Sutherland No. 7 Pty Limited v Ku-ring-gai Council

[2021] NSWLEC 1209

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sutherland No. 7 Pty Limited v Ku-ring-gai Council [2021] NSWLEC 1209

Hearing dates:

16-17 November 2020

Date of orders:

11 May 2021

Decision date:

11 May 2021

Jurisdiction:

Class 1

Before:

Adam AC

Decision:

The Court orders that:

(1)   The Applicant is granted leave to rely upon the amended plans and documentation referred to in this judgment.

(2) The Applicant is to pay the costs of the Respondent thrown away as a result of the amendment of the Development Application as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(3)   The appeal is dismissed.

(4)   Development Application No. DA 0184/19 for the demolition of existing structures and construction of a new dwelling house with swimming pool, cabana, tennis court and associated works at the site at 9 Sutherland Avenue, Wahroonga is determined by way of refusal.

(5)   The exhibits may be returned except for A, 1, 4 and 8.

Catchwords:

DEVELOPMENT APPLICATION – construction of new dwelling with swimming pool, cabana and tennis court – impacts on Heritage Conservation Area – streetscape – Biodiversity Impact Assessment – Critically Endangered Ecological Community – Vegetation Management Plan – Norfolk Island Pine

Legislation Cited:

Biodiversity Conservation Act 2016, ss 7.3, 7.4

Biodiversity Conservation Regulation 2017, cll 7.1, 7.2

Conveyancing Act 1919

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15(3)

Ku-ring-gai Local Environmental Plan 2015, cll 1.2, 2.3, 4.3, 4.4, 5.10, 6.3, Sch 5 Pt 2

Standard Instrument—Principal Local Environmental Plan

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, cll 5.9AA, 26

Threatened Species Conservation Act 1995, Sch 1A

Trees (Disputes Between Neighbours) Act 2006

Trees Act 1997 (Cth) (Norfolk Island), s 5

Trees Regulations 1999 (Cth) (Norfolk Island)

Cases Cited:

Architectural Property Services Pty Limited v Rockdale City Council [1999] NSWLEC 83

Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641

Belling v North Sydney Council [2018] NSWLEC 1656

Gardiner v Bisley [2021] NSWLEC 1176

Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (2010) 210 LGERA 126; [2010] NSWLEC 48

Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:

Glenn Hoye, ‘The status of microbats on Norfolk Island, southwest Pacific’ in Bradley Law et al (eds), The Biology and Conservation of Australasian Bats (Royal Zoological Society of NSW, 2011) 297-307

Ku-ring-gai Development Control Plan 2015

NSW Threatened Species Scientific Committee, Blue Gum High Forest in the Sydney Basin Bioregion - Determination to make a minor amendment to Part 2 of Schedule 1A of the Threatened Species Conservation Act (October 2011)

Taktahjan A (1986) Floristic regions of the world, University of California Press, Berkeley

Thomas, P 2011. Araucaria heterophylla. The IUCN Red List of Threatened Species 2011: e.T30497A9548582.

Category:

Principal judgment

Parties:

Sutherland No. 7 Pty Limited (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
J McKelvey (Applicant)
J Smith (Respondent)

Solicitors:
Long Legal (Applicant)
Maddocks (Respondent)

File Number(s):

2020/58358

Publication restriction:

No

Judgment

1. The upper North Shore suburb of Wahroonga in the Ku-ring-gai Local Government Area (LGA) is characterised by precincts with ‘grand’ residences on large blocks. Sutherland Avenue in Wahroonga has such development on its eastern side. The western side of the street is, except at its southernmost end, occupied by the preparatory school campus of Knox Grammar School.

2. The Applicant lodged Development Application No. DA 0184/19 with the Respondent on 16 May 2019. The application was for the demolition of existing structures and the construction of a new dwelling with swimming pool and cabana, front fence, tennis court and associated works on the site, being 9 Sutherland Avenue, Wahroonga, legally described as Lot 201 DP 1242976. On 26 September 2019, the Respondent refused DA 0184/19 under delegated authority. On 23 February 2020, the Applicant filed with the Court an appeal against the refusal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act1979 (EP&A Act).

3. The matter commenced with a site inspection, commencing on Billyard Avenue to the east of its junction with the northern end of Sutherland Avenue. The Applicant pointed to 15 Billyard Avenue, a relatively recent development which, while of contemporary architectural design, was said by the Applicant to be sympathetic to, and compatible with, the character of the area. The Respondent drew attention to a large Bunya Pine (Araucaria bidwillii) in the grounds of the Knox Grammar School Preparatory School campus to the west and the Norfolk Island Pine (A. heterophylla) (referred to as T 38) at 9 Sutherland Avenue to the south. (The visibility of T 38 from Billyard Avenue was mentioned in the Respondent's Statement of Facts and Contentions (SOFAC) (Exhibit 1, Contention B1 1(c)(i)).

4. The inspection then progressed south on the eastern side of Sutherland Avenue, to observe the character of the properties in the precinct. Sutherland Avenue is a cul-de-sac; from the turning circle at the southern end of Sutherland Avenue, an overview of the suburbs to the south and east was obtained in which a small number of well separated large emergent trees, including several Araucaria spp., could be seen.

5. On returning to 9 Sutherland Avenue, the Norfolk Island Pine (T 38) and the frontage of the site to the street were observed, followed by progression down the slope which falls from the street eastwards, observing the location of the proposed dwelling, the intended position of the cabana and swimming pool and the existing grass tennis court. The occurrence of elements of the Blue Gum High Forest (BGHF) Critically Endangered Ecological Community (CEEC) was noted.

6. After completion of the inspection the matter adjourned to Court.

The site

7. The site has an irregular “L” shape with an area of 1918 m². The western frontage to Sutherland Avenue is 23.77 m, the northern side boundary is 54.95 m, and the eastern rear boundary is 48.425 m long. The southern boundary is irregular with a length of 67.24 m. Details of dimensions are taken from the Statement of Facts and Contentions (SOFAC) (Exhibit 1). The site is shown on a number of maps and diagrams in evidence – very clearly in Figure 3 in the Biodiversity Impact Assessment (BIA) which forms an addendum to the Joint Report of the Ecology Experts (Exhibit 6). This is reproduced below:

8. The image also clearly shows the size of tree T 38 – the canopy of which extends for much of the width of the western frontage – and the closeness of the northern part of the dwelling of 7 Sutherland Avenue to the boundary between 7 and 9 Sutherland Avenue.

9. The site is located on the upper slope of the Hornsby Plateau and falls steeply from the western boundary. The fall in the east-west limb is in the order of 11 m. In the north-south limb, the construction of the existing tennis court required cutting into the slope across the rear of the lot (see BIA in Exhibit 6).

10. The site is within the Glenorie soil landscape with an underlying lithology of Wianamatta Group shales. The dominant soils in the landscape have an upper layer of friable loam underlain by clay loams and hard-setting clays. These soils are relatively fertile compared with those developed on sandstones elsewhere in the Sydney district. At the time of European occupation, the dominant vegetation was tall forests of Blue Gums (Eucalyptus saligna), Blackbutt (Eucalyptus pilularis) and Turpentine (Syncarpia glomulifera). Following European occupation, these forests were rapidly cleared, and the area developed for agriculture, with citrus orchards being a major land-use. In the late 1800s, following the development of the North Shore rail line the area was subdivided into large land parcels on which grand houses were built (BIA Exhibit 6).

11. The site of 9 Sutherland Avenue once formed the landscaped gardens and grass tennis court of 7 Sutherland Avenue. The gardens are now derelict with many weed species, but the remains of some formal garden beds are detectable. Some of the canopy trees are locally native, but overall the trees are predominately introduced species. Most prominent of the introduced species on the site is T 38, the Norfolk Island Pine.

12. The Norfolk Island Pine is, as the name suggests, native to Norfolk Island. It is a gymnosperm; it is not a true pine (trees in the family Pinaceae) but a member of the family Araucariaceae.

13. There are present on the site vestiges of the former forest cover, representative of the BGHF, a CEEC included on Pt 2 of Sch 1A to the Threatened Species Conservation Act 1995 (TSC Act) in 2007. (The 2007 listing was amended in 2011 to make minor changes to the referencing of bioregions – the substantive body of the determination remains unchanged. (NSW Threatened Species Scientific Committee, Blue Gum High Forest in the Sydney Basin Bioregion - Determination to make a minor amendment to Part 2 of Schedule 1A of the Threatened Species Conservation Act (October 2011)). When the Biodiversity Conservation Act 2016 (BC Act) came into force and the TSC Act was repealed, the content of the Schedules to the TSC Act was transferred to the Schedules to the BC Act.

14. Paragraph 9 of the determination states that “Highly modified relics of the community also persist as small clumps of trees without a native understorey”. The occurrence on the site of 9 Sutherland Avenue represents such a highly modified relic and is still recognised as constituting part of remaining occurrence of BGHF.

Amended plans

15. Following the filing of the initial Class 1 Application (Exhibit A), the Applicant continued to refine the plans, in part responsive to the views expressed by the Respondent.

16. At the commencement of the hearing, the Applicant sought leave to rely on the amended plans and documents listed in the table below:

17. Ms McKelvey outlined the changes introduced by the amended plans. The plans did not alter the proposed building footprint but proposed changes to the design of the building and to the surrounds.

18. The Respondent did not object to leave being granted, subject to there being an order that the Respondent's consequent costs thrown away be paid on an agreed or assessed basis by the Applicant. The Applicant accepted that this was appropriate. I made orders permitting reliance on the new plans, and for the payment of costs thrown away.

19. During the joint conferencing of experts, the experts had before them the revised plans and documents and their conclusions and recommendations reflect the amended plans.

20. Of the changes, those that would be most obviously visible to observers would be a change from a flat roof to a pitched roof and changes to the front fence and the design of the front garden, so that it would present as a more informal garden. There are changes to the first-floor footprint with a stepping back of the northern and western façades. There are changes to the colour palette and to the windows. The stormwater engineering changes provide details of the absorption trench system to be situated in the tennis court area. Council's preference had been for the stormwater system to be connected to Council's stormwater drainage network, but this would require inter-allotment drainage. The owners of the neighbouring lots, through which the inter-allotment drainage would be required, both declined permission (Exhibit C).

21. Following the lodgement of the development application the Respondent notified surrounding residents and received six submissions (Exhibit 2, tabs 27-33). These raised a large number of issues. Following receipt of the submissions, the Respondent requested a meeting with the Applicant to discuss significant issues, including those raised by the objectors. The Respondent and Applicant met and the Applicant was requested to prepare concept sketches for an amended design to retain T 38 at the western frontage of the property and the BGHF at the rear of the site.

