Beasley v Blue Mountains City Council - [2022] NSWLEC 1652

Land and Environment Court

New South Wales

Medium Neutral Citation: Beasley v Blue Mountains City Council [2022] NSWLEC 1652
Hearing dates: 18-19 November 2021
Date of orders: 08 December 2022
Decision date: 08 December 2022
Jurisdiction: Class 1
Before: Adam AC
Decision:
The Court orders:
(1) The appeal is upheld.
(2) Development consent is granted to development application X/545/2020 for the decommissioning of the original driveway at the western end of the property, removal of the Chamaecyparis obtusa tree within the front building setback, construction of new driveway entrance and parking space at the eastern end of the property, compensatory works and installation of new vehicle access gates and a pedestrian gate within the existing front fence at 133 Waratah Street, Katoomba, subject to the conditions of consent in Annexure A.
(3) The exhibits are returned except for 1, 2, 3, 4, 8, A, B, E and F.

Catchwords:
APPEAL – development application – relocation of access from public road to property – construction of hardstand for parking – removal of coniferous tree in HCA – is removal of tree justifiable – landscaping and restoration of garden – balance between amenity to residents of the property and the retention of the tree – weight given to development control plan – conditions

Legislation Cited:
Biodiversity Conservation Act 2016
Blue Mountains Local Environmental Plan 2015, cll 5.10, 6.4, 6.9, 6.17
Environmental Planning and Assessment Act 1979, ss 3.8, 4.15, 8.7
Land and Environment Court Act 1979, s 34AA
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 8 s 8.8; Ch 9
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4 s 4.6
State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011
Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997), cl 6
State Environmental Planning Policy No 55—Remediation of Land, cl 7 (repealed)

Cases Cited:
Saffioti v Kiama Municipal Council [2019] NSWLEC 57
Sutherland No. 7 Pty Limited v Ku-ring-gai Council [2021] NSWLEC 1209
Tomasic v Port Stephens Council [2021] NSWLEC 56
Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167

Texts Cited:
Chamaecyparis obtusa ‘Crippsii’. American Conifer Society, < accessed 11 November 2022
P D Tredici, ‘The Introduction of Japanese plants into North America’ (2017) 83 Botanical Review 215-252
Blue Mountains Development Control Plan 2015
Richard Ratcliffe, Australia’s master gardener: Paul Sorensen and his gardens (1990, Kangaroo Press, Kenthurst)
S. Barrett, ‘The Sorensen’s Nursery Saga’ (1992) 4(2) Australian Garden History 6-7

Category: Principal judgment
Parties: Gerald Beasley (First Applicant)
Sally Lewis (Second Applicant)
Blue Mountains City Council (Respondent)
Representation:
Counsel:
G Beasley (Self-represented) (Applicants)
A Seton (Solicitor) (Respondent)
Solicitors:
Marsdens Law Group (Respondent)

File Number(s): 2021/178367
Publication restriction: No

Judgment

Introduction

This matter is an appeal by the Applicants, Mr Beasley and Ms Lewis, against the refusal of development application X/545/20208 (DA) by the Respondent, Blue Mountains City Council. The appeal is made pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The DA in the form before the Court sought consent for the removal of an existing vehicle crossing, driveway, parking space and gate, construction of a new vehicle crossing, driveway, parking space, gate and retaining wall, removal of a native tree in the front setback area and associated landscaping works.
The DA was lodged with the Respondent on 27 July 2020. The DA was notified to neighbouring landowners for a period of 14 days. No submissions were received by the Respondent.
On 24 December 2020, the DA was refused by the Respondent under delegated authority. On 2 February 2021, the Applicants made an application for a review of the Respondent’s determination pursuant to s 3.8 of the EPA Act. The review application was accompanied by amended plans, that deleted the carport proposed in the original application, but the proposed development was otherwise the same as that in the original application. The review application was not notified by the Respondent.
On 23 May 2021, the review application was refused by the Respondent. On 20 June 2021, the Applicants commenced proceedings in Class 1 of the Court's jurisdiction. On 27 October 2021, the Applicants were granted leave to amend the DA and to rely on amended plans.
The matter commenced as a s34AA Conciliation Conference (Land and Environment Court Act 1979 (LEC Act)) on site with the parties and their respective experts present. An inspection of the outside of the property, including the rear garden, was undertaken. This provided an opportunity for the Court and the parties and their representatives to observe the site in its context and enabled confidential and without prejudice discussion between the parties and between the experts.
The site is about 500 metres south of the Katoomba CBD, and is within the Katoomba South Heritage Conservation Area (HCA). The property situated on the southern side of Waratah Street, and is 133 Waratah Street. Waratah Street runs east-west and the section of the street in front of the site rises from the east towards the west. There is also a gradient falling from the north, which steepens from the building line of the property to the rear garden.
To the rear of the property a secondary dwelling (studio) had been constructed pursuant to the approved development application X/1152/2018. The aerial photograph reproduced as Fig 2 in the Amended Statement of Facts and Contentions had been taken some time prior to the construction of the secondary dwelling, but otherwise shows the current vegetation of the property, including the tree at the north-east corner for which approval for removal is sought.

Figure 1 Aerial photograph with subject site outlined in yellow (Source: Ex 1 Fig 2).

Relevant to the proceedings is that there is a very steep camber to this section of the roadway, such that for ‘normal’ cars parked in front of the property, opening the passenger side doors is difficult. The road camber also requires that vehicular access to the property needs construction of a bridge from the road across the gutter so that bottoming of vehicles does not occur. The steepness of the camber is illustrated in Fig 5 in Ex 4.

Figure 2 Street view of Waratah Street looking to the east. The red car is parked in front of the subject site (Source: Ex 4 Fig 5, the original source is Blue Mountains City Council). Note that the two cars on the south side of Waratah Street care incorrectly parked, being on the 'wrong' side of the road.

There is a small number of street trees on this section of Waratah Street, as can be seen in Figs 5 and 6 of Ex 4.

Figure 3 The street tree in front of the subject site has been pruned heavily to provide clearance for the power cable (Source: Ex 4 Fig 6)

To reach the site I had walked from Katoomba Station down Lurline Street. In the course of the walk, I observed the importance of the canopies of tall emergent trees (both native and introduced species) to the character of the HCA.
During the course of the inspection, the experts pointed out various features which they considered important to bring to the attention of the Court. This was followed by observation on both sides of Waratah Street, both to the east and west of the subject site, so trees and gardens in the area and the vehicular access arrangements to properties could be seen.
Subsequent to the inspection, we moved to the Katoomba Local Court, where discussions between the experts continued. However, I was informed after these discussions that agreement between the experts was not possible. I therefore terminated the s34AA conciliation conference. In this circumstance, the matter moved to a hearing. However, due to the temporary unavailability of recording facilities, it was possible only to identify the documents which the parties wished to tender as exhibits. The matter was then adjourned until the following day in Court in Sydney, when the hearing commenced with the formal tendering of the exhibits. At the commencement of the hearing, the parties agreed that I could take into account matters seen and discussed during the site inspection.
The experts show had been present as participants on the inspection and who had subsequently taken part in discussions at Katoomba Local Court were:

Discipline

Applicant

Respondent

Exhibit

Town Planning

Mr G Apps (GA)

Mr B Mercer (BM)

3

Joint Heritage and Landscape

Mr G Brooks (GB) (Heritage)

Mr M Taylor (MT) (Landscape)

Dr S Kasiannan (SK) (Heritage)

Ms D Friedewald (DF) (Landscape

4

Supplementary Heritage

Mr G Brooks

Dr S Kasiannan

5

The joint expert reports were in evidence but none of the experts were required for cross-examination in Court.

The tree

One element in the DA is the proposal by the Applicants for the removal of an existing tree (described as mature) in front of the dwelling.

Figure 4 Looking South across Waratah Street, showing the tree proposed for removal. (Source: Ex 4 Fig 2)

During the onsite inspection attention was paid to the tree, which was examined and discussed.
In the early documentation in the matter, this tree had been referred to as a Northern White Cypress (Thuja occidentalis). (The species is also known in the literature as Eastern White Cypress and Arborvitae). It is native to north-eastern USA and adjacent areas in Canada, but is now available much more widely horticulturally, including in Australia.
Subsequently the tree had been identified by Ms Deborah Friedewald, the Respondent’s landscape expert, as Chamaecyparis obtusa, native to Japan. The tree shown in the photograph above has golden yellow foliage and is referred to as Golden Hinoki Cypress (the alternative spelling ‘Hinoke’ is also widely used). The species is an important timber tree in Japan and in the wild most individuals have green foliage. The numerous forms of the species available in horticulture differ from the wild type in various ways. Forms with yellow foliage have been selected and developed in cultivation.
Ms Friedewald had identified the specimen as being representative of the cultivar ‘Crippsii’. This cultivar had been selected in the early 1900s in the nursery of T Cripps & Sons, in Tunbridge Wells, Kent, in the United Kingdom. [1]
1. Chamaecyparis obtusa ‘Crippsii’. American Conifer Society, , accessed 11 November 2022.
The first introduction of C. obtusa into the UK was in 1860, by the famous plant collector Robert Hunter. A few years later it was separately introduced into North America. [2] In both Britain and North America, plant nurseries selected and developed large numbers of different named forms of the species, which were sold in large numbers to home gardeners. In days before there was great attention paid to what is now called biosecurity specimens were sold internationally, and nurseries selling the species existed in many countries.
2. P. D. Tredici, ‘The Introduction of Japanese plants into North America’ (2017) 83 Botanical Review 215-252.
Plants available in Australia may have arisen from original imports from both America and Europe.
I am uncertain as to the basis for the attribution of the subject tree to C. obtusa ‘Crippsii’. A number of nurseries in Australia sell what is said to be ‘Crippsii’, as do many in the UK and North America. However, comparison of catalogues available on the internet shows great variation in the description of the tree, particularly in relation to eventual size. ‘Crippsii’ was originally described as ‘dwarf’ - but some catalogues suggest an eventual height of 15m +.
Although it would be ideal to have certainty of identification, not much turns on it. Both C. obtusa and T. occidentalis have very similar growth forms, with a pyramidal shape and dense foliage. Both species have a large number of named forms (in the order of a least 300 for each of the species), which in both species includes a number of forms with yellow foliage. Both species are slow growing.
The subject tree does not appear in aerial images of the site until the 1960s – Ex F, Annexure 3 image for 1966 does not obviously show the tree, but it could have been present at a very small stage of its growth. The dwelling on the site dates from the interwar years.
Opposite the Applicants’ property on the northern side of Waratah Street, there is a larger conifer with similar pyramidal form and also yellow foliage.

