Tyson v Ryde CC

[2005] NSWLEC 473

Land and Environment Court

of New South Wales

CITATION:

Tyson v Ryde CC [2005] NSWLEC 473

PARTIES:

APPLICANT
Colin Michael Tyson

RESPONDENT
Ryde City Council

FILE NUMBER(S):

11037 of 2004

CORAM:

Murrell C

KEY ISSUES:

Development Application :- Construction of 4 villas - Landscaping - Streetscape - Carparking - Driveway - Design - Threatened Species - impact on adjoining residences and impact on riparian zone - Bushfire requirments.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Ryde Planning Scheme Ordinance
Threatened Species Conservation Act
Foreshores and Rivers Act

CASES CITED:

Plumb v Penrith City Council [2005] NSWLEC 223;
BGP Properties P/L v Lake Macquarie City Council [2004] NSWLEC 399

DATES OF HEARING:

22/02/2005 , 2/06/2005

EX TEMPORE JUDGMENT DATE:

08/19/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr A. M. Pickles, barrister
instructed by B T Goldsmith Planning

RESPONDENT
Mr T. Robinson, SC
with Ms S. Duggan, barrister
Instructed by Ms J. Smith
of Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

19 August 2005

11037 of 2004 Colin Michael Tyson v Ryde City Council

JUDGMENT

1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act against Ryde City Council’s refusal of a development application for the erection of four villas on the property known as No. 6 Stratford Avenue, Denistone. The site has an area of approximately 1390 sq m, 20 m in width with varying side boundaries of 72 and 60.

2 The subject site is adjoined at the rear by a creek, which runs into Denistone Park. This is an intermittent watercourse, according to the council officer’s report, that originates in Denistone Park and enters a piped system under the northern railway line. The site is adjoined on either side by residential properties. The provision of access handles provides either dual occupancy or two dwellings on the sites immediately adjoining the subject property.

3 The area is one that is depicted by low and medium density development. There are a number of villa developments in Stratford Avenue and the subject site is Zoned 2(a) under the Ryde Planning Scheme Ordinance where villa development is a permissible use by virtue of an interim development order. In terms of the statutory planning regime for the site, there are few controls within the deemed LEP that relate to the site. The deemed LEP contains a provision for a Tree Preservation Order in terms of cl 41.1 that covers the subject site. The other relevant LEP provisions include cl 34.1: for the erection of a building within view of any waterway or public reserve into consideration is to be given to the probable aesthetic appearance of the proposed building; and cl 56A(3) where in the 2(a) zone, the site area for each dwelling is not less than 300 sq m and that each dwelling must have a landscaped area of not less than 120 sq m.

4 The relevant development control plans include the Urban Housing DCP and DCP21A effective from 2002. The latter contains comprehensive controls for the development of medium density development and the implications of the policy are “if the development of urban housing is to be met the dual objectives of meeting the housing needs of a growing proportion of existing residents and promoting urban renewal. “In addition, the development of urban housing must not have adverse environmental effects.” This plan requires the design of urban housing to provide the best possible environment for a variety of households including empty nesters and older persons” and specifies the locations in the city which are not considered suitable for urban housing called non-preferred locations. Non preferred location are “locations where urban housing development is likely to lead to development, which does not meet the needs of all households, have an adverse environmental impact, and have an adverse impact on the character of the location.”

5 There are a number of aims and objectives in terms of villa homes that were introduced in 1983. These include:

• to provide for an alternative medium density housing form within the city compatible and sympathetic with conventional detached dwelling houses while maintaining the existing character of residential neighbourhoods;
• to reduce the trend of declining population densities within the city by increasing population densities by the dispersal of villa homes within established residential areas;
• to assist in optimising the utilisation of land resources;
• to widen the choice of housing forms within the city; to spread the increase in population densities over all residential areas within the city rather than concentrating such increases in any one area.

6 ‘Non preferred locations’ were discussed during the proceedings and the planners agreed that the assessment is one in terms of the actual site itself and that the non preferred locations require careful assessment in terms of whether development should be approved and it is not raised as a prohibition to the development of this land for a villa development. There is a map that also identifies such areas and land where there is significant vegetation is one such location.

