Myndreskou v Woollahra Municipal Council

[2015] NSWLEC 1540

Land and Environment Court

New South Wales

Medium Neutral Citation:	Myndreskou v Woollahra Municipal Council [2015] NSWLEC 1540
Hearing dates:	21 December 2015
Date of orders:	22 December 2015
Decision date:	22 December 2015
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld – see [49]
Catchwords:	DEVELOPMENT APPLICATION: Off-street parking; Heritage Conservation Area; Street tree
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environmental Plan 1995 Woollahra Local Environmental Plan 2014
Category:	Principal judgment
Parties:	Dmitry Myndreskou (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Applicant: Mr M Staunton (Barrister) Respondent: Ms V McGrath (Solicitor)   Solicitors: Applicant: HWL Ebsworth Lawyers Respondent: Norton Rose Fulbright Australia
File Number(s):	10853 of 2015

Judgment

1. COMMISSIONER: The applicant appeals Woollahra Council’s refusal of Development Application DA174/2015 for the removal of a stone wall, excavation, demolition of landscape elements, tree removal, construction of a double garage, driveway, kerb/layback and landscaping at 37 Bathurst Street, Woollahra (the site).

2. The appeal is made pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The matter commenced on site as a mandatory conciliation under s 34AA of the Land and Environment Court Act 1979 (Court Act). As there was no agreement between the parties the conciliation was terminated in accordance with s 34AA(2)(b)(ii) of the Court Act; that is, the matter proceeded to a hearing on the basis of what was discussed during the conciliation.

The site and locality

4. The site is located on the elevated eastern side of Bathurst Street within the Harbour View precinct of the Woollahra Heritage Conservation Area (WHCA). Development in the locality is principally Victorian and Federation period housing.

5. The dwelling on the site is set back from and elevated above the street. It is a single-storey Federation style house listed as a contributory item in Part 5 of the Woollahra Heritage Conservation Development Control Plan 2003 (WHCA DCP). Almost all of the surrounding properties are listed as contributory items. There is currently no on-site parking. The street frontage of the property comprises a sandstone retaining wall with a pedestrian entry at the southern end.

6. Planted in the verge outside the site are two mature Melaleuca quinquenervia (Broad-leaved Paperbark) trees. A small and stunted Stenocarpus sinuatus (Queensland Firewheel Tree) is growing to the north of the northernmost Paperbark. The small Stenocarpus may have been one of the two Stenocarpus conditioned as replacement street trees when consent was granted to a similar development at 39 Bathurst Street, the adjoining property to the north (Exhibit H). (If planted, the other Stenocarpus has not survived.) The street trees are not listed in Woollahra Council’s Register of Significant Trees.

7. There are a number of nearby properties on the eastern side of Bathurst Street with garage openings in front retaining walls, including number 39.

Assessment framework

8. The Development Application was lodged with council prior to the commencement of the current Woollahra Local Environmental Plan 2014. The applicable planning instrument is Woollahra Local Environmental Plan 1995 (WLEP 1995). The site is zoned Zone No 2(b) – Residential in WLEP 1995 (and R3 Medium Density Residential in WLEP 2014).

9. Clause 8(5) WLEP 1995 states that the Council, in this case the Court as the consent authority, shall not grant consent to the carrying out of development on land to which this plan applies unless the [consent authority] is of the opinion that the carrying out of the development is consistent with such objectives of the LEP and the zone.

10. Clause 28 WLEP 1995 deals with Heritage Conservation Areas. Clause 28(2) requires that the consent authority shall not grant consent to any of the specified works in cl 28(1) unless it has taken into consideration the extent to which the development would affect the heritage significance of the HCA, and it has considered a heritage impact statement or conservation plan.