Figure 5 View west along Waratah Street, with the subject tree on the left, and the similar tree on the right. (Source: Ex 4 Fig 3)

The properties on the northern side of the street at a higher ground level, with a retaining wall along the southern boundary. The tree on the north side is larger than that on the subject site. The canopy has been lifted slightly through removal of a number of lower branches.
During the inspection, it was suggested that the northern tree was of the same type as the tree on the Applicants’ property. Ms Friedewald and I examined the foliage of the northern tree closely and noted a number of slight differences between the two trees. I agree that the trees are similar, but I am not confident that it is a representative of the same form as the southern tree. The 1966 aerial image in Ex F Annexure 3, at least in the exhibit - I have not seen the original - is not of sufficient quality to determine whether or not the northern tree was present, so its age has not been determined. For the issues which must be considered in assessing the merits or otherwise of permitting removal of the subject tree, comparisons between the northern and southern tree are not dependent on details of identification.
The tree is not indigenous, but that in itself does not necessarily mean that it is of no value as a constituent of biodiversity.
The tree, as would any tree, sequesters carbon (an ecosystem service), but given the slow rate for growth the amount is not great, and replacement by another species (indigenous or not) could make up the loss.
The dense canopy is unlikely to provide resources for native fauna. Some birds might incidentally perch on the outer canopy, but the canopy is unlikely to provide habitat and food resources for many native insects which could be food for birds and the absence of flowers and fruit would also lead to few resources for native fauna. The hard timber does not currently provide hollows for nesting birds or microbats, and it is unlikely that usable hollows would form for many years, if ever. Consequently, considerations under the Biodiversity Conservation Act 2016 do not arise. The potential of a large Norfolk Island pine to support native fauna was discussed in Sutherland No. 7 Pty Limited v Ku-ring-gai Council [2021] NSWLEC 1209 (Sutherland No. 7) where the Court concluded that that provision of faunal habitat was unlikely except in the distant future when the shedding of branches and formation of hollows might occur. The tree concerned in that case was older (more than 100 years) and much bigger than that in the present matter, and had important heritage values which justified its retention.

Jurisdictional matters

In the Respondent's opening Mr Seton drew attention to a number of jurisdictional matters arising from applicable planning controls. There are no contentions that raise jurisdictional matters that would provide a bar to me having jurisdiction, but there are matters which the consent authority is required to consider and form an opinion of satisfaction. If the s34AA conciliation conference had resulted in an agreement between the parties, they would have been required to provide the Court with a jurisdictional statement outlining how jurisdictional matters had been addressed. This would have been discussed in the resulting judgment and the Court would have indicated that it was satisfied that no jurisdictional barriers arose. A similar approach needs to be documented in the judgment following a hearing.

Contamination

State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) appears behind Tab 22 in Ex 2. Clause 7 prohibited a consent authority from granting consent to proposed development unless it was satisfied that the land was not contaminated or, if contaminated, that the land was suitable for the development proposed or would be suitable after remediation. Following the consolidation of NSW SEPPs, the now applicable SEPP is State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H). What was cl 7 of the repealed SEPP 55 now appears in Ch 4 of SEPP R&H as s 4.6.
Given the long period of time that the site has been used for residential purposes, and the absence of any prior use likely to have cause contamination, I am satisfied that at the time of the hearing cl 7 of SEPP 55 was satisfied, and that is also the case in regard to s 4.6 of SEPP R&H.

Catchment issues

The site falls within the Sydney Drinking Water Catchment so that State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 applied. Following consolidation of SEPPs, the provisions now appear in State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) Ch 8. Section 8.8 requires that the consent authority cannot grant consent to development unless it is satisfied that carrying out the proposed development would have a neutral or beneficial effect on water quality.
Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) (SREP) applied to areas that were within certain local government areas, which included the Blue Mountain City Council, and to particular areas on maps which formed part of the Plan. The subject site falls within the Coxs River Catchment and thus the SREP applied to the subject site. With the consolidation of SEPPs, what was the SREP now falls within SEPP B&C Ch 9. Clause 6(3) of the SREP, under the heading ‘water quality’, stated:

Policy: Future development must not prejudice the achievement of the goals of the use of the river for primary contact recreation (being recreational activities involving direct water contact, such as swimming) and aquatic ecosystem protection in the river system. If the quality of the receiving waters does not currently allow these uses, the current water quality must be maintained, or improved so as not to jeopardise the achievement of the goals in the future. When water quality goals are set by the Government these are to be the goals to be achieved under this policy.
Note—
Aquatic ecosystems and primary contact recreation have the same meanings as in the document entitled Australian Water Quality Guidelines for Fresh and Marine Waters, published in 1992 by the Australian and New Zealand Environment and Conservation Council.
Strategies:
(a) Quantity, and assess the likely impact of, any predicted increase in pollutant loads on receiving waters.
(b) Consider the need to ensure that water quality goals for primary contact recreation and aquatic ecosystem protection are achieved and monitored.
(c) Approve development involving primary contact recreation or the withdrawal of water from the river for human contact (not involving water treatment), such as showers, only in locations where water quality is suitable (regardless of water temperature).
(d) Do not carry out development involving on-site disposal of sewage effluent if it will adversely affect the water quality of the river or groundwater. Have due regard to the nature and size of the site.
(e) Develop in accordance with the land capability of the site and do not cause land degradation.
(f) Consider the need for an Erosion and Sediment Control Plan (to be in place at the commencement of development) where the development concerned involves the disturbance of soil.

(g) Minimise or eliminate point source and diffuse source pollution by the use of best management practices.
(h) Site and orientate development appropriately to ensure bank stability. Plant appropriate native vegetation along banks of the river and tributaries of the river, but not so as to prevent or inhibit the growth of aquatic plants in the river, and consider the need for a buffer of native vegetation.
(i) Consider the impact of the removal of water from the river or from groundwater sources associated with the development concerned.
(j) Protect the habitat of native aquatic plants.

The Respondent raised no contentions regarding the SREP and there is nothing in evidence that would suggest that any runoff from the development would have impacts on the Coxs River. I am satisfied there is no impediment related to runoff that would prohibit approval of the proposal.

Blue Mountains Local Environmental Plan 2015

The relevant local environmental planning instrument is the Blue Mountains Local Environmental Plan 2015 (BLEP). The subject site is in zone R2 Low Density Residential.

Zone R2 Low Density Residential
1 Objectives of zone
• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To promote residential development in locations that are accessible to services and facilities.
• To ensure that development maintains and improves the character of residential areas in a manner that minimises impacts on existing amenity and environmental quality.
• To allow a range of non-residential land uses that are consistent with the predominant scale and height of adjoining buildings and do not unreasonably detract from the amenity of adjacent residents.
2 Permitted without consent
Environmental protection works; Home businesses; Home occupations
3 Permitted with consent
Bed and breakfast accommodation; Building identification signs; Business identification signs; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Environmental facilities; Exhibition homes; Flood mitigation works; Group homes; Health consulting rooms; Home-based child care; Hospitals; Hostels; Information and education facilities; Neighbourhood shops; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Public administration buildings; Recreation areas; Respite day care centres; Roads; Seniors housing; Tank-based aquaculture
4 Prohibited
Any development not specified in item 2 or 3

Of the objectives, that in the fourth dot point is the focus of concern in this matter. Dwelling houses are identified as being permitted with consent. The development applied for is not for a dwelling house, but it is development for the purpose of a dwelling house, and is therefore permissible with consent.
Clause 5.10 of BLEP addresses heritage:

5.10 Heritage conservation
Note—
Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Map as well as being described in Schedule 5.
(1) Objectives The objectives of this clause are as follows—
(a) to conserve the environmental heritage of the Blue Mountains,
(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,
(c) to conserve archaeological sites,
(d) to conserve Aboriginal objects and Aboriginal places of heritage significance.

(2) Requirement for consent Development consent is required for any of the following—
(a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance)—
(i) a heritage item,
(ii) an Aboriginal object,
(iii) a building, work, relic or tree within a heritage conservation area,

(b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item,
(c) disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed,
(d) disturbing or excavating an Aboriginal place of heritage significance,
(e) erecting a building on land—
(i) on which a heritage item is located or that is within a heritage conservation area, or
(ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance,

(f) subdividing land—
(i) on which a heritage item is located or that is within a heritage conservation area, or
(ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance.

(3) When consent not required However, development consent under this clause is not required if—
(a) the applicant has notified the consent authority of the proposed development and the consent authority has advised the applicant in writing before any work is carried out that it is satisfied that the proposed development—
(i) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or archaeological site or a building, work, relic, tree or place within the heritage conservation area, and
(ii) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place, archaeological site or heritage conservation area, or

(b) the development is in a cemetery or burial ground and the proposed development—
(i) is the creation of a new grave or monument, or excavation or disturbance of land for the purpose of conserving or repairing monuments or grave markers, and
(ii) would not cause disturbance to human remains, relics, Aboriginal objects in the form of grave goods, or to an Aboriginal place of heritage significance, or

(c) the development is limited to the removal of a tree or other vegetation that the Council is satisfied is a risk to human life or property, or
(d) the development is exempt development.

(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 or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).
(5) Heritage assessment The consent authority may, before granting consent to any development—
(a) on land on which a heritage item is located, or
(b) on land that is within a heritage conservation area, or
(c) on land that is within the vicinity of land referred to in paragraph (a) or (b),

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.
(6) Heritage conservation management plans The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause.
(7) Archaeological sites The consent authority must, before granting consent under this clause to the carrying out of development on an archaeological site (other than land listed on the State Heritage Register or to which an interim heritage order under the Heritage Act 1977 applies)—
(a) notify the Heritage Council of its intention to grant consent, and
(b) take into consideration any response received from the Heritage Council within 28 days after the notice is sent.

