Warringah Council v Windy Dropdown Pty Limited
[2000] NSWLEC 110
•06/14/2000
Land and Environment Court
of New South Wales
CITATION: Warringah Council v Windy Dropdown Pty Limited & Anor [2000] NSWLEC 110 PARTIES: APPLICANT
RESPONDENT
Warringah Council
Windy Dropdown Pty Limited & AnorFILE NUMBER(S): 40027 of 2000 CORAM: Cowdroy J KEY ISSUES: Development :- development consent for subdivision creating land preservation area upon heritage site - developer filling land contained in the land preservation area without approval - orders for removal of ill and for re-instatement of land preservation area - unauthorised removal of trees - order for re-instatement of trees. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A(1)(b) CASES CITED: F Hannan Pty Ltd v Electricity Commission of New South Wales (1985) 66 LGRA 306 ;
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 ;
Woollahra Municipal Council v Alcaine (1986) 59 LGRA 40DATES OF HEARING: 19/4/00, 20/4/00, 29/5/00, 30/5/00, 31/5/00, 1/6/00, 2/6/00 DATE OF JUDGMENT:
06/14/2000LEGAL REPRESENTATIVES:
APPLICANT
Mr D Wilson (Barrister)SOLICITORS
Wilshire WebbFIRST AND SECOND RESPONDENT
SOLICITORS (FIRST AND SECOND RESPONDENT)
Mr C Leggat (Barrister)
D Troden
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 40027 of 2000
CORAM: Cowdroy J
DECISION DATE: 14/6/00
Applicant
First Respondent
and
Phillip Franks
Second Respondent
Background
1. In these proceedings Warringah Council (“the council”) seeks various orders against Windy Dropdown Pty Limited (“the first respondent”) and its director Mr Phillip Franks (“Mr Franks”). The council seeks the removal of fill which it claims was placed unlawfully upon land known as 1 Molong Street, North Curl Curl (“the land”). The council also seeks the re-planting of trees which it alleges have been unlawfully removed from the land.
2. In 1948 a house known as Windy Dropdown (“the house”) was constructed upon the land. The land is situated on the top of a headland overlooking the Tasman Sea. The house is of heritage significance. It was constructed following approval granted by the Land and Valuation Court in 1948 and represents a structure of architectural importance. The house and the land were the subject of a detailed study prepared by Graham Brooks and Associates Pty Limited dated January 1998. Such study was conducted in relation to the conservation of both the house and the land in the event that the land was developed (“the Conservation Plan”).
3. The land is approximately 2 acres in area and enjoys spectacular views of the coastline north to Broken Bay and beyond. The land was surrounded by a concrete block wall, approximately 2 m in height which was erected at the time the house was constructed. Such wall is located adjacent to a public reserve (“the public reserve”). The public reserve has a lookout and walking track which runs adjacent to the steep cliffs of the coastline. The public reserve is an unmade road reserve.
4. The land is affected by the provisions of the Warringah Local Environmental Plan 1995 (“the LEP”) and pursuant thereto zoned No 2(a) (Residential “A”). In such zone, dwelling houses (other than dwelling houses referred to in cl 17(2)(b) of the LEP) may be developed without consent. Pursuant to the provisions of cl 10(a) of the LEP consent of the council is required to carry out development comprising subdivision. Consent is also required by virtue of cl 10(b) in respect of earthworks, including landfill.
History of the development of the land
5. The first respondent is the registered proprietor of the land. On 12 March 1998, the council issued consent number 98/52 (“the consent”) for the subdivision of the land into nine lots namely Lots 11 to 18 inclusive (“the subdivision”). The house is located on Lot 10 of such subdivision. The consent states inter alia:-
The Development Application has been determined by granting consent subject to the following conditions:-
1. Development being generally in accordance with plans numbered A1-8337 P7, dated 13/1/98, submitted 13/2/98, and the provisions of the Conservation Plan prepared by Graham Brooks & Associates Pty Ltd dated 2/1/98, submitted 4/2/98 as modified by any conditions of this consent/approval. (A1)
2. Creation of Section 88B instruments to be registered on the title of each proposed lot binding the applicant and all successors in title in respect of the following matters:
(a) All future development to comply with the provisions of the submitted Conservation Plan prepared by Graham Brooks & Associates Pty Ltd dated 2 January 1998.