11. The applicable version of WHCA DCP is dated 12/12/2012 – this has been repealed by WDCP 2015.

The issues

12. The issues raised by council in its Statement of Facts and Contentions (Exhibit 2) are summarised as:

1.    Tree and landscape removal: removal of one Broad-leaved Paperbark planted as a street tree; removal of 1 x Camellia and 1 x Kentia Palm from the front setback; unacceptable visual impacts; adequacy of soil volume for replacement trees.

2.   Sandstone removal: detrimental impact on the streetscape and the WHCA; uncharacteristic replacement with garage door.

3.   Car parking to the street front: unsympathetic and detrimental to the desired future character of the WHCA; excavation and structural issues.

4.    Non-compliant car space requiring underpinning of a significant item: one of the spaces does not comply with the requirement for a B85 vehicle.

5.    The public interest: matters raised in submissions.

13. As required by the Land and Environment Court’s Practice Note - Class 1 Residential Development Appeals, the parties’ experts prepared joint reports which addressed the council’s contentions. Expert evidence was provided for the applicant by Mr Paul Grech (Planning), Mr James Phillips (Heritage), Mr Andrew Morton (Arboriculture) and Mr Mladen Prnjatovic (Architecture); for the council – Mr David Grey (Arboriculture) and Mr Wilson Perdigao (Planning). In their joint reports, the experts referred to the relevant provisions of WDCP and other policies noted in the contentions.

14. The Planning, Heritage and Architecture joint report (Exhibit D) includes amended plans (separately tendered as Exhibit B). The applicant was formerly granted leave to rely upon the amended plans. This was not opposed by council and it was agreed the amendments are minor.

Contention 1 – Tree removal and replacement

15. The arborists prepared a joint report to address contention 1; the other experts conferred to address all contentions but deferred to a large extent to the arborists in regards to this contention.

16. The arborists agree that while the Camellia and the Kentia Palm in the front garden make a fair contribution to the amenity of the site, they are not considered to have any particular significance. It was agreed that subject to the selection of appropriate species capable of growing to at least 5m and being sympathetic to the Federation period, the removal and replacement of these two trees could be conditioned. The arborists agreed that a volume of soil, at least 15m3, sufficient for the establishment and long term viability of the replacements, could be contained above the proposed garage, subject to details being provided to council for review prior to the release of a Construction Certificate. The experts determined that appropriate replacement species would be a Syzygium leuhmanii (Small-leafed Lillypilly) and a Howea forsteriana (Kentia Palm).

17. The arborists disagreed as to whether the northernmost Broad-leaved Paperbark street tree should be removed. Mr Grey is of the opinion that while it has no heritage significance, it is in good health, makes a positive contribution to the streetscape and to the amenity of the site, has a Safe Useful Life Expectancy (SULE) of between 15-40 years, and its removal is therefore unwarranted. He stated on site that while the tree has caused some damage to infrastructure, council’s policy is to repair the infrastructure and retain the tree wherever possible. Mr Grey opined that the level of damage was relatively minor. It was also pointed out that while the tree had been lopped for power line clearance in the past, the installation of bundled cables has reduced the need for extensive pruning.

18. In the joint report Mr Morton agrees that while the Paperbark makes a positive contribution to amenity, it is one of a small number of this species in Bathurst Street and does not form part of a consistent avenue planting. He observes that the street contains a mixture of species including Queensland Firewheel trees. Mr Morton notes that Melaleuca quinquenervia is not listed as a preferred species for street planting in Woollahra Council’s Street Tree Master Plan 2014 (STMP) (Exhibit G) despite its former use in a number of streets. In his opinion, because of its extensive root system, this species is recognised as being one which causes damage to street infrastructure such as kerbing, guttering and paving. Mr Morton notes that the preferred species for Bathurst Street, as listed in the STMP, are three native rainforest species which have been selected to ‘maintain historical references to native rainforest style planting’, and which are sympathetic to the architectural style and period of the WHCA. The listed species are Syzygium paniculatum, Stenocarpus sinuatus, and Waterhousea floribunda ‘Green Avenue’.

