70% crown cover (normal-dense), is a very good representative of the species in terms of its form and branching habitat or is aesthetically distinctive and makes a positive contribution to the visual character and amenity of the area.

3. High

• The tree has a suspected historical association with a heritage item or landscape supported by anecdotal or visual evidence; or

• The tree is a locally indigenous species and representative of the original vegetation in the area; or

• The tree has a large live crown size exceeding 100m²; and the tree is a good representative of the species in terms of its form and branching habit with minor deviations from normal (eg. crown distortion/ suppression) with a crown density of at least 70% crown cover (normal)); and

• the subject tree is visible from the street and surrounding properties and makes a positive contribution to the visual character and the amenity of the area.

…

(Exhibit B)

63. Council argues that Mr Atkins has applied the above criteria narrowly, especially in relation to the application of the last dot points highlighted in the preceding.

64. Within the Preliminary Arborist Report (Exhibit B) the fifteen high retention value trees are identified as Trees 10, 14, 29, 89, 101, 102, 104, 110, 118, 148, 165, 194, 212, 217 and 218. The proposal seeks to retain five of the high retention value trees.

65. During the hearing Mr Atkins’ prepared a supplementary report that tabulated all the trees assessed as having high retention values indicating those to be retained or removed (Exhibit C):

66. Further the location of these retained high retention value trees were indicated in the photomontage (Exhibit C):

67. It is Mr Draper’s evidence that the following trees in standards are also significant for ‘their prominence, dimensions and potential future growth to support other members of the stand..’:

- Trees 43-53 (save for 45 which has a decayed trunk)

- Trees 70-78 (save for 71 which has borer wounds)

- Trees 99, 100, 43-52, 70-78, 111-121, 129, 133, 135, 137, 156, 150, 158-165 and 209

- the stand of 15 trees in the south eastern corner of the site adjoining the rear and driveway of 9 Ambrose Street.

(Exhibit 11)

68. In response to the identification of the above additional significant trees Mr Draper states:

I do not contend the observations and knowledge of Mr Atkins. However, I maintain caution in retaining trees formerly in stands once isolated by clearing surrounding trees.

(Exhibit 11)

Scenic Management zone:

69. The applicant’s Landscape and Visual Impact Assessment notes that the site is located within the ‘Toronto Landscape Setting’. Applying the Guidelines the assessment notes that the subject site is not listed as a visually sensitive landscape. However the site is identified as a place with potentially a high visibility and visual sensitivity due to it being visible from Lake Macquarie (Exhibit B).

70. Council contends that the guidelines that apply to the Coal Point Landscape setting are also relevant to the proceedings on the basis of the following:

• The Guidelines indicate that the site is located at the southern end of Toronto Landscape Setting.

• The continuous canopy formed by trees on the ridge of the subject site forms part of the southern edge of the visual catchment of Toronto. Given that the ridge provides the visual divide it may have been a more appropriate boundary.

• The current boundary between Toronto landscape setting and Coal Point landscape setting is located along Ambrose Street, at the base of the slope that runs down from the ridge.

• The descriptive characteristics of the Coal Point Landscape Setting provide a better correlation with the characteristics of the subject site.

71. The visual impact experts agree that “the tree covered ridge of the site does form part of the visible divide between the Toronto and Coal Point Landscape Settings” (Exhibit 8).

72. It is the evidence of Ms Brodbeck that the local ridgeline on the subject site has not been identified in the Guidelines as a ‘main ridgeline’ and importantly the Guidelines identify the higher ridge further to the south of the site as the relevant ridgeline. It is her evidence that the development achieves the relevant guidelines of the Toronto Landscape Setting: that buildings are of a scale that does not dominate views from the lake nor breach the tree-line of surrounding ridgelines (Exhibit 8).

73. In the alternative it is the evidence of Mr Corkery that in applying the Guidelines it is more appropriate to conclude that the boundary between the two landscape settings would have been more accurately drawn along the ridge within the subject site rather utilising than Ambrose Street. Further he argues that the impact of the development on views from within the Coal Point Landscape setting is relevant. He relies on the identification of the Coal Point Landscape within the Guidelines as a “visually-sensitive landscape” and the objective of the relevant guidelines to retain “existing vegetation which provides a dominant backdrop to views from the lake” (Exhibit 5).

