Bennett v Ku-ring-gai Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

20-21 March 2023

Date of orders:

26 April 2023

Decision date:

26 April 2023

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) All exhibits except for exhibits A, C and 5 are to be returned.

Catchwords:

MODIFICATION APPLICATION – State Heritage Item – Purulia house – removal of mature tree – appeal dismissed

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15, 4.55, 8.9

Heritage Act 1977

Ku-ring-gai Local Environmental Plan 2015 Sch 5, cll 1.2, 5.10

Land and Environment Court Act 1979 s 34AA

Cases Cited:

Arrage v Inner West Council [2019] NSWLEC 85

Texts Cited:

Ku-ring-gai Development Control Plan 2023

State Heritage Register

Category:

Principal judgment

Parties:

Alex Bennet (First Applicant)
Ingrid King (Second Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
J Doyle (Applicants)
D Robertson (Respondent)

Solicitors:
Maddocks (Respondent)

File Number(s):

2022/347707

Publication restriction:

No

JUDGMENT

1. The applicants, Ingrid King and Alex Bennet, own a dwelling of state heritage significance, ‘Purulia’ in Wahroonga. The house and garden of ‘Purulia’ were designed and built in 1916 by William Hardy Wilson, a notable Australian Architect. In July 2020, the applicants applied to Ku-ring-gai Council (the respondent) to remove three trees and a swimming pool from the garden at ‘Purulia’. Consent was granted for the removal of two trees and the pool, but refused for one tree, a Himalayan Cedar (tree T3) located in the rear garden. The applicants subsequently applied to modify this development consent to remove the conditions of consent that require the retention of T3, thereby effectively requesting once more to remove this tree. The modification application 152/21 was refused and is now the subject of this appeal. These Class 1 proceedings have been brought to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. ‘Purulia’ is located at 16 Fox Valley Road, Wahroonga, Lot 1 in DP 564313. The site currently incorporates a single storey rendered brick dwelling, detached garage, a small garden pavilion and a disused in-ground swimming pool. The dwelling is listed as a Heritage Item under Sch 5 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP) and is listed on the State Heritage Register.

Figure 1: Purulia viewed from front garden. Extract from Ex 4, page 4.

3. Although the dwelling is remarkably intact as a heritage item, the garden is not, and demonstrates several departures from Wilson’s original design. These departures are described in further detail in this judgment, but broadly occur in both the front and rear garden, and range in scale and impact from incongruous planting to the removal of original garden structures, the construction of new garden structures and the truncation of the original garden by over half of its original length through subdivision (see figures 2 and 3 below).

4. Mr Doyle for the applicants submits that the intention underpinning both the original development application and…