Toft v Byron Shire Council

[2010] NSWLEC 1128

Land and Environment Court

of New South Wales

CITATION:	Toft v Byron Shire Council [2010] NSWLEC 1128
PARTIES:	APPLICANT Graeme Toft RESPONDENT Byron Shire Council
FILE NUMBER(S):	10762 of 2009
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- demolition of existing dwelling and the construction of a new dwelling - streetscape/character - front setback - loss of endangered ecological community - excessive cut and fill
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Threatened Species Conservation Act 1995 Byron Local Environmental Plan 1988 State Environmental Planning Policy No. 26 - Littoral Rainforests State Environmental Planning Policy No. 71 - Coastal Protection
DATES OF HEARING:	15, 16 April 2010
EX TEMPORE JUDGMENT DATE:	16 April 2010
LEGAL REPRESENTATIVES:	APPLICANT Ms J Reid, solicitor SOLICITORS Pikes Lawyers RESPONDENT Mr A Seton solicitor SOLICITORS Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

16 April 2010

10762 of 2009 Graeme Toft v Byron Shire Council

JUDGMENT

This is an appeal against the refusal by Byron Shire Council (the council) of Development Application DA10.2008.12.1 for the demolition of existing dwelling and the construction of a new dwelling at 142 Beach Road, Broken Head (the site).

The site

2 The site is lot 8 in DP 238693. It is generally rectangular in shape with a street frontage of 22.81 and an area of 860 square metres. The site rises steeply from the street and is heavily vegetated at the rear. The vegetation has been identified as Littoral Rainforest in the New South Wales North Coast Sydney Basin and South-East Corner Bioregions as an endangered ecological community (the EEC) under the Threatened Species Conservation Act 1995.

3 The site has an existing older style dwelling located close to the street frontage and forms part of a group of similarly sized lots on the southern side of Beach Road containing residential dwellings, some recently constructed.

Relevant planning controls

4 The site is within Zone No 1(a) (General Rural Zone) under Byron Local Environmental Plan 1988 (LEP 1988). Clause 2(1) provides aims of the plan, cl 2(2) provides objectives and cl 2(3) provides guiding principals. Clause 2A(1) provides that consent may only be granted, if in the opinion of the consent authority the development is consistent with the aims, objectives and guiding principals in LEP 1988. The relevant aim is cl 2(1)(d) and the relevant objective is cl 2(2)(c).

5 Clause 2A(2) requires that before determining a development application the consent authority shall have regard to the information, guidelines and recommendations in a number of identified studies adopted by the council. The relevant study is the Byron Diversity Conservation Strategy.

6 Clause 9(3) provides that consent cannot be granted unless the proposed development is consistent with the zone objectives. The relevant zone objectives are:

(a) to encourage and permit a range of uses creating a pattern of settlement at a scale and character that maintains or enhances the natural; economic, cultural, social and scenic amenity of the rural environment of the Shire of Byron
(b) to encourage and permit a pattern of settlement which does not adversely affect the quality of life of residents and visitors and maintains the rural character.

7 Clause 15(2A)(d) allows a dwelling house to be constructed on the site and cl 40(2)(b)(i) and (ii) provides requirements for height and it was agreed that the proposal satisfies the height requirements in this clause.

8 Byron Shire Council Development Control Plan 2002 (DCP 2002) applies. Pt C addresses Residential Development. Part C 2.5 provides requirements for a building height plane, pt C 2.6 provides requirements for front, rear and side setbacks, pt C 2.7 provides requirements for the extent of earthworks, pt C 3.1 provides requirements for visual impact, pt C 3.2 provides requirements of building design in rural areas, pt C 4.1 provides requirements for density control and pt C 4.3 provides requirements for landscaping. Pt H 11.5 provides requirements for existing vegetation.

9 Other relevant planning documents are:

• State Environmental Planning Policy No. 26 - Littoral Rainforests (SEPP 26),
• State Environmental Planning Policy No. 71 - Coastal Protection (SEPP 71),
• North Coast Regional Environmental Plan,
• New South Wales Coastal Policy 1997, and
• Byron Shire Council Biodiversity Conservation Strategy.
The contentions

10 The contentions raised by the council relate to:

1. the unacceptable impact on the streetscape and character,
2. the loss of natural vegetation, particularly the EEC located on the site, and
3. excessive cut and fill.

