Wang v Willoughby City Council

[2012] NSWLEC 1328

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wang v Willoughby City Council [2012] NSWLEC 1328
Hearing dates:	21 November 2012
Decision date:	29 November 2012
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal dismissed
Catchwords:	DEVELOPMENT APPLICATION; Condition of consent prohibiting construction of a secondary dwelling; impacts on trees; suitability of site
Legislation Cited:	Environment protection and Biodiversity Conservation Act 1999 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Threatened Species Conservation Act 1995 Willoughby Local Environmental Plan 1995
Cases Cited:	Pafburn v North Sydney Council [2005] NSWLEC 444 Super Studio v Waverley Council [2004] NSWLEC 91
Category:	Principal judgment
Parties:	Mr Ji Liang Wang (Applicant) Willoughby City Council (Respondent)
Representation:	Applicant: Mr Ji Liang Wang (Litigant in person) Respondent: Ms M Carpenter (Barrister) Respondent: Kind & Wood Mallesons
File Number(s):	10685 of 2012

Judgment

1. COMMISSIONER: On 8 July 2011, Willoughby City Council granted consent to DA-2010/507/(W) for "Alterations and additions to existing dwelling and use of storage shed as a games room" on Lot C DP 962261 otherwise known as 13 The Crescent Chatswood.

1. Condition 3 of that consent (Secondary Dwelling Not Approved) stated:

The secondary dwelling (labelled "proposed granny flat" on the approved plans) and that part of the pathway (Labelled "ramp") past the fibro storage building are not approved under this Consent.

(Reason: Landscape quality in relation to likely excavation damage to the root system of the Sydney Red Gum (Angophora costata) being tree T14 as detailed in the Tree Report prepared by Lanscope Tree Valuation Services, dates 6 August 2010; visual amenity and site suitability)

1. The applicant is appealing against this condition of consent and seeks the approval of the secondary dwelling as shown on the plans approved by council. The appeal is made pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act).

1. The matter commenced as a mandatory conciliation under s 34AA of the Land and Environment Court Act 1979. As no agreement was reached, the conciliation was terminated and the matter proceeded immediately to a hearing (s 34AA(2)(b)(i)).

The issues

1. The issues or differences between the parties can be summarised as:

• The suitability of the proposed location of the granny flat in regards to:
• the extent of impact of the construction of the 'granny flat' and associated ramp on the root systems of an Angophora costata (T14) and a Eucalyptus saligna (T15) and consequentially, the impact on Blue Gum High Forest.
• the impact of the granny flat on the privacy and amenity of adjoining properties.
• The need to comply with council's controls for Access, Mobility and Adaptability.

1. During the hearing, a number of nearby residents, all of whom made written submissions to council, raised several issues including:

• Concerns over privacy and amenity arising from the proximity of the proposed granny flat to their properties, particularly given the design and orientation of the living areas that face onto the property at the rear rather than towards the primary dwelling on the site.
• The proposed development jeopardises the ecological conservation and landscape values of the locality.

The site and its context

1. The site is a relatively long block with an area of 910.49 m2. There is a fibro storage shed located in approximately the centre of the lot near the northern boundary.

1. The subdivision pattern and topography of the locality is such that a number of adjoining and nearby properties overlook the applicant's rear yard.

1. The rear yard is densely treed and contains 21 specimens of varying height, age and species. The site is located in a 'Blue Gum Conservation Area' under the Willoughby Local Environmental Plan 1995 (WLEP).

1. The trees in contention are located along the south-eastern portion of the site and are contiguous with a group of several other large remnant trees at the rear of the adjoining property to the east.

The proposal

1. The proposed granny flat or secondary dwelling is a single storey brick and tile two bedroom dwelling located close to the rear (eastern) and northern side boundaries. The orientation of the living room is to the south and east with a verandah (with privacy screens) on the eastern side.

1. The plans show the construction to be pier and beam supporting a concrete slab.

1. The granny flat is proposed to be located beneath the canopies of T 14 and T15. A number of trees are proposed for removal however T14 and T15 are identified for retention.

1. The proposal also includes a ramp designed to comply with AS 1428.2 - Design for Access and Mobility. This ramp traverses the centre of the site and runs along part of the southern façade of the building to the entrance. The ramp is located 2.4 metres from T14 and 2.2 metres from T15.

