//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2007] NSWLEC 374
Land and Environment Court (NSW)
2007-06-26
Mr P
Original judgment source is linked above.
CITATION : Murlan Consulting Pty Limited v Ku-ring-gai Council and John Williams Neighbourhood Group Inc [2007] NSWLEC 374 This decision has been amended. Please see the end of the judgment for a list of the amendments.
APPLICANT: Murlan Consulting Pty Limited PARTIES : RESPONDENT: Ku-ring-gai Council SECOND RESPONDENT: John Williams Neighbourhood Group Inc
CORAM: Watts C at 1 - Taylor AC at 1
Development Application :- Heritage curtilage KEY ISSUES: Blue Gum High Forest - Endangered Ecological Community Site analysis Context, siting and the character
Environment Protection and Biodiversity Conservation Act 1999, (EPBC Act) Ku-ring-gai Planning Scheme Ordinance, (KPSO) LEGISLATION CITED: State Environmental Planning Policy - Seniors Living 2004, (SEPP-SL) State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development, (SEPP65) Threatened Species Conservation Act 1995 (NSW), (TSC Act) Environmental Planning and Assessment Act 1979, ss 79C and 97
CASES CITED: Murlan Consulting Pty Limited v Ku-ring-gai Municipal Council [2007] NSWLEC 182
DATES OF HEARING: 30/04/2007 and 01/05/2007, 02/05/2007, 28/05/2007 and 30/05/2007
APPLICANT: Mr A E Galasso, SC, instructed by Ms D J Townsend, solicitor SOLICITORS: Mallesons Stephen Jaques FIRST RESPONDENT: LEGAL REPRESENTATIVES: Mr P R Rigg, solicitor SOLICITORS: Deacons Lawyers SECOND RESPONDENT: Mr P N Ibbotson, solicitor SOLICITORS: Blake, Dawson Waldron
THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
11193 of 2006 - Murlan Consulting Pty Limited v Ku-ring-gai Council and John Williams Neighbourhood Group Inc
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Ku-ring-gai Council (the council) of a development application to partially restore an existing heritage item, 'Rippon Grange', and to erect seventy-eight (78) seniors living residential units within eight (8) buildings, basement car-parking and landscape works at Lot 1, DP 375262 (No 35 Water Street), Lot 1, DP 726091 (No 64 Billyard Avenue) and Lot 2, DP 375262, Wahroonga. 2 We visited the land in company with the parties on the morning of the first and second days of the proceedings and we heard from local residents of their concerns. 3 We have concluded that the application must fail as it would not respond appropriately to the heritage significance of 'Rippon Grange' or its setting and the Blue Gum High Forest, (BGHF). Some of the proposed buildings would be too large and too close to the heritage item and adversely impact on its setting. The land 4 The land that has been used as a hospital since 1952 is situated on the comer of Billyard and Young Streets at Wahroonga. 5 The land has frontages to Water, Young and Billyard Streets of 124.625m, 135.13m and 23.65m, respectively, and extends the full length of Young Street, between Water and Billyard Streets. The land has an area of about 22,932m2 and falls between 15m and 24m down to the south-eastern corner. 6 'Rippon Grange' at Nos 35-45 Water Street (Lot 1, DP 375262) is heritage listed and includes the original house, its associated stables, swimming pool, glasshouse, garden and garden structures, grove of Eucalypts and various hospital additions. 7 'Rippon Grange' was designed by the architectural firm Sulman and Power and probably by Mr John Sulman and was completed in around 1898 with additions in 1905 by Joseland and Gilling, architects. 'Rippon Grange' is the main building and was originally constructed as a two-storey dwelling house with ancillary structures. In about 1952, the land was donated to the State government for use as a hospital, firstly to provide respite childcare for polio sufferers and infectious diseases. Further, mostly intrusive additions to 'Rippon Grange' were made by the hospital administration at that time. 8 The land contains a remnant Blue Gum High Forest that is located mainly along the southern and eastern boundaries. The applicant referred the application to the Commonwealth Minister for Environment and Heritage under the Environment Protection and Biodiversity Conservation Act 1999, (EPBC Act). The Minister determined that the proposal is not a controlled action and that further assessment and approval is not required under the EPBC Act. 9 Abutting to the south and west and nearby are single dwelling houses. To the east, along Young Street, are single dwelling houses. 10 To the northeast of the land is Wahroonga Public School also known as the 'Bush School'. Relevant planning controls Ku-ring-gai Planning Scheme Ordinance, (KPSO) 11 Under the provisions of the KPSO, No 35 Water Street is zoned 5(a) Special Uses (Hospital) and the proposal for 'seniors living' is permissible with consent under State Environmental Planning Policy (Seniors' Living) 2004, (SEPP-SL), [Note: Murlan Consulting Pty Limited v Ku-ring-gai Municipal Council [2007] NSWLEC 182 decision of his Honour Preston CJ, 3 April 2007]. No 64 Billyard Avenue is zoned 2(c) Residential under which the proposal is also permissible. The remaining Lot 2, DP375262, is a small lot curving along the southern boundary of the land which is also zoned 5(a) Special Uses (Hospital). 12 Clauses 61D, 61E and 61F of the KPSO are relevant. 13 Other planning instruments include: · State Environmental Planning Policy No. 55 - Remediation of Land, (SEPP55): cl 7. · State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development, (SEPP65): cll 2(3), 9, 10, 11, 12, 14, 15 and 18. · State Environmental Planning Policy - Seniors Living 2004, (SEPPSL): cll 31, 32 and 81. · State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004: cl 6. · Sydney Regional Environmental Plan No. 20 -Hawkesbury-Nepean River (No. 2 1997), (SREP20): cll 3,5 and 6. · Ku-ring-gai Development Control Plan 40 - Construction and Demolition Waste Management, (DCP40): chapter 3. · Ku-ring-gai Development Control Plan 47 - Water Management, (DCP47): chapters 3-10. · Ku-ring-gai Development Control Plan No. 56 - Notification, (DCP56): chapter 5 and cll 4 and 6. · Ku-ring-gai Section 94 Contributions Plan 2004 - 2009 - Residential Development. The proposal and its history 14 Development application No 855/06 was lodged with the respondent council on 4 August 2006 to erect a seniors living development on the land. The proposal is described in plans prepared by Tanner Architects. 