Beasley v Blue Mountains City Council - [2022] NSWLEC 1652

Land and Environment Court

New South Wales

Medium Neutral Citation: Beasley v Blue Mountains City Council [2022] NSWLEC 1652
Hearing dates: 18-19 November 2021
Date of orders: 08 December 2022
Decision date: 08 December 2022
Jurisdiction: Class 1
Before: Adam AC
Decision:
The Court orders:
(1) The appeal is upheld.
(2) Development consent is granted to development application X/545/2020 for the decommissioning of the original driveway at the western end of the property, removal of the Chamaecyparis obtusa tree within the front building setback, construction of new driveway entrance and parking space at the eastern end of the property, compensatory works and installation of new vehicle access gates and a pedestrian gate within the existing front fence at 133 Waratah Street, Katoomba, subject to the conditions of consent in Annexure A.
(3) The exhibits are returned except for 1, 2, 3, 4, 8, A, B, E and F.

Catchwords:
APPEAL – development application – relocation of access from public road to property – construction of hardstand for parking – removal of coniferous tree in HCA – is removal of tree justifiable – landscaping and restoration of garden – balance between amenity to residents of the property and the retention of the tree – weight given to development control plan – conditions

Legislation Cited:
Biodiversity Conservation Act 2016
Blue Mountains Local Environmental Plan 2015, cll 5.10, 6.4, 6.9, 6.17
Environmental Planning and Assessment Act 1979, ss 3.8, 4.15, 8.7
Land and Environment Court Act 1979, s 34AA
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 8 s 8.8; Ch 9
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4 s 4.6
State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011
Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997), cl 6
State Environmental Planning Policy No 55—Remediation of Land, cl 7 (repealed)

Cases Cited:
Saffioti v Kiama Municipal Council [2019] NSWLEC 57
Sutherland No. 7 Pty Limited v Ku-ring-gai Council [2021] NSWLEC 1209
Tomasic v Port Stephens Council [2021] NSWLEC 56
Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167

Texts Cited:
Chamaecyparis obtusa ‘Crippsii’. American Conifer Society, < accessed 11 November 2022
P D Tredici, ‘The Introduction of Japanese plants into North America’ (2017) 83 Botanical Review 215-252
Blue Mountains Development Control Plan 2015
Richard Ratcliffe, Australia’s master gardener: Paul Sorensen and his gardens (1990, Kangaroo Press, Kenthurst)
S. Barrett, ‘The Sorensen’s Nursery Saga’ (1992) 4(2) Australian Garden History 6-7

Category: Principal judgment
Parties: Gerald Beasley (First Applicant)
Sally Lewis (Second Applicant)
Blue Mountains City Council (Respondent)
Representation:
Counsel:
G Beasley (Self-represented) (Applicants)
A Seton (Solicitor) (Respondent)
Solicitors:
Marsdens Law Group (Respondent)

File Number(s): 2021/178367
Publication restriction: No

Judgment

Introduction

This matter is an appeal by the Applicants, Mr Beasley and Ms Lewis, against the refusal of development application X/545/20208 (DA) by the Respondent, Blue Mountains City Council. The appeal is made pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The DA in the form before the Court…

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: [2022] NSWLEC 1652
Decision Date: 08 December 2022

CaseChat Overview and Summary

The matter before the court was an appeal by Beasley against a decision of the Blue Mountains City Council. Beasley had submitted a development application seeking consent for various modifications to his property, including the decommissioning of an existing driveway, the removal of a specific tree, the construction of a new driveway and parking area, and the installation of new vehicle and pedestrian gates. The Council had refused consent, and Beasley appealed that decision.

The primary legal issue before the court was whether the Council had correctly exercised its discretion in refusing the development application. The court had to consider whether the refusal was unreasonable or based on an error of law. The court also had to determine if the proposed modifications were consistent with the planning scheme and if any potential adverse impacts could be mitigated.

The court found that the Council's decision was unreasonable as it had not properly considered the evidence and the merits of the application. The court determined that the proposed modifications were consistent with the planning scheme and that any potential adverse impacts could be adequately mitigated. The court held that the Council should have granted consent subject to certain conditions. The appeal was therefore upheld, and development consent was granted subject to the conditions set out in Annexure A of the judgment. The exhibits were ordered to be returned, with certain documents to remain with the court for future reference.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to development application X/545/2020 for the decommissioning of the original driveway at the western end of the property, removal of the Chamaecyparis obtusa tree within the front building setback, construction of new driveway entrance and parking space at the eastern end of the property, compensatory works and installation of new vehicle access gates and a pedestrian gate within the existing front fence at 133 Waratah Street, Katoomba, subject to the conditions of consent in Annexure A.

(3) The exhibits are returned except for 1, 2, 3, 4, 8, A, B, E and F.

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.

Medium Neutral Citation:	Beasley v Blue Mountains City Council [2022] NSWLEC 1652
Hearing dates:	18-19 November 2021
Date of orders:	08 December 2022
Decision date:	08 December 2022
Jurisdiction:	Class 1
Before:	Adam AC
Decision:	The Court orders: (1) The appeal is upheld. (2) Development consent is granted to development application X/545/2020 for the decommissioning of the original driveway at the western end of the property, removal of the Chamaecyparis obtusa tree within the front building setback, construction of new driveway entrance and parking space at the eastern end of the property, compensatory works and installation of new vehicle access gates and a pedestrian gate within the existing front fence at 133 Waratah Street, Katoomba, subject to the conditions of consent in Annexure A. (3) The exhibits are returned except for 1, 2, 3, 4, 8, A, B, E and F.
Catchwords:	APPEAL – development application – relocation of access from public road to property – construction of hardstand for parking – removal of coniferous tree in HCA – is removal of tree justifiable – landscaping and restoration of garden – balance between amenity to residents of the property and the retention of the tree – weight given to development control plan – conditions
Legislation Cited:	Biodiversity Conservation Act 2016 Blue Mountains Local Environmental Plan 2015, cll 5.10, 6.4, 6.9, 6.17 Environmental Planning and Assessment Act 1979, ss 3.8, 4.15, 8.7 Land and Environment Court Act 1979, s 34AA State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 8 s 8.8; Ch 9 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4 s 4.6 State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997), cl 6 State Environmental Planning Policy No 55—Remediation of Land, cl 7 (repealed)
Cases Cited:	Saffioti v Kiama Municipal Council [2019] NSWLEC 57 Sutherland No. 7 Pty Limited v Ku-ring-gai Council [2021] NSWLEC 1209 Tomasic v Port Stephens Council [2021] NSWLEC 56 Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167
Texts Cited:	Chamaecyparis obtusa ‘Crippsii’. American Conifer Society, < accessed 11 November 2022 P D Tredici, ‘The Introduction of Japanese plants into North America’ (2017) 83 Botanical Review 215-252 Blue Mountains Development Control Plan 2015 Richard Ratcliffe, Australia’s master gardener: Paul Sorensen and his gardens (1990, Kangaroo Press, Kenthurst) S. Barrett, ‘The Sorensen’s Nursery Saga’ (1992) 4(2) Australian Garden History 6-7
Category:	Principal judgment
Parties:	Gerald Beasley (First Applicant) Sally Lewis (Second Applicant) Blue Mountains City Council (Respondent)
Representation:	Counsel: G Beasley (Self-represented) (Applicants) A Seton (Solicitor) (Respondent) Solicitors: Marsdens Law Group (Respondent)
File Number(s):	2021/178367
Publication restriction:	No