Tereza Friskovec and Dr David Bowers v Lane Cove Council

[2006] NSWLEC 262

Land and Environment Court

of New South Wales

CITATION:	Tereza Friskovec and Dr David Bowers v Lane Cove Council [2006] NSWLEC 262 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT: Tereza Friskovec and Dr David Bowers RESPONDENT: Lane Cove Council
FILE NUMBER(S):	11158 of 2005
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Highly visible future dwelling houses - No buildings in the foreshore buffer area - Heritage/ scenic impacts - Scenic Waters: Passive Use -Zone No W8, SREP (Sydney Harbour Catchment) 2005 - SEPP19.
LEGISLATION CITED:	Lane Cove Local Environmental Plan 1987, (LCLEP) Lane Cove Development Control Plan -Residential Zone, (RDCP) Lane Cove Development Control Plan No 1 - Development Adjacent to Bushland, (DCP1) State and Regional Environmental Planning Policy No 19, (SREPP19) State Environmental Planning Policy No 56 -Sydney Harbour Foreshore and Tributaries, (SEPP56) Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, (SREPSHC) Sydney Harbour Foreshores and Waterways Area Development Control Plan, (WADCP) Environmental Planning and Assessment Act 1979, ss 79C and 97
CASES CITED:	Parrott v Kiama [2004] NSWLEC 77
DATES OF HEARING:	01/05/2006 and 02/05/2006
DATE OF JUDGMENT:	05/19/2006
LEGAL REPRESENTATIVES:	APPLICANT: Mr P Clay, barrister instructed by Mr D G Briggs, solicitor SOLICITORS: D G Briggs & Associates RESPONDENT: Mr S N Griffiths, solicitor SOLICITORS: Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

19 May 2006

11158 of 2005 – Ms Tereza Friskovec and Dr David Bowers v Lane Cove Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Lane Cove Council (the council) of a development application to subdivide into four allotments, the land at Lots 100 and 101, DP 702734, being Nos 1 and 2 Birriwa Place, Northwood. The council has since formally refused the application.

2 I visited the land in company with the parties on the morning of the first day of the proceedings and local residents gave evidence.

3 I have concluded that the application should fail, as the proposed ‘future raised mechanical car turntable and platform’ and likely future, new dwelling houses, would be highly visible when viewed from the Lane Cove River, and could not be built so as to minimise their impact and prominence when viewed from the foreshore.

The land

4 The land is situated on the western side of Birriwa Place and is irregular in shape. It has a frontage of 7.67m to Birriwa Place with an area of 2,515m2, [Note: Survey prepared by Perry Fung Architects Pty Limited 20425/DA02 – A].

5 The land is level at the street frontage and falls steeply down to the Woodford Bay foreshore. The land is adjacent to ‘bushland’ in the regional open space area on the foreshore and nearby.

6 A dwelling house with established gardens is located on each existing lot and there is a boat shed on the foreshore. The brick dwelling house on Lot 100 is two-storeys in height with a tiled roof. The brick dwelling house on Lot 101 is partly single-storey and partly two-storey with flat metal roof and there is a converted garage near the street.

7 There is a single dwelling house at No 3 Birriwa Place to the south of the land. The owner of this land has on 14 July 2000, obtained the consent of the council to subdivide that land, [Note: DA 1654/99]. Under that consent a new Lot 3A, has been created downhill from Lot 3, adjoining the Woodford Bay foreshore.

8 The locality generally comprises of residential homes set in large gardens.

Relevant planning controls

Lane Cove Local Environmental Plan 1987, (LCLEP)

9 Under the provisions of the LCLEP the land is partly zoned Residential 2(a2) and partly zoned Regional Open Space Reservation 9(c) and the subdivision proposal is permissible with consent under cl 12 of the LCLEP in both zones. Also, residential development may take place on the residentially zoned part only.

10 The objective of the 9(c) reservation is:

…to identify, preserve and plan future development of privately owned land of Regional Open Space significance which should eventually be acquired by the State.

11 Under Items 2 and 3 of the land use table there is no development without development consent and the only uses permissible with development consent in the 9(c) zone are listed as:

…bushland regeneration; bush track construction; drainage; earthworks; recreation areas; roads; utility installations (other than gas holders or generating works); works for the purpose of bushfire hazard reduction.

12 Any purpose other than a purpose included in item 3 of the matter relating to this zone is prohibited.

13 There was no dispute between the parties that under cl 12 of the LCLEP,

A person shall not subdivide land to which this plan applies without the consent of the council [or on appeal by the Court].

