Kangaloon Road Holdings Pty Ltd v Wingecarribee Shire Council [2024] NSWLEC 1133

Land and Environment Court New South Wales

Medium Neutral Citation: Kangaloon Road Holdings Pty Ltd v Wingecarribee Shire Council [2024] NSWLEC 1133 Hearing dates: 29-30 January 2024 Date of orders: 21 March 2024 Decision date: 21 March 2024 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) The appeal is dismissed. (2) All exhibits, except for A, B, C, J, H, 1 and 4, are to be returned. Catchwords: DEVELOPMENT APPLICATION – dual occupancy – heritage conservation area – tree removal – appeal dismissed Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.15, 8.7 Wingecarribee Local Environmental Plan 2010 cll 1.2, 4.1, 4.2F, 5.10 Texts Cited: Wingecarribee Bowral Township Development Control Plan 2021 Category: Principal judgment Parties: Kangaloon Road Holdings Pty Ltd (Applicant) Wingecarribee Shire Council (Respondent) Representation: Counsel: L Nurpuri (Applicant) J Palmer (Solicitor) (Respondent)

Solicitors: McKees Legal Solutions (Applicant) Pikes and Verekers Lawyers (Respondent) File Number(s): 2023/225042 Publication restriction: Nil

JUDGMENT 1. COMMISSIONER: Kangaloon Road Holdings Pty Ltd (the Applicant) have applied for development consent under DA23/1255 for alterations and additions to an existing dwelling, and construction of a detached dual occupancy at 33 Boolwey Street, Bowral. This Class 1 Appeal arises from the deemed refusal by Wingecarribee Shire Council (the Respondent) of this development application. 2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The site is located on the corner of Boolwey Street and Edward Street, Bowral, and is legally known as Lot 1, Section B of DP11838. It is situated within the Southern Residential Precinct of the Bowral Heritage Conservation Area (HCA), however is neither a heritage item nor located within the immediate vicinity of a heritage item. The site is zoned R2 Low Density under the Wingecarribee Local Environmental Plan 2010 (WLEP), within which the proposed development is permissible with consent. 4. The site currently contains a single storey dwelling and separate double garage, with an established, albeit overgrown garden containing numerous mature trees of varying species. 5. There are no matters of jurisdiction in contention between the parties and subsequently, the remaining issues are ones of merit. These issues may be grouped as: 1. Contention 1: The impact on the character of the HCA. The Respondent contends that the proposed dual occupancy will have an unacceptable impact on the character of the HCA in the locality of the subject site. The particulars focus on the following key aspects of the HCA: 1. The subdivision pattern 2. The adequacy of the Heritage Impact Statement (HIS) 3. The built form 4. The ratio of built form to landscape 5. The setback to Boolwey Street 6. The mature landscape setting 1. Contention 2: The impact of the removal of two trees, T15 and T19. 2. Contention 3: The public interest. I will deal with each in turn.