(8) Aboriginal places of heritage significance The consent authority must, before granting consent under this clause to the carrying out of development in an Aboriginal place of heritage significance—
(a) consider the effect of the proposed development on the heritage significance of the place and any Aboriginal object known or reasonably likely to be located at the place by means of an adequate investigation and assessment (which may involve consideration of a heritage impact statement), and
(b) notify the local Aboriginal communities, in writing or in such other manner as may be appropriate, about the application and take into consideration any response received within 28 days after the notice is sent.

(9) Demolition of nominated State heritage items The consent authority must, before granting consent under this clause for the demolition of a nominated State heritage item—
(a) notify the Heritage Council about the application, and
(b) take into consideration any response received from the Heritage Council within 28 days after the notice is sent.

(10) Conservation incentives The consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance, even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that—
(a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and
(b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and
(c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and
(d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and
(e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area.

Of the objectives, cl 5.10(1)(b) is at the heart of the matter. (Objective (1)(a) is overarching but (1)(b) provides a particular focus).
Subclause 5.10(4) states that the consent authority cannot grant consent without having considered the effect on the heritage significance of the proposed development and subcl 5.10(5) requires a heritage management document be prepared to assess the extent to which the proposed development would affect heritage significance.
‘Heritage management document’ is defined in the Dictionary to BLEP as:

(a) a heritage conservation management plan, or
(b) a heritage impact statement, or
(c) any other document that provides guidelines for the ongoing management and conservation of a heritage item, Aboriginal object, Aboriginal place of heritage significance or heritage conservation area.

A ‘heritage conservation management plan’ means:

a document prepared in accordance with guidelines prepared by the Public Service agency responsible to the Minister administering the Heritage Act 1977 that documents the heritage significance of an item, place or heritage conservation area and identifies conservation policies and management mechanisms that are appropriate to enable that significance to be retained.

‘Heritage impact statement’ is defined as:

a document consisting of—
(a) a statement demonstrating the heritage significance of a heritage item or heritage conservation area, and
(b) an assessment of the impact that proposed development will have on that significance, and
(c) proposals for measures to minimise that impact.

The Respondent explained the operation of cl 5.10 thus:

“You will see the way that this clause operates, Commissioner. There's no requirement or no absolute requirement to provide a heritage management document in order for there to be power to approve an application. So it's not a jurisdictional prerequisite or a condition precedent to the approval of an application in the sense that other matters of satisfaction are. But it's a discretionary matter where a consent authority may require a document of that kind to be provided before any consent is granted.
But subclause (4) is the clause that is largely in contest in this particular matter in terms of assessing the development and the proposed development and the effect of the proposed development on the heritage significance of the heritage conservation area. That's in essence what the evidence has been directed at, although there is some reference in the evidence to the failure to provide what might be described as an updated or a relevant heritage impact statement that related to the current proposal.
COMMISSIONER: Could you just repeat that last statement, Mr Seton, in relation to the heritage impact statement? I couldn't hear you. I'm sorry.
SETON: Yes. I was saying, so far as the council's concerned with subclause (4), that is the relevant matter that needs to be considered. In relation to the provision of heritage impact system, there is some discussion in the joint report as to whether the statement that was provided originally is either sufficient or relates to the current proposal. But that's where it's left. The document that was provided relates to an earlier iteration or an earlier development, not the current development.
But it's not a condition precedent or a jurisdictional matter that would prevent the approval of the application in the sense that other conditions precedent that I've already identified can and may do. In that sense, it's a discretion for the consent authority to require that kind of statement to be provided. If one is not provided, it doesn't mean that the consent authority must refuse the application.”
(Tcpt, 19 November 2021, p 14(5-37))

Clause 6.4 of BLEP states:

6.4 Protected area—slope constraint area
(1) The objectives of this clause are as follows—
(a) to restrict the development of land that has contiguous areas of slope greater than 20% or physical characteristics that render the land inappropriate for development,
(b) to ensure that development on land that has contiguous areas of slope greater than 20% is designed and sited to minimise vegetation clearing and soil disturbance,
(c) to encourage the retention, restoration and maintenance of disturbed native vegetation on steep land.

(2) This clause applies to land that has a contiguous area of slope exceeding 20% and that is identified as “Protected area—Slope constraint area” on the Natural Resources—Land Map.
(3) Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that—
(a) all existing native vegetation situated outside any part of the land required for the development will be retained and appropriate measures will be incorporated to facilitate the maintenance of such vegetation, and
(b) the development will incorporate measures to regenerate any native vegetation that has been cleared from land to which this clause applies that does not form part of the site of any existing or proposed development, and
(c) the development will not have any adverse impact on the rate, volume or quality of water running off the land, and
(d) a geotechnical report prepared by a suitably qualified person demonstrates that the soil characteristics and structural elements of the land are suitable for the proposed development, and
(e) the development cannot practicably be located on land other than the land to which this clause applies.

(4) In determining whether the development can practicably be located on land other than the land to which this clause applies, the consent authority must consider the following—
(a) the design, type and site coverage of the proposed development, and
(b) the physical characteristics of the land on which the development is proposed to be carried out, and
(c) the suitability of the land for the proposed development.

The Natural Resources - Land Map is at folio 281 in Ex 2. The map shows that a slope-constrained area is mapped as part of the subject site - in the northern third, but not extending as far as the boundary. For cl 6.4 to be applicable, the slope needs to exceed 20%, and the area of slope-constrained land has to have been mapped. The scale of the map in folio 281 is such as to make it very difficult to determine immediately whether the proposed development falls within the mapped area. The parties agreed that the proposed development did not extend into the slope-constrained area so that cl 6.4 consideration was not triggered and no jurisdictional issue arose. The existed dwelling house was largely within the mapped area (Tcpt, 19 November 2021, p 26(31-39)).
Clause 6.9 of BLEP states:

6.9 Stormwater management
(1) The objective of this clause is to avoid the adverse impacts of urban stormwater on land on which development is located and on adjoining properties, native bushland and receiving waters.
(2) Development consent must not be granted for development unless the consent authority is satisfied that the development—
(a) incorporates best practice water sensitive urban design principles, and
(b) is designed to maximise the use of water permeable surfaces on the land having regard to groundwater levels and the soil characteristics affecting on-site infiltration of water, and
(c) includes, if practicable, on-site stormwater retention for reuse as an alternative supply to mains water, groundwater or river water, and
(d) avoids any adverse impacts caused by stormwater runoff on adjoining properties, native bushland and the receiving natural environment by ensuring that—
(i) the quality of surface water or groundwater leaving the site is not reduced in the short or long term, and
(ii) the quantity and flow characteristics of stormwater leaving the site is not adversely altered, and
(iii) stormwater treatment and disposal methods achieve adequate filtration, absorption, dissipation and scour protection, and

(e) integrates stormwater management measures into the landscape so as to provide a neutral or beneficial effect on environmental and water quality protection, stormwater retention and detention, flood mitigation, landscaping, public open spaces and recreational and visual amenity.

Subclause 6.9(2) potentially gives rise to a jurisdictional issue. However, the management of drainage and runoff also arose in relation to the water catchment aspects of SEPP B&C, and I am satisfied that as a consequence of satisfying the requirements of SEPP B&C that requirements of cl 6.9(2) will not be contravened.
Clause 6.17 of BLEP requires consideration of landscape:

6.17 Consideration of character and landscape
(1) The objective of this clause is to promote the design of residential properties that are consistent with, or enhance, the established character of the buildings, gardens and streetscapes of the villages in the Blue Mountains.
(2) This clause applies to land in a residential or environment protection zone.
(3) Development consent must not be granted for development on land to which this clause applies unless the consent authority has considered the following—
(a) the scale and massing of any proposed building,
(b) the use of building materials, including colours and finishes, and the proposed development’s compatibility with the characteristics of the site and the locality,
(c) the building form and design, ensuring that the building is articulated and varied, and provides a fine-grained residential built form, an individual dwelling identity and street address,
(d) the location of buildings on the lot and the relationship of the building to the public street,
(e) measures to minimise any potential impacts on the amenity of any adjoining residents,
(f) the capacity of the building design, where possible, to encourage active street frontages,
(g) whether the garden setting establishes a standard of presentation that is comparable with adjacent dwellings and parks, or the immediate landscape setting.

The application does not involve changes to the appearance of the dwelling house, but does propose works which will affect the relationship of the building to the public street. Subclause 6.17(3)(g) is a particular relevance.
Subclause 6.17(3) requires the consent authority consider the matters in subcl (3)(a)-(g). This requires assessment of the merits of the proposal, but does not set particular standards which have to be met.
The proposal was referred internally within Council for assessment and advice. This generated responses from some sections of the Council, recommending refusal of the proposal. As a consequence, the application was refused. After the Applicants appealed that decision there were conferences between relevant Council officers and the Applicants’ experts resulting in three joint reports (Exs 3, 4 and 5).
The internal referrals had also included the Council engineers, who did not recommend refusal, and that their concerns could be addressed by conditions. (Ex 2 ,Tabs 4 and 16).

Contentions

An amended statement of facts and contentions (ASOFC), filed on 3 November 2021, became Ex 1.
The contentions where identified as:

Landscape character

“The development application should be refused because the proposed development will have an adverse impact on the established landscape setting and visual amenity of the site and surrounding streetscape.
Particulars
(a) Clause 6.17 of BLEP 2015 relevantly provides as follows:
‘6.17 Consideration of character and landscape
(1) The objective of this clause is to promote the design of residential properties that are consistent with, or enhance, the established character of the buildings, gardens and streetscapes of the villages in the Blue Mountains.
(2) This clause applies to land in a residential or environment protection zone.
(3) Development consent must not be granted for development on land to which this clause applies unless the consent authority has considered the following—
…
(b) the use of building materials, including colours and finishes, and the proposed development’s compatibility with the characteristics of the site and the locality,
…
(e) measures to minimise any potential impacts on the amenity of any adjoining residents,
…
(g) whether the garden setting establishes a standard of presentation that is comparable with adjacent dwellings and parks, or the immediate landscape setting.’