14 Residential uses are not permitted on land reserved as 9(c).

15 Under cl 9 of the LCLEP, the objectives of the Residential 2(a2) zone objectives are:

…to retain the existing residential amenity of detached single-family dwelling areas. New dwelling houses or extensions of existing dwelling- houses will be permitted only where they would not be highly visible when viewed from the Lane Cove River or Parramatta River.

16 Dwelling houses are permissible under cl 9 of the LCLEP in the 2(a2) zone without development consent.

17 Clause 18G of the LCLEP relates to the conservation of landscape/river scape qualities:

The council, when considering any application for consent to the erection of a structure or the carrying out of a work which will be visible from the site of an item described in Schedule 6, being a site shown on the heritage map (Items of Landscape Significance) must take into account the impact which that development will have on the heritage significance of the Lane Cove River or that landscape feature.

18 Under Schedule 6 of the LCLEP, the items of landscape significance include: ‘Lane Cove River’ being the river and waterway is listed as Item L1; and Woodford Bay is listed as L18.

Lane Cove Development Control Plan -Residential Zone, (RDCP)

19 Under Part II of the RDCP development in foreshore areas is addressed and the objective is to maintain existing residential amenity of foreshore residential development by:

(a) preserving or fairly apportioning water views from foreshore residents, and
(b) minimising the impact and prominence of foreshore development when viewed from Lane Cove or Parramatta Rivers.
(i) Foreshore building line to be setback 2m from escarpment;
(ii) Buildings are not permitted to exceed two levels at any point;
(iii) No dwelling shall be approved between the foreshore setback line and the river (foreshore setback area).

20 Under Part II of the RDCP the ‘Area of Application’ is land within 30m of the mean high water mark, (MHWM). Almost the whole of proposed Lots 1A and 2A would fall within this area. No dwelling house or other structure will be approved between the foreshore setback line set by the council and the respective river within the foreshore setback area.

21 Under Part VII of the RDCP, the objective is to allow ‘residential Torrens title subdivision’, which retains, and where appropriate, improves existing amenity and streetscape ‘within residential zones’, where:

· The minimum area of an allotment created under this Part is 550m2. The access handle of battle-axe allotments is not counted in the calculation of allotment size.

Lane Cove Development Control Plan No 1 - Development Adjacent to Bushland, (DCP1)

22 The aims of DCP1 are:

· To protect both public and private bushland from adjacent development, which could result in altered moisture conditions, increased nutrient levels, soil movement and invasive or inappropriate plant species.

· To retain and protect natural topographical features, remnant bushland areas, plant species and communities and native fauna habitat, which once prevailed, in this locality.

· To retain and regenerate areas of natural bushland which define the essential character of Lane Cove.

· To acknowledge the importance of bushland to the character and value of the locality and its importance in the region.

· To provide a set of development standards that encourage innovation and attractive design which acknowledges the importance of bushland areas through the control of building form, position, colours and materials, hard surface areas, stormwater disposal, soil erosion control, and landscape material adjacent to bushland.

23 DCP1 introduces the concept of a ‘buffer’ that is defined as:

…that part of the development site, which is a transition between the bushland and the building/s except where formed roads adjoin bushland.

24 Under the heading of ‘Areas’ DCP1 states:

Each site will be divided into three areas – building area, buffer area and bushland area. The extent of each area will be established by Council at the time of assessment of any application lodged, following a more detailed site inspection.
The owner, or an agent on the owner’s behalf, may, however, request Council to provide a general indication of the bushland/buffer/building areas on their land. Applicants are encouraged to consult with Council’s Bushland Manager prior to submitting an application.

25 As at 13 July 2005, the council’s Bushland Manager was Mr T Matheson. Mr Matheson had a meeting with the applicant’s architect, following, which he stated, [Note: Exhibit 10, p 42]:

It is my opinion that this property falls within SEPP19 and DCP1 even though the existing native vegetation on the property is of poor quality. As the soil stratum is undisturbed, and the neighbouring properties have good floral diversity, it is possible that this property has the required qualities for the native flora to regenerate.
For consideration of this subdivision proposal the proponent will need to address both DCP1 and SEPP19…

26 In a further internal memorandum dated 13 July 2005, and stated, [Note: Exhibit 10, pp53-7], he did not identify the boundaries between the bushland/buffer/building areas. If approval were granted to the subdivision application, he asked that the Regional Open Space reservation zone be fenced off during development of the land, and that bush/regeneration approved by him be undertaken.

