Southern Cross Community Housing Ltd v Shoalhaven City Council

Case •

[2010] NSWLEC 1306

•

9 November 2010

No judgment structure available for this case.

Land and Environment Court


of New South Wales


CITATION: Southern Cross Community Housing Ltd v Shoalhaven City Council [2010] NSWLEC 1306
PARTIES: APPLICANT
Southern Cross Community Housing Ltd
RESPONDENT
Shoalhaven City Council
FILE NUMBER(S): 10214 of 2010
CORAM: Fakes C
KEY ISSUES: DEEMED REFUSAL - SUBDIVISION :- provision of affordable housing on a vegetated site; suitability of site given distance from facilities and site constraints; compatibility with exisiting development; removal of vegetation; the public interest
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Threatened Species Conservation Act 1995
Environment Protection and Biodiversity Conservation Act 1999
Land and Environment Court Act 1979
Shoalhaven Local Environmental Plan 1985
CASES CITED: BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140
Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117
Project Venture Developments v Pittwater Council [2005] NSWLEC 191
State Environmental Planning Policy (Affordable Rental Housing) 1999
DATES OF HEARING: 13/10/10-15/10/10
 
DATE OF JUDGMENT: 
9 November 2010
LEGAL REPRESENTATIVES:

APPLICANT
Mr A Pickles [barrister]
SOLICITORS
Kells The Lawyers

RESPONDENT
Mr M Staunton [barrister]
SOLICITORS
Maddocks Lawyers

JUDGMENT:

      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      Fakes C

      9 November 2010

      10214 of 2010 Southern Cross Community Housing Ltd v Shoalhaven City Council

JUDGMENT

1 COMMISSIONER: This is an appeal made under s 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal of Development Application DA09/1735 by Shoalhaven City Council (the council) for a residential subdivision and integrated housing development at Lot 2 DP1131675 on the corner of Greenwell Point Road and Worrigee Road, Worrigee (the site).

2 The aim of the proposal is to provide affordable rental housing. The plan before the Court proposes the creation of 24 Torrens title lots. Lot 1, comprising 1.06 hectares, is proposed to be dedicated to council as a public reserve. Twenty three lots (lots 2-24) are to be created as integrated housing. The integrated housing development comprises 21 freestanding dwellings, 1 cluster-housing group of 3 dwellings and 1 dual occupancy.

The site and locality

3 The site is a triangular piece of land bounded on the north by Greenwell Point Road, to the east by Worrigee Road (the base of the triangle) and to the south by Golden Grove. The point of the triangle is at its western extremity.

4 Greenwell Point Road is classified as an arterial road that connects East Nowra with the village of Greenwell Point. Worrigee Road is classified as a distributor road that connects the suburb of Worrigee with Greenwell Point Road.

5 Golden Grove is a cul-de-sac and classified as an access road. Golden Grove is only paved and finished on its southern side. There are 18 lots with single storey dwellings on the southern side of Golden Grove.

6 The site is approximately 4.5 km south-east of the Nowra Town Centre and 2.3 km east of the East Nowra neighbourhood shops.

7 The site almost fully vegetated with remnant trees, particularly Spotted Gums and other eucalypts. There is native understorey across most of the site with some dense patches of weeds on the eastern end. There are some planted exotic species in some parts. The trees are visually prominent when travelling in both directions along Greenwell Point Road. They are visually prominent to the residents of Golden Grove and nearby streets.

8 The site is generally level with a slight fall from east to west. There is an ephemeral pond towards the centre of the site in which Green and Golden Bell Frogs have been recorded.

9 The land to the north and the east is characterised by open recreational and rural-residential properties. The land to the south and west is the recently established residential suburb of Worrigee. The southern side of Golden Grove is comprised of single storey dwellings on lots in excess of 600m2.

Relevant history of the site

10 Prior to 1926 the site appears to have been used for grazing purposes. Council purchased the site in 1926 and appears to have used it for operational purposes including the dumping of waste material/ stockpiling of soil and blue metal.

11 Council documentation records the site as Lot 1 DP178733. In 2006 council resolved to investigate the medium density potential of the site and an appropriate sale price.

12 On 4 February 2008, at a meeting with the mayor and council officers, the Shoalhaven Community Housing Scheme Ltd presented a plan of the proposed subdivision showing 44 lots and covering the full extent of the site. On the same day Shoalhaven Community Housing Scheme Ltd wrote to council and expressed an interest in purchasing the land in order to provide “a mix of private and social housing with an emphasis on housing for the aged, disabled and people entering into the homeownership for the first time.”

13 On 11 February 2008, the majority of councillors voted to adopt the recommendation of the Council Property Steering Committee to authorise the General Manager to negotiate the sale of the site to Shoalhaven Community Housing Scheme Ltd.

14 On 24 July 2008, a letter was sent from the council to the Chief Executive Officer of what was then called South Coast Community Housing Ltd advising them that council had resolved to sell the site at the negotiated price. The letter states in part: “Council has agreed the contract price on the basis that the proposed development will facilitate low cost housing in accordance with Council’s Housing Strategy”.

The proposal and background

15 The original development application was lodged with council in June 2009. The council notified the plans to nearby property owners and others. Many submissions were received. Council requested further information from the applicant on a number of issues. Revised plans and supplementary reports were submitted in September 2009. Notification of these plans resulted in further submissions. Further information was sought from and provided by the applicant. The plans were revised again in February 2010.

16 A revised Statement of Environmental Effects (SEE) dated February 2010 describes the proposal as a subdivision of the site into 32 residential allotments ranging in size from 873m2 to 350m2 with associated road and drainage works. The subdivision was to cover the entire site.

17 It was proposed that 16 lots generally fronting Golden Grove were to be of ‘standard’ size and created as vacant lots for future residential development generally consistent with the existing development on the southern side of Golden Grove.

18 The remaining 16 smaller lots were to be developed as an integrated housing precinct with each lot containing a single storey dwelling. According to the SEE, these proposed small lots were “designed to provide both low maintenance living arrangements for an aging population in addition to providing more affordable housing for young couples and families” to meet the local housing needs in the Nowra/ Shoalhaven area.

19 The applicant lodged this appeal to the Court in March 2010 as council had not determined the application.

20 The applicant provided further information to council in late March 2010. The February revision plans were notified to neighbours with further submissions received.

21 A conciliation conference under s 34 of the Land and Environment Court Act 1979 (Court Act) was held on 26 May 2010. Despite the eventual termination of the s 34 conferences it resulted in a further amendment of the plans.

22 The proposal now before the Court is for a residential subdivision and integrated housing development and dedication of land to Council as a public reserve. The proposal includes the construction of dwellings and associated utility services, a road, and site regrading and vegetation removal. The current plans are dated 27 May 2010.

23 The plan proposes the creation of 24 Torrens title lots. Lot 1, comprising 1.06 hectares, is proposed to be dedicated to council as a public reserve. Twenty three lots (lots 2-24) are to be created as integrated housing. The integrated housing development comprises 21 freestanding dwellings, 1 cluster-housing group of 3 dwellings and 1 dual occupancy. All dwellings are 2 bedroom, single storey with a single garage and a driveway to accommodate another vehicle. Construction is of Colorbond steel roofing, face brickwork and timber weatherboard.