19. While the arborists disagree about the removal of the Paperbark, they agree that should it be removed it should be replaced by a 75 litre specimen of Waterhousea floribunda ‘Green Avenue’ (Weeping Lillypilly cultivar), being one of the three species specified in the STMP. It was agreed that the replacement tree should be planted between the driveway of 39 Bathurst Street and the proposed driveway at 37 Bathurst Street and this would compensate for the loss of amenity resulting from the removal of the Paperbark within a reasonable time frame. Both arborists agreed that the small and struggling Stenocarpus should be removed.

20. Having read the arborist’s joint report, the other experts agree that there should be a single replacement street tree as recommended by the arborists. The other experts note that the best location for a replacement tree would require the removal of an uncharacteristic strip of concrete at the front of #39. They also agree that the recommended replacements of all three trees would resolve the particular heritage and streetscape issues relevant to this contention. During the hearing Mr Phillips stated that the species in the STMP are more in keeping with the heritage character of the street as opposed to the existing Paperbarks. He also notes in the joint report that the replacement trees for the front garden need to be located so that views to the house from the street are retained.

Contention 2- Sandstone Wall

21. Council’s contention goes to removal of a significant proportion of the original front sandstone wall and the several non-compliances with relevant provisions of WHCA DCP. The proposed wall will be about 300mm higher than the current wall.

22. The parties’ planners, and the applicant’s architect and heritage consultant all agree that the amended plans provided by the applicant show how the sandstone blocks will be reused in the reconstruction of the new front wall and the pedestrian stairs from the street. They note that this is a far preferable option than the treatment of the front wall of no. 39 which used sawn sandstone with no texture. The increase in height creates a transition between the adjoining properties to the north and south.

23. Therefore this contention is no longer pressed.

Contention 3 – Car parking to the street front

24. Whilst acknowledging that the proposal is contrary to the prescriptive controls in WHCA DCP, the experts agree that based on the circumstances of the site and the detail provided in the amended plans, the proposal would have an acceptable performance based outcome. The experts note the provision of detailed geotechnical and structural engineering information which has addressed council’s concerns about underpinning the dwelling.

25. The experts agree that subject to the imposition of appropriate conditions, this contention is resolved. Council does not press this contention.

Contention 4 – non-compliant car space.

26. The experts agree that the amended plans and additional information address the engineering aspects of the contention. During the conciliation, as requested by council’s planner, the applicant agreed to a s 88B restriction being placed on the title of the property to recognise that the second car space can only be used for a small vehicle. The experts agree that the second car space, albeit small, is a positive outcome as it provides a net benefit of one on-street parking space.

27. Given the applicant’s agreement to the restriction on title, and the consensus of the experts, the council no longer presses this contention.

Public interest – matters raised in submissions

28. Four written submissions were received from a number of residents in Bathurst Street, including the owners of #39 as well as an objection made on behalf of the Harbour View Residents Group. The objections are summarised as:

• Concerns about the possible replacement of the original sandstone wall with a composite stone similar to that used at #39 and the loss of trees, including the inadequate replacement of the street trees as a consequence of the approval of the development at #39; i.e. a desire not to repeat past mistakes.

• Loss of the Paperbark on amenity, biodiversity and heritage grounds.

• Non-compliance with current controls in WHCA DCP - location of garages, excavation, loss of on-street parking, impact on street trees, loss of the original sandstone wall.

29. As is usual in these matters, a number of residents or their representatives, made oral submissions.

30. A solicitor representing the owners of #39 pressed his client’s submissions including their assertion that the Paperbark tree is on council’s Register of Significant Trees. When questioned by Mr Staunton, the solicitor stated that he had not read the Register nor was he aware of the conditions of consent relating to the similar development carried out by his clients in 2004 and the loss of a similar Paperbark.