15 Building A would be a stepped three-storey building over a single level basement car parking floor in the southwestern sector of the land, [Note: Exhibit A, Drawing No AR DA08]. Buildings B1 and B2 combined would be a stepped five-storey and six-storey building over a three level car park, in the middle of the land south of 'Rippon Grange', [Note: Exhibit A, Drawing Nos AR DA.09 and 10]. Building C would be a five level building over two car parking floors in the eastern sector of the land almost opposite the intersection of Randolf Street. Building D would be a four level building over a single car parking level to the south of Building C, [Note: Exhibit A, Drawing No AR DA.12]. Buildings E1 and E2 are proposed on No 64 Billyard Avenue on the northwester corner of Billyard andYoung Streets south of Building D, and would be two storeys in height and under Building E2 there would be a single level car park, [Note: Exhibit A, Drawing No AR DA.13]. Building F is proposed in the northeastern sector of the land and would be four storey building over two levels of car parking, [Note: Exhibit A, Drawing No AR DA.14]. Notification 16 The application was notified to nearby owners and occupants on 18 August 2006 until 30 September 2006 and the council received 336 submissions from local residents. Concerns were raised in respect of: · excessive bulk/scale, · out of scale and context; · detrimental impacts to the streetscape; · inappropriate siting of buildings; · detrimental impacts to the Blue Gum High Forest; · impacts on water table; · impacts on views from No 5 Plymouth Close over the lower section of the land; · detrimental impacts on heritage items; · traffic/construction traffic and associated impacts to the local schools; · privacy/overlooking; · overshadowing; · inadequate infrastructure - sewerage, electricity, health services; · detrimental drainage impacts; · insufficient provision made for access by emergency vehicles; and · inappropriately located for seniors living development. 17 On 15 September 2006, a submission was received by the council from the Department of Planning (Heritage Office) concerning the detrimental impacts to the heritage item in relation to bulk, scale and height. 18 On 10 October 2006 the council received further submissions from the Heritage Office stating the development is unacceptable. 19 On 12 October 2006 the council received a further submission received from the Heritage Office indicating that the Heritage Council NSW held concerns for the proposal and that the application was not supported by the Heritage Office. 20 On 26 October 2006 the council's development engineer indicated that no significant concerns were raised in respect of the proposal, provided conditions were attached to any consent. 21 On 30 October 2006 the council's Landscape Assessment Officer expressed concerns in relation to impacts on heritage landscape, existing trees and Blue Gum High Forest Endangered Ecological Community (BGHF) and that the application was not supported. 22 On 16 November 2006 the council received further comments from the Heritage Office and a sub-committee formed to provide comment in relation to this application. Concern was raised in relation to detrimental impacts of the development to the heritage item. The application was not supported by the Department of Planning (Heritage Office). 23 On 20 November 2006 the council received comment of the council's Ecologist who was concerned that the proposal would detrimentally impact on the remnant BGHF and as a result the application was not supported. 24 On 27 November 2006 the council received a response from the council's Heritage Assessment Officer who raised concerns in relation to detrimental impacts on the heritage item and that the application was not supported. The council's decision 25 By notice dated 12 December 2006 the council refused the application for the following reasons: Heritage
26 On 10 January 2007 the council was notified of Minister's determination under Environment Protection and Biodiversity Conservation Act 1999, (EPBC Act). The hearing 27 The appeal was filed on 12 December 2006 the day the application was refused. 28 At the hearing the court heard evidence on behalf of the respondent council from: · Ms M D Laidlaw, consultant town planner; · Mr Z Kovacs, heritage consultant; · Ms S McDonald, Director Policy and Heritage Management, Heritage Office, Department of Planning; and · Mr J Schroder, owner and resident of No 17 Water Street, Wahroonga. 29 Around 184 residents attended the two-day site inspection and many gave evidence. Most gave evidence on behalf of the respondents. Their evidence was taken down in note form and was tendered as Exhibit N. The list of attendees was in Exhibit 10. 30 On behalf of the applicant evidence was given by: · Professor P Webber, architect town planner; · Mr G Boston, consultant town planner; · Mr H Tanner, architect; · Mr R Lumby, heritage architect; and · Mr G Pindar, consultant traffic engineer. 31 Dr P Smith, was the Court-appointed expert in ecology. 32 Mr S Garland, Executive Assessment Officer of Ku-ring-gai Council prepared the statement of basic facts dated 19 January 2007. The issues 33 On 19 January 2007 the council filed a statement of issues: Heritage
39 We have carefully examined the 'Conservation Plan' in Exhibit L and as far as we can determine the only place in the document that the word 'draft' is used is on the cover. Every page of the document is headed 'Rippon Grange, 35 Water Street, Wahroonga - Conservation Plan'. This conservation plan seems well-researched and comprehensively deals with the topic and under para 7.6 it states: The Conservation Plan should be reviewed at regular intervals, at least every five years if not sooner, should new information come to light or circumstances relating to 'Rippon Grange' and its site change. 40 As required under Article 1 of the Australia ICOMOS Burra Charter and based on the definition set out in the Heritage Office publication 'Heritage Curtilages' (1996) [Note: p 3] the authors defined 'heritage curtilage' as: ...the area of land .... surrounding an item or area of heritage significance which is essential for retaining and interpreting its heritage significance. It can apply to either: · land which is integral to the heritage significance of items of the built heritage; or · a precinct which includes buildings, works, relics, trees or places and their setting. 