7 For the building form council has in Pt 3 of its DCP extensive controls with respect to the appearance, the roof space, fences, density and site coverage including site coverage must not exceed 40%. The permeable area must not be less than 35% and the minimum private open space requirements of 30 sq m for a two bedroom dwelling and 35 sq m for three or more dwellings. The proposed development does not contravene these controls.

8 The DCP also sets out requirements for site planning, site analysis, setbacks and heights, manoeuvring and the retention of trees requiring a minimum distance from a building of a proposed tree or existing tree to be retained to be 3 m. I will not cite all the controls but it is to be noted that I have carefully considered the proposal in terms of all the development controls in terms of council’s planning framework for the subject site.

9 The other relevant controls which I have also taken into consideration include DCP No. 27, DCP No. 29. There is no dispute that the proposal does not comply with DCP29. There are conditions concerning DCP No. 27 for waste, DCP No. 37, relating to access. DCP No. 41, once again there are a number of conditions which relate to stormwater and DCP No. 45, energy and water. It is noted, although there was no lengthy discussion, there is a draft LEP 129 where the term villa homes will be replaced and there will be a more generic definition of urban housing and there are density controls provided within the draft LEP. There is no issue as to the proposed development not being consistent with the draft LEP.

10 There is also a Tree Preservation and Tree Management Policy and I will note that there was approval by the council for the removal of a large tree on the subject property. The approval for the removal required the planting of two trees in the location or vicinity of the subject tree and this became a matter during the proceedings. At the beginning of the proceedings the council contended that the Court could not consider the application because of this requirement, however council subsequently agreed that there was no legal impediment to this matter being dealt with under the Act by an amendment to the condition of council’s approval under s 80A(1)(b), if the Court found in favour of the development.

11 At the rear of the site and where it adjoins the creek there is significant vegetation, and I must have regard to the impact of the proposed development. I will discuss the eight part test and whether there is a need for a species impact statement as this is a threshold question.

12 The threshold question relates to whether a significant ecological community or threatened species would be impacted by the proposed development. Section 5A of the Environmental Planning and Assessment Act, provides for the administration of s 78A and the following factors must be taken into account in deciding whether there is likely to be a significant effect on threatened species populations, ecological communities or their habitats. This requires the eight part test to determine whether there would be a likely significant impact. Section 78A(8) of the Environmental Planning and Assessment Act requires a development application to be accompanied by a species impact statement if the application is in respect of development on land that is or part of a critical habitat or ecological community. Section 5A specifies a number of factors commonly known as the eight part test that must be taken into account in deciding whether there is likely to be a significant impact on threatened species and this is relevant to the administration of s 78A.

13 To assist in the interpretation of ‘likely and significant’ I refer to her Honour’s judgment in the case of Plumb v Penrith City Council (2002) NSWLEC 223 wherein the Chief Judge states:

“The jurisdictional fact calls for a determination of likely and significant. In referring to s 77(3)(D)(i), predecessor of s 78(8)(b), in Oshlack v Richmond River Council (1993) 82 LGERA 222, Stein J made the following statement at para 233. ‘A body of law has developed in relation to the interpretation of Pt 5 of the Act and the meaning of likely and significant. In the context of Pt 5 likely has been held to mean a real chance or possibility and significantly to mean important, notable, weighty or more than ordinary. I see no reason why these constructions should not be imported into the similarly worded provisions of sections...the same statute is involved and similar approaches are dictated.’”
“I agree with respect with that proposition and I approach the Court’s task accordingly.”

14 With respect to 5A the Chief Judge states:

“The Environmental Planning and Assessment Act requires specified factors to be taken into account in deciding whether there is likely to be a significant effect on threatened species. It is important in my opinion to recognise that the eight part test simply lists factors which must be taken into account. Positive answers to one or more of the eight factors does not mandate an affirmative answer to the question of whether there is likely to be a significant effect on threatened species...nor is a negative answer to the question required if only of the eight factors carries an affirmative answer.”