27 Under the heading of ‘Development within Areas’ DCP1 states, [Note: Exhibit 5, pp 4-5]:

Bushland Area: This is the part of the development site adjoining bushland, which contains remnant bushland vegetation and other natural topographic features. It is an extension of the areas of bushland zoned or reserved for public open space purposes and should exhibit the same characteristics as that for the land zoned ‘Bushland’ under the Lane Cove LEP. It may be land, which is currently degraded but forms a continuous link with bushland on neighbouring properties…
Buffer Area: This is part of the development site, which is between the bushland and building areas. Its purpose is to provide a transition between the bushland and the building area to protect the bushland and allow for compatible use. Buildings are not permitted within this area. This can be used for ancillary works, such as outdoor living areas, stormwater detention/ absorption pits, runoff controls, indigenous plantings including vegetation planted adjacent to stormwater detention/absorption pits, services, pathways, filling, temporary storage of materials, bushfire fuel breaks.
Paving not to exceed 25% of this area.
The size of the area may vary depending on the site but a minimum depth of 10 metres should be taken as a guide. Where there is insufficient space for a buffer due to orientation, size or location of the development site, then the applicant must show how the adjacent bushland can be adequately protected according to the aims and objectives of this Plan.
Building Area: This is the part of the development site where buildings are permitted. Buildings, including swimming pools and outbuildings, are permitted in this area up to the common boundary with the buffer area. Paving should be minimised within this area. Significant trees should be retained and should be protected during construction to Council’s satisfaction.

28 The parties agree that SREPP19 applies to the land. The general aim of SEPP19 is to protect and preserve bushland within the urban areas of Lane Cove because of:

(a) its value to the community as part of the natural heritage,

(b) its aesthetic value, and

(c) its value as a recreational, educational and scientific resource.

29 Under SEPP19 ‘bushland’ means land on which there is vegetation, which is either a remainder of the natural vegetation of the land or, if altered, is still representative of the structure and floristics of the natural vegetation.

State Environmental Planning Policy No 56 -Sydney Harbour Foreshore and Tributaries, (SEPP56)

30 SEPP56 applied when the application was lodged with the council, however, it has since been revoked and in its place is the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, (SREPSHC).

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, (SREPSHC)

31 Objective (e) of Zone W8 – Scenic Waters: Passive Use, of the SREPSHC is relevant and states, [Note: Exhibit 8, p 17]:

…to ensure that the scale and size of development are appropriate to the locality and protect and improve the natural assets and cultural scenic quality of the surrounding area, particularly when viewed from waters in this zone or areas of public access.

Sydney Harbour Foreshores and Waterways Area Development Control Plan, (WADCP)

32 The land falls within landscape character area Type 9, under the WADCP, [Exhibit 9, p 27]. Any development within this landscape is to satisfy the following performance criteria:

· it is sited so remaining rock outcrops, clifflines or vegetated shorelines are protected and not obscured;

· it is sited to ensure that the continuous line of any natural feature is preserved and remains the dominant feature in the landscape;

· it is sited and designed to maintain the vegetation cover on the upper slopes and ridgelines;

· …

· …

· colours should match native vegetation as closely as possible with trim colours drawn from natural elements such as tree trunks and stone.

33 Development application No D47/05 was lodged with the respondent council on 2 March 2005 to subdivide the land into four allotments.

34 The proposed subdivision is described in plans 20426/DA01, Revision B, dated 28 March 2006; 20426/DA02, Revision B, dated 28 March 2006, [Note: Exhibit C]. The indicative architectural plans of dwellings on Lots 1A and 2A in Exhibit B include: No 20426/CD00 Revision C dated 28 April 2006; 20426/CD01B; 20426/CD02B; 20426/CD03B; 20426/CD04B; 20426/CD05B; 20426/CD06B; 20426/CD07B; 20426/CD08B; 20426/CD09B, dated 28 March 2006.

35 The subdivision proposal would include the construction of a new driveway and within a right-of-way located between the two existing dwellings to serve the four new allotments and ‘future raised mechanical car turntable and platform’. Some site preparation would be required to construct the new turning area to stabilise the land.

36 The site area of each lot (excluding the vehicle access handle) would be, for site No 1, 620m2; site No 2, 612m2; site No 1A to the north, 623m2; and site No 2A to the south, 660m2. Sites No 1A and 2A have been calculated to include the area of the 9(c) reservation zone.