41 The authors of this Conservation Plan recommended, [Note: Exhibit L, pp 123-4 para 6.1]: The house and grounds of 'Rippon Grange' must be regarded as an integral composition, since the recreational elements and gardens within the grounds were clearly designed to subserve the purposes of the occupants of the building. For that reason, all the driveways and carriage loop, the eastern terrace and stairs, the tennis court, the croquet lawn, the stables, and the glass houses and potting sheds must all be included within the curtilage. While the lap swimming pool was not built until after the Williams family acquired the house in 1935, and therefore does not form part of the original Federation garden design, it should still be regarded as an important recreational facility for the occupants, and is consistent with their lifestyle and expectations. Moreover, even though its enclosure by walls and a roof altered its character and configuration after the property became a hospital, it nevertheless lies close to the house within the boundaries created by the driveways, and should be included within the curtilage. The question of whether the earlier informal brick plunge pool, fish pond, and water tank which were located on the lower, southern slopes of the block should be included within the curtilage is debatable. While they undoubtedly did subserve the needs/ purposes of the early occupants of the house, most were not used after 1935 and very little now remains of any of them, at least above ground. Their value and functions were largely superseded when town water was made available to the residence in 1928, and would have been redundant after the larger, formal swimming pool was built. While it is important that they be formally recorded - which is partly achieved by this report, but may warrant a proper archaeological investigation - their inclusion within the curtilage is less essential, and could depend on the factors discussed below. The vegetable garden located on the lower, south-western corner of the site was an important element in the original garden and consistent with the functions provided for in federation period gardens. It also reflects the reliance of the early occupants on fresh vegetables (and often fruit) from their own property. However, it does not appear that this area has been used for this purpose by the hospital authorities for many years, given the size of trees present in this precinct. The use of the central, lower section as a fowl run probably had a similar history, while the lower south-eastern sector appears to have always been left as open woodland. Although these elements were consistent with the layout, functions, and tastes of affluent property owners in the federation period and up to 1950, they have not been used for many decades, and very few traces of the earlier uses remain. For those reasons, their inclusion within the curtilage is optional. Given the fact that the southern section of the grounds are not utilised, and would not be needed by modern residents of the mansion, this would allow that portion of the allotment to be potentially used for sensitive new development, and this is the only part of the site where it could occur. Here new structures associated with 'Rippon Grange' could be located if so required. However, because many of the very large mature trees, particularly in the central section of that land, have some heritage value, firm controls would be needed to ensure their preservation, and conditions imposed to provide for building envelopes that did not come within 15 metres of their trunks. 42 Under para 7.4, entitled 'Curtilage' it states, [Note: Exhibit L, p 136]: 7.4.1 The recommended curtilage should be established for the site. This will impose the following constraints: · no activity shall take place within that portion of the site defined by the curtilage which will diminish the historic relationship of 'Rippon Grange' with the site and its surrounding built and landscape environs; · any new building which may be constructed within the area defined by the curtilage should be carefully designed and located so as not to diminish the significance of the place. Limitations of height, to no more than two storeys (one of which should be contained within the roof space), should be imposed on new buildings. Additionally, their form, scale, materials and setbacks should complement and harmonise with significant buildings within the curtilage; and · consideration may also be given to screen new development from significant built items by means of planting. This should take the form of species compatible with the planting already on the site. 43 The mapped original heritage curtilage covered the whole of the northern part of the land and was parallel to and setback from, the southern boundary a variable distance of between 25m at the western end and 45m at the eastern end, [Note: Exhibit L p 124].
'Curtilage diagram' showing curtilage by the hatched area of the site Where:
65 Ms S Macdonald, Director Policy and Heritage Management, Heritage Office, Department of Planning, came to the Court to support this position. She said that the position of the Heritage Office, was that it "…did not reach a level of comfort with the proposal". 66 In an exchange between Messrs Galasso, SC, and Kovacs the latter agreed that a reduction in the curtilage is acceptable in principle, as "…one has to accept if there is development some reduction in curtilage has to occur." 67 Mr Kovacs agreed that there was not necessarily a prima facie degree of tension between the heritage and the ecological and there could be a situation where these factors might exclude development. 68 Despite the reservations of some of the witnesses we are satisfied that the original heritage curtilage in the Conservation Plan 2001 should not be abandoned and should be considered along with later versions as it is based on the definition set out in the Heritage Office publication 'Heritage Curtilages' (1996) and focuses on the heritage significance of 'Rippon Grange' and its gardens. Within the original curtilage some building is permitted. The proposed 'Heritage Curtilage and Significant View Corridors Plan' in the Conservation Management Plan of July 2006 has no such provenance, and appears to have been generated by other factors than the importance of the place, [Note: Exhibit F, Annexure 15, p 136]. The 'Recommended Development Constraints' plan also appears to bear little relationship to the original 2001heritage curtilage or the modified 2006 version. 69 Buildings B1, B2, C, and F would be within and Building A would be partly within the 2001 heritage curtilage. Buildings B1, B2, F and part of C would be within the 2006 primary heritage area of the 2006 plan and Buildings A and C would be partly within the primary and secondary heritage areas. All these buildings would be higher than single-storey plus attic recommended as a maximum height in the 2001 'Conservation Plan' and would be contrary to the intentions of that plan. 70 Ms Laidlaw questioned whether the applicant has taken into account the constraints of the land including the heritage constraints. It was Ms Laidlaw's opinion that the applicant had not done so and we agree. As a result the application must fail. Blue Gum High Forest - Endangered Ecological Community 71 There was some disagreement regarding the identification and extent of Blue Gum High Forest, (BGHF), on the land and therefore the applicability of the Threatened Species Conservation Act 1995 (NSW), (TSC Act). The relevance and applicability of the Federal Government's, Environment Protection and Biodiversity Conservation Act 1999, (EPBC Act) with respect to the listing of BGHF in the Sydney Basin Bioregion as a critically endangered ecological community [Note: Exhibit 2A] was also given due consideration in light of Dr P Smith's ecological report, [Note: Exhibit P, Vols 1 and 2]. 