Black v Ku-ring-gai Council - [2008] NSWLEC 1501

Land and Environment Court

of New South Wales

CITATION: Black v Ku-ring-gai Council [2008] NSWLEC 1501

PARTIES:
APPLICANT
Ian Black
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S): 10719 of 2008

CORAM: Tuor C - Taylor C

KEY ISSUES: Development Application :- dwelling house
impact on Blue Gum High Forest
provision of offset
impact on residential amenity

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Threatened Species Conservation Act 1995
Ku-ring-gai Planning Scheme Ordinance
Ku-ring-gai Development Control Plan 38 - Residential Design Manual

CASES CITED: BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399
Sanctuary Investments Pty Ltd & Ors v Baulkham Hills Shire Council [2006] NSWLEC 733

DATES OF HEARING: 9 & 10/10/2008 and 28/11/2008
Written submissions 8 & 9/12/2008

DATE OF JUDGMENT:
24 December 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr S Kondilios, solicitor
of Maddocks
RESPONDENT
Mr A Hudson, solicitor
of Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C
Taylor C

24 December 2008

10719 of 2008 Ian Black -v- Ku- ring-gai Council
JUDGMENT

1 This is an appeal against the refusal by Ku-ring-gai Council (the council) of a development application (1003/07) under the Environmental Planning and Assessment Act 1979 (the EPA Act) to construct a two storey house at 55 Mahratta Avenue, Wahroonga (the site).

2 The key dispute between the parties is whether the impact of the proposal on the Blue Gum High Forest (BGHF) is acceptable without an offset.

The site and its contest

3 The site is regular in shape with an area of approximately 891.76 sq m. It is vacant and a large part of the site has remnant BGHF, which is identified as a Critically Endangered Ecological Community (CEEC) under the Threatened Species Conservation Act 1995 (TSC Act).

4 Adjoining the site, on each side and to the rear, are detached residential dwellings, which are the predominant form of development in the locality.

5 The Glade Reserve is located a short distance to the northeast of the site. This reserve also contains BGHF.

The Planning Controls

6 The site is zoned Residential 2(c) under Ku-ring-gai Planning Scheme Ordinance (KPSO). The proposal is permissible with consent under the KPSO.

7 Ku-ring-gai Development Control Plan 38 - Residential Design Manuel (DCP 38) is also relevant.

8 The EPA Act and the TSC Act set out procedures for the assessment of applications that involve CEEC.

The evidence

9 The Court visited the site on 9 October 2008 and heard evidence from the adjoining owner, Mrs Petinsky, 53 Mahratta Avenue. Her principal concerns were the placement of the dwelling at the rear of the site and the impacts of the height and bulk of the proposal when viewed from her property, particularly as a result of the reduced side set back and lack of screen planting.

10 The Court heard expert evidence on ecological issues from Dr P Smith, for the council and Ms J Rawling, for the applicant. Mr G Youhanna, for…

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: [2008] NSWLEC 1501
Decision Date: 24 December 2008

CaseChat Overview and Summary

The Land and Environment Court of New South Wales considered an appeal by Ian Black against the Ku-ring-gai Council's refusal of a development application for the construction of a two-storey house at 55 Mahratta Avenue, Wahroonga. The site is predominantly covered by Blue Gum High Forest (BGHF), a Critically Endangered Ecological Community. The primary dispute was whether the development's impact on the BGHF could be considered acceptable without an offset. The court had to determine if the development application complied with the Environmental Planning and Assessment Act 1979, the Threatened Species Conservation Act 1995, and the relevant planning schemes and manuals.

The court found that the amended plans had reduced the building footprint, resulting in the retention of a significant portion of the BGHF. Both experts agreed that the proposal had met the Department of Environment and Climate Change's standards for proposals impacting CEEC, which include avoiding, minimising, ameliorating, and, as a last resort, offsetting or compensating for the loss. While the applicant proposed an offset, the council refused to enter into a Voluntary Planning Agreement for this purpose, citing a lack of procedures and policies to handle offsets. The court concluded that while it is preferable for all components of the offset to be implemented, the refusal of the application solely because part of the offset could not be implemented was not justified. The court proposed a condition for the applicant to provide an offset prior to the issue of the occupation certificate, allowing the development to proceed if the offset could not be achieved.

The appeal was upheld, and the development application was approved subject to conditions outlined in Annexure A. The exhibits were returned, except for certain specified ones.

Orders