31. Local residents and members of the Harbour View Residents Group reiterated their concerns over the loss of the integrity of the heritage sandstone wall which they say is a distinctive feature in the street. Similarly, they contend that the loss of the tree will reduce the connectivity between Harbour View Park and Cooper Park and reduce the canopy cover so important for absorbing pollution and providing shade. They are concerned that it will take many years for a replacement to be established and provide the current level of amenity. Other concerns such as loss of on-street parking, and the loss of natural areas of deep soil and subsequent impacts on water flow were also raised.

Submissions

32. Mr Staunton for the applicant contends that apart from the removal of the Paperbark, the parties’ experts have agreed that subject to the imposition of agreed conditions, the proposed development is acceptable and can be approved. He notes that the internal referral from council’s heritage officer recommends consent with no conservation conditions required (Exhibit 1 Tab 5).

33. In regards to the Paperbark Mr Staunton refers to cl. 2.1 General principles in Woollahra Council’s Tree Management Policy (Exhibit F) which states:

In making decisions about tree selection, planting, pruning, removal and replacement, we will consider the public interest and private interests. Public interests will generally take precedence over private interests, but a major private benefit may take precedence over a miner public detriment. Each request will be considered on its merits.

34. Mr Staunton argues that this proposal is an example of a major private benefit over a minor public interest, especially as the arborists have agreed that should the paperbark be removed, it should be replaced with a species listed in council’s Street Tree Master Plan (STMP). He highlights the relevant parts of the STMP including part 3.0 – Street Tree Design Guidelines and the aim to achieve consistency and uniformity for each street. Part 4.10 covers the Woollahra Precinct.

35. As the tree in question is a street tree, Mr Staunton presses Part 4 – Public Domain in WHCA DCP and controls C1 and C4 in cl. 4.1.1 concerning street trees. He submits that the proposed replacement is consistent with these controls.

36. With respect to similar previous approvals, Mr Staunton drew my attention to the Section 82A Review of Determination Report for a similar proposal at 39 Bathurst Street put to council’s Development Control Committee on 2 February 2004 (Exhibit H). This development for a double garage within the front wall of the property required the removal of two mature Paperbark street trees. In particular, Mr Staunton notes comments from relevant officers that “Council has considered that the Broadleaved Paperbark Tree (Melaleuca quinquenervia) is not in character with Bathurst Street and will result in the increased incidence of infrastructure damage. As general policy, Council plants only Firewheel Trees (Stenocarpus sinuatus) within Bathurst Street. This has been the practice for approximately the last twenty years”. Mr Staunton notes that council’s tree officer agreed to the removal of the Paperbarks subject to the imposition of a condition of consent requiring their replacement with 2 x 100 litre Stenocarpus sinuatus.

37. Ms McGrath for the council presses council’s preference for the retention of the Paperbark and relies on Mr Grey’s assessment of it. She also stresses that while other similar developments have been approved, these were approved under previous controls. Ms McGrath notes the common theme in many of council’s controls in WHCA DCP that mature trees be retained. However, she contends that if I determine that the tree should be removed, a condition requiring its replacement, as agreed by the arborists, should be imposed.

Findings

38. As the majority of the contentions have been resolved, the remaining issues for me to determine are whether the Paperbark street tree should be removed and whether the proposal should be refused in the public interest (to the extent that the public interest is represented by the views of the objectors).

39. I agree with the arborists that the Paperbark makes a positive contribution to the amenity of the street and to the site however, I am persuaded by Mr Moron’s evidence and Mr Staunton’s submissions that its removal and replacement is not inconsistent with the objectives and controls in Part 4 Public Domain WHCA DCP – cl. 4.1.1- Street trees.

40. The relevant controls, C1 and C4 state:

C1   Selected tree species should have the following characteristics (relevantly):

-   consistency with the period planting of the suburb.

-    root systems that are not invasive to drains, underground pipes or building foundations

-   root systems that do not cause upheaval of pavements, kerb and gutters

C4   The phased removal of inappropriately planted trees should be undertaken as a component of an overall street tree strategy. This should include or thinning of trees from small scale streets and narrow footpaths and the removal of species that do not comply with established themes.

