Gogulan v Hornsby Shire Council [2024] NSWLEC 1776 (3 December 2024)

Last Updated: 3 December 2024

Land and Environment Court New South Wales

Case Name:	Gogulan v Hornsby Shire Council
Medium Neutral Citation:	[2024] NSWLEC 1776
Hearing Date(s):	9 and 10 September 2024
Date of Orders:	03 December 2024
Decision Date:	3 December 2024
Jurisdiction:	Class 1
Before:	Nichols AC
Decision:	The orders of the Court are: (1) The appeal is upheld. (2) Leave is granted to the Applicant to rely upon amended plans submitted as Exhibit D. (3) Consent is granted to Development Application No DA/625/2023 for the construction of a two-storey dwelling at 6 Gumnut Road, Cherrybrook subject to the conditions included at Annexure A. (4) Exhibits B and D are retained, the remaining exhibits are returned.
Catchwords:	DEVELOPMENT APPLICATION – two-storey dwelling – tree preservation
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Land and Environment Court Act 1979, ss 34, 34AA Environmental Planning and Assessment Regulation 2021, ss 23, 27 State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.3, 6.6 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.36 Hornsby Local Environment Plan 2013, cll 4.1, 4.3, 5.10, 6.4, 7.6
Texts Cited:	Hornsby Development Control Plan
Category:	Principal judgment
Parties:	Thuraiajasingam Gogulan and Shironee Gogulan Hornsby Shire Council
Representation:	Counsel: A Pickup (Solicitor)(Applicant) M Cottom (Solicitor)(Respondent) Solicitors: Pickup Legal (Applicant) Local Government Legal (Respondent)
File Number(s):	2024/104419
Publication Restriction:	No

JUDGMENT

1. COMMISSIONER: These Class 1 proceedings arise as a result of the refusal of Development Application DA/625/2023 by Hornsby Shire Council on 12 March 2023. This appeal concerns a development application for construction of a two-storey dwelling, and associated driveway and removal of trees at 6 Gumnut Road, Cherrybrook (Lot 301 DP1273866).
2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

Conciliation between the parties and hearing

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 9 September 2024. I presided over the conciliation conference.
4. No agreement of a kind referred to in s 34(3) LEC Act was reached, and as the presiding Commissioner I terminated the conciliation conference and disposed of the proceedings following a hearing held forthwith on 10 September 2024.

The applicant was granted leave to amend the application

5. The applicant sought leave to amend the proposal and to rely on additional information which provided greater clarity on the height of the proposed dwelling and floor area. The amended plans relocated the proposed dwelling towards the rear to achieve the required setback. Leave was granted, and the amended proposal was admitted into evidence as Ex D (marked plan showing changes to the garage configuration and setback distance).

The site and locality

6. The site is 810.1m2 in area and falls from the rear to the front of the property at approximately 7% slope. The site is presently vacant and supports several native and exotic trees. The site is zoned R2 Low Density Residential under the Hornsby Local Environment Plan 2013 (HLEP).

The proposed development

7. The amended proposed development is to construct a two-storey dwelling and associated driveway and crossover including the removal of 7 of the 11 trees identified on site, as identified in the original Arboricultural Impact Assessment Report dated 29 September 2022.

Expert evidence

8. The applicant relied on the expert evidence of Peter Fryar (planning), Nicholas Skelton (biodiversity) and Tristan Bradshaw (arborist). The Council relied on the expert evidence of Katrina Wolf (biodiversity), Elvin Keung (planning) and Geoffrey Nugent (arborist).
9. The biodiversity experts prepared a joint report (Ex 2). The arborist experts prepared a joint report (Ex 3) and gave oral evidence. The planning experts prepared a joint report (Ex 4) and gave oral evidence.

Jurisdiction

Hornsby Local Environment Plan 2013

10. The written submissions by Mr Cottom (Respondent) filed on 5 September 2024 and Mr Pickup (Applicant) filed on 2 September 2024 agree that the proposed development satisfies the requirements of the HLEP. I accept the advice that the requirements of the HLEP are satisfied for the reasons set out below.

Owner’s consent

11. Owner’s consent accompanied the DA as required by s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

Permissibility

12. The development works are for the purposes of a dwelling house which is a permissible use in the R2 Low Density Residential zone in which the site is located pursuant to the HLEP.
13. The development is consistent with the objectives of the R2 Low Density Residential zone, “To provide for the housing needs of the community within a low density residential environment”.
14. There is no applicable minimum lot size applying to the land in accordance with cl 4.1 of HLEP.
15. The proposed development achieves the applicable maximum height of buildings applying to the land in accordance with cl 4.3 of HLEP.
16. There is no applicable heritage item, Aboriginal object, or building, work, relic or tree within a heritage conservation area applying to the land in accordance with cl 5.10 of HLEP.
17. Under cl 7.6 of HLEP, development consent must not be granted unless the consent authority is satisfied that essential services are available or that adequate arrangements have been made to make them available. The site is currently serviced therefore I am satisfied that essential services are available.