15 At para 37 and 38 her Honour states:

“Furthermore the critical question is whether there is likely to be a significant effect on threatened species as s 78(A)(8)(b) requires. The application of the eight part test mandated by s 5A is but part of the inquiry which that question poses, it is not the only inquiry. There may be facts and circumstances relevant to that inquiry, which are not specifically contained in any of the factors in the eight part test. Hence in dealing with the application of the eight part test I have not confined my considerations solely to each test but have taken into account other facts and circumstances which are relevant in this case.”
“In addition it is important to bear in mind that s 78A(8)(b) contemplates significant effect. It is not simply any likely effect which will require an affirmative answer to the inquiry yet must be significant and it is the significance of effect that the eight part test is directed.”

16 I have had regard to all the evidence to the Court from the experts and the Court was assisted by joint reports from the experts. The ecological experts are: Mr Kevin Mills for the applicant; and Dr Anne-Marie Clements for the respondent council.

17 In terms of 5A the first test is:

“(a) In the case of a threatened species whether the life cycle of the species is likely to be disrupted such that a viable local population of the species is likely to be placed at risk.”

This is not relevant to the subject case.

18 “(b) Or the fact that the threatened ecological community” - being the Sydney Turpentine Ironbark Forest, although in many respects it seems to be on the cusp of the Blue Gum High Forest and either way it is a threatened species and therefore I must carry out this test - “be in the case an endangered population.”

Once again this is not a relevant consideration for this particular application.

19 “(c) In relation to the regional distribution of the habitat of a threatened species ecological community, whether a significant area of known habitat is to be modified or removed.”

Mr Mills considers that this is a remnant stand of the trees and not a community in its own right but even if I assess it in terms of a community the trees are to be retained and the development will not cause to be removed or modified a significant area of endangered community.

20 “(d) Whether an area of known habitat is likely to become isolated from currently interconnecting or proximate areas.”

Once again the proposed development will not isolate any area of the threatened or endangered community.

21 “(e) Whether critical habitat will be affected.”

This is not applicable to the subject application.

22 “(f) Whether a threatened species population or ecological community are adequately represented in the region.”

From the evidence there are two ecological communities the Sydney Turpentine Iron Bark Forest (STIF) and the Blue Gum High Forest (BGHF), that are not well represented in terms of Sydney Region. There has been a great loss of both these ecological communities that are on the Threatened Species Conservation Act schedule. What I have to consider here is what the impact of this development will have on this community. In terms of (f) it will not impact even though it is not well represented.

23 “(g) Whether the development or activity proposed is of a class of development or activity that is recognised as a threatening process.”

There are some 22 threatening processes that are identified and that includes clearing and one could say there may be some limited clearing but it will not be clearing of significant trees or clearing that with impact on the ecological community.

24 “(h) Whether any threatened species populations or ecological communities is at the limit of their known distribution.”

This site is at the margin of the Sydney Turpentine Ironbark Forest and the transition of the Blue Gum High Forest. Mr Mills considers that it is not at the limit of its distribution at Denistone although close to the southern limit for the Blue Gum High Forest.

25 The council officer in the initial assessment report carried out an eight part test and generally the eight part tests were not dissimilar to Mr Mills responses. For the record the officers report states that it was not considered relevant for (a), (b) was satisfactory, (c) satisfactory regional distribution, (d) satisfactory, (e) not applicable and when it came to whether there is adequate representation in conservation reserves it was noted that there is only 0.9% of one forest type left and 1% of another, and (g) was not considered to be applicable. In terms of (h) the council noted the site is at the margin of the STIF before transition to the BGHF.

26 In terms of an assessment under the eight part test, and being guided by the judgment of her Honour, I am satisfied that the proposed development will not have a likely significant effect on the endangered ecological community and that a Species Impact Statement is not required.

27 I note Dr Clements did not carry out an eight part test but I have the benefit of all of the evidence to the Court. Dr Clement is of the opinion that there would be a significant impact on the endangered community. Dr Clements is of the opinion that a 10 m buffer is required to ensure that the forest is not impacted and that the edge effects of development are something that must be taken into consideration.

28 I have considered the edge effects and I have concluded that the proposed development will not impact on the endangered community and that with the conditions as framed by both the applicant and the council the proposed development is one that would not impact on the riparian zone or the endangered community. In terms of the edge effects if one looks at the 1930 aerial photograph comparing this to a very recent aerial photograph we can see that there is much greater density of canopy trees and vegetation than on the 1930 aerial photograph in the vicinity and on the subject site.