The assessment framework

1. Willoughby Local Environmental Plan 1995 (WLEP) applies. Relevant aims and objectives in cl 2 of the plan are:

(b) to allow development at a scale that is sensitive to environmental and planning constraints, and

(c) to control and manage adverse environmental impacts of development, and

(g) to identify and protect environmentally sensitive areas

1. Clause 13C - Tree and bushland preservation order applies.

1. Clause 13D Amenity is relevant:

Before granting consent for development, the Council must consider whether the proposed development is likely to have an adverse impact on an adjoining or nearby property by causing loss of views, loss of privacy or a reduction of sunlight to the living areas or principal open space recreation areas, and whether:

(a) there are no other design alternatives that would mitigate the impacts, or

(b) there are special circumstances applying to the site or its context.

1. The site is zoned Low density residential area - Zone 2(a) under WLEP. Objective (c) is relevant:

(c) To retain and enhance residential amenity, including views, solar access, aural and visual privacy and landscape quality.

1. Parts of Willoughby Development Control Plan (WDCP) apply. Parts C.6 - Access, Mobility and Adaptability and C 6.3 Adaptable Housing do not apply to single residential dwelling houses but do apply to secondary dwellings (part D.2.13).

1. Control 7 - Adaptable Housing in D.2.13 - Secondary Dwellings states:

All secondary dwellings must be constructed in accordance with the requirements set out in Part C.6 Access Mobility and Adaptability.

1. A note at the end of this part states:

Note: Secondary dwellings in conservation areas or on the site of heritage items, must comply with the controls set out in Part H of this Plan.

1. The site is located in Locality 4 in Part D - Specific Controls for Residential Development. Amongst other things, the locality is characterised by 'prolific and large expanses of natural landscapes'. The locality contains one heritage conservation area - the Blue Gum Conservation Area; as previously stated, the site is located in this conservation area. Item 6 in regards to 'Desired Future Character' states:

6. Retention of significant trees and areas of significant natural vegetation and native understorey to maintain the vegetative character of the locality. Plant locally indigenous trees and dense vegetation, both within the site and to the street frontage, to maintain the prolific natural landscape characteristics of the locality and to encourage the dominance of vegetation to the residential area.

1. Specific management policies in Part H for the Blue Gum Conservation Area include:

Protect mature trees in rear gardens which form a backdrop to the streetscapes. Protect remnants of the Blue Gum High Forest.

1. Other clauses in Part D WDCP reinforce the preservation and enhancement of important environmental and landscape qualities of the area.

The evidence and submissions

1. Both parties tendered reports from arborists and ecologists. The ecologists, Dr Mills for the council, and Ms Dalby-Ball for the applicant were present at the site inspection. As the ecologists agreed on all substantive issues, they were not required for cross-examination in court. The parties rely on the written reports of their respective experts.

Site suitability - impacts on trees

1. In August 2012, the applicant obtained a report from Mr Peter Thyer of Lanscope Tree Valuation Services this report was based on early plans for the proposed granny flat (that is, not the ones the subject of this appeal) but is still relied upon by the applicant. This report incorrectly identified T15 as a Eucalyptus piperita (Sydney Peppermint) and not a Eucalyptus saligna. Based on the plans before him, Mr Thyer stated that:

I consider the construction of the granny flat may cause minor short term damage to the Angophora tree [T14] but no significant long term damage.

I consider that due to the very lopsided crown of the Sydney Peppermint, the large lean of the trunk towards the proposed granny flat, and signs of termite activity on the trunk, this tree should be removed if the granny flat is to be constructed.

I cannot recommend any minor relocation of the granny flat that would cause less damage to the Angophora, or retain any worthy trees in its footprint. If Council was opposed to the granny flat in its proposed location, an alternative of building on the site of the existing storage shed and extending to the east would mean damage or loss of a Norfolk Island Pine and a Deodar but those are not significant trees and have only fair health and structure.

1. The assessing officer's report to council dated 26 May 2011 notes that the Thyer report predates the amended plans (the plans the subject of the appeal) that include provision of a path and associated low level retaining wall. Therefore, the threat to the Angophora was considered by the officer to be greater than anticipated by Mr Thyer. The council report makes many references to the council's preference to relocate the granny flat to the general area of the existing storage shed so as to minimise the impact on the Angophora. It states that neither the applicant's arborist or council's Open Space section oppose the removal of the Norfolk Island Pine or Deodar.

1. The council report records the applicant's unwillingness to relocate the granny flat on the basis of the applicant's belief that: the proposed development is fully compliant, the retention of the tall Norfolk Island pine and Deodar create a better outcome for site landscaping criteria, and concerns about the potential impact on a nearby Silky Oak on the adjoining property.

