Universal Property Group Pty Ltd v Penrith City Council

[2020] NSWLEC 1040

Land and Environment Court

New South Wales

Medium Neutral Citation:	Universal Property Group Pty Ltd v Penrith City Council [2020] NSWLEC 1040
Hearing dates:	18-19 March 2019; 18-22 July 2019; 6 September 2019
Date of orders:	28 January 2020
Decision date:	28 January 2020
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is dismissed. (2) The development application for a 5-lot subdivision and construction of a dwelling on each subdivided lot at 264-270 Mount Vernon Road, Mount Vernon is refused. (3) The exhibits are returned, except for Exhibit D, H, 17 and 18.
Catchwords:	APPEAL – development application – 5-lot subdivision – impact on endangered ecological community – breach of minimum subdivision lot size development standard – adequacy of the cl 4.6 request – whether adequately addressed environmental planning grounds that justify the contravention
Legislation Cited:	Biodiversity Conservation Act 2016 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Penrith Local Environmental Plan 2010 Sydney Regional Environmental Plan No 20 – Hawkesbury-Nepean River 1997
Cases Cited:	Abrams v Council of the City of Sydney [2019] NSWLEC 1583 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94 Gejo Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1712 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Advice to the Minister for the Environment, Heritage and the Arts from the Threatened Species Scientific Committee on an Amendment to the List of Threatened Ecological Communities under the Environment Protection and Biodiversity Conservation Act 1999 concerning the Cumberland Plain Shale Woodlands and Shale-Gravel Transition Forest listing Approved Conservation Advice for Cumberland Plain Shale Woodlands and Shale-Gravel Transition Forest ecological community, approved by the Minister on 17 November 2009 Australian Standard AS 4970-2009 Final determination of the NSW Scientific Committee Cumberland Plain Woodland in the Sydney Basin Bioregion – critically endangered ecological community listing Penrith Development Control Plan 2014 Royal Botanic Garden Sydney, “Western Sydney Woodland” accessed 7 March 2019 Wilkins et al, “Measuring Success: Evaluating the Restoration of a Grassy Eucalypt Woodland on the Cumberland Plain, Sydney, Australia” (2003) 11 (4) Restoration Ecology 489-503.
Category:	Principal judgment
Parties:	Universal Property Group Pty Ltd (Applicant) Penrith City Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) R White (Respondent)   Solicitors: Swaab Attorneys (Applicant) Dentons (Respondent)
File Number(s):	2018/51150
Publication restriction:	No

Judgment

1. COMMISSIONER: Mount Vernon is a predominantly rural residential area not far from the Western Sydney Parklands. At 264-270 Mount Vernon Road, Mount Vernon, Universal Property Group Pty Limited (“UPG”) seeks development consent for the subdivision of land into 5 Torrens title lots and the construction of a dwelling house on each subdivided lot. A development application seeking the same was lodged with Penrith City Council (“the Council”) on 29 November 2017. Following the expiry of the period after which a development application is deemed to be refused, UPG lodged the present appeal, pursuant to s 8.7 to the Environmental Planning and Assessment Act 1979 (“EPA Act”).

2. The proposed Torrens title subdivision includes the creation of an access handle to 4 of the 5 lots, with a right of carriageway 6.5m wide to serve those four lots. The proposed dwellings to be erected on each lot range in size from a three bedroom two storey dwelling, to an 8 bedroom two storey dwelling with basement car parking. The proposal also includes associated landscaping, stormwater drainage works and on-site waste water management systems for each dwelling. A plan of the proposed subdivision with the proposed building envelopes is at Figure 1.

3. Three business days prior to the hearing, on 13 March 2019, leave was granted to UPG to rely on amended engineering plans, an additional arborist report and further amended reports. Following an adjournment of the hearing, on 7 May 2019, and again on the first day of the adjourned hearing on 18 July 2019, leave was granted to further amend the development application to respond to issues raised by the experts. On 6 September 2019 (a date to which the hearing was adjourned for final submissions) a consolidated set of architectural plans, which had been updated to reflect the changes made on 18 July 2019, were the subject of a further grant of leave to amend the development application. Despite the amendments and the additional information, the Council remains opposed the grant of development consent on the basis of a number of issues that remain in contention, which can be summarised as follows:

• The proposed development results in one lot that is less than the minimum subdivision lot size of 1ha, and the request in support of the variation is inadequate.

• The proposed development is inconsistent with the objectives for development in the zone, and the objectives of the minimum lot size.

• The proposed development would result in unacceptable amenity impacts on the proposed dwellings and neighbouring dwelling houses.

• The proposed development is not compatible with the rural-residential character of the surrounding locality.

• By requiring the removal of a number of trees, the proposed development will have an unacceptable impact on the Cumberland Plain Woodland community, which is a Critically Endangered Ecological Community.

4. For the reasons set out below, I have determined that the written request does not adequately address that there are sufficient environmental planning grounds to justify contravening the development standard. Accordingly, there is no power to grant development consent and the appeal must be dismissed.

The site and its locality

5. The hearing commenced with a site inspection. The site is legally described as Lot 156 in DP 32140 and is located on the southern side of Mount Vernon Road. It has an area of 5.02ha and a frontage of 70.41m to Mount Vernon Road. It is irregular in shape and widens from the north to the south. An aerial image of the site is at Figure 2.

6. The site is undulating, with two peaks within the site and a fall of approximately 15.5m towards the rear. A dam sits at a low point of the property toward the front, and a riparian corridor containing canopy trees identified as forming Cumberland Plain Woodland runs across a low point of the property towards the rear. Beyond the low point and at the rear of the property is an easement for a transmission line, which can be seen in Figure 1.

7. The site currently contains a single storey, older style brick dwelling with a tiled roof and detached storage shed, located roughly half way between the road frontage and the rear boundary. A driveway is located along the western boundary giving access to the existing dwelling.

8. Apart from where the dwelling is located, the site is largely vegetated. Most of that vegetation is low lying grass species, but a large number of canopy trees are also located on the site, predominantly along its western boundary, around the curtilage of the dwelling, and towards the rear along the riparian corridor. There is also a group of canopy trees located midway between the dwelling and the road frontage. Several patches of the canopy trees (some with low-lying grasses) are identified as remnant Cumberland Plain Woodland, amounting to a total of 1.85ha of forest remnants Cumberland Plain Woodland on the site with an additional 0.64ha of derived native grasses. The main area of Cumberland Plain Woodland is located in the riparian zone and consists of 1.331ha, whilst the remainder of the Cumberland Plain Woodland occurs in separate patches. Cumberland Plain Woodland is listed as a critically endangered ecological community, pursuant to the Biodiversity Conservation Act 2016 (and its predecessor, the Threatened Species Conservation Act 1995 (repealed))

9. Existing development within the locality predominantly comprises low density rural dwellings on lots between one and five hectares in size and some small scale agricultural land uses.

The Planning Framework

10. The site is zoned E4 Environmental Living under the Penrith Local Environmental Plan 2010 (“PLEP 2010”). The subdivision of land is permissible pursuant to cl 2.6 of the PLEP 2010, and development for the purpose of dwelling houses is permissible within the zone. Clause 2.3(2) of the PLEP 2010 requires the Court, in exercising the functions of the consent authority, to “have regard to the objectives for development in a zone when determining a development application in respect of land within the zone”. The zone objectives are:

• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

• To ensure that residential development does not have an adverse effect on those values.

• To minimise conflict between land uses within the zone and land uses within adjoining zones.

• To ensure land uses are compatible with the available infrastructure, services and facilities and with the environmental capabilities of the land.

• To preserve and improve natural resources through appropriate land management practices.

11. Pursuant to cl 4.1 of the PLEP 2010, the size of any lot resulting from a subdivision of the land is not to be less than 10,000 square metres. Proposed Lot 1 does not comply with this minimum lot size, and has a proposed area of 9218m². The objectives of the minimum lot size development standard are as follows:

(a)  to ensure that lot sizes are compatible with the environmental capabilities of the land being subdivided,

(b)  to minimise any likely impact of subdivision and development on the amenity of neighbouring properties,

(c)  to ensure that lot sizes and dimensions allow developments to be sited to protect natural or cultural features including heritage items and retain special features such as trees and views,

(d)  to regulate the density of development and ensure that there is not an unreasonable increase in the demand for public services or public facilities,

(e)  to ensure that lot sizes and dimensions are able to accommodate development consistent with relevant development controls.

12. Clause 4.6 of the PLEP 2010 allows development consent to be granted notwithstanding the contravention of this development standard. Clause 4.6 provides as follows:

4.6   Exceptions to development standards

(1)  The objectives of this clause are as follows:

(a)  to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)  to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)  Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)  Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a)  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)  that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)  Development consent must not be granted for development that contravenes a development standard unless:

(a)  the consent authority is satisfied that:

(i)  the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)  the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b)  the concurrence of the Secretary has been obtained.