29 I am not persuaded that the ‘edge effects’ of urban development in this area are a cause for concern. People and the trees are coexisting quite harmoniously on this side of the street adjoining the creek and park where there has been either other medium density development, dual occupancies and battle axe subdivisions.

30 There was discussion during the proceedings about how one classifies the growth of the trees in terms of their vigour. It is not necessary for me to make a determination of whether it is medium or low. I am satisfied with the conditions, in particular to ensure that the water regime for the vegetation is maintained in terms of the footprint of villa A. In this regard, as I stated, the applicant proposed a condition.

31 I will say at this point in my judgment, (as this is a verbal judgment and I will go through the issues that the council has raised) that I have decided that approval should be granted to the subject development application.

32 The Court first met on site earlier this year and met with the parties and heard from the adjoining resident objectors and the experts gave evidence in Court. On the second day of the hearing the Court adjourned the proceedings to allow amended plans to be submitted by the applicant, that in effect reduce the footprint of villa A at the rear of the site to a two bedroom villa, also removing the need for a visitor car parking space, and there were a number of other amendments in terms of landscaping and in terms of levels. There were also sight lines drawn as well which assisted in the interpretation of the plans and the assessment of the development application. Such an adjournment is not an unusual circumstance in this Court and at the end of the day it facilitates an outcome for the community. The residents were also given the opportunity to comment on the amended plans and their concerns were expressed to the Court.

33 While not a matter for my merits assessment of this application, although a circumstance, concern was expressed about the removal of a tree and the fact the condition imposed by council in the approval that two trees be planted in the vicinity not being complied with. As I stated, the council agreed condition C could be amended, to require the planting of two ‘eucalyptus saligna’ in the locations as marked on the amended landscape plan for the proposed development.

34 Mr and Mrs Mitchell gave evidence and they live at No. 8A Stratford Avenue the property to the north-east of the subject site. It is a battleaxe with a dwelling house and situated adjoining the subject site with a common boundary running to the creek. The Mitchells were concerned about the trees being removed and also concerned about the stability of the embankment of the creek by the development of the subject site and the excavation. They are also concerned about their privacy. The Court understands that where developments are proposed that people a concerned about the continued enjoyment of their amenity and it is important that any future development does not unreasonably impact.

35 Ms Hudson owns the property at No. 4 to the south-west of the subject site and recently an extension to her dwelling house has been completed. Once again the Court must have regard to ensure that her amenity is not unreasonably impacted. She had concerns about the relative level of the driveway adjoining her property and this was clarified and I am satisfied that this will not impact. She was also concerned about the noise from vehicles using the driveway however I agree with the experts that the traffic generated by a four villa development would not warrant refusal of the application. In terms of privacy and having regard to the amended plan I agree with the experts that her privacy is not one that will be unreasonably impacted. The planting of the trees along the driveway has also been changed to ‘blueberry ashes’ in consideration of maintaining solar access and amenity to the property.

36 With respect to Mr and Mrs McMahon of No. 2A, once again they have been long time residents of the area and I understand that residents do not like change in their area and it is the role of the Court to ensure that development is appropriate. They are concerned about the trees and the environment and are of the opinion that four villas is an overdevelopment of the site. They were also initially concerned about the visitor car parking space that was located along the boundary at the rear that is now deleted in the amended plan and this concern is now resolved. In terms of sight distances and separation distances, overlooking and privacy, once again I agree with the planners that their privacy is reasonably maintained by the amended proposal. For concern of the trees on the subject site and the provision of canopy trees in my assessment, with the amended landscape plan, the site will be well vegetated and make a positive contribution to the amenity of the area not only for the occupants of the proposed development but the area in general.

37 Through the course of these proceedings the experts have addressed the concerns of the residents. I am satisfied that the amended proposal provides appropriate separation distances; a satisfactory built form without unreasonable impacts on the streetscape or adjoining properties; and landscaping to complement the proposal. I am satisfied the amenity for adjoining properties will be satisfactorily maintained by the proposed development, including villa A. While the proposal represents a change in the area the impacts are not unreasonable and the development as amended for four villas is not an overdevelopment.