(b) Identification and retention of the screening trees which form the curtilage of the existing dwelling as detailed on plan “Existing Landscape Precincts” in the Conservation Plan as prepared by Graham Brooks & Associates Pty Ltd dated 2 January 1998.
(c) Establishment of a Landscape preservation area as indicated in red on the approved plan.
(d) The creation of building areas as detailed in the Conservation Plan. The building area of proposed Lots 12 and 13 are to be amended to locate all building areas clear of the Landscape preservation area as described in (c) above. All proposed development including paved landscaped areas, dwellings, garaging, outbuildings, clothes lines and any structures associated with the swellings are to be contained within those identified building areas.
(e) The creation of maximum RL’s for each proposed lot for all proposed buildings and works measured to the uppermost point are to be as follows:
(The remaining conditions are not presently relevant.)
Lot 11 - RL 49
Lot 12 - 14 - RL 46
Lot 15 - RL 55
Lot 16 - RL 53
Lots 17 - 18 - RL 53
6. As required by condition 2 of the consent an instrument pursuant to the provisions of s 88B of the Conveyancing Act 1919 was entered into. In relation to the ‘landscape preservation area’ referred to in condition 2(c) of the consent, condition 7 thereof is relevant. The terms of condition 7 provide:-
No dwelling, garage, outbuilding, clothes line or structure associated with a dwelling, including any paved landscape area, shall be erected upon a lot hereby burdened unless such is located external to the landscape preservation area upon that lot.
A line was drawn on a map which shows that the eastern portions of lots 11 to 14 were regarded as affected by the landscape preservation area.
7. Condition 1 of the consent referred to the Conservation Plan and required any development to be ‘ generally in accordance’ with plans incorporated therein. Such plan record the historical significance of the house and its curtilage. A heritage management framework was also included in the Conservation Plan which identifies areas of high heritage significance, medium heritage significance and low heritage significance. It is apparent from the text of the heritage management framework that certain requirements were to be observed if the land was to be subdivided. In the section 6.8 thereof entitled ‘Potential New Development’ the following is stated:-
Further subdivision of the overall property and erection of free standing houses is acceptable, provided the overall topography and landscaped nature of the site is respected and the essential north eastern views from the house are retained.Conservation Policy
Guidelines
· Any development within the confines of the property should retain the visible prominence of the house in its cliff top setting, when viewed from the coastal walkway to the north east.
· Strict guidelines and controls should be imposed on the allowable building area and overall heights of all new buildings.
· All new buildings should be sited and designed to enable the retention of as much of the mature landscaping, especially the large trees, as possible.
· The design of all new buildings on the overall site should respect the architectural integrity of Windy Dropdown by referring to, but not copying, its architectural language and adopting such principles as flat roofs, coloured walls, large areas of glass and external decks.
· Future development within the property should retain the sense of enclosure provided by the existing concrete block wall. However it is acceptable to alter the wall in terms of its height and surface finish and to penetrate the wall with pedestrian access ways into the coastal reserve.
8. The conditions attaching to the consent were obviously imposed to preserve both the house and coastal heath vegetation of the land as particularised in the Conservation Plan. Coastal heath was present both within and outside the boundary wall of the subdivision.
9. Pursuant to the consent, the first respondent installed drainage and sewerage lines within the landscape preservation area in preparation for the development of lots within the subdivision. Such work was contained in excavations beneath the surface of the land and carried out pursuant to engineering plans. A report prepared by Jack Hodgson Consultants Pty Limited, Engineers, dated 15 July 1998 provides inter alia:-
The existing concrete block fence was unstable and the construction of the new storm water mains and the concrete encasement of the sewer main had created an obstruction at the rear of the fence and required the removal of most of the vegetation. It was decided that the best approach was to raise the ground level on each proposed block at the eastern end to cover the pipes and to use the required retaining walls to strengthen the block fence. It was also decided to reduce the height of the fence to the proposed ground level and provide a new fence which would not obscure the view over the unmade road reserve.On 13 July, 1998 we inspected the partly completed retaining walls on the eastern end of the site. We had previously inspected the area at the time the footings for the retaining walls were being constructed. At the time of these inspections the work was being carried out in a workmanlike manner and in accordance with our requirements.