22. The landholder contacted the Respondent by email and advised that retention of T 38 was not viable and that they were preparing concept sketches for an amended design to remove T 38. The position of the landholder was confirmed formally on 28 August 2019.

23. The Respondent advised that it did not invite amended plans and proceeded to determine the application by refusal. (The above chronology was derived from the SOFAC (Exhibit 1)).

The planning framework

24. The environmental plan applicable to the site is Ku-ring-gai Local Environmental Plan 2015 (KLEP). The aims of the Plan are provided in cl 1.2(2)). Of the aims, several are relevant to the application:

(2)  The particular aims of this Plan are as follows—

…

(a)  to guide the future development of land and the management of environmental, social, economic, heritage and cultural resources within Ku-ring-gai,

(b)  to protect, enhance and sustainably manage the biodiversity, natural ecosystems, scenic values, water resources and ecological processes within the catchments of Ku-ring-gai for the benefit of current and future generations,

…

(f)  to recognize, protect and conserve Ku-ring-gai’s indigenous and non-indigenous cultural heritage,

…

25. The site occurs within the R2 Low Density Residential Zone:

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 provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.

2   Permitted without consent

Home occupations

3   Permitted with consent

Bed and breakfast accommodation; Boarding houses; Building identification signs, Business identification signs; Centre-based child care facilities; Community facilities; Dwelling houses; Environmental protection works; Exhibition homes; Flood mitigation works; Group homes; Health consulting rooms; Home-based child care; Home businesses; Home industries; Hospitals; Neighbourhood shops; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Recreation areas; Respite day care centres; Roads; Secondary dwellings; Tank-based aquaculture

4   Prohibited

Any development not specified in item 2 or 3

26. The consent authority (in present circumstances, the Court standing in the shoes of Council) must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone (KLEP, cl 2.3(2)). The application is for construction of a dwelling house – being ‘a building containing not more than one dwelling’ (Dictionary to KLEP). The Land Use Table provides that dwelling houses are permissible with consent.

27. Controls on building height are specified in cl 4.3 of KLEP and mapped in the height of buildings map (Exhibit 2, tab 12). The proposal is for a building which is compliant with the requirements.

28. The Floor Space Ratio (FSR) permitted on the site is determined by the relevant control in cl 4.4(2A) of KLEP and the Floor Space Ratio Map (Exhibit 2, tab 13, folio 239). The maximum permissible FSR varies with the size of the lot. As the lot size of 7 Sutherland Avenue is greater than 1700 m², the applicable maximum FSR is 0.3:1.

29. Clause 5.9AA of the Standard Instrument—Principal Local Environmental Plan has been repealed – this was colloquially referred to as the tree protection order. The functions previously provided for by cl 5.9AA now reside in State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP). However, the savings provision in cl 26 of the Vegetation SEPP applies:

26   General savings and transitional provisions

(1)  A development control plan that is in force on the commencement of this Policy and that relates to the vegetation for which a permit or development consent is required to clear the vegetation is taken, on that commencement, to be a development control plan for the purposes of this Policy (except to the extent that it is inconsistent with this Policy).

(2)  An application for a permit to remove vegetation under an environmental planning instrument that has not been determined on the commencement of this Policy may continue to be dealt with as if it had been made under this Policy.

30. The Ku-ring-gai Development Control Plan 2015 (KDCP) commenced prior to the commencement of the Vegetation SEPP so the assessment of any tree removal proposed is to be carried out under the provisions of the KDCP and a permit under the Vegetation SEPP is not required.

31. Discussion of heritage occupied a considerable part of the hearing. Clause 5.10 of KLEP applies to the site, as the site is within a heritage conservation area. The objectives of the clause are:

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 Ku-ring-gai,

(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.

…

of which cl 5.10(1)(b) is most applicable.

32. Subclause 5.10(2) requires that development consent is required for any of a number of actions, including

(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.

…

(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).

…

33. Subclause 5.10(2)(a)(iii) requires development consent for work on any tree within a heritage conservation area – T 38 is such a tree. The development application for which consent is sought includes removal of T 38. Subclause 5.10(2)(c) permits removal of a single tree without consent if the tree is a risk to human life and property. T 38 is assessed as being in good health and is thus not a foreseeable risk.

33. The site falls within the Wahroonga Conservation Area – C1 (KLEP, Sch 5 Pt 2). 9 Sutherland Avenue is not of itself a heritage item. The statement of significance for the Wahroonga Conservation Area – C1 appears in Exhibit 2, tab 35, folio 569.

”Wahroonga Conservation Area – C1 (KLEP 2015)

Wahroonga Heritage Conservation Area is of heritage significance for its distinctive residential streetscapes which evidence the transformation of early subdivisions of the 1890s into the later rectilinear grid lot street and lot pattern of later subdivisions including the Wahroonga Heights Estate. The area contains a significant collection of grand residences from the Federation and Inter-war periods, built following the opening of the North Shore railway line in 1890, many of these are the residences of prominent families of this period, and often designed by prominent architects, for example the 1894 Ewan House (formerly Innisfail) designed by architect Herbert Wardell for John Thomas Toohey, and eleven houses designed by the architect Howard Joseland. It also contains mid to late twentieth century development that contributes positively to the significance of the conservation area. The western end of Burns Road and western side of Coonanbarra Road are representative streetscapes of intact more modest Federation period houses.

The through-block pathways and formal avenues of street trees within the area (in Burns Road, Water Street and Coonanbarra Road) along with the formal landscaping of Wahroonga Park, and its distinctive John Sulman-designed shops in Coonanbarra Road facing the Park, are a tribute to the work of the Wahroonga Progress Association in the early 20^th century (which included Sulman as a member), and have result in a high-quality and distinctive residential landscape.”

35. Biodiversity protection is provided for by cl 6.3 of KLEP:

6.3   Biodiversity protection

(1)  The objective of this clause is to protect, maintain and improve the diversity and condition of native vegetation and habitat, including—

(a)  protecting biological diversity of native fauna and flora, and

(b)  protecting the ecological processes necessary for their continued existence, and

(c)  encouraging the recovery of threatened species, communities, populations and their habitats, and

(d)  protecting, restoring and enhancing biodiversity corridors.

(2) This clause applies to land identified as “Biodiversity” on the Terrestrial Biodiversity Map.

(3)  Before determining a development application for development on land to which this clause applies, the consent authority must consider—

(a)  the impact of the proposed development on the following—

(i)  any native vegetation community,

(ii)  the habitat of any threatened species, population or ecological community,

(iii)  any regionally significant species of plant, animal or habitat,

(iv)  any biodiversity corridor,

(v)  any wetland,

(vi)  the biodiversity values within any reserve,

(vii)  the stability of the land, and

(b)  any proposed measure to be undertaken to ameliorate any potential adverse environmental impact, and

(c)  any opportunity to restore or enhance remnant vegetation, habitat and biodiversity corridors.

(4)  Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development—

(a)  is consistent with the objectives of this clause, and

(b)  is designed, and will be sited and managed, to avoid any potentially adverse environmental impact or, if a potentially adverse environmental impact cannot be avoided—

(i)  the development minimises disturbance and adverse impacts on remnant vegetation communities, habitat and threatened species and populations, and

(ii)  measures have been considered to maintain native vegetation and habitat in parcels of a size, condition and configuration that will facilitate biodiversity protection and native flora and fauna movement through biodiversity corridors, and

(iii)  the development avoids clearing steep slopes and facilitates the stability of the land, and

(iv)  measures have been considered to achieve no net loss of significant vegetation or habitat.

(5)  In this clause—

biodiversity corridor means an area that facilitates the connection and maintenance of native fauna and flora habitats and, within the urban landscape, includes areas that may be broken by roads and other urban elements and may include remnant trees and associated native and exotic vegetation.

36. Clause 6.3 requires that the consent authority must consider the matters specified in subcl 6.3(2)(a)-(c), while subcl 6.4(4) is a prerequisite for the granting of consent requiring that I be satisfied that the development proposed meets subcl (4)(a) and (b).

37. The value of a corridor may vary for different species. Some species utilising the corridor may require stepping stones rather than absolute continuity, but for others continuity is essential. The definition given above in subcl (5) specifically allows for breaks in continuity.

38. Application of cl 6.3 is triggered by inclusion on the Terrestrial Biodiversity Map (cl 6.3(2)). The map appears as Exhibit 2, tab 15 but at a more useful scale is included in a series of maps in the BIA included in Exhibit 6. Figure 11 is reproduced below:

39. The implementation of KLEP is supported at a finer scale by provisions of Ku-ring-gai Development Control Plan 2015 (KDCP), the relevant provisions of which were included in those Parts of the KDCP included in Exhibit 2, Tabs 20-26. These are discussed as they arise in this judgment.

Evidence

40. Joint expert reports were tendered as follows:

Field	Applicant	Respondent	Exhibit No.
Arboriculture	Mr N Shields	Ms R Askew	4
Landscape	Mr J Storch	Ms R Askew	5
Ecology	Mr J Whyte	Ms E Ashby	6
Heritage	Mr G Patch	Ms L Goldstein	7
Town Planning	Mr A Minto	Mr S Wilson	8
Civil Engineering – Stormwater	Mr D Zaiter	Mr R Guerrara	9

41. In addition to the joint expert report from the arboriculturists, the Respondent tendered in Exhibit 3, tab 2 a report commissioned by the Applicant from GBG Australia -‘Geophysical investigation to map tree roots at 9 Sutherland Street (sic) Wahroonga NSW’ reporting on use of ground penetrating radar and included on page 10 a plan view of the roots associated with the Tree Protection Zone (TPZ) of T 38.

42. The civil engineering/stormwater experts were not called to give oral evidence. The other experts gave concurrent evidence in their respective disciplines and were cross-examined. Prior to the joint conferences, the experts had been provided with the plans which were subsequently admitted as the plans on which the Applicant now relies.

43. The issues that arose in this matter, as in many others, involved overlap between several disciplines and the individual experts were necessarily required to comment beyond the narrow confines of their disciplines. This can be appropriate, but at times, however, there was a tendency to either stray beyond what was appropriate, or to claim supremacy for a particular construction without acknowledgement that weight was required to be given to countervailing views. I draw attention to a number of examples of this when discussing some of the evidence.

Arboriculture evidence

44. The amended plans resolved a number of contentions originally raised by the Respondent in the SOFAC (Exhibit 1). The contentions that remained between the arboricultural experts related to the T 38 and BGHF.

45. The experts differed as to whether or not T 38 should be removed (Contention 1(c)).

46. The Applicant's arboricultural experts’ report (Attachment B to Exhibit 4 at page 13) indicated that T 38 had been given the highest rating (1) on the basis of landscape and retention value. The experts agreed that T 38 was of good form and in good health.

