Kangaloon Road Holdings Pty Ltd v Wingecarribee Shire Council

[2024] NSWLEC 1133

Land and Environment Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

29-30 January 2024

Date of orders:

21 March 2024

Decision date:

21 March 2024

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) All exhibits, except for A, B, C, J, H, 1 and 4, are to be returned.

Catchwords:

DEVELOPMENT APPLICATION – dual occupancy – heritage conservation area – tree removal – appeal dismissed

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15, 8.7

Wingecarribee Local Environmental Plan 2010 cll 1.2, 4.1, 4.2F, 5.10

Texts Cited:

Wingecarribee Bowral Township Development Control Plan 2021

Category:

Principal judgment

Parties:

Kangaloon Road Holdings Pty Ltd (Applicant)
Wingecarribee Shire Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
J Palmer (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2023/225042

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: Kangaloon Road Holdings Pty Ltd (the Applicant) have applied for development consent under DA23/1255 for alterations and additions to an existing dwelling, and construction of a detached dual occupancy at 33 Boolwey Street, Bowral. This Class 1 Appeal arises from the deemed refusal by Wingecarribee Shire Council (the Respondent) of this development application.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The site is located on the corner of Boolwey Street and Edward Street, Bowral, and is legally known as Lot 1, Section B of DP11838. It is situated within the Southern Residential Precinct of the Bowral Heritage Conservation Area (HCA), however is neither a heritage item nor located within the immediate vicinity of a heritage item. The site is zoned R2 Low Density under the Wingecarribee Local Environmental Plan 2010 (WLEP), within which the proposed development is permissible with consent.

4. The site currently contains a single storey dwelling and separate double garage, with an established, albeit overgrown garden containing numerous mature trees of varying species.

5. There are no matters of jurisdiction in contention between the parties and subsequently, the remaining issues are ones of merit. These issues may be grouped as:

1. Contention 1: The impact on the character of the HCA. The Respondent contends that the proposed dual occupancy will have an unacceptable impact on the character of the HCA in the locality of the subject site. The particulars focus on the following key aspects of the HCA:

1. The subdivision pattern

2. The adequacy of the Heritage Impact Statement (HIS)

3. The built form

4. The ratio of built form to landscape

5. The setback to Boolwey Street

6. The mature landscape setting

2. Contention 2: The impact of the removal of two trees, T15 and T19.

3. Contention 3: The public interest.

I will deal with each in turn.

The impact of the proposed dual occupancy on the HCA

The character of the HCA

6. Before considering the detailed particulars that comprise Contention 1, it is necessary to define the character of the HCA, and specifically the character in the immediate locality of the subject site. This character definition is informed by the Statement of Significance, the evidence of the Heritage, Planning, Arboricultural and Landscape experts, and the observations I was directed to make at the site view.

7. The Statement of Significance reads:

“The Southern Residential Precinct: contains a number of residential dwellings of the Federation period with large allotments that have been developed during the twentieth century. The southern end of Bendooley Street provides a mixture of styles in a mature landscape setting essential to the character of Bowral as a rural retreat. In Edward and Church Streets, the houses provide interesting examples of villas from the 1920s - 40s in mature garden settings. The southern precinct is important for the landscape elements provided by both public and private plantings.”

8. The expert evidence aligns with this statement, in that all experts agree that the mature landscape setting is an essential aspect of the character of the HCA. However, the experts differ in their detailed assessment of this character. In the joint report of heritage and planning experts (Ex 7), Mr McDonald, the heritage and planning expert for the Respondent, states that the immediate locality of the subject site is characterised by early twentieth century houses on their original allotments with established gardens, and a high ratio of mature tree canopy to built form. Mr Phillips, the heritage expert for the Applicant, acknowledges the characteristic tree canopy, but focuses on the detail of the lot sizes in the area, noting the smaller lot sizes across the streets to the west and north of the subject site. Mr Boston, the planning expert for the Applicant states that the defining landscape character of the area is buildings within informal landscape settings, not necessarily characterised by canopy trees.

