The extended Australian urban dwelling: key issues relating to private open space in expanding residential surburbia

The extended Australian urban dwelling: key issues relating to private open space in expanding residential surburbia

This chapter will address each one below, with attention to local government which is at the forefront of land use regulation and community involvement. This third sphere of government suffers from no formal recognition in the Australian Constitution, which primarily distributes legislative power between the Commonwealth and the states. While local government is a creature of state parliaments, it is nevertheless embedded in Australian governance.

In 1980, Part XIIA was replaced by the Environmental Planning and Assessment Act 1979 (NSW) (EPAA). This reflected the emergence of ‘modern environmentalism’, encouraging innovative plan-makers to move beyond land use conflict. In addition, local communities demanded greater input in plan preparation and implementation (Roddewig, 1978). Another factor was regional planning, acknowledging that many issues apply across administrative and arbitrary borderlines. This paralleled a cascade of strategic regional non-statutory instruments across Sydney’s myriad of council areas. The City of Cities: A Plan for Sydney’s Future Sydney (more commonly known as the ‘Metropolitan Strategy’), was introduced in 2005 with its various existing and forthcoming sub-strategies. This was more recently revised by the Metropolitan Plan for Sydney 2036, issued in December, 2010. Adjacent to this is the Growth Centres policy,1 wherein the State Government has promised an ongoing supply of land for low density homes for Sydney’s West. This reflects a fierce political push for residential expansion at Sydney’s periphery. Its implementation is currently taking place via the North-West and South-West Growth Centres, with the latter predicted to accommodate about 110,000 new homes.

In terms of statutory plans, the EPAA introduced a series of statutory ‘environmental planning instruments’ (EPIs). At the time of writing, these have been reduced to State Environmental Planning Policies (SEPPs) and Local Environmental Plans (LEPs). SEPPs deal with matters of state or regional significance. A relevant example is SEPP (Sydney Regional Growth Centres) 2006, which provides the statutory basis for the two residential sectors mentioned above. The LEP, however, is the fundamental EPI that local government prepares and implements. As a result of legislative and policy reforms in 2006, the state government introduced the LEP ‘standard instrument’, commonly known as the ‘LEP template’.2 Each of the 152 councils across NSW must abide by the template in redesigning its own LEP. Numerous ‘templatized’ LEPs have yet been gazetted. By providing standard definitions of many types of development and laying down formulae for specific zones, the template demands a high level of conformity. In some circumstances, it might be argued as a means to erode creativity in local plan making (Kelly and Smith, 2008). This phenomenon of sameness is reflected in suburban sprawl. While building fashion might change, uniformity tends to reign across new housing landscapes.

SEPPs and LEPs tend to provide regulatory rather than incentive clauses. Nevertheless, they can reach far beyond regulating uses such as buildings, subdivision, industry and mines. Under the EPAA, an EPI makes provisions for, inter alia:

It is clear that an LEP may regulate front and back yards. For instance, it may require consent for the removal of one or more specified trees. Alternatively, the decision-maker may approve residential development subject to certain trees being retained. A council might even demand that a proposal be redesigned in order to retain identified vegetation, or replace trees to be removed with more suitable native species.

There is concern, however, as mentioned before, that contemporary detached dwellings contain smaller yards. The modern home is often enormous. Plot coverage of dwellings across urban Australia has expanded substantially with garden space ‘almost completely covered by larger dwellings’ (Hall, 2007, 26). This has captured recent media interest, with a Sydney Morning Herald front page article reporting that the size of Australian homes is ‘overtaking those in the US as the world’s biggest’ with Sydney’s ‘new free-standing houses typically spanning 263 square metres’ (Martin, 2009, 1; see also Curtin, 2009; Frew, 2009). This is backed by legislative change. Under the 2008 NSW ‘Housing Code’,4 allotments of between 450 and 600 square metres can accommodate up to 50 per cent building coverage (NSW Department of Planning, 2008, 8–12). But this excludes driveways, verandas, terraces, cabanas and even swimming pools and spas, leaving little room for backyard cricket or planting native trees. Furthermore, these types of developments need not undergo environmental assessment; instead, there is a straightforward ‘tick the box’ approach to obtain permission. They fall into the category of ‘complying development’ which may be handled by private certifiers.⁵ The state government’s focus is on efficiency, quick approvals, rapid development and minimum environmental intervention by local government. The resultant urban sprawl is therefore advancing across far-flung suburbia. It is not only encouraged but expected.