37 The ‘future raised mechanical car turntable and platform’ would be elevated around 9m above the natural ground, setback about 6.5m from the landward boundary with the Regional Open Space and would extend around 9m to the south of the escarpment, [Note: Exhibit C, Section A].

38 The development application was supported by Statement of Environmental Effects prepared by Ooi Personal Planning Services Pty Limited, dated March 2005; Survey Plan prepared by T J Glibert & Associates, dated 21 April 2005; Geotechnical Report dated, 16 May 2005 prepared by Shirley Consulting Engineers Pty Limited; Waste Management plan; State Environmental Planning Policy No 19, (SEPP19) and Lane Cove Council Development Control Plan No 7, (DCP7) Assessments 95 prepared by Ambrose Ecological Services Pty Limited, dated 8 September 2005; Arborist report prepared by Tree Wise Men Pty Limited, dated 2005.

Notification

39 The application was notified to nearby owners and occupants on two occasions. The first was on 7 March 2005 and the council received sixteen (16) submissions.

40 The concerns on this occasion were:

· Retention of the foreshore area and bushland.

· No suitable building sites on the proposed allotments.

· Access to the site in narrow and unworkable.

· Access for construction of dwellings on the proposed allotments.

· Precedent set by granting such consent.

· Concerns re bird and possum colonies.

· Effect of driveway on the foreshore vista.

· Visual and physical amenity of the neighbourhood reservation of bushland.

· Visual impact from the water of dwelling houses.

· Foreshore building line, 2m from escarpment.

41 The second notification occurred on 3 June 2005 when the applicant provided the additional dwelling concept plans and photomontage, and the council received five (5) submissions.

42 The concerns were:

· Concept dwelling plans are unenforceable.

· Proposed dwellings destroy native bushland and waterfront sandstone escarpment landscape. Buffer zone required in DCP1 of 10m for bushland reserve proposed dwellings encroach onto set back requirements.

· Proposed dwellings will have a detrimental effect when viewed from the water.

· Construction process will have adverse impacts on the land.

· More historical information needed about the site.

43 When the appeal was filed on 4 October 2005, the council had not yet determined the application, thus the appeal is on the basis of a deemed refusal. On 7 March 2006, the council refused the development application for eight reasons, [Note: Exhibit 10, pp 153-4]. These reasons are reflected in the issues in this appeal.

The hearing

44 At the hearing the court heard evidence on behalf of the respondent council from:

· Mr B J McDonald, heritage architect and town planner;

· Mr R S Lembit, ecologist;

· Mr P San Miguel, on behalf of his mother who is resident of No 5 Birriwa Place;

· Mr David Cook, President of the Northwood Action Group and resident;

· Ms J Rowe, resident of No 83 Northwood Road, Northwood;

· Ms S Price, resident of No 79 Northwood Road, Northwood;

· Mr P H Apps, resident of No 81 Northwood Road, Northwood, [Note: Exhibit 19]; and

· Mr R Paisely resident of No 1A Biriwa Place.

45 On behalf of the applicant evidence was given by:

· Mr M W Harrison, architect and town planner;

· Dr S Ambrose, consultant ecologist; and

· Mr P N Castor, arborist.

46 The Court-appointed urban designer was Mr N R Dickson, architect/town planner.

47 Mr S Pratt, Manager -Development Assessment prepared a statement of basic facts dated 8 November 2005.

The issues

48 On 8 November 2005, the council filed a statement of issues.

Heritage/scenic impacts

will have an adverse impact on the foreshore of Woodford Bay.
Particulars
Woodford Bay is an item of heritage significance in the heritage map within the Lane Cove Local Environmental Plan 1987 (LEP 1987) and hence clause 18G. and Schedule 6 of the LEP 1987 apply.
See also the Planning Principles set out in paragraphs 12 and 13(b), (c), (f) and 1(a), (b), (d) Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 ("SREP (Sydney Harbour Catchment) 2005").