72 Ms J Rawling, author of the 'Draft Vegetation Management Plan', April 2007 stated: [Note Exhibit J, pp. 14-15]: Part of the subject land is occupied by a simplified form of BGHF (~2,600 sq metres), as shown in Figure 3.2. The BGHF ecological community is listed as 'endangered' under the NSW TSC Act and 'critically endangered' under the Federal EPBC Act. Most of the subject land has been severely modified, and is considered to be irreversibly altered to the point where the original native vegetation community (BGHF) would not naturally regenerate (i.e. site resilience being too low or absent)… Accordingly these areas have been described as BGHF Habitat rather than BGHF ecological community (as described in the Final Determination - see Appendix 1). On 21 July 2006, the NSW Scientific Committee released a new Preliminary Determination, which proposes to list the BGHF in the Sydney Basin Bioregion as 'critically endangered'. The description of the community is far more prescriptive than that used in Final Determination (gazetted 5 September 1997), and would appear to propose inclusion of individuals and stands of Blue Gum ( E. saligna ) growing over an introduced or weedy understorey. It should be noted that if the Preliminary Determination was adopted, the area of BGHF Habitat within the subject land would in fact, be increased substantially. However, as the Preliminary Determination (as published 21 July 2006) has [not] been gazetted, this VMP has chosen to abide by the description of the BGHF ecological community set out in the Final Determination (5 September 1997) and listed under the Schedules of the NSW TSC Act. Recommendations for bushland rehabilitation and restoration relate specifically to those areas mapped as BGHF Habitat by UBMC (2205/2006). 73 Dr Smith the Court-appointed ecological expert and author of the report 'Identity and Condition of Native Vegetation at 35 Water Street, Wahroonga', prepared for the Department of Environment and Heritage, Australian Government stated: [Note Exhibit P, p. 3] Blue Gum High Forest, as listed under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) , includes patches with an intact vegetation structure, a tree canopy cover greater than 10%, and an area greater than 1 ha (Threatened Species Scientific Committee 2005, Department of the Environment and Heritage 2005). Patches with less than 10% tree canopy cover are also included if they are part of a native vegetation remnant larger than 5ha. Severely modified stands of trees characteristic of the canopy of Blue Gum High Forest, but without a native understorey, are not included in the definition of the community, and do not form part of the listing, even though they are recognised as important biodiversity reservoirs (Threatened Species Scientific Committee 2005).
[Ibid, p. 5] Blue Gum High Forest of the Sydney Basin Bioregion had a naturally restricted distribution before European settlement, being found on Wianamatta Shale soils in higher rainfall areas of northern Sydney. The original extent has been estimated at 3720 ha, which has now been drastically reduced by urban development to only 168 ha, a reduction of over 95% (Tozer 2003). Furthermore, the remnants are highly fragmented and are scattered through an urban landscape, where they are subject to edge effects such as weed invasion, altered drainage patterns, and inappropriate fire regimes.
[Ibid, p. 6] Blue Gum High Forest as listed under the Environment Protection and Biodiversity Conservation Act 1999, does not include patches of vegetation with a canopy of Blue Gum High Forest trees, but without a native understorey, even though these stands of trees are recognised as important biodiversity reservoirs (Threatened Species Scientific Committee 2005)… On this basis I must conclude that the vegetation does not satisfy the definition of Blue Gum High Forest as listed under the Act .
74 Dr Smith in his report 'Final Ecological Report', April 2007, stated: [Note Exhibit 9, volume 1, p. 12] Blue Gum High Forest has always been a restricted community, associated with Wianamatta Shale soils in higher rainfall areas of northern Sydney. Its original extent has been estimated at 3720 ha, which has now been drastically reduced by urban development to only 168 ha, a reduction of over 95% (Tozer 2003). Furthermore, the remnants are highly fragmented and are scattered through an urban landscape, where they are subject not only to continuing attrition from further development, but also to increasing degradation from edge effects such as weed invasion, inappropriate fire regimes and an influx of stormwater, bringing excessive moisture, pollutants and nutrients. Blue Gum High Forest is at extremely high risk of extinction as a functioning ecological community in the immediate future. Because of this, the NSW Scientific Committee (2006) has recently made a preliminary determination to upgrade the listing of the community under the Threatened Species Conservation Act 1995 from endangered to critically endangered.
[Ibid, p. 13] As discussed above, clearing for the construction of Buildings C, D and F will result in the loss of an area of about 1110 m2 of habitat, representing about 17% of the Blue Gum High Forest stand on the subject land. Shading, hydrological changes and other edge effects will extend the impact by modifying the habitat beyond the immediate footprint of the buildings… Construction of Buildings C and D will fragment what is now a continuous stand of Blue Gum High Forest into two sections (Figure 2).
[Ibid, p. 14] The proposed development will involve clearing of part of the Blue Gum High Forest stand at the site. Clearing of native vegetation is listed as a key threatening process under the Threatened Species Conservation Act 1995. The NSW Scientific Committee (2006) has identified 'small-scale clearing associated with residential subdivision, road upgrading, extension and maintenance of service easements, etc' as a particular threat to Blue Gum High Forest. I conclude from the above that the proposed development at 35 Water Street and 64 Billyard Avenue, Wahroonga, will have a significant impact on the endangered ecological community, Blue Gum High Forest, in terms of the seven part test of significance.