38 There were a number of issues at the beginning of the proceedings with respect to landscaping and overshadowing of the courtyards of the proposed development. Mr Loveday, a senior assessment officer with the Ryde Council, was concerned about the amenity of the courtyards of the proposed villas. However, on closer examination he agreed with Mr Goldsmith the applicant’s town planner, that there would be adequate solar access to each of the courtyards and the amenity of the courtyards is acceptable and would not warrant refusal of the application. Mr Loveday considered that the riparian zone area should not be included in the calculation for landscaped area, however I agree with Mr Goldsmith that there is no reason to exclude this area in the calculation. Mr Loveday was also concerned that the development was concentrated at the front of the site and it presented as excessive hard paved areas for this part of the site and in the streetscape.

39 In my assessment of the amended landscape plan I am satisfied that the proposed villa development is not one that is an overdevelopment, it will sit comfortably in the streetscape with setbacks in accordance or greater than council’s controls and the landscape plan allows for not only maintenance of a vegetated area at the rear of the site but landscaping to also complement the built form when viewed from the public domain and adjacent properties. In fairness to Mr Loveday there have been a number of changes to the plans to mitigate likely impacts of the four villas on the site.

40 The riparian zone of the plantings was also an issue during the proceedings. The Court was assisted by Mr Bourne from the Department of Infrastructure, Planning and Natural Resources who gave evidence to the Court and he also participated in the joint conferencing of experts. The subject development is within 40 m of a creek or water bed and therefore requires a Pt 3A permit under the Foreshores and Rivers Act. The Department has provided its general terms of conditions. A Pt 3A permit needs to be formally obtained but it assists in the assessment of development applications to be alerted to what the Department’s requirements are to assist in an integrated assessment.

41 As noted there was also joint conferencing with Mr Bourne and the other experts and it is clear that Mr Bourne considered that a balanced approach should be taken in the assessment of development applications. In his report Mr Bourne indicated that the Department is interested in exploring ways to reach satisfactory outcomes. The respondent argued that there is an inherent conflict between the fire asset protection zone requirements with clearing for hazard reduction and the riparian zone requirements in terms of the Department’s general terms or conditions. The conditions in this regard have now been amended to accommodate a balance between the riparian vegetation zone and the bush fire hazard reduction area. Mr Bourne recognises that a planning decision is a balancing decision exercise in terms assessing and weighing up objectives. The matter of the riparian zone and the fuel protection area are matters that should be able to co-exist and still reasonable requirements.

42 Furthermore the Court had the benefit of hearing expert evidence from fire experts, Mr Coffey for the applicant and Mr Free for the council. I am satisfied that the proposed development with the type 1 building construction as required in the Australian Standard, and the construction to also include gutter guards proposed by the applicant. This is a relevant consideration in my assessment, and I agree with Mr Coffey that the proposed development will satisfy the requirements of “Planning for Bushfire Protection.” In this regard chapter 4 of this particular document, prepared by the New South Wales Fire Services and New South Wales Planning also has requirements for infill development. It states:

“Infill development is redevelopment in existing areas which may not readily allow for protection zones or access provisions to be applied consistent with planning for bushfire protection. These areas may require greater emphasis on construction standards, landscaping, siting and vegetation management practice to ensure improved levels of protection are afforded to the development’s occupants and fire fighters. However reliance on construction standards alone will not be adequate to provide appropriate levels of safety and people accessing and egressing the development during a bushfire. Separation of vegetation from the development is considered crucial to meeting the performance criteria for protection of buildings in bushfire prone areas and therefore there are a number of minimums that are required.”

43 It also states that:

“a minimum requirement for infill development exists only in recognition that previous land use decisions may make complete compliance with the requirements of this document impracticable”.

44 This document also deals with large subdivisions in Greenfield situations and clearly the subject site does not fit into this category.

45 On the advice of the experts, I am satisfied that the proposed development contains provisions that on a performance based assessment are satisfactory.

46 The same document that I refer to also has a section on change of use, although the infill development category relates more to the proposal.

“Over time developments catering for some uses may need to be upgraded, redeveloped or changed in line with changes in socioeconomic or demographic factors. Where such changes result in increased densities for residential use where new structures are to be erected the provisions of this document should be considered. This could include but is not restricted to construction standards, setbacks, water supply and access.”