24 It is proposed that the subdivision be confined to the south-eastern portion of the site with frontages to Golden Grove and a new road. The public reserve will occupy the northern and western portions of the site with the new road separating the subdivision from the reserve. The new road will provide access from Golden Grove to Worrigee Road.

25 In a letter from the Centre for Affordable Housing dated 21 April 2010, the applicant is advised that

          Housing NSW has allocated grant funding from the Social Housing National Partnership for the construction of 20 units on the Worrigee site.
          Under the terms of the Social Housing National Partnership signed by the Federal Government and all States and Territories, all dwellings in NSW must be ready for occupation by 30 June 2011.

26 The council considers the development application should be refused for the following reasons:

        • This is an undesirable location for affordable housing; the site is not ideally positioned close to residential amenities or places of employment;
        • It is an overdevelopment of the site and out of character with the exiting streetscape; medium density development with small lots sizes resulting in inadequate retention of trees;
        • It is not in the public interest because it detrimentally affects the residential amenity of exiting and future residents of Wooragee, detracts from the streetscape and does not guarantee the affordable rental use will continue;
        • The applicant has not undertaken a proper site analysis and this has resulted in a poor development outcome given the constraints of the site;
        • The type of subdivision is inappropriate and will result in adverse impacts on the locality;
        • There is insufficient information on tree removal to enable a proper assessment of the impact of vegetation removal on the site;
        • There are insufficient measures to preserve and maintain the existing vegetation on the site;
        • There is insufficient information to assess the suitability of the dedication of part of the site as a public reserve;
        • The siting and design of the integrated housing dwellings on the southern side of the new road results in less than desirable solar access and therefore poor amenity for future occupants;
        • The proposal contains insufficient information about the provision of public transport and pedestrian access to the site; and
        • The plans are missing certain details and contain inconsistencies.

27 The council contends that the vegetation on the site is identified as an important stand of trees, particularly in its contribution to the landscape character of the locality.

28 Earlier contentions regarding Litoria aurea the Green and Golden Bell Frog, listed as endangered in Schedule 1 of the Threatened Species Conservation Act 1995 and as vulnerable under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 are no longer pressed by council.

29 The applicant contends that the subdivision is appropriate and will not result in any different or greater adverse impacts compared to any other type of residential development on the site and that the proposed design, open space and range of lot sizes preserve as much vegetation as possible given the zoning of the land for residential purposes. The applicant also submits that the retention of a buffer strip of vegetation, the design and construction of the dwellings, and other elements of the proposal will be consistent with the general streetscape and character of the area and achieve an appropriate level of amenity for future residents.

30 The applicant agrees to the provision of a bus stop and a footpath to facilitate access for pedestrians and to public transport. The applicant contends that the road design is compliant and will not result in traffic problems.

31 With respect to the council’s contentions regarding insufficient information, the applicant considers that the issues have been addressed by the provision of supplementary reports and more detailed plans.

32 The key issues in contention can be summarised as:

        • The suitability of the site for affordable housing with respect to access to transport and services centres;
        • The proposal is an overdevelopment of the site and out of character with the exiting streetscape; medium density development with small lots sizes resulting in inadequate retention of tree. This detrimentally affects the residential amenity of exiting and future residents of Wooragee.
        • The removal of vegetation from the site.
        • The development is not in the public interest

33 The relevant environmental planning instrument is the Shoalhaven Local Environmental Plan 1985 (SLEP). The relevant objectives of the plan are:

          (2) (a) to provide for a variety of residential life styles;
                (o) to ensure the protection of important natural and cultural environments;
                (p) to protect and enhance scenic and landscape qualities;
                (s) to avoid, mitigate or remedy the adverse effects of development on the environment;
                (w) to minimise the clearing of native vegetation, especially those local species which are poorly represented in conservation reserves.

34 The site is zoned Zone No. 2 (c) (Residential “C” (Living Area) Zone). Subdivision is permissible with consent.

          1. Objectives of zone
              The objectives are to provide for new residential areas with a range of housing types with provision for urban facilities to serve the local community.

35 A number of Development Control Plans (DCPs) apply. Parts of the East Nowra DCP 43 are relevant. According to the introduction, DCP 43 was prepared to help co-ordinate an influx of development in the area to which it applies. Relevant Figures in DCP 43 are 3, 7 and 15.

36 Section 1.3 of DCP 43 describes the vegetation of the area; this was pressed by both parties as being relevant to the site.

          Except for State Forest, most of the area has either lost its natural vegetation or what small percentage that remains has been disturbed. While this lessons its conservation value it makes the remaining vegetation important in landscape character terms. …
          Important stands exist in and close to the Old Southern Road reserve, the unmade road reserve running between Old Southern Road and Worrigee Road, the triangular section immediately west of Worrigee Road and in the area between McKay and Park Street and often south of Hillcrest Avenue adjacent to the floodway….
          Measures to preserve this vegetation should include incorporation into public reserves and drainage reserves, use of building lines, setbacks, service roads and grouping of driveways. Also, the use of lower density (Hillcrest Avenue) or medium density with common open space could be used to conserve the more important stands.

37 Development Control Plan 100 Subdivision Code Amendment No 1 applies. DCP 100 links with DCP 71 – Medium Density Housing.

38 The relevant sections of DCP 100 are:


Part 2 – Design Elements

Element RE1 – Site Analysis Urban

Objectives

          O1 to provide a site layout that provides a, manageable and resource efficient living environment
          O2 provide for the ecologically sustainable subdivision of land

Performance criteria

          P1 A site analysis is undertaken which includes:….existing natural vegetation,…the character of surrounding development, traffic routes, …topographical features of waterways, waterbodies and wet lands…
          Acceptable solutions…a detailed site analysis plan [should include] …native vegetation communities, significant trees and or stands of trees, site flora (rare species)…

Element RE2 – Residential Neighbourhood Design

          O1 to provide safe and interesting residential environment that meets the diverse and changing needs of the community and offer a wide choice in good quality housing
          P1 The subdivision layout responds to site characteristics, setting, landmarks and views through street and open space networks
          P8 The lot design and layout provide for higher densities in areas close to the CBD, services, public transport, open space provided it is consistent with the relevant zone
          P10 The layout retains significant vegetation and habitat areas, incorporates natural and cultural features, minimises soil erosion and avoids development on flood prone land. Identifies threatened species and their habitats, as well as providing habitat interconnections.
          P12 The layout is integrated with the surrounding urban environment, compliments existing attractive streetscapes and landscapes, and provides for shared use of public facilities by adjoining communities.

Element RE6 – Public Transport

          P7 Public transport stops provide for pedestrian safety, security, comfort and convenience.

          P8 Bust stops are located and designed to provide shelter, seats, adequate lighting and timetable information…..

Element RE7 – Public Open Space


          P2 Public Reserves provide ….opportunities for the incorporation of existing trees, streams and other sites of natural or cultural value and linkage of habitats and wildlife corridors
          P3 Public reserves…should be provided in a condition that is capable of regular and efficient ongoing maintenance
          Acceptable solution ….No trees within the reserve are to be removed or destroyed during construction of the subdivision…. Land identified as passive recreational local open space is unacceptable if it has a land area of less than 3000m 2 unless it adjoins existing or identified future open space.