10. The engineering work was certified as having been carried out in accordance with the plans on 6 August 1998. On this date Mr Byrnes, surveyor for the applicant prepared a plan showing the finished levels of the landscape preservation area on lots 12, 13 and 14 of the subdivision. Such plan illustrates the contour lines throughout the landscape preservation area and the existence of rock outcrops therein.
11. On 19 October 1998, council modified the consent. The relevant portions of the modification provide:-
1. The modification of condition No. 1 to read:
Development being generally in accordance with plans numbered A3 B - 8337 P2, dated 9/9/98, submitted 14/9/98, and the provisions of the Conservation Plan prepared by Graham Brooks & Associates Pty Ltd dated 2/1/98, submitted 4/2/98 as modified by any conditions of this consent/approval. (A1)
2. The modification of condition 2(c) to read:
Establishment of a Landscape preservation area as indicated in red on plans numbered A3 B - 8337 P2, dated 9/9/98, submitted 14/9/98.
12. Plan A3 B - 8337 P2 shows the hatched area of the amended Landscape preservation area. Such plan differs from the plan attached to the consent in a minor respect, allowing a stepped boundary rather than a uniform line across the affected lots of the subdivision. A copy of such plan is Annexure A to this judgment. Plan A3B-8337P2 also demonstrates the location of the drainage easements in which the drainage system had been installed.
13. The earth contained in the landscape preservation area was restored following completion of the engineering works and the concrete boundary wall (“the boundary wall”) part of which had to be demolished during the construction of the drainage works. The concrete boundary wall was re-erected along the eastern part of the northern boundaries of the land. The replaced wall was strengthened so that it would operate as a retaining wall. A stainless steel hand rail was erected on parts of the boundary wall. Since the engineering works resulted in a small increase in the levels in the landscape preservation area, the alteration of the boundary wall caused no concern to council.
14. Based upon the information provided by the respondents to council, the council wrote to them on 27 August 1998 stating relevantly as follows:-
On 20 October 1998 council issued the linen plan for the subdivision. At that time council was satisfied as to the height and appearance of the boundary wall as well as the levels of the land.
In reference to the above premises and your request to Council to advise whether there is any concerns about the works that have been carried out in the preservation area, you are advised that Council considers that due to the installation of the drainage systems and sewer lines the area had to be disturbed and the restoration works which have been carried out are satisfactory.
It is anticipated that the linen plan will be released on Monday 31 August 1998.
Hoping the above information assists and if you require any further information please do not hesitate to contact Council’s Local Approvals Service Unit.
15. The respondent submitted an application for the construction of a dwelling on lot 14. On 21 May 1999 council issued consent no 1673 DA for such construction and pursuant thereto issued construction certificate no 1673 CCI. The plans which accompanied the construction certificate contain a site plan. Within the landscape preservation area there is no indication that work was to be carried out therein. Further, lines on such site plan suggest a corollation with the contours as shown in the landscape preservation area by Mr Byrne dated 11 August 1998.
16. On 21 May 1999 council issued development consent no 1375 DA for the erection of a dwelling house on Lot 15. A construction certificate no 1375CC1 was issued on that date for the proposed dwelling.
17. On 3 June 1999 an inspection of the land by council officers in the company of Mr Franks and his solicitor took place. The purpose of such inspection was to investigate the site of a tree which had been removed from the land on 1 June 1999 upon the instructions of Mr Franks. The tree was identified on a site plan as one marked for retention. In the course of that inspection council officers noted that there was substantial filling on lots 18, 17 and part of 16 of the subdivision. Mr Franks advised those present that the excavated material was derived from the two sites in respect of which construction approval had been given.