9. Ms Mackenzie, the Arborist and Landscape expert for the Respondent stated in evidence (Ex 6) that the presence of mature conifers in residential gardens is a distinctive part of the landscape character of the Southern Highlands, which I accept.

10. In my considered opinion, from the expert evidence, the observations I was directed to make on site, the subdivision pattern that is evident in the aerial photograph at Ex J, the figure-ground drawing in Ex 7 Fig 3, and the subdivision plans at Ex 4, the character of the Bowral HCA in the immediate locality of the subject site is defined by:

• Single Villas from the 1920s - 40s in mature garden settings, often with detached garages or outbuildings;

• Informal garden settings defined by a mix of mature native and exotic canopy trees including deciduous and evergreen species, with numerous conifers, and hedges to most property boundaries;

• An established pattern of large, regular lots in the block bounded by Boolwey, Edward, Church and St Jude Streets, within which the subject site is located, and also in the block to the south of this bounded by Church, St Jude and Bowral Streets;

• An established pattern of smaller, regular lots to the western side of Edward Street, west of the subject site;

• A less consistent pattern of smaller lots or varying size to the northern side of Boolwey Street north of the subject site; and

• Varied building setbacks to all streets in the locality.

I note that the exceptions to the consistent subdivision pattern is the secondary dwelling that has been constructed to 37 Boolwey Street, and the narrow lot at 1 Church Street.

The impact of the development on the subdivision pattern of the HCA

11. The proposed development will result in the subdivision of one lot of 1562m² into two: Lots A and B, with areas of 937.14m² and 624.92m² respectively. It is undisputed that the proposed subdivision meets the numerical requirements of WLEP cll 4.1 and 4.2F.

12. The Respondent contends that the subdivision would be contrary to WLEP objective in cl 4.1(1)(b): to ensure that the subdivision of land to create new lots is compatible with the character of the surrounding land, and the aims of the WLEP at cl 1.2. They further contend that the subdivision and insertion of a dual occupancy dwelling in the northern section of this prominent corner does not enhance the streetscape of Boolwey or Edward Streets nor reflect the scale and density of surrounding development, contrary to the Bowral Township Development Control Plan 2021 (BDCP) objectives C2.11.1(a) and (e).

13. In the opinion of Mr McDonald, the subdivision of this site would diminish the original settlement pattern which, with the exception of one mid-block property, is intact within this block of 14 lots. He further states that this would be uncharacteristic of the settlement pattern and incompatible with the HCA in this immediate locality, and adversely impact the streetscape by visibly increasing the density on a corner lot contrary to WLEP objective in cl 4.1(1)(b). In his opinion, the subdivision of this lot and insertion of an additional dwelling is contrary to the aims of WLEP cl 1.2, to conserve the environmental heritage of Wingecarriebee (subcll (2)(a) and (j)), to maintain Wingecarribee’s original settlement pattern (subcl (2)(b)), and to retain the critical built environmental landscape elements that make up the cultural heritage value of Wingecarribee (subcl (2)(d)(iii)).

14. In response, Mr Boston, the planning expert for the Applicant, states that the allotment pattern varies throughout the HCA to such an extent that there is no discernible consistent pattern. Mr Phillips, the Applicant’s heritage expert, also draws attention in Ex 7 to the narrower lots to the western side of Edward Street and the northern side of Boolwey Street, stating that this narrower lot pattern could relevantly be applied to the subject site and would not be incongruous with the streetscape.

15. With reference to Fig 10 of Ex 7, an extract of the Bowral Conservation Area Map, I note that although the lot sizes do vary from block to block, this map clearly demonstrates a predominantly rectilinear allotment pattern throughout the HCA, with lot sizes being consistent in blocks, streets or logical groups. One such block is the one in which the subject site is located which, with the exception of the subdivision at 37 Boolwey Street, clearly reflects the original regular pattern of subdivision as seen in Ex 4.