(b) The proposed development includes the removal of a mature conifer tree at the eastern end of the front setback to accommodate a new car parking space. The new parking space is proposed on part of the site that has a significant cross fall, and significant filling of the land together with construction of retaining walls to a height of 1200mm is proposed so as to create a level concrete slab on the steeply sloping gradient.
(c) The tree proposed to be removed is in good health, has good form, is free of structural defects and disease, does not impact on the structure of the dwelling house and has a long life expectancy. The removal of the tree is therefore not justified by reason of its health or structural condition.
(d) The tree has an estimated height of 9 metres and crown spread of 8 metres and is a visually prominent element with linkages to conifers of similar types in the streetscape.
(e) The tree therefore contributes significantly to the established landscape setting and visual amenity of the site and the streetscape, as well as to the heritage values of the Katoomba South HCA (as outlined in Contention 2).
(f) The proposed compensatory planting of a single deciduous tree, Acer campestre ‘Elsrijk’, does not, and cannot, achieve an equivalent standard to the existing landscape setting within the short term.
(g) The loss of the tree as a significant landscape element and the introduction of a driveway and elevated parking space will adversely impact upon the established landscaped setting and visual amenity of the site and the streetscape.
(h) The proposed development is not consistent with and does not enhance the established character of gardens and streetscapes in the locality.
(i) The proposed development is inconsistent with the aim stated at clause 1.2(2)(j) of BLEP 2015 because it does not:
‘… identify and conserve the diverse built and landscape elements that contribute to the character and image of the Blue Mountains’.

(j) The adverse impact of the proposed development on the landscape character of the site and streetscape is also inconsistent with the following objectives and controls in BDCP 2015:
(i) Objective O3 in Part B2.3.1 in Part B of BDCP 2015 relating to setbacks:
‘O3. To ensure that the design and location of buildings responds to individual site constraints and minimise site disturbance and clearing of vegetation.’

(ii) Objective O2 in Part B3.2.1 in Part B of BDCP 2015 relating to context considerations in single dwelling designs:
‘O2. To retain, conserve and enhance the setting and character of streetscapes and the contribution of significant natural and cultural features.’

(iii) Landscaping Objectives O1, O2 and O3 in Part C3.1 in Part C of BDCP 2015:
‘O1. To ensure that landscaping preserves and contributes to the visual amenity of the Blue Mountains and the existing and past cultural landscape.’
‘O2. To promote the use of a landscaping style which reflects and reinforces the character of the locality and the maintenance of any aesthetic, cultural, scientific and biodiversity values which apply to the site.’
‘O3. To encourage the retention of trees and other vegetation which are of ecological, aesthetic and cultural significance, through the integration of these features into the landscape.’

(iv) Controls C1, C2, C4 and C5 in Part C3.3 in Part C of BDCP 2015 relating to retention and protection of trees and other vegetation:
‘C1. Development should minimise the removal of mature vegetation and site disturbance, and wherever practicable, existing established indigenous or other desirable landscape trees and other vegetation are to be prioritised for retention and incorporation into the landscape design.’
‘C2. Vegetation retention is to consider resilience. Healthy, structurally sound and undamaged trees and other vegetation are to be the first priority for conservation within proposed landscape areas.’
‘C4. Existing street front and road reserve plantings and remnant vegetation are to be conserved except where their removal is necessary for site access via a single road opening, which is to be located so as to minimise vegetation loss.’
‘C5. Where the removal of landscape features which contribute to the streetscape or character of the locality is required to enable development, their loss is to be adequately compensated by replanting, subject to:
(a) whether site conditions permit replanting, and
(b) the necessity for further planting, having regard to the overall retention of trees and vegetation on the development site.’

(v) Objective O1 in Part F1.1.6 in Part F of BDCP 2015 relating to driveways and parking in low density residential development:
‘O1. To ensure that low-density residential development provides sufficient and convenient parking for residents without compromising streetscape appearance or traffic safety and function.’

(vi) Controls C4 and C13 in Part F1.1.6 in Part F of BDCP 2015:
‘C4. Driveways are to be positioned so that on-street parking and landscaping on the site is maximised, and removal or damage to existing street trees is avoided.’

The numerous particulars related to cl 6.17 of BLEP 2015.
In summary the contention addressed the removal of the Chamaecyparis tree, the construction of a new vehicle crossing from the street and the construction of a hard standing in front of the dwelling.
Contention 2 related to heritage aspects and the provisions of cl 5.10 of BLEP and the relevant provisions of the DCP.

“The development application should be refused because the proposed development will have an unacceptable adverse impact upon the heritage significance of the Katoomba South HCA.
Particulars
(a) Clause 5.10 of BLEP 2015 provides as follows:
‘5.10 Heritage conservation
(1) Objectives The objectives of this clause are as follows—
(a) to conserve the environmental heritage of the Blue Mountains,
(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,
…

(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 or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).’

(b) Clause 1.2 of BLEP 2015 provides the following relevant aims:
‘(e) to conserve and enhance, for current and future generations, the ecological integrity, environmental heritage and environmental significance of the Blue Mountains,
(f) to identify and conserve the distinct Aboriginal and European cultural heritage of the built forms and landscapes of the Blue Mountains,’

(c) Part D of BDCP 2015 contains the following relevant objectives and controls:
(i) Objective O1 in Part D1.4.2 in Part D of BDCP 2015 relating to development in HCAs:
‘O1. To ensure that new development does not adversely impact upon the setting, streetscape or views associated with any heritage conservation area.’

(ii) Controls C1 and C2 in Part D1.4.2 in Part D of BDCP 2015:
‘C1. Development to contributory and neutral buildings within a heritage conservation area is to be consistent with the general heritage controls in D1.9 Development controls for heritage properties and D1.10 Specific building elements of this part, and where applicable, the specific heritage conservation area controls in D1.11 Specific heritage conservation areas of this part.
C2. Development is to respect the streetscape values. This includes:
…
(c) views between houses to the garden area beyond, and
(d) well-planted front gardens…’

(iii) Objectives O1, O3 and O4 in Part D1.9.4 in Part D of BDCP 2015:
‘O1. To protect the setting of heritage items and significant places and properties within heritage conservation areas.’
‘O3. To retain original plantings and landscape elements that are of heritage significance and contribute to the setting of items and conservation areas.’
‘O4. To promote landscaping that is consistent with the character of individual buildings and groups of buildings, and with the character of heritage conservation areas.’

(iv) Controls C2, C3, C4 and C7 in Part D1.9.4 in Part D of BDCP 2015:
‘C2. Original garden settings, remnants of gardens and individual plantings are to be retained, particularly where visible from the public domain or noted within an approved conservation management plan or heritage inventory sheet.’
‘C3. New work is not to result in the loss of significant garden plantings or garden areas whether directly or through loss of sunlight or access to groundwater.’
‘C4. Significant trees are to be retained in place.’
‘C7. Where mature trees or landscaping require removal to enable development, compensatory replanting with trees and landscaping of equivalent stature and landscape function is to be provided.’

(v) Objectives O1 and O2 in Part D1.10.8 in Part D of BDCP 2015 relating to car parking and garages:
‘O1. To ensure that significant buildings, rather than vehicular access and parking structures, remain the dominant element in the streetscape.’
‘O2. To ensure that the design of garages, carports, driveways, fences and gates are sympathetic in their location, form, materials and details to the setting of nearby buildings.’

(vi) Controls C3, C4, C6 and C7 in Part D1.10.8 in Part D of BDCP 2015:
‘C3. Driveways should be formed of two wheel tracks wherever possible to reduce visual impact on the conservation area and setting of the building.
C4. Car parking should not be constructed in mature gardens at the expense of the landscape setting.
C6. Garage design and external materials are to be compatible with and sympathetic to the primary building style.
C7. Driveways are not to be surfaced with bright white, stamped or patterned concrete.’

(d) The subject property contains a contributory inter-war building within the Katoomba South HCA.
(e) The proposed development has an adverse impact on the heritage significance of the Katoomba South HCA and is inconsistent with the various objectives and controls cited above for the following reasons:
Removal of mature tree
(i) The proposal has an adverse impact on the visual catchment within the HCA by the removal of a mature tree and garden setting that contributes positively to the landscape setting of the site and the streetscape, as outlined in Contention 2.
(ii) The removal of a mature healthy tree will also compromise the values of the HCA as defined in the statement of significance.
(iii) In this regard, the Heritage Inventory Data Sheet specifically identifies that the conifer planting in the front garden is a typical contributory garden, landscape and streetscape element that has heritage significance. Tall growing mature conifers of a similar size to the tree proposed to be removed can be found along Waratah Street and other streets in the vicinity that contribute positively to the collective values of the HCA.
Design of new driveway and parking area
(iv) The new driveway crossing is proposed to be located at the steepest corner of the site, which is the least favourable location for a driveway crossing. The existing driveway crossing is well established and has a comfortable, usable gradient, whereas the proposed crossing will require substantial building up of the ground level to provide for the new parking space.
(v) The significant road entry works for the new driveway represent a significant degree of change and will be highly noticeable within the streetscape.
(vi) The reinstatement of the original parking space would have a better heritage outcome for the site than the significant new works, and should be the preferred option.

(f) In summary, the loss of the tree as a significant landscape element and the introduction of a driveway creating a new crossing and parking space weaken the integrity and authenticity of the heritage conservation area.”

Contention 3 raised the suitability of the on-site parking.

“The development application should be refused because it has not been adequately demonstrated that the proposed parking space is more suitable or has lesser impacts than the existing on-site parking space.
Particulars
(a) As outlined in Contentions 1 and 2 above, the proposed development will have an adverse impact upon the landscape character and heritage significance of the Katoomba South HCA.
(b) The retaining wall is proposed to be built against the existing dwelling with no separation. It has not been demonstrated that the subfloor wall of the dwelling in this location will not be subject to moisture penetration and can continue to be maintained into the future.
(c) The existing car space has been recently modified by the removal of the original two-track concrete paving. The boundary between 133 and 129-131 Waratah Street has also been heavily planted with a hedge and additional plantings. The modifications carried out in recent years are not suitable reasons to justify the addition of a car space at the north-eastern end of the property at the expense of the removal of a mature healthy conifer.
(d) The existing car parking space has dimensions of approximately 3 metres wide by 6 metres long without the recent modifications, which is sufficient to accommodate a functional parking space. The space is also located within the widest side setback with the most level gradient.
(e) The proposed new car park location has approximately similar dimensions to the original location, and therefore does not provide a better option in terms of dimensions.
(f) The reinstatement of the serviceable driveway and on-site car parking space in the current location is achievable, and will have a minimal impact on the existing landscape setting and heritage context.
(g) Having regard to the matters raised above, it has not been adequately demonstrated that the proposed parking space is more suitable or has lesser impacts than the existing on-site parking space.”