9.3 Amenity

9.3.1 The meaning of amenity

Protection or enhancement of amenity is, even in small yards, immediately relevant. Over four decades ago, Wilcox (1967, 361) described amenity as the ‘hardest worked word in planning language’. Yet amenity is an entrenched concept in town planning practice (Cullingworth, 1967; McAuslan, 1980). This is illustrated by the landmark Housing, Town Planning etc Act 1909 (UK) which empowered local authorities to formulate schemes for areas in the course of development under the ‘general object’ to ‘secur[e] proper sanitary conditions, amenity and convenience in connection with the laying out and use of the land’.⁶ In presenting the bill, the president of the local government board triumphed that Britain’s first planning statute would secure:

NSW followed suit. The CCPS ingrained amenity protection into planning regulation by requiring councils when determining development applications to ‘take into consideration’, inter alia:

This factor was reproduced in subsequent Planning Scheme Ordinances (PSOs) across NSW. When the EPAA commenced operation in 1980 with matters for consideration set into the legislation rather than in individual plans, the then provision included ‘the existing and likely future amenity of the neighbourhood’.⁹ In contrast, the original paragraph in the CCPS was far more specific regarding the types of potential ‘injury’ to neighbourhood amenity. Its focus was on neighbourhood pollution, particularly from industrial uses, harking back to the post-industrial origins of planning law. But in 1955, the judiciary made it clear that ‘injury’ to amenity extended beyond those causes expressly listed to include, inter alia, impact on the visual environment.¹⁰ This notion became ensconced in development control law. For instance, in a frequently cited judgement, Sugerman J regarded amenity as crucial in terms of the visual effect of a service station on a residential neighbourhood, stating that:

As the planning system moved onwards, councils directed their energy to ‘the protection of local amenity, usually residential amenity’ (Harrison, 1988, 27; see also Stein, 2008). In the late 1990s, amendments to EPAA scaled back the original 27 matters for consideration to five.¹² Whilst this deleted any specific reference to amenity, the judiciary has made it clear that the shortened list was not exhaustive. Amenity is now a frequently raised issue before the specialist Land and Environment Court (LEC) of NSW, especially in merits appeal cases (Kelly, 2006). In a recent case,¹³ for example, which involved construction of telecommunications equipment on the roof of a club, the LEC described amenity as ‘wide and flexible’.

Smith (1974, 260) describes amenity as encompassing ‘environmental health, pleasantness and civic beauty’. The visual context reflects the facts that most people rely on sight more than any other sense (Tuan, 1974). Amenity is, therefore, of major significance for suburban residents and passers-by who enjoy green front yards. Taylor (1999, 59) refers to ‘picturesque suburbia as a national icon’ while Herzog (1995) highlights ‘tended nature’ as especially popular. Such commentary underlines the sheer attractiveness of leafy gardens as opposed to unrelenting concrete. But it does not demand undisturbed ecological systems. Dawson (1990, 138) astutely observes ‘nature’ as:

When originally enacted, the EPAA included, inter alia, objects that encouraged the ‘proper management, development and conservation of natural and artificial resources … for the purposes of promoting the social and economic welfare of the community and a better environment’ and the ‘protection of the environment’.14 The second phrase was later expanded to include ‘the protection and conservation of native animals and plants including threatened species, populations, ecological communities and their habitats’.¹⁵ While not explicitly addressing amenity, the concept was nonetheless embedded within these provisions. The EPAA also included the object of encouraging the ‘promotion and co-ordination of the orderly and economic use and development of land’.¹⁶ A provision recognizing a need for affordable housing was also later added.¹⁷ As land is often cheaper at the outskirts of major cities, these competing objectives become especially relevant at the urban periphery particularly where remnant native vegetation is threatened.