16. I further note that, as also demonstrated in Ex 4, although the lots on the western side of Edward St are indeed narrower than those on the eastern side where the subject site is located, this is again as per the original subdivision pattern, not a departure from it. There is no evidence in these proceedings on the original subdivision pattern to the northern side of Boolwey Street.

17. In further response, Ms Nurpuri for the Applicant states firstly that the planning controls that apply to the site should not be ignored in favour of the original allotment pattern due to the evident departure from this pattern at 37 Boolwey Street. She also submits that, in circumstances where the proposed development complies with the numerical controls of the BDCP, to require a lot in this area to maintain the original subdivision pattern would seek to impose more onerous standards on the development of the site, in contravention of s 4.15(3A) of the EPA Act.

18. BDCP Section C2.3.3 establishes numerical controls for subdivision for dual occupancy and secondary dwellings within the Low Density Residential zone, and I note that under this section if a site meets these numerical controls, subdivision for these purposes is ‘permitted with consent’. I also note that the objectives of Section 2.2 includes the following:

“ C2.2 Objectives of Low Density Housing

…

All low density residential development shall:

(a) Maintain and improve the amenity and character of residential areas in (locality).

….

(c) Ensure that the heritage value of any property which is, or is within the vicinity of, an Item, or Draft Item of Heritage, or is within a Heritage, or Draft Heritage Conservation Area, is not compromised.

…

(h) Preserve existing mature vegetation and encourage the planting of native vegetation suitable for the area.

…”

19. I concur with Mr Palmer for the Respondent that, rather than resulting in the imposition of a more onerous standard than the BDCP currently requires, the proposed subdivision must meet both the numeric standards and the objectives of BDCP Section 2. I further concur with Mr Palmer that consideration of the proposed development against all relevant provisions of the WLEP is also required under s 4.15(1) of the EPA Act, and in relation to this particular issue, the impacts of the proposed development on the character of the HCA must be considered, pursuant to the objectives in WLEP subcll 1.2(2)(b), 4.1(1)(b) and 5.10(1)(b).

20. As identified above, the original subdivision pattern is one of several key features that defines the character of this part of the HCA, and more specifically the block within which the subject site is located. This pattern was readily observable at the site view, and from the evidence in Exs 7 and 4. The mid-block anomaly at 37 Boolwey Street is not readily visible from the street, and currently represents only 1 of the 14 lots differing from the original allotment pattern. As suggested by Mr McDonald, to allow this subdivision in order to reflect a different pattern on the opposite side of the street would ignore the clear, established settlement pattern of large lots that occurs in this HCA for the two blocks south of Boolwey Street, and within which the subject site is located. To insert a second dwelling on to the subject site would detract from the established settlement pattern and density of this suburban block, and have an adverse impact on the streetscape, contrary to the objectives of the WLEP subcll 1.2(2)(b), 4.1(1)(b) and 5.10(1)(b). Further, the subdivision would be inconsistent with objectives (a), (c) and (h) of Section C2.2 of the BDCP.

The adequacy of the Heritage Impact Statement

21. The Respondent states that the HIS is inadequate and fails to inform the matters for consideration under subcl 5.10(4) of the WLEP, which reads:

(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).

22. I note that the heritage experts gave evidence in relation to this matter both in their joint expert report (Ex 7) and in evidence through the course of this hearing, which adequately informs the matters for consideration in this clause.

The built form

23. The Respondent contends that the proposed development will create a building of uncharacteristic width presenting to Edward Street, which will be contrary to the matters for consideration under WLEP cl 5.10(4) and the heritage conservation objectives under subcll (1)(a) and (b) of cl 5.10 of the WLEP.

24. There is no dispute between the parties on the type, scale, height, bulk or character of the proposed secondary dwelling, and in that respect the proposed development is consistent with BDCP Sections A2.2.6(b), C2.2(b), and C2.4.2(a) and (d).

25. I note that following the drafting of this contention, the application was amended to modify the design of the secondary dwelling to become a detached building. From this, I concur with Mr Boston that the two buildings have adequate separation to ensure they would not read as one, and subsequently, setting aside issues pertaining to the subdivision pattern, density and streetscape, that the presentation to Edward Street would not be of a building of uncharacteristic width but of two buildings, each of an acceptable width that is consistent with the relevant parts of WLEP cl 5.10.