47 Then Appendix 3 of the document provides for the level 1 construction for the category of medium bushfire attack and the proposed development is to comply with type 1 construction standards.

48 I note in terms of Mr Coffey’s advice also in his assessment he advises that:

“Whether or not villa A is in the development the requirement for hazard reduction and protection measures on the site do not change. It is the applicant’s intention that where possible and feasible to design a landscape solution that meets not only DIPNR requirements but those of the inner protection zone will be implemented. Put simply, deleting or relocating villa A will not resolve any potential bushfire issue on this site. The resolution is to be found in managing the land in a way that meets planning for bushfire protection guidelines and the riparian protection required by DIPNR.”
“Planning for bushfire protection allows for performance rather than compliance based solutions.”

I had the benefit of hearing from Mr Bourne on the riparian issue and I note this is not Mr Coffey’s area of expertise.

49 Mr Coffey’s recommendations have been picked up in the construction conditions for the dwellings. He also states that:

“There is no specified lineal distance to be established between vegetation and dwelling walls. It is more appropriate to ensure a solution that performs the requirements is put in place. Strict adherence to a five metre buffer is unrealistic, not supported by research or fire behaviour and has less positive impact on fire management than alternative measures.”

50 In terms of the trees it is noted there is one Turpentine that is some 3 m from villa A but all the other trees are at a greater distance. The Sydney Blue Gum is 4 m from the proposed dwelling as shown in the amended plan.

51 In terms of the issues outlined by the council there were a number of issues in the proceedings, however many were resolved and or addressed either prior to the proceedings or through the amended plan process. This process is not an unusual course of action in this Court to provide an appropriate community outcome.

52 In terms of sufficient information the Court is satisfied that the amended plans and information now provided is one that allows a proper assessment and certainty in the planning process.

53 In terms of the threatened species, I have already stated that I am satisfied that approval of this development will not lead to a likely significant impact on the threatened ecological community. In terms of the impact on native vegetation this in many respects coincides with my assessment and I am satisfied the proposed development will allow for continued native vegetation in the riparian zone with the proposed plantings in the landscape plan.

54 Landscaping and streetscape issues. I am satisfied that the proposed development will make a contribution in terms of the streetscape with its landscaping and built form. The current proposal is a satisfactory application and one that would be contemplated in terms of council’s controls.

55 In terms of the environmental capacity of the site, once again even if I look at each of the individual issues or if I look at them cumulatively I am satisfied that four villas in the amended proposal, that is 2 two-bedroom villas and 2 three-bedroom villas is not an overdevelopment of the site and it allows for appropriate landscaping and consideration of the edge impacts on the riparian zone and the ecological community.

56 There was also evidence to the Court from the arborists/horticulturalists: Mr Stacey, a landscape architect for the council and Mr Draper for the applicant. Mr Stacey was concerned about the trees at the rear of the site, in particular the trees closer to villa A, 3 and 4 m away, and a number of other trees being impacted by the proposed development. He cited an example of a residential flat building in Buffalo Road, Ryde, wherein a large tree died. I have not been provided with all the facts of this particular development, for example I am not aware of the conditions under which the excavation occurred for the basement car parking and many other factors.

57 I am satisfied with the conditions contained in the ‘without prejudice conditions’ and those provided by the applicant that the survival of the trees has been carefully addressed. The example referred to by Mr Stacey is not parallel to this development. On the subject site there will be one side of the root zones or part of the root zones of some of the trees closer to villa A that will be affected but there is to be hand excavation and it is also noted, consistent with authorities, that the root zones for the remainder of the areas not be impacted on one side and with careful excavation and the tree management provisions in terms of the tree zones during construction the proposed conditions should provide for their survival.

58 While I am on the issue of trees I shall comment on the council’s condition for two replacement trees. It seems that the residents and the council are concerned about the fact that the tree approved for removal contained a condition requiring two replacement trees within the vicinity and this has not been complied with. This is not directly an issue for the Court in these proceedings but rather whether the development as proposed is appropriate. However, I am also satisfied that the additional two replacement trees can be provided on the site and this is not a reason which would warrant refusal of the application and a suitable condition to amend council’s previous approval has been agreed to by the parties.