…

13. Pursuant to cl 7.5 of the PLEP 2010, the site is identified as land with scenic and landscape values. At cl 7.5(3), it provides:

(3) Development consent must not be granted for any development on land to which this clause applies unless the consent authority is satisfied that measures will be taken, including in relation to the location and design of the development, to minimise the visual impact of the development from major roads and other public places.

14. Clause 7.1 of the PLEP 2010 applies to the site, and makes it clear that development consent is required for earthworks. Pursuant to cl 7.1(3), before granting consent for earthworks, the consent authority must consider the following (inter alia):

…

(d) the effect of the proposed development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to and potential for adverse impacts on any waterway, drinking water catchment or environmentally sensitive area,

15. The Sydney Regional Environmental Plan No 20 – Hawkesbury-Nepean River 1997 (“SREP 20”) applies to the site. Clause 4(1) of the SREP 20 requires that the general planning considerations set out in cl 5, and the specific planning policies and strategies set out in cl 6 “must be taken into consideration” by a consent authority determining a development application concerning land to which the SREP 20 applies. The general planning considerations in cl 5 are:

(a) the aim of this plan, and

(b) the strategies listed in the Action Plan of the Hawkesbury-Nepean Environmental Planning Strategy, and

(c) whether there are any feasible alternatives to the development or other proposal concerned, and

(d) the relationship between the different impacts of the development or other proposal and the environment, and how those impacts will be addressed and monitored.

16. Within cl 6, there are 12 specific planning policies, each with recommended strategies. The Council has identified 3 of them as being relevant, as follows:

…

(2) Environmentally sensitive areas

Policy: The environmental quality of environmentally sensitive areas must be protected and enhanced through careful control of future land use changes and through management and (where necessary) remediation of existing uses.

Note. Environmentally sensitive areas in the Hawkesbury-Nepean catchment are: the river, riparian land, escarpments and other scenic areas, conservation area subcatchments, national parks and nature reserves, wetlands, other significant floral and faunal habitats and corridors, and known and potential acid sulphate soils.

Strategies:

(a) Rehabilitate parts of the riverine corridor from which sand, gravel or soil are extracted so that attached aquatic plant beds are replaced and water quality and faunal habitats improved.

(b) Minimise adverse impacts on water quality, aquatic habitats, riverine vegetation and bank stability.

(c) Minimise direct and indirect adverse impacts on land reserved or dedicated under the National Parks and Wildlife Act 1974 or the Forestry Act 1916 and conservation area sub-catchments in order to protect water quality and biodiversity.

(d) Protect wetlands (including upland wetlands) from future development and from the impacts of land use within their catchments.

(e) Consider the need to include buffer zones (such as adequate fire radiation zones) for proposals on land adjacent to land reserved or dedicated under the National Parks and Wildlife Act 1974 or the Forestry Act 1916.

(f) Consider the views of the Director-General of National Parks and Wildlife about proposals for land adjacent to land reserved or dedicated under the National Parks and Wildlife Act 1974.

(g) Consideration should be given to the impact of the development concerned on the water table and the formation of acid sulphate soils.

(h) New development in conservation area sub-catchments should be located in areas that are already cleared.

…

(6) Flora and fauna

Policy: Manage flora and fauna communities so that the diversity of species and genetics within the catchment is conserved and enhanced.

Strategies, generally:

(a) Conserve and, where appropriate, enhance flora and fauna communities, particularly threatened species, populations and ecological communities, aquatic habitats, wetland flora, rare flora and fauna, riverine flora, flora with heritage value, habitats for indigenous and migratory species of fauna, and existing or potential fauna corridors.

(b) Locate structures where possible in areas which are already cleared or disturbed instead of clearing or disturbing further land.

(c) Minimise adverse environmental impacts, protect existing habitat and, where appropriate, restore habitat values by the use of management practices.

(d) Consider the impact on ecological processes, such as waste assimilation and nutrient cycling.

(e) Consider the range of flora and fauna inhabiting the site of the development concerned and the surrounding land, including threatened species and migratory species, and the impact of the proposal on the survival of threatened species, populations and ecological communities, both in the short and longer terms.

(f) Consider the need to provide and manage buffers, adequate fire radiation zones and building setbacks from significant flora and fauna habitat areas.

(g) Consider the need to control access to flora and fauna habitat areas.

(h) Consider the need to maintain corridors for fish passage, and protect spawning grounds and gravel beds.

…

(9) Rural residential development

Policy: Rural residential development should not reduce agricultural sustainability, contribute to urban sprawl, or have adverse environmental impacts (particularly on the water cycle or on flora or fauna).

Note. Refer also to items (1)–(7) and (12) for relevant strategies.

Strategies:

(a) Give priority to agricultural production in rural zones.

(b) When considering a proposal for the rezoning or subdivision of land which will increase the intensity of development of rural land (for example, by increasing cleared or hard surface areas) so that effluent equivalent to that produced by more than 20 people will be generated, consider requiring the preparation of a Total Water Cycle Management Study or Plan.

(c) Maintain or introduce appropriate separation between rural residential use and agricultural use on the land that is proposed for development.

(d) Do not locate development in areas identified for future urban purposes in the Metropolitan Strategy.

(e) Consider the suitability of the land for keeping livestock, whether or not for commercial purposes, and appropriate mitigating measures to prevent land degradation.

(f) Consider the ability of the land to accommodate on-site effluent disposal in the long term.

(g) Consider any adverse environmental impacts of infrastructure associated with the development concerned.

17. The Penrith Development Control Plan 2014 (“PDCP 2014”) also applies to the site. Part B of the PDCP 2014 sets out the principles, which include Principle 3, to recognise “the intrinsic value of biodiversity and natural ecosystems, and protect and restore them”. In achieving this principle, Part B outlines the need for a site analysis and says:

“This Plan recognises the value of the surrounding environment and will minimise the impact of development on that environment by:

• Requiring all design to be based on a comprehensive site analysis, to ensure that development on a site reflects each site's unique conditions;

• Ensuring that any modification of the existing land form required to facilitate development is undertaken to minimise the impact on surrounding lands; and

• Including provisions to reduce the likelihood of development or activities increasing the salinity of land.

This Plan promotes biodiversity conservation through:

• Protection of known areas of biodiversity value;

• Protection of threatened species and ecological communities;

• Protection of watercourses, wetlands and riparian corridors;

• Protection of remnant native bushland; and

• Requiring that all significant areas of vegetation be assessed to determine their value prior to any development being designed for the site.

This Plan helps to reverse previous negative impacts on biodiversity conservation through:

• Encouraging replanting of key identified corridors, including riparian corridors; and

• Encouraging the use of plant species native to the area in all forms of landscaping”

18. The site analysis referred to above requires an assessment of the site and the immediate context, “usually up to 50m or 100m in any direction” (Chapter 1.1.1 of the PDCP 2014).

19. Chapter C2 of the PDCP 2014 concerns vegetation management, and contains a number of general objectives that include the following:

“a) To adopt the principles of ecologically sustainable development (ESD) in protecting and enhancing Penrith's native vegetation;

b) To preserve existing trees and vegetation for the benefits they provide;

c) To preserve existing trees and vegetation, where possible, during the design, development and construction process and justify any tree or vegetation removal to Council;

d) To protect and enhance native vegetation and biodiversity in the Penrith Local Government Area, including habitat for threatened species, populations and ecological communities and corridors for flora and fauna;

e) To retain native vegetation in parcels of a size and configuration which will enable existing plant and animal communities to survive in the long term;

f) To protect and enhance the landscape character and scenic qualities of the Penrith Local Government Area;”

20. Chapter C2 of the PDCP 2014 then goes on to provide specific objectives and controls with respect to the preservation of trees and vegetation. The relevant objectives include the following:

“…

b) To promote the benefits of trees and other vegetation;

c) To protect and enhance native vegetation, habitat for native fauna and biodiversity;

d) To protect and enhance native vegetation for its scenic values and to retain the unique visual identity of the landscape;

e) To manage non-native vegetation in accordance with its cultural and landscape significance;

f) To ensure that any new development takes into account existing vegetation in the site planning, design, development, construction and operation of the development; and

g) To ensure there are mechanisms for the long term protection, management and maintenance of trees and vegetation”

21. Relevant to these objectives are the following controls concerning new development, at 2.1 Part C (6):

“a) The siting and layout of a development should consider, at the initial concept stage, the location of trees and other vegetation and favour their retention.