1. The council officer's report concludes that while the proposed development has a high level of compliance with the applicable controls and some aspects are capable of being conditioned, the development is unsatisfactory because of the expected detrimental impact on the Angophora due to excavation for the secondary dwelling and associated pathway/ retaining wall. In this regard, the officer finds that s 79C(1)(c) is not satisfied, that is, the site is unsuitable for the development. However, the report finds that the site could accommodate a secondary dwelling in the vicinity of the existing storage shed. However, as this scenario could not be dealt with under the current development application, the applicant could consider submitting a fresh application for the secondary dwelling in the recommended location. The officer recommended the development application for the alterations and additions to the existing dwelling be approved but not the proposed secondary dwelling.

1. In June 2012, the applicant engaged Ms Margot Blues of Blues Arboricultural Services to inspect the site and provide additional information in relation to the development application. Ms Blues determined that 'root mapping' along the edge of the proposed building and pathway was appropriate. The applicant undertook these works by excavating a trench to the depths he considered to be indicated on the architect's plans. Ms Blues then inspected the trenches and concluded that while there were many small roots, T14, the Angophora, does not pose a constraint to the proposed development and therefore, it is unlikely that the excavation will cause long term damage to the Angophora. She also outlined some general measures to ensure protection beyond the immediate construction zone.

1. The Blues report also notes that she discussed with the applicant the option of 'flipping' the design of the granny flat to eliminate or minimise the need for excavation. The report makes no comment on T15.

1. In August 2012, the council engaged Mr Guy Paroissien of Landscape Matrix Pty Ltd to inspect the site, including the trenches excavated by the applicant. Having picked up the misidentified Eucalyptus, he assessed both T14 and T15 and considered a number of methods to determine their retention value as well as the likely impact of the proposed development. Using a 'Tree Retention Value - Priority Matrix', both trees were determined to have a High priority for retention. He concludes that:

• The direct impacts to the tree protection zone (TPZ) of T14 are in the moderate range and within an acceptable threshold.
• The direct impacts to the TPZ of T15 are in the moderate to high range with the potential to impact on the tree's long term health.
• The trenching for the 'root mapping' has already incurred the level of impact assessed in the report and the proposal will have no additional direct impact on the trees' TPZ areas provided the trenches were dug to the required depth to construct the proposed pathway and building.
• A significant indirect or longer-term impact on the trees posed by increasing the hazard rating of the trees by placement of a high occupation target (dwelling) under their canopies.
• The increased hazard, combined with the maintenance associated with leaf, bark and twig fall is likely to generate requests for pruning of the trees' canopies over the secondary dwelling.
• Due to the incorrect identification of T15 as a Peppermint Gum instead of a Sydney Blue Gum there has been no consideration of potential impacts on Blue Gum High Forest, a critically endangered ecological community under both the NSW Threatened Species Conservation Act 1995 and the Commonwealth Environment protection and Biodiversity Conservation Act 1999.

1. In August 2012 the applicant contacted Mr Thyer about his earlier report. In a return email, Mr Thyer acknowledged that he might have been in error regarding the species identification.

1. Given the findings about the potential presence of Blue Gum High Forest, the applicant subsequently engaged Ms Mia Dalby-Ball of Dragonfly Environmental to undertake a test of significance or '7 part test' [Ms Dalby-Ball's does not identify the 'test' as being in accordance with s 5A of the Environmental Planning and Assessment Act 1979 or the '7 part test' being consideration of the factors in s 5A(2) of the Act]. The council then engaged Dr Kevin Mills of Kevin Mills & Associates to review Ms Dalby-Ball's report.

1. The ecologists prepared a joint report in which they agree that T14 and T15 are a remnant of Blue Gum High Forest. Of relevance are two of their agreed findings:

6. There is a probability that in future an owner could seek to remove the trees because of the potential to impact upon the secondary dwelling. We agree that ideally, the secondary building be moved from beneath the canopies of the trees in question.

8. While the test of significance concluded no significant impact on the local occurrence of Blue Gum High Forest Endangered Ecological Community it is important to take actions that will maximise the chance of plants from this community surviving in the local area - hence the above suggestion for planting [agreed point 7 regarding planting of local indigenous species off site - especially in a reserve across the road].