Element RU13 - Streetscape

          O1 To provide attractive streetscapes that…are sensitive to the built form, landscape and environmental conditions of the locality.
          P1 The street and landscape design achieves …the creation of attractive residential environments with clear character and identity,….use of such facilities such as views, vistas, existing vegetation and landmarks.
          P2 The design of the landscape in public streets…is sensitive to site attributes

RE14 – Allotment layout

          O3 To provide lots of sufficient size to protect environmental features and take into account site constraints
          P3 Lot areas and dimensions enable dwellings to be sited to …retain special features such as trees and views.
          P11 Retain character of location be [sic] preserving existing matures trees or providing opportunities for future planting.
          P14 Integrated or medium density lots shall only be located in medium density zones as defined in Council’s SLEP 1985.

39 The relevant clauses in DCP 71 – Medium Density Housing are:


The aims of the DCP are -

          A4 To ensure that the impact of medium density housing proposals on the amenity of adjoining properties is a prime and initial consideration of applicants when preparing their development proposals
      3.3 Design Element – Building Siting & Design
          P1 ….With integrated development buildings may be built to the internal boundaries, so as to maximise privacy for neighbouring dwellings and their private open space;

Acceptable solutions


          A4 A side or rear boundary setback of 1m minimum, with this setback increased to 1.5m where the wall contains windows to habitable rooms…

40 Site analysis, design, site planning and layout, streetscape, and landscape objectives and performance criteria are similar to those in DCP 100.

41 The following policies and documents are referred to in expert evidence and submissions:- Shoalhaven Housing Strategy 2006 (adopted council policy) South Coast Regional Strategy and its ‘Settlement planning guidelines’ (Department of Planning). These go to evidence and submissions on social planning and the provision of housing options for people whose needs are poorly met by existing housing stock.

42 The Nowra-Bomaderry Structure Plan (NBSP) is relevant.

          The purpose of this structure plan is to provide a framework for the integrated development of the Nowra Bomaderry area…It looks at the implications of the ongoing growth of the urban area and Nowra Bomaderry’s long term role as the regional service provider and major urban are in the City of Shoalhaven. It assesses the need to balance this role with the need to conserve the significant environmental attributes of the area.

43 Map 1.6 of the NBSP shows the site as ‘existing residential’. Map 3.3 identifies the site as containing Spotted Gum – Grey Ironbark Forest. Table 3.3 states that the area covered by this vegetation community is 2378.31ha or 29.10% of the area to which the NBSP applies. This is the most common of the 24 vegetation types identified in the document.

44 One of the targets of the conservation strategy included in the NBSP is to include all biodiversity recommendations in the identification of areas that require conservation. Recommendations 1 and 4 apply to the site. Recommendation 1 applies to all communities and in part reads:

          It is more appropriate to preserve one or more large areas containing intact examples of most of the local vegetation communities than to reserve the same communities in a large number of small separate patches in urban areas.
          Recommendation 4: Spotted Gum Eucalyptus maculata forests have been extensively cleared from the shale soils in the Nowra district; the conservation reserves in the region contain virtually none of this forest type. Substantial stands should be reserved in the Nowra area, preferably containing all four communities dominated by Spotted Gum.


The evidence and the hearing
Objectors

45 The hearing commenced on site with oral and written submissions from 4 residents of Golden Grove and another nearby resident of Worrigee who is also the State Member for South Coast. It is noted that 327 items of correspondence and submissions from objectors were tendered in evidence. 135 of these are from residents of Golden Grove.

46 The on-site evidence and the submissions generally go to:

        • the local significance of the site in terms of its history, visual amenity, its contribution to the rural setting, its value to locals due to the wildlife it attracts and the overall amenity it provides to locals;
        • the importance of the trees as remnants, their size and the wildlife they attract;
        • the use of the land by the threatened species – Green and Golden Bell Frog;
        • the general belief of nearby residents that the site was a public reserve and that its mapping as ‘active open space’ in Figure 15, DCP 43 indicates council’s intent;
        • the value of the trees on the site to the overall amenity of the locality to local residents and visitors alike who travel along Greenwell Point Road;
        • the unsuitability of the site for medium density low cost housing as it is not near urban facilities, has limited access to public transport, and there is no local school;
        • the scale of the development and lots sizes are out of character with the existing dwellings in Golden Grove; and
        • potential road safety problems associated with increased traffic.

47 A common theme in the objectors’ submissions is that the council should not have sold the land, it should not be developed and it should be retained as a public reserve.

Site view

48 The site was inspected by a walk-through taking note of the location of the proposed new road to connect Worrigee Road with Golden Grove, the location of hollow-bearing trees, the location and extent of the ephemeral pond and the extent of the area proposed as the public reserve.

49 We viewed the streetscape of Golden Grove noting existing setbacks and the current extent of the formed road. The site of the proposed bus stop on Worrigee Road was noted. We walked along the concrete path from Golden Grove that runs parallel to Greenwell Point Road and the distance to the next bus service was noted.

50 We drove through the suburb of Worrigee and noted the location of an approved commercial/retail development, the general character of the suburb and several examples of integrated affordable housing developments operated by a number of providers.

Social planning - evidence

51 Expert evidence on social planning matters was given by Dr Judith Stubbs for the applicant and by Mr Philip Paton for the council. The experts prepared a joint report.

52 The difference between the experts can be summarised as follows. Dr Stubbs is of the opinion that the development provides genuinely affordable rental housing that will meet the demonstrated needs of very low to moderate income earners in the Shoalhaven. The target groups are mostly key workers and the over 55s – a similar demographic to the existing residents of Worrigee. The development is not suitable for people with mobility problems and or a disability that makes driving or accessing public transport problematic. Whilst not ideally located close to local services, the access is reasonable and the local and regional service centres are relatively close. Car ownership of prospective tenants is likely to be relatively high. She considers that any additional costs for transport will be offset by the increase in disposable income brought about by more affordable rent.

53 Dr Stubbs considers the development to be consistent with government policy and legislation and is in the public interest. She considers that the transfer of Commonwealth-State Government money into the Shoalhaven in both direct capital funding of affordable housing and an ongoing rental subsidy, assisted by the affordable purchase of land from Council, is a benefit.

54 Mr Paton considers that affordable social housing is important but considers the less than ideal location of the development away from services will detract from any benefits derived from the affordable housing. In a similar vein, he considers that walking distances and issues with access to and reliability of public transport are such that it should be a condition of consent that people with mobility issues are not to be placed in this development. He considers that medium density developments are more suitably located closer to services and that the proposal exacerbates Worrigee’s existing problem of poor access to necessary services. Mr Paton contends that government money benefits would accrue if another site in Nowra were used.

55 The cross-examination of the witnesses went to the removal of trees and the social impact of doing so on existing and future residents, any need for community facilities on the site, the adequacy of the local bus services and footpaths and therefore access to services and the provisions of the EPA Act, the SLEP and the DCPs.

56 Dr Stubbs agreed that in her statement of evidence she considered that as many trees as possible should be retained and accepted that the removal of trees would have a social impact on some people. However, she considered that the retention of some trees and the planting of others could mitigate these impacts. Mr Paton considers that the project should be redesigned to enable retention of some trees within the site as trees provide social benefits. He thinks that if the trees are removed the costs outweigh the benefits derived from the project.