b) Buildings, Asset Protection Zones and Effluent Management Areas are to be sited on existing cleared land, where possible.

c) Where a stand of trees is to be retained, any associated native understorey should also be retained.

d) Trees and vegetation should be retained on steeply sloping sites (slopes greater than 20%) or where there is unstable soil to minimise erosion or geo-technical instability. (See also the controls in the Land Management section of this Plan relating to Geotechnical Stability).

e) Trees and vegetation must be retained along watercourses (See also the controls in the Water Management section of this Plan, relating to Riparian Corridors).

f) An application is required to address the effect of the proposed development on existing vegetation, the landscape character and the scenic quality of the locality.

g) Trees and vegetation must be retained where they shield existing or proposed buildings from views from public areas.

h) Trees and vegetation must be retained where they form part of the landscape character of an area, including on or near ridgelines.

i) Any proposed building should be setback a minimum of 3m from the trunk of any retained tree. Council may consider a variation to this setback depending on the type and size of the tree.

j) Hard (or impervious) surfaces are not permitted under the drip line of any tree. The term ‘drip line’ is defined in Appendix F1 – Definitions.

k) Services (and particularly pipes carrying water/moisture) must not be located in the drip line of an existing tree.

l) Wherever trees or vegetation are removed (with consent) as a consequence of the development, an equal or greater number of replacement trees that grow to a similar or greater height or canopy should, where practical, be incorporated into the landscaping design of the new development.

m)The siting and layout of a development should also consider, at the initial concept stage, bushfire risk. (See ‘2.3 Bushfire Management’ below).”

22. Chapter C4 of the PDCP 2014 concerns land management, and at Part 4.1 has an objective to “minimise the extent of earthworks when creating a building site”. One of the controls relevant to that objective is “Council will not permit a building to be placed on land where the existing slope gradient before development is greater than 20%”.

23. Chapter C11 of the PDCP 2014 concerns subdivision, and one of the general objectives is to “consider and address the principles of sustainable development in determining the location, design and future use of subdivided land”. Part 11.1 contains general subdivision requirements, and includes the objective (at 11.1) to “encourage the retention of significant existing vegetation”.

24. The controls in Part 11.1 of C11, in Part B, include section 2 on site planning, which states at (f) that:

“'Battle-axe’ allotments are discouraged by Council. No more than two allotments shall be served by a shared access corridor. Where a corridor is shared, reciprocal rights of way and easements for drainage shall be granted over the access corridor for the benefit of both allotments.”

25. Section 4 in Part B of Part 11.1 concerns vegetation management, and includes the following controls:

“a) Any subdivision proposal is required to address the objectives and controls set out in the Vegetation Management and Landscape Design sections with particular focus on the protection of existing vegetation.

b) Not more than 10% of the vegetation on any site shall be cleared (or required to be cleared) as a result of any subdivision proposal.

c) The design of any subdivision layout must ensure that the potential development pattern supported by the proposed subdivision design will be consistent with the existing landscape character of the area.”

26. Chapter D1 of the PDCP 2014 concerns rural land uses. The general objectives of D1, found at B, include the following:

“…

k) To minimise the impacts of development on biodiversity, including threatened species, habitat, natural ecosystems and wildlife corridors;

m) To promote rural residential development where it is consistent with the conservation of the rural, agricultural, heritage and natural landscape qualities of the area;”

27. At Part 1.2 of D1, Part C of 1.2.1 sets out a number of controls with respect to site planning. Those controls include:

“a) Dwellings and associated buildings should be sited to maximise the natural advantages of the land in terms of:

i) Protecting the privacy of proposed and existing buildings;

ii) Providing flood-free access to the dwelling and a flood-free location for the dwelling itself;

iii) Minimising risk from bush fire by considering slope, orientation and location of likely fire sources;

iv) Maximising solar access;

v) Retaining as much of the existing vegetation as possible; and

vi) Minimising excavation, filling and high foundations by avoiding steep slopes (greater than 1 in 6)”

28. Part C of 1.2.2 sets out a number of controls with respect to setbacks and separations. At (3) this includes controls with respect to building separations and side boundary setbacks, which include the following:

“a) Dwellings on adjacent properties should be considered when determining the location of a proposed dwelling to ensure that separation distances are maximised as far as is reasonably possible to maintain amenity for each dwelling and minimise noise and privacy intrusions.

b) The minimum side setback for dwellings is 10m where the allotment is 2 hectares or larger.

c) The minimum side setback for dwellings is 5m where the allotment is less than 2 hectares.”

29. Part C of 1.2.3 (also within Part 1.2 of D1) sets out, at C, a number of controls with respect to site coverage, bulk and massing as follows:

“…

3) The maximum floor space of any second storey is to be 70% of the floor space of the lower storey of the dwelling.

4) No more than three (3) undercover car parking spaces shall face towards a public road or place. Any additional garages shall be setback behind the building line and screened.”

Resident objector evidence

30. At the commencement of the site inspection, two of the local residents gave evidence and made submissions with respect to their concerns regarding the proposed development. Those concerns can be summarised as follows:

• The bulk and scale of the proposal is excessive, particularly given the large size of the proposed dwellings and the number of them.

• The proposed development will have adverse privacy impacts, particularly to Lot 4 of 279 Mt Vernon Road, which will overlook three of the dwellings.

• The proposed development will have adverse visual amenity impacts to Lot 4 of 279 Mt Vernon Road, which currently has a view across cleared land towards the Cumberland Plain Woodland.

• The proposed development has inadequate separation between dwellings, and between existing dwellings and the proposal dwellings, and the lack of separation is uncharacteristic of the immediate locality.

Expert evidence

31. Expert evidence on the arboricultural issues was given by Ms Donna Montgomery, an employee of the Council, and Mr Russell Kingdom, an arborist engaged by UPG. They agreed that there are 42 trees that will be removed as a result of the proposed development. There is a dispute between them with respect to one additional tree (T38), that Ms Montgomery opines will be adversely affected and required to be removed, but that Mr Kingdom opines can be retained. Of the 42 trees that will be removed, 2 of them are weed species that are exempt, 5 of them are not species of Cumberland Plain Woodland, and a further 9 failed a visual tree assessment by Mr Kingdom and are not suitable for retention. That visual tree assessment was not disputed by Ms Montgomery. As such, there are 26 trees that are species of Cumberland Plain Woodland that are required to be removed, with an additional tree that may be affected. Of those 26 trees, 20 of them are located on proposed Lot 3 where the Effluent Disposal Area (“EDA”) is proposed and 6 are individual trees (known as T4, T5, T12, T36, T37 and T76) to be removed due to the driveway and turning circle location or building footprints.

32. Although there were a number of other additional trees previously identified by Ms Montgomery as possibly being affected by the driveway construction, with changes to the proposal to a construction that doesn’t involve footings, and with appropriate conditions of consent to ensure no impact on the trees, she now agrees that those trees would not be impacted by the proposed development (except for T38, which is considered below).

33. Expert evidence on the ecological impact of the development on the Cumberland Plain Woodland community was given by Mr Thomas Covell, an ecologist employed by the Council, and Mr John Travers, an ecologist and bushfire consultant engaged by UPG. Mr Covell and Mr Travers agree that the impacts on the removal of Cumberland Plain Woodland are not a significant impact on the community of Cumberland Plain Woodland, using the 7 part test of significance required by the former s 5A of the EPA Act. They also agree Tree 76 is an additional tree that would be affected on Lot 3, and that the proposed Vegetation Management Plan (“VMP”) will improve the riparian corridor and that the lands east of the riparian zone would be conserved within the VMP. However, they disagree on whether the removal of the trees from the Lot 3 EDA area is acceptable, and Mr Covell opines that additional trees will need to be removed as a result of the requirements for the Inner Protection Area (“IPA”) required to be maintained for the Asset Protection Zone (“APZ”) for the proposed dwellings.

34. Expert opinion evidence on the town planning issues was given by Ms Lauren Van Etten, a town planner employed by the Council, and Mr Paul Grech, a town planner engaged by UPG. They remained in contest on most of their evidence.

35. Expert opinion evidence on the engineering design and the earthworks was given by Mr Dean Dehghan-Khalaji, an engineer employed by the Council, and Mr Mark Santoro, an engineer engaged by UPG. They agree that the maximum retaining wall height of 1.5m can be achieved, and that the shared accessway has been designed in a way that it reduces the height of the retaining walls based on the tiered configuration and complies with the requirements of the Rural Fire Service (“RFS”) for access, turning and grades. They also agree that the engineering plans provide a typical detail for a pier and beam treatment to protect adjacent tree root zones. However, they disagree as to whether the earthworks to create the building platforms have filling in excess of 1m.