75 Dr Smith in his report 'Supplementary Ecological Report', April 2007, stated: [Note Exhibit 9, Vol 2, pp. 12-14] There is nothing in the original determination to indicate how severely disturbed the vegetation must be before it no longer represents Blue Gum High Forest. In my opinion, unless specifically excluded (as is the case with the listing of Blue Gum High Forest under the Commonwealth Environment Protection an Biodiversity Conservation Act 1999 ; Threatened Species Scientific Committee 2005), a stand of vegetation that retains an intact Blue Gum Forest canopy, even when most of the original understorey has been lost, has high conservation value because of its restoration potential, and should be considered as part of the endangered ecological community. My interpretation is supported by the NSW Scientific Committee's (2006) preliminary determination to upgrade the listing of Blue Gum High Forest to critically endangered. The preliminary determination notes that highly modified relics of the community persist as small clumps of trees without a native understorey; and that a number of stands of Blue Gum High Forest have highly modified understories, in which the native woody component has been largely replaced by woody exotic species or by increased abundance of native and exotic grasses. The preliminary determination does not exclude these from the listing. 76 He continued, But even if the preliminary determination is ignored, it remains my opinion that the stand of vegetation at 35 Water Street and 64 Billyard Avenue, as mapped in Figure 1 of my final ecological report (Smith 2007), represents the endangered ecological community, Blue Gum High Forest, as listed under the NSW legislation… I disagree with the mapping of Blue Gum High Forest in the plan [Note: Draft Vegetation Management Plan, April 2007, Exhibit J]: it does not show the full extent of the community at the site. As can be seen from Figure 1 of my report (Smith 2007 [Note: Final Ecological Report , April 2007, Vol 1]), which is based on the tree map and schedule compiled by Tree Wise Men Australia (2006), the area with an intact Blue Gum High Forest canopy is much more extensive than shown on Figure 3.2 of the draft vegetation management plan. The plan states that the area of Blue Gum High Forest at the site is about 2600 m2, but it is actually about 6350 m2… The stated first objective of the plan [Draft Vegetation Management Plan, April 2007, Exhibit J] is 'to conserve and rehabilitate those areas of BGHF Habitat occurring within the subject land and promote local biodiversity values'. However, the development, as currently planned, will not conserve all of the Blue Gum High Forest at the site. It will involve a substantial reduction in the existing native tree canopy. An area of about 1,110 m2 of Blue Gum High Forest, or about 17% of the stand, will be directly impacted by clearing for Buildings C, D and F (see Figure 2 of my report [Note: Smith, 2007, Final Ecological Report , April 2007, Vol 1]). Adjacent areas will be impacted by edge effects such as shading, changed drainage patterns, soil disturbance and vegetation disturbance from human activities near the proposed buildings. The clearing will also have a fragmenting effect, dividing what is now a continuous Blue Gum High Forest stand in two. Of the 89 native trees identified by Tree Wise Men Australia (2006) within the stand, 21 trees are to be removed, representing 24% of the total. This includes the removal of 14 of the 54 Eucalyptus saligna (Sydney Blue Gum) trees in the stand, which is 26%. The plan proposes reconstruction of Blue Gum High Forest in areas outside the existing stand of the community. The plan states that this will 'substantially increase the area of BGHF Habitat within the subject land'. However, the total area proposed for either rehabilitation or reconstruction of Blue Gum High Forest is only 5124 m2, which is less than the current area of about 6350 m2 of the community at the site. And the existing continuous stand will be fragmented. Furthermore, attempts at reconstruction of Blue Gum High Forest in parts of the site that no longer support a native tree canopy will be highly problematic, especially as these include narrow strips immediately adjacent to buildings, and other areas where retention of culturally significant garden plantings will be a parallel objective and will conflict with reconstruction of native vegetation. I doubt whether a functioning ecological community can be successfully recreated in such situations. Rather, the result will be a high maintenance garden that includes some Blue Gum High Forest species. This is not a satisfactory alternative to retention of the existing area of remnant native tree canopy, and rehabilitation there of a native under storey so that it eventually becomes a self-sustaining community requiring relatively little management intervention. 77 Notice of Final Determination under the Threatened Species Conservation Act 1995 stated: [Note Exhibit 2A, Government Gazette of the State of New South Wales, 54, Friday, 20 April 2007, p. 2359] 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 number of species, and the above ground relative abundance of species will change with time since fire, and may also change in response to changes in fire regime (including changes in fire frequency). At any one time, above ground individuals of some species may be absent, but the species may be represented below ground in the soil seed banks or as dormant structures such as bulbs, corms, rhizomes, rootstocks or lignotubers. The list of species given is of vascular plant species; the community also includes micro-organisms, fungi, cryptogamic plants and a diverse fauna, both vertebrate and invertebrate. These components of the community are poorly documented.
[Ibid, p. 2361] Blue Gum High Forest has a very highly restricted geographic distribution, and is currently estimated to cover an extant area of less than 200 ha (Tozer 2003). The distribution comprises a series of small remnant patches, the largest of which is less than 20ha. Highly modified relics of the community also persist as small clumps of trees without a native understorey. All remnants of the community are now surrounded by urban development. Consequently, the distribution of Blue Gum High Forest is severely fragmented. Fragmentation of habitat contributes to a very large reduction in the ecological function of the community. Prior to European settlement, about 200 years ago, Blue Gum High Forest is estimated to have covered an area of approximately 3700 ha (Tozer 2003). Its current extent amounts to less than 5% of this original distribution. The dominant eucalypts of the community live for several hundred years. Blue Gum High Forest has therefore undergone a very large reduction in its geographic distribution within a time span appropriate to the life cycle and habitat characteristics of its component species. Small-scale clearing associated with residential subdivision, road upgrading, extension and maintenance of service easements, etc. pose a threat of ongoing decline in the extent of the community. Clearing of native vegetation is listed as a Key Threatening Process under the Threatened Species Conservation Act 1995 . Changes in structure of Blue Gum High Forest have occurred as a consequence of the extensive removal of large old trees. A number of stands of Blue Gum Forests have highly modified understories, in which the native woody component has been largely replaced by woody exotic species or by increased abundance of native and exotic grasses. Continued underscrubbing, frequent burning and mowing may maintain the understorey in an artificially open state and prevent recruitment of species with the community. The loss of large trees removes essential habitat for a range of tree-dependent fauna (Gibbons and Lindenmeyer 1996). The reduction of understorey complexity, through the reduction of native shrub cover, degrades habitat for a range of bird and mammal species (Catling 1991). These processes contribute to a very large reduction in the ecological function of the community.
[Ibid, p. 2361] Blue Gum High Forest in the Sydney Basin Bioregion is eligible to be listed as a critically endangered ecological community as, in the opinion of the Scientific Committee, it is facing an extremely high risk if extinction in New South Wales in the immediate future, as determined in accordance with the following criteria as prescribed by the Threatened Species Conservation Regulation (2002) .