What is the visual impact of the development?

74. The visual impact experts disagree as to the appropriate classification of the visual effects of the proposed medium density development.

75. The applicant has prepared a Landscape and Visual Impact Assessment to address the potential visual effects of the proposed medium density development. This report concludes:

“Overall when taking into account the level of visual impact on the site itself, and all the surrounding viewpoints, it is considered that there would be a moderate impact as a result of the proposed development in the short term, with the retention of four large trees, including three at the higher part of the site, meaning that part of the canopy would remain and be seen above the dwellings from the outset.

Over time, the impact level would reduce to minor impact as familiarity with the change increases and the new planting grows. Nor further mitigation has been recommended.

Overall the level of impact seems acceptable considering the urban nature of the surrounding area and context of planned increased densities.”

(Exhibit B)

76. In the joint report Ms Brodbeck confirms that the basis of her analysis is an understanding that :

1. the updated arborists information confirmed that “31 trees were to be retained on the ridge, with 26 of those trees estimated to be over 10m high (ie. over the height of the development)” (Exhibit 8); and

2. nine Spotted Gums are proposed as part of the revegetation of the site.

77. The Lake Macquarie Scenic Management Guidelines (the Guidelines) provide classifications that describe the extent of landscape and visual impact at Section 7.3.1. The relevant classifications are provided below:

…

Moderate – The proposal may form a visible and recognisable new element within the overall scene that affects and changes its overall character.

Severe – The proposal forms a significant and immediately apparent part of the scene that affects and changes its overall character.

…

(Exhibit 5)

78. Relevantly the Guidelines describe the following as the approach to determining the appropriate classification of impact:

…

Assess the likely landscape and visual impacts - Assess the likely landscape and visual impacts of the proposed development, with particular reference to:

• Direct site impacts - magnitude of landscape and visual change to the site itself (referring to vegetation removal, landform change, scale of the development, change to the landscape character and visual contrast with surroundings).

• Surrounding viewpoints - magnitude of landscape and visual change to surrounding viewpoints considering the viewpoint’s characteristics (i.e. the type of viewer and whether the change would affect transient and/or permanent viewers) and consider night lighting effects where relevant. Undertake this assessment for viewpoints in the range of: o close foreground (less than 300m); o foreground (300m to 1km); o mid-ground (1 – 5km); and, o distant (over 5km).

• For each viewpoint, describe the magnitude and type of visual change, approximate distance and an assessment of the level of impact to that viewpoint (using the impact terminology defined in Section 7.3.1). For certain development types the effect of staging, or time, should also be discussed, such as the effect both before and after any proposed landscape or rehabilitation works may have had time to mature.

• Mitigation measures – recommend any further mitigation measures that could be applied to reduce any identified impacts to the site or viewpoints to it, then if relevant re-assess the potential level of impact considering the proposed mitigation measures. The report must also identify why certain ameliorative measures were not accepted (for example a reduction in height, increased setbacks, or relocation).

• Alternative mitigation measures - address why certain ameliorative measures were not included that may have reduced the potential impact (i.e. reduction in height, increased setbacks or relocation).

….

(Exhibit 5)

79. In her oral evidence Ms Brodbeck maintained her view that the visual impact of the proposed development is appropriately categorised as moderate.

80. In the alternative it is Mr Corkery’s evidence that “the visual impact of removing most of the trees from the ridge top will create a severe impact, which is defined as: “The proposal forms a significant and immediately apparent part of the scene that affects and changes its overall character”.(Exhibit 5)

81. Mr Corkery argues that a “major aspect of the scenic value of the tree covered ridge is the continuity and density of tree canopy”. It is his evidence that: “The removal of 86% of this tree canopy and construction of 2 storey residential buildings on the ridge top will in my opinion substantially reduce the scenic value of the area, particularly in views from Lake Macquarie” (Exhibit 8).

82. In oral evidence Mr Corkery explained how he applied the Guidelines to classifying the impact. He was asked by Mr Larkin of his interpretation of “within the overall scene” from the moderate impact descriptor. It was his evidence that he applied “overall scene” to be the view available to the site from key viewing points, and those points combined provides the overall scene of the site (transcript page 41, paragraph 30). He assessed and categorised the impact of the development on this overall scene.