36. The wastewater disposal design was dealt with in evidence by the joint report of Mr Kirk Ryan, an environmental scientist employed by the Council, and Mr Sean Harris, an environmental scientist engaged by UPG. In the course of joint conferencing for the purpose of the joint report, changes to the location of areas within the wastewater disposal design were proposed in a new plan attached to the joint report. As a consequence of leave subsequently granted at the hearing to amend the development application to rely on the new plan, the design is agreed between the experts, except that Mr Ryan does not support the location of the Lot 3 EDA due to its impact on the native vegetation.

37. Expert opinion evidence was also given on water sensitive urban design, by way of a joint report, by Ms Daria Rech, the Senior Water Management Officer of the Council, and Mr David Crompton, an engineer engaged by UPG. They agree that the contention with respect to the MUSIC modelling and the Stormwater Management Strategy Report is resolved.

Matters for determination

38. As set out above, proposed Lot 1, created by the proposed development, does not comply with the minimum subdivision lot size development standard. As such, cl 4.6 of the PLEP 2010 precludes the grant of development consent, unless the matters described in subcl (4) are satisfied. As set out by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118, for there to be power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that:

• The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i));

• The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i));

• The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), and;

• The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)).

39. In accordance with the decision of the Court of Appeal in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130, the Court, in exercising the functions of the consent authority, must “in fact” be satisfied of each of the above matters. The state of satisfaction that compliance is “unreasonable or unnecessary” and that there are “sufficient environmental planning grounds” to justify the contravention of the standard (the first two dot points above) must be reached only with regard to what is contained in the cl 4.6 request. As I stated in Abrams v Council of the City of Sydney [2019] NSWLEC 1583 at [33]:

“Whilst the evidence in the proceedings can assist in understanding the request and in considering the adequacy of the request, it cannot supplement what is in the request.”

40. On the other hand, the state of satisfaction that the proposed development is in the public interest (the last two dot points above) can be reached by considering the evidence before the Court, without being limited to what is contained in the cl 4.6 request.

41. A number of the contentions raised by the Council overlap with the matters required to be considered in cl 4.6(4)(a) of the PLEP 2010. In particular, it is the Council’s case that the proposed development is not consistent with either the zone objectives or the objectives of the standard, largely on account of the removal of Cumberland Plain Woodland. The removal of trees and the impact of the development on the community of Cumberland Plain Woodland are also raised as separate contentions in the proceedings, and were fully argued at the hearing and were the cause of the adjournment of the hearing to allow for amended plans to reduce the impact.

42. In considering the development application, I deal first with the impact of the development and the removal of trees on the community of Cumberland Plain Woodland. This informs whether the proposed development is consistent with the objectives of the zone and the objectives of the minimum subdivision lot size development standard. A determination in favour in the Council with respect to the impact on Cumberland Plain Woodland would likely lead to a finding that there is no such consistency and, by extension, preclude consent being granted by virtue of the failure to reach the state of satisfaction required by cl 4.6(4)(a)(ii) of the PLEP 2010.

43. Second, I consider what is required of cl 4.6(4)(a)(i) of the PLEP 2010, that is, the adequacy of the request to establish the matters required by cl 4.6(3) of the PLEP 2010. It is at this point that I have reached the conclusion that the request does not adequately establish sufficient environmental planning grounds to justify the contravention of the minimum lot size development standard, and that consent must be refused on that basis.

44. Third, had the findings with respect to cl 4.6(4)(a)(i) been favourable to UPG, I would have then considered the remaining issues, including the amenity impacts of the proposed development, its visual impact, its bulk and scale and the extent of earthworks. This would then inform the outcome with respect to cl 4.6(4)(a)(ii). However, having not reached satisfaction that the request adequately establishes the matters required by cl 4.6(4)(a)(i) of the PLEP 2010, there is little utility in determining the remaining matters in dispute.

The impact on the Cumberland Plain Woodland community

45. As outlined above, the evidence of Mr Kingdom and Ms Montgomery is that there are 26 trees of significance that are species of Cumberland Plain Woodland that are required to be removed, with an additional tree that may be affected. Of those 26 trees, 20 of them are located on the EDA for proposed Lot 3. Of those 20, 3 of them have trunk diameters of less than 100mm. Additionally, Mr Travers and Mr Covell agree that an additional tree, tree 76, would need to be removed. The area of Cumberland Plain Woodland to be removed, on Mr Travers’ evidence, is 909.5m². This is disputed by Mr Covell, who had calculated the total loss to be 2767m², but agreed that this did not reflect the agreed evidence of the arborists and that the figure should be reduced. The total area to be managed by the proposed VMP is 2.0579ha. Both Mr Covell and Mr Travers agree that the VMP will enhance the Cumberland Plain Woodland on the site, although there is a dispute as to the value of the enhancement.

The Council’s position on the loss of Cumberland Plain Woodland

46. The Council contends that the tree removal required results in an unacceptable loss of Cumberland Plain Woodland, which will not be mitigated by the enhancement through the VMP or the new plantings. The Council submits that the concentration of tree loss in Lot 3 is significant as those trees provide connectivity between remnants of Cumberland Plain Woodland to the south-east and the more fragmented Cumberland Plain Woodland to the north. The Council submits that there are a number of additional trees that will be required to be removed for the APZ and IPA requirements, which also need to be taken into consideration. The Council also submits that the proposed VMP and new plantings will not adequately restore areas of Cumberland Plain Woodland on the site, as any replacement won’t restore the continuity lost by its removal, will take years to achieve the maturity of the trees that will be lost, and may not achieve success in restoring the assemblage of community of Cumberland Plain Woodland.

47. The Council relies on the evidence of Mr Covell, who opines that the loss of the trees in the Lot 3 EDA area will be a significant loss to the Cumberland Plain Woodland as those trees connect remnant pockets of vegetation to proposed lots 2, 4 and 5. His evidence is that this will increase edge effect and fragmentation, which will reduce the suitability and viability of the ecosystem for the movement of arboreal mammals, passerine birds and other wildlife.

48. Mr Covell’s evidence is also that, based on a table contained in the Bushfire Protection Assessment carried out by Mr Travers in May 2019, 16 additional trees that are species of Cumberland Plain Woodland would need to be removed for the purpose of the Inner Protection Area (“IPA”) in the Asset Protection Zone (“APZ”). He reached this opinion based on the location of the trunks and dwellings using the architectural plans, and the calculation of the canopy spread based on an Arboricultural Impact Assessment conducted by Mr Kingdom on 20 April 2019. He then applied the table developed by Mr Travers and assumed the reference to 5m applied to the tree canopies and was a direct application of the Planning for Bush Fire Protection 2006, with which the General Terms of Approval issued by the Rural Fire Service require compliance.

49. Mr Covell opines that the development therefore results in an impact on the Cumberland Plain Woodland that should be avoided by the reduction of the number of lots in the subdivision. He considers that this would enable all dwellings, EDAs and APZs to be located on land that is already cleared.

50. Mr Covell considers that the VMP and replacement plantings are not adequate to restore the loss of Cumberland Plain Woodland, as the individual trees to be removed are mature and have the potential to become significant habitat trees as they are likely to start forming hollows based on their maturity, many decades before anything that is replaced through the planting in the proposed VMP. Further, he relies on research by Wilkins et al, in which a study on restoring a Cumberland Plain Woodland site found that:

“progress in restoring sites towards a state resembling remnant sites is very slow. The time required for restored sites to match the target state of a remnant community may be many decades with a risk that the desired end point may never be achieved.”

51. The Council also relies upon Ms Montgomery’s evidence that an additional tree, T38, will also be affected by the development. Ms Montgomery relies on the Australian Standard AS 4970-2009 concerning the tree protection zone (“TPZ”) and the structural root zone (“SRZ”). The TPZ is described by the standard as being “a combination of the root area and crown area requiring protection” and the SRZ is described as being “the area required for tree stability”. Clause 3.3.3 of the standard says:

“3.3.3 Major encroachment

If the proposed encroachment is greater than 10% of the TPZ or inside the SRZ (see Clause 3.3.5), the project arborist must demonstrate that the tree(s) would remain viable. The area lost to this encroachment should be compensated for elsewhere and contiguous with the TPZ. This may require root investigation by non-destructive methods and consideration of relevant factors listed in Clause 3.3.4”

52. Ms Montgomery’s evidence is that there is a major encroachment into the TPZ (a 38% encroachment), and that the investigation by Mr Kingdom (described below) is not adequate to demonstrate that the tree will remain viable.

53. On the basis of the evidence of Mr Covell and Ms Montgomery, the Council submits that the development should be refused as a result of its impact on Cumberland Plain Woodland, which has not been demonstrated to be unavoidable. The Council submits that in circumstances where it is a critically endangered community, the Court ought to have regard to the objects of the EPA Act, including the necessity to facilitate ecologically sustainable development.