State Environmental Planning Policy (Biodiversity and Conservation SEPP) 2021

18. In relation to removal of trees, Ch 2, s 2.3 of State Environmental Planning Policy (Biodiversity and Conservation SEPP) 2021 (Biodiversity and Conservation SEPP) applies to the land and states that a development control plan may prescribe works that can be undertaken with or without consent to trees for tree preservation. Based on the evidence submitted in the Joint Ecology Report and Joint Arborist Report and oral submissions made during conciliation and hearing, subject to the relevant conditions of consent, I am satisfied these matters have been adequately considered and the requirements of the Biodiversity and Conservation SEPP have been satisfied.
19. The site is located within the catchment of the Hawkesbury-Nepean River. In giving consent, Part 6.2, s 6.6 of the Biodiversity and Conservation SEPP requires consideration of whether the development:

(a) will have a neutral or beneficial effect on the quality of water entering a waterway,

(b) will have an adverse impact on water flow in a natural waterbody,

(c) will increase the amount of stormwater run-off from a site,

(d) will incorporate on-site stormwater retention, infiltration or reuse,

(e) will have an impact on the level and quality of the water table,

(f) will have a cumulative environmental impact on the regulated catchment, and

(g) has made adequate provision to protect the quality and quantity of ground water.

20. Based on the evidence submitted in the Architectural Plans by Metricon which include an Erosion and Sediment Plan dated 30 May 2023 (Sheet 1A of 12) and subject to the relevant conditions of consent, I am satisfied the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and that the impact on water flow in a natural waterbody will be minimised.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

21. A valid BASIX certificate has been submitted in accordance with the requirements of s 27 of the EPA Reg.

State Environmental Planning Policy (Resilience and Hazards) 2021

22. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires consideration of whether the land is contaminated, and if so then ensure that they are satisfied that the land is suitable in its contaminated state for the purposes for which the development is proposed to be conducted or will be suitable after remediation. According to parties’ submissions the land has historically been used for residential purposes and I am satisfied that the site is suitable for the intended use, subject to the implementation of the relevant conditions of consent. Further assessment under chapter 4 of the SEPP Resilience and Hazards is not required.

State Environmental Planning Policy (Transport and Infrastructure) 2021

23. Chapter 2, s 2.36(9) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure) requires development for the purpose of a solar energy system to be carried out by any person only with consent. The provisions of this SEPP Transport and Infrastructure have been satisfied as consent has been sought.

Contentions agreed by experts

24. During the conciliation experts agreed and resolved contentions 3 (height), and 4 (floor area). The experts also agreed contention 2 (biodiversity) can be resolved via conditions of consent. As a result of the amended plans (Exhibit D), contention 5 (setbacks) was also resolved. The written submissions by Mr Cottom (Respondent) filed on 5 September 2024 and Mr Pickup (Applicant) filed on 2 September 2024 agree that these issues were no longer contentions for reasons set out below.

Contention 2 - Biodiversity

25. The experts agreed and provided evidence during conciliation that the site is not mapped as containing ‘Biodiversity Values’ on the Biodiversity Values Map (Department of Planning and Environment 2023) nor is it identified as Biodiversity on the Terrestrial Biodiversity Map referred to in cl 6.4 of the HLEP. The Biodiversity Joint Expert Report dated 5 August 2024 concluded that the biodiversity contention can be resolved by conditions of consent. The biodiversity experts agreed that threatened species and populations, and regionally and locally significant terrestrial and aquatic vegetation are not relevant and do not need further consideration. I accept this conclusion.

Contention 3 - Building height

26. The expert planners agreed and provided evidence to demonstrate the revised height of the proposed two-storey dwelling has been resolved through additional detailed survey and I accept that the proposed dwelling now satisfies Part 3.1.1 of the Hornsby Development Control Plan 2013 (HDCP 2013) in relation to height. According to the written submission by Mr Cottom (Respondent) filed on 5 September 2024, height is no longer a contention.

Contention 4 - Floor area

27. The expert planners agreed and provided evidence to demonstrate the floor area of the proposed two-storey dwelling satisfies Part 3.1.1(a) of the HDCP 2013 and according to the written submission by Mr Cottom (Respondent) filed on 5 September 2024 floor area is no longer a contention.

Contention 5 - Setbacks

28. The expert planners agreed and provided evidence to demonstrate that the revised location of the proposed two-storey dwelling as shown in marked Exhibit D has been setback from the road and that it now satisfies Part 3.1.2(a) of the HDCP 2013. According to the written submission by Mr Cottom (Respondent) filed on 5 September 2024 setbacks is no longer a contention.