59 The other issues raised by council include car parking, manoeuvrability, overlooking, and these matters have been addressed in either the amended plans or in further discussions between the experts and it is agreed these matters are now resolved.

60 An important judgment referred to the Court by the respondent is that of BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 in terms of the precautionary principle contained within the Environmental Planning and Assessment Act. At para 108 and 109 the Chief Judge of this Court, McClellan J noted:

108 “The role of the precautionary principle in environmental decisions was considered by the Court in Leatch v National Parks and Wildlife Services. The proceedings raised a challenge to the grant of licences to take or kill endangered fauna. Describing the precautionary principle as a “statement of commonsense”. Stein J at LGERA 282 said:

‘has already been applied by decision makers in appropriate circumstances prior to the principle being spelt out. It is directed towards the prevention of serious irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty or ignorance exists concerning the nature or scope of the environmental harm decision makers should be cautious.

109 In Greenpeace Australia Ltd v Redbank Power Company [1994] 86 LGERA 143 Pearlman J said:

“The application of the precautionary principle dictates that a cautious approach should be adopted in evaluating the various relevant factors in determining whether or not to grant consent, it does not require that the greenhouse issue should outweigh all other issues.”

61 McClellan J states at para 113 and 114 that:

“In my opinion by requiring a consent authority (including the Court) to have regard to the public interest s 79(c)(e) of the Environmental Planning and Assessment Act, obliges the decision maker to have regard to the principles of ecologically sustainable development in cases where issues relevant to those principles arise. This will have the consequence that, amongst other matters, consideration must be given to matters of intergenerational equity, conservation of biological diversity and ecological integrity. Furthermore where there is a lack of scientific certainty the precautionary principle must be utilised… This will mean the decision maker must approach the matter with caution but will also require the decision maker to avoid where practicable serious or irreversible damage to the environment.”

“Consideration of these principles does not preclude a decision to approve an application in any cases where the overall benefits of the project outweigh the likely environmental harm however care needs to be taken to determine whether appropriate and adequate measures have been incorporated into such a project to confine any likely harm to the environment.”

62 This judgment was raised in respect of the trees to be retained and the impact of the development on the environment. In this matter I have utilised a cautious manner in my decision making and considered the relevant controls and principles and in the circumstances of this case approval is warranted.

63 This also takes me to the need to have a holistic regard to the assessment of development application in terms of the planning regime to assist in a balanced decision. It does not assist the Court by saying that the conflict between a riparian zone and the bushfire requirements are ones that cannot be resolved. It is the role of planners to make such decisions having regard to the planning regime and principles. As I stated, if an ecological species or community is likely to be threatened by a development then clearly this would prevent development. In this case this is not the situation.

64 I will now turn to the conditions. The conditions are as generally agreed to between the parties. That is to refer to the amended plan that shows the changes to the footprint of villa 4, the visitor parking, the amended landscape plan (that has also been seen by the Department) and to bring the development application in line with current practice rain tanks are provided. It would appear that the applicant’s condition FF, however, has not been incorporated and I will do so. That is:

“That the rainwater falling upon villa A shall be collected and stored in a rainwater tank. The rainwater tank shall be connected to low impact agricultural piping or similar that disperses the stored rainwater into the riparian zone at a level above the existing trees in the riparian zone. The volume of the tank and the extent of dispersion should meet the objective of restoring predevelopment flows to the bushland at the rear of site behind villa ‘A’.””

65 I note Dr Clements’ comment that she was concerned about maintaining flows and this is addressed in the above condition.

66 The other conditions relate to, as I stated, the two replacement trees, condition 90. Then there are the conditions that were recommended by the applicant’s arborist, Mr Draper, in terms of the protection of the existing trees in the tree protection zones and they have already been incorporated into the conditions. The Department’s general terms for the Pt 3A Permit are also attached to the conditions.

67 On the basis of my assessment the formal orders of the Court are:

1. The appeal in respect of the property known as No. 6 Stratford Avenue, Denistone is upheld.
2. The development application for four villas on the above site submitted to Ryde City Council and as amended is approved subject to the conditions contained in Annexure A.
3. The exhibits except for 22, M, Y, Z, AA, FF and GG are returned to the parties.

___________________

J S Murrell
Commissioner of the Court
Ljr/rjs