Submissions - impacts on trees

1. The applicant, who is self-represented, relies on the findings of the 'root mapping' and the evidence of Ms Blues and Mr Paroissien that there were no significant woody roots found in the trenches and most roots were probably from nearby palms. He notes Mr Paroissien's conclusions that the root mapping has achieved the level of potential impact on the trees. He also questions the extent of the incursions in the TPZ as calculated by Mr Paroissien; in his view the impact is less than calculated as the structure will be largely above ground and that footings for piers can be moved if roots are found. The applicant also seems to suggest that Mr Paroissien's assessment of T15 results in "Priority for removal" in the Tree retention Value Matrix.

1. Although he has not sought its removal, the applicant relies on Mr Thyer's original assessment of T15 and the recommendation for its removal on the basis of safety. He also notes that the council's assessment report raised no issues with the removal of T15 in accordance with Mr Thyer's report.

1. The applicant also relies on the findings of the parties' ecologists that the proposed development will have no significant impact on the local occurrence of Blue Gum High Forest.

1. In conclusion, given these findings, the applicant submits there is no basis for relocating the secondary dwelling because of its impacts on trees or Blue Gum High Forest and that the development should be approved in its proposed location.

1. Ms Carpenter, counsel for the respondent, submits that both the applicant's arborists, Mr Thyer and Ms Blues, suggested an alternative site or layout in order to minimise the impacts on the Angophora. She contends that both Dr Mills and Ms Dalby-Ball support this proposition, particularly in regards to the potential indirect impacts identified by Mr Paroissien of placing a dwelling under the canopies.

1. She maintains that the council's position is that it does not oppose the construction of a secondary dwelling on the applicant's property in a location that minimises the risk to the trees and therefore the Blue Gum High Forest. Ms Carpenter contends that in its present location, the proposal does not meet the aims and objectives of WLEP and nor does it satisfy the management objectives in Part H WDCP for the Blue Gum Conservation Area.

Site suitability - visual impact, aural and visual privacy

1. The assessing officer's report notes that while the proposed location is close to the rear boundary and it will be seen from the rear gardens of three nearby properties in Tessa Street, the setbacks are compliant, the use of screening, and more appropriate landscaping is considered adequate to ameliorate these impacts should the development be approved. The officer states that the council has no concerns regarding aural privacy. In answer to the written submissions made by nearby residents, the officer agrees that there will be some visual impact but not to the extent claimed by the residents.

1. However, notwithstanding those findings, the officer considers that:

It is clear that siting the proposed secondary dwelling in the general location of the storage shed would reduce the visual impact of the development to the objecting properties in Tessa Street. It is not considered that there would necessarily be an associated loss of privacy and/or greater visual impact on 15 The Crescent.

1. The applicant relies on the summary of the council officer's report outlined in [42] and contends that the assessment of the granny flat raised no significant issues with privacy and visual impact. He also submits that if it is moved forward it may have impacts on the privacy of 11 The Crescent as well as impacts on the Silky Oak tree on 13 The Crescent.

1. Ms Carpenter contends that an alternative location for the secondary dwelling will reduce negative impacts on nearby properties. She relies in part on the Planning Principles identified by the then Senior Commissioner in Super Studio v Waverley Council [2004] NSWLEC 91 and Pafburn v North Sydney Council [2005] NSWLEC 444.

1. In Super Studio the principles include: the acceptability of an impact depends not only on the extent of the impact but also on the reasonableness of, and necessity for, the development that causes it; and landscaping cannot be the main safeguard against overlooking. In Pafburn, amongst other things, the skill with which a proposal has been designed is relevant - even a small impact should be avoided if a more skilful design can reduce or eliminate it.

1. By analogy with a more skilful design, Ms Carpenter contends that a more suitable location of the proposal will reduce or eliminate the impacts on the neighbouring properties.

Findings - site suitability - trees and visual impact

1. With the expertise I bring to the Court, while I agree with the applicant that the roots in the trenches are small, and that the short term impacts of the path and dwelling have been described as acceptable for the Angophora, I have concerns that there will inevitably be more significant long term and indirect consequences associated with both the construction of the granny flat and the use of its immediate surrounds that have not been adequately canvassed. I agree with Mr Paroissien that the Sydney Blue Gum is at greater risk of longer-term damage given its current condition and the proximity of the construction to the tree.