2.1 is of an inappropriate size and scale;
2.2 does not protect and improve the natural assets and natural and cultural scenic quality of the surrounding area particularly when viewed from Woodford Bay;

Particulars
Part of the land is zoned Scenic Waters: Passive Use -Zone No W8, SREP (Sydney Harbour Catchment) 2005 and development thereon must be consistent with the objectives of the zone pursuant to clause 17(2) thereof. The relevant zone objective contravened is Objective (e) of Zone No W8.
The whole of the land the subject of the development is land within the Foreshores and Waterways Area of SREP (Sydney Harbour Catchment) 2005 and clauses 25 and 26 apply.
The Sydney Harbour Foreshore and Waterways Area Development Control Plan 2005 applies to the whole of the land and part 3.2 thereof requires that the development mini mise any significant impact on views and vistas to and from Woodford Bay
2.3 will have an adverse cumulative environmental impact.
Particulars
Clause 21(h) applies of the whole of the land and requires consideration of the cumulative environmental impact of the development.
2.4 is not sited
2.4.1 so remaining rock outcrops, cliff lines or vegetated shorelands are protected and not obscured;
2.4.2 to ensure that the continuous line of any natural feature is preserved and remains the dominant feature in the landscape;
2.4.3 to maintain the vegetation cover on the upper slopes and ridgeline;
Particulars
Pursuant to the Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 the land is Landscape Character Type 9 and the Statement of Character and Intent therein applies

Deleted.

Particulars
The zone 2(a)(ii) Objectives LEP 1987
Clause 9(3) of the LEP1987

5.1 the development will have an adverse impact on the natural vegetation, landforms and topographical features of the bushland the subject of the proposed subdivision, including, but not limited to that portion of the site is zoned regional open space reservation.
Particulars
DCP1-control of development adjacent to bush land, clauses 2, 5 to 12.
SEPP19 clauses 6 and 7.
SEPP56 clauses 6 and 7(d).
The planning principles set out in paragraphs 12 and 13(j) SREP (Sydney Harbour Catchment) 2005.
The development as described in 5.1 above, is contrary to the aims and objectives of the LEP 1987 in relation to conservation.
Particulars
LEP1987 clause 2(d)(i), (ii) and (iii)
5.3 No 1 Birriwa Place adjoins bushland zoned for open space purposes and the development will have an adverse impact thereon.
Particulars
SEPP 19 clause 9.
SEPP56 clauses 6 and 7(d).
Planning principles set out in paragraph 12s and 13(j) SREP (Sydney Harbour Catchment) 2005.

Impacts on existing residential occupancies on the land

6.1 it will unreasonably curtail the availability and use of their private open space: and
6.2 the proposed driveway between existing residential occupancies will the track from the visual amenity, landscape amenity and privacy.
Particulars
Zone 2(a)(ii) objectives LEP 1987.
Clause 9 of the LEP 1987.
Lane Cove DCP-residential zone - Part VII (residential subdivision) objective 1.

Objectors

7.1. retention of the foreshore area and bush land:
7.2. concept dwelling plans are unenforceable:
7.3. proposed dwellings destroying native bush land and waterfront sandstone escarpment landscape;
7.4. proposed dwellings encroach on to setback requirements;
7.5. buffer zone required in DCP of 10m from bushland reserve;
7.6. access to the site is narrow and unworkable;
7.7. access for construction of dwellings on the proposed allotments;
7.8. construction process will have adverse impacts on the land;
7.9. precedent set by granting such a consent,
7.10. concerns re bird and possum colonies;
7.11. effect of driveway on foreshore vista.
7.12. visual and physical amenity of the neighbourhood
7.13. preservation of bushland.
7.14. visual and physical amenity of the neighbourhood
7.15. preservation of bushland
7.16. visual impact from the water of dwelling houses
7.17. foreshore building line 2m from escarpment:
7.18. more historical information needed about the site.

49 The following emerged as the salient issues:

· Highly visible future dwelling houses.

· No buildings in the foreshore buffer area.

· Heritage/ scenic impacts.

· Scenic Waters: Passive Use -Zone No W8, SREP (Sydney Harbour Catchment) 2005.

· SEPP19.

The evidence and findings

50 I have concluded that the application should fail, as the proposed ‘future raised mechanical car turntable and platform’ and likely future, new dwelling houses, would be highly visible when viewed from the Lane Cove River, and could not be built so as to minimise their impact and prominence when viewed from the foreshore.

Highly visible future dwelling houses

51 In Parrott v Kiama [2004] NSWLEC 77 the Senior Commissioner concluded that where the allotments in a subdivision are smaller than those nearby or in an environmentally sensitive area, the design of the future house, [or houses in this case], (at least the outline design) is not a matter that is appropriately left till later.

52 The subject land could be considered as environmentally sensitive because of its location near the foreshore, zoned Regional Open Space Reservation 9(c) (ROS) with bushland regeneration as one of a limited palette of uses. Thus I am satisfied that the design of future houses should be taken into account in an assessment of the subdivision application.