83. To assist in the assessment of the visual impact the applicant prepared a series of photomontages of the proposed development. These were prepared from “surrounding key view points” and include: views from Brighton Avenue on approach the site; a view from Excelsior Parade; and a view from the corner of Excelsior Parade and Ambrose Street (Exhibit 8).

84. Mr Corkery argues the assessment of the visual impact of the development is insufficient for the following reasons:

1. the data provided with the images indicates the use of a focal length of 27mm was used to prepare the images. Mr Corkery argues that “the generally accepted standard camera focal length that corresponds to the human eye is about 50mm. By using a wide angle lens the proportion of the total image occupied by the canopy of trees on the site is less than with a standard lens” (Exhibit 8);

2. none of the photomontages presented include views of the proposed development from Lake Macquarie or Laycock Street Public Reserve. Mr Corkery argues that the Lake is identified in the Guidelines as being of scenic importance to the area and assessment of the view impact from this location is required;

3. the development application package lacks integration which results in uncertainty of tree retention and the location of retained and proposed trees within the subject site.

85. As an attachment to their joint report Mr Corkery has provided the Court with photographs from Lake Macquarie with the location of the site and the relevant vegetation indicated. On the basis of this material it is Mr Corkery’s evidence that the visual impact of the proposed development from the Lake will be severe. Within the Guidelines a severe impact is defined as: “the proposal forms a significant and immediately apparent part of the scene that affects and changes its overall character” (Exhibit 5).

86. It is Ms Brodbeck’s evidence that photomontages from the water were not able to be produced due to the lack of survey data and the inability to isolate the specific canopy trees on the site from those adjacent. It is her assessment that the view from Laycock Street reserve is a minor local viewpoint and in this location the primary view is to the Lake not the foreshore. In relation to the use of the wide angled lens, it is Ms Brodbeck’s view that this was necessary to capture the majority of the site within the image.

Landscape Replacement planting

87. It is the evidence of Mr Grech that the proposed development responds to the ridgeline that extends through the R3 zoned land by providing a significant break between the dwellings. It is his evidence that the provision of this break allows for the retention and planting of larger indigenous trees (Exhibit 6). In concluding the development is acceptable he relies on the landscape plan prepared for the application which includes 41 trees to be planted as part of the development.

88. Further Mr Grech argues that the development achieves compliance with cl. 11.5 of Part 9 of DCP 2014 which requires 10% of the site to be landscaped and an additional 10% provision of landscaping due to the site being located at a zone interface. He notes that s79C(3A) of the Act (now 4.15(3A)(a)) provides a requirement that a standard more onerous than the provision cannot be required (Exhibit 6).

89. It is Mr McDonald’s evidence that the replacement planting proposed will not result in a reinstatement of the canopy trees removed. In particular he raises concern with the species selected for new planting on the southern side of the site which he argues are low understorey trees that would not compensate for canopy loss.

90. Further Mr Draper argues that the 14 Corymbia maculata – Spotted Gum proposed as compensatory planting are insufficient. It is his evidence that for the proposed replacement trees to be ‘compensatory plantings’ in such a prominent location they need to be advanced specimens of approximately 6m high and 3.5m wide to compensate for the tree removal proposed.

91. Mr Atkins disagrees with the assertion that advanced planting is required. It is his evidence that in the delivery, planting and maintenance of the trees smaller (45L size) specimens present a lower risk overall of failure and are more effective option.

92. In the alternative Mr Draper acknowledges that planting the 45L will have less impact due to the need to excavate a smaller soil volume, but he argues that the positive impact of replacing the canopy will also be reduced.

93. In oral evidence Mr Draper acknowledged that it would take in the order of 18 months or thereabouts for a 45 litre tree to achieve the same sort of height as the 400 litre trees, subject to good growing conditions.

Submissions

94. In closing submissions both parties referred the Court to BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 at [115-119]. I have reproduced the relevant sections below:

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.

119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project.