78 The evidence reveals that there are several salient issues relating to the presence or otherwise of BGHF and its definition under the EPBC Act and/ or the Threatened Species Conservation Act 1995 (NSW). Further, the question of whether the proposed development will have significant impact on the BGHF is of significance given the limited and dwindling refugia of this community in the Sydney bioregion. 79 The development application falls under NSW legislation and therefore NSW environmental planning legislation and related instruments are the primary tools that should be used to address any related matters. The application of the EPBC Act 1999 to 'Rippon Grange' is not relevant for the following reasons: · The definition of Blue Gum High Forest ecological community of the Sydney Basin Bioregion (BGHF) under the EPBC Act 1999 includes occurrences of community with a canopy cover greater than 10% and a size greater than one hectare (ha). · Remnant patches of BGHF with a canopy cover of less than 10% are also considered to be BGHF where the fragments are greater than one ha in size and occur in areas of native vegetation in excess of 5 ha. The size of the BGHF at 'Rippon Grange' is about 0.635 ha, thus it is too small to be designated as BGHF under the EPBC Act 1999. This is supported by the evidence given by Dr Smith (Smith, 2007 'Identity and Condition of Native Vegetation at 35 Water Street, Wahroonga', report prepared for the Department of Environment and Heritage, Australian Government stated: [Note: Exhibit P, p. 3]. 80 However, the vegetation at 'Rippon Grange' is unequivocally BGHF according to the Threatened Species Conservation Act 1995 (NSW). Exhibit 2A, (Final Determination under the Threatened Species Conservation Act 1995) states this clearly when considered in conjunction with the explanation of the vegetation present at 'Rippon Grange' in both Dr Smith's reports [Note: Exhibit 9] and Ms Rawling's 'Draft Vegetation Management Plan' [Note: Exhibit J]. The Final Determination [Note: Exhibit 2A] states that many species may be present in only one or two sites or in low abundance. Further, it specifically notes that some species of BGHF may be absent but that the species may be represented below ground in the soil seed banks or as dormant structures such as bulbs, corms, rhizomes, rootstocks or lignotubers. It has been stated in the applicant's 'Draft Vegetation Management Plan' [Note: Exhibit J, p. 14] that components of BGHF remain albeit with an introduced (exotic) understorey. Therefore, given the terms of the Final Determination under the Threatened Species Conservation Act 1995, the trees identified at 'Rippon Grange' are not only bona fide BGHF but are now deemed to be part of a critically endangered ecological community. 81 Given this determination, the development application fails to: (1) Assess adequately the impacts of the development. Section 5A of the Environmental Planning and Assessment Act 1979 (NSW) identifies seven factors (a-g) (the 'seven part test' of significance) must be taken into account in deciding whether there is likely to be a significant effect on a threatened species, populations or ecological communities, or their habitats. (2) Address the effects of a key threatening process, the clearing of native vegetation BGHF at the site, as required under Schedule 3 of the Threatened Species Conservation Act 1995. (3) Address 79B(3) of the EPA Act 1979. Given that the proposed development will impact upon a threatened ecological community (BGHF), s 79B(3) of the EPA Act 1979 requires the following, which has not been presented as part of the development application: Under s 79B(3) of the Environmental Planning and Assessment Act 1979 and the requirements of consultation and concurrence of threatened species, development consent cannot be granted for: (a) development on land that is, or is a part of, critical habitat, or (b) development that is likely to significantly affect a threatened species, population or ecological community or its habitat, without the concurrence of the Director-General of National Parks and Wildlife or, if a Minister is the consent authority, unless the Minister has consulted with the Minister administering the Threatened Species Conservation Act 1995.
82 The impact of the proposal on the remnant BGHF on the land was determined to amount to a loss of 17% of the stand of trees (Smith, 2007), [Note: Exhibit 9, Vol 1, p. 2] but in oral evidence Dr Smith stated that the loss of BGHF would actually be 19%, taking into account the driveway for Building F (and an addition 67m2). Dr Smith also took the position in oral evidence that acceptable development impacts should not exceed 5% loss of the BGHF community. 83 During cross-examination, Mr Galasso, SC, asked Dr Smith if the BGHF at 'Rippon Grange' should be considered along with the surrounding trees as 'a cluster' given that interactions such as cross-pollination and seed dispersal are likely to occur relatively frequently (Smith, 2007), [Note: Exhibit 9, Vol 1, p. 5] between the stand at 'Rippon Grange' and the surrounds. If so, Mr Galasso, SC, submitted that the loss of BGHF would be significantly less than the 19% stated by Dr Smith. 84 Aside from the Final Determination under the Threatened Species Conservation Act 1995, [Note: Exhibit 2A], the loss of trees from the 'Rippon Grange' development site cannot and should not be offset or lessened by the fact that there are other neighbouring trees belonging to the BGHF critically endangered community since this development application relates to an application on land in a defined geographic area. 85 The attrition of remnant stands of BGHF has already been identified as a major threat to the long-term viability of the community in the Final Determination under the Threatened Species Conservation Act 1995 [Note: Exhibit 2A, p. 2361]. Specifically, the Final Determination identified small-scale clearing associated with residential subdivision as a significant and ongoing threat to the extent of the community. The approach submitted by Mr Galasso, SC, amounts in effect to a 'death by a thousand cuts' and is contrary to the concept of inter-generational equity, optimum environmental management and the protection of critically endangered species for future generations. 86 We conclude that the remnant bushland on 'Rippon Grange' as identified by Smith (2007) [Note: Exhibit 9, Vol 1], is BGHF as per the definition given in the Threatened Species Conservation Act 1995. Consequently, it needs to be afforded appropriate protection and that the assessment of impacts as detailed in the EPA Act 1979 need to be undertaken in advance of any further development application. Therefore the development application must fail.