Contention 4 was Precedent:

“The development application should be refused because approval of the proposed development would set an undesirable precedent for similar inappropriate development within the Katoomba South HCA.
Particulars
(a) Having regard to the contentions raised above, the proposed development will have an adverse impact upon the landscape character and heritage values of the Katoomba South HCA.
(b) Approval of the proposed development would set a precedent for similar inappropriate developments on contributory properties and thereby further degrade the character and heritage significance of the Katoomba South HCA.”

The experts

The experts were not required for cross-examination but their joint expert reports became exhibits.

Town planning

The experts, Mr Apps for the Applicants and Mr Mercer for the Respondent addressed Contention 3.
They agreed in regard to particular (a) (adverse impact on landscape character and heritage significance) to defer to the Landscape and Heritage experts. They agreed to the dimensions of the proposed car space. They disagreed as to the possible impact of the new parking space on the adjoining eastern neighbour. (I note no submissions had been received from neighbours].
The experts did agree that any impacts could be mitigated.

“…However, we agree that any negative visual impact of the proposed car space and a parked vehicle on it may be moderated in the long term by landscape planting within the 1.45m setback and for the depth of the building setback. This would rely on suitable plant species selection for the location, plant size at the time of planting, mature height and density, and an ongoing commitment to maintenance by the residents of 133 Waratah Street.”
(Ex 3 par 12)

Landscaping issues could be addressed by conditions, but it is important that the experts anticipated that landscaping would not be instantaneous and the plants would take time to grow.
The experts identified potential issues with the location of the proposed parking space and drainage and ventilation of the existing dwelling, but agreed that these issues could be addressed through conditions. The experts noted the without prejudice revised plans dated 18 October 2021 and agreed that these needed to be considered by the Landscape and Heritage experts.
The experts agreed that the original driveway and parking arrangements had been modified since 2016 (particular f).
I agree that the evidence demonstrates change since 2016: depending on how ‘original’ is interpreted, the date the arrangement in 2016 was established is not known. It may not have been at the time of the original construction in the early 1930s.
The experts agreed as to the dimensions of the existing car space before recent modifications (particular e)) and include a survey diagram from a surveyor’s report of the site dated 8 April 1986 in par 24 of Ex 3. Inter alia the survey diagram shows that the area of the subject site is 1005 m² although the Respondent in a number of mentions provided a larger area of 1053 m².
The experts agreed:

“We agree that the steep crossfall of Waratah Street on the southern side of the street is such that it makes getting into and out of a vehicle difficult when parked on street, and that on site car parking is of benefit to the residents.”
(Ex 3 par 26)

They also agreed that there was sufficient space between the dwelling and the western boundary to accommodate parking behind the front elevation of the dwelling, but disagreed as to whether the proposed space was a better option. They agreed that reinstatement of a serviceable driveway was possible but disagreed as to whether there would be advantages in doing so. The experts disagreed about whether the existing treatment of the western boundary was a reason to approve the proposed development.

The Applicants’ view, as expressed by Mr Apps, was:

“35. The reinstatement of the parking space on the western boundary would result in the removal of the existing hedge and pear tree. Together with the pedestrian path, that landscaping presents an attractive feature which relates well to the entry to the dwelling and as such there is a functional and aesthetic value to that existing boundary treatment.
36. Alternatively, one could retain the landscaping by moving the parking space across however this would require removal of part of the patio. This is the preferred option of BM as it would allow the boundary planting to be retained, at least in part. This option would also require widening of the crossover of the footway and the construction of new stairs to the patio. I find both options to be invasive.
37. The above scenarios are illustrated in the option plans at Appendix C.
38. Noting the crossfall of the street, the dwelling would benefit from an off-street carparking space.
39. Reinstating the car space against the western boundary would result in the removal of the landscaping and the parking space abutting the boundary and the parking space on 131 Waratah Street. In my opinion, this is a lesser outcome than the proposed car parking space for the following reasons:
i. The location of the car space on the lower side of the site is visually less obtrusive than the space on the western side. While I agree that a car space could be provided alongside the western elevation of the dwelling rather than in front, it remains that the existing landscaping would need to be removed.
ii. The proposal allows for a 1450mm setback from the side boundary which can be landscaped;
iii. The landscaping along the western boundary screens between the windows of the dwelling on 131 Waratah Street and contributes to the landscaped character of the street.

…
45. In my opinion, the proposed space has advantages over the existing space for the following reasons.
46. The proposed location is lower relative to the house and the street and therefore a vehicle would be less prominent in the proposed location, particularly noting that the original space adjoins the driveway for 131 Waratah Street and would be more visible with the loss of landscaping.
47. The proposed space achieves a side boundary setback of 1450mm which allows for new planting whereas reinstatement of the original space would result in the loss of the boundary planting.
48. The location of a car space on the lower side of the site is consistent with a number of properties within the street which likewise have their parking spaces on the lower side of the lot as shown in Appendix F.
49. The conifer is able to be replaced with planting that is in keeping with the inter-war period of the dwelling and affords summer shade and winter sun to the front of the dwelling through use of a deciduous species.
…
54. I accept the zone objective to ‘maintain and improve the character of residential areas in a manner that minimises impacts on existing amenity and environmental quality’. I do not consider that the proposal has an adverse impact merely because of the loss of the conifer. The proposal allows for the replacement planting that is in keeping with the era of the dwelling as well as maintains the landscaping along the western boundary. The replacement of the conifer with a deciduous specimen would be to the benefit of the dwelling in terms of opening the northern aspect of the dwelling and would not be out of keeping with the presentation of other front setbacks in the streetscape. I do not consider that the removal of the existing conifer and the placement of the car parking space offends that zone objective.”
(Ex 3 pars 35-39, 45-49 and 54)

The Respondent’s position articulated by Mr Mercer was:

“40. The recent supplementary planting and pathway works in the location of the original parking space, whilst attractively implemented, are of a minor scale and do not contribute significantly to the landscape character of the site. Their retention as a reason for relocating the car parking space is not justified at the expense of the removal of mature conifer which is the significantly more important landscape element. I defer to the Experts comment at paragraphs 65 and 98 of the Joint Heritage and Landscape Experts Report:
65. The Experts all agree that the subject tree contributes to the established landscape setting and visual amenity of the site and streetscape. MT and DF consider that the contribution of the tree to the landscape setting and visual amenity of the streetscape is limited to the immediate surrounds.
98. SK and DF – In our opinion, the tree contributes to the existing setting of the property and the streetscape in the immediate context. Further, the tree contributes positively during the winter months, as most of the trees in the vicinity are deciduous and the conifer contributes positively to the existing setting of this section of Waratah Street. The proposed development does not meet this objective to retain and conserve the setting and the removal of the tree will erode the existing setting of the streetscape.

41. The removal or trimming back of the border hedge planting to re-establish the parking space has no negative privacy impact to that space, and to the neighbour’s adjacent parking space, are not private open space areas and are not private from the street.
42. When considering the best landscape outcome for the site, the retention of the more substantial character element (the tree) significantly outweighs the benefit of retaining the less substantial established and recent landscape works.
…
55. In my opinion, the reinstatement of the original parking space has significant planning and functional advantages over the proposed new space, for the following reasons:
(a) The retention of the conifer as the more important landscape and character element on the site and within the heritage conservation area.
(b) The re-establishment of the original space and the presence of a parked vehicle in that space is no more intrusive on the streetscape and landscape setting than the proposed new space.
(c) The established vehicle access route between the street and original parking space has a lower and more even grade than the proposed new arrangement, and provides easier vehicle access by avoiding the steep camber of the road at the eastern of the site.
(d) The reinstatement of the original space requires less intervention and modification to the site than the proposed new space.
(e) The reinstatement of the original space requires no modification to the street and footpath levels, pavement and gutter crossing.
(f) The reinstatement of the parking space as presented in Option 1 at Appendix C allows the possibility of a future second parking space behind the building setback, as originally intended in 1999, as shown on the approved plans at Paragraph 25. The slope is no so great in this location that construction of a tandem space cannot be achieved, as shown on these plans.
(g) The original car space location is more convenient and accessible to the front door entrance of the dwelling.
(h) The site would benefit from a second future on-site car parking the space, given the difficult street parking because of the steep camber in the road on the street frontage. A second on-site parking space could also be of benefit to the resident of the secondary dwelling on site.
(i) A reinstatement of the original space as presented in Option 1 would allow for the option of future covered car accommodation behind the building setback that would comply with the setback controls in Blue Mountains Development Control Plan 2015 Part B2.3.1 C3(b) and Part F1.1.6. The proposed new parking space offers no ability to comply with the building setback control in Blue Mountains Development Control Plan 2015 Part B2.3.1 C3(b) for any future carport or garage.
(j) When comparing the benefits of re-establishing the original parking space vs the proposed new space, the former better meets the fourth objective of Zone R2 which is ‘to ensure that development maintains and improves the character of residential areas in a manner that minimises impacts on existing amenity and environmental quality’.”