95. Mr Larkin submits that in approaching the assessment of the application the Court is required to consider the context in which the controls operate. In particular, applying BGP Properties v Lake Macquarie City Council, he argues that weight must be given to that zoning in the reading of the controls and determining the appropriateness of development of the site. For example he argues that in relation to an assessment of the development against the aims of SEPP 71:

…what one must judge is whether type, bulk, scale, and size is appropriate for this location and this location inevitably is impressed with and influenced by the zoning

…

(Transcript page 74, paragraph 35)

96. Mr Larkin submits that the same approach is relevant to the assessment of visual impact and the application of the Guidelines. In short he argues that the threshold of acceptability of impact is correlated with the zoning of the land:

This (the Guidelines) also was a document that preceded the zoning decisions and that, we would suggest, should be construed in such a way as to support them and we repeat many of the submissions that we have made in relation to how one should understand and assess - or understand terms such as amenity, understand term such as impact and so on, that which is acceptable impact in a town centre will be radically different from that which is an acceptable impact in, for example, an environmental protection zone, and we again see that there are features of the guidelines which suggest that this is the appropriate way.

(Transcript page 89, paragraph 25)

97. Mr Larkin submits that the Courts focus in determining, in particular the visual impact of the development, should be on the end product following the completion of the works and revegetation. He acknowledges on the evidence of the experts that the site will look different but argues that it will still have the same fundamental elements. He argues these are: canopy cover containing many trees with a medium-density development nestled underneath. He submits that ultimately the development approach to the land represents a low density outcome for the R3 Medium Density zone.

98. Further Mr Larkin submits that Mr Corkery has applied the Guidelines incorrectly in assessing the visual impact of the development. He submits that the word “overall scene” in the description of moderate impact means in assessing each viewpoint the Guidelines direct you to look broadly at the visual context of the proposal as a member of the public is more likely to do.

99. Mr Larkin argues that the evidence of Mr McDonald and Mr Corkery should not be relied on by the Court on the basis that they have placed no weight on the zoning of the site or argue that the zoning is incorrect. It is his submission that in doing “so the yardsticks by which the Council's experts have considered the matter, in effect, have been disconnected from the proper yardsticks that ought to be used in order to assess impact in this zone and in this context..” (transcript page 92, paragraph 35).

100. Further Mr Larkin argues that the evidence of Mr Corkery should be discounted due to his erroneous application of the assessment framework in the Guidelines. Mr Larkin argues that Mr Corkery’s approach of aggregating the assessment of visual impact at each view point to determine the impact on the “overall scene” has the effect of amplifying the assessment of impact.

101. In regards to the sites R3 Medium Density Residential zone it is Mr Larkin’s submission that Council has recently decided that this land ought to be zoned for medium-density residential development and that this decision was informed by the provisions of SEPP 71, the Guidelines and policy considerations in relation to visual impact. Applying BGP Properties v Lake Macquarie City Council he argues that significant weight should be given to the zoning in determining whether the development is appropriate for the site.

102. In response to the evidence of Mr Corkery and the submission of Dr Smith that the Coal Point scenic management zone is relevant to the assessment of the application Mr Larkin argues:

1. that a reading of section 2.4 of the guidelines clarifies that the maps are intended as a general guide to identifying a site’s context;

2. that a literal application of the words in the Coal Point Scenic Management Guidelines would result in it applying to the whole peninsula, eliminating the existing Kilaben Bay area scenic management zone;

3. that there is a general correlation between the boundary of Toronto and Coal Point scenic management zones and the zoning boundaries when the map boundary is applied. This consistency gives weight to the location of the boundary being deliberate.

103. Mr Larkin argues that in the assessment of the application under s79(c) (now 4.15(c)) of the Act weight should be given to the zoning of the land and when read in their proper context the impacts of the development are acceptable.

104. It is Dr Smith’s submission that: the acknowledgement of Mr Atkins that the amount of tree removal proposed would not enhance the visual character; in conjunction with the evidence of Ms Brodbeck that the proposal would have a moderate visual impact; results in a conclusion that the proposal development breaches the aims of SEPP 71. In particular he submits that the development is inconsistent with (e)  to ensure that the visual amenity of the coast is protected. He notes the aims of SEPP 71 are a mandatory matter for consideration prior to the determination of the application.