57 The limited timetable of the bus routes was debated, as was the condition, distance and widths of a pathway from Golden Grove to an alternative bus route. There was much speculation on who might use the service, when and for what purpose. The experts maintained their different opinions.

58 Mr Paton considers the provision of community facilities/ space within the development to be desirable. Dr Stubbs is of the opinion that the properties are large enough to provide outdoor space for each dwelling and that community facilities are not necessary for this type of housing.

Social planning - Findings

59 With respect to council’s contention that the site is ‘not ideally positioned’ for affordable housing, Mr Pickles for the applicant contends that s79C of the EPA Act does not require the ‘ideal’ but the measure is whether the site is ‘suitable’ for the development. He submits that if land is suitable for housing due to its zoning, it cannot be unsuitable for affordable housing as to say that would be illogical as well as contrary to the EPA Act and the SLEP. He considers that if the site is unsuitable because of distance to services and the level of public transport, then so too is the whole of the housing in Worrigee. In addition, he states that the council specifically sold the site for the purpose of affordable housing. Mr Pickles considers that the proposal satisfies the objects of the EPA Act (s5).

60 Mr Staunton for the council submits that the site is neither ideal nor reasonable for affordable housing given its distance from transport, services and retail facilities. On the basis of the Dr Stubbs’ evidence he contends that not all persons eligible for housing will be able to reside there and that, if circumstances change, people already housed there may find it difficult to access services. He asserts that the site is not easily walkable to any major services or shops. Mr Staunton considers that the council’s response through Mr Paton is that the location is not ideal and not consistent with government policy as government policy and guidelines promote that affordable housing is best located in close proximity to services.

61 On the evidence before me I find no social planning reason to refuse the appeal. The evidence is that there are long waiting lists for affordable housing in the Shoalhaven area. I agree the location is not ideal with respect to the distance from local shops and regional services but it is acceptable. It is no less suitable than the other areas of public housing in Worrigee we saw on the site inspection.

62 The evidence from Dr Stubbs is that Southern Cross Community Housing (SCCH) places tenants according to their needs and the type of housing available. I have no reason to refute that evidence. Her report recommends that SCCH consult with future tenants to ensure that transport options available are clearly understood and able to meet the needs of the household. I agree with this recommendation.

63 I accept that the site may not be suitable for people with limited mobility however Dr Stubbs notes that SCCH has service agreements with 32 support service providers including community transport services. I note that despite disagreeing with Dr Stubbs on the issue of the suitability of the site for affordable housing, Mr Paton agrees that as the site has access to two bus services there is suitable access to support networks for able-bodied persons albeit with walking distance and bus timetable restrictions. I agree with Mr Staunton that not all people on an eligibility list will be able to reside there, however I consider that to be an inevitable outcome of any combination of people’s needs and the style and location of available housing in any locality.

64 Despite the limitations of the local bus services, I see no reason why these tenants would be any more disadvantaged than other public housing tenants in other parts of Worrigee and in this I agree with Mr Pickles. The provision of a bus stop in Worrigee Road will be of benefit to all nearby residents.

65 With respect to Mr Paton’s contention that there should be the provision of community facilities within the proposal, I agree with Dr Stubbs that the style of housing and the extent of private open space are adequate for residents to have their own space. This is a proposal for affordable housing not a group housing project.

Planning evidence

66 Mr Lee Carmichael appeared for the applicant and Mr Paton for the council. The topics covered character of the area and the development, built form and tree retention, lot size, side setbacks, zoning objectives, the preservation of vegetation, and solar access.

67 Mr Paton considers that the character of Golden Grove is set by the large lots and side setbacks of the existing dwellings and the fact that the existing dwellings are on the urban/rural edge. He contends that the proposed development is out of character with the existing dwellings as the lots are smaller and have less side setback which create the appearance of an intensive development. He states that only Lot 13 complies with the side setback distances of DCP 71. He states that the smaller lot size prevents the retention of trees on individual lots, which further compromises the character.

68 Mr Carmichael contends that the development will create an attractive streetscape that is sensitive to the built form and natural attributes of the area. He considers the setbacks to be consistent with councils’ single housing DCP and he has a different interpretation of the setback provision in DCP 71. He states that the front setback of 5.5m is compliant with the medium density DCP and when combined with the single storey dwellings will not have a negative impact on the streetscape of Golden Grove. A photomontage of the proposal was tendered.

69 Mr Carmichael states that the dwelling yield is 10.8 dwellings per hectare, less than the target in the NBSP of 12 dwellings per ha. Mr Paton considers the yield specified in the NBSP is more suited to larger lots across the hectare than a cluster with the remaining area being undeveloped.

70 Both planners had opposing views on the retention/ removal of vegetation. Mr Paton considers that removal of 57% of the Spotted Gum vegetation including 11 of 19 hollow-bearing trees does not protect the character of the area and does not meet relevant performance criteria P10, RE2 in DCP 100. He considers that larger lot sizes would allow trees to be retained in gardens. Mr Paton considers the removal of the vegetation is counter to the purpose of the NBSP with respect to preserving Spotted Gum forests.

71 Mr Carmichael contends that the clustering of the development towards the south-east corner of the site facilitates tree retention. He states that 43% of the vegetation will be retained as a public reserve of 1.06ha in area. He considers that this makes a positive contribution to the character of the area and is a reasonable compromise in the context of a site zoned for residential development. Mr Carmichael considers the NBSP to be a non-statutory guidance document.

72 Mr Carmichael stated that the NBSP is informing the council in the preparation of its new LEP and in his opinion the site will retain its Residential 2(c) zoning. [It is noted that the draft SLEP is not in evidence as, at the time of the hearing, the document is yet to go to public exhibition.]

73 With respect to the issue of limited solar access on several of the proposed lots, Mr Paton considers the small size of the lots and their orientation limits the ability to achieve significant north facing windows. Mr Carmichael states that solar access drawings are not required by any DCPs, nor did council request them. He considers this to be a non-issue for single storey dwellings.

74 The issue of side setbacks and the privacy of residents in neighbouring dwellings was raised with respect to four of the lots – Lots 9, 10, 17 and 18. These are currently about 900mm- 1m from one of the side boundaries. The control in DCP 71 appears to be a minimum of 1m to be increased to 1.5m where the wall contains windows to habitable rooms. Mr Carmichael contends that this is sufficient for single dwellings. Mr Paton presses the setbacks.

75 The reasonableness of proposed condition of consent 10b was raised with the planners. This relates to the provision of a bus shelter at the proposed bus stop on the eastern end of the site on Worrigee Road.

Vegetation removal - evidence

76 The only expert called to provide sworn oral evidence on the vegetation was Ms Kerry Rourke for the applicant. Ms Rourke was engaged to address horticultural issues raised in the council’s contentions, in particular, the contention that there is insufficient information to properly assess the impact of the vegetation removal. The contentions generally go to requiring more quantitative information regarding the removal of trees. Ms Rourke also prepared the applicant’s Bush Fire Assessment Report.

77 The original survey was undertaken in December 2009 by surveyors and data was only collected on trees with a diameter of 500mm or greater. It appears from Ms Rourke’s statement of evidence that her brief was to verify the number, dimensions and species of trees to be retained and removed in order to satisfy the council’s requirements. The hollow-bearing trees were identified and matched with the survey identification number.