(Ex 3 pars 40-42 and 55)

I note that in the current form of the proposal there is no intention of the Applicants to seek covered parking, nor to provide a second parking space as suggested by Mr Mercer in par 55.
In relation to Contention 4 the parties agreed:

“We agree that each development application should be decided on its own merits and circumstances and that a decision in one application does not influence a decision in another application.”
(Ex 3 par 58)

The experts summarised their positions:

Mr Apps:

“61. It is my view that each application must be considered on its individual merits having regard to the individual circumstances of the site and the proposal. While I agree that a consent authority should not allow poor development outcomes and certainly should not continue to repeat that outcome, I do not consider the proposal to be ‘inappropriate’ as framed in the contention. The experts have each made their positions clear on the merits of the development.
62. Should the Court grant consent to this development, Council should view the decision as being one made having regard to the circumstances of this case only.
63. Should anyone else seek to carry out a parking space on a property within a HCA that involves the loss of a tree, Council must have regard to the significance and health of that tree as well as other impacts of the parking space, including heritage and engineering. This application is not one that need be considered in the assessment of another application and as such I disagree that approval of this application will carry any precedent weight that will result in the character and significance of the HCA being ‘degraded’.”
(Ex 3 pars 61-63)

Mr Mercer:

“64. The location of parking spaces within the front building setback is the exception rather than the rule in the immediate vicinity and the wider heritage conservation area. The historically established precedent is a driveway to a parking space or freestanding garage behind the dwelling, evident on most properties in the area. This was the likely original arrangement for 133 Waratah Street given the 3m western side boundary setback, but then later abandoned, perhaps due to the site slope.
65. The existing and proposed development follow the precedent set by the few other properties in the area with like arrangements. It is not known whether development consent was obtained for those particular parking arrangements on any of these properties.
66. In my opinion, the proposed new car parking space is not the optimal outcome for the site, as outlined in my comments at Paragraph 55. Permitting development for a less optimal outcome, when a much better outcome is clearly achievable, would set an undesirable precedent.”

No historical evidence was presented as to the original arrangements when the dwelling was built. The suggestion as to likely original arrangement in par 64 is possible, but, in the absence of support it is speculation.

The HCA

The HCA is identified in Pt 2 of Sch 5 of BLEP, as Item K168. The map of the HCA is folio 278 in Ex 2.
Application of BLEP is guided by the Blue Mountains Development Control Plan 2015 (BDCP). Relevant extracts of BDCP Amendment 2 (December 2018) were behind Tab 26 of Ex 2.
Discussion of European heritage planning is introduced in Part A of BDCP:

“European heritage planning
The towns and villages of the Blue Mountains have many exceptional heritage properties with high cultural significance. The significance of these properties can relate to historic events, activities or people and to the fine quality of the architecture or layout of gardens. Some heritage listings relate to the prominence of the railway, religious buildings, even natural rock formations or valleys. There are also nineteen heritage conservation areas. These conservation areas have an intact character, quality and consistency of streetscape. They consist of historic town centres and residential neighbourhoods. The buildings within the conservation areas often have high representative value as excellent examples of their type.
These heritage items and heritage conservation areas are listed in Schedule 5 of LEP 2015 and are identified on the accompanying Heritage maps. The objectives and controls for heritage are identified in LEP 2015 clause 5.10 (Heritage conservation). This DCP provides further supporting controls and objectives Part D1.”
(A1.8.2 pp 14-15)

Landscaping objectives are provided in Part C 3.1

“C3.1. Landscaping
Objectives
O1. To ensure that landscaping preserves and contributes to the visual amenity of the Blue Mountains and the existing and past cultural landscape.
O2. To promote the use of a landscaping style which reflects and reinforces the character of the locality and the maintenance of any aesthetic, cultural, scientific and biodiversity values which apply to the site.
O3. To encourage the retention of trees and other vegetation which are of ecological, aesthetic and cultural significance, through the integration of these features into the landscape.
O4. To provide adequate landscaping in accordance with the type, scale, location and land use zone of the proposed development.
O5. To ensure that landscaping is designed, constructed and maintained to appropriately manage the interface between the natural landscape and the urban environment, in a manner consistent with the sustainability of the Blue Mountains ecological systems and biodiversity and the need to protect life and property from bush fire.
O6. To minimise the potential harm to fauna and flora habitat areas and ecological processes through the selection of non-invasive plant material as a first choice for landscaping in all land use zones.
O7. To ensure that landscaping does not unreasonably interfere with the liveability and/or solar access to buildings or open space areas on adjoining properties.
O8. To promote climate change adaptation through landscape design which minimises water use, provides for microclimate modification, consolidates and interconnects vegetation, habitat and waterways, is resilient to storms and minimises bushfire risk.
Part C3 - Figure 1: “It is possible to beautify almost any area, whatever shape or size, with a garden”. Ellis Stones”

Controls for retention and protection of trees form part C3.3:

“C3.3. Retention and protection of trees and other vegetation
Explanation
The retention of established trees and other vegetation on development sites contributes to the conservation of existing landscape amenity, the retention of habitat components within the urban setting, and may reduce the overall environmental impact of new development.
Controls
C1. Development should minimise the removal of mature vegetation and site disturbance, and wherever practicable, existing established indigenous or other desirable landscape trees and other vegetation are to be prioritised for retention and incorporation into the landscape design.
Note: Trees and landscape settings within conservation areas or heritage items may require special consideration for retention. Refer to D1.9.4 Curtilages, settings, gardens and landscape settings, and C5.3.
C2. Vegetation retention is to consider resilience. Healthy, structurally sound and undamaged trees and other vegetation are to be the first priority for conservation within proposed landscape areas.
C3. Consideration is to be given to the retention of trees in groups wherever it is possible to do so, as this generally provides increased resistance to storm events.
C4. Existing street front and road reserve plantings and remnant vegetation are to be conserved except where their removal is necessary for site access via a single road opening, which is to be located so as to minimise vegetation loss.
C5. Where the removal of landscape features which contribute to the streetscape or character of the locality is required to enable development, their loss is to be adequately compensated by replanting, subject to:
(a) whether site conditions permit replanting, and
(b) the necessity for further planting, having regard to the overall retention of trees and vegetation on the development site.

Note: Species selected to meet compensatory tree planting requirements should generally be of an equivalent stature (particularly height at maturity) to the landscape elements removed.
Part C3 - Figure 2: Streetscape trees: Tall streetfront trees with strong architectural form may enhance the amenity of the locality and contribute significantly to the neighbourhood character.
C6. Cut and fill and other soil modification is to be avoided in locations where vegetation and trees are to be retained. Where this cannot be avoided, an Arboricultural Impact Assessment is to be submitted which provides an assessment of the safe useful life expectancy (SULE) of that vegetation as it is affected by the proposal.
C7. Provision is to be made for the adequate protection of existing trees and vegetation to be retained. Exclusion zone fencing and any other measures determined to be necessary to ensure their protection during construction, are to be detailed on a landscape plan or similar documentation.
Note: A Tree Removal and Retention Plan or an Arboricultural Survey Report of existing trees on the development site and/or on lands which immediately adjoin the development area may be required. This may be necessary to determine the viability and suitability of trees for retention in the landscape, and in order to determine the extent of tree protection required.”

The proposal does not involve removal of road reserve plantings or remnant vegetation although it does involve removal of an existing tree at the front of the property in the south-eastern corner (see control C4).

“Commissioner, that particular provision, C4, is part of the crux of the council's case in this particular matter. That is not met or it is in fact contravened by this particular application in circumstances where an alternative solution that meets the objectives has not been put forward.”
(Tcpt, 19 November 2021, p 19(46-49))

Heritage conservation areas are discussed in Part D1.4

“D1.4.1. Understanding conservation areas
The heritage conservation areas of the Blue Mountains are listed in Schedule 5 of LEP 2015 and identified on the LEP 2015 Heritage Map. Heritage conservation areas are significant for the following values in particular:
• streetscape character
• cohesive groups of buildings and/or a quality or diversity of architectural style which provide collective interest and value
• coherence of natural and built elements both public and private that create a sense of place

Individual heritage inventory sheets have been prepared for each heritage conservation area. These provide basic background information about the history of the area, a description of the area, and an assessment of the various heritage values. These heritage inventory sheets should be referred to early in the development process. They are also required to be considered when preparing a heritage management document for submission to Council with a development application. The inventory sheets are available from Council and are also on the OEH website. The information in the heritage inventory sheets will be considered by Council as part of its assessment of development applications.
Buildings within heritage conservation areas can be recognised as being contributory, neutral or uncharacteristic to the heritage conservation area. Council has not formally recognised individual properties as being within a particular category: the category is to be identified on a case-by-case basis.
Contributory buildings (sometimes also called significant buildings) are defined as buildings or elements that make an important contribution to the character and significance of a heritage conservation area. They have a reasonable to high degree of integrity and date from a significant historical or key period of development within the conservation area. They range from highly or substantially intact to altered yet recognisable and reversible. They are generally not listed as heritage items, as they usually only have moderate historic and aesthetic significance. The value in identifying them is to acknowledge their individual contribution to streetscape values within a conservation area, and manage the retention of those values.

“If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:
(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and
(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and
(c) may consider those provisions only in connection with the assessment of that development application.
In this subsection, standards include performance criteria.”

The Respondent also drew attention to what the Chief Judge had said in Saffioti v Kiama Municipal Council [2019] NSWLEC 57:

“27 Thirdly, the Commissioner was not obliged, by considerations of procedural fairness, to give Ms Saffioti an opportunity to provide reasonable alternative solutions that achieve the objects of the controls that the Commissioner found had not been met. The “reasonable alternative solutions” referred to in s 4.15(3A)(b) of the EPA Act are alternative solutions embodied in the development that is the subject of the development application. The development might not comply with certain of the standards set by the provisions of a development control plan with respect to aspects of the development but nevertheless the development might provide an alternative solution that does achieve the objects of those standards. If so, the consent authority is directed by cl 4.15(3A) ‘to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development’.
28 The onus is on the applicant for development consent to proffer, in the development application for the development, the alternative solutions that achieve the objects of the standards for dealing with the relevant aspects of the development. The consent authority can then evaluate whether the proffered alternative solutions are ‘reasonable alternative solutions’ that do ‘achieve the objects of those standards for dealing with that aspect of the development’.”

The approach a consent authority should apply in relation to DCPs during the assessment process what was described by Spigelman CJ in Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 at [74]- 75]:

“74 A development control plan is not an ‘environmental planning instrument’. (See definition in s4). Accordingly, the requirement in s80(2) that a consent authority “must refuse” an application that would ‘result in a contravention of’ such an instrument does not apply to a development control plan. Furthermore, the proscription, by s76B, of any development prohibited by an environmental planning instrument, does not extend to a prohibition in a development control plan. Nor can such a plan contain a “non-discretionary development standard” which, if complied with, would take away a consent authority’s discretion under s79C(2).
75 The consent authority has a wide ranging discretion - one of the matters required to be taken into account is ‘the public interest’ - but the discretion is not at large and is not unfettered. DCP 23 had to be considered as a ‘fundamental element’ in or a ‘focal point’ of the decision making process. A provision so directly pertinent to the application for consent before the Council as was cl 4.0 of DCP 23 was entitled to significant weight in the decision making process but was not, of course, determinative.”

