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. Would removal of tree T3 affect the heritage significance of Purulia 1. Clause 5.10 of the KLEP provides development controls pertaining to heritage conservation. The relevant objectives of this clause are: 5.10 Heritage conservation (1) Objectives The objectives of this clause are as follows— (a) to conserve the environmental heritage of Ku-ring-gai, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views … 1. KLEP cl 5.10 further states in subcl (4) that (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item … 1. These provisions of the KLEP are supported by further controls within the Ku‑ring-gai Development Control Plan 2023 (KDCP). These include: 1. KDCP Part 1 Section A.5 "1A.5 General Aims of the DCP The general aims of this DCP are as follows: … xi) Ensure the heritage significance of the Heritage items and Heritage Conservation areas is conserved, and encourage development which respects that significance; …" 1. KDCP Part 19 Introduction "Part 19 INTRODUCTION … The heritage controls in this part of the Ku-ring-gai DCP aim to i) retain, conserve and enhance the Heritage Items, HCAs and their associated settings." 1. KDCP Part 19E.4 "19E.4 GARDENS AND LANDSCAPING Objectives 1 To retain and conserve the significance of a Heritage Item in its setting. 2 To retain and conserve the significant garden elements and structures of Heritage Items and to retain an appropriate garden setting. Controls … 2 New gardens should be horticulturally and stylistically sympathetic to the period of the Heritage Item. The use of similar materials such as sandstone, brick and gravel is encouraged. …" 1. KDCP Part 19F.1 "19F.1 LOCAL CHARACTER AND STREETSCAPE Objectives …. 4 To ensure that new development respects and conserves the significance of any nearby Heritage Items or HCA and their settings." 1. KDCP Part 19F.3 "19F.3 GARDENS AND LANDSCAPING Objectives 1 To ensure that new development does not impact on the landscape character and garden setting of any nearby Heritage Item or HCA. Controls Gardens, Setting and Curtilage 1 Development in the vicinity of a Heritage Item or an HCA is to: i) retain original or significant landscape features associated with the Heritage Item or HCA, or which contribute to its setting. In particular, garden settings in the vicinity are not to be adversely affected in terms of overshadowing or physical impacts on significant trees; ii) retain the established landscape character of the Heritage Item or HCA including height of the tree canopy and density of boundary landscape plantings or otherwise reinstated them in the new development; iii) include appropriate screen planting on side and rear boundaries." 1. KDCP Part 21.2 "21.2 LANDSCAPE DESIGN Objectives … 4 To conserve landscaped settings for heritage items and components of heritage conservation areas. 5 To ensure that landscaping in the vicinity of heritage places does not detract from the heritage value of the place … Controls Site Planning and Design 1 The site planning and design of developments must: i) retain and enhance indigenous vegetation, biodiversity corridors and existing natural features on the site including trees, shrubs and groundcovers, soils, rock outcrops and water features. These provide habitat, breeding sites, food and shelter for a wide variety of life forms and ecological processes that support life and define the character of the locality. Note: Specific controls for the areas mapped for their biodiversity significance on the Greenweb map in Part 6R are included in Part 6 of this DCP. ii) retain significant and visually prominent trees and vegetation that contributes to neighbourhood character; iii) retain vegetation and garden fabric such as paths, walls, steps, ponds and terraces, that contribute to the heritage significance of the setting of a heritage item or a site within a heritage conservation area; …." 1. It is undisputed that 'Purulia' is a significant heritage item. Schedule 5, Pt 1 Heritage items of the KLEP lists the ""Purulia" dwelling house" as a heritage item of state significance (item 1912), and all experts agree the house, which is largely intact in its original form, is important as a heritage item on a state if not national level. It is important to note that the sch 5 heritage listing is for the dwelling only- the garden does not form part of this listing. This is distinct from some other heritage listings in KLEP sch 5 that expressly include a garden, grounds or other landscape features, such as the listing for the property across the road from Purulia, item 1913, which is described in sch 5 as "Mahratta Dwelling House, including interiors and grounds". 'Purulia' was listed under the Heritage Act 1977 in 1982 (Ex 2 tab 33) and as a local heritage item by Ku-ring-gai Council in 1989 (Ex 3 page 14). 2. The applicants' landscape expert Mr Geoffrey Britton states, and I accept, that it is the relationship of the property to Wilson, rather than any other later owner, event or other aspect that affords 'Purulia' its heritage significance. Mr Britton further submits, and it is uncontested, that T3 was neither planned for nor planted by Wilson. On this basis, and lacking any evidence to the contrary, I accept that T3 has no likely heritage significance of its own. 3. Despite the garden having no heritage status, the report from the State Heritage Register notes the significance of the garden as a setting for the heritage item, being described as "a rare garden (one of only 5) designed by Hardy Wilson, albeit altered". This report states that as of 1981, many of the trees planted by Wilson remained. 