The ratio of built form to landscape

26. The Respondent contends that the density and scale of the proposed development is not compatible with the character of the existing residential area with its high proportion of landscaped open space to building footprints, in contravention of BDCP Section C1.2 Objectives (a) and (b), Section C2.2 Objectives (a), (b), (c), (h) and (i), and Section C2.4.2 Objectives (a), (b) and (d).

27. No evidence was given by either party on the detailed proportion of landscaped space to building footprint, beyond a visual assessment of the aerial photograph and figure ground drawing at Ex 7 Figs 2 and 3, which I consider inconclusive on this issue. My assessment of the compatibility of the density and scale of the proposed development is based on the observations I was directed to make on site and the expert evidence against the objectives listed above.

28. From the evidence of Mr McDonald, although the proposed dwelling in isolation is compatible with existing streetscape characteristics, its inclusion as a secondary dwelling on this site and the resulting dual occupancy is not, as it does not reflect the density or development pattern of this block of the HCA.

29. Although the impact of the development on the ratio of built form to landscape is unclear, I concur with Mr McDonald that not only is the dual occupancy uncharacteristic of the density and development pattern in this locality, it is unsympathetic to the existing streetscape (BDCP Section C1.2(b)), and neither maintains nor improves the character of the locality (BDCP Section C2.2).

The setback to Boolwey Street

30. The Respondent contends that the setback of the proposed development to Boolwey Street does not retain the dense vegetation characteristics of properties with deep setbacks in the immediate vicinity in Boolwey and Edward Streets, contrary to the following objectives of the BDCP:

“Section 2 Low Density Housing

C2.6.1 Objectives

The objectives of these front setback controls are to:

(a) Ensure the front setback of new infill development is consistent with the existing streetscape.

(b) Provide areas for trees and vegetation to enhance the streetscape and provide privacy.

(c) Preserve existing vegetation connections.”

31. Section C.2.6.2 provides specific controls for the dimensions of setbacks; however, I note that the experts agree that the proposed secondary dwelling does not offend these controls. I further note that the experts agree that the front setback of the proposed development is consistent with the existing streetscape.

32. Further, it is apparent from the landscape plans at Ex C and the observations I was directed to make on site that, putting aside the removal of existing trees which is discussed further below, the setback allows adequate areas for trees and vegetation to enhance the streetscape and provide privacy, and to adequately preserve existing vegetation connections as per the objectives of BDCP s C2.6.1.

The mature landscape setting

33. The Respondent contends that the proposed development would have an adverse impact on the densely treed character of the locality, would be unsympathetic to the streetscape, and would not reflect the high heritage value of the Bowral HCA, contrary to the matters for consideration and the following objectives and under cl 5.10 of the WLEP:

“5.10   Heritage conservation

….

(1) Objectives The objectives of this clause are as follows—

(a)  to conserve the environmental heritage of Wingecarribee,

(b)  to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

….”

and the following objectives of the BDCP:

“A2.2.3 Heritage Conservation

…

(c) Ensure that redevelopment within or immediately adjacent to Conservation Areas reflects the high heritage value of the Area and contributes to that value.

…”

“A2.2.4 Residential Amenity

…

(a) Conserve the unique characteristics of existing residential areas of the Bowral township.

(b) Encourage new residential development that is sympathetic to existing or desired future streetscapes and neighbourhood character.

…”

“A2.2.6 Visual Amenity

…

(a) Demonstrate an appreciation of the existing streetscape.

(b) Enhance the character of individual streets within the town through appropriate built form design.

(c) Provide areas of private open space which can make a positive contribution to the overall visual amenity of the locality.”

“C2.2 Objectives of Low Density Housing

…

(h) Preserve existing mature vegetation and encourage the planting of native vegetation suitable for the area.

…”

“C2.4.2 Objectives

…

(b) Retain important natural features of the site, including any significant existing trees.

