Application for Subdivision Approval Falls Over Due To Concerns Regarding Lot Size and Bush Fire - One Lot Too Many

The Land and Environment Court has upheld Warringah Council's refusal of a development application which sought approval for a subdivision.  The decision of the Court, per Commissioner Morris, Sternhell v Warringah Council (2014) NSWLEC 1168, can be found at the link below: 

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=173645

The site that was the subject of the development proposal is located in the Wheeler Heights locality and comprises a total land area of 2,481 square metres. The site borders a Council-owned bushland reserve and is mapped as bushfire prone. The section of the reserve closest to the subdivision site consists of an opened grassed area that is regularly mowed by local residents, with denser vegetation situated farther from the property.

The application proposed subdivision of the property into 4 separate allotments. All of the new lots were smaller than the minimum lot size of 600 square metres allowed under the relevant council controls. This shortfall was due in part to the fact that some of the land was required for vehicular access ways which could not be included in the calculation of lot sizes under the Council's Development Control Plan.  Therefore, the applicant sought a variation of the minimum lot size requirement, contending that this requirement was unnecessary and unreasonable in the circumstances.

The other major difficulty presented by the proposal was that it called for use of a portion of the mowed open grassland portion of the Council-owned reserve as an asset protection zone for bushfire purposes, and did not make provision for an asset protection zone within the land area covered by the subdivision itself. The applicant suggested during the proceedings that it would be prepared to seek to acquire an easement over the land proposed to be used as an asset protection zone for the purpose of carrying out vegetation management works. However, the Council indicated that it was disinclined to grant any easement over the reserve lands.

The Court concluded that it was not appropriate in the circumstances of the case to allow a variation of the minimum lot size standard. The Court found that allowing such a departure would result in frustration of the objective of promoting subdivisions consistent with the pattern, size and configuration of the lots in the surrounding locality.  The proposal was determined to be inconsistent with the previous subdivision pattern, because the great majority of those earlier subdivisions involved only the creation of 2 or 3, and not 4  lots, and the majority of the lots created by those subdivisions met the minimum size requirement. 

The Court also determined that the application was unworthy of approval because it did not make provision for an inclusion of an asset protection zone within the site. The Court found that it was unsatisfactory and inconsistent with the requirements of the applicable controls for the proposal to rely on use of the Council-owned reserve land, especially since a subdivision design approach was available (namely, limiting the subdivision proposal to 2 or 3 lots) that would have enabled inclusion of the asset protection zone within the site.

While it is understandable that a developer would seek to maximise the development potential of a property, the result in this case illustrates that that economic objective might not be achievable in every case. Constraints, such as a preexisting subdivision pattern in the locality, may limit the financial potential that may be realised from a property. The lesson that can be taken from this case is that comprehensive due diligence will enable any such constraints to be identified at an early stage, and for the prospective developer to frame their subdivision plans accordingly.  

Court Holds That Mature Sydney Redgum Tree May Be Removed to Make Way for New House

In a previous post, we discussed a recent judgment of the Land and Environment Court where the presence of three Sydney Turpentine trees on a proposed development site caused a development application to fail: see our article concerning the Court's decision in Arkbuilt Pty Ltd v Ku-ring-gai Council, (2014) NSWLEC 1161.  In the Arkbuilt case, Commissioner Dixon concluded that the applicant had failed to consider plausible design solutions that would have allowed the retention of the trees, and thus dismissed an appeal against the refusal of the application.

By contrast, in P S Graham & Associates v Hornsby Shire Council (2014) NSWLEC 1153, Commissioner Brown decided that a large, healthy Sydney Redgum tree could be removed to facilitate the construction of a new house. The two cases, with divergent results, provide interesting food for thought about how issues relating to the protection of significant trees may affect the outcome of planning appeals in the Court.

The development application at issue in P S Graham & Associates sought approval for the demolition of an existing house and the construction of a new two storey dwelling in the leafy Sydney suburb of Beecroft. The development site was a large, steeply sloping block of land encompassing nearly 4,000 square metres. The property is located in a heritage conservation area, and some of the street trees located in the vicinity of the site were also designated as heritage items of local significance under Hornsby Council's local environmental plan.

Commissioner Brown concluded that there were a number of circumstances that justified the removal of the tree. First, the Commissioner accepted the evidence of the applicant's ecologist that the tree was a common species which was widespread in the locality of the site, and that removal of the one tree would not adversely impact on biodiversity or wildlife corridors. Secondly, the Commissioner found that removal of the single tree would not have an unacceptable impact on the character of the heritage conservation area.  

Further, the Commissioner rejected suggestions by the Council's planning expert that removal of the tree could be avoided by situating the new house on the foot print of the existing dwelling.  The Commissioner accepted that placing the new dwelling in the same location would result in adverse overlooking and amenity impacts on the two adjoining properties. Additionally, the Commissioner determined that allowing the removal of the tree would enable the new house to achieve a consistent front setback with the adjoining properties, and would thus promote a consistent streetscape.

The lesson that can be drawn from this case is that approval can be obtained for the removal of a large, healthy native tree if the tree is not rare in the locality and if there are sufficiently strong planning considerations to justify the work - for example, where alternative design proposals that would allow retention of the tree would lead to undesirable amenity impacts on neighbouring properties.