54. The Council submits that the conservation of the community of Cumberland Plain Woodland is essential to the principles of ecologically sustainable development, and relies on the exposition concerning biological diversity and ecological integrity espoused by Preston CJ in Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [57]-[63]. At [61]-[62], his Honour states:

“61 Maintaining ecological integrity involves maintaining ecosystem health. Ecosystems become unhealthy if their community structure (species richness, species composition or food web architecture) or ecosystem functioning (productivity, nutrient dynamics, decomposition) has been fundamentally upset by human pressures: M Begon, C R Townsend and J L Harper, Ecology: From Individuals to Ecosystems, 4th ed, Blackwell Publishing, 2006, p. 645.

62 Maintaining ecological integrity also involves maintaining ecosystem functioning and ecosystem services. Ecosystem functioning is “the sum total of processes such as the cycling of matter, energy, and nutrients operating at the ecosystem level”: R A Virginia and D H Wall, “Ecosystem Function, Principles of” in S A Levin (ed), Encyclopaedia of Biodiversity, Academic Press, 2001, Volume 2, p. 345…”

55. With respect to the value of Cumberland Plain Woodland and the threats to its survival, the Council relies on the following documents: Advice to the Minister for the Environment, Heritage and the Arts from the Threatened Species Scientific Committee on an Amendment to the List of Threatened Ecological Communities under the Environment Protection and Biodiversity Conservation Act 1999 concerning the Cumberland Plain Shale Woodlands and Shale-Gravel Transition Forest listing, the Approved Conservation Advice for Cumberland Plain Shale Woodlands and Shale-Gravel Transition Forest ecological community, approved by the Minister on 17 November 2009, the final determination of the NSW Scientific Committee Cumberland Plain Woodland in the Sydney Basin Bioregion – critically endangered ecological community listing, and the Royal Botanic Garden Sydney, “Western Sydney Woodland” < Science/Our-work-discoveries/Natural-Areas-Management/Ecology-of-Cumberland-Plain-Woodland/Western-Sydney-woodland> accessed 7 March 2019. A summary of the threat to Cumberland Plain Woodland is contained in the website of the Royal Botanic Garden Sydney, which states:

“Cumberland Plain Woodland has been extensively impacted by two centuries of agriculture and urban development in western Sydney and is now confined to less than 8% of its original extent. Clearing for farms and housing has reduced its occurrence to small, often isolated and fragmented remnants, many of which are under threat.

…

The long-term management of remnants is of high priority. Conservation areas include Scheyville National Park and Mulgoa Nature Reserve. But smaller areas are also important links for wildlife movement between sites, and because some plant species have only survived in odd places such as a roadside site, old quarry etc and may now only occur in one or a few remnants, not necessarily in the conservation reserves.”

56. As such, the Council submits that the development is contrary to the zone objectives as it has an adverse effect on the scenic character and the landscape values of the site, and also on the special ecological values of the site in respect of the significant scale of Cumberland Plain Woodland which has to be removed in order to facilitate the development. The Council also considers that the fourth zone objective, “to ensure land uses are compatible with the available infrastructure services and facilities and with the environmental capabilities of the land” is not achieved as a result of the tree removal which is required to make way for the built development, and the consequential loss of the critically endangered ecological community. Similarly, the Council submits that the zoning objective to “preserve and improve natural resources through appropriate land management practices” is not achieved as the development removes natural resources. In the same way, the Council submits that the development is inconsistent with the objectives of the minimum lot size development standard, as it does not ensure that the “lot sizes are compatible with the environmental capabilities of the land”, and the lot sizes do not allow developments “to be sited to protect the natural… features” and to “retain special features such as trees”.

57. The Council submits that these objectives, when read together with the controls for development, disclose the focus on or the importance of the site planning and preserving significant environmental features and minimising the impacts of development, including minimising the removal of trees and vegetation and retaining as many significant and substantial trees as possible, particularly the critically endangered Cumberland Plain Woodland. In that context, the Council submits that the removal of the trees is not consistent with those objectives or the planning controls, and is therefore not acceptable.

The Applicant’s position on the loss of Cumberland Plain Woodland

58. UPG submits that although there will be removal of trees that are species of Cumberland Plain Woodland, this does not warrant refusal of the proposed development. UPG submits that the general objectives and specific controls in the PDCP 2014 cannot be read as requiring the preservation of all existing vegetation and trees on a site. UPG submits that to do so would give no work to the general objective, which uses the words “where possible” and to “minimise as far as possible”. Similarly, UPG points out that other objectives refer to “favour their retention” and “encourage”. UPG submits that the objectives are therefore not absolute, and the Court is entitled to look at the overall outcome. In doing so, UPG submits that the Court would take into account the benefits of the proposal in considering the impacts on the natural environment, and that the VMP approach is entirely consistent with the PDCP 2014 objectives of enhancement and preservation. Further, UPG’s position is that the trees in the EDO that are to be removed are significantly degraded, and that the trees identified as being affected by potential removal by Ms Montgomery and Mr Covell will not be affected or required to be removed. In those circumstances, UPG submits that the only canopy to be lost is 909.5m² of degraded trees, and that the VMP will be effective in restoring the remaining Cumberland Plain Woodland and increasing its assemblage and canopy size, which will result in a gain of 4662m² of Cumberland Plain Woodland vegetation. In support of its position, UPG relies on the evidence of Mr Travers, Mr Kingdom and Mr Grech.

59. Mr Travers’ evidence is that the removal of the 17 trees in the Lot 3 EDA does not cause a significant impact, given the “total omission of a diverse flora in the space of those 17 trees or nearby” (Ex 18 p 19). He considers that such a loss does not require “avoidance” in circumstances where the understorey is cleared and there is “a total lack of other abiotic resources such as logs and tree hollows and or biotic materials such as shrubs grasses… plus nutrients within a natural soil mulch” (Ex 18 p 19). His evidence is that the trees in the Lot 3 EDA are young trees with little canopy spread, mostly less than 3m in diameter, and that no other vegetation occurs under the canopy of those trees. In particular, his evidence of the impact of the loss of the trees on fauna is (Ex 18, p 26):

“These 17 trees contain no hollows that can be utilised by fauna. There are no logs on the ground that can be used by amphibians, frogs, reptiles or invertebrates for refuge. There are no shrubs, forbs or grasses that can be used by insects, birds or invertebrates which then impacts microbat foraging. There is also a constant loss of soil from the erosion caused by rain that intercepts the land harshly because of the sparse tree canopy currently in those 17 trees. In addition, the expected overland flow from the upslope neighbours land could be torrential at times. The loss of flowing opportunities for bees and or birds is insubstantial given the extent of the CPW across the wider 5 ha landscape; and the proposed expansion of the CPW. I do accept that there will be a minor loss of CPW winter flowering of the 17 E. tereticomis trees for the Swift Parrot and the Regent Honeyeater but the loss would be unmeasurable given the remaining trees are over 95% comprised of the winter flowering E. tereticomi”

60. Mr Travers’ evidence is therefore that the trees in the Lot 3 EDA area are not sufficient to allow for the movement of arboreal mammals, passerine birds and other wildlife between other remnant areas of Cumberland Plain Woodland, contrary to the evidence of Mr Covell.

61. Indeed, Mr Travers opines that the site of the 17 trees (the Lot 3 EDA) and the surrounding remnant of Cumberland Plain Woodland is in a high degree of ecological decay arising from years of clearing, grazing and neglect, which has resulted in a reduction in ecological function. He considers that this manifests in a number of impacts, including a change in community structure from one contiguous vegetation community to nine separate remnant portions, a reduction of wildlife species, an invasion and establishment of exotic species, an obvious degradation of habitat such as the lack of shrubs, on-ground logs and other refugia for reptiles or amphibians, and a reduction in viable habitats.

62. As such, Mr Travers considers that the proposed VMP will stop this decay with respect to the area sought to be managed. The proposed VMP includes planting of the riparian corridor to create diversity, weed control works and fencing to stop deer from grazing. Further, he opines that the VMP and the proposed landscape trees will replace the tree loss with a contiguous vegetation community amounting to 2.0579ha plus a further area of landscape trees of 8944m². Mr Travers therefore opines that the result of the proposed development will be that the Cumberland Plain Woodland vegetation will be enhanced from its current 2.4861ha to 2.9523ha (an increase of 0.4662ha) which allows a net increase in Cumberland Plain Woodland vegetation, as well as the internal net biodiversity gain arising from the expected regeneration caused by appropriate management to achieve a better assemblage of species.