105. Further he argues that on the evidence the development is contrary to the matters for consideration under cl 8 of SEPP 71. In particular he submits that the application is inconsistent with the following matters for consideration:

(a) the aims of the Policy at Clause 2

…

(d) the suitability of development given its type, location and design and its relationship with the surrounding area,

(e) any detrimental impact that development may have on the amenity of the coastal foreshore, including any significant overshadowing of the coastal foreshore and any significant loss of views from a public place to the coastal foreshore,

(f) the scenic qualities of the New South Wales coast, and means to protect and improve these qualities,

…

106. He argues that in taking these matters into account the Court, pursuant to cl 4.15 of the Act (1)(a)(i), should conclude that the development that the development is inconsistent with the provisions of SEPP 71 and warrants refusal.

107. In reply to Mr Larkin, Dr Smith argues that the principles established in BGP Properties v Lake Macquarie City Council support an approach that the acceptability of development types permissible under a specific zoning is subject to site constraints, the provisions of the relevant planning instruments and any environmental impacts (refer [117] BGP Properties Pty Ltd v Lake Macquarie Council). He submits that the case does not establish that zoning creates an entitlement to develop the site for any of the purposes identified in the zone.

108. Dr Smith argues that there are eight permissible residential development types within the zone that are permissible on the subject site. He concludes on the basis of the evidence that the site constraints dictate that a medium density development is unsuitable for the subject site in the form proposed by the applicant (transcript page 109, paragraph 25).

109. Applying the principles established in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at [92] Dr Smith argues that the Guidelines should be given significant weight in the assessment of the application. He notes that the Guidelines have been in force since 2001, were revised to be consistent with the new planning instruments in 2013 and following public exhibition and consultation were adopted by the Council. He submits that the Guidelines meet the tests of the planning principal.

110. Dr Smith disagrees with Mr Larkin that the process of visual assessment is subjective. He submits that the objective of the Guidelines is to detail a methodology and require rigour and consistency in the assessment of visual impact arising from development. Further he argues that the ‘exact intent of the guidelines is to allow the assessment to come to a more objective conclusion that can give the decision maker confidence in the outcome’ (transcript page 102, paragraph 20).

111. Dr Smith maintains that in applying the Guidelines regard should be had to the Coal Point scenic management zone. He relies on Marina Bay Developments Pty Limited v Pittwater Council [2007] NSWLEC 41 at [18] which argues that a ‘Policy is subordinate legislation and not drafted with the particularity or specificity of a statute: it should not be construed in a strict or over-technical way but rather in a practical, reasonable and common sense way’. Dr Smith submits that the principal established in this case is supported by cl2.4 of the Guidelines which states: “The maps are intended as a general guide to identify a site’s context, and therefore should be used as such”.(Exhibit 5)

112. Dr Smith notes that in cross examination Ms Brodbeck accepted that the proposed development would not meet the desired future character Scenic Management Guidelines for the Coal Point scenic management zone (transcript page 104, paragraph 25). Dr Smith notes that a number of residents who addressed the Court also expressed concern in relation to impact on scenic amenity of the locality arising from the proposed development.

113. On the proceeding basis Dr Smith argues the application warrants refusal pursuant to cl 4.15 of the Act (1)(b) and (e).

114. Further Dr Smith submits that the Court has insufficient information in relation to the identification and proposed retention of significant trees on the subject site. He argues that: as a result of the additional information provided by Mr Atkins in Exhibit C; and his agreement in oral evidence that some trees identified as having moderate retention made a positive contribution to the visual character of amenity of the area; the number of high retention trees nominated by the applicant is incorrect.

115. Dr Smith argues that applying the criteria utilised in the preliminary arborist report (refer paragraph [622]) the trees identified as making a positive contribution to the visual character of amenity of the area should be nominated as having a high retention value.

116. Dr Smith also notes that Mr Atkins confirms that the moderate retention value trees were only located by GPS which may affect the accuracy of their positioning on the architectural and landscape plans.

117. On the basis of the preceding Dr Smith argues there is uncertainty in relation to the direct impacts that will arise from the development and whether the assessment undertaken by the experts has been informed by accurate data and information.

118. Finally Dr Smith submits that ‘if the Court did have a proper site analysis that identified the amount of high value retention trees that are depicted in figure 3, plus recognition of the view corridors, plus proper recognition of the 15 to 20 degree slope, plus recognition of the ridge line, plus recognition of the visual character and visual impact from the lake’ the Court would be in a position to determine if the development proposed was suitable for the subject site.