47. In relation to contention 1(c) particular (iv) the experts agreed that the removal of T 38 was not in accordance with cl 5.10 KLEP (heritage conservation). The experts also agreed that for particular (v) the removal of T 38 would not be in accordance with the aims of the Vegetation SEPP:

3   Aims of Policy

The aims of this Policy are—

(a)  to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and

(b)  to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation.

48. In preparing the joint report, the experts were addressing arboricultural issues and not heritage matters which were separately addressed by other experts.

49. The arboricultural experts in their report provided no details of biodiversity values which were at risk from the removal of T 38, whereas the ecological experts gave the topic consideration.

50. Contention 1(j) is that the proposal fails to conserve the environmental heritage of Ku-ring -gai in the setting of the Heritage Conservation Area (HCA). This is an issue covered by the heritage experts, but the arboricultural experts repeated that the removal of T 38 was not supported for the grounds articulated in the contention.

51. Contention 4 addresses unacceptable earthworks and particular (b) is that the earthworks required the removal of T 38. The proposal as advanced by the Applicant is not compatible with the retention of T 38. This was acknowledged by Mr Shields, but he argued that Norfolk Island Pine is not endemic to the area. An alternative floor plan had been proposed by the Respondent (Attachment A to Exhibit 4) to facilitate the retention of T 38 but moving the footprint further east.

52. Mr Shields considered that this would involve greater impact on the BGHF CEEC. Acknowledging that there would be an initial loss of amenity if T 38 were removed, in his opinion protecting the endangered ecological community to the rear of the property should be given greater weight than the retention of T 38. Mr Shields recommended a replacement planting of a Syncarpia glomulifera – Turpentine – if T 38 were removed.

53. Ms Askew did not support removal of T 38 and did not agree that the alternative footprint plan would see construction closer to BGHF and that there would be no additional impacts on the community.

54. Ms Askew submitted that the significance of T 38 in its current landscape setting is not diminished because it is an exotic species particularly in the context of the HCA.

55. Contention 4(e) is that the HCA streetscape is unacceptably impacted by the removal of T 38.

56. The experts agreed T 38 was visually significant and that due to the location of T 38 near Sutherland Avenue, and the overall height and canopy spread of the tree its removal will be apparent, resulting in an erosion of the landscape heritage character of Sutherland Avenue. T 38 cannot be replaced with another tree species attaining similar proportions due to lack of space between the proposed dwelling and the front boundary.

57. Contention 5 raises issues of unacceptable building form and design. The front setback to the dwelling does not satisfy the objectives of Part 4A.2 of KDCP as the setback requires the removal of T 38 and fails to protect significant vegetation and maintain the streetscape character of the heritage conservation area.

58. The experts were in agreement that the Applicant has relied upon the built form controls to justify removal of T 38:

“It is our opinion the planning controls, specifically setbacks, are only one consideration in the overall analysis of the attributes and constraints of the site. Vegetation and trees are of equal importance in achieving a sensitive outcome for the site. The broader application of the setback controls does not outweigh the significance and contribution to the site and surrounding area that this tree makes.

Further, it is an acceptable practice that if the development is approved a replacement trees should be planted in the front yard however, the planting of replacement tree cannot offset the loss of, or compensate for, the maturity and visual and landscape significance of T 38. An attempt at replacing T 38 as an isolated specimen is also unlikely due to reduced space within the front setback.” (Exhibit 4 page 10)

59. The cross-examination concentrated on T 38 and the Alternative Plan (Annexure A, Exhibit 4). Since the alternative plan involves issues for the ecology experts and the planners, it will be discussed later.

60. Ms McKelvey asked both witnesses:

“[MCKELVEY]: So is the Commissioner, would the Commissioner be correct in understanding your evidence that because T38 is healthy and would otherwise, all things being equal, be worthy of retention in its own right from an aboracultural perspective? That’s what you focussed on, just the fact that you are both arborists, you're bound to like trees and that from an aboracultural perspective it warrants retention. Is that correct?

WITNESS ASKEW: From my experience with trees, yes, there are a lot of healthy trees on the site and there are healthy trees that we're allowing to be removed. But this particular tree is on the high end of the scale of significance in relation to its age, the fact that it's located in a heritage conservation area. It's unusual to get an Norfolk Island Pine of this size and this significance. So that's why we come to this decision because it is a special tree and we both feel - felt that there was no justification for its removal. I mean I let healthy trees be removed all the time.

[MCKELVEY]: Mr Shields, do you agree with that summary? I just want to make sure that Ms Askew is not speaking for you?

WITNESS SHIELDS: Look I'm looking at it from the perspective of the tree's prominence. I don't wilfully destroy a tree for the sake of destroying a tree. Yes, it is healthy. Yes, it is high up there on the scale of prominence and significance. But I do believe it creates an issue with the other planning instruments which I am not proficient in.”

(Tcpt, 16 November 2020, p 25(27-50))

61. Mrs Askew was asked:

“[MCKELVEY]: All right, thank you. From an - Ms Askew, from an arborist's perspective, if you had a choice between protecting the EEC at the rear of the site, protecting and enhancing the EEC at the end - at the back of the site and the protection of T38, if you had to choose, which do you consider should be given greater weight in the balancing exercise that the Court's required to undertake?

WITNESS ASKEW: Part of my job is - I'm not an ecologist. Part of my job is to put equal weight on whether it's a native or it's an exotic. As a landscape assessment officer that's what I do, and I don't see that there's anymore significance from my job description as to whether it's a native or an exotic. [Ku]-ring-gai is made up of native vegetation intermixed with these significant exotic trees that we have, that's the typical character of [Ku]-ring-gai. So there's no extra weight on the Blue Gum High Forest just because it's native veg in my opinion. That's the way I look at it from a landscape assessment point of view. The ecologists look at it from purely a biodiversity point.

[MCKELVEY]: You accept, don't you, that it's mere fact that it's an EEC gives it more statutory weight?

WITNESS ASKEW: It's not something that I necessarily take into consideration and the fact of the matter is that the EEC is protected on this site.”

(Tcpt, 16 November 2020, p 26(1-23))

62. I interpose that Ms Askew was being cross-examined at this point as an arboricultural expert and not as landscape assessment officer.

63. The experts were also asked about what tree would be appropriate to replace T 38, and the following exchange took place:

“[MCKELVEY]: Sorry, I was having some audio difficulties. Commissioner, there was also one other issue that has arisen from the evidence of Ms Askew and Mr Shields is in respect of if tree 38 is permitted to be removed, what it should be replaced with? Mr Shields gives evidence that it should be replaced with a Turpentine. Ms Askew gives evidence that it should be a fastigiate. I was hoping that the experts might be able to resolve what type of tree it is supposed to be? That's a question for both of them.

WITNESS ASKEW: Exotic obviously.

[MCKELVEY]: Why is it obvious that it should be an exotic sorry?

WITNESS ASKEW: Okay, so this is where ecology and heritage fight and it's again - it hasn't been identified as a biodiversity area offset at the front, then we're taking out a significant exotic specimen and then just replaced it with another exotic specimen.

[MCKELVEY]: Even if it virtually adjoins the blue part of the - I think it was the core buffer of the green area, the green corridor?

WITNESS ASKEW: So I've got my landscape design hat on here and in my opinion it should be an exotic species precedent. If it was part - if it had been highlighted as part of the biodiversity area then I would have no argument with it being a native.

[MCKELVEY]: All right. Mr Shields, what do you say about that?

WITNESS SHIELDS: To be honest being an arborist and a horticulturist I concur with what Ms Askew just said. I strongly believe its touching on the Blue Gum High Forest so let's use a native species but - so I will bow to Ms Askew.

WITNESS ASKEW: Because it's also the consideration of limited space in that front setback.

WITNESS SHIELDS: Yeah.

WITNESS ASKEW: It's, you know, you could be putting a blue gum in there it's going to create ongoing issues.

WITNESS SHIELDS: I think to be honest - apologies for talking over you, Ms Askew, it needs to be a super advanced whatever. So exotic, endemic, let's take that away from the scenario and say it's got to be planted back as a 200 or 400 litre specimen to bring back some of the amenity.

[MCKELVEY]: I've no further questions, Commissioner.

SMITH: Just one question arising. Ms Askew, Mr Shields, how long would it take, just out of curiosity for even a 200 litre to get to the height and prominence and landscape value that this tree currently offers? We're talking--

WITNESS ASKEW: 100 years.

WITNESS SHIELDS: To get it to that size, yes. But you can buy something - you can purchase a 400 litre specimen of something at the moment but yes, I'd say 100 years to get to that size.”

(Tcpt, 16 November 2020, pp 34(30)-35(45))

64. Ms Askew did not identify a replacement in Exhibit 4 but had done so in Exhibit 5.

Landscape Evidence

65. The landscape experts in their expert report (Exhibit 5) agreed that the revised landscape architectural plans which had become part of the application satisfactorily addressed matters arising from the contentions. The experts disagreed over Contention 3, particular (d) – which concerns the removal of T 38. Ms Askew's position was the same as she had advanced in Exhibit 4. Mr Storch's position was that:

“It is my opinion that to enable the property to be developed with a suitably sized residence that tree 38 needs to be removed. I have also been advised that the alternative residence footprint as indicated is impractical and creates a disjointed residence.” (Exhibit 6 p 6)

66. The experts did agree that should the proposed development be approved a replacement tree (for T 38) such as a Liriodendron tulipifera (tulip tree) ”Fastigiata” should be provided in the front setback.

67. Tulip tree is a deciduous tree that at maturity may be 40 m high. Before the leaves fall in autumn, they may turn golden. The species is native to southern USA. “Fastigiata” refers to the growth form of the variety as the canopy is narrow and columnar in appearance.

68. The parties were of the opinion that there was no need to call the landscape experts, but as both were present in Court, and as there were number of questions I wish to ask them, they were called.

69. During cross-examination, the arboricultural experts had suggested that any replacement for T 38 would need to be planted as an advanced or super advanced plant in a 400 L container – I asked the landscape experts about the availability of tulip trees of this size. Mr Storch thought that the 400 L size would not be readily available – but a tree of that size could be contract grown if it were ordered at the start of the project “Failing that I suppose there is other similar species that would also be available.” (Tcpt, 16 November 2020, p 38(39-40)). Ms Askew agreed with Mr Storch.

66. Dr Smith put to the experts that their agreement about a replacement for T 38 focused on heritage and landscape issues and that they had not taken ecology into account; the experts agreed this was the case and the following exchange occurred:

“WITNESS STORCH: Ms Askew also spoke maintaining that we would both potentially defer to the ecologists depending on the outcome of the Court or course which was--

SMITH: But otherwise you maintain your disagreement as set out in the joint report in relation to removal of tree 38 in the first place?