18. On 27 July 1999 an ‘Application to Modify a Consent’ was lodged by architects for the first respondent seeking to amend consent no 1673DA which related to the construction of the dwelling on lot 14 of the subdivision. The modification was described as follows:-
Minor encroachment of approved swimming pool into “Landscape preservation area” by a maximum of 2.75 m.
A plan accompanied such application which showed the encroachment of the swimming pool into the landscape preservation area. The plan also showed contour lines in similar positions to those as recorded by Mr Byrne in his plan dated 6 August 1998 which was prepared following completion of the subterranean drainage works on the land.
19. On 23 September 1999 the council received an application to modify the consent described as follows, ‘ to adjust ground levels and landscaping to eastern boundary’ . Such application sought approval for filled ground levels on all lots in the subdivision to the approximate levels of the fill currently on site. In respect of lots 12, 13 and 14 the application related to land within the land preservation area. This application was rejected by council on 16 November 1999.
20. By resolution of council dated 16 November 1999 council agreed to modify the terms of the s 88B instrument to permit the extension of the swimming pool by 2.75 m into the landscape preservation area. Consent no DA1673DA was amended accordingly. Between the date of council’s inspection of the site which revealed the additional fill in the landscape preservation area on 27 July 1999 and the date of the above approval, council and the respondents solicitor were engaged in correspondence concerning the fill. Council alleged the fill was placed in the landscape preservation area upon lots 12, 13 and 14 of the subdivision without the required consent from council.
21. On 16 November 1999 the first respondent made application to the council to modify development consent no 1673DA to enable lower roof ridge levels on the dwelling of lot 14, adjustments to the fence along the northern boundary of such lot and to provide an extended balcony at the first floor level of such lot. On 1 December 1999 council approved such modification. Plans submitted by the architects for the first respondent showed a plan of the relevant area including the landscape preservation area. In respect of such area the following words are stated:-
Raise existing soil level to reduce enclosure of boundary walls to comply with the requirements of the s 88 of the instrument and re-landscape with planting endemic to the North Curl Curl headland area.
On the council’s stamped plans, over such words and through the area marked landscape preservation area excluding the area containing the swimming pool extension lines have been drawn in red ink and on such plans is written the following statement, ‘ Not part of this application’ .
Removal of Trees
22. The council also seeks relief against the respondents for the removal of trees from the land at the timed consent for subdivision was issued. Condition 2(g) of the consent provided:-
g) Identification and retention of significant trees as detailed on the plan “Areas of Landscape Significance” as prepared by DM Taylor Landscape Architects Pty Ltd and contained within the Conservation Plan.
23. The plan of D M Taylor Landscape Architect Pty Limited dated January 1998 contained in the Conservation Plan describes the areas of landscape significance. Such plan shows the location of planting to the curtilage of the house and other planting of medium significance which is described as ‘to be retained if possible’ . The council has adduced evidence from Mr Danny Draper, a horticultural consultant. He has examined a plan of D M Taylor Landscape Architect Pty Limited prepared in June 1998 which shows trees upon the site in greater detail. The legend of such plan also describes existing trees ‘to be retained’ . Using such plan Mr Draper has concluded that 31 trees marked for attention have been removed from the land. Certain of these trees would have warranted removal because of works to be executed pursuant to the consents. However Mr Draper estimates that 19 trees have been removed from the land for reasons unrelated to consents.
24. Council accordingly seeks orders that new trees be re-planted on the land.
Respondent’s submissions
25. Mr Franks has given evidence for the respondents. He has testified that from the outset of the proposal to develop the land it was his intention to raise the levels of the land in the landscape preservation area to the level that presently exists on lots 12, 13 and 14. He submits that the conditions of consent, if not expressly, impliedly granted his such permission. In particular he relied upon the provisions of condition 2(a), 2(c), 2(e), 2(f) and 2(g). It is unnecessary for the Court to recite the supporting arguments because the Court considers that they are devoid of merit.