Blue Gum High Forest edged in black outline showing isolated BGHF trees [Note: Figure 2 Exhibit 9] 87 The BGHF needs to be afforded the maximum protection given its perilous remnant state and spatial coverage. For the reasons discussed below a range of steps need to be undertaken and considered to ensure the continued health and vigour of BGHF. These include: · The development of buildings and related infrastructure outside of the footprint of the Blue Gum High Forest. Any such future development would need to have a minimum buffer determined by the canopy spread or 3m from the trunk as per the council's tree preservation order [Note: Referred to in Exhibit 1, pp. 82-83], whichever is the greater. · Future assessment has to take into account and establish properly the effects of shading, impacts on sub and surface hydrology, root zone disturbance and other edges effects that would ensue from any excavation, underground and above ground development that may occur. · While adjoining patches of BGHF are significant for the maintenance of the ecological community as a whole, they cannot be considered in exchange for either offset or as component in any calculation for a development proposal that aims to remove or degrade the BGHF at 'Rippon Grange'. Any future applicant for development should only consider the vegetation that is within the boundaries of the land. · Where species or communities have been listed as critically endangered, the preservation and protection of a few neighbouring isolated trees can contribute to the long-term viability of a greater community and should be preserved. No community can regenerate if the seed banks or sources of those seeds have been removed. · Where a community once existed there remains a distinct possibility that viable seed banks may be retained in the surrounding soils. Therefore, even where fire hazard reductions of the understorey have been undertaken it is quite possible that viable seed banks will remain in the soil such that natural regeneration has the potential to occur particularly, when assisted by sensitive planning and environmental management. · With respect to the connectivity and fragmentation of endangered and critically endangered species, a few remaining trees may well provide a critical link to maintaining and contributing to the long-term viability of refugia. Indeed, the cross-pollination of fragmented individuals and stands of eucalypt trees (including BGHF) may occur over extended distances. · While seed dispersal contributes to regeneration it is less significant and effective than the genetic transfer associated with pollination. Pollination occurs in eucalypts such as those characterising the BGHF via a variety of active, non-specific pollinating vectors such as generalist insects and animals. · Insects regularly disperse pollen over 100m but they also have the capacity to disperse pollen over distances of at least 1.6km. Species of eucalypts (including BGHF) that are subject to pollen dispersal by larger animals such as birds (e.g. lorikeets) are likely to be subject to cross-pollination over significantly longer distances. Such distances may be as great as 6km from a pollen source for eucalypts. Consequently, even relatively distal and isolated species can contribute significantly to the long-term genetic viability of endangered and critically endangered communities. · In terms of protecting ecological communities, buffer zones play a significant role in mitigating undesirable edge effects associated with urban development. Edge effects are more marked in narrow buffers. Thus it would be prudent where feasible to maintain as a large a buffer as possible. Even where exotic vegetation surrounds native bushland (including BGHF), the removal of such vegetation is likely to have a negative impact, especially when it is replaced by urban development. Due to the effects of light, runoff, litter etc. · An applicant should avoid development that would truncate, fragment or disconnect a BGHF stand at 'Rippon Grange'. 88 Buildings F, C and D all partly fall within the BGHF and as a result the application must fail. Planning principle 89 There are individual trees in the northeast corner of the land identified by Dr Smith as being part of the BGHF and it is important that they be retained. These isolated plant species have not always been recognised as important and there is need to establish a planning principle: Relatively distal and isolated plant species can contribute significantly to the long-term genetic viability of endangered and critically endangered communities and must be protected. Site analysis 90 Ms Laidlaw considered that the 'Site Analysis' drawing (AR DA.01) submitted with the application was an inadequate representation of the constraints of the subject land, and at the very least in its failure to map or identify/ synthesise the fundamental development constraints presented led to a failure to: a) map the curtilage recommendations (p. 137) or 'primary' and 'secondary' heritage zones (p. 136), including not only the curtilage/ zone boundary, but also the other recommendations as to building height and form as applicable to those designations. b) clearly identify the extent of BGHF, which at the time of submission of the development application was an endangered (now critically endangered) ecological community to which specific environmental assessment procedures and considerations apply under the Act. c) clearly identify the site's context, in terms of built form and character, including the height and architectural character of 'Rippon Grange', the predominant single and two storey dwellings nearby, or even (to take the applicant's arguments) the other 'Special Use' sites in the locality. Given the requirements of cl 31 of SEPP-SL, one would expect, at least, some commentary as to what this context would mean as to what could reasonably be achieved, in terms of height and built form, on the subject site. d) clearly identify setbacks consistent with either the character of the surrounding area, or benchmark standards under DCP 38 on a consistent basis. The setbacks that are shown on DA AR.01 are generally those with which the ultimate development proposal either complies or varies to a small extent (but with a building height bearing no relationship to the two storey dwellings upon which the setback is derived). The setback is completely overlooked for the northeastern portion of the site, where Building F is now located (and which contravenes even the minimal setbacks indicated on DA AR.01, further south). 91 She considered, [Note: Exhibit 12, p 4]: The purpose is to identify the constraints and opportunities of the site at an early stage to determine, broadly, those parts where development opportunity exists (ie those parts not affected by one or more constraints or not inconsistent with the constraint(s)) and the parameters that apply to any such 'development opportunity'. 