4. However, the 'altered' state referred to in this report is also important, particularly in relation to the rear garden where T3 is located. The property has been subdivided twice, most recently in 1974, with the impact being that just over half of the rear garden has been severed from the property, taking with it two of Wilson's radial garden forms, a long view down towards the plateau and the majority of the axial path shown on his landscape plan (see figures 2 and 3). In addition, the swimming pool occupies a substantial portion of the centre of the rear garden. Many new species have been planted that do not accord with the recorded list of species intended by Wilson and, as confirmed by Mr Britton, few plants remain of the originally indicated planting palette, particularly in the back garden. The applicants' architectural heritage expert, Mr Robert Moore, further confirmed in evidence that little is known to remain of Wilson's original landscape hardworks in the rear garden beyond the immediate paved arc directly adjacent to the house. 5. The front garden also reflects several alterations, though it is less impacted by the subdivision. These alterations include the removal of one of two summer houses, the construction of a garage, albeit a sympathetic one, in the front setback and the planting of further trees and shrubs that are incongruous with Wilson's intended planting palette. 6. From the site view and the evidence of the landscape and architectural heritage experts from both parties, it is undisputed that the swimming pool is incongruous with Wilson's intended garden design. It is also undisputed that the three trees proposed for removal, including the Himalayan Cyprus that is the subject of this modification application, do not accord with Wilson's intended planting palette. What is disputed is the heritage and other significance of T3 itself, and the effect of its removal on the heritage significance of the item, which in this case is the dwelling. 7. The garden forms the setting for the heritage listed dwelling. An objective of the KLEP, at cl 5.10, is to conserve the heritage significance of heritage items, including settings. Subsequently, the question before me is what is the impact of the proposed development on the heritage significance of the dwelling and its setting at 'Purulia'. 8. To answer this, I turn to the expert evidence. First, I will examine the impact of the proposed development on the heritage significance of the dwelling itself. 9. As presented to me by Mr Moore through the heritage listing and extensive documentary evidence (Ex A), the dwelling of 'Purulia' is widely considered to be a highly significant item of Australian architectural heritage. It is described in detail in several books, extracts of which were provided in Ex A, as well as in the heritage listing report. However, as highlighted by Mr Robertson, for the respondent, there is no mention in this documentation of a Himalayan Cedar despite its presence on the site for at least 60 years. T3 is not recognised in any of the documentary evidence (Ex A) or heritage listings before the Court as being of heritage significance, either on its own or as part of 'Purulia'. Equally, T3 is not identified in any of the evidence as detracting from the significance of 'Purulia', despite it being well established in the garden when the property was heritage listed in 1982 – as demonstrated from the aerial photography in Ex 3 pp 15-17. 10. The applicants' experts both submit that T3 detracts from the heritage significance of 'Purulia' for several reasons. Mr Moore describes the importance, to Wilson, of the effect of light to the interior of the house and submits that T3 has an adverse impact on this. However, I note that the tree is located to the south of the dwelling and, as I was directed to observe on site, there are several trees that are closer to the house than T3, with a proximity or position that are more likely to have an impact on the light reaching the house. Furthermore, no shadow diagrams were provided as evidence to correlate the applicants' stated impact of T3 overshadowing the house. 11. Mr Britton states in the joint report (Ex 3) that T3 is of such a large scale and prominence that it prohibits any ability to interpret Wilson's original garden design. To clarify Wilson's original design intent, I have been taken to a copy of Wilson's original site plan (Exhibit C and figure 2 above), as well as the description in the state heritage item report (Ex 2 tab 34), and a series of photographs reproduced in the book 'Lost Gardens of Sydney' (Ex A tab 12). Based on this evidence, Mr Britton submits that T3 should be removed as it impacts the conservation of 'Purulia' by impeding the reconstruction of the rear garden immediately adjacent to the house in accordance with Wilson's original design. Again, I note that the grounds do not form part of the heritage item, and that no evidence was submitted that T3 was impeding any form of conservation of the dwelling itself. 