WITNESS STORCH: Correct.

SMITH: Thank you, Commissioner.

[MCKELVEY]: To round that out, the disagreement is I think Mr Storch you say it can be removed and Ms Askew says it can't. I think that's right isn't it?

WITNESS STORCH: Yes.

[MCKELVEY]: Ms Askew, do you agree with what Mr Storch has just said there about deferring to the ecologists or do you have a different view?

WITNESS ASKEW: If it is required as part of the offsetting then yes, I would defer to the ecologists. If it's not required as far as the offsetting then I would prefer an exotic species.

WITNESS STORCH: I would agree with Ms Askew.”

(Tcpt, 16 November 2020, p 39(17-40))

71. Reflecting on both the management of the BGHF CEEC, and that of any replacement tree for T38, the timescale of concern is very long. Both the arboricultural and landscape experts were in agreement that it was likely to be at least 100 years for a replacement tree to achieve dimensions similar to those of the existing T 38. The environment 100 years hence is likely to be very different from that of the present with higher atmospheric carbon dioxide concentrations and changed climatic conditions. While predictions of the future are of great uncertainty questions arose in my mind as to whether the trees planted now would respond to likely environmental change. I raised this with the parties’ legal representatives, and it was agreed to seek the views of the experts in writing.

72. The experts’ response became Exhibit 14. The experts agree that T 38 has survived extreme weather events over the past hundred years, has a well grown root system and as a species is resistant to strong winds and should be able to withstand fluctuations in weather patterns. Shale soils on the site provide good growing conditions. There is no certainty that a replacement tree will attain the dimensions of T 38, and the continued good health of T 38 into the future will depend on good maintenance practices.

73. Continuity of good management over a century is a hope rather than an expectation, but the experts’ consideration suggests that long-term survival of T 38, or of a replacement, is a possibility.

Ecology evidence

74. The joint report of the ecologists was Exhibit 6. It was agreed that Exhibit 6 should also include, for ease of cross-referencing, the BIA prepared by Ms Ashby, which was also part of the amended plans on which the Applicant relies. Annexure C to Exhibit 6 is an annotated Draft Table of Contents of a Vegetation Management Plan (VMP) for 9 Sutherland Avenue. This included at page C-3 a plan showing six management units – this plan is identified as concept only to be finalised in conjunction with a landscape architect.

75. Clarification was required over what was intended as the use for MU2 which was labelled as ‘Native Lawn’. Ms Ashby explained the concept was something like a more open area in natural BGHF (albeit with rectilinear boundaries) with grasses and low herbs characteristic of the BGHF flora. The species recommended would not withstand heavy foot traffic or the playing of games and it was not intended for active use. Ms Ashby indicated during questions that that the VMP could specify matters such as frequency and height of mowing and types of use that would be permissible.

76. Mr Whyte drew attention to his observation of the removal of approximately 12 juvenile blue gums from within the proposed tennis court. Nothing said in the joint report identified the agent of removal, although it could have been through grazing and not necessarily human activity. Ms Ashby had not seen these seedlings and had not formally assessed their loss. However, she was of the opinion that amelioration for any such loss could be provided for in the VMP she had proposed. According to Mr Whyte, the old existing tennis court contains numerous BGHF groundcovers as well as regenerating seedbank (Exhibit 6, p 4). The existing tennis court was not inspected during the site visit, but only viewed from its northern end so I cannot confirm the presence of these species but have no reason to doubt Mr Whyte. Whether there is a viable regenerating seed bank is a matter of speculation; any seedlings might have arisen from the seed bank, but might also represent germination of seeds arriving in the seed rain and not yet incorporated in the soil.

77. On day one of the hearing, I had queried what was meant by the term “Key Vegetation Community” which appeared in parts of the KDCP Part 18 (Exhibit 2, tab commencing at folio 317).

78. Dr Smith asked Mr Whyte whether he could respond to my query.

79. Mr Whyte's response was:

“WITNESS WHYTE: Yes, the key vegetation communities refer to listed threatened ecological communities, thus being within incurring by Duffy's Forest, Turpentine and [Blackbutt] Forest and Blue Gum High Forest.”

(Tcpt, 17 November 2020, p 6(13-15))

80. A more comprehensive explanation is contained in the definitions section of Part 18.1 of KDCP at pp 1-24 (Exhibit 2 behind tab 22 at unpaginated page before folio 317):

“Key vegetation communities contain significant vegetation. These are defined as:

- communities currently listed under the NSW Threatened Species Conservation (TSC) Act 1995, NSW Fisheries Management (FM) Act 1994 and/or the Environmental Protection and Biodiversity Conservation (EPBC) Act 1999

- Coastal Shale Sandstone Forest (this community type 92% cleared as listed in the VIS Classification Database. That is, has less than 8% of its estimated distribution prior to 1750 remaining in the catchment area.

Vegetation condition is a key factor determining the inclusion of remnant vegetation as a threatened ecological community, under the TSC Act, FM Act and EPBC Act. In order to recognise that future variations in federal and state scientific committee determinations and their interpretation may occur, Key Vegetation Communities have been based upon vegetation community not condition. As such Key Vegetation Communities may include areas outside the scope of conditions required to meet the determination.”

81. This provides a definition in terms of listed threatened ecological communities, but the explanatory material is confusing.

82. KDCP 18.1 has not been updated to reflect the replacement of the TSC Act by the BC Act. The entities listed in the relevant State Acts are threatened ecological communities (TEC) (critically endangered, endangered and vulnerable). Although many TECs are defined in terms of vegetation communities, they also include fauna and some listed TECs are not defined in terms of flora at all. The explanation also states that vegetation condition is a key factor determining the inclusion of stands of remnant vegetation as part of a TEC. This is not the case for the State legislation, although it is for the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) (and on the Commonwealth's interpretation of condition, the EPBC Act listing of BGHF is not applicable to most BGHF in Ku-ring -gai).

83. As the term ‘Key Vegetation Community’ (KVC) is used in KDCP, it also includes Coastal Shale Sandstone Forest; this is not a TEC in a formal sense, but nevertheless has been very substantially reduced area in area since European colonisation.

84. The concept of KVC and its subdivisions becomes relevant in relation to discussion of the Greenweb on the side-depicted in Figure 17 – Appendix 1 to the BIA in Exhibit 6).

85. The categories of the Greenweb are defined in KDCP - Part 18.3 – Support for Core, Part 18.4 Landscape remnant, and Part 18.5 Buffer areas.

86. The area on the western border of the site mapped as 16.3 m² Landscape Remnant was the subject of questioning of Ms Ashby by Dr Smith (Tcpt, 17 November 2020, pp 6(47) – 8(3)).

87. Dr Smith asked a number of questions as to whether Ms Ashby had investigated the seed bank in the soil, and whether, in the VMP, the area should be treated as BGHF.

88. Ms Ashby had not investigated the seed bank (and indeed to have done so for such a small area would be unusual in any BIA). She pointed out that there was a well-established garden, including a Magnolia, in this area and also that the Greenweb mapping over a wider area (depicted in Figure 12 p 47 in the BIA, Exhibit 6) included the carriageway of Sutherland Avenue, which clearly has no vegetation of any sort, and extended west over part of the Knox Grammar School Preparatory School campus. She considered it inappropriate to regard the 16.3 m² patch as BGHF.

89. However, if there was a decision that the area should be restored to BGHF, she ‘would be happy to accept any extra Blue Gum High Forest restored sites on offer’ (Tcpt, 17 November 2020, p 7(3)).

90. Ms Ashby was extensively questioned by Dr Smith about impacts on the BGHF on the eastern part of the site from the Applicant’s proposal and the alternative footprint proposed by the Respondent in Annexure 4 to Exhibit 4. Ms Ashby remained of the view that the encroachments within the TPZs in the eastern part of the site were acceptable, particularly in the light of proposed augmentation of BGHF proposed in the VMP.

91. Ms Ashby was questioned by Dr Smith about the ecological value of T 38 (Tcpt, 17 November 2020, pp 15(31)-16(15)). Ms Ashby thought that relatively few bird species would be likely to utilise T 38 for roosting, and very few, if any, in Ku-ring-gai would nest in the tree. I would agree with Ms Ashby that relatively few bird species are likely to utilise T 38 but the observations are very limited – Ms Ashby was on the site on a single day in winter (BIA p 4, section 2.3.2).

92. Mr Whyte was inclined towards T 38 having greater ecological value, but I would accept Ms Ashby’s conclusion that, as habitat for vertebrates, T 38 would be of low value, However it has some habitat value, and as a large tree which is still growing vigorously, it is sequestering carbon.

The Biodiversity Impact Assessment

93. A BIA was prepared by Ms Ashby. There was a requirement to produce a BIA as part of the application. The BIA was included as an additional component to the joint report of the ecologists, but was also included as an accompanying document to the amended plans which are before the Court.

94. The BIA includes discussion of the EPBC Act as well as the BC Act. Any requirements of the EPBC Act are not matters for the Court: Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (2010) 210 LGERA 126; [2010] NSWLEC 48 at [77]. Vegetation referred to as BGHF is a CEEC on the schedules to the EPBC Act, but for a stand to qualify for inclusion under the EPBC Act, it must satisfy condition criteria. The occurrence on the site is recognised as being part of the CEEC under the BC Act; it is not so recognised under the EPBC Act. I would therefore agree with Ms Ashby’s conclusion in the BIA that a need for referral of the proposal to the Commonwealth by the Applicant does not arise.

95. There is no doubt that vegetation on the site is a relic of BGHF and is recognised as such for purposes of the BC Act. Ms Ashby documents the flora of the site at the time of her investigation, identifying that the majority of the species are not native, and identifies only five species as being part of the BGHF. None of these is a threatened species. The five species are ones included in the Final Determination for BGHF – but the Final Determination also notes in par 3 that:

“the total species list of the community is considerably larger than that given above, with many species present in only one or two sites or in low abundance. The species composition of a site will be influenced by the size of the site, recent rainfall or drought condition and by its disturbance (including fire) history”.

The Final Determination also notes that ‘above ground individuals of some species may be absent, but may be represented in the soil seed bank or as underground dormant structures’.

96. Of the native species recorded by Ms Ashby a number are not locally indigenous, but for locally indigenous species occurring at the site, while they are not all characteristic species of BGHF as listed in the Determination, they should be regarded as being part of BGHF as represented on the site. Inclusion of these additional species in the list for the site would increase it slightly but would not change the position that BGHF on the site is very species poor.