Findings

119. Central to the proceedings, and an assessment of the suitability of the proposed development against the relevant planning instruments, are the issues of tree removal and retention. I accept the evidence of Mr McDonald Mr Draper and the submission of Dr Smith that there is inconsistency and uncertainty in relation to the assessment of significance of the existing trees and the tree retention proposed for the site. I have formed this conclusion on the following basis:

1. There is inconsistency between the documentation before the Court in the identification of the number and location of trees to be retained.

2. I am not satisfied that the visual impact assessment undertaken by Ms Brodbeck reflects the retained trees nominated by Mr Atkins in Exhibit C (refer paragraph 655). Ms Brodbeck’s assessment is based on the retention of 31 trees on the ridge of the site, this exceeds the total number of trees agreed by the arborists as retained across the whole of the subject site (refer paragraph 411);

3. I do not accept the evidence of Mr Grech that the retained trees are in logical positions that provide cluster that would be visible from the lake and continue to mark the ridgeline.

4. I accept the evidence of Mr Draper that there is insufficient detail provided to assess the impacts of the proposed works on trees proposed to be retained.

5. I accept the oral evidence of Mr Atkins that trees 34-38, 39-43, 47, 106-109, 122 and 125 are visible from the street and surrounding areas and make a positive contribution to the visual character and amenity of the area. By reference to the Preliminary Arborist’s report in Exhibit B I am satisfied that if the Landscape Significance of these trees is allocated as Moderate at least some of these trees would be assessed in the final matrix as having high retention value. I have formed this conclusion following a review of Appendix 3 of the report which identifies that these trees have similar characteristics under Age Structure and Health as those identified as having high retention value.

6. I accept the submission of Dr Smith that as a result of the evidence in the proceedings the nomination of “high retention value” trees by the applicant is likely to be incomplete.

120. I note the reliance of Ms Brodbeck on the retention of 31 trees on the ridge, of which she estimated 26 to be 10m high in concluding the development would have a moderate visual impact (refer paragraph[76]). Given this inconsistency I have placed reduced weight on her conclusions of a moderate visual impact arising from the development.

121. I have also placed reduced weight on the photomontages prepared by the applicant as representing the visual impact of the development. My reasoning is as follows:

1. the experts agreed in their oral evidence that the Guidelines reference the use of a 50mm focal length and that this parameter is the generally accepted standard as best representing what the natural eye sees (transcript page 11 and 12).

2. the material provided by the applicant comparing the influence of focal length on the photograph used for the photo montage contains a number of photos with varying focal lengths. However the photos were not taken at the same time or from the same location making any comparison of little value.

3. Mr Larkin submits that in assessing the visual impact of the development I should give weight to the final development in its completed and landscaped form. However the photomontages do not include an indication of the potential ameliorative effect of the replanting proposed.

122. I accept the evidence of Mr Corkery at paragraph [84] that a photomontage view of the development from the Lake would assist in understanding the developments visual impact. I also accept that the lack of certainty in relation to tree retention and replanting hampers the ability to assess with certainty any long term visual impact that would arise from the development.

123. In my assessment it is clear from photomontage, a review of the plans and the site inspection that the application proposes insufficient retention of canopy trees, especially on the ridge that transverses the site to ameliorate the visual impact of the development. On the basis of the evidence before the Court I do not accept the submission of Mr Larkin that at completion the development will have the same fundamental elements or characteristics or that it will present as a medium-density development nestled underneath canopy trees. I accept the evidence of Mr Draper that the replacement planting proposed is insufficient in number.

124. Equally, following an assessment of the photographs of the site provided by Mr Corkhill (refer paragraph [85]) I do not accept the evidence of Ms Brodbeck that the development achieves the relevant guidelines of the Toronto Landscape Setting, namely to not dominate views from the Lake or breach the tree line of surrounding ridges.

125. There is a strong consistency within the submissions received from the public. Many raise concern about the visual impact of the proposed development on the locality and in particular the impact on scenic amenity of the proposed tree removal. I have taken these submissions into consideration in the assessment of the application.