63. UPG disputes the evidence of Mr Covell with respect to the reliance on the study carried out by Wilkes et al. UPG points out that the study relates to a much larger site, of 1000ha, owned by the government and managed by volunteers without the benefit of a condition of consent or public positive covenant. UPG relies on the evidence of Mr Covell given in cross-examination, in which he agreed that the proposed VMP was enforceable through a condition of consent and a public positive covenant, which allowed the Council to do the works if they are not carried out. As such, UPG submits that the site the subject of the present development application can be easily distinguished from that which was the subject of the study by Wilkes et al.

64. UPG also disputes the evidence of Mr Covell with respect to the removal of trees for the purpose of the IPA and APZ, in circumstances where Mr Covell is not qualified in bushfire hazard reduction or asset protection, other than to assess its impacts on ecology. Instead, it relies on the evidence of Mr Travers, who notes that his guidelines contained in the table relied upon by Mr Covell denote the advised distance of tree trunks from the dwelling (not tree canopy, which Mr Covell assumed). On the basis of the table prepared by Mr Covell concerning the distance of each of the trees from the proposed dwellings, Mr Travers pointed out that there is only one tree, being T76, which is within 5m of a building wall, and agreed it should be removed. Consistent with the Planning for Bush Fire Protection 2006, Mr Travers did agree that trees could not have canopies within 2mof a building wall and gave evidence that if Mr Covell’s measurements in the table were correct, trees 57, 61, 75, 76, 66, 67 & 62 would have to be pruned so that their canopies were not within 2m of the dwellings. However, Mr Travers did not agree with the measurements provided by Mr Covell. Instead, he had the relevant proposed dwellings (which he considered to be located close to trees) pegged out by a surveyor and made observations onsite as to the actual distances between the dwelling and the tree canopy. On that basis, Mr Travers’ evidence is that only tree T76 needed to be removed and T57 pruned to comply with the standards for asset protection in the IPA.

65. With respect to tree T38, which Ms Montgomery opines will be adversely affected by excavation for the turning circle that encroaches into its structural root zone, UPG relies on the root mapping exercise undertaken by Mr Kingdom. Mr Kingdom attended the site and examined the soil, opining from that dig and examination that there was fill down to a depth of 700mm and therefore excavation within the vicinity of T38 would not impact the tree roots as they have had substantial fill placed over them.

66. UPG also relies on the evidence of Mr Grech with respect to the siting of the dwellings and the subdivision so as to minimise impact on the trees that are species of Cumberland Plain Woodland. Mr Grech’s evidence is that the dwellings and EDAs are largely sited on cleared land, and the driveway is located in the same location as the current driveway so as to avoid any additional adverse impacts on trees that would be occasioned by it being located elsewhere on the site. His evidence is that if the driveway was moved, it would have an increased impact, and that the trees that are to be removed will not have a significant impact on the rural scenic quality of the locality.

67. As a result of this evidence, UPG submits that there is a net improvement in the Cumberland Plain Woodland on the site, and no trees will be removed other than those agreed by the arborists and the ecologists. Accordingly, UPG submits that the impact on Cumberland Plain Woodland has been minimised, and that less than 10% of the site is being cleared, consistent with the controls in the PDCP 2014. UPG therefore submits that the proposed development meets the objectives of the zone and the objectives of the standard with respect to the minimum subdivision lot size, as it will enhance the Cumberland Plain Woodland on the site and is therefore compatible with the environmental capabilities of the land and will retain and enhance its natural resources.

There is a net benefit to the community of Cumberland Plain Woodland

68. Whilst the SREP 20 requires consideration of “whether there are any feasible alternatives to the development”, I do not consider that the Council’s focus on the impacts of the development in comparison to there being a reduction in the number of lots in the subdivision to be a helpful one. It is not the not the role of the Court to assess the impact of the proposed development against that of a hypothetical alternative proposal. Instead, the Court’s role is to assess the acceptability of the current proposal in light of the applicable planning instruments and planning controls, and in accordance with s 4.15(1) of the EPA Act.

68. In considering the applicable planning instruments and planning controls, I accept the submission made on behalf of UPG that they cannot be read so as to prohibit the removal of any species of the Cumberland Plain Woodland community. The general objectives in C2 of the PDCP 2014 includes an objective to “preserve existing trees and vegetation, where possible…” and the controls (at 2.1 Part C (6)(l)) envisage the removal of trees by development consent. Further, even if the controls could be read as standards that require the retention of all Cumberland Plain Woodland, s 4.15(3A)(b) of the EPA Act requires flexibility where the standards are not met to “allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development.” For the reasons set out below, I have determined that the proposed development results in a net benefit for the Cumberland Plain Woodland community that is on the site, and that, therefore, the impact on that endangered ecological community is acceptable and the objectives in C2 of the PDCP 2014 to “protect and enhance native vegetation” are achieved.

69. Firstly, I accept that the quantum of the tree loss is acceptable in circumstances where the subdivision layout and the siting of the dwellings and driveway, as well as the driveway design, retains as much of the existing Cumberland Plain Woodland vegetation as possible. This is consistent with the control (a)(v) in 1.2.1 of Part C of D1 of the PDCP 2014. I accept the evidence of Mr Grech that the proposed development minimises its impact by siting the dwellings on land that is already cleared, and by placing the driveway where it currently exists. Only one area of the proposed development, the Lot 3 EDA, is sited in an area that results in the clearing of land. In so siting the dwellings, driveway and remaining EDAs, the extent of clearing is limited to less than 10%, which achieves compliance with control (b) in Section 4 in Part B of Part 11.1 of the PDCP 2014.

70. In determining that the quantum of tree loss is acceptable in the circumstances, I consider that there is no basis upon which to accept the evidence of Mr Covell that additional trees will need to be removed to comply with the requirements for the IPA of the APZ, other than one tree, T76. Given the expertise of Mr Travers in bush fire protection, I accept his evidence that the Planning for Bush Fire Protection requirements do not require removal of any trees other than T76, and that the table developed by him and relied upon by Mr Covell similarly does not require removal of any trees with trunks more than 5m away from the building footprint. Contrary to submission of the Council, there was no concession made by Mr Travers that the trees would need to be removed. Further, given Mr Travers ascertained the distance of the canopies from the building footprints by actual observation on site, I prefer his evidence with respect to the distance of the canopies from the building footprints, which would result in the trimming of the canopy of T57. I also accept the opinion of Mr Kingdom following the root mapping exercise undertaken by him with respect to T38, and that therefore T38 will not be adversely impacted by the excavation for the turning circle.

71. Secondly, I accept the evidence of Mr Travers that the trees within the Lot 3 EDA area form an area of Cumberland Plain Woodland that is in a high degree of ecological decay, with young trees, a lack of variation in the strata and a lack of terrestrial or arboreal opportunities for wildlife. This was not disputed by Mr Covell. As such, there is no evidence to support the Council’s submission that this area of Cumberland Plain Woodland provides an essential connection to other remnant communities of Cumberland Plain Woodland. Indeed, there is no evidence of any impact on the Cumberland Plain Woodland community at large by removal of this portion, and there is no evidence that those trees form part of the landscape character of the site or the locality. As set out by Preston CJ in Bentley v BGP Properties (2006) 145 LGERA 234, ecosystem health depends on its community structure, which includes “species richness, species composition or food web architecture” and on its ecosystem functioning, which includes “productivity, nutrient dynamics, decomposition”. The undisputed evidence of Mr Travers is that the trees within the Lot 3 EDA area do not have a healthy Cumberland Plain Woodland community structure.

72. Thirdly, the remaining trees of high retention value outside of the Lot 3 EDA area are T12, T36, T37 and T76, which are mature species (forest red gums and a rough barked apple). However, the removal of T12, T36 and T37 are necessary in order to allow the driveway to be of a width and standard adequate to accommodate a RFS vehicle and to allow a turning circle for that vehicle. I accept the evidence that movement of the driveway to the east would have a greater impact on existing trees. As discussed above, the removal of T76 is required for the APZ. Accordingly, the removal of these trees is necessary, and I accept the position of UPG that they will be adequately replaced by 25 replacement Cumberland Plain Woodland tree species proposed in the landscape plan. This achieves control (6)(l) of Part C of 2.1 of C2 of the PDCP 2014, to ensure that wherever trees are removed as a consequence of the development, “an equal or greater number of replacement trees that grow to a similar or greater height or canopy should, where practical, be incorporated into the landscaping design of the new development”.