12. Mr Moore submits, in his joint report at 2.1.14 (Ex 3), that T3 impacts the use of 'Purulia' as a home. No evidence was provided to support this, and I reject this suggestion on the basis of the location of T3 some distance from the house, and the current unfettered use of 'Purulia' as a home by the Respondents as demonstrated at the site view. 13. Further, despite a small extent of overhanging limbs to the roof, no evidence was provided to indicate that T3 posed any imminent structural or other risk of damage to the house. I note that, as I was directed to view on site, the limbs from several other trees also overhang the roof of the house, and yet the applicant only takes issue with T3. 14. Turning to the impact of the proposed development on the setting of the heritage item, there are two aspects to consider: the impact on the rear garden setting and the impact on the setting of 'Purulia' as a whole. 15. Regarding the rear garden, as stated above, both Mr Britton and Mr Moore submit that the principal elements impacting the setting of 'Purulia' from the rear are the swimming pool and T3. Both experts are of the opinion that the limited reconstruction of the lower terrace is important to the setting of 'Purulia' as it recreates Wilson's vision as much as possible in proximity to the dwelling. Mr Moore submits that the impact of the subdivision on this garden interpretation is minimal, as the property is positioned atop a ridge which falls away to the south roughly from the location of the subdivision boundary. Mr Britton submits that the subdivision 'does not ultimately matter from a visual perspective', because it was never a major view consideration. I find this opinion somewhat reductive: that because the lost portion of the garden is not visible from the house, it is less significant to the setting of 'Purulia'. In my considered opinion, regardless of the topography, the impact of the subdivision on Wilson's garden is so significant that any reconstruction could only be a gestural interpretation of one aspect of his design, rather than a recreation of Wilson's intended setting for 'Purulia'. 16. For the respondent, Ms Marler and Ms Holtham, the respondent's architectural heritage expert, both submit that the impact of the subdivision, amongst other changes, is substantial, and that the rear garden is in such an altered state that reinstating the original layout is simply not possible. Ms Holtham submits, and I agree, that whilst constructing an interpretation of the garden design is a possibility, that it could and should integrate T3 as an established part of the garden. 17. Regarding the overall setting of the heritage item, as Ms Marler stated in evidence, the setting of 'Purulia' is best appreciated from the front which is the only publicly visible aspect of the property. The rear garden is not visible from the public domain, with the exception of the crown of some trees (including T3) above the canopy which is visible from several viewpoints in the vicinity. Ms Marler submits, and I concur that the presence of this canopy as a backdrop to the house does not detract from the heritage significance of the house, nor does it adversely impact its setting. 18. No evidence has been submitted to suggest that T3 impedes any form of conservation or use of the dwelling, nor poses any immediate or apparent risk to it. Further, the primary heritage setting of 'Purulia' is that provided by the front garden, which retains a form and style that is in keeping, whilst not replicating, Wilson's design. I concur with the evidence of Ms Marler and Ms Holtham that the rear garden is so altered that the removal of T3 will neither improve or adversely impact the setting of 'Purulia', as it is one of several trees and landscape elements that are incongruous with Wilson's intent, none of which have been assessed under a conservation management plan or other holistic review of the garden in its current state. I concur with the respondent that it is entirely possible to achieve an interpretation of Wilson's garden design whilst retaining T3 for its useful life. 19. In my opinion the removal or retention of T3 would have a neutral impact on the heritage significance of the house and its setting which remains, irrespective of the presence or not of T3, highly significant. From this, although the proposed development does not offend the general aims of KLEP, the provisions of KLEP cl 5.10 or the provisions of KDCP Parts 1A.5 (xi), 19E.4, 19F.1, 19F.3 or 21.2, the retention of T3 also does not offend these controls. The aesthetic and environmental significance of the tree 1. Having concluded that the removal or retention of T3 does not impact the significance of the heritage dwelling pursuant to the KLEP or KDCP, I must subsequently consider other relevant matters listed under EPA Act s 4.15. Principally, this includes other relevant provisions of the KLEP and the KDCP that relate to both tree retention and local character. 