126. I am satisfied that pursuant to s 4.15 of the Act (1)(b) and (e) the detrimental impacts of the tree removal associated with the development are sufficient to warrant refusal of the application.

127. On the basis of the preceding I also find the impact of the proposed development on the visual amenity of the locality sufficiently detrimental to warrant refusal of the application pursuant to s 4.15(1)(b) and s 4.15(1)(e) of the Act

128. SEPP 71 elevates the relevance of context along with the subject sites location in proximity to Lake Macquarie and at the end of a local ridgeline.

129. The site is subject to a number of planning controls that give additional emphasis to its site design, context and visual setting.

130. One aim of SEPP 71 seeks "to ensure that the visual amenity of the coast is protected" (cl 1(e)). Further the relevant matters for consideration (cl. 8 of SEPP 71) include "the suitability of development given its type, location and design and its relationship with the surrounding area" (cl 8(d)). These relevant matters need to be assessed in conjunction with the zone objectives in determining the suitability of the site for the development proposed (s4.15(1)(c) of the Act).

131. The Residential R3 zone objectives provide generally uncontroversial objectives, such as “provide for the housing needs of the community within a medium density residential environment." (objective (a)) however objective (d) seeks to “maintain and enhance the residential amenity and character of the surrounding area”.

132. In relation to visual amenity, cl 2.2 of DCP 2014 has the following relevant objectives:

a. To ensure that the scenic values of the City are protected and enhanced.

b. To ensure that developments visible or adjoining the coastline, Lake Macquarie or ridgelines maintain and enhance the scenic value of these features.

133. Cl. 2.13 of DCP 2014 “Preservation of Trees and Vegetation” at objective (b) seeks to maintain the natural bushland or treed character of the City.

134. Further as the Lake Macquarie Scenic Management Guidelines has been exhibited and adopted by Council, I accept that it is a relevant consideration in regard to this appeal as a policy adopted by Council (Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 [92]).

135. It is clear from all these documents that the strategic intent of the Council is the preserve the character of specific localities within the Lake Macquarie area and maintain and enhance the scenic value of its natural features.

136. There is a range of the planning controls and site constraints that influence development on any site. These may have the effect of “reading down” the yield that would otherwise be possible on the site if zoning (or the principal development standards) in the LEP were relied on in isolation. This is not unique to the subject site and is consistent with the approach that has been taken by the Court in the consideration of other matters where the maximum achievement of development standards is affected by site constraints such as heritage: Grigorakis v Bayside Council [2016] NSWLEC 1573 at [35].

137. I do not accept the evidence of Mr Grech that the current application represents an appropriate balance between the planned intent of the site to provide medium density accommodation and tree retention. I am not satisfied that I am of the view that the proposal provides an acceptable outcome that balances both considerations.

138. Applying BGP Properties Pty Limited v Lake Macquarie City Council I am satisfied that in the circumstances of this case the subject proposal results in unacceptable environmental impacts. I find that the proposed development fails to meet the objectives of the R3 zoning to maintain or enhance the residential amenity and character of the surrounding area.

139. I accept the submission of Dr Smith that the principles established in BGP Properties Pty Limited v Lake Macquarie City Council support an approach that the development types permissible under a specific zoning are subject to site constraints, the provisions of the relevant planning instruments and any environmental impacts being acceptable. Given the proceeding findings in this matter whilst I have given the recent zoning of the site weight in my considerations I find that the development, if approved, would result in unacceptable environmental impacts.

140. However I do not accept the assertion of Mr McDonald that the R3 zoning of the subject site is of itself inappropriate (refer Exhibit 7). The provisions in SEPP 71 and the more general planning provisions in LEP 2014 and DCP 2014 all apply and need to be considered in the preparation of a development application.

141. I find pursuant to s 4.15(1)(c) of the Act that the site is unsuitable for the development proposed and warrants refusal.

Orders:

142. The orders of the Court are:

1. The appeal is dismissed;

2. Development application DA/1243/2016 for demolition, tree removal, lot consolidation and the construction of nineteen dwelling houses at 2 Brighton Avenue and 133 Excelsior Parade, Toronto is refused.

3. The exhibits are returned with the exception of exhibit 4, and B.

…………….

D M Dickson

Commissioner of the Court

Decision last updated: 28 March 2018