Urbanesque Planning Pty Limited v Mosman Municipal Council

Case •

[2009] NSWLEC 1099

•

30 March 2009

No judgment structure available for this case.

Land and Environment Court


of New South Wales


CITATION: Urbanesque Planning Pty Limited v Mosman Municipal Council [2009] NSWLEC 1099
PARTIES:

APPLICANT
Urbanesque Planning Pty Limited

RESPONDENT
Mosman Municipal Council
FILE NUMBER(S): 10001 of 2009
CORAM: Taylor C
KEY ISSUES: DEVELOPMENT CONSENT :- construct a double carport, front fence and for the removal of a large jacaranda tree
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Mosman Local Environmental Plan 1998
Mosman Residential Development Control Plan
CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167
DATES OF HEARING: 30/03/2009
EX TEMPORE JUDGMENT DATE: 30 March 2009
LEGAL REPRESENTATIVES:

APPLICANT
Mr G McKee, Solicitor
McKees Legal Solutions

RESPONDENT
Ms J Walsh, Solicitor
Pikes Lawyers

JUDGMENT:

- 4 -

      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      Taylor C

      30 March 2009

      10001 of 2009 Urbanesque Planning Pty Limited v Mosman Municipal Council

      JUDGMENT
      This determination was given extemporaneously and has been edited prior to publication.

1 This is an extempore decision in the matter of Urbanesque Planning Pty Limited v Mosman Municipal Council.

2 The matter is an appeal against a refusal of Development Application No. 8.2008.338.1 by Mosman Council relating to a fence and carport at 21 Cabramatta Road, Mosman.

The site and proposal

3 At the site hearing I had the opportunity to view the property and the surrounding neighbourhood. The site is a single allotment with a semi-detached dwelling on it with rear access to an existing carport structure via Lindsay Lane. The existing carport structure is effectively for a two vehicle design but its use is limited by the presence of a mature jacaranda tree situated toward its western side.

4 The proposal is for the following items:

      • Demolition of the existing carport to the rear and existing front fencing.
      • Removal of the existing jacaranda tree in the rear yard.
      • Construction of a new double carport at the rear and for a new front fence.
      • Alterations and additions to the landscaping in lieu of the proposed removal of the jacaranda.

5 The Mosman Local Environmental Plan 1998 zones the site 2(a3) and contains several relevant objectives to the proposal. In particular:

      2(b) To provide housing opportunities appropriate to environmental constraints while maintaining the existing residential amenity.
      2(h) To protect and conserve the natural and built heritage of Mosman.
      2(i) To protect, conserve and enhance the landform and vegetation, especially foreshores and bushland, in order to maintain the landscape amenity of Mosman.

6 The objectives of the 2(a3) residential zone that are relevant are:

      11(2a) Maintain the general dominance of landscape over built form, particularly on harbour foreshores.
          Encourage residential development which has regard to local amenity and, in particular, public and private views.

7 Clause 15, Landscape area requirements in residential zones, contains the following relevant objectives (inter alia):

      (1)(c) To maintain and enhance significant vegetation especially mature trees

8 Mosman Residential Development Control Plan also contains several relevant objectives, namely:

      4.4 Landscaping
          Objectives
          O1. To have the existing canopies and vegetated landscape character of Mosman townscape areas protected and enhanced.
          O2. To have existing Mature Trees protected.

9 Planning Guidelines - General Landscaping, the item P6 under “Trees” is also relevant:

      P6. Existing significant trees (including the significant Tree Registrar) are to be retained and incorporated into the proposed landscape design.

10 In terms of the provisions for carparking the DCP contains the following relevant item and objective:

      5.2 Car-Parking and Access
          O5. To have parking provided by the development that relates to the environmental and built constraints of the site.

11 In terms of planning guidelines for parking standards there are no controls for existing semi-detached properties but the council referred me to item P2 (Dwellings, houses and semis), which states:

          P2. For new semi-detached dwelling a minimum of one parking space per semi must be provided.

12 I was also taken to P 17 of the same section:

      P 17. Car parking and driveway design is to preserve significant trees and vegetation on the site and in the landscape.

13 The Facts and Contentions were reduced at the on site hearing to two main items:

      1. Is the condition of the tree such that it should be removed?

      2. If it is accepted the tree is to remain is the tree restricting a reasonable expectation that a double carport can be constructed at the site.

14 In making my decision, I am obliged to have regard to the relevant objectives as set out in the Council’s DCP. I also have regard to these objectives in the context of the Court of Appeal’s decision in Zhang v Canterbury City Council [2001] NSWCA 167 (June 14, 2001) in which it was determined that the provision of the DCP are to be considered as a “fundamental element” or a “focal point” of the decision making process. The provisions of the DCP that are directly pertinent to the application are entitled to significant weight in my decision-making process but are not necessarily in themselves absolutely determinative.

15 If the proposal does not meet all of the DCPs requirements, I may still grant consent after a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79c of the Environmental Planning and Assessment Act, 1979, if there are reasons to render it acceptable.

16 I heard expert evidence on the site from the two expert arborists; Mr Pittendrigh (for the applicant) and Mr Ingarfield (for the Council). I have also read their statements of evidence and joint report. The primary difference between these experts relates to the life expectancy of the jacaranda tree. Mr Pittendrigh contended that termite activity and decay in the crotches of some of the branches and trunks would render it to have a life expectancy of 5-15 years. Mr Ingarfield contended that with reasonable maintenance it might be retained for 15-40 years.

17 The age of the tree was thought to be roughly 40-50 years old and it was agreed that Jacarandas can live up to around 70-90 years, depending on how well they are maintained. Importantly both experts agreed on the following:

      • The tree contributes positively to the landscape amenity of the locality.
      • The tree is in good condition and health with no evidence of decline.

Findings

18 From the evidence and on the site view, which revealed the tree was in good condition and provided useful shading and landscape amenity, I can see no reason why it should be removed.

19 In regards to Issue 2, does the applicant have a reasonable expectation that a double carport can be built, the DCP controls and the LEP are clear about the retention of mature and significant trees. I do not see that the private benefit of the owner being of greater significance to the controls and objectives in these aforementioned documents.

20 The design of the property could permit a tandem parking arrangement, though this would impact on the garden arrangement at the property. However, a single parking area on the grassed area made of open paving slabs with gravel in between would be a more environmentally sensitive option combined with a single carport to the rear. Such a structure or similar design would provide off street parking as desired by the owner while retaining the significant jacaranda tree and its amenity and habitat value.

21 In balancing the competing concerns for private parking, I have taken into account some of the resident objectors’ concerns that the loss of the tree would reduce local aesthetics, amenity and privacy that it provides currently.

22 On the basis of the above findings this application must fail. I note that Council raised no objection to the replacement of the front fence as part of this proposal and they noted that a future application for a carport structure for a single vehicle and a possible 2nd space in a tandem layout would be viewed sympathetically. The Council agreed to assist the applicant via informal discussions prior to any future development application.

          1. The appeal in respect of the property known as 21 Cabramatta Road, Mosman is refused.
          2. Development consent to construct a double carport, front fence and for the removal of a large jacaranda tree Development No. 8.2008.338.1 is determined by refusal.
          3. The exhibits are returned.

___________________

      Dr Mark Patrick Taylor
      Commissioner of the Court
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Zhang v Canterbury City Council [2001] NSWCA 167