78 The survey identifies 386 trees, most of which are Corymbia maculata (syn. Eucalyptus maculata) Spotted Gum with some other species of eucalypts typically found in association with Spotted Gum in this locality. Of those identified trees, 220 are located within the development zone including within 3-5 m of the roads. Ms Rourke identified 3 other trees that are likely to be removed to facilitate the installation of stormwater drainage infrastructure. Of the total number of trees on the site 220 are 15m or more in height.

79 Ms Rourke confirmed the observation made by Gaia Research that 12 of the 19 hollow-bearing trees would be removed as part of the development. She confirmed the location of these trees on the tree survey plan.

80 It is noted that there is no qualitative assessment of the health and structural integrity of the trees. These aspects of tree assessment are absent from the contentions. I also note that the council did not engage its own expert.

81 Ms Rourke was questioned on the Bush Fire Risk Assessment she undertook in June 2010 where she determined that the land proposed as a reserve was to be maintained as an inner protection zone. She agrees that her report is superseded by the Rural Fire Service’s General Terms of Agreement that only the area proposed for development is to be maintained as an inner protection zone.

82 In the absence of any arboricultural assessment of the site by either party, the only other relevant report regarding vegetation is that provided by Gaia Research Pty Ltd dated September 2009. This report was prepared for the applicant in order to assess the impact of the proposed subdivision and associated works on threatened species of flora and fauna on the site. It is noted that this report was undertaken on the basis that the entire site was to be cleared for the provision of 35 lots.

83 A test of significant effect on threatened species, populations and communities pursuant to s 5A of the EP&A Act (a ‘7 part test’) was conducted on the site. With respect to the vegetation, no endangered ecological communities exist on the site. The report states:

          The proposal will not substantially and adversely modify the composition of the ecological community such that its occurrence is likely to be placed at risk of extinction.

84 This must be read as an impact on its local occurrence. The report notes that the clearing of native vegetation is listed as a key threatening process under Schedule 3 of the Threatened Species Conservation Act 1995 as is the removal of dead trees and dead wood. [Similarly, the removal of hollow bearing trees]. Spotted Gum forest is not listed in the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 as an endangered ecological community but the clearing of native vegetation is listed as a threatening process under that Act.

85 The report concludes:

          The site is relatively small, highly disturbed and supports a low biodiversity of fauna. The native species of bird detected are highly associated with disturbed habitats. The site does support native flora and all efforts should be made to retain as much vegetation as possible. Landscape plantings should concentrate on using endemic species…

86 The report makes various recommendations with respect to how the trees should be removed in order to minimise impacts to fauna. It is noted that many of the recommendations made in this [and a subsequent report on the Green and Golden Bell Frog] have been incorporated in to the draft without prejudice conditions of consent.

87 The ecological impacts of the proposal are not raised in the council’s amended contentions.


88 Mr Pickles for the applicant contends that the starting point of the consideration of this proposal must be the zoning. He cites McClellan CJ in BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 at paras 115-118. Of relevance to his argument are the following excerpts:

          115 The context in which the issues in this case must be resolved includes the history of the use of the land and the contribution which it now makes to the existing natural environment. Although zoned industrial, that zoning was imposed at a time when the community’s understanding of the significance of some elements of the natural environment was not as mature as it now is….
          116 Notwithstanding the fact that the ecological integrity of the site may be threatened if the major road reservation were utilised for its purpose, I am satisfied that this is not a significant matter in this case. The reservation was also imposed at a time when the ecological significance of the area was unlikely to have been given any, or at least any mature, consideration. It would be inappropriate to make a decision in the present case upon the assumption that the construction of the proposed road is inevitable.
          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…, planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted….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.

89 In the light of BGP Properties, Mr Pickles contends that the site is zoned Residential 2C and has been so zoned from at least 1985 when there was an awareness of environmental issues [116]. He accepts that the range of permissible uses is quite wide however, he contends that the specificity of the zoning is confined to ‘residential’ which therefore implies a more confined use of the land. He states that there is only one zone objective and that is “to provide for new residential areas with a range of housing types with provision for urban facilities to serve the local community”. He asserts that this use prevails over the use of land as open space. He states that the “particular” use of the land as affordable housing is neutral [BGP 117]. Overall, the project is consistent with the zoning.

90 With respect to the history of the site, Mr Pickles contends that the site has been in council ownership since 1926. He argues that its use as operational land by the council for the dumping of waste demonstrates that the site was not valued for its environmental values [BGP 118]. He also contends that the actions of the elected council in selling the land indicate the intent of the council. He contends that the council was fully aware of the proposed scheme and the sale was not conducted in a vacuum of ignorance as to which land was to be sold and for what purpose.

91 With respect to the degree of consideration given by council to the ecological attributes of the site, Mr Pickles argues that the NBSP, dated 2006, was not prepared in isolation and was given mature consideration and that plan identifies the site as existing residential [BGP 116]. The NBSP states that the vegetation type on the site is the most common community in the area. Notwithstanding Biodiversity Recommendation 4, he places more weight on Recommendation 1 in that the site is in an urban area and is only connected to a limited extent to other areas of similar vegetation and roads separate these. Aerial photographs show a patch of similar vegetation to the east has been significantly reduced in the years between 1993 and 2006. The area to the north, which currently contains remnant vegetation, is identified in s 9.4.3 of the NBSP as a potential new living area. Mr Pickles considers there is no support in the document for Mr Paton’s argument that the site should be preserved as public open space.

92 Regarding para 119 of BGP Mr Pickles asserts that the development provides an environmentally acceptable outcome and a viable project. He considers that this is achieved by retaining 43% of the site as a dedicated public reserve. He considers that the provision of affordable housing does not have to be commercially viable in the same way that a private development may need to be.

93 With respect to the weight to be given to DCP43, Mr Pickles cites Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at para 85 where McClellan CJ considered “a provision of any relevant environmental planning instrument must be given determining weight”. Section 79C(1)(a)(iii) requires the consideration of DCPs. However, Mr Pickles contends that DCP 43 does not comply with s74C91)(a) as DCP 43 does not refer to the SLEP. He also contends that where there are inconsistencies between DCP 43 and the SLEP, as in Figure 15 in DCP 43 showing the site as zoned ‘active open space’, the SLEP must prevail. Similarly, Figure 3 in DCP 43 does not show the site mapped for ‘main vegetation’ despite the referral to it in the text of that document. In that regard, if DCP 43 were to be given substantial weight it would undermine the planning process. However, notwithstanding the low weight to be given to DCP 43, Mr Pickles considers the proposal complies with the relevant parts of DCP 43 [given in para 35 of this judgment].

94 With respect to the zoning, Mr Staunton agrees that the use is permissible but not a guarantee that housing will be approved on the site. The form and layout of any development must be assessed on its merit and that s 79C of the EPA Act requires consideration of the suitability of the site for a particular development.

95 While he accepts that DCP 43 cannot rezone the land, he considers that the objects of DCP 43 should be given weight as it identifies what might be appropriate within certain areas within the zone and what constraints are important and need to be considered. In this instance the vegetation is a significant constraint. He contends that Figure 15 in DCP 43 does not show the site marked for medium density housing.