Contention 6 - Public interest

29. One resident objector provided verbal advice through Mr Cottom (Respondent) during the hearing onsite and was concerned about the proximity of the proposed dwelling to the rear boundary. The expert planners agreed and provided evidence to demonstrate the proposed dwelling has the appropriate setback to the rear boundary and complies with Part 3.1.2(a) of the HDCP 2013 and I accept this evidence. The proposed development satisfies the objectives of the R2­ ­Low density residential zone “To provide for the housing needs of the community within a low density residential environment”.

Contention not agreed by experts

30. The arborist experts prepared a joint report and are agreed on most matters. The expert’s remaining disagreement can be summarised as follows:

(a) The SULE rating of Trees numbered 4 and 8.

(b) The potential for the retention of Tree number 2 given the proximity of the proposed driveway.

(c) The realistic potential for the retention of Tree number 2 given the impact of construction of the proposed crossover on this tree.

31. The proposed development is subject to the provisions of the HDCP 2013. The Respondent identifies that Part 1: General, Part 3.1: Dwelling Houses and Part 3: Residential are relevant to this matter. Relevant to this appeal, Section 1B.6.1 Tree preservation requires that:

(a) consent is obtained prior to damaging or removing protected trees, trees must be assessed using arboricultural, ecological and industry accepted safety evaluation methods to determine the safe useful life expectancy of the trees.

(b) Where trees are to be retained, the provisions of Australian Standard AS 4970 Protection of Trees on Development Sites must be applied.

(c) All tree pruning work must be carried out in accordance with Australian Standard AS 4373 Pruning of Amenity Trees

(d) Any tree approved to be removed from a site should be replaced with a tree of like habit and indigenous to Hornsby Shire, planted as near as practicable to the location of the removed tree, grown to maturity and replaced if the planting fails to survive and thrive in accordance with Council’s Green Offsets Code.

(e) Any application for removal must demonstrate that the removal of the tree is appropriate based on an assessment of the safe useful life and risk to human life or property using industry relevant risk assessment such as Tree Risk Assessment Qualification (TRAQ) or Qualified Tree Risk Assessment (QTRA)

Contention 1 – Tree Preservation

32. The original proposed development sought consent to remove nine (9) of the eleven (11) existing trees. One tree (Tree number 1) has died and been removed since the original arborist assessment report was prepared in 2022.
33. Modified driveway plans by ING Consulting Engineers dated 16 July 2024 (reference 53607-01/5/A) enable the retention of two additional trees (Tree number 2 and Tree number 9) through the use of sensitive construction techniques minimising excavation. I prefer and adopt Mr Bradshaw’s written and oral evidence that the retention of Trees numbered 2 and 9 can be achieved through sensitive design and construction. The trees have been assessed using arboricultural, ecological and industry accepted safety evaluation methods to determine the safe useful life expectancy of the trees. I am satisfied that appropriate conditions of consent will ensure the successful retention of these trees.
34. The experts disagree over the health and condition and SULE rating of Tree number 4 provided by Mr Bradshaw. I prefer and adopt Mr Bradshaw’s assessment that Tree number 4 is over-mature. Further, given the residential nature of the property Tree number 4 is unlikely to be successfully maintained as a stag tree for habitat purposes. Conditions of consent requiring replanting of native tree species will compensate for the trees being removed and provide habitat for local fauna species over the longer term.
35. I prefer and adopt Mr Bradshaw’s opinion provided in submissions and oral evidence regarding the retention of trees, as made possible by the revised plans. In addition to trees (Tree number 1 and Tree number 5) noted as being retained in the original Arboricultural Impact Assessment Report dated 29 September 2022, due to the revised location of the dwelling and the incorporation of sensitive design and construction techniques, Tree number 2 and Tree number 9 are now also able to be retained. It is noted that Tree number 1 identified in Mr Bradshaw’s report is now dead and has been removed.

Conclusions

36. Through conditions of consent and the revised location of the proposed dwelling, the development now satisfies Part 3 of the HLEP in terms of the original contentions including height, setbacks, floor area, biodiversity and the public interest.
37. Despite any consideration of alternative dwelling designs that could potentially retain more trees, taking into account the requirements of the Applicant, the footprint and floor plan provide positive design outcomes regarding solar access, private open space, and separation from neighbouring dwellings to provide privacy. I am satisfied the proposal will result in the construction of a dwelling house which is compatible with the low-density residential development found in the area.
38. Following an evaluation of the merits of the development application under s 4.15(1) of the EPA Act, I am satisfied the application warrants approval, subject to the conditions included at Annexure A.

Orders

39. The Court orders are:

(1) The appeal is upheld.

(2) Leave is granted to the Applicant to rely upon amended plans submitted as Exhibit D.

(3) Consent is granted to Development Application No. DA/625/2023 for the construction of a two-storey dwelling at 6 Gumnut Road, Cherrybrook subject to the conditions included at Annexure A.

(4) Exhibits B and D are retained, the remaining exhibits are returned.

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P Nichols

Acting Commissioner of the Court

Annexure A

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