41. The established theme for Bathurst Street, as expressed in council’s adopted STMP is to “maintain historical references to native rainforest style planting”. During the site inspection it was clear that many of the established trees in Bathurst Street are native rainforest/ rainforest edge species. As stated above, while the arborists disagree as to whether the tree should be removed, they did agree that the replacement species should be a Waterhousea floribunda ‘Green Avenue’. Condition E2 has been drafted to require all replacement plantings, including the new trees for the front garden, to be planted and maintained in accordance with the detailed specifications in the STMP.

42. As the only heritage expert present, I note Mr Phillips’ comments that from a heritage perspective, the replacement of the Paperbark with the nominated Waterhousea is a positive aspect of the proposal. There are no references to trees in the general introduction to the Woollahra HCA Part 3.1 – Precincts, in WHCA DCP. Part 3.1.5 discusses the Harbour View precinct. Amongst other things, the description notes areas where houses built on steep slopes above the street may be retained by sandstone retaining walls. The only mentions of streetscapes enhanced by trees are the central tree plantings in four nominated streets; Bathurst Street is not mentioned.

41. I accept that the residents are concerned that the removal of the tree will, for at least the short to medium term, enhance the gap in the street tree canopy near the site. In part this is a consequence of the unsuccessful replacement of trees outside #39. The Tree Data Sheet for Waterhousea floribunda ‘Green Avenue’ in the STMP states that this species/ cultivar has a typically fast growth rate and may achieve a height of 18-20 metres. It is also noted as being a very hardy tree, tolerant of a wide range of soils.

42. During the hearing I raised the possibility of relocating the driveway so that the Melaleuca between #39 and the site might be retained. I was advised by the parties that this had been considered but given the slope of the site the best engineering solution is that which is proposed. This also enables the tree to be replaced whereas removing the Paperbark to the south would not leave sufficient space for a replacement.

43. I am therefore satisfied that the proposal to remove the Melaleuca quinquenervia – Broad-leafed Paperbark street tree and replace it with a 75 litre specimen of Waterhousea floribunda ‘Green Avenue’ achieves the relevant objective in Part 4 – Public Domain WHCA DCP in that ‘the new element’ (being the replacement tree) will ‘enhance the character of the area and its precincts’.

44. In considering the other issues raised by the objectors, I am satisfied that the heritage issues regarding the sandstone wall have been resolved; as stated above, council’s heritage officer raised no objections. The replacement of the tree will eventually restore what connectivity exists between the nominated parks, however, no biodiversity concerns were raised by council.

45. To the extent that the public interest is more generally captured by the aims of WLEP and the zone objectives, I am satisfied that the proposal is consistent with those aims and objectives. As a consequence cl. 8(5) WLEP 1995 is addressed. Similarly, as required by cl. 28(1) WLEP, I have considered the Heritage Impact Statement prepared by Mr Phillips included in Exhibit 1, as well as the expert evidence given on site. I find that the proposed development will not detract from the heritage significance of the Woollahra HCA or the Harbour View precinct.

Conclusions and orders

48. Having had the benefit of the site inspection, the expert evidence and the submissions made by the residents and the parties’ lawyers and having regard to the requirements of s 79C of the EPA Act, I am satisfied that the proposed development can be approved subject to the agreed conditions of consent.

49. The orders of the Court are:

1. The appeal is upheld.

2. Development Application DA174/2015 for the removal of a stone wall, excavation, demolition of landscape elements, tree removal, construction of a double garage, driveway, kerb/layback and landscaping at 37 Bathurst Street, Woollahra is approved subject to the conditions of consent in Annexure ‘A’.

3. All exhibits except 2 and B are returned.

______________________

Judy Fakes

Commissioner of the Court

10853 of 2015 - Annexure A (253 KB, pdf)

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Decision last updated: 22 December 2015