…”

34. The proposed development will result in the removal of two trees, T15 and T19. Both trees are Lawson Cypress, with T15 being 18 metres high and T19 16 metres high. From the evidence in the Arborist Report (Ex F) and the observations I was directed to make on site, these trees are undoubtedly part of the mature landscape setting of the subject site and the HCA in the immediate locality.

35. Much is made by the Applicant of the fact that the garden of the subject site is currently overgrown and in need of renovation, and that this application will result in a much improved garden. I note that this is a private garden, and that although a landscape design forms part of this application, the future ongoing maintenance of that garden is not guaranteed. It is therefore, in my opinion, the existing mature trees within lower hedges and shrubs that make the most significant contribution to the mature landscape setting of this HCA, as supported by the evidence of Ms Mackenzie.

36. Despite the importance of the mature trees on site and in the locality, I concur with Mr Boston and Mr Phillips that the character of the HCA in this locality could not be considered ‘densely treed’ and that the proposed tree removal would still leave the site with tree canopy coverage that is not inconsistent with the area.

37. However, irrespective of this, I also concur with Mr McDonald that the trees proposed for removal make a significant contribution to this part of the Bowral HCA, to the streetscape on a prominent corner allotment, and to the setting of the existing dwelling in a mature landscape. Despite the intention to plant replacement trees, the loss of trees 15 and 19 will undoubtedly have an impact on the character of the locality, particularly in winter when, due to their setting amongst deciduous trees, their visual prominence is high (see photographs at Figs 5-9, Ex 7). The establishment of replacement trees would take many years to adequately offset this impact and subsequently, I concur with Mr McDonald that the loss of these trees would represent a diminution of a key aspect of the HCA - the mature landscape setting.

38. In their joint report, the Arboriculture and Landscape experts summarise their points of agreement at par (67) and state that “trees 15 and 19 are high retention value trees that warrant priority for retention but the current proposal to develop the proposed new lot does not provide for retention of these trees.”. Given the concurrence of these experts on the significance of the two trees, the proposed development could not be said to preserve existing mature vegetation, nor retain important natural features of the site including any significant existing trees, as required by BDCP Objectives C2.2(h) and C2.4.2(b).

The impact of the removal of two trees, T15 and T19

39. The amended application that is before the Court incorporates the Applicant’s response to the tree and landscape contentions in that several trees and shrubs are to be transplanted, and the only tree removal in contention is that of trees 15 and 19.

40. In addition to the contention discussed above, the Respondent contends that the loss of these trees would have a detrimental effect on the character and streetscape of the locality by breaking the continuity of dense tree canopy that extends from 5 Boolwey Street and down Edwards Street and into Church Street, contrary to the following BDCP controls:

“A6.1 Preservation of Trees and Other Vegetation

A6.1.1 Objectives

The objectives of this Section of the Plan are to:

(a) preserve the amenity, biodiversity and ecology of the Bowral township through the preservation of trees and other vegetation as described in Clause 5.9 of WLEP 2010.

(b) preserve the amenity and heritage value of trees and other vegetation associated with Items of Heritage or within Heritage Conservation Areas.

…”

“A6.2 Private Landscaped Open Space

A6.2.1 Objectives

In assessing a Land Use Application Council shall consider the extent to which the following Landscape objectives are met:

…

(b) Contributes to the urban streetscape.

(c) Provides a visual buffer between development and the surrounding neighbourhood.

(d) Contributes to existing tree canopies and wildlife habitats.

…”

“C2.13 Landscaped Open Space

C2.13.1 Objectives

Council will not support residential development which relegates open space to those areas around and in between buildings which are effectively ‘left over’ spaces. Therefore residential development should address the following objectives to ensure that it:

....

(b) Retains and protects both individual trees and/or identified Threatened Ecological Communities scattered throughout the locality.

(c) Retains existing natural features on the site that contribute to the character of the site and/or the local area.

(d) Seeks to create, maintain or enhance existing corridors of mature landscaping throughout the length of the residential block in order to contribute to existing tree canopies and wildlife habitats.