53 Indicative houses are shown in the plans in Exhibit B. The area of the land directly impacted upon by the proposed new dwellings on Lots 1A and 2A, is significant and combined with the area occupied by the ‘future raised mechanical car turntable and platform’ that is part of the subdivision application, should be taken into account in assessing the impacts.

54 Under cl 9 of the aims and objectives of the Residential 2(a2) zone under the LCLEP, “[n]ew dwelling houses… will be permitted only where they would not be highly visible when viewed from the Lane Cove River or Parramatta River.”

55 In order to understand the visual impact of the proposed dwelling houses on the view from Lane Cove River, it is necessary to understand how many of the screening trees on the land would be retained. Of significance in this respect is the extent of proposed engineering to stabilise the land.

56 Shirley Consulting Engineers Pty Limited in a report (Shirley report) dated 25 May 2005, made recommendations for improving the stability of the subject land in the ‘sloping area below the cliff’. The report stated that the ‘simplest solution’ would be to, [Note: Exhibit 1, last Annexure, p 8]

· break up the larger boulders where close to [viz within about 2m of] the proposed houses, and

· remove a substantial proportion of the soil and colluvium materials from the site.

The result of this work would be to create a series of excavated benches, which essentially follow the ‘benched bedrock’ cliff lines [see Drawings No BG031G13 & G14].

57 As was noted on page 7 of the Shirley report in the area of the sloping area below the cliff, “…the nature of the site soils and colluvium materials are such that long term downhill ‘creep’ will probably occur; as a consequence, these materials could exert significant lateral forces on any site structures and /or building footings.”

58 The diagrammatic sections attached to the Shirley report; show excavation, even intruding into the 9(c) Regional Open Space reservation zone. Mr Castor indicated that this colluvium provides the structural support and nutriments for the vegetation on the land. If the engineering recommendations contained in the Shirley report were carried into effect, it might be expected that most, if not all, vegetation would be removed from the land. This would have a dramatic impact on the character of the foreshore and would render the new dwelling houses ‘highly visible’.

59 Mr Castor in cross-examination said that he had not read the geotechnical information contained in the Shirley report. Despite this he was satisfied that no level platforms are required and pole framed houses would normally “…sit over the rocks.” He agreed that it might be likely that some of the colluvium and boulders would need to be removed. He said that he did agree with a lot of the material contained in the geotechnical report, however, he said, “…if large amounts of soil were removed there would be an issue.”

60 Despite the evidence contained in the Shirley report, the applicant sought to retain most of the vegetation growing within the ROS and some on the residentially zoned land. It is proposed to remove some exotic species within the ROS but most of the large trees would be retained. The screening effect of this vegetation from viewpoints to the west, on the water and within public land is described in the amended photomontage in Exhibit 23. This shows that the lower levels of the proposed new dwellings erected below the cliff line would be obscured from view.

61 However, were the trees in the ROS removed, as part of the stabilisation of the land much more of the new development would be visible and ‘highly visible’. Although the extent of the removal of vegetation was somewhat unclear, I have concluded that there would be a significant change to the character of the foreshore. I am also of the opinion that future dwellings would be highly visible behind the screen of trees.

62 As a result I am satisfied that the new dwelling houses would be ‘highly visible’ when viewed from the Lane Cove River and the subdivision application is be refused consent.

63 Mr Harrison’s evidence did not add greatly to my understanding of the visual impact of the subdivision application and the erection of future dwellings. He considered the two dwellings with rooftop parking deck as proposed to be the ‘simplest’ and with the ‘…least impact on the site and visual context’. Conscious of the visual impact of the white painted dwelling at No 1 Birriwa Place, he recommended that it be painted in a recessive colour, [Note: Exhibit D, p 16]. I have formed a different conclusion to him in regard to the substantive matters as explained above.

No buildings in the foreshore buffer area

64 If the Regional Open Space reservation zone 9(c) (ROS) were taken as being the ‘Bushland Area’ of the development site, the ‘Buffer Area’ would extend around 10m from the boundary with the ROS towards the escarpment under cl 8 of DCP1. Mr Dickson showed this interpretation of buffer area in Figure 6 of his report, [Note: Exhibit 3, p 17]. He considered the proposal to erect buildings would not be permitted in this buffer area.