73. Fourthly, I accept the evidence of Mr Travers that the proposed VMP and the landscape plan will result in a significant ecological offset in the form of a conservation reserve along the existing riparian corridor. This will result in a net increase in the quantity of Cumberland Plain Woodland vegetation on the site, as well as an internal net biodiversity gain arising from the expected regeneration caused by appropriate planting and management to achieve a better assemblage of species and better community structure. This is achieved through replanting and conservation within the existing Cumberland Plain Woodland along the riparian corridor, and landscaping to expand the area of Cumberland Plain Woodland. I also consider that the mechanisms for compliance with the VMP, contained in the proposed conditions of consent, distinguish the proposed VMP from the study by Wilkes et al over a larger area where regeneration of the Cumberland Plain Woodland community was not achieved.

74. For the above reasons, I find that the proposed development minimises the loss of Cumberland Plain Woodland species, enhances and extends the community of Cumberland Plain Woodland on the site, causing a net benefit to that community, and puts in place proper mechanisms to manage that community. This is consistent with the planning policies within cl 6 of SREP 20, and achieves the objectives and relevant controls in the PDCP 2014.

75. As a result of my findings with respect to the impact of the proposed development on the Cumberland Plain Woodland, I do not accept the Council’s position that the proposed development is inconsistent with the objectives of the zone and of the minimum subdivision lot size development standard on account of the removal of trees or the impact of the development on the community of Cumberland Plain Woodland.

The adequacy of the written request concerning the minimum subdivision lot size

77. The final form of the written request, lodged pursuant to cl 4.6 of the PLEP 2010, is attached to the Addendum Joint Town Planning Report prepared by Ms Van Etten and Mr Grech, and is dated 15 July 2019.

78. The request is required to address that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and that sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). As outlined above and explained at [38] I am required to be satisfied that the request adequately addresses these matters.

79. The written request seeks to establish that compliance with the development standard is unreasonable or unnecessary in two ways. Firstly, it seeks to demonstrate that the objectives of the standard are achieved notwithstanding the non-compliance with the minimum lot size. Secondly, it seeks to demonstrate that compliance is unreasonable or unnecessary in circumstances where the Council has exercised flexibility in the application of the minimum subdivision lot size and the character of the area includes lots that are below the minimum lot size. In particular, the request demonstrates that 23 lots within the locality have an area less than 1ha (excluding access handles and rights of carriageway), and that there have been 4 approvals by the Council of subdivision applications that resulted in lot sizes smaller than the minimum subdivision lot size. The written request sets out the details of each of the 4 approvals, and identifies the 23 lots in the locality with an area less than 1ha.

80. The written request also seeks to establish that there are a number of environmental planning grounds that justify the contravention of the standard. They are as follows:

• The proposed development does not cause any material amenity impacts;

• The proposed development will facilitate the management of the riparian corridor at the rear of the site and will enhance the CPW on the site through the implementation of the VMP;

• The proposed development will not result in a lot size that is out of character with the area;

• The proposed development is for an integrated subdivision and housing development, which provides certainty as to the outcome and its compliance with the objectives of the minimum subdivision lot size development standard;

• The development provides additional housing that is compatible with the existing and planned character of the area and the objectives of the zone;

• The proposed development would be consistent with the following objects of the EPA Act to promote “the orderly and economic use and development of land”, to protect the environment, and to promote “good design and amenity of the built environment”.

81. The request also describes the extent of variation (on p 5) by describing the nature of the 4 lots that comply with the lot size, and explaining that the access corridor containing the driveway connecting to Mt Vernon Road is excluded from the lot size calculation. It then states that “The area of proposed Lot 1 is not a battle-axe lot and has an area of 9,218m². This represents a variation of 782m² (a 7.8% variation).” The request then goes on to explain that the area required for the turning of RFS trucks is proposed to be subject to a restriction on the use of the land, which has been excluded from the lot area calculation from lots 2, 3, 4 and 5, although it need not be so excluded. The request then states that:

“If the restriction as to use relating the area set aside for the possibility of turning RFS trucks was not excluded from the calculation of lot area, and the additional area above 1 hectare in Lots 2 to 4 was redistributed to Lot 1, the variation to Lot 1 would be 342m2 (3.4%). This would be readily achievable with a minor realignment of boundaries.”

The Council’s submissions on the request

82. The Council’s position is that the cl 4.6 request has failed to demonstrate that, firstly, complying with the development standard is unreasonable and unnecessary and that, secondly, there are sufficient environmental planning grounds to justify the contravention. With respect to the first, the Council submits that the evidence of 23 approvals with variations to the minimum lot size do not provide any indication as to whether the Council was the consent authority, whether the site contained endangered ecological community, or whether the documents in support of the development applications contained adequate information in terms of surveyed levels, tree removal and ecological impacts. The Council submits that these are fundamental to understanding how and why other applications may have been supportable with reduced lot sizes.

83. With respect to the environmental planning grounds put forward in the request, the Council submits that the request fails to establish that the benefits proffered by the development justify the contravention of the minimum lot size development standard. The Council relies on Initial Action Pty Ltd v Woollahra Municipal Council, in which Preston CJ of LEC considered that the focus of cl 4.6(3)(b) is on that aspect of the development that contravenes the standard. In light of this, the Council says the focus should be on the deficiency in the size of Lot 1, and submits that the request fails to tether the benefits which are said to arise from the proposal to the variation to the size of Lot 1.

The Applicant’s submissions on the request

84. UPG submits that the request adequately establishes that compliance with the standard is unreasonable or unnecessary in circumstances where each of the objectives of the standard are met notwithstanding the non-compliance of Lot 1, and in circumstances where the standard has been virtually abandoned through the approval of at least 4 variations in the immediate locality and the existence of 23 lots in the locality with an area less than 1ha.

85. UPG also submits that the Court is able to discern from the document that it demonstrates that compliance with the standard is unreasonable or unnecessary on the basis that the departure is minimal, and there is no real impact from the non-compliance. In Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94 this was given as another basis upon which compliance could be seen to be unreasonable or unnecessary. Although this basis is not explicitly stated in the request as one upon which compliance would be unreasonable or unnecessary, UPG relies on the decision in Gejo Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1712, in which the cl 4.6 request was considered as a whole. UPG points out that this basis is supported by the evidence of Ms Van Etten and Mr Grech, who agree that the numerical non-compliance is minimal, and the evidence of Ms Van Etten and Mr Cowell, who were unable to identify any real impact arising from the size of Lot 1.

86. The submission of UPG is that the written request also demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard, in three ways. First, the application is made on an integrated basis to include both the subdivision and built form, which allows a clear demonstration of the actual impacts of the development. UPG submits that this achieves the object of the EPA Act for “orderly and economic” use and development of land, which constitutes an environmental planning ground in accordance with the decision in Initial Action Pty Ltd v Woollahra Municipal Council. Second, the implementation of the VMP will provide protection and restoration to the degraded Cumberland Plain Woodland. Third, the departure is qualitatively and quantitatively minor.

87. In the course of submissions, I questioned Mr Staunton on whether the access handle could be an environmental planning ground. In response, Mr Staunton agreed and relied on page 5 of the request and the breakdown of the variation to the lot size that is described on page 5 and elsewhere in the request.

Findings on the written request

88. I am satisfied that the request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. It does so by establishing that the relevant consent authority has not consistently applied the minimum lot size, with the results that there are 27 lots of less than 1ha within the locality. In those circumstances, it is unreasonable and unnecessary to require strict compliance with the standard. This is consistent with what is commonly described as the fourth “way” in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827, in which compliance with a standard can be established as being “unreasonable or necessary” if the standard has virtually been abandoned by the Council’s own actions in departing from the standard. Whilst the request doesn’t establish that the standard has been completely abandoned, the request clearly demonstrates that the Council has exercised flexibility in the application of the minimum subdivision lot size and there are already a proportion of lots in the locality that are both below the minimum lot size, and of similar size to that proposed in Lot 1. This is mapped out in the request, demonstrating the precise locations of each of the undersized allotments and their size, the majority of which are between 8500m² and 9500m². In such circumstances, it is unreasonable and unnecessary to require all of the lots in the proposed development to strictly comply with the minimum subdivision lot size. Further, I do not accept the Council’s submission that more details are required of each approval. It is sufficient to establish that the Council has regularly exercised flexibility to dispense with strict compliance, that the result is a large number of lots in the locality with lot sizes similar to that proposed, and that, therefore, strict compliance would not be reasonable or necessary.