96 Mr Staunton considers DCPs 43, 71 and 100 as well as the NBSP call for the preservation of vegetation. He presses the point that the stand of vegetation is identified in DCP 43 as one of several important stands in the area of East Nowra which the DCP applies [see para 35 of this judgment].

97 Mr Staunton also argues that the private contractual arrangements between the council and the applicant cannot fetter the planning discretion. He cites Lloyd J in Gwandalan Summerland Point Action Group In v Minister for Planning [2009] NSWLEC 140 at paras 144-146. Essentially, regardless of any pre-existing commitment, there is an obligation on the decision-maker to consider any application on its merits. In this respect he states that the council accepts that it sold the land to the applicant on the basis that it would be used for affordable housing but that says nothing about whether affordable housing or its form is appropriate for the site. This is a matter for evaluation under s 79C of the EPA Act. He reiterates that the vegetation on the site is a key constraint.

98 Council’s second contention is that the proposal is an overdevelopment of the site and is out of character. Mr Pickles asserts that the development only uses 57% of the site and that no standard has been advanced to support a lower density. He notes the lower than recommended dwelling yield. He contends that if not for the inclusion of one dual occupancy and one lot for integrated housing, the development would not be medium density.

99 With respect to the contention that the development is out of character, he argues that trees are not part of the character of Golden Grove as there are no trees on the road reserve and no substantial trees in any yards of the exiting properties. Trees are only a character of the site. He contends that if the Golden Grove character was mirrored on the northern side of the street than the same denuded character would result. He accepts that the trees on the site make a contribution to Greenwell Point Road and are more important in their contribution to public amenity. He considers that the general principle of the retention of vegetation reflected in DCP 43 and the NBSP is accommodated by the amendment of the application that is now before the Court.

100 In terms of the built form, the proposal is for single storey dwellings. The only differences being the proposed development has regular setbacks whilst the existing development has side setbacks ranging from 900mm to 2-3m. Mr Pickles contends that whilst 2 of the proposed lots, those at each end of the site, have attached dwellings, their appearance will not be so dissimilar to the proposed and existing dwellings. He states that the proposal along Golden Grove is for 12 lots over the same distance as 10.5 lots on the southern side of the road.

101 He contends that the proposed development is compatible with the existing development in Golden Grove and is in harmony with its surrounding as any of the other examples of integrated housing in Worrigee that were observed on the site inspection. He supports his argument by citing the planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at para 22:

          22 There are many dictionary definitions of compatible . The most apposite meaning in an urban design context is capable of exiting together in harmony . Compatibility is thus different from sameness . It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.

102 Mr Pickles considers Mr Paton’s concerns about privacy and solar access to be unfounded due to the development being single storey and the height of the proposed boundary fencing. The orientation of the blocks from north to south will always result in some limits to solar access.

103 Mr Staunton submits that the character of Golden Grove is unique and quite different to other parts of Worrigee, in particular the streets on the site visit in which social housing exists. He states that the houses in those areas were much closer together than those in Golden Grove.

104 He also contends that the site is on a zone boundary and a transition from residential to rural is expected. He considers that the larger land parcels of Golden Grove provide an acceptable transition to the rural zone and that the proposed development would not. Mr Staunton cites Bly C in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 at para 25.

          25. As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone…..Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like.

105 Mr Staunton contends that given the small setbacks of the proposal and the ‘bookends’ of the dual occupancy and the attached dwellings at each end of the development, there will be a noticeably denser character on the zone boundary. He says that instead of going from more dense to less dense, the transition will be compromised by having a higher density development between 2 areas of lower density.

106 With respect to communal open space and solar access, Mr Staunton states that the applicant has not given proper attention to the internal amenity of the proposal and that privacy and solar access are compromised. He also considers that the responsibility for providing communal open space has been abrogated by dedicating part of the site to council.

The public interest - submissions

107 Mr Pickles argues that the proposal balances retention of vegetation and provides a housing development in harmony with the existing housing in Golden Grove. This he says complies with the SLEP and the DCPs. He considers it unrealistic to preserve all trees on a site zoned for residential use and that the objectors had an unrealistic expectation that the land would be retained in its current state.

108 Mr Staunton considers that tree preservation is a common theme in the DCPs and other documents because of its contribution to amenity and because of the vegetation that has been already lost to development. He also considers that there is insufficient information provided by the applicant to enable the Court to assess the loss of trees. He contends that the development is not in character with the existing development in Golden Grove. He maintains that the approach taken by the applicant is not consistent with the various DCPs and is contrary to the structure plan.

Findings – Planning, vegetation and the public interest

109 I agree with Mr Pickles that the site is zoned 2(c) (Residential “C” (Living Area)) and has been so zoned since at least 1985 when there was an awareness of environmental issues. As with BGP Properties [115], I consider the history of the site to be relevant and that for some time the council has had ample opportunity to consider the appropriateness of the zoning of the site and its ecological contribution to the broader landscape.

110 An uncontested statement from Mr Carmichael suggests that the council has no intention of rezoning the land as open space in the imminent review of the SLEP. This, and the sale of the land by council for the purpose of affordable housing, indicates that council saw no need to evaluate the development potential of the site with regard to contemporary environmental concerns (BGP [119]). Notwithstanding biodiversity recommendation 4 in the NBSP and including the site on the vegetation map, the reality appears to be that, by default, council has adopted recommendation 1 for this site in that:

          It is more appropriate to preserve one or more large areas containing intact examples of most of the local vegetation communities than to reserve the same communities in a large number of small separate patches in urban areas.

111 While I also accept Mr Staunton’s argument that a private contractual arrangement between the parties cannot constrain the planning process (Gwandalan [144]-[146], the proposal is permitted within the zone and it meets the objectives of zone residential 2(c) in cl 9 of the SLEP by providing a range of housing types in Worrigee, a new residential area. The provision of a bus stop and additional paving also provide facilities to serve the local community.

112 Any development on this site will inevitably result in the loss of vegetation. Therefore a question to be asked is does the proposed development on the site come at too high a cost in terms of loss of vegetation and loss of amenity. Does this proposal strike a reasonable balance that meets the objects of the EP&A Act, satisfies the SLEP and any relevant DCPs? Does the project result in acceptable environmental impacts (BGP [118])?

113 With respect to meeting the objectives of the SLEP, the proposal meets objective 2(a) in providing a variety of residential life styles. It partially meets objectives 2(n) and 2(o) in that by retaining the vegetation at the western end and along Greenwell Point Road it protects some of the natural environment and some of the scenic land landscape qualities of the site. It does not avoid the adverse effects of development on the environment (2(s)) as this could only be satisfied if there was no development on the site but it does mitigate the adverse effects. The vegetation is well represented in conservation reserves (2(w)) but the extent of clearing is very much in contention.

114 On balance, the proposal complies with the SLEP. With respect to the environmental impacts, these are considered elsewhere in the judgment.

115 Section 79(C)(1)(iii) requires a consent authority to take into consideration any relevant development control plan.

116 East Nowra DCP 43 is the DCP at the centre of the objector’s concerns and the focus of the council’s contentions with respect to the preservation of vegetation. In my view this document is strategic in its purpose rather than providing detailed performance criteria, acceptable solutions or development standards. It is completely different in its style and format to the other DCPs relevant to this matter. It makes no reference to the SLEP or the EP&A Act. To that end, it is not a DCP that appears to comply with s 74C(1)(a) of the EP&A Act. In this I accept Mr Pickles’ submissions.

