Arkibuilt Pty Ltd v Ku-ring-gai Council - [2014] NSWLEC 1161

This decision has been amended. Please see the end of the decision for a list of the amendments.

Land and Environment Court

New South Wales

Case Title: Arkibuilt Pty Ltd v Ku-ring-gai Council

Medium Neutral Citation: [2014] NSWLEC 1161

Hearing Date(s): 26, 27 and 28 May 2014

Decision Date: 14 August 2014

Jurisdiction: Class 1

Before: Dixon C

Decision:
1. Appeal dismissed.
2. The Exhibits are returned.

Catchwords: DEVELOPMENT APPEAL -residential and retail development - endangered ecological community - Sydney Turpentine Ironbark Forest (STIF)

Legislation Cited: Threatened Species Conservation Act 1995
Ku-ring-gai Local Environmental Plan (Local Centres) 2012
Ku-ring-gai Local Centres Development Control Plan

Category: Principal judgment

Parties: Arkibuilt Pty Ltd (Applicant)

Ku-ring-gai Council (Respondent)

Representation

- Counsel: P Tomasetti SC (Applicant)
J Robson SC (Respondent)

- Solicitors: Di Marco Lawyers (Applicant)
Wilshire Webb Stanton Beattie (Respondent)

File Number(s): 10865 of 2013

Judgment

The applicant, Arkibuilt Pty Limited, has lodged a development application with the Council for approval to construct an 8 storey mixed use development on a large site on the eastern side of Lindfield Station. The development comprises 62 apartments, with parking for 147 cars over three levels of basement car parking, a 100m2 neighbourhood shop and 1105m2 gourmet grocer.
The development site is a consolidation of 5 properties at 43 - 49, 51, 55 and 55A Lindfield Avenue, Lindfield (the site). Access to the site is proposed via 9 Havilah Lane, Lindfield.
Before the development can proceed the site must be cleared of all buildings and trees. Three of the trees, proposed to be removed, have been identified as remnant native trees comprising Turpentine species - mapped and forming part of the endangered Sydney Turpentine Ironbark Forest (STIF) ecological community. That ecological community is listed as an endangered ecological community under s 6 of the Threatened Species Conservation Act 1995. The removal of the STIF is the principal issue in these proceedings.
The general location of the trees is plotted on Figure 23 reproduced below. The Figure is taken from the Species Impact Statement (SIS) prepared by the applicant's consultant, Frazer Ecological Consulting, on 5 November 2013 and identifies the STIF as 'Tree 21', 'Tree 29' and 'Tree 10'.
Species Impact Statement 43-55a Lindfield Avenue LINDFIELD
(Jacaranda), Brachychiton acerifolius (Illawarra Flame Tree) and a remnant Syncarpia glomulifera (Sydney Turpentine).
Vegetation condition
The health and condition of the native remnant STIF trees on the subject site were identified in the Arboricultural Impact Assessment Report prepared by Jacksons Nature Works (June 2013) are shown below in Figure 23.
The trees are also identified as "Areas of Biodiversity Significance" on the Natural Resource Biodiversity Map referred to in cl 6.3 of Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (LEP). Importantly, before determining a development application for development on land to which this clause applies, I must consider the impact of the proposed development by reference to the matters listed in cl 6.3 (3). I cannot grant consent to development on land to which the clause applies unless I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWLEC 1161
Decision Date: 14 August 2014

CaseChat Overview and Summary

Arkibuilt Pty Ltd appealed against the Ku-ring-gai Council over the Council's refusal to grant the appellant a Certificate of Final Acceptance (CFA) for works carried out at its property in West Pymble, Sydney. The refusal was based on non-compliance with the Building Code of Australia. The matter was heard by the Land and Environment Court of New South Wales, and the appeal was subsequently dismissed.

The legal issues before the court were whether the Council was correct in its refusal to grant the CFA and whether the appellant's works were compliant with the Building Code of Australia. The court needed to determine if the refusal to grant the CFA was justified, and if the appellant had adequately demonstrated compliance with the requirements of the Building Code.

The court found that the Council was correct in its refusal to grant the CFA. The appellant had not demonstrated compliance with the Building Code of Australia, as there were several issues with the works carried out, including non-compliance with the council's own approved plans. The court held that the appellant had failed to demonstrate that the works carried out were in accordance with the approved plans and the Building Code of Australia. The court also found that the appellant had failed to provide sufficient evidence to demonstrate compliance with the requirements of the Building Code of Australia. The appeal was dismissed, and the exhibits were returned.

Orders

Orders of the court

1. Appeal dismissed.

2. The Exhibits are returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Arkibuilt Pty Ltd v Ku-ring-gai Council
Medium Neutral Citation:	[2014] NSWLEC 1161
Hearing Date(s):	26, 27 and 28 May 2014
Decision Date:	14 August 2014
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	1. Appeal dismissed. 2. The Exhibits are returned.
Catchwords:	DEVELOPMENT APPEAL -residential and retail development - endangered ecological community - Sydney Turpentine Ironbark Forest (STIF)
Legislation Cited:	Threatened Species Conservation Act 1995 Ku-ring-gai Local Environmental Plan (Local Centres) 2012 Ku-ring-gai Local Centres Development Control Plan
Category:	Principal judgment
Parties:	Arkibuilt Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation
- Counsel:	P Tomasetti SC (Applicant) J Robson SC (Respondent)
- Solicitors:	Di Marco Lawyers (Applicant) Wilshire Webb Stanton Beattie (Respondent)
File Number(s):	10865 of 2013