DA UpDAte

LAND & ENVIRONMENT COURT FINDINGS

View of tree canopy on the site from Carey Bay

On the 28th March, Commissioner Dickson of the Land and Environment Court handed down her decision on DA/1243/2016 that proposed nineteen dwelling houses and the removal of hundreds of trees spanning 2 Brighton Avenue to 133 Excelsior Parade.

The appeal was dismissed and the DA refused.

Following is a summarised account of the findings from the decision, which can be viewed at https://www.caselaw.nsw.gov.au/decision/5ab84170e4b087b8baa87e42#_Ref508973024

Central to the proceedings, and an assessment of the suitability of the proposed development against the relevant planning instruments, were the issues of tree removal and retention.

In the determination is was stated that “there were inconsistencies and uncertainty in relation to the assessment of the significance of the existing trees and the proposed number and location of trees to be retained on the site for the proposed DA.”

It was also stated that the developer’s visual impact assessment did not accurately reflect the trees nominated to be retained. This uncertainty of tree retention reduced the weight of the developer’s conclusion that the tree loss would have a moderate visual impact. The Commissioner stated “several trees were visible from the street and surrounding areas and made a positive contribution to the visual character and amenity of the area and some of these trees have similar characteristics under Age Structure and Health as those identified as having high retention value”, hence the nomination of ‘high retention value’ trees by the applicant was likely to be incomplete.

The Commissioner was not satisfied that the proposed retained trees were in logical positions that provided cluster that would be visible from the lake and continue to mark the ridgeline.

The Commissioner acknowledged that “a photomontage view of the development from the Lake would assist in understanding the development’s visual impact but the lack of certainty in relation to tree retention and replanting hampered the ability to assess with certainty any long-term visual impact that would arise from the development”.

Commissioner Dickson found that “it was clear from photomontage, a review of the plans and the site inspection that the application proposed insufficient retention of canopy trees, especially on the ridge that transverses the site to ameliorate the visual impact of the development”. On the basis of the evidence before the Court she did not accept the submission of the developer’s expert that “at completion the development would have the same fundamental elements or characteristics or that it would present as a medium-density development nestled underneath canopy trees”, additionally the replacement planting proposed was insufficient in number.

Following an assessment of the photographs of the site provided, the Commissioner did not accept the evidence from the developer’s expert “that the development achieves the relevant guidelines of the Toronto Landscape Setting, namely to not dominate views from the Lake or breach the tree line of surrounding ridges.”

The determination identified “there was a strong consistency within the submissions received from the public. Many raised concerns about the visual impact of the proposed development on the locality and in particular the impact on scenic amenity of the proposed tree removal. These submissions were taken into consideration in the assessment of the application”.

The findings also stated “the detrimental impacts of the tree removal associated with the development were sufficient to warrant refusal of the application” and “the impact of the proposed development on the visual amenity of the locality sufficiently detrimental to warrant refusal of the application.”

From the documentation provided the Commissioner could see that “the strategic intent of the Council is to preserve the character of specific localities within the Lake Macquarie area and maintain and enhance the scenic value of its natural features”. The Commissioner did not accept the evidence of the developer’s experts that “the current application represents an appropriate balance between the planned intent of the site to provide medium density accommodation and tree retention”.

The Commissioner found that “the subject proposal results in unacceptable environmental impacts, the development fails to meet the objectives of the R3 zoning to maintain or enhance the residential amenity and character of the surrounding area.”

The Commissioner found that “there is a range of the planning controls and site constraints that influence development on any site. These may have the effect of “reading down” the yield that would otherwise be possible on the site if zoning (or the principal development standards) in the LEP were relied on in isolation…The provisions in SEPP 71 and the more general planning provisions in LEP 2014 and DCP 2014 all apply and need to be considered in the preparation of a development application.”

Commissioner Dickson found that “pursuant to s 4.15(1)(c) of the Act that the site is unsuitable for the development proposed and warrants refusal.”