117 The objectors rely on Figure 15 in DCP 43 to make their case that the site is or should be open space. This Figure shows the triangle of land categorised as ‘active open space’. Figure 7 showing the recreation strategy indicates the site as neither ‘active recreation’ nor ‘possible recreation area’. The only other reference to the site is that quoted in para 35 of this judgment where it is listed, in cl 1.3 of DCP 43 as one of several ‘important’ stands of vegetation. However, Figure 3 that relates to cl 1.3 and which maps topography and vegetation, does not show the site as ‘main vegetation’. The site is clearly zoned 2(c) (Residential “C” (Living Area) Zone in the SLEP and is shown as existing residential in Maps 1.5 and 1.6 in the NBSP. Clearly, Figure 15 of DCP 43 is an anomaly.

118 In my view, because of the inconsistencies and the nature of DCP 43, it can be given little if any determinative weight. Even if it has some weight, the reference to the significance of the vegetation on the site is that it, like other small remnants, is more important in landscape character terms than its conservation value.

119 The measures proposed in the DCP are listed as “should include incorporation into public reserves”….etc. It would seem that the council had ample opportunity during its period of ownership to incorporate the site into a reserve but it did not. This proposal meets this guideline by incorporating part of the site into a reserve that retains some of its contribution to landscape character. Therefore in the consideration of DCP 43 I agree with Mr Pickles.

120 Council’s contention that the proposal is an overdevelopment and out of character with the adjacent subdivision in Golden Grove goes to parts of DCP 100 – Subdivision Code and DCP 71 – Medium Density Housing.

121 The proposed dwellings are single storey constructed of similar materials to the existing dwellings in Golden Grove. With respect to Mr Staunton’s submissions regarding other social housing developments in other parts of Worrigee, I consider this proposal to be different to the majority of sites visited. Those sites were dominated by dwellings with double garages and visually intrusive metal dividing fences that extended into the front gardens. Whilst double garages in those areas were a consistent feature of the streetscape, I consider the limit of a single garage in this proposal to be a design element that mitigates the overall impact of the development on the streetscape. The photomontage of the proposal shows no front fences or side fences extending forward of the building line. This is consistent with the southern side of Golden Grove.

122 The proposed lots for single dwellings range from 350m2 to 449m2. The dual occupancy at the eastern end of the development is 679m2 and the medium density lot at the western end is 1066m2. The council’s amended statement of facts and contentions states that the properties on the southern side of Golden Grove are on average upwards of 900m2. However, a Lot Size Analysis Plan prepared by Cardno and included in Mr Paton’s statement of evidence shows the first 18 lots on the southern side of Golden Grove (from east to west) to be in the range of 600-800m2. The last 3 lots are larger and located close to/on Greenwell Point Road.

123 Whilst it is fact that the majority of the proposed lots are smaller than those of the southern side of Golden Grove, the single dwellings are relatively small and the ratio of built form to open space on each lot is satisfactory. The landscaped area appears to comply with the requirements in DCP 71 and will provide adequate private open space for each dwelling. As previously stated, there is no reason to provide communal open space within the subdivision. Overall, I am satisfied that the proposed development is compatible with the existing character of Golden Grove as expressed in the planning principle in Project Venture [22].

124 I find that there is some non-compliance with DCP 71 3.3.1 with respect to side set backs on Lots 9,10, 17 and 18 however DCP 100 does not specify the setbacks for small residential allotments. On viewing the plans and the designs of the particular dwellings, I find that the side setback should be increased to 1.5m to afford the residents a degree of additional privacy. While the designs show an area of private open space off the living rooms on the opposite side of the dwellings, the bulk of the wider setback area includes the garage wall. It seems reasonable to ensure an adequate setback from windows of habitable rooms.

125 Medium density housing is permissible in zone 2(c) with consent. I am satisfied that there is sufficient compliance with DCP 100 and DCP 71. Even though the development is on a zone boundary, the retention of trees along Greenwell Point Road and supplementary plantings on the site should mitigate the visual impact. I am not satisfied that the development is so out of character with the existing development that it should be refused on that basis. Whilst it is a non-statutory document, the NBSP indicates that the area to the north of the site is a likely future development area and thus the contrast is likely to be less obvious over time.

126 A common element in a number of the council’s contentions and raised by Mr Paton is that the lot size is insufficient to retain the existing trees and therefore non-compliant with a number of performance criteria in DCP 100. The intent of the applicant is to remove all vegetation from the development site and retain all vegetation to the north and west of the proposed new road as a public reserve. The council contends that there is insufficient information on the trees on the site to determine if this is a reasonable approach. From my reading of the contentions, the information sought on the trees was locational and quantitative and has since been provided. There has been no requirement for any arboricultural assessment.

127 In considering DCP 100 – Subdivision Code, one of the council’s contentions is that the applicant has not undertaken a proper site analysis and this has resulted in a poor development outcome given the constraints of the site. The constraints being the trees. The amended application and the report prepared by Ms Rourke addresses most of the council’s concerns. Thus there is general compliance with RE1 and RE2 of DCP 100.

128 Based on the site inspection, I am in no doubt that there are a number of substantial and significant trees within the development envelope that will be lost. In my opinion, though it seems brutal, the applicant’s proposal to isolate the development and retain the remainder of the site as a reserve will result in a better long-term outcome than increasing the lot size to attempt to retain individual trees. Apart from inevitable damage to trees during construction, and risks associated with leaving isolated forest trees, any trees on individual lots will be subject to Shoalhaven Council’s Tree Preservation Order, one of the most permissive in NSW due to the ‘45 rule’ in schedule 4 of the TPO.

129 In coming to this conclusion I must also take into account the findings of the ecological report prepared by Gaia. The findings of that report are summarized in paras 83-87 of this judgment. The relevant finding is that whilst it is desirable to retain as much vegetation as possible, it is not of high biodiversity value. Of relevance to conditions of consent are the recommendations regarding the removal and handling of hollow-bearing trees and the use of indigenous species in the landscape plan. I consider that the use of local provenance material is also desirable.

130 The protection of the trees in the reserve during construction is thus critical as is the handling of the removal of the hollow-bearing trees.

131 With respect to RE3 – public open space, the proposal includes a public reserve. In order to satisfy the ‘acceptable solution’ that ‘no trees are to be removed or destroyed during construction of the subdivision’ a tree protection plan must be developed prior to any construction work and must include suitable fencing to protect the trees during construction of the subdivision. The ‘tree protection star picket’ shown on drawing LC01 landscape plan prepared by Taylor Brammer is unsatisfactory and does not comply with AS 4970 – 2009, Protection of Trees on Development Sites.

132 The landscape plan prepared by Taylor Brammer, by nominating Spotted Gums in the streetscape meets relevant performance criteria P1 and P2 of element RE13 – Streetscape in DCP 100. However, the mass planting bed along Worrigee Road does not contain species of a sufficient height to provide adequate screening and therefore amenity for future and existing residents. The lack of some detail in the landscape concept plan is not grounds for refusal of this proposal but should be addressed in conditions of consent.