1. I do not agree with the applicant's interpretation of the retention value of T 15. I consider that the applicant has misunderstood the construction of the matrix. While the tree certainly has some dead wood and evidence of termite tracking, given the species of the tree and its ecological importance, I agree with Mr Paroissien's assessment that the tree is of high priority for retention

1. While the trenches appeared to have been excavated to the depth of the piers, additional excavation would be required for the footings. There was no indication of the likely location of underground services although the applicant though they would follow the line of the sewer and storm water drains along the northern boundary. Hence I am left with a degree of uncertainty as to the actual impact on the two trees.

1. Although the ecologists agree that the development will not have a significant impact on the local occurrence of the critically endangered ecological community of Blue Gum High Forest, their recommendation is that the secondary dwelling be moved away from the two remnants of that community in order to minimise both short term and long term impacts on the EEC.

1. I concur with the concerns of the ecologists and Mr Paroissien that placing a dwelling under significant trees inevitably increases the amount of interference (such as pruning) with those trees. It is far preferable, if there is space to allow it, to avoid unintended consequences of interactions between trees and structures or trees and the occupants of the structures.

1. The re-occurring theme in the council report and the evidence of the experts is that there is ample room on the site to relocate the secondary dwelling away from the trees. It was clear from the site inspection that the area in the vicinity of and occupied by the fibro storage shed would be a more suitable location.

1. While I agree that the proposal complies with setbacks and the design includes privacy screens, I consider the design is such that it encourages an outlook onto adjoining properties rather than onto the site itself. While the impacts on visual amenity are not major, relocation of the granny flat to the area of the fibro shed would undoubtedly reduce them. This is supported by cl 13D(a) of WLEP.

1. The site is located within a Blue Gum High Forest Conservation Area. Trees 14 and 15 are considered by the ecologists to be components of a remnant stand of Critically Endangered Ecological Community - Blue Gum High Forest. Hence, these trees are a constraint on the site. Given the availability of a more suitable location that would minimise both short and long term impacts on these trees, relocation of the secondary dwelling would seem the more prudent option and one that best achieves the relevant aims and objectives of WLEP noted in [15] of this judgment.

1. To this end, as considered in Pafburn, a more skilful design that capitalises on the alternative location and which takes into account the constraints arising from T14 and T15 as well as the concerns about privacy could achieve a secondary dwelling that meets the applicant's needs and satisfies council's concerns. I also note [as in Super Studio] that this is a secondary dwelling and not the primary residence and the alternative location is occupied by a small shed that could most likely be placed elsewhere on the site/ incorporated into the secondary dwelling without causing unnecessary impacts of T14 and T15.

1. Therefore after considering the relevant matters in s 79C(1) of the Act, I find that the proposal compromises the aims and objectives of WLEP 2005 (s 79C(1)(a)) and is likely to have adverse long-term environmental impacts (s 79C(1)(b). Consequently, I find that the location/ site of the proposed secondary dwelling is unsuitable (s 79C(1)(c)). On this basis, the appeal is dismissed.

The need to comply with council's controls for Access, Mobility and Adaptability

1. While I have determined that the appeal should be dismissed on the matters discussed above, for completeness the issues in relation to universal access should be addressed.

1. The applicant raises concerns that while he can build a compliant secondary dwelling, the need to do so is pointless as the design, width and side setbacks, of his primary dwelling are such that a continuous accessible path of travel from the street to the secondary dwelling could not physically be achieved for anyone in a wheelchair.

1. Control 7 - D.2.13 in WDCP requires that all secondary dwellings must be constructed in accordance with the requirements set out in Part C.6 Access Mobility and Adaptability.

1. I note that in regards to the application of Part C.6, the WDCP states that:

Council may vary the provisions of this section if compliance with the plan will cause major difficulties or unjustifiable hardship to a person or organisation.

Each claim for unjustifiable hardship is determined on a case by case basis taking into account the following:

- Whether there is a benefit or detriment to any person concerned;

- How it affects the disability of the person concerned; and

- The financial cost.

Any considering the following circumstances:

- Technical limits;

- Topographical restrictions; and

- Safety, design and construction issues.

- Does not rely on the 'public domain' to solve access issues within the site.

1. It would seem to me that there is a mechanism available to the applicant to make a formal submission to council on the need to comply with the controls in C.6 and therefore D.2.13. In my view this would be appropriate if and when the applicant lodges a new development application for a secondary dwelling on his land.

Orders

1. The Orders of the Court are:

(1)   The appeal is dismissed.

(2)   Exhibits A and 1 are retained; all other exhibits are returned.

__________________________

J Fakes

Commissioner of the Court

Decision last updated: 30 November 2012