Bennett v Ku-ring-gai Council [2023] NSWLEC 1195

Land and Environment Court New South Wales

Medium Neutral Citation: Bennett v Ku-ring-gai Council [2023] NSWLEC 1195 Hearing dates: 20-21 March 2023 Date of orders: 26 April 2023 Decision date: 26 April 2023 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) The appeal is dismissed. (2) All exhibits except for exhibits A, C and 5 are to be returned. Catchwords: MODIFICATION APPLICATION – State Heritage Item – Purulia house – removal of mature tree – appeal dismissed Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.15, 4.55, 8.9 Heritage Act 1977 Ku-ring-gai Local Environmental Plan 2015 Sch 5, cll 1.2, 5.10 Land and Environment Court Act 1979 s 34AA Cases Cited: Arrage v Inner West Council [2019] NSWLEC 85 Texts Cited: Ku-ring-gai Development Control Plan 2023 State Heritage Register Category: Principal judgment Parties: Alex Bennet (First Applicant) Ingrid King (Second Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: J Doyle (Applicants) D Robertson (Respondent)

Solicitors: Maddocks (Respondent) File Number(s): 2022/347707 Publication restriction: No

JUDGMENT 1. The applicants, Ingrid King and Alex Bennet, own a dwelling of state heritage significance, 'Purulia' in Wahroonga. The house and garden of 'Purulia' were designed and built in 1916 by William Hardy Wilson, a notable Australian Architect. In July 2020, the applicants applied to Ku-ring-gai Council (the respondent) to remove three trees and a swimming pool from the garden at 'Purulia'. Consent was granted for the removal of two trees and the pool, but refused for one tree, a Himalayan Cedar (tree T3) located in the rear garden. The applicants subsequently applied to modify this development consent to remove the conditions of consent that require the retention of T3, thereby effectively requesting once more to remove this tree. The modification application 152/21 was refused and is now the subject of this appeal. These Class 1 proceedings have been brought to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. 'Purulia' is located at 16 Fox Valley Road, Wahroonga, Lot 1 in DP 564313. The site currently incorporates a single storey rendered brick dwelling, detached garage, a small garden pavilion and a disused in-ground swimming pool. The dwelling is listed as a Heritage Item under Sch 5 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP) and is listed on the State Heritage Register. Figure 1: Purulia viewed from front garden. Extract from Ex 4, page 4. 1. Although the dwelling is remarkably intact as a heritage item, the garden is not, and demonstrates several departures from Wilson's original design. These departures are described in further detail in this judgment, but broadly occur in both the front and rear garden, and range in scale and impact from incongruous planting to the removal of original garden structures, the construction of new garden structures and the truncation of the original garden by over half of its original length through subdivision (see figures 2 and 3 below). 2. Mr Doyle for the applicants submits that the intention underpinning both the original development application and the modification application before the Court is to remove the elements of the garden that are most incongruous with Wilson's design in order to reconstruct as much of the original rear garden layout as possible. This reconstruction would largely consist of the formation of a lower garden terrace to the rear (south) of the house, with a central semi-circular form and linear walls leading to the boundaries, and associated planting. Construction of this reconstructed garden does not form part of the application before the Court. 3. Despite the evident numerous departures from Wilson's original garden design, the applicants submit that the two elements in the rear garden that are most incongruous with Wilson's original design intent are the swimming pool and tree T3. Figure 2: Wilson's Original masterplan for the site. Extract from Ex 1, page 6. Figure 3: Survey of the property overlayed on Wilson's original masterplan 1. T3 is located approximately 8.5m to the south-east of the dwelling. An Arboricultural Impact Report was prepared for the applicants by Guy Paroissien (Ex 2 tab 6) and submitted with both the development application and modification application. This report identifies T3 as a mature, 17 metre high Cedrus deodora (Himalayan Cedar), with a canopy spread of 19m and a 'medium' useful life expectancy. The report also assesses T3 as being of high landscape significance, with a retention value of '1- High' (priority for retention). Although this report was prepared in February 2019, there is no evidence to suggest that the condition of T3 has altered in this time. It is also unclear precisely how old T3 is, however it is estimated in the evidence of Ms Julie Marler, the respondent's heritage landscape expert, to have been planted sometime prior to 1940. All experts agree that the tree was not likely to have been planted by Wilson himself, but by a subsequent owner. Figure 4: View of T3 from the rear garden (extract from Arbocultural Assessment Ex 2 tab 6 page 12) 1. A conciliation conference commenced on site on 20 March 2023 pursuant to s 34AA of the Land and Environment Court Act 1979. I presided over the conference which, when no agreement was reached, was terminated and the matter proceeded to hearing forthwith. 2. Before consideration of the merits of the case, I must address matters of jurisdiction. Section 4.55(2)(a) of the EPA Act requires me to be satisfied: …that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all)… 1. Adopting the reasoning of Preston CJ in Arrage v Inner West Council [2019] NSWLEC 85 [18]-[33], I am satisfied that the development as modified and the development as originally approved are substantially the same, principally because both developments include the removal of the swimming pool and vegetation. Quantitatively, there is an increase in the requested number of trees from two to three, which is the reason for the requested modification of the conditions of consent. This does not substantively alter any qualitative aspects of the proposed development from the development as originally approved, and I am satisfied that the development as modified would be substantially the same development as the development for which consent was originally granted. 2. However, for the following reasons I am not satisfied that the removal of T3 is adequately justified, nor that development as modified is acceptable on its merits.