92 Ms Laidlaw prepared figures illustrating the site constraints at key stages in the recent history of the land. Figure 1 shows the site analysis, including fundamental constraints that would have been known, on reasonable enquiry, by the applicant, at the time of purchase, namely the key recommendations of the draft [Conservation Management Plan] CMP and the BGHF determined by UBM (this being similar on the eastern boundary to the designation of 'bush garden Blue Gums) on the Landscape Heritage drawing (draft CMP, p. 132), the individual significant trees identified by survey, and matters relating to site context. Figure 2 shows the modified (reduced) heritage curtilage and recommendations of the final CMP and the 'primary' and 'secondary' heritage zones, together with UBM's determination of the extent of BGHF. This is the 'site analysis' that should, at the very least, have formed the basis of DA AR.01. Figure 3 shows the modified heritage curtilage and also the modified (as per Smith) BGHF, representing the material (with the other elements of Figure 1) that would now form the basis of the site analysis, assuming one accepts the final CMP and also Smith's determination of the BGHF. It will be noted that the constraints presented by each of these diagrams differ, to a significant extent, from the applicant's site analysis drawing DA AR.01 (refer Figure 4) which by way of illustration only: · Does not identify the Blue Gum High Forest as a constraint per se. The shaded grouping of trees that broadly accords with [Urban Bushland Management] UBM's designated BGHF is simply notated as 'existing tall trees allowing filtered views (refer to arborist report and F & F assessment)...' and three 'opportunity zones' (broadly according with the positions of Blocks C, D and F) are shown encroaching this shaded area. · Does not identify either the draft or final Conservation Management Plan curtilage or the additional (rather confusing) designation of primary and secondary heritage zones (there is a reference only to a 'nominal heritage zone'), or make any reference to the specific built form recommendations of either version DA AR.01 instead shows an 'opportunity zone' encroaching the revised heritage curtilage around the Stables, another encroaches the curtilage to the south of the croquet lawn (where the CMP recommendation is 'maximise distance to minimize impact') and another encroaches the reduced curtilage to the south of 'Rippon Grange'. 93 Ms Laidlaw continued: While I agree there is some subjectivity as to exactly what level of detail should go into a site analysis drawing, the heritage provisions and BGHF are so fundamental to the process of establishing what the capacity of this site is for development, that omission of reference to them on DA AR.01 can only suggest that little weight was accorded to these constraints in the design development process. Figure 4 - in which I have made some comparison (not exhaustive) between some of the constraints as shown on Figures 1, 2 and 3 and the actual DA proposal - confirms this to be the case - ie that there is a marked divergence between what a site analysis for this property should show, and what the proposal actually provides for. Likewise, Figure 5, being AR DA.01 with the actual constraints of the heritage curtilage (final CMP) and BGHF (UBM) illustrates that the drawing per se, does not accord with the constraints of the supporting material it makes reference to. I add that if the site analysis indicated by Figure 1 had been fed into the initial feasibility assessment to inform the purchase decision, then the view must reasonably have formed that the subject property had very significant environmental constraints and very limited development opportunity. There should not, therefore, be an argument now, that buildings of up to seven storeys in height, encroaching the Blue Gum High Forest and varying the provisions of even the less stringent final CMP, are necessary to ensure the feasibility of this project. Further, although there has been modification to the BGHF boundary (by Dr Smith) compared to that originally determined on behalf of the applicant (by UBM) the final CMP is much less stringent than the draft CMP and has thus created greater development opportunity. Overall, the constraints that are now present are, at the least, no greater than the constraints that would have been known - even at a basic level of enquiry and analysis - at the time the property was purchased. Likewise, as far as site context is concerned, even a cursory inspection at time of purchase, or at any time subsequently, would show this is an area of predominantly one and two storey dwelling houses of modest footprint and almost exclusively 'traditional' including pitched roof form. Nowhere in the vicinity of this site, including even the Special Use zones on which the applicant seeks to rely, is any justification drawn for buildings of 4-7 storeys, including built form located as close as 9 metres to a public road. In summary, the major issue presented by this DA, in my opinion, is not whether the applicant has technically 'ticked off' all the headings under Clause 28(3) and (4) but rather whether the consent authority can be reasonably satisfied that the applicant has, as required by Clause 28, 'taken into account' the constraints indicated by the body of information available to, or collected by it. In my opinion, it has not. 94 Mr Boston was of the opinion that cl 28 of the SEPP-SL had been appropriately addressed having regard to the information contained on the site analysis plan DA AR 01 prepared by Tanner Architects and the supplementary documentation. 95 He advised the Court that the curtilage recommendations contained within the 2006 'Conservation Management Plan' and the area mapped as BGHF by Urban Bushland Management (or more recently Dr Peter Smith) do not serve as prohibitions to development. 96 We conclude that the site analysis plan prepared by Tanner Architects fails to meaningfully take into account the heritage significance of 'Rippon Grange' its gardens and the BGHF. We accept the evidence of Ms Laidlaw and reject that of Mr Boston and refuse the application for reason of an unsympathetic relationship of development with 'Rippon Grange' and that it fails to accord proper weight to the significance of the BGHF as well as the significance purpose and validity of the heritage curtilage. Context, siting and the character 97 Under the heading of Issue 3, the council maintained that the proposal would be inconsistent with the provisions of the SEPP-SL and SEPP65 in relation to its context, siting and the character. 98 We accept the evidence of Ms Laidlaw that the subject property has very significant environmental constraints and very limited development opportunity even taking into account that within the original heritage curtilage some further development might be possible. As required by the Heritage Office it would need to be lower in height than proposed and under the 2001 'Conservation Plan' be single storey plus attic in height as a maximum. Therefore, any development within that curtilage would need to be subservient to the heritage significance of 'Rippon Grange'. 99 The area of land that might be built upon would be much less than the proposed 22% site coverage. This can be confirmed by overlaying both the extent of the BGHF as identified by Dr Smith and the original heritage curtilage. 100 In particular Buildings B1 and B2 close to 'Rippon Grange', are built within the original curtilage and in our opinion do not respect the heritage significance of the building and gardens. Buildings F, C and D are sited within the BGHF and would be likely to adversely affect the health and vigour of this critically endangered ecological community. Buildings B1, B2, F, C and part of A are also sited within the original heritage curtilage and we consider would adversely impact on the heritage significance of the 'Rippon Grange' and gardens. Thus, the proposal would have excessive site coverage, and encroach on the heritage significance of 'Rippon Grange' house and its gardens and must fail as a result. 101 Having failed on the above grounds a detailed assessment of the proposal in relation to bulk, scale and amenity impacts is not required. These impacts would be less if the development were smaller in footprint and lower of height. 102 For the above reasons, the appeal is dismissed. Orders 103 Our orders are:
06/07/2007 - 'principle' in lieu of 'principal' - Paragraph(s) Heading to para 89 25/07/2007 - To include the John Williams Neighbourhood Group Inc in the citation and as the second respondent. To include Mr G Pindar as the traffic expert for the applicant - Paragraph(s) Front page and p 1paras 28 and 29
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Murlan Consulting Pty Limited
Ku-ring-gai Council and John Williams Neighbourhood Group Inc