I am required to make the BDCP a focal point in my assessment process, it is not something which can be swept aside, but flexibility can be applied where appropriate.
The circumstances in the present case are very different from those in Tomasic, in which the Tomasic brothers had applied for a new subdivision. The development application had been refused by Council for a number of reasons but one of the major ones was the driveways proposed were not consistent with the street layout and traffic network requirements of the relevant DCP, and Council submitted that the applicants had not provided sufficient justification for not complying with the DCP. If the application had been accepted it would have had wider ramifications for location of roads and operation of public transport services across a larger area than that proposed new subdivision, such that the planning framework for a wider area would be undermined. In those circumstances there were clear public policy reasons why the provisions of the DCP should have been strictly applied.
The present matter can clearly be distinguished from the circumstances in Tomasic. It involves a long existing subdivision, and the controls are required to maintain the character of a heritage conservation area which has undergone kaleidoscopic change at the local lot scale, sometimes repeatedly, over a long period. What is proposed by the Applicants does not, in an operational sense, have implications for other properties (as was the case in Tomasic) rather the question is whether what it is proposed would adversely affect the character of the area.
The HCA is a large area, which was developed over many decades. It contains buildings originally constructed at different times and reflecting the style fashionable at the time, and construction materials, some of which may no longer be available. What are now large trees would for the most part not have been large throughout the existence of the suburban area. There may possibly be a few eucalypts which were already large trees when the development commenced in the 1890s, but most of the existing canopy would have been one of only small trees when the houses whose gardens they now occupied were built, or have grown since the houses were built, either from deliberate planting or as a result of germination of seeds transported to the locality. A key element of the essence of the HCA today is the presence of the tall trees, many not indigenous to the area, forming the canopy, but they have grown over the period. Some may have been protected or planted with the intention of providing canopy cover, more than a lifetime hence, in the form of the tall trees and the canopies that we see today, but many may, like Topsy, have just grown; this is a happy and now much valued outcome but the previous owners may not have foreseen how the trees would have developed. In the distant future other trees, including of species not now present, may form the canopy.
The understorey and ground layer of the gardens will have been, and will continue to be, dynamic in both structure and composition. Across the whole HCA there are properties representing the past history of the area; there is no uniformity, and strict uniformity, although a desirable feature in some conservation areas elsewhere, would not be desirable in this context. There is no single form of garden or particular stage in garden development, which can be regarded as better than any other (although overgrowth with noxious weeds would be considered an undesirable state, and one for which provisions for control exist). The early front gardens appear to have been minimalist, but the current front gardens contain elements which may relate to different stages of development. The occurrence of a conifer is a feature of a number of houses, but not all, in the HCA. The existing conifer appears to have been planted in the 1960s, but we do not know whether there had been an earlier example of the same species or of different species from those currently present, but which were either removed or died. Dr Kasiannan considers that the interwar style of front garden is not something that should be recreated on the site but that its current form represents a form that emerged in more recent years. However, I see nothing in the BDCP which would mandate locking the current form of garden in place forever - it will change over time. Similarly, reversion to a minimalist interwar garden is inappropriate if that included removal of plants which are now significant components of the garden but would not have been used in earlier times, simply because they are more recent, without assessment of the contribution they now make. Similarly, retention of elements of earlier built form including the eastern planter bed and retaining wall, even if the original plantings have not been retained, may still complement more modern plantings, as well as providing a direct link to the past.

The tree

I agree the Chamaecyparis seems to be healthy, and removal of healthy trees is not something to be undertaken lightly. However, I do not consider that it is an original planting, given that it was planted sometime in the 1960s at the earliest. Within Waratah Street it appears to be represented by two trees, and while similar trees are said to be more common elsewhere in the HCA there is no evidence provided as to how many and where, or that they were all Chamaecyparis trees. I am not persuaded that the species is common in the HCA or that is a feature of the more recent manifestation of garden form in the broader HCA.
The tree appears to be growing slowly, and it may continue to grow for a very long time. Trees, and most perennial plants generally, show indeterminate growth both above and below ground. This differs from most animals which have determinate growth which ceases at a certain age but where the animal may survive long after growth has ceased. Plants grow throughout their life - a plant which is not growing is either dying or is dead.
The tree has a very dense canopy and is evergreen. This creates a conflict between having a large tree, and the shading of the dwelling in the winter and the inability to see out of the dwelling to the street or to see that dwelling from the street. The Respondent stresses that the tree is not obscuring the whole dwelling, but it does screen a large part of the western side of the building frontage, and from the street it prevents appreciation of the whole of the façade. Ms Friedewald suggested that if shading were a problem it could be addressed by canopy raising. There has been removal of some lower branches of the tree, but not all of them, so that has not been a raising of the whole canopy. There has also been pruning to allow power cable to pass through the canopy. The tree on the other side of Waratah Street has been uniformly raised.
Given the slow growth rate of the tree, barring a sudden spurt of growth which is not an impossibility, the time when there may be a clear unrestricted view to and from the dwelling maybe considerable.
Built form within the HCA is an integral part of the character of the HCA. The dwelling house on the subject property is agreed to date from the interwar period, and is a typical example of the form and style of buildings from that time. Appreciation of the built heritage requires that it can be seen by the public (while recognising the right for privacy); the proposal will provide an improvement of the visibility of the entire frontage of the dwelling house.
The BDCP provides conflicting advice regarding the value of visibility. The two illustrations in (see pp 37 and 38 above) depict extensive obstruction of views to and from buildings. Inclusion of these images would appear to support retention of the trees.
The Respondent refers to the tree as being mature. Unlike most animals, such as humans, with determinate growth, and in which maturity is easily recognised, for many perennial plants, maturity is a more uncertain concept; once past the sapling stage, a young tree, while having a vegetative form resembling a smaller older tree may not be reproductive for many years (in some cases decades). I did not observe reproductive structures on either the tree on the subject site, or that on the northern side of the street.

The location of the parking area and the access to it

The parties differ on the extent to which the proposal for access would be exceptional in the HCA. Council was of the opinion that access had to remain in the existing position.
The Applicants’ heritage expert, Mr Brooks, in par 200 of Ex 4 presented a table of driveway access arrangements at addresses in the section of Waratah Street which includes the subject land (the original of this table was prepared by Mr Apps and included in Ex 3). The table demonstrates that there is variation between properties. Not all the addresses have vehicle access from Waratah Street, in some of these cases there is no access provided for vehicles at all. For 135 Waratah Street, the property immediately to the east of the subject site there is no access from Waratah Street but there is access to the rear of the property from Millyard Lane.
The Applicants suggest that relocating the access for No 133 eastwards would provide a better appearance of the property when viewed from the street. Given that access from Waratah Street to No 135 would not be permitted, there would not be two vehicles side by side as would be the case if the existing arrangement for No 133 were retained, and access to No 131 remained the same, and there had been pruning of the planting on the western side of No 133 between the car space and No 131 so as to provide more room for opening car doors. The existing arrangement is shown in two photographs, taken from slightly different angles, in Ex 4. One of the images, Fig 34, was provided by the Applicants and the other, Fig 35, was provided by the Respondent. These are reproduced below with the captions as they appear in Ex 4.

Figure 11 The existing configuration steps down the topography as the street falls to the east, with a change of level at the common boundary and an ‘elevated’ car space in the adjoining front garden of the neighbouring frontage, visible from the bitumen entry ramp. This is a more dramatic relationship than what will eventuate from the current proposal. (Source: Ex 4 Fig 34)

Figure 12 Both these houses at Nos 119-121 have driveways and footpaths crossings on the lower (eastern) side of their frontage, creating a respected arrangement within the HCA. (Source: Ex 4 Fig 36)

The wording in the caption to Figure 34 - ‘dramatic relationship’ - is colourful but not hugely informative. The extent to which it might be dramatic will depend in part on the type of vehicle and its colour; in practice there would be times when there would be a vehicle parked in only one of the driveways, and times when there might be no vehicle. However, I can appreciate the point that the Applicants are making - grouping of parked vehicles could lead to greater dominance of vehicles in views. There was no evidence presented as to the parking arrangements throughout the HCA, and to assemble a complete data matrix would be time consuming. Interpretation of the matrix would be complicated as many features present may not have required approval or had been approved under previous planning schemes than the current LEP and DCP. The variation seen today across the HCA tells the history of planning and taste over more than a century, and this in itself is one of the attributes of value. Although occurrences of single conifers in a front corner or properties is a feature of the HCA, other than general statements there were no data presented as to how frequent such plantings were and whether they were more prevalent in some parts of the area, whether the size and age of these trees suggests that they may have been favourite in particular time periods. Although the Respondent referred to occurrences of similar trees in front corners there was no indication of how similar - is similarity that they are conifers or that they are from a particular set of species. Choice of what species to plant and where to plant them would be a matter for owners, there has been no role for the Council in determining where plants could be situated, except in circumstances when development consent has required a landscaping plan.
The site inspection was made during the morning of a working day, so that the number of cars parked in the street or on properties may have been less than would be likely at other times of the day or week. It was, however, notable that a number of the properties had relatively large vehicles, SUVs, utilities or vans, parked on driveways in front of the building line and in some of these cases the vehicles would not have been able to advance beyond the building line because they were too wide to move further down the side of the building.
Garages and carports are not permitted forward of the building line, but the visual impact of having large vehicles parked in front of the building line maybe almost that of a garage or carport.
Every property in the HCA will be unique in its location and the particular features (including the identity and distribution of plant species within the garden) which it displays. Nevertheless, there is an overall consistency of appearance above the buildings and gardens which confers a character on the HCA. While the arrangement of the access and hardstand proposed he's argued by the Respondent to be unacceptable, access on the down slope side other side is not unique within the HCA. The particular arrangements on sites where this is the case may have been approved prior to 2015, under previous planning schemes, but they do exist and are part of the current overall diversity within the HCA. The BDCP contains objectives which could support the proposal, even though other objectives would favour rejection.

