Armitage v Ku-ring-gai Council
[2004] NSWLEC 370
•07/02/2004
Land and Environment Court
of New South Wales
CITATION: Armitage v Ku-ring-gai Council [2004] NSWLEC 370 PARTIES: APPLICANT
RESPONDENT
Lillian Armitage
Ku-ring-gai CouncilFILE NUMBER(S): 10437 of 2004 CORAM: Hoffman C KEY ISSUES: Development Application :- Additions and alterations - streetscape - tree loss LEGISLATION CITED: CASES CITED: DATES OF HEARING: 02/07/2004 EX TEMPORE
JUDGMENT DATE :07/02/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Ms M-L Taylor, solicitor
SOLICITORS
Norman Waterhouse Incorporating Taylor Kelso
Ms M Hawley, solicitor
SOLICITORS
Phillips Fox
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman C
2 July 2004
JUDGMENT10437 of 2004 Lillian Armitage v Ku-ring-gai Council
1 This is judgement in appeal No. 10437 of 2004 between Lillian Armitage and Ku-ring-gai council in respect of refusal of additions and alterations to a house at No 67 Tryon Road, Lindfield.
2 The matter was dealt with by way of an on-site hearing on 2 July 2004. Attendance for the applicant were:
- Mrs Taylor, solicitor,
- Ms Lillian Armitage, the applicant,
- Mr S Stead, representing Luigi Rosselli Pty Ltd Architects,
- Mr P Castor, arborist
3 Representing the respondent were:
- Ms Hawley of Phillips Fox solicitor,
- Mr S Fenn, Ku-ring-gai Council, arborist,
- Mr R Kinninmont, town planner for the council
- Mr C Swanepoel, town planner and also
- Mr G Goodyer, of Symons Goodyer, who is the Court appointed expert town planner.
4 The issues in the appeal were :
1 Whether the proposed development is consistent with the aims and objectives of the Residential 2(a) Zone contained in Schedule 9 of the Ku-ring-gai Planning Scheme Ordinance (KPSO). In particular:
- (a) The proposed development does not maintain the existing amenity and environmental character of the residential zone due to the excessive excavation necessary to accommodate the proposed driveway and access arrangements (clause 1(a) of Schedule 9 of the KPSO).
(b) The proposed development is incompatible with the existing environmental character in that it fails to maintain tree cover to ensure the predominant landscape quality of the municipality is maintained. In particular, the development requires the removal of a significant Liquidambar tree at the front of the site and a significant portion of existing vegetation on Council's road reserve adjoining the front boundary (clauses 1 (b) and clause 2(c) of Schedule 9 of the KPSQ).
3 Whether the proposed development complies with section 5.2.15 of DCP 38. In particular whether the excavation for the garage and driveway impacts on existing trees and significantly alters the natural, landform of the subject site and surrounding locality.
4 Whether the proposed driveway to the development complies with section 5.5.6 of DCP 38 and results in a development that will be visually intrusive to the existing streetscape and will impact on the vegetation at the front of the site.
5 Whether the application provides adequate information to enables an accurate assessment of the amount of excavation proposed and pedestrian and road safety requirements as required under clauses 5.5.5 and 5.5.6 of DCP 38.
6 Whether the proposed development complies with clause 4.2.1 of DCP 38 as the location of the proposed driveway requires the removal of a significant Liquidambar tree at the front of the site.
7 Whether the proposed development complies with clauses 5.3.4, 5.3.5 and 5.3.7 of DCP 38 as it results in the removal of a significant tree that contributes to the visual character of the locality and plays a dominant role as an existing landscaping feature at the front of the site.
8 Issues raised by objectors.
5 There was only one objector, who did not attend the hearing, and their objection was concerned about the proposed front fence and Public Path way along Tryon Road. The matter was resolved by conditions of consent between the parties and council did not make any issue about the proposed front fence.
6 The site was in fact a battleaxe allotment with all access from the next road uphill from Tryon Road. Tryon Road had on its northern side the Seven Little Australians Park which consists mainly of natural bushland downhill of the site. Tryon Road was cut into the contours of the hill meaning that there was an embankment up to the house lots. Number 67 at present time had no vehicle access from Tryon Road, its only access was by a narrow and long access drive from the other street. This necessitated reversing the full length of the driveway to get into the garage which was capable of holding only one car.
7 Because of previous consents presumably by council, a tennis court and a swimming pool in the back yard had been built prior to the applicant purchasing the property. There was no room to locate another garage to hold two cars and have a turnaround in the backyard.
8 As a result the alterations and additions was designed to have a new two car garage underneath the existing house on the Tryon Road frontage. The new access driveway was to be shared at the street crossing with No. 65 Tryon Road, which already had an access driveway up the embankment.
