Bugeja v Hornsby Shire Council

[2006] NSWLEC 700

Land and Environment Court

of New South Wales

CITATION:

Bugeja v Hornsby Shire Council [2006] NSWLEC 700

PARTIES:

FIRST APPLICANT
Phillip Frank Bugeja

SECOND APPLICANT
Gisella Angela Bugeja

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

10705 of 2006

CORAM:

Murrell C

KEY ISSUES:

Development Application :- For extension to dwelling house and pergola, removal of Norfolk Island Pine tree, impact on character of area, privacy to adjoining property, replacement canopy tree

LEGISLATION CITED:

Environmental Planning and Assessment Act s 97

DATES OF HEARING:

06/11/2006

EX TEMPORE JUDGMENT DATE:

11/06/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Briggs, solicitor
SOLICITORS
DG Briggs & Associates

RESPONDENT
Mr A Hudson, solicitor
SOLICITORS
Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

6 November 2006

10705 of 2006 Phillip Frank and Gisella Angela Bugeja v Hornsby Shire Council

JUDGMENT

This determination was given extemporaneously
and it has been edited prior to publication

1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act against Hornsby Shire Council’s refusal of a development application for a rear extension and pergola to the dwelling located at 27 Finlay Avenue, Beecroft.

2 The council refused the development application because it required the removal of two Norfolk Island Pine trees. A s 82A Review for an amended application that required the removal of only one of the Norfolk Island Pines was also determined and refused by the council.

3 The matter this morning has come to me as consent orders and I have decided to determine the matter on site. An objector to the proceedings, Mrs Breen resides at No. 11 Marwood Drive, Beecroft. The Court inspected her property and observed the separation distances between the proposed extension and Mrs Breen’s dwelling house and also had the opportunity of observing the subject property from the Breen’s rear garden.

4 The subject site in relation to the Breen residence is that the rear corner of the properties meet at the common boundary. That is 11 Marwood Drive is directly behind to the north of the premises at No. 25 Finlay Avenue, the adjoining property of the subject site to the west.

5 On the subject site there have been a row of Legton Greens (Leliandis) planted at the rear boundary and on the western boundary a edge of Red Robin has been planted. However, these plantings are below the fence line at this point in time. The rear extension on the subject dwelling will be some 14 m from the rear boundary and it is noted that the dwelling at No. 11 Marwood Drive is a minimum a 15-20 m from the rear corner.

6 When standing at the point that the new wall be constructed for the extension it could be seen that the Norfolk Island Pine does not provide for privacy but rather the Norfolk Island Pine has the affect of filtering the roof and the built form of the existing and proposed dwelling.

7 In my assessment retention of the larger Norfolk Island Pine tree is appropriate and the Court agrees with the council that the removal of the smaller Norfolk Island Pine in the vicinity of the extension is not unreasonable. It could be seen that there are a number of canopy trees including three Eucalyptus and a Jacaranda on the subject site in the rear yard.

8 The character of the Beecroft area is that there is high amenity because of the vegetated nature of the allotments and the presence of large canopy trees in this low density area. In order to ensure there is replacement canopy tree plantings it is appropriate that a canopy Eucalyptus be established within the front lawn of the subject property where there is sufficient space to ensure that the driveway front fence and dwelling house would not be impacted and there is also sufficient room so that it is appropriately located away from the existing deordar cedar tree. It is important that the character of the area is maintained and that allotments make a positive contribution to the special quality of the area.

9 By way of comment I am not persuaded that the hedge plantings of the Legton Greens are an appropriate alternative. A row of Legton Greens (leyleindis) are fast growers and quickly and in effect become a dark green wall between properties that is not consistent with the character of the area that supports large canopy trees both endemic to the area and exotic specimens.

10 The Court also had the benefit of Mr Peter Castor’s expert report as an arborist and he advised that the larger of the two Norfolk Island Pines, that is the one to be retained, can be achieved with careful management and construction regarding the pergola area.

11 The conditions are as agreed to between the parties with the additional condition for a replacement canopy tree to be planted in the front lawn of the subject dwelling inside the boundary clear the structures and for an additional condition to require the maintenance of such a tree and in the event that it may die or be removed that a replacement canopy tree of a similar species is to be planted.

12 I am satisfied that there is no reason that the Court should not agree to the consent orders proposed by the parties. The proposed extension will not adversely impact on adjoining properties and the dwelling will continue to be in a landscaped setting with canopy trees at the front and rear gardens that will make a positive contribution to the character of the area.

13 Accordingly on the basis of the Court’s assessment the formal orders of the Court are:

1. The appeal in respect of the property known as 27 Finlay Avenue, Beecroft, is upheld by consent.

2. The development application submitted to Hornsby Shire Council, and as amended, for a rear extension to the existing dwelling and a pergola is approved subject to the conditions contained in Annexure “A”.

3. The exhibits are returned except for A and 2.


___________________
J S Murrell
Commissioner of the Court
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