11 Apart form the expert evidence, evidence from the owner of the dwelling to the east and also the occupier of this dwelling was provided on the site view. They expressed similar concerns to those contentions identified by the council, with the additional concerns relating to:

1. loss of outlook; and
2. overshadowing.
Streetscape/character
The evidence

12 This contention was addressed by Mr Steve Layman for the council, and Ms Allison McCabe for the applicant. Mr Layman states that the design of the dwelling projects the roof forward to the street and this makes the proposal prominent in the streetscape. Adjoining development is visually recessive compared to the proposal. While landscape screening has improved through modifications to the original proposal, the double garage doors present uncharacteristically to the street. This is exacerbated by the non-compliant and small setback to the street. The height of the building, combined with the inadequate setbacks to the street and the elevated topography of the site would be in stark contrast with surrounding development, which is dominated by landscaping rather than buildings and hard structures. The proposal will have a very “built up appearance from the street” according to Mr Layman.

13 The relevant front setback for a rural zoning in DCP 2002 is 15 m. In her opinion, and as the site comprises one of six dwellings in a group in an isolated location, it has the character of a small rural village. The setbacks of adjoining and nearby structures are 4.5 m to 6 m for lot 7 (directly to the west), 9.4 m to 14 m for lot 9 (directly to the east) and approximately 7 m for lot 10. The existing dwelling on the site has a setback between 3.5 m and 5 m.

14 With the proposed development having a street setback of 4.5 m to the patio, 6 m to the garage, 7 m to the rumpus room, and 8.041 m to 10.33 m to the first floor pergola, Ms McCabe states that the proposed setbacks are appropriate given the context of the site and the variation in the alignment both horizontally and vertically. The setbacks are reflective of the recent approval of a dwelling on lot 10. In her opinion, the development complies with the more relevant residential requirements in DCP 2002 (rather than rural requirements) of 6.5 m and 4.5 m for structures less than 3.6 m in height.

15 Ms McCabe notes that the building complies with the height controls in cl 40 of LEP 1998 and the building height plane requirements in pt C 2.5 of the DCP.

Findings

16 The question of whether the proposed development impacts unacceptably on the streetscape and character of the area is unquestionably linked to the other major contention identified by the council of loss of vegetation at the rear of the site. Given the same sized dwelling, a greater setback will require the removal of further vegetation. I did not understand there to be any suggestion that the site should not be developed, so the issue essentially becomes a question of balance between providing a front setback that minimises the impact on the streetscape and character, and at the same time maximises vegetation retention.

17 The design of the building also impacts on the streetscape and character consideration. The Element Objective for Setback at pt C 2.6 of DCP 2002 is:

To achieve varying and interesting streetscapes, good orientation of residential developments with regard to sun, shade, wind and neighbouring development, and effective use of allotments to create private open space and courtyards .

18 The Element Objective for Visual Impact at pt C 3.1 of DCP 2002 is:

To maximise the aesthetic character of the built environment consistent with the subtropical character of Byron Shire .

19 Part C 2.6 of DCP 2002, also provides the opportunity for a variation to the setback having regard to a number of matters. In this case, the relevant considerations are:

( a) the visual impact of the variation on the streetscape;
(b) the impact of the variation on the amenity, privacy, views and access of surrounding properties.

20 In balancing the competing evidence of Mr Layman and Ms McCabe and considering the DCP 2002 requirements, the particular characteristics of the site and the design of the dwelling, I agree with conclusions of Ms McCabe for a number of reasons.

21 First, as the site contains an EEC it is sensible and practical to use that part of the site currently not occupied by the EEC or other vegetation. This area is principally the existing dwelling that is located a setback of between 3.5 and 5 metres from Beach Road. The use of this area would mandate a reduced setback to Beach Road.

22 Second, the 15 m setback required by DCP 2002 is clearly impractical for the site. I did not understand Mr Layman to suggest that this setback was appropriate. The fallback position in terms of a front setbacks in DCP 2002 is for residential development. This classification is probably more relevant given the residential style settlement pattern around the site. Based on the evidence of Ms McCabe, the proposal complies with the numerical requirements in DCP 2002 for this form of development.