97. Ms Ashby applied the test in s 7.3 of the BC Act to determine whether the proposal would be likely to significantly affect threatened species or ecological communities (the 5-part test). No threatened species have been recorded from the site, although habitat for three threatened fauna species occurs on the site and Ms Ashby's account discusses these.

98. The area of BGHF on the site was calculated by aggregating the area of the TPZ of BGHF canopy trees on the site. Ms Ashby calculated an area of 560.5 m², of which 82.6 m² would be impacted under the proposal as it stood when the assessment was carried out. It then becomes necessary to determine whether the Biodiversity Offsets Scheme (BOS) is triggered by reference to the threshold applicable to the site (BC Act, s 7.4; Biodiversity Conservation Regulation 2017 (BC Regulation), cl 7.1). The threshold is specified in the Table in cl 7.2 of the BC Regulation as, for a lot of 1 ha, 0.25 ha for flight the whole site is less than 0.25 ha, so even if the proposal involved clearing the entire site, the BOS would not be invoked.

99. Ms Ashby supported the removal of T 38, and proposed a replacement tree in the form of a Syncarpia glomulifera, thus agreeing with Mr Shields in Exhibit 4, but disagreeing with Mr Storch and Ms Askew in Exhibit 5.

Up a garden path

100. It is up to parties to decide on the evidence they lead, but it would be expected that evidence of experts would have a basis in fact or recognized theory rather than pure speculation. In this matter, irrelevant and unsupportable evidence was advanced in relation to aspects of the ecology, and conservation of Norfolk Island Pines and the history of T 38.

101. The presence on Norfolk Island of both pine trees and New Zealand flax (Phormium tenax) had been reported by James Cook on his second voyage to the Pacific in 1774. Both plants were viewed as potentially important resources for the Royal Navy so that very shortly after the arrival of the First Fleet in 1788 Norfolk Island had been claimed for Britain and subsequently colonised.

102. Norfolk Island is some 1600 km north-east of Sydney, and 1100 km north-west of Auckland. Despite its closer proximity to New Zealand, Norfolk Island is, politically, part of the Commonwealth of Australia, but it is not part of New South Wales.

103. Following colonisation of Norfolk Island, large numbers of Norfolk Island Pines were felled. In 1788, the global distribution of A. heterophylla was restricted to Norfolk Island and the two smaller islands, Nepean and Phillip, close to the south. Norfolk Island has an area of 34.6 km², with the two smaller islands making up under 2 km². Geologically, the islands are young, being mostly formed of basalt about 3 million years old.

104. The Respondent (Mr Whyte, Tcpt, 17 November 2020, p17(11-12); Dr Smith submissions at par 14) raised the inclusion of A. heterophylla as a vulnerable species on the International Union for the Conservation of Nature (IUCN) Red List. The IUCN is an international body which, amongst other activities, maintains an international list of threatened (vulnerable, endangered and critically endangered) species. The IUCN methodology for assigning species to these categories provides the model applied in many jurisdictions – in national and state legislation. However, the IUCN listings themselves do not have any direct application within national jurisdictions.

105. Although the Respondent referred to the IUCN Red List, no citation was provided. However, the Red List and its supporting documents are readily available. While it is true that Norfolk Island Pine is listed as a vulnerable species, the overall evaluation of species within the genus Araucaria identifies Norfolk Island Pine as the only species in which the population trend is increasing. The detailed assessment of the species concluded that the current population status is improving (Thomas, P 2011. Araucaria heterophylla. The IUCN Red List of Threatened Species 2011: e.T30497A9548582. (accessed 23 March 2021)).

106. Mr Whyte stated:

“WITNESS WHYTE: No, it's not currently listed on the Biodiversity Conservation Act but it is identified on the [IUCN Red List] as a vulnerable species. And again it's outside of its range by what's currently happening at the moment with threatened species was that they're relining listings with the [I]UCN criteria. And that's not to say that that species, while it's outside ..(not transcribable).. might not be captured in the immediate future.”

(Tcpt, 17 November 2020, p 17(11-16))

107. A. heterophylla is not currently listed on the schedules to the BC Act, nor was it listed under the predecessor TSC Act. Regardless of any future changes by the Commonwealth to the EPBC Act, A. heterophylla will not be eligible for listing under the BC Act given that it is not indigenous to New South Wales.

108. While Norfolk Island has a high proportion of endemic species in its flora, of which a number are included on the threatened species schedules to the EPBC Act, Norfolk Island Pine is not so listed.

109. Not only is Norfolk Island not within New South Wales’ jurisdiction, it is biogeographically distinct from New South Wales. There are species on the schedules to the BC Act which do occur on Norfolk Island, some of which also occur on Lord Howe Island and some on both Lord Howe Island and the mainland. The species composition of the Norfolk Island flora contains elements from New Zealand and Australia, but also a large number of endemics. Taktahjan A ((1986) Floristic regions of the world, University of California Press, Berkeley) in his global analysis of world phytogeography recognised both Lord Howe Island and Norfolk Island as constituting separate phytogeographic provinces (Lord Howean province (p 297) and Norfolkian province (p 296) in the Neozeylandic region of the Holantarctic kingdom). This gives a high importance to conservation in situ on Norfolk Island, which is a Commonwealth responsibility, but not one for New South Wales.

110. Although there has been a substantial reduction in population size since 1788, the species is well represented in the Norfolk Island National Park. Outside reserves, Norfolk Island Pine trees on the island more than 4.5 m tall are protected trees (as defined in s 5 of the Trees Act 1997 (Cth) (Norfolk Island) and included in the Schedule to the Trees Regulations 1999 (Cth) (Norfolk Island)).

111. Mr Whyte suggested that T 38 may be important as a genetic resource for future conservation of the species. (This was first raised in oral evidence; it had not been discussed during joint conferencing).

112. Norfolk Island Pine is now very widely distributed globally. The species was planted in Sydney very shortly after the Norfolk Island settlement was established, and during the 19th century planting occurred in many countries. In a number of locations, the plantings not only survived but seeding into natural habitats has occurred, for example on Lord Howe Island and in New Zealand.

113. There are examples of endangered species which have been rescued in their natural habitat by the introduction of genetic material from ex situ sources, but there does not appear to be any immediate prospect of this approach being required for Norfolk Island Pine, given the improving conservation status. Species with such a restricted natural distribution are at risk from some forms of catastrophe (both natural and human induced) but an augmented population on Norfolk Island would still be restricted to a small area and thus remain at risk.

107. There is nothing immediately obviously distinctive about the phenotype of T 38 which would be suggestive of possible genetic variation which might be valuable to incorporate in a genetic augmentation program on Norfolk Island. In view of the many thousands of Norfolk Island Pine trees in cultivation or occurring as alien plants in natural habitats around the world, the possibility of T 38 being chosen as a source of genetic material for a theoretical program to increase survival of the species on Norfolk Island would be vanishingly small, and would be further reduced because as Ms Ashby (the Applicant’s ecologist) pointed out (Tcpt, 17 November 2020, p 18(18-20)), T 38 appears to be male, and so would not be a source of seed, so that Mr Whyte’s promotion of the potential genetic value of T 38 was ‘a very, very long bow and quite an extraordinary claim’.

Norfolk Island Pines and hollows

115. Dr Smith questioned Ms Ashby on whether she had inspected T 38 to determine whether hollows, which could be utilised by vertebrate fauna, are present (Tcpt, 17 November 2020, pp 14-15). Ms Ashby had not climbed the tree, nor engaged a drone to inspect the canopy, but had observed the tree through binoculars while she was lying on the ground and had not seen any hollows. The tree which is 18 m tall with a canopy 12 m in radius is a relatively large tree, but it is still small compared with trees on Norfolk Island and in New Zealand.

116. Dr Smith tendered a chapter by Dr Glenn Hoye (Glenn Hoye, ‘The status of microbats on Norfolk Island, southwest Pacific’ in Bradley Law et al (eds), The Biology and Conservation of Australasian Bats (Royal Zoological Society of NSW, 2011) 297-307). The Applicant objected to the tender (Tcpt, 17 November 2020, p 24(25-30)) on grounds of relevance, but I admitted it as Exhibit 10, indicating that it would be a question of the weight to be given to the chapter.

117. Hoye reported that microchiropteran bat numbers on Norfolk Island declined dramatically from the early 1960s. He described eight former bat roosts, five of which were in hollow bearing Norfolk Island Pines. These were larger and older trees than T 38, and those still standing were senescent. T 38, although a large tree, shows no signs of senescence.

118. I accept Mr Ashby's evidence, despite the limited survey, that T 38 does not presently provide habitat for hollow utilising vertebrates. Many decades hence it might, but that is not relevant to the matter currently at hand. If, and when, at some distant time in the future T 38 does develop hollows, issues of public safety and potential damage to nearby buildings could arise, but at present the tree appears to be healthy with no concerns about safety arising.

Why is T 38 at 9 Sutherland Avenue?

119. T 38 is not native to its location and must have been planted at some time. Mr Patch, the Applicant's heritage expert, included within the joint report of the heritage experts (Exhibit 7) an aerial photograph taken in 1930 showing the subject site. Ms Ashby in her BIA, included as a supplement to the joint expert report of the ecologists (Exhibit 6) the same 1930 image as well as one from 1943. The building at 7 Sutherland Avenue can be recognised in both images, and to its north a tree in the location of what is now referred to as T 38. The tree in 1943 was much larger than that in 1930, but is clearly in the same position and identifiable as a Norfolk Island Pine. On the basis of these images, I agree with the ecologists and both the heritage (Exhibit 5) and arboricultural (Exhibit 4) experts that T 38 is around 100 years old.

120. Mr Patch discusses possible reasons why T 38 had been planted – as a marker or that it was originally a Christmas tree. A number of owners of residential properties in the general area planted trees which as they matured would be visually prominent and act as markers for the properties. Araucaria was favoured for the purpose, but Mr Patch suggests that two other Australian species were more likely to be used – Bunya Pine (A. bidwillii) endemic to a restricted area of the Bunya Mountains in south-east Queensland, and Hoop Pine (A. cunninghamii), native to rainforests in northern New South Wales extending to northern Queensland. Norfolk Island Pine was more frequently planted close to the coast, and was a feature of plantings in suburbs close to the sea such as at Manly and Bondi Beach. While it is more common close to the coast it is not exclusively restricted to the coastal zone and occurs much more widely. Norfolk Island Pine was also used as a Christmas tree, and might be planted out after Christmas.