Protects the plantings on any site which is, or is in the vicinity of, an Item (or Draft Item) of Heritage or is within a Heritage Conservation Area or Draft Area.

….

(g) Provides sufficient site area to support mature trees and vegetation and allow for water infiltration.

….”

41. In consideration of this, I concur with Ms Nurpuri’s submission that the continuity of canopy and visual buffer between the proposed development and its surrounds would be adequately addressed by the replacement planting proposed in this application. However, I also concur with Mr Palmer that the removal of these two high value trees contravenes BDCP Objectives A6.1.1(a) and (b) and Objectives C2.13.1(b) and (c) and the unnumbered objective between (d) and (e), noting that although the trees do not hold heritage value in and of themselves, they make a significant contribution to the character of the HCA and to the urban streetscape. I further concur with Mr McDonald that the removal of these two trees diminishes the mature landscape setting on this site, adversely impacting a key characteristic of the HCA in this locality. It is my considered opinion that, when assessed against the relevant objectives of the BDCP, the removal of these two mature trees from within this HCA is not adequately justified by the proposed development.

The proposed development has an unacceptable impact on the HCA and existing trees

42. With reference to the objective at BDCP Section A2.2.4(a), to “conserve the unique characteristics of existing residential areas of the Bowral township”, Ms Nurpuri submits that the Respondent’s unreasonable interpretation of ‘conserve’ is to maintain what is existing without alteration, and that the consent authority must instead balance the effect of the proposed development on the heritage significance of the HCA with the orderly and economic use of the land.

43. In considering this balance, I note that while this decision precludes this particular development from occurring, it does not preclude further applications that may deliver an alternative, orderly and economic use of this land, if desired. Further, this site already contains a single dwelling in an area that is zoned for low density residential, representing an existing orderly and economic use of the land.

44. Further, it is my considered opinion that the proposed dual occupancy and subdivision would adversely impact on the heritage value of the HCA for the following reasons:

1. The development would disrupt the established settlement pattern that exists on the two blocks leading south from Boolwey Street, between Edward and St Jude Streets, that being the pattern of large, rectilinear blocks with single dwellings. Although this pattern is disrupted by the subdivision at 37 Boolwey Street, as the subject site is a corner lot, the impact of this development would be much more visible in the streetscape than at the mid-block lot of 37 Boolwey Street. This subdivision pattern forms part of the character of the HCA in the immediate vicinity of the subject site. The adverse impact of the proposed development on the established settlement pattern, density, streetscape and subsequent character of the HCA is inconsistent with WLEP subcll 1.2(2)(a), (b) and (d), 4.1(1)(b), 4.2F(1)(a) and 5.10(1)(b).

2. The development would adversely impact the mature landscape of the subject site. This landscape setting forms a key aspect of the character of the HCA, and the impact of the proposed development would be inconsistent with: WLEP subcll 1.2(2)(a) and (d), 5.10(1)(a) and (b), and; BDCP Sections A6.1.1(a) and (b), C2.13.1(b),(c), C2.2(a) and (h), and C2.4.2(b).

3. The development would unnecessarily and unacceptably remove two existing mature trees that have been identified by the experts of both parties as being of high landscape significance and worthy of high priority for retention, inconsistent with: WLEP subcll 1.2(2)(a) and (d),5.10(1)(a) and (b), and; BDCP Sections A2.2.4(a) and (b), C2.2(a) and (h), and C2.4.2 (b).

45. For these reasons, the diminution of the key attributes of this part of the HCA and the loss of mature vegetation is contrary to the aims and objectives of WLEP subcll 1.2(2)(a), (b) and (d), and subcll 5.10(1)(a) and (b) and is not considered to be in the public interest.

46. Accordingly, the application should not be granted consent and the appeal dismissed.

47. The Court orders:

1. The appeal is dismissed.

2. All exhibits, except for A, B, C, J, H, 1 and 4, are to be returned.

E Washington

Acting Commissioner of the Court

**********

Decision last updated: 21 March 2024