Land and Environment Court Clarifies Built Form Permissible Under Classification of "Shop Top Housing"

In Hrsto v Canterbury City Council (No 2) (2014) NSWLEC, Justice Sheehan has confirmed that the residential components of a development must truly be physically "above" the retail and business elements in order for a proposal to be classified as "shop top housing".  

Justice Sheehan's decision was made in relation to a development application which proposed the construction of 5 inter-related buildings. The designs for 3 of the 5 buildings did not call for any commercial or retail space on the ground floor levels at all. Rather, the ground floor levels of these buildings were all designated for use as dwellings.  Retail space was proposed for the ground floor of one of the other buildings, and a cafe and gymnasium were proposed for the ground floor of the final building. However, the plans for both of these buildings also called for dwelling units on the ground floor. The plans for the development specified that most of the space on the ground floor levels of the buildings in the complex would be dedicated to dwellings.

The permissibility of the development, which was to be situated in a zone designated "B2 Local Centre" hinged on its being classified as "shop top housing", because "residential accommodation" (defined under the Council's LEP to include multi-dwelling housing and residential flat buildings) was classified as a prohibited use.

The applicant argued in its submissions that the multi-building development could be characterised as "shop top" housing so long as one or more dwellings in any of the buildings was located above the level of the retail and business premises in the other buildings. It was the applicant's further suggestion that it would be permissible to locate dwelling units on the same ground floor level of buildings in the complex where the retail/commercial premises were proposed, again so long as any of the other buildings in the complex contained dwelling units above the ground floor level.

Justice Sheehan categorically rejected the applicant's submissions concerning the manner in which "shop top" housing can be configured. Instead, he accepted the Council's arguments that in order for a building to be classified as shop top housing, dwelling units must be located in the same building as the commercial/retail elements, and must be "above" those elements, in the sense of being at a floor level higher than the top of the level where the retail/commercial elements are located. Thus, Justice Sheehan held that where the predominant form of a development proposal is to provide for dwellings on the ground floor levels, with no retail or business use in several buildings in a "multi-building" complex, that proposal cannot be considered to be "shop top" housing.

The decision by Justice Sheehan did not specifically address the question of whether any dwellings can be located on the ground floor level of a single building which also includes other dwellings at a level above retail or business space. The answer to that question will have to wait until another day; however, it does appear from the judgement that the amount of space allocated on the ground floor to dwellings would have to be limited, and be perhaps significantly less than the area allocated to retail and business use, in order for the shop top classification to be available.

The Court's decision, which was handed down on 14 August 2014, can be accessed at:

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=173285

Preservation of Sydney Turpentine Trees Trumps Proposal for Unit Block Development in Lindfield

The Land and Environment Court has rejected a development application that called for the removal of three Sydney Turpentine trees to make way for a mixed use apartment and commercial development project near the Lindfield Train Station. The decision Arkbuilt Pty Ltd v Ku-ring-gai Council,was handed down by Commissioner Dixon on 14 August 2014 and can be found on the Court's Website at the following link: 

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=173416.

The development application sought approval for the construction of 62 apartments over three levels of undergound car parking, a small neighbourhood shop and a larger gourmet grocery on a consolidated site consisting of 5 properties over 6000 square metres of land. There was considerable pre-existing development on the site - including a service station, residential units and a residential dwelling, and adjacent land uses include medium to high-density residential apartment blocks and a small-scale shopping complex.

As the Court found that the development proposal otherwise satisfied the objectives for the land use zones where the site if located, the sole obstacle to the project was the presence of 3 mature Sydney Turpentine trees on the land.  Aerial photography dating from the 1940s indicated that the trees are at least 70 years old. The applicant contended that the removal of the trees was necessary for the development because they obstructed access to the proposed basement car park entry. The applicant further argued that removal of the trees would not be problematic because the trees were allegedly in a state of decline due to "root rot". There was evidence that there had been a decline in the health of the canopies of the trees.  It is of interest that the Council's expert witness, who holds qualifications in arboriculture and horticulture, concluded that the most likely reason for the decline in the health of the trees was poisoning and not root rot (as evidenced by the presence of a drill hole in one of the trees and "frilling cuts" on another of the trees.

Ultimately, the appeal failed before the Court because the proposal fell afoul of a clause in the Council's local environmental plan relating to biodiversity protection. This provision of the LEP specified that development consent could not be granted unless the consent authority was satisfied that the proposal was designed to avoid potentially adverse environmental impacts and would not be inconsistent with the objective of maintaining and improving the diversity and condition of native vegetation.  

Two strands of evidence were fatal to the applicant's case in this appeal: The evidence of the Council's ecologist that the removal of the Sydney Turpentine trees would have an adverse impact on the long-term survival of the endangered Sydney Turpentine Ironbank Forest in the Ku-ring-gai Council local government area, and, perhaps equally critically, the Commissioner's conclusion that the applicant had not exhausted all possible design alternatives that would avoid the need for the removal of the trees.

The primary lessons that can be drawn from this case are that development applications that propose the removal of mature and ecologically significant trees are potentially fraught with difficulty (even in circumstances where such trees are growing on land that is already highly urbanised and intensively developed). Furthermore, proposals that are not thoughtfully designed to avoid adverse impacts to sensitive environmental resources are apt to be looked upon with disfavour by the Court.