2. Clause 1.2(2)(o) of the KLEP establishes an aim to protect the character of low density residential areas and the special aesthetic values of land in the Ku-ring-gai area. Further, Objective 4 of Part 13.1 of the KDCP aims to secure and maintain local character and amenity. As per the submission of Ms Clare Brown, the parties' single planning expert, the character, aesthetic values and amenity described in both the KLEP and KDCP, are predominantly established from the public domain. This character of the locality was described by Ms Brown in Ex 4 as residential dominated by single, and sometimes dual occupancy dwellings of single or two storey construction on allotments of land ranging between 600sqm and 1200sqm. She defines the special aesthetic values of the site as flat areas adjacent to the ridgeline with tree lined streets and significant vegetation. She states that: "The character of the neighbourhood in which the site is located is generally one of a low density residential neighbourhood framed by significant trees within the road reserve and front yards of properties creating the streetscape and character of the neighbourhood along Fox Valley Drive (sic). The character adjacent along the Pacific Highway while retaining some residential elements has a broader mixed use character." 1. At the site view I was taken to several vantage points to observe the potential significance of T3 from a streetscape perspective. From this I note that, in its rear garden position, T3 is often screened from view by the many prominent, large canopy trees within the street and front gardens along the relevant stretch of Fox Valley Road. Subsequently, the significance of T3 in the streetscape and in the overall character of the locality is limited. Although I note and concur with Ms Marler that T3 contributes to the character of the area, from the site view and the evidence of Ms Brown, it is apparent to me that the removal of T3 would have a negligible impact on the character of the locality. I concur with Ms Brown that the above provisions of the KLEP and KDCP relating to character, amenity and aesthetic values would not be offended by the removal of T3. 2. I also must consider the relevant general parts of the KDCP that relate to tree management. These include: 1. KDCP Part 1A.5 "1A.5 General aims of the DCP The general aims of this DCP are as follows: …. xiii) Ensure the long term survival of Ku-ring-gai's native and exotic tree and vegetation cover;" 1. KDCP Part 4A.4 "4A.4 LANDSCAPING Objectives 1 To protect and enhance the tree canopy of Ku-ring-gai. …. Controls Tree Retention 1 Landscape proposals are to retain existing trees, where possible." 1. KDCP Part 13.1 "13.1 TREE AND VEGETATION WORKS Objectives 1 To manage Ku-ring-gai's tree and vegetation resources in a sustainable manner. 2 To protect and enhance biodiversity values and identify replenishment opportunities. 3 To recognise, protect and enhance the aesthetic and heritage values of trees. 4 To secure and maintain local character and amenity. 5 To sustain and enhance the tree canopy. 6 To prohibit unnecessary injury to, or destruction of, trees and vegetation. 7 To encourage responsible management of trees and vegetation within an urban environment." 1. Ms Marler submits that T3 should be viewed through a contemporary understanding of canopy trees, whereby their importance and value is established not just based on aesthetics but also for their environmental benefits. T3 has been assessed by a qualified arborist (Ex 5) to be in good health with a medium useful life expectancy, of high landscape significance, and with a retention value of 1- High (priority for retention). 2. Pursuant to the aims, objectives and controls of the KDCP listed above, the removal of a 17 metre high, 18m wide canopy tree in good health and vigour should only occur in circumstances where its removal has been robustly justified against these controls and where it is not possible to retain. I concur with the evidence of both Ms Marler and Ms Holtham that an alternative landscape scheme to that included in Ex A tab 5 could be considered, that interprets Wilson's design intent while incorporating T3 as a landscape constraint. The retention of T3 is not impossible, it is simply not preferred by the applicant. 3. On the basis of the arborist's assessment and my previous conclusion that the impact of either retention or removal on the heritage significance of the dwelling and setting is neutral, it is my considered opinion that the removal of T3 has not been adequately justified and would be contrary to the relevant tree management objectives, aims and controls of the KDCP listed above. Removal of the tree is not in the public interest 1. 'Purulia' is a private property that is currently not accessible to the public. The heritage dwelling is however visible from the street and public footpath, but as per the submission of Ms Holtham, the rear garden is neither visible nor accessible, and upon completion the interpreted landscape elements will not be visible or available to the public. I do not accept the submission of Mr Moore that the retention of T3 would necessarily be at the expense of 'Purulia's' better interpretation and amenity or its fabric, as no evidence has been provided that the amenity or fabric of 'Purulia' is compromised by T3. It is also apparent that Wilson's layout may be interpreted- not recreated- with T3 in situ. In my opinion, the removal of such a high-quality specimen tree under these circumstances, and in the absence of a comprehensive plan to restore, reconstruct and interpret Wilson's overall garden design, is not justified by the application before the court and is subsequently not in the public interest. Orders 1. The Court orders: 1. The appeal is dismissed. 2. All exhibits except exhibits A, C and 5 are to be returned. E Washington Acting Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 April 2023