65 The evidence of Mr Dickson persuades me, that DCP1 would require a ‘Buffer Area’ of around 10m, on the landward side of the ROS reservation zone so as to protect the bushland from adverse environmental impacts. Within this buffer area no buildings are to be erected.

66 At the subdivision stage, the ‘future raised mechanical car turntable and platform’ would be visible above the remaining trees, as it would be 9m above the natural ground level and jutting out around 9m from the cliff face, and would be erected within the buffer area and would remove trees and might result in altered moisture conditions, increased nutrient levels, soil movement and invasive or inappropriate plant species. Future dwellings that are shown being erected setback between 705mm and 4,645mm of the ROS would increase this impact.

67 Such development as proposed would fail, under cl 8 of DCP1, to retain and protect natural topographical features, remnant bushland areas, plant species and communities and native fauna habitat, which once prevailed, in this locality; would also fail to retain and regenerate areas sufficient areas of natural bushland, which define the essential character of Lane Cove; would also fail to acknowledge the importance of bushland to the character and value of the locality and its importance in the region.

68 The subdivision application to erect the ‘future raised mechanical car turntable and platform’ and provide for future dwellings within the ‘Buffer Area’ fails, as it would be contrary to the intention of DCP1 to protect both public and private bushland from adjacent development.

Heritage/ scenic impacts

69 Under cl 18G of the LCLEP there is a need “…to conserve the landscape/river scape qualities.” The proposal would fail in this regard and would adversely impact on the heritage significance of the Lane Cove River and Woodford Bay, both listed under Schedule 6 of the LCLEP. I consider the proposed subdivision involving the erection of a ‘future raised mechanical car turntable and platform’ and later dwelling houses would change the character of the foreshore from one of where vegetation predominates to one where the built form predominates.

70 Mr Lembit stated, the proposal “…fails to protect the natural landscape values, and accordingly will have a detrimental impact on the heritage values of Woodford Bay, listed as an item of heritage significance…” [Note: Exhibit 15, p 5]

71 I accept the evidence of Messrs McDonald and Lembit in this regard and I am of the opinion that the proposed subdivision would “…erode the special character and heritage significance of Woodford Bay”, [Note: Exhibit 12, p 2]. I find that the subdivision application must fail, as it would not conserve the landscape/river scape qualities of Woodford Bay and the Lane Cove River.

Scenic Waters: Passive Use -Zone No W8, SREP (Sydney Harbour Catchment) 2005

72 I accept the evidence of Mr McDonald, who concluded that the subdivision proposal would be inconsistent with Objective (e) for the W8 zone under SREPSHC as it would not “…protect and improve the natural assets and cultural scenic quality of the surrounding area, particularly when viewed from waters in this zone or areas of public access.”

73 My reason for this finding is that the scale and size of the proposal, both at the subdivision stage and the dwelling stage, would be inappropriate to the locality and would fail to protect and improve the natural assets and cultural scenic quality of the surrounding area, particularly when viewed from waters in this zone or areas of public access.

SEPP19

74 I am satisfied that there is ‘bushland’ on the land, as defined under SEPP19, mainly situated within the ROS, but not exclusively situated there. Despite there being some exotic species in the ‘sloping area below the cliff’ there is vegetation, which is either a remainder of the natural vegetation of the land or, if altered, is still representative of the structure and floristics of the natural vegetation outside the ROS.

75 Dr Ambrose, assumed in his SEPP19 assessment report, “…no construction will occur west of the Regional Open Space,” (ROS) and thus “…the most intact areas of riparian vegetation within the subject site will not be directly impacted on provided that adequate measures are undertaken to avoid indirect impacts” including sediment and pollution runoff from upslope construction areas. [Note: Exhibit H, Annexure B, p 13]. He concluded that in respect of the subdivision proposal:

If the applicant follows the vegetation management plan outline in the present report, then the proposed subdivision will conform with the regulations associated with SEPP19 and Lane Cove Council’s DCP1…

76 In a later report on bushland impacts, he stated that as a result of subdivision of the land,

“[f]orty-six trees (46) would be retained on the site and adjoining areas and 18 trees would be removed as a result of the proposed subdivision and placement of construction footprints. Four of the 18 trees to be removed (22.5%) would be native trees, the remaining 14 trees to be removed (77%) would be exotics. Therefore 91.5% of the native trees (43 of 47 trees) would be retained, whereas 82.4% of the exotic trees (14 of 17) would be removed.

77 Dr Ambrose apparently, did not consider the implications of the Shirley report and perhaps underestimated the construction impact of the proposal. If the recommendations of the Shirley report were carried into effect, the impact would be so great as to cause me to refuse the subdivision application.