9 This would minimise the visual impact on Tryon Road, and being at the shared location, it would minimise the number of street trees that might be removed in any other location in front of No. 67. There was an existing Blackbutt tree that would need removal but it was directly adjacent to the kerb line. In fact it overhung the carriage way of the road and it showed damage from car impacts in several locations. All parties agreed that it was desirable for this tree to be removed. It was the only tree on the footpath to be removed, many others remained.
10 The principal concerns at the time of the hearing was the loss of a Jacaranda tree and a very large Liquidambar tree in the front yard of the subject property. It was said to the Court that it was essentially the impact of the excavation for the driveway, and loss of these trees that caused the reason for the refusal. The other extensions and alterations to the house were acceptable to the council.
11 The Court appointed expert Mr Goodyer had presented a report in which he had looked at the issues and determined that the Liquidambar tree was significant due to its, height of 18 m. But, there were a considerable number of large trees in the road reserve and elsewhere amongst the private properties in the locality and the loss of the tree was not sufficient for refusal provided replacement planting was to be done.
12 Both parties acknowledged that Ku-ring-gai Council categorised Liquidambars as non-native trees with aggressive root systems that damaged buildings and pipes and the council allowed their removal when they were less than 15 m in height.
13 Mr Goodyer said the jacaranda tree was of less significance but contributed something to the allotment. However, he did not think loss of it would be sufficient to justify the refusal on the basis of other trees planted.
14 In inspecting the streetscape of the locality and having heard the evidence the Court has agreed with Mr Goodyer that the liquidambar when seen from close proximity to the site, is well screened by existing street trees. It is only from the distance that its size can be properly observed. It can be seen from the intersection of Archbold Road and Tryon Road. It is in amongst significant other tree canopies. As a result, it does play a role in the streetscape and the maintenance of the character of the area. But provided it is replaced, the Court does not see its loss as a matter that should justify refusal.
15 The council’s arborist, Mr Fenn, was concerned about the any replacement trees will take in excess of 20 years to grow to similar height, and there would be a loss of amenity for that period to local vegetation and streetscape quality. The applicant’s expert, Mr Castor, said more like 10 years to grow.
16 The Court has concluded that although it does take time for trees to grow, there must always be succession planting of new vegetation in suburban areas to ensure that ultimately all trees don’t reach maturity and die without replacements. Therefore having younger trees growing amongst significant numbers of existing mature trees is not an unacceptable circumstance.
17 During the hearing the landscaping plan was discussed amongst the experts as the council’s expert felt that the selection of vegetation was not suitable. It needed to include more native species common in the locality in order to reflect the council’s expectations for the maintenance of the character of the area. The amended landscape plan was to be submitted by the applicant for council’s approval generally in accordance with the draft conditions that were agreed. One of the trees to be planted was an angophora eucalypti that was native and may well grow to be as big as the liquidambar. This would ensure that council’s expectations could be achieved in the medium term.
18 In regard to the jacaranda tree, the applicant maintained that it could be kept given the proposed adjustment of the driveway retaining wall and excavation. This included a turntable in the driveway to enable cars to turn around, rather than needing a hammerhead turning area that would definitely affect the jacaranda. There was discussion between the experts on the best means of trying to save the jacaranda, and the Court has concluded that there is a good possibility the jacaranda tree would be saved and it is the intention of the applicant to do so.
19 Appropriate conditions were discussed between the parties for inclusion. Given the conditions to plant seven additional trees on the property with the loss of one and possibly two, it appeared to the Court that the maintenance and enhancement of the character of the locality intended by the council’s statutes and Local Control Plans would be assured.
20 The excavation of the driveway would be visible to persons as they pass by the allotment. However, due to the existing driveway for No. 65 Tryon Road, it seemed to the Court that visibility within the streetscape would be little different to the passer-by. The drive entry was at the commencement of a curve in Tryon Road where a driver or passer by’s attention would be more on the outside of the curve line, and not on the inside of the curve where the driveway would be located. Therefore once the work had been completed and the proposed vegetation grown on the retaining wall, the visual impact would be very little different to what existed at the present time.
21 There are no other reasons sufficient for refusal obvious to the Court.
22 The orders of the Court are:
1. The appeal is upheld.
2. That development consent for alterations and additions at 67 Tryon Road, Lindfield is granted in accordance with the plans and Exhibit 1 tab 11 except for the landscape plan which is to be the subject of amendments to the satisfaction of council.
3. The development shall be in accordance with and as further amended by the conditions in Annexure ‘A’ hereto.
4. The exhibits be returned to the parties except for Exhibit 1, 2, 3, 7 and A.
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