23 Third, the provision of landscaping to screen the development is acceptable. While not fully supported by Mr Layman, recent amendments to the landscaping at the front of the site have improved the ability to provide landscaping that would be visible from Beach Road. The agreement by the council to allow additional landscaping on the footpath area further increases the screening and landscape presentation to Beach Road.

24 I am satisfied that the element objectives in pt C 4.3 of DCP 2002 in relation to landscaping are satisfied by the proposed development, particularly the objective that states:

To enhance the visual quality of residential areas and to improve the residential amenity of the Shire.

25 Fourth, the design of the building steps up the site and does not present excessive bulk at the setback area. While the garage doors will be noticeable in the streetscape, their presence will only be noticeable when viewed directly in front of the site, as the proposed landscaping will screen the garages and most of the proposed dwelling from more oblique angles when travelling along Beach Road. I note the applicant has adopted Mr Layman’s suggestion of providing separate garage doors rather than a single double door to reduce the visual impact of the garages.

26 While it was argued by Mr Layman that the proposed dwelling was overly large in size, the test of whether this is a valid argument must be based on a comparison with the council’s planning controls. If considered in this context, there was no dispute that the dwelling satisfies the requirements for building height plane, floor space ratio height and setbacks with the exception of the front setback. On this basis, I do not accept that it can be reasonably argued that the dwelling is too large for the site.

27 Fifth, the adjoining and nearby dwellings have varied setbacks. Whilst some dwellings are located towards the rear of the site, other structures, such as carports, are located closer to the street. Their visual presence is limited in the streetscape due to the extensive landscaping and I see no reason why the proposed landscaping, even to a lesser extent, will not achieve a reasonable level of screening, in this case.

28 Sixth, I am satisfied that the proposal satisfies the element objectives in pt C 2.6 and pt C 3.1 of the DCP, given the need to balance the setback and vegetation retention issues relating to the site. I am also satisfied that the variation of the setback control can be supported, in that the impact of the variation does not unacceptably impact on the streetscape and that there are no amenity impacts on adjoining properties. This was a conclusion reached by both Mr Layman and Ms McCabe.

Vegetation
The evidence

29 Dr Kevin Mills provided evidence for the council on the EEC issue and Mr Peter Parker provided evidence for the applicant. They produced a joint report that identified areas of agreement and disagreement. They agreed on the extent of the EEC on the site, being an area of some 503 sq m and that the proposed development will remove 171 sq m of the EEC. This area contains some 34 trees ranging from some canopy trees to smaller trees from 3 m in height. The 34 trees also include trees within 2 me of the proposed building.

30 Dr Mills and Mr Parker agreed that the EEC on the site is degraded, primarily through weed infestation. The removal of some canopy trees has allowed light penetration to the understorey and that weed management would be the key to achieving good restoration of the EEC. Dr Mills and Mr Parker also agreed on the contents of a Vegetation and Fuel Management Plan that is to form part of any approval. The experts also agreed that the development was unlikely to have a significant effect on the EEC.

31 An additional consideration in the impact of the proposal on the EEC is the need to provide an Asset Protection Zone (APZ) as a requirement of the Rural Fire Service in their General Conditions of Approval. The APZ is to be located 10 m from the building and is to be maintained at a surface fuel level of 3 to 4 tonnes per hectare. The tree canopy cover is excluded from the requirements of Planning for Bushfire Protection 2006 for the site, based on the advice from the Rural Fire Service.

32 Dr Mills maintains that the proposal is not acceptable without the provision of offsets or compensation for the removal of the EEC. Dr Mills also questions whether the proposed area of the site to be rehabilitated can be rehabilitated to resemble the EEC given the requirement for a limit of 3 to 4 tonnes per hectare surface fuel. Mr Parker states that there is no opportunity on such a small site to provide for offsets and that the alternative approach of bushland restoration and weed control will provide for long term gains in biodiversity which is unlikely to occur should the site not be developed. In response to Dr Mills’ concerns over the limit of understorey imposed by the Rural Fire Service, Mr Parker pointed out an area of the EEC on the site inspection near the site in Broken Head Nature Reserve that, in his opinion, had a level of 3 to 4 tonnes per hectare of surface fuel.