121. Mr Patch (Exhibit 7) suggests that it was unlikely that T 38 was planted with the intention that it become a marker and that it was probable that it originated as a Christmas tree. I would agree that it might possibly have been a Christmas tree, but nothing in Mr Patch’s contribution to the joint report provides evidence to support the speculation that it was probably a Christmas tree; it could have been a marker (although at the time of planting any prominence as a marker would have been many years hence), or it may have been planted simply because the then property owner favoured the species for some reason. All we can conclude is the age of the tree is around 100 years, but why it was planted cannot be ascertained. There is no knowledge of who planted the tree (given that it was planted before 7 Sutherland Avenue was built and occupied) nor, as Ms McKelvey stressed in cross-examination, what allotment the tree would have been in at the time it was planted, as cadastral boundaries have changed.

Heritage evidence

122. The joint report of the heritage experts was Exhibit 7.

123. Unfortunately, the first part of the joint report does not assist resolution of issues as Ms Goldstein makes reference to the February 2019 plans in the original application, whereas Mr Patch addressed the amended October 2020 plans which are part of the amended application before the Court. It is only towards the end of the joint report that Ms Goldstein addressed the amended plans.

124. Ms Goldstein finds that the amended plans partially, but not completely, resolve the issues raised in the contentions. She agreed that the amendment of the roof from flat roof to a pitched tiled roof was consistent with buildings in the streetscape. She regarded the form of the building as a two-storey building with pitched roof, rather than the first-floor rooms being incorporated in the roof, as not consistent with buildings in the streetscape. She considered the double garage integrated into the design was also an uncharacteristic feature as was a single garage door. The parapet wall above the entry portico and garage was an unusual element in the streetscape (and the HCA as a whole) and in terms of style, scale and form, the proposal was out of context with the HCA and would not harmonise with it. Ms Goldstein stated that T 38 was an important part of the front setback and visually significant in contributing to the HCA and heritage landscape character of Sutherland Avenue. Ms Goldstein suggested a number of detailed improvements to the building and landscaping of the front setback which in her opinion would make the proposal more acceptable; these could be addressed in conditions.

125. Ms Goldstein was cross-examined at some length by Ms McKelvey during which Ms Goldstein stuck to her guns and did not give ground. Ms Goldstein was appearing as the Council’s heritage expert and stressed what she saw as the priority to be given to heritage considerations.

126. Her approach can be illustrated in the following passage, which followed exchanges where she had expressed particular concerns over the position of the garage. Part 4B.3 of KDCP contains the conditions relating to garages dwelling houses, whereas Part 19 contains the heritage controls.

“[MCKELVEY]: So what you've decided is that rather than assessing what's in front of - what's proposed as part of this application that it would have to be done better, that you think that that means that what's being proposed is unacceptable?

WITNESS GOLDSTEIN: Well that's how I judge when I do a referral at work. That's my job, is to look at the building and see what I - how it can be improved and that's all I'm saying lets improve it, let's improve on it.

[MCKELVEY]: I'd suggest to you that your job is to assess the application in front of you and whether it's acceptable, not whether to you can approve it--

WITNESS GOLDSTEIN: Yes, of course. I'm not saying this is outright - it's more or less outright unacceptable because of that form, that first floor part of it and the parapet and also the double garage in that we don't normally have double garages within the building. That's right.

[MCKELVEY]: So about - well I was coming to the garage so since you've raised it. So, yes, you've said that you don't favour integration of the garage into the building however you wouldn't advocate, particularly as an architect but also as a heritage person, that you wouldn't advocate that there be a separate garage forward of the building line, would you? That presents to the - you know, as a dominant feature to the street?

WITNESS GOLDSTEIN: Yeah, no, I don't particularly like that either. And I can understand they've got a problem that they haven't got a lot of width so to put that garage on the side or behind. But if it's set back a bit further from the façade it might make it recede a bit.

[MCKELVEY]: You've indicated that - sorry, I'm just trying to find the right control of that garage. Sorry, where is the - sorry, I found it. 4B.3 of the DCP, do you have a copy of that there? It's page 284 of exhibit 2, the council's bundle?

WITNESS GOLDSTEIN: Yeah, what's the control sorry, I've got--

[MCKELVEY]: It's the DCP 4B.3?

WITNESS GOLDSTEIN: Yeah, is it 19D you're looking at?

[MCKELVEY]: No, I'm looking at 4B.3.

WITNESS GOLDSTEIN: They're not the controls that I use in heritage. I only look at 19. Part 19.

[MCKELVEY]: Okay, so the council--

WITNESS GOLDSTEIN: That's the plan.

[MCKELVEY]: No, I appreciate that but you appreciate that the council has another policy that the objectives of which are to encourage the design and functional car parking facilities that are integrated within the built form of the dwelling?

WITNESS GOLDSTEIN: That's irrelevant because I'm heritage so I override those controls.

[MCKELVEY]: You override the other planning controls?

WITNESS GOLDSTEIN: Well the - the heritage controls will override it if it's a heritage - if it's in a HCA or a heritage item.

[MCKELVEY]: So you say that heritage rules all and it doesn't--

WITNESS GOLDSTEIN: Yes.

[MCKELVEY]: --matter what other aspects of the development might be otherwise ruled?

WITNESS GOLDSTEIN: With - with garages, yes, in this instance heritage would be number 1, yes.

[MCKELVEY]: So in respect of - you appreciate that there is a - I think it's been agreed that you would - that there would be a condition changing the presentation of the garage that it'd look like two garage doors rather than one?

WITNESS GOLDSTEIN: Yes.

[MCKELVEY]: You find that acceptable as a solution to that particular problem?

WITNESS GOLDSTEIN: It would help. Also maybe if it was set a little further back than it is. It's—”

(Tcpt, 17 November 2020, pp 36(9) – 37(39))

127. In relation to T 38 Ms Goldstein was of the opinion that the existing T 38 was an important part of the streetscape:

“[MCKELVEY]: But if it's replaced with other - I appreciate it will not be replaced with as large a tree but if there are large trees in the front yard as part of the landscape proposal and it is complimented by large trees across the street and up the street, there will be maintained a mature green leafy streetscape won't there?

WITNESS GOLDSTEIN: I think the problem there is that it's going to take so long to become mature that - I've seen it happen. They plant a tiny little plant and it just takes years and years and years and it won't look the same.

[MCKELVEY]: So am I right in understanding then that it is your preference that the streetscapes from the purpose of heritage never change?

WITNESS GOLDSTEIN: Well that's part of my control, is to retain the trees, to retain what's on the site. Not remove them.

[MCKELVEY]: It's retained where possible right?

WITNESS GOLDSTEIN: Well this is possible. This is possible.”

(Tcpt, 17 November 2020, p 40(21-39))

128. The arboricultural and landscape experts had agreed that any replacement should be of advanced or super advanced size and certainly would not be a tiny plant.

Planning evidence

129. The report of the town planning experts is Exhibit 8 prepared by Mr Wilson for the Respondent and Mr Minto for the Applicant. During the joint conference, Mr Minto provided additional documents, including amended plans which are Annexure B to the joint report. These plans, for which the Applicant was granted leave to rely upon, now form part of the application.

130. The experts agreed that the amended plans addressed and resolved the majority of particulars in Contention 5.

131. The experts remained in disagreement over particular 5(o) which raised the removal of T 38. Mr Minto was of the opinion that the retention of T 38, combined with the provision of the BGHF exclusion zone rear of the site, will create an unreasonable constraint upon the subject allotment and would prevent the construction of a dwelling commensurate with surrounding dwellings and reasonable dwelling expectations. Included within the joint report at Annexure C were three sheets of drawings for a Constraints Analysis. Annexure D contained details of three recent approvals by the Respondent involving dwelling houses on large blocks in other suburbs.

132. The three sheets of the Constraints Analysis Plans each dealt with one of the three levels of proposed footprint - lower ground floor, ground floor and first floor. The plans were prepared by Mr Minto with input from the Applicant’s arborist and ecologist.

133. Mr Minto’s Constraints Analysis indicated to him that, if T 38 were retained, the available building footprint would provide for a dwelling of 245 m², together with a double garage and a deck area. This equates to an FSR of 0.13:1 – less than half the maximum provided for in the KLEP. The three recent approvals listed in Annexure D were on lots smaller than 9 Sutherland Avenue and with the dwelling houses 100-150 m² larger than would be possible if T 38 were retained.

134. Mr Minto considered that a building of 245 m² would not be commensurate with existing dwelling houses in Ku-ring-gai and would not meet the reasonable expectations of the property owner. Retention of T 38 would not facilitate orderly and economic development of the site.

135. Mr Wilson submitted that the maximum FSR permitted by KLEP for the site is a theoretical maximum and would not always be achievable because of constraints on any particular site. He considered that the recent approvals documented in Annexure D do not provide any contextual relationship to 9 Sutherland Avenue, its streetscape and surrounding area and that the design and siting of the development on the three properties elsewhere in the LGA reflected the context, opportunities and constraints of the sites concerned.

136. Contrary to Mr Minto, Mr Wilson considered that the Constraints Analysis drawings demonstrated that a potential dwelling footprint can retain T 38 and significantly enhance solar access to the northern veranda of 7 Sutherland Avenue.

137. The other contention addressed by the planning experts was Contention 6 – that approval was not in the public interest. The experts agree that:

“should the court determine the removal of T 38 to be acceptable, the proposal set out in the draft sketches listed in Annexure B as part of the joint conferencing, would in our opinion result in a development which is suitable for the site and in the public interest”.

Consideration

What is the application before the Court?

138. The task of the Court is to reach a judgment on the application before it. An application can be amended, with leave of the Court, up until the end of the hearing. The Applicant, at the commencement of the hearing was granted leave to rely on amended plans, which became part of the application. The parties’ experts, in their joint reports and in the course of their concurrent evidence, agreed on the number of matters which, if the Application were to be approved, could be addressed through conditions, but these agreements do not alter the application per se.

139. During the course of a hearing, particularly during the cross-examination of experts, it is not uncommon for suggestions for modification to the proposal or alternative solutions, to be made. Usually this is by the respondent but, more rarely, a witness for the applicant might be encouraged to offer suggestions or alternatives. Unless these ideas are taken up by the applicant, either through amended plans (after leave is granted), or through agreed conditions, suggestions made by the respondent are simply ideas without status.

140. The Respondent’s arboricultural expert, Ms Askew, talked to the alternative footprint plan for the proposed building (Annexure A, Exhibit 4). Ms Askew is, from her CV, not an architect or planner, although from her role in Council, I recognise that she will have regular contact with professionals in these fields. Ms Askew said that she had originated the footprint plan, but in response to questioning from Ms McKelvey she responded that:

“[MCKELVEY]: But you didn't have any assistance?

WITNESS ASKEW: Well the house itself now, as it's before the Court, is at grade at the front. There's no reason why this couldn't - and the house at the moment sits well below the 9.5 metre building height footprint. So even if it had to go up slightly it still would be within the building height footprint. I don't - no, I didn't get any assistance from an architect. There was initial discussions with a planner when the DA was first submitted and I did have discussions with the then planner that was dealing with it and we felt that that was an appropriate footprint. That was when the DA was first submitted.