Findings of the Court
26. The creation of the landscape preservation area by condition 2(c) of the consent was of such importance to the council that a special condition was incorporated ensuring its creation by an instrument pursuant to s 88B of the Conveyancing Act 1919. In addition condition no 4 of the consent was clearly intended to preserve the integrity of such area. It provides:-
4. The screening trees and Landscape preservation area to be retained on-site shall be protected by the erection of suitably sturdy protective fencing prior to site works. Details to be provided prior to the commencement of works.
27. The application to fill the land within the landscape preservation area of lot 14 of the subdivision was expressly excluded from the application to modify the consent no 1673DA made on 16 December 1999 in respect of lot 14. All plans lodged with the council are consistent only with the conclusion that the original contours of the land, as modified in a minor way following completion of the engineering works were to be retained. In addition, the report of Jack Hodgson Consultants Pty Limited dated 15 July 1998 states, ‘ It was also decided to reduce the height of the fence to the proposed ground level … ’. The ground level at that time has been recorded. Mr Phillip Gardener, surveyor has compiled the levels of the land within the landscape preservation area from plans prepared by Mr Byrnes dated 11 August 1998 and compared them to the present. In the north-west corner the level of the land in the landscape preservation area has been raised by 2.61 m. The north-east corner of the land has raised by 1.23 m. Increases in the levels of the land has also taken place in lots 12 and 13. During the course of the drainage works, man-hole facilities were constructed to a level which corresponded with the ground level identified by Jack Hogdson Consultants Pty Limited in their letter of 15 July 1998. Mr Franks acknowledged that he arranged for the extension of the height of the man-holes so that they are now flush with the present level of the fill.
28. In summary, the overwhelming evidence establishes that the levels of the land in the landscape preservation area as they existed at the 15 July 1998 were regarded by council and the respondent’s engineers to be the final levels.
29. The application for modification of the consent made on 16 December 1999 specifically excludes the proposed filling within the landscape preservation area of lot 14 of the subdivision. If it always had been Mr Franks intention to place fill in this area, such intention was, on the evidence, not communicated to council and there is no consent which authorises such work. In these circumstances, the Court finds that the fill was placed upon lots 12, 13 and 14 in the landscape preservation area in breach of the conditions of the consent. Accordingly there has been a breach of the provisions of s 76A(1)(b) of the EP&A Act. The fill on the lots to the west of the land namely lots 16, 17 and 18, Mr Franks has acknowledged his obligation to remove such fill.
Discretion
30. The respondents have submitted that the Court would exercise discretion and not require removal of the fill in the landscape preservation area. In support of such submissions the respondents rely upon the evidence of the author of the conservation plan, Mr Brooks who has provided an affidavit. Mr Brooks states inter alia:-
The completed works contained and protected the features that were identified as being of cultural significance. The new landscaping is of a high order and will recapture the essence of the original setting of the historic house within a relatively short period of time. The introduction of new levels in landscaped conservation area behind the original boundary wall along the eastern sector of the site north of the Windy Dropdown curtilage is acceptable in order to achieve a complimentary solution of a high standard that would match the new houses. The sense of enclosure of the old external precinct wall has been retained, albeit with the levels of the land behind raised to give improved outlook from the new buildings.
Unfortunately Mr Brooks was absent from Australia during the hearing and was not available for cross-examination.
31. The council has led evidence to the contrary. Mr Warwick Mayne-Wilson, conservation landscape architect, testified that in his opinion whilst the integrity of the house which has been the subject of appropriate preservation filling of lot 12, 13 and 14 is inconsistent with council’s plan for the development of the land. He confirmed the observations of Mr Brooks as set out in the Conservation Plan that the boundary wall provided the important function of creating a sense of enclosure. He observed that the wall provided mutual privacy for the public and residents was now greatly reduced. Mr Mayne-Wilson said that the effect of the fill was to provide a viewing platform which is visible to those using the adjacent coastal walk and vice-versa. Contrary to Mr Brooks opinions, Mr Mayne-Wilson considered that rather than retaining a sense of enclosure, a sense of exposure had been created not only to the occupants of the lands but also to the public who might use the walkway.