Impact on amenity is often crucial in determining applications for development (Stein, 2008). For instance, disputes over proposals such as small acreage subdivision on vegetated land or erection of dwelling houses on bushy sideslopes may arise. In the suburban context, in addition to public parklands and street verges, residential gardens play a key role especially via front yards which are more visible. Because amenity is a subjective concept, it reflects personal preferences and community culture. Landholders may prefer to change their neighbourhood landscapes with exotic trees rather than maintain what might appear as tedious scrub (Kelly, 2006). For instance, assemblages of the remnant Cumberland Plain Woodland in western Sydney, a critically endangered ecological community listed under the Threatened Species Conservation Act 1995 (NSW) (TSCA), might be regarded as drab with landholders preferring colourful exotic species such as the South American jacaranda or a variety of tropical palms. Of course, such temptations are visible across all suburbs. Attention is now being paid to integrating private residential land with local and ‘safe’ bushland – i.e. indigenous vegetation recognized as not only ecologically appropriate to the neighbourhood but also meeting security concerns. Most residents will want to avoid prickly plants and those perceived to attract venomous spiders. In expanding Sydney, this leads to separate shrubs rather than towering trees and replication of native mosaics. This fits in with the onslaught of immense houses and smaller yards. Residents are now more likely to seek recreational benefits in their local parks (Halkett, 1976; Syme et al., 2001; Head and Muir, 2007). A bigger issue, however, as will be seen later, is bushfire reaching suburbia.

Amenity protection can be expressed in individual LEPs. A ready example is Liverpool LEP 2008 at Sydney’s edge, partially in the South-West Growth Centre. The instrument was a pioneer that follows the LEP template. Unsurprisingly, amenity is undefined. Yet the notion is addressed in a main objective to ‘maintain suitable amenity and offer a variety of quality lifestyle opportunities to a diverse population’.18 Further examples relate to temporary use of land, various zonal objectives especially in relation to residential zones, minimum subdivision size and foreshore building lines. Perhaps the most interesting is the template clause relating to ‘[p]reservation of trees or vegetation’ that requires permission for tree removal or damage. This item derives from the ‘tree preservation order’ (TPO) item in the CCPS and many subsequent local instruments. Indeed, such clauses originate from British planning ordinances (Cullingworth, 1967). As Liverpool LEP 2008 demonstrates, amenity remains a vital component of the statutory planning jigsaw. But while the TPO template clause provides the latest regulatory tool for protecting amenity, its adoption by councils is totally optional.

Interference with vegetation that is contrary to a TPO may attract criminal action. For instance, the LEC has emphasized that ‘breach of a tree preservation order is a serious offence’.¹⁹ In this case, the defendant was found guilty of removing two trees in the western suburb of Westmead, including a Queensland Fire Wheel twelve metres in height which was reported as providing ‘existing amenity’ and ‘colour, shade and screening’.²⁰ The defendant admitted guilt and was fined $A15,000. This and many other judgements illustrate how amenity is cemented in planning law. It relates directly to the appearance of suburban gardens. In contrast, biodiversity conservation and protection from bushfire represent far more recent concepts.

9.4 Biodiversity conservation

9.4.1 The notion of biodiversity

Biodiversity is a different model altogether. It is based on science, representing a far more modern phenomenon within planning law and municipal policy. It is also extremely complex. The National Strategy for the Conservation of Australia’s Biological Diversity defines biodiversity as ‘the variety of all life forms – the different plants, animals and micro-organisms, the genes they contain and the ecosystems of which they form part’ (Commonwealth of Australia, 1996, 1). Accordingly, it embraces the inconspicuous, the bleak and the malodorous: matters that exist well beyond the amenity spectrum.

Whilst the precise origins of the term are arguable (Adam, 2009), Jeffery (1997, 4–5) refers to a ‘snappy abbreviation’ composed by the co-director of the 1986 American ‘National Forum for BioDiversity’ who recognized references to ‘biological diversity’ in earlier scientific papers. The term has since become far more fashionable, often found in tourist brochures and newspaper articles. In a recent weekly gardening column from the Sydney Morning Herald, the author warns readers that because Australia has ‘one of the worst records for loss of biodiversity’, ‘[g]ardeners can be of great help to native birds and animals by cultivating indigenous plants to provide green corridors’ (Maddocks, 2009, 25). The essence is no different to Beatley’s (2000) paper on retaining biodiversity in American back yards, even in small gardens. As noted by Hall (2007, 27), ‘[p]rivate gardens exhibit a high degree of biodiversity’. All this reflects the fact that biodiversity conservation need not be restricted to the pristine. On the other hand, minimal suburban yards might be more of a museum than a working green environment. The ambush of non-indigenous plants from gardens into nearby bush raises problems (Zagorski et al., 2004), in addition to severe habitat modification. McKinney (2006, 248) refers to urbanization as ‘one of the most homogenizing activities of all’ due to its ‘exceptionally uniform nature’. These factors suggest that amenity can be an anathema to biodiversity conservation and that the notion of ‘garden ecology’ raised earlier must not be disguised as a solely scientific-based approach to conservation.