Findings

33 On this contention I agree with Mr Parker. To allow the site to be used for residential purposes and allow the construction of a reasonably sized dwelling some encroachment into the EEC is likely given that the relocation of the dwelling closer to the street would have unacceptable streetscape and character impacts.

34 The 117 sq m of EEC to be lost is not insignificant but I am satisfied that the restoration of the remaining 332 sq m is a reasonable response given its current degraded condition. Based on the area identified by Mr Parker in the Broken Head Nature Reserve, I am also satisfied that the Rural Fire Service limit of 3 to 4 tonnes per hectare of surface fuel is not a barrier to the restoration of the EEC.

35 In coming to this conclusion, I am also mindful of the provisions of SEPP 26. The aim of this policy is:

To provide a mechanism for the consideration of applications for development that is likely to damage or destroy littoral rainforest areas with a view to the preservation of those areas in their natural state.

36 The site falls within the requirements of SEPP 26 through cl 4(1)(b) and the concurrence of the Department of Planning is required by cl 7. The Department has granted concurrence subject to a condition of consent requiring compliance with a restoration plan. In granting concurrence SEPP 26 provides matters to be considered in cl 8. Clause 8(1)(c) requires consideration be given to:

(c) If the carrying out of the proposal and the use (if any) thereafter of the land concerned for the purpose for which it will be used may cause destruction or disturbance of the natural environment the public interest (if any) in the carrying out of the proposal in relation to the public interest in the preservation of littoral rainforest in its natural state.

37 The letter from the Department of Planning, in granting consent, concludes with the following comments:

The reason for the condition in any approval is to ensure that no significant ecological impacts result from the proposed development .
Cut and fill

38 The issue of cut is addressed in pt C 2.7 of DCP 2002. The Element Objectives are:

• To minimise environmental impact;
• To blend a new development into the landscape;
• Minimise the disturbance to the natural landform;
• Minimise the risk of soil erosion and sedimentation;
• Encourage landowners to design dwellings that are in keeping with the natural environment.

39 The prescriptive measure is:

Excavation of earthworks to be limited to a depth of 1 metre. Filling is to be limited to a height of 1 m.

40 Ms McCabe states that the maximum fill is 2.5 m at the living room/bedroom area at the first floor level and the maximum cut is 1.9 m at the bedroom wall on the ground floor. In her opinion, the breaches of the 1 m requirement occur at a small number of places and are largely responsive to the changing topography. Also, the larger breaches occur generally within the middle of the building.

41 I accept the evidence of Ms McCabe on this issue that there is sufficient justification for the departure from the 1 m cut and fill requirement. The departure for the 1 m requirement could, in my view, not lead to a finding that the proposal should be rejected for this reason based on the element objectives.

Conditions

42 Of the council’s draft conditions only one condition was in dispute. Mr Layman sought to impose condition 2(a)(3) that deleted the patio at the front of the proposed building and located off the rumpus media room, as it encroached into the already unacceptable setback of the main building. The inclusion of the condition was opposed by the applicant.

Given the proposed landscaping in the front setback, particularly directly adjoining the patio and the relatively small extension in the front of the building and relatively low height, I see no basis for the exclusion of the patio. Consequently, the condition should not be imposed

Conclusion

43 Having considered cl 2A(1), cl 2A(2) and cl 9(3) of LEP 1998 and considering the findings earlier in the judgment there are no matters that would warrant the refusal of the application. Similarly, there are no matters in SEPP 26, SEPP 71, the North Coast Regional Plan or the New South Wales Coastal Policy that would warrant the refusal of the application.

Orders

44 The Orders of the Court are:

1. The appeal is upheld.
2. Development Application No. 10.2008.12.1 for the demolition of an existing dwelling and the construction of a new dwelling at 142 Beach Road Broken Head is approved subject to the conditions in Annexure A
3. The exhibits are returned, with the exception of exhibits A, D and 2.

___________________
G T Brown
Commissioner of the Court