[MCKELVEY]: You accept though that can be building town planning consequences for - under other development controls and other streetscape consequences. You have looked at this footprint purely from the retention of tree 38 perspective, is that correct?

WITNESS ASKEW: Correct. And it was also in consultation with the planners and the heritage expert when the DA was first submitted. It wasn't just something I totally did by myself without any discussion and it was something that the applicant has seen from the very beginning.

[MCKELVEY]: So I think you've calculated an indicative footprint of approximately 300 square metres. Is that right? I think that's what it says up the top. Now am I right in understanding - have you had an opportunity to look at the constraints map at the back of the town planners report? It is attachment C to that report. That's exhibit 8, commissioner.

WITNESS ASKEW: Yes.

[MCKELVEY]: So you've seen there that the applicant has undertaken a not dissimilar task to the task that you've undertaken. Is that correct?

WITNESS ASKEW: That's correct.

[MCKELVEY]: However, the applicant has sought to keep almost all of the built form out of the Blue Gum High Forest area as well as the TPZ of tree 38, that's correct?

WITNESS ASKEW: That's correct.

[MCKELVEY]: So the town planners - or Mr Minto, my town planner, has calculated that that house footprint has an area of about 245 square metres. The key differences, am I right in understanding, is the location of the garage and your deletion of the pool. Is that correct?

WITNESS ASKEW: Yes.

[MCKELVEY]: So otherwise you'd agree then that what is proposed, even by - whether it be by Mr Minto's constraints map or by your own, that it's proposing a dwelling that is about half the size of what is permitted under the floor space ratio control under the LEP. Is that correct?

WITNESS ASKEW: I don't know. I'm not aware of the floor space ratio. I would defer to the planning experts in relation to that.

[MCKELVEY]: That's fine, we can ask them. Again when drawing - when putting together your alternative, you haven't necessarily had consideration of the amenity of the future occupants of the site have you?

WITNESS ASKEW: In what way, I'm not sure what - you say the amenity. What do you mean?

[MCKELVEY]: In terms of it wasn't a consideration in how you've drawn the plan, you've just drawn the plan by reference to keeping various vegetation. Is that correct?

WITNESS ASKEW: That's correct.

[MCKELVEY]: You haven't taken into account how big the rooms might be, whether a pool is appropriate in the circumstances, et cetera. You've just looked at purely the vegetation constraints and decided that that's a big a house that you can get on the site. Is that right?

WITNESS ASKEW: The house, as far as the front of the house is concerned, the back of the house could possibly be modified slightly depending on how it went. But certainly the front of the dwelling and we certainly did consider the Blue Gum High Forest at the back. So, yeah, I mean our job is to come up

with a proposal that was going to protect tree 38 and not have unacceptable impacts on the Blue Gum High Forest and that's what this indicative plan shows.

[MCKELVEY]: But it does have--

WITNESS ASKEW: ..(not transcribable).. to the nuts and bolts of every single part of the planning traditions because we're not planners. It was merely a starting point and we thought it was a pretty good option.”

(Tcpt, 16 November 2020, pp 27(25)-29(9))

141. I remain of the opinion that I expressed in Belling v North Sydney Council [2018] NSWLEC 1656 (Belling) at [137]-[140]. In that matter, the planning expert for the respondent advanced what he referred to as two alternative skilful designs (this being the terminology adopted by Senior Commissioner Roseth in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity)). One of these solutions was contrary to a condition advanced by the council. The second involved structural changes to an existing building reduction in size of the kitchen which would affect its functionality, proportions and flow of movement within the room.

142. Alternative skilful design was not defined in Tenacity but my interpretation is that the design should be advanced by a person with appropriate qualifications in the particular field. In Belling, the planner was neither an architect nor engineer.

143. In Belling, although I accepted that it was not the role of council to commission detailed architectural or engineering designs, there needed to be more to an alternative proposal than unsupported opinion from someone without the necessary qualifications.

144. I accept that Ms Askew's objective was the retention of T 38 while minimising impacts on BGHF, but to not consider amenity – both for residents and observers of the building in the context of the HCA – limited the usefulness of her evidence.

145. Even if a respondent does produce a detailed alternative proposal, if it is not embraced by an applicant it does not become an application before the Court. However, if a detailed alternative were presented, then a consent authority might give it weight in its consideration.

146. In present circumstances, the alternative footprint suggests at the highest that there may be options for other developments on the property. If the outcome of the current matter is that the appeal is dismissed, this does not imply that no development is possible. Some future application will be considered on its merits.

“SMITH: It's fair to say that the tree is not completely void of ecological value?

WITNESS ASHBY: No, well it's a tree. It's a tree and trees have ecological value. But in terms of if I was to make a value judgement which I have, balancing a Norfolk Island Pine against native trees of Blue Gum High Forest it's much less ecological value. Much less. And easily replaced.”

(Tcpt, 17 November 2020, p 16(10-15))

147. The evidence of the arboriculture and/or landscape experts was that while a different species could be planted as a replacement if T 38 were removed, it would be a very long time, if ever, before a replacement would reach the same size as the existing T 38.

148. The resolution of this matter hinges on the future of T 38 with the issues raised relating both to its importance as a tree in its own right and because of its occurrence within a HCA.

149. The details of the KDCP are relevant to both issues. Both parties in their submissions drew attention to the interpretation and application of a DCP in a flexible manner. The Respondent drew my attention to the observations of Spigelman CJ in Zhang v Canterbury City Council (2001) 51 NSWLR 589; [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”

150. The Applicant advanced two reasons why T 38 should be removed:

1. that it would enable the setback from the western boundary of the site to be moved forward, and

2. that it would enable a dwelling house appropriate for the Applicant's purpose to be constructed while protecting the BGHF CEEC at the rear of the property.

151. The setback provisions of KDCP are in Part 4A. The controls are in Part 4A.2:

152. The Applicant’s proposal would satisfy Council’s requirement for a two-storey building in iii). It would also satisfy i) with respect to 11 and 7 Sutherland Avenue. However, Exhibit 12 shows existing building footprints for dwellings in Sutherland Avenue. This shows that, with the exception of the battleaxe lot (5A Sutherland Avenue), the buildings on Sutherland Avenue address the street, but beyond this there is little consistency in terms of setback, footprint or orientation. Ms Goldstein’s evidence on cross-examination was that she did not regard several of the more recent buildings in or close to Sutherland Avenue (constructed prior to 2015 when the current KLEP came into force) as being contributory buildings to the HCA. If the Applicant were given approval to remove T 38 in order to move the dwelling further forward towards the street, the resulting setback would align with that for 7 and 11 Sutherland Avenue. If there were greater consistency in the existing frontages, then compliance with control 4A.2.1(ii) would be a matter to be given greater weight, but given the values of T 38 as a tree and for its heritage value, strict compliance with the setback control would be inappropriate.

153. What Exhibit 12 does show is that the street frontage of 9 Sutherland Avenue is amongst the narrowest of the properties on the street, so that viewed from the street, any building on number 9 will appear to occupy a large proportion of the lot.

154. Sutherland Avenue is within the Wahroonga Heritage Conservation Area C1 (Exhibit 2, tab 35, folio 569). None of the dwelling houses are heritage items, nor is T 38 identified as a heritage item. The statement of significance for the HCA was, as Ms Goldstein explained, written at a high level of generality and does not specifically mention Sutherland Avenue. At this high level, the HCA is characterised by large lots with predominantly inter-war houses, many single storied and if two-storied generally with rooms on the first floor incorporated into the roof. As with other parts of the HCA, Sutherland Avenue is notable for the presence of tall trees, both native and exotic. The trees contribute to the character of the HCA and collectively contribute to its heritage value, and in this respect specimens of exotic species contribute to the heritage value. In addition, T 38 is of heritage value by virtue of its age and prominence. There is no doubt that T 38 is around 100 years old and predates the construction of 7 Sutherland Avenue. Without recourse to speculation as to why it came to be planted, the age of T 38 is worthy of note. There is also no doubt that T 38 is visually prominent from Billyard Avenue and from Sutherland Avenue and that if it is retained will become more prominent over the years.

155. Dr Smith, in written submissions at par 9, argued that removal of T 38 raised an issue of intergenerational equity. T 38 could not be instantly replaced by a tree of similar dimensions, and there could be no certainty that the replacement would ever result in a tree of the same size. The impact of removal of T 38 would be permanent. In oral submissions, he said that the effect of removal would be ‘a permanent scar in this heritage conservation area, and a permanent scar in terms of its landscape significance which cannot be ameliorated’ (Tcpt, 17 November 2020, p 71(39-40)).

156. The analogy with scar is perhaps not fully apposite. Removal would create an absence in the landscape but unless viewed from a drone or in satellite imagery, the absence would not be seen as a gap. The absence would for some observers be a matter of regret, but memories fade, and future generations would probably be unaware that the tree ever existed. The treescape of the area would be progressively simplified over time and the links to the past represented by veteran trees and their role in the landscape will be lost.

157. The site is large, but Dr Smith argues that the Applicant's decision to require a tennis court and a swimming pool and cabana is a self-imposed constraint on the development potential of the site and that these limited private interests do not overcome the public importance and interests created by the retention of T 38 due to its landscape and heritage significance (written submissions at par 19). He cites Lloyd J in Architectural Property Services Pty Limited v Rockdale City Council [1999] NSWLEC 83 at [12] that ‘economic considerations are not generally relevant under s79C of the Act.’

158. It is not appropriate for the Court to adopt a puritanical approach and make moral judgments on proposals: providing what is proposed is permissible (with or without consent), then any new merits assessment must address the issues raised by the planning controls, rather than take the form of criticism of an applicant’s presumed motives.

159. There was virtually no discussion of the cabana and swimming pool, nor on many aspects of the tennis court. Whether or not there are options acceptable to the Applicant for the modifications to the proposal for pool and cabana in terms of location and size, which would permit a larger dwelling without imposing impacts on BGHF was not explored. The tennis court, which had been constructed long before the current proposal, appears to be a full-size competition court; whether it could be modified was similarly not explored.

160. In Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2], Preston CJ wrote:

“… an applicant must persuade the consent authority, whether it be the council at first instance or the Court on appeal, that development consent ought to be granted. The persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed.”

161. As far as the removal of T 38 is concerned, I am not persuaded that the Applicant has made its case. I accept that T 38 is a well grown and healthy specimen with a long-life expectancy, and that it does not pose any immediate threats so that there is no inherent reason why removal is warranted. Although T 38 as a species is not indigenous to New South Wales, in the context of the cultural landscape of the suburb this does not detract from the significance given to the tree.