32. Mr Mayne-Wilson observed that Mr Brooks was not a qualified landscape architect. He considered that the current planting was representative of only a rough copy of the original heath. He opined that the increased level of fill on the land is not in keeping with the overall topography and vegetation on the land. He considered that the fill in the landscape preservation area was excessive as was the newly laid sandstone boulders which had been placed along lot boundaries.
33. Ms Penelope Ann Goldin, a town planner for the council considered the application made by the respondents on 23 September 1999 to modify the consent by the filling of lots 12, 13 and 14 within the landscape preservation area which was rejected by council. In her report to council she expressed her views as follows:-
It is considered that the increased land levels will have a major detrimental and overbearing visual impact when viewed from the coastal reserve. It will provide an unacceptable and detrimental impact on the visual privacy of users of the coastal reserve.The existing character of the site and place can be described as of coastal cliff and headland character. It slopes from the south and west boundaries down to a low point in the north-east corner of the site. The original natural ground levels of the site join the coastal reserve to the immediate east of the site. The proposal alters the character of the site by altering the land levels to an unnatural level which is not complementary to its joining with the coastal reserve topography to the immediate east. The proposal makes no attempt to relate to the site and does not provide a visual transition between the site and the coastal reserve.
34. The Court has had the benefit of a view and has been able to observe the features noted by Mr Brooks, Mr Mayne-Wilson and Ms Goldin. The Court finds that the opinions of Mr Mayne-Wilson and Ms Goldin accurately reflect the current visual features of the land. If there had been a sense of ‘enclosure’ within the site, that sense is no longer apparent. The sense of the enclosure of the land is also lost as the visual exposure of persons standing within the filled area overlooks the public reserve.
35. Mr Franks adduced evidence that the cost of removal of the fill would be substantial. Based upon his experience he said that it would cost approximately $250,000 to $300,000 to remove. This quantum was disputed by the council. Evidence was adduced from Mr Ross Picard, Infrastructure Services Manager of the council that the cost of removal would be estimated at $156,590. Such estimate was detailed and the Court considers it to be a more accurate calculation than Mr Franks unsubstantiated assessment. Taking into account the scale of the development of the land and the fact that the fill has been placed in breach of the conditions of consent the Court considers that orders for the removal of the fill are warranted.
36. The respondents rely upon Woollahra Municipal Council v Alcaine (1986) 59 LGRA 40 as demonstrating that the power of the Court need not necessarily be exercised by the making of an order. However each case depends upon its own facts and the Court possesses wide powers either to make or refrain from making such orders as it sees fit: see F Hannan Pty Ltd v Electricity Commission of New South Wales (1985) 66 LGRA 306 at 311-312; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341.
37. To permit the fill to remain on the land would be contrary to the specific requirements of the conditions of consent which were obviously formulated with considerable foresight to ensure that the private and public amenity of the land and the public reserve would be preserved.
38. As to remaining issue concerning the removal of trees, the Court has been provided with a diagram prepared by Mr Draper which establishes that trees have been removed from places in which it is apparent that engineering or building works would not have justified their removal. No expert evidence exists to challenge Mr Draper’s detailed assessment. The Court accordingly considers that appropriate orders are warranted to ensure the re-planting of substitute trees upon the land.
Subsidiary Issues
39. A concrete block wall has been erected between lots 17 and 18 without council consent. The respondents are agreed that the wall will be removed. An order to provide for the removal is required.
40. A number of fig trees have been planted outside the land adjacent to the boundary wall. The respondents are willing to remove such trees and an order is appropriate to provide for such removal.
41. The fill on lots 16, 17, 18 of the subdivision is acknowledged by the respondents to have been placed on such lots temporarily. There is no immediate urgency to the removal of such fill. An order is to provide that such fill is to be removed before transfer of any such lots is effected or prior to any building approval being granted for such lots.
Orders
42. The Court directs that the applicant prepare draft declarations and orders to implement the findings of the Court referred to above and to submit the orders to the Court.
43. The Court grants leave to the parties to approach the Registrar within 5 days to obtain a date for the purpose of final orders and costs.
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