133 I am satisfied that the retention of trees in a public reserve, and the provision of space for additional tree planting satisfies the performance criteria RE2-P10, RE7-P2 and RE14-P11 in DCP 100.

134 With respect to the objectors concerns, I acknowledge the site adds considerably to the visual amenity of the local area, it has an interesting history and that it attracts wildlife that are important in their own right. However, I am bound to consider the evidence before me and balance the social and economic benefits of the proposal with the environmental costs. The Court cannot rezone the land.

135 I have covered the anomaly of Figure 15 in the DCP, the issues of suitability of the site for affordable housing and access to services and the effect on the character of Golden Grove elsewhere in this judgment.

136 One of the concerns of nearby residents is the threat to the Green and Golden Bell Frog (GGBF). The site contains an ephemeral swamp that is occasionally used by this species when, in large breeding events, they disperse from nearby wetlands. As stated in para 27, the threat to the GGBF was raised in the council’s original statement of facts and contentions. Subsequently, in May 2010, Gaia Research Pty Ltd undertook a further assessment of the impact of the proposed development on the GGBF.

137 An assessment of significance under s 5 of the EPA Act, a ‘seven part test’ was conducted and the conclusion reached that removal of almost 2 ha of refuge and foraging habitat would not have a significant effect on the population of the GGBF. A Species Impact Statement was therefore not required.

138 As a result of these findings, the council’s contention was withdrawn and without prejudice conditions of consent drawn up to include the key recommendations made in the Gaia report. These conditions detail the timing of the works, the handling of any frogs, and the provision of alternative habitat.

139 In order to satisfy myself of the likely success of the proposed conditions, particularly with respect to the location of the alternative habitat, Mr Daly, who prepared the Gaia Report, and council’s threatened species officer, conferred during the course of the hearing. Mr Daly subsequently advised the Court that a feasible site at the eastern end of the proposed reserve had been identified that was of a practical size for frog habitat and its construction would not have a detrimental impact on nearby trees to be retained.

140 When I questioned Mr Daly on the statement in his report that noted the project must be referred to the Commonwealth Minister for the Environment under the EPBC Act, he replied that this had been done and that the Commonwealth had no concerns.

141 Therefore, with respect to the GGBF, I am satisfied that the objectors’ concerns have been satisfactorily addressed.

142 An objection was raised with respect to increased traffic and potential road safety problems, particularly in regard to the proposed new road and its intersection with Golden Grove. No traffic issues were raised by council in its contentions. There was some discussion in Court between traffic experts on the configuration of the section of Worrigee Road near the proposed bus stop and whether a passing lane for cyclists should be incorporated.

143 In my view, the proposal is unlikely to generate sufficient traffic to cause undue concerns for the safety of pedestrians in Golden Grove. No evidence was provided on the use of Worrigee Road by cyclists to justify the changes sought by council.

Conclusions

144 While it is regrettable that trees will be lost from this site I find that on balance the proposal complies with the objectives of the SLEP and meets the zone objectives for residential 2(c). The proposal is sufficiently compliant with the relevant DCPs. The development meets the objects of the EP&A Act.

145 The confinement of the development to one portion of the site and the retention of a substantial percentage of the land as a reserve provides an acceptable balance in enabling the provision of affordable housing, a matter of social and economic importance, and retains some of the environmental benefits of the site. The findings of the reports by Gaia Research were critical to this determination.

146 I have considered the matters for evaluation under s 79C (1) including the public interest. I have considered the objections raised in submissions.

147 Therefore I have concluded that, on the evidence before me, there is no basis on which this development should be refused and that it can proceed subject to conditions of consent. There are a number of conditions to be addressed.

Conditions

148 As is the practice in these matters, the council’s without prejudice conditions of consent were covered in evidence and in final submissions. The parties agreed a number of changes. The conditions to be determined are 10,56,60 and 88. In addition other conditions need amending to reflect the findings in this judgment.

149 Condition 10(c) is to remain as written in the council’s without prejudice conditions of consent in accordance with the findings in para 124. This will necessitate a minor amendment of the plans. The other elements of this condition are to be amended as agreed during the hearing.

150 With respect to condition 56(e)(ii), in the absence of any evidence to support traffic flow and the number of cyclists using Worrigee Road, the northbound pavement width on the western side of Worrigee Road from the marked centreline between the proposed bus bay and the new intersection with the new road shall be the standard width for vehicular traffic in accordance with the relevant standard. The need for extra width for a cycle lane is not substantiated.

151 Condition 60 relates to the provision of a bus shelter. This condition does not seem reasonable as there are few formal bus stops in the local area and no other bus shelters were seen on the site inspection. This condition should be deleted.

152 Condition 88 proposes a restriction on the title under s 88E of the Conveyancing Act 1919 to ensure the development is used for the stated purpose of providing affordable housing. A period of 40 years is proposed however, I consider a minimum period of 10 years is appropriate to be consistent with the requirements of State Environmental Planning Policy (Affordable Rental Housing) 2009. This is notwithstanding any other requirements imposed by the relevant state and commonwealth funding providers.

153 To be consistent with the findings in this judgment, the following conditions are to be amended.

154 Condition 12 should be amended to include a requirement for trees to at least 5m in the mass planting bed along the eastern boundary along Worrigee Road in order to provide some screening and privacy. Where possible, taller trees should be included. Condition 12(f) should be reconsidered in the light of para 132 of this judgment.

155 Condition 27 must be amended to require a tree protection plan to be prepared by a suitably qualified and experienced arborist in accordance with AS4970 –2009. This plan is required to ensure that the trees to be retained in the reserve, and any other trees to be retained, are protected during construction (including the removal of other vegetation). This is in accordance with paras 128-131.

156 Conditions 40(a) and (b) should refer condition 27. Condition 41 must be consistent with conditions 32, 36 and 37 with respect to the handling of hollow-bearing trees. Condition 41 could include an option for salvaging the timber.

157 Condition 49 requires a new clause (d) to ensure that tree protection fencing in accordance with AS4970 is in place around the proposed reserve in order to protect the trees to be retained. This fencing should also be included in condition 82.

Directions

158 The findings in this judgment require the amendment of some conditions and the preparation of others. Liberty will be granted to the parties to approach the Court if there is any disagreement on the preparation of the amended conditions or some clarification is required. Any communication should be electronically communicated by close of business 15 November 2010. Alternatively, if the parties agree on the conditions, an electronic version (in word) should be sent via e court by close of business 15 November 2010.

159 Following the filing of conditions, based on this judgment, Final Orders will be issued in chambers and will take the following form:

          1. The appeal is upheld.
          2. Development Application DA09/1735 for a residential subdivision and integrated housing development at Lot 2 DP1131675 on the corner of Greenwell Point Road and Worrigee Road, Worrigee is approved subject to the conditions in Annexure A.
          3. The exhibits are returned with the exception of exhibits E, F, 4, 5, and 6.

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Cases Citing This Decision

2

Depot Ventures Pty Ltd v Shoalhaven City Council [2025] NSWLEC 1091
Hamilton v Sutherland Shire Council [2012] NSWLEC 1015
Cases Cited

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Statutory Material Cited

5

BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140