162. The other leg of the Applicant's argument for removal of T 38 is that removal is required in order to permit the construction of a suitably sized residence (see Mr Storch's evidence on p 5 of Exhibit 5), nowhere in Mr Storch’s evidence or elsewhere in the Applicant's documents is there any suggestions of how the Applicant determined how large a suitably sized residence should be. The basis for Mr Storch’s evidence in this regard is not disclosed. Dr Smith in written submissions (at par 10) regarded Mr Storch’s evidence ‘as unfounded assertion at worst and mere speculation at best’. For whatever reason, the Applicant has decided not to present its case for why a larger residence is necessary; the consequence is that little weight can be given to Mr Storch's evidence on this issue.

163. Having concluded that the proposed removal of T 38 is not supported and that in consequence, the appeal must be dismissed, I will nevertheless address other issues for completeness.

164. The Applicant points out that the size of the building it proposes has a FSR far lower than the maximum permitted by KLEP. However, there is no entitlement to an approval of a dwelling with the maximum FSR. The only entitlement conferred by KLEP is to make a development application for development which is permissible (with or without consent) as specified in the Land Use Table. An application would then be assessed on its merits and may or may not be approved.

165. The concerns, other than the retention of T 38, of the Respondent's heritage expert related to the built form proposed, and the extent to which the KDCP controls for new building within HCAs in Part 19D addressing Local Character and Streetscape applied.

166. Ms Goldstein accepted that what was proposed was within the height limit specified in KLEP (Tcpt, 17 November 2020, p 31(35-36) – ‘I don't have a problem with height’.) Ms Goldstein’s concern was that the building proposed, as viewed from Sutherland Avenue, would present as two storeys below a tiled pitched roof, which she regarded as not compatible with the established character of the HCA. Other aspects of the proposed building, including the garage, parapet and design of the aluminium framed windows (Ms Goldstein considered that wooden window frames were characteristic of buildings in the HCA) were also of concern.

167. It is clear that there are a number of buildings within the HCA which have two full storeys. However, the cross-examination did not result in a clear picture (in the vicinity of 7 Sutherland Avenue whether there were a few, about half, or many such buildings was not resolved) or clarify the extent to which the character of the HCA had been compromised. If it were necessary to make a determination on this issue, I would require more specific examples to be described in detail and the extent they affect the character to be analysed. If it were decided that a full two-storey building was acceptable, then the detailing issues could be the subject of conditions.

Ecology

168. Ms Ashby had provided a skeleton of a VMP, and the proposed conditions made finalisation of the VMP a deferred commencement condition. However, while the implementation of the VMP will result in the retention and enhancement of vegetation which will provide habitat for fauna, neither party gave much consideration to fauna.

169. Both parties referred to the presence on the site of a large brush turkey mound (which was very obvious on the inspection) and of bandicoot diggings. Ms Ashby included photographs of evidence of both species in her BIA (the brush turkey mound in photograph 4 and bandicoot diggings in photograph 8). Neither species would necessarily be welcomed by landowners, and the spread in recent years of brush turkeys across suburban Sydney has been the topic of much media comment. Nevertheless, both species are protected fauna and it would be desirable that some indication of how any perceived conflict between retention and discouragement of the species be included within the VMP, which might perhaps be retitled a Biodiversity Management Plan (BMP).

170. The number of faunal species recorded from the site is small, but this may reflect the very limited investigation rather than real absence. I do not intend any criticism of Ms Ashby's abilities and competence – she is a highly regarded fauna consultant; that the investigation was restricted to one day in winter may have been a matter which was outside her control. Winter is not the best time of year to record reptiles, but while it is unlikely that snakes would be common, it is more likely that lizards would be active in summer, and that at least small skinks, almost ubiquitous in suburbia, would be at present. It is unlikely that any threatened reptiles would be present, but nevertheless reptiles are likely to be a component of the ecological community present on the site.

171. Specific actions to manage particular species of reptile and other fauna which may be present are unlikely to be required but nevertheless a BMP could include general guidance on habitat management to encourage and maintain fauna.

172. Were the appeal to have been upheld, I would nevertheless have required conditions for inclusion of more management details for the whole of the ecological community present on the site and not just aspects of retention of the flora component of BGHF.

173. In the context of the assessment required by the BC Act, I agree with the analysis presented in the BIA. With appropriate conditions, the incursion of 82.6 m² into the TPZs of BGHF trees can be managed to minimise impact on the trees so that the outcome would be acceptable. However, consideration of cl 6.3 of KLEP is required separately from any assessment under the BC Act and the test is different. I am also required to consider the aims of cl 6.3 which, while they encompass consideration of threatened matters, also refer to biodiversity more generally. There has been little detail of the total biodiversity of the site.

174. However, I consider that the VMP (or BMP) will provide measures which protect biodiversity as a whole. Subclause 6.3(4) requires that I be satisfied that the development will meet certain requirements. The difficulty in reaching satisfaction is that the VMP before the Court is an outline, with finalisation the subject of a proposed deferred commencement condition.

The tennis court

175. Very little detail was provided as to the management of the retained tennis court. I accept the recommendations of the stormwater experts in Exhibit 9 that stormwater drainage management of the whole site can be addressed through provision of absorption trenches under the tennis court, given that the original preferred option of connection to the Council’s stormwater management system was not available because of absence of permission from other landowners for inter-allotment drainage. Although information that there would be absorption trenches constructed in a tennis court was available to all the experts at the time of joint conferencing, the implications were not explored.

176. There would necessarily be some excavation of parts of the tennis court which would require subsequent rehabilitation. How extensive the disturbance to the tennis court would be was not described, nor was how the playing surface would be restored. The descriptions of the current nature and state of the playing surface were very limited, and for future use, it might be necessary to returf the entire tennis court.

175. There is some indication in the ecology experts’ evidence that the existing turf includes a number of BGHF groundcover species and Mr Whyte referred to the presence of seedling Eucalyptus saligna plants which had been removed. Return of such seedlings would clearly be incompatible with active use of the tennis court.

176. The tennis court forms one of the management units in the VMP proposed by Ms Ashby. If the appeal were to be upheld, then the VMP (or BMP) would need to give much greater consideration to the nature of the vegetation on the court and its restoration following installation of the absorption trenches and its long-term management (in terms of any watering regime, weed removal strategy and fertiliser regime). (I note that controls on tennis courts are provided in KDCP Part 4C.7 at 7-17, including at 14 that lighting of tennis courts for night tennis will not be permitted; lighting for the swimming pool is covered by conditions, but the application does not propose lighting).

Submissions from objectors

179. A consent authority is required, in its assessment of a proposal, to consider under s 4.15 of the EP&A Act any submissions received, including from objectors. Submissions from objectors behind Tabs 27 – 33 of Exhibit 2 were made by the owners of six properties in the near vicinity of 9 Sutherland Avenue. Some of the concerns raised have been addressed by the amended plans which now form the application.

180. Mr and Mrs Robertson whose submission is at Tab 27 are concerned about the retention of established Eucalyptus trees, which form the canopy of the BGHF at the east of the site. They are concerned that these trees are a threat to life and property on their land at 49A Chilton Avenue. They consider that under previous ownership these trees have been poorly maintained. While they have made representations to previous owners, and to Council, they have apparently not sought to take action under the Trees (Disputes Between Neighbours) Act 2006. They are concerned that work within the TPZs of the trees may cause damage to and destabilisation of the trees. To address the hazard of falling branches, and they say that large branches have fallen in the past, they seek active maintenance and a program of deadwooding.

181. While deadwood has ecological value, within the urban setting regular canopy maintenance is appropriate. In Gardiner v Bisley [2021] NSWLEC 1176 Acting Commissioner Douglas ordered (orders 4 and 12) deadwooding of a large Blackbutt tree on a property in the Illawarra. While the current proceedings are not a Trees matter, if development were approved, the maintenance of tree canopies should be considered. It is important that maintenance occur regardless of the ownership at some time in the future of 9 Sutherland Avenue for as long as the trees are extant.

182. If I were to contemplate approval of the application, before I did so, I would seek input from the arboricultural experts as to an appropriate maintenance regime that should be imposed. As the maintenance would need to be carried out over a long period of time, the parties would also be requested to consider whether the requirement should be made as a covenant under the Conveyancing Act 1919.

183. Other submissions were in favour of retaining the blue gum trees but did not canvass long-term maintenance.

184. Concern about possible interference with roots, of both the trees situated on 9 Sutherland Avenue, and of those on neighbouring properties for which the TPZs extended onto the site, was expressed by several submitters. The proposed conditions provide for a range of measures which if implemented will address these issues.

185. Concern was expressed about the need for fencing of the rear boundary and the stability of the embankment. In terms of fencing, there is a preference in several submissions for a brush fence, as being in keeping with the fences of other properties in the area.

186. A number of submissions indicate concern about any external lighting of the tennis court, although I note that KDCP Part 4C at 14 prohibits lighting of tennis courts.

187. Neighbouring residents are concerned about the maintenance of their privacy. The current plans, which involve slight changes to the cabana may address some of these concerns, but privacy was not specifically discussed during the hearing. Proposed changes to the windows on the south side of the building potentially reduce overlooking of 7 Sutherland Avenue but privacy issues for the properties to the rear 9 Sutherland Avenue, at least for the residents concerned would need to be addressed either by design changes or conditions.

188. During the hearing and in the evidence of the experts, a great deal of attention was given to the appearance of the proposed dwelling when viewed from Sutherland Avenue. The concern of a number of objectors was the impact at the rear of the property where it was felt that what was proposed would be viewed as a three-storey building, which would be bulky and not consistent with the general area. As the experts in their evidence did not raise major concerns about the view from the rear, I am uncertain as to what weight should be given to the objectors’ concerns. However, as I have decided to dismiss the appeal, it is unnecessary for me to consider those issues further.

Conclusion

189. As the proposed development necessitates removal of T 38, and I consider that the removal of T 38 cannot be supported, the appeal must be dismissed.

190. Accordingly, the Court orders that:

1. The Applicant is granted leave to rely upon the amended plans and documentation referred to in this judgment.

2. The Applicant is to pay the costs of the Respondent thrown away as a result of the amendment of the Development Application as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. The appeal is dismissed.

4. Development Application No. DA 0184/19 for the demolition of existing structures and construction of a new dwelling house with swimming pool, cabana, tennis court and associated works at the site at 9 Sutherland Avenue, Wahroonga is determined by way of refusal.

5. The exhibits may be returned except for A, 1, 4 and 8.

………………………..

P Adam

Acting Commissioner of the Court

**********

Decision last updated: 11 May 2021