78 Mr Lembit did not specifically address the SEPP19 implications of the subdivision proposal but considered it would “…result in a loss of the majority of the tree species which now occur on the land between the Regional Open Space Line and the sandstone rock face below the existing residences.” He said, “…this will have a degrading impact on the landscape values of the area particularly when viewed from the Lane Cove River and Woodford Bay. The landscape character will become increasingly urbanised…” [Note: Exhibit 15, p 5].

79 Even if the site could be developed in a manner anticipated by Dr Ambrose, the erection of the ‘future raised mechanical car turntable and platform’ and the future dwellings would be problematic and might not effectively protect and preserve bushland within the ‘sloping area below the cliff’ being an urban area of Lane Cove.

Objections

80 The objections were many, but most related to the impact of the development on the verdant quality of the land near the water and its associated fauna and flora. I am satisfied that the proposed subdivision would adversely impact on the Woodford Bay foreshore area and bushland and as a result should be refused.

81 I would not refuse the application for reason of the noise associated with the proposed new garage or car port on Lot 1 provided that structure were setback sufficiently from No 83 Northwood Road.

Other matters

82 Were the Regional Open Space Reservation 9(c) zone land subdivided as proposed; there is a question as to whether the objectives of the LCLEP relating to the reservation and residential zones could be met. As Part VII of the RDCP applies only ‘…within residential zones’ and for ‘residential Torrens title subdivision’, there might be debate as to whether the Regional Open Space Reservation 9(c) zoned land should or should not be included in the minimum allotment size as dwelling houses are not permissible in that zone. If it were not included the minimum allotment size for Lots 1A and 2A would not be met. As this matter was not argued before me, I have not given any weight to this in making my findings.

83 If the Regional Open Space Reservation 9(c) zone on Lots 1A and 2A were to be acquired by the State, the land area within the 2(a2) zone would be severely limited. The land area within the ROS is about 445m2 [Note: Exhibit C] and if this area were deducted, the site area of proposed Lots 1A and 2A would be significantly undersized with limited setbacks from the ROS boundary. However, this is not a matter that I have given any weight to, in finding that the present application should be refused.

84 I have distinguished the subdivision of Lot 3A, to the south of the land, from the present application. Lot 3A is not as steep over the building area, and does not have a cliff crossing it, as does the proposed Lots 1A and 2A and the vehicular access is not elevated 9m above the ground. The proposed dwelling on the new Lot 3A, if erected as shown in the indicative outline on Drawing No 20426/CD00C, would not provide much separation between its western façade and the ROS. One similarity between the Lot 3A and the subject proposal, is that if the ROS on Lot 3A were acquired by the State, the land area within Lot 3A, within the 2(a2) zone, would be severely limited and its relationship to and adverse impact on the ROS would also be significant in my opinion.

85 Under Part II of the RDCP “no dwelling house or other structure will be approved between the foreshore setback line set by the council and the respective river within the foreshore setback area.” Messrs Dickson and McDonald agreed that by setting back 2m from the top of the escarpment or cliff line the foreshore setback line would be determined in the present case. Mr Harrison disagreed with this, because the line “…should be assessed on a case by case basis,” and he noted that setbacks vary considerably around Woodford Bay, [Note: Exhibit 14, p 1, para 1.2]. I am satisfied that there is an argument for fixing the foreshore setback line as indicated by Messrs Dickson and McDonald.

86 Messrs Dickson and McDonald were of the opinion that as a result of the location of the proposed new driveway, there would be an unacceptable visual and acoustic impact on the occupants Nos 1 and 2 Birriwa Place. Mr Harrison considered this to be “…fairly normal”, [Note: Exhibit 14, p 2, para 3.2]. I consider that because of the proximity of the proposed driveway to the houses it would be difficult to attenuate the noise of vehicles and visually screen the driveway. However, I would not refuse the application for this reason.

87 For the above reasons, the appeal is dismissed.

Orders
88 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No D47/05 lodged with the respondent council on 2 March 2005 to subdivide into four allotments the land at Lots 100 and 101, DP 702734, being Nos 1 and 2 Birriwa Place, Northwood is refused consent.

3. The exhibits except for Exhibits A, B, C, 1 and 2 are returned.

S J Watts

Commissioner of the Court

sw

22/06/2006 - Deleted 'Ms' from the title - Paragraph(s) Title