Consideration

The establishment of the new access and hardstand is a preferences of the Applicants rather than being a necessity. Nevertheless, the proposal provides a number of benefits which could be seen to meet some of the objectives for the HCA and thus enhance the HCA.
The front garden space is of limited size, and is to the north of the dwelling. These facts provide a context for considering the suitability of the Chamaecyparis tree.
The Respondent’s experts regard the fact that the tree is evergreen as a positive advantage in the streetscape. However, this places its retention over consideration of the downside. The tree, in its present form, blocks access to the winter sun to a large part of the existing dwelling, and thus reduces the amenity to the occupiers for a significant part of the year. In addition, the heavy shade of the ground under the canopy limits the opportunity for ground cover plantings.
Even if the canopy were raised by removal of more lower branches, to apply that treatment now or in the near future would substantially reduce the amount of canopy and lower the growth rate of the tree.
If the tree were an original Cedrus or Araucaria with a much more open canopy, the case for removal of the tree would be much harder to justify. Pine trees would also develop a canopy that would be more appropriate, but if it were a P. radiata, with a propensity to shed seed widely and become invasive, there might also be a case for removal, but perhaps less strong than for the Chamaecyparis.
A Chamaecyparis, although not part of early plantings might be appropriate if it were in a much larger garden (such as to the rear of properties) where it could have sufficient space to retain the natural pyramidal form extending low to the ground, without interfering with other trees or garden elements, nor obstructing views or winter sun to the dwelling.
The Respondent’s expert make reference to the dilapidated nature of the dwelling house in 2010 (Ex 4 par 242), which was also confirmed by the photographs in Ex D, taken in 2009 and tendered by the Applicants. The appearance of the dwelling house and front fence is now greatly different, a credit to the work of the Applicants, and the ability, if the application were approved, for the public to observe almost all of the front of the building from the street would be an outcome which would be sympathetic to the objectives of the HCA in permitting appreciation of an interwar building.

The parties agreed to a revised landscape plan (marked in red in Ex E). the new plantings will never reach a size comparable with the Chamaecyparis but are in my opinion appropriate and compatible with the layout of the western side of the front garden, where features of the landscape design pre-date the current occupants, and are of unknown, but possibly considerable vintage. Planting of any, eventually very large, conifer in the front setback would not be appropriate, and the large conifers in the rear garden contribute to the overall canopy characteristic of the HCA.
The proposed development will result in changes to the appearance of the property when viewed from the street, but in my opinion would not be of such magnitude or nature to conflict with the objectives of BLEP (in cl 1.2(2)(j)). Within the BDCP, I consider that the proposal is not antithetical to Part C3 objectives O1 and O2, in O3 I do not consider that the Chamaecyparis in its present location has high ecological or cultural value in whether or not it has aesthetic value is a matter on which minds may differ, but no strong case for aesthetic value was made.
In Part C3.3, the Respondent drew attention to objectives to controls C1, C2, C4 and C5. Control C1 gives priority to retention of ‘desirable landscape trees’. As discussed above, it is questionable whether the Chamaecyparis in its context on the site would be considered desirable. For control C2, it is agreed that the tree appears to be healthy and structurally sound, but it has been unsympathetically pruned, and given the shading caused by the tree it is questionable whether it being healthy overrides other features of the tree. Control C4 gives priority to retention of the existing street front tree; as discussed above, are cogent reasons in favour of removal of this particular tree. The note to control C5 requires that ‘generally’ compensatory trees should be of an ‘equivalent stature’. Given the nature of the proposed garden setting and the proximity of the tree to the dwelling, I consider that the circumstances do not require strict adherence to C5.
In relation to Contention 2, the Respondent drew attention to objective O1 of Part D1.4.2 regarding impacts on the streetscape. While removal of the existing tree will have impacts on the streetscape, I agree with the Applicants’ experts that the impact will be from a limited range of positions. I also consider that any loss for the streetscape is outweighed by the greatly improved view of the dwelling.
In relation to the controls in Part D1.4.2, C2(c) – ‘views between the houses to the garden area beyond’ – I am of the opinion that decommissioning the existing access and hardstand will provide for better views down the side of the house, and this outweighs any impact at the eastern side. For C2(d) – well planted front gardens – the proposal, with the landscaping proposed in Ex E and the retention of features and planting towards the western boundary satisfies this control.
In Part D1.9.4, I consider that the Chamaecyparis should not be considered an ‘original’ planting, so that objective O3 is not contravened, and that the landscaping proposed is supportive of objective O4. Of the controls in Part D1.9.4, there was no evidence on water use by the Chamaecyparis, but its removal will reduce shading so that control C3 is not engaged.
Control C4 requires retention of ‘significant’ trees but as indicated above, I do not consider that the proposed tree removal breaches this control.
The proposal provides views of the street frontage so that the aim of control C5 is met. The plantings proposed in my opinion support control C6. Replanting proposed will not yield instantaneous results but nevertheless I consider that control C7 is met.
In Part D1.10.8, objective O1 seeks that ‘significant buildings’ remain dominant in the streetscape. I consider that the proposed access, in itself, does not impact in a major way, but the removal of the tree does provide a view to a ‘significant’ building (significant is not defined in the Dictionary to the BLEP, but as the dwelling house is a contributory building to the HCA, this should be treated as assigning ‘significant’ status to the dwelling house). For objective O2 – the fences and gates (and those already installed) that the Applicants have proposed are sympathetic to the view and to the period of original construction.
In regard to Contention 4 (Precedent), I agree with the planning experts that each future development application would be required to be treated on its merits, although it would be naïve to think that potential applicants might not seize upon the outcome of previous merit appeals to support their case. Past decisions may be helpful to consent authorities, but they have to be considered in their context and not treated, automatically, as an answer to a new set of circumstances.

Conditions

Proposed draft without prejudice conditions were tendered by the parties – Ex 8 by the Respondent filed 5 November 2021 and Ex C filed 12 November 2021 by the Applicants. The Applicants accepted the Respondent’s amended conditions.

“APPLICANT: Commissioner, we accept the amended draft conditions as submitted to you by Mr Seton.”
(Tcpt, 19 November 2021, p 32(22-23))

Orders

My conclusion is that there are sufficient site-specific reasons that justify upholding the appeal. Accordingly, my orders are:

The appeal is upheld.

Development consent is granted to development application X/545/2020 for the decommissioning of the original driveway at the western end of the property, removal of the Chamaecyparis obtusa tree within the front building setback, construction of new driveway entrance and parking space at the eastern end of the property, compensatory works and installation of a new vehicle access gates and a pedestrian gate within the existing front fence at 133 Waratah Street, Katoomba, subject to the conditions of consent in Annexure A.

The exhibits are returned except for 1, 2, 3, 4, 8, A, B, E and F.

…………………

P Adam

Acting Commissioner of the Court

Annexure A (216199, pdf)

**********

Endnotes

Decision last updated: 08 December 2022

Medium Neutral Citation:	Beasley v Blue Mountains City Council [2022] NSWLEC 1652
Hearing dates:	18-19 November 2021
Date of orders:	08 December 2022
Decision date:	08 December 2022
Jurisdiction:	Class 1
Before:	Adam AC
Decision:	The Court orders: (1) The appeal is upheld. (2) Development consent is granted to development application X/545/2020 for the decommissioning of the original driveway at the western end of the property, removal of the Chamaecyparis obtusa tree within the front building setback, construction of new driveway entrance and parking space at the eastern end of the property, compensatory works and installation of new vehicle access gates and a pedestrian gate within the existing front fence at 133 Waratah Street, Katoomba, subject to the conditions of consent in Annexure A. (3) The exhibits are returned except for 1, 2, 3, 4, 8, A, B, E and F.
Catchwords:	APPEAL – development application – relocation of access from public road to property – construction of hardstand for parking – removal of coniferous tree in HCA – is removal of tree justifiable – landscaping and restoration of garden – balance between amenity to residents of the property and the retention of the tree – weight given to development control plan – conditions
Legislation Cited:	Biodiversity Conservation Act 2016 Blue Mountains Local Environmental Plan 2015, cll 5.10, 6.4, 6.9, 6.17 Environmental Planning and Assessment Act 1979, ss 3.8, 4.15, 8.7 Land and Environment Court Act 1979, s 34AA State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 8 s 8.8; Ch 9 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4 s 4.6 State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997), cl 6 State Environmental Planning Policy No 55—Remediation of Land, cl 7 (repealed)
Cases Cited:	Saffioti v Kiama Municipal Council [2019] NSWLEC 57 Sutherland No. 7 Pty Limited v Ku-ring-gai Council [2021] NSWLEC 1209 Tomasic v Port Stephens Council [2021] NSWLEC 56 Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167
Texts Cited:	Chamaecyparis obtusa ‘Crippsii’. American Conifer Society, < accessed 11 November 2022 P D Tredici, ‘The Introduction of Japanese plants into North America’ (2017) 83 Botanical Review 215-252 Blue Mountains Development Control Plan 2015 Richard Ratcliffe, Australia’s master gardener: Paul Sorensen and his gardens (1990, Kangaroo Press, Kenthurst) S. Barrett, ‘The Sorensen’s Nursery Saga’ (1992) 4(2) Australian Garden History 6-7
Category:	Principal judgment
Parties:	Gerald Beasley (First Applicant) Sally Lewis (Second Applicant) Blue Mountains City Council (Respondent)
Representation:	Counsel: G Beasley (Self-represented) (Applicants) A Seton (Solicitor) (Respondent) Solicitors: Marsdens Law Group (Respondent)
File Number(s):	2021/178367
Publication restriction:	No

Discipline	Applicant	Respondent	Exhibit
Town Planning	Mr G Apps (GA)	Mr B Mercer (BM)	3
Joint Heritage and Landscape	Mr G Brooks (GB) (Heritage) Mr M Taylor (MT) (Landscape)	Dr S Kasiannan (SK) (Heritage) Ms D Friedewald (DF) (Landscape	4
Supplementary Heritage	Mr G Brooks	Dr S Kasiannan	5