89. However, I am not satisfied that the written request has adequately addressed that there are sufficient environmental planning grounds to justify contravening the development standard. The environmental planning grounds identified in the request largely describe the benefits of the proposed development, but there is nothing in the request that informs how those benefits justify, or arise from, the contravention of the minimum lot size development standard. In that respect, I accept the submission of the Council that the request fails to tether the benefits which are said to arise from the proposal to the variation to the size of Lot 1. As stated by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council, “The focus of cl 4.3(3)(b) is on the aspect or element of the development that contravenes the development standard”, and “The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole” (at [24]) None of the benefits described in the request justify the contravention of the minimum lot size development standard. Specifically, it is not sufficient to state that it is an integrated development application, or that the proposed development enhances the Cumberland Plain Woodland and provides additional housing. Whilst these are benefits of the proposed development, they do not justify, or inform, the breach of the minimum lot size development standard in Lot 1. Similarly, whilst the request states that there will be an absence of impacts, this is an outcome of the proposed development that is not tethered (in the request) to the contravention of the minimum lot size development standard. Further, the fact that the Lot 1 will not be out of character with other lots in the locality is true, but of itself, that doesn’t constitute an environmental planning ground that informs or justifies the departure from the minimum lot size. This is distinct from cases such as Gejo Pty Ltd v Canterbury-Bankstown Council, where the contravention of the development standard was justified to achieve consistency in the streetscape with other sites that breached the relevant development standard. In the present case and in the present request, the departure from the standard in Lot 1 is not justified by any such outcome.

90. I consider that the existence of the access handle could constitute an environmental planning ground, but contrary to the submissions made on behalf of UPG, it is not addressed in the request in a manner that justifies the size of Lot 1. Instead, it is described as providing access to Lots 2, 3, 4 and 5 and to outline how the lot sizes for Lots 2, 3, 4 and 5 are calculated (and how Lot 1 could be increased in size with a minor adjustment to the boundaries). There is nothing in the request that informs how the existence of the access handle justifies, or informs, the non-compliance with the minimum lot size for Lot 1. Given that the state of satisfaction required by cl 4.6(4)(a)(i) depends upon the contents of the written request, the Court is constrained by that request and I cannot, independently of the request, draw my own conclusions as to what environmental planning grounds might justify the contravention of the development standard. As stated by Payne JA in RebelMH Neutral Bay Pty Limited v North Sydney Council at [4] (emphasis added):

“Properly construed, a consent authority has to be satisfied that an applicant’s written request has in fact demonstrated the matters required to be demonstrated by cl 4.6(3).”

91. As a result, I do not reach the state of satisfaction required by cl 4.6(4)(a)(i), and therefore, pursuant to cl 4.6(4), I am precluded from granting development consent and the appeal must therefore be dismissed.

Remaining matters for consideration

92. As set out above, the Council raised a number of other contentions in the proceedings, on the basis of which it says that the Court should refuse the development application. This includes the amenity impacts of the proposed development, its visual impact, its bulk and scale and the extent of earthworks. Expert opinion evidence was put before the Court with respect to each of these contentions. Findings on each of these contentions would be informative in the determination on whether the development is consistent with the objectives of the zone, and with the objectives of the minimum subdivision lot size development standard.

93. However, having reached the conclusion that there is no power to grant development consent on account of not reaching the state of satisfaction required by cl 4.6(4)(a) of the PLEP 2010, there is little benefit in determining the remaining matters in dispute.

Application for costs pursuant to s 8.15(3)

94. On 7 May 2019, the return date of a notice of motion filed following the first adjournment of the hearing, I made orders granting leave to UPG to amend its application. Those amendments included:

• A reduction in the footprint of the dwellings proposed on lots 4 and 5, from 6 bedroom dwellings to 3 bedroom dwellings.

• The relocation of the EDAs on lots 4 and 5 so that they are accommodated downslope of the dwellings in lieu of laying pipes through the riparian corridor to soil absorption beds on the other side of the riparian corridor.

• The reduction in the footprint of the dwelling proposed on Lot 2 to retain more trees.

• An updated flora and fauna report and amended proposed VMP, and an updated arboricultural assessment report to assess the trees to be removed as a result of the amended development application.

• A revised landscaping plan.

• Revised stormwater plans and engineering plans for the driveway, which show that there will be no cut and fill works in the road alignment, provide details of the pier and beam construction of retaining walls and the driveway, and reduce the extent of the fill for the building footprints.

95. At that time, I also made an order pursuant to s 8.15(3) of the EPA Act for UPG to pay the Council’s costs thrown away as a result of the amendment.

96. Since that time and following the resumption of the hearing in July, two further amendments to the application were permitted by the grant of leave. The first was on 18 July 2019, which:

• Amended the engineering plans as a result of the joint conferencing, to provide additional information in relation to the chainage at the lip of the driveway for the cross-section between chainage 0 and 10 and to vary the depth of a grass swale to be consistent with the MUSIC modelling.

• Amended the Soil and Site Assessment for Onsite Wastewater Disposal through the joint conferencing of experts, by modifying the wastewater disposal areas on Lot 1 and 2, repositioning the raised absorption bed on Lot 4, repositioning the aerated wastewater treatment system on Lot 3, recalculating the downslope batter for the raised soil absorption bed on lot 3, excluding 31m² of the irrigation area, and providing additional measurements.

• Amended the cl 4.6 request to provide additional detail.

• Amended the landscape plans to restore planting to the Lot 1 garage.

97. The second was on 6 September 2019, at which time a consolidated set of plans were tendered (Ex H). Those plans included amended architectural plans, which were amended to reflect the changes that were made as a result of the grant of leave on 18 July 2019.

98. The Council seeks further orders pursuant to s 8.15(3) in respect of each amendment. Section 8.15(3) provides as follows:

(3) If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent. This subsection does not apply to proceedings to which section 34AA of the Land and Environment Court Act 1979 applies.

99. UPG opposes those orders on the basis that each of the amendments can be described as a “minor amendment”, in respect of which the mandatory order is not required to be made. On both occasions, I reserved the question of the costs order under s 8.15(3) for later determination.

100. With respect to the amendments made on 18 July 2019, the Council submits that one has to have regard to the cumulative and overall effect of the amendments, in the context and location of the proposed development. In doing so, the Council submits that the changes to the engineering plans and the wastewater system are more than a “minor amendment” as they change the setbacks between the proposed EDA and the Lot 3 dwelling, and they are the sixth amendment to the plans. Further, the Council submits that the cl 4.6 request is not a minor amendment but a “new” request.

101. With respect to the amendments made on 6 September 2019, the Council submits that in terms of cumulative impacts, the changes to the plans deal with a key concern of the Council expressed by Ms Montgomery as to the effect of the driveways on the Cumberland Plain Woodland trees, in the locations of Lot 3 and 4. Further, the changes deal with the concern of the council’s wastewater expert in respect of the EDA and its relationship with the stormwater buffers in Lots 1 and 2. As a result, the Council submits they make a cumulative change to the application that cannot be described as a “minor amendment”.

102. I do not accept the Council’s submissions that the amendments to the development application made on either 18 July or 6 September constitute something more than a “minor amendment”. In considering the nature and extent of the amendment for the purpose s 8.15(3), one must have regard only to the amendment that is before it, not to the history of amendments that have been made to the development application in the course of the appeal proceedings.

103. The amendments made on 18 July 2019, when considered in the context of the development application, are minor, even when considered cumulatively. The cl 4.6 request contained some additional information, but did not result in a ‘new’ request, contrary to the Council’s submission. The amendment to the driveway is minor when considering the size and length of the driveway as a whole, and the change to the location of the different areas in the Wastewater plans (from Version 7 to Version 8) are similarly minor when considering the extent and detail of the proposed subdivision and dwellings. The Council agreed that the changes to the landscape plan were minor. I am satisfied that, considering all of these changes cumulatively and in the context of the development application as a whole, they are “a minor amendment” and I am therefore not required to make an order for costs pursuant to s 8.15(3).

104. Similarly, I find that the amendments to the architectural plans to reflect the changes to the driveway and other changes made on 18 July 2019, are simply consequential upon those changes and are a “minor amendment”. They make no other changes to the design of the dwellings, and make changes only to reflect those earlier amendments.

105. In finding that each of the amendments was a “minor amendment”, the mandatory order pursuant to s 8.15(3) is not required to be made. As there is no other power pursuant to which a Commissioner of the Court can order costs when dealing with proceedings pursuant to a direction under s 36 of the Land and Environment Court Act 1979, I decline to make any order as to costs.

The outcome of the appeal

106. Having reached the conclusion that, pursuant to cl 4.6(4) of the PLEP 2010, there is no power to grant development consent, the appeal must be dismissed and the development application refused.

107. The Court orders that:

1. The appeal is dismissed.

2. The development application for a 5-lot subdivision and construction of a dwelling on each subdivided lot at 264-270 Mount Vernon Road, Mount Vernon is refused.

3. The exhibits are returned, except for Exhibit D, H, 17 and 18.

…………………………

J Gray

Commissioner of the Court

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Decision last updated: 28 January 2020