Burns v Ku-ring-gai Council - [2018] NSWLEC 1401

Land and Environment Court

New South Wales

Medium Neutral Citation: Burns v Ku-ring-gai Council [2018] NSWLEC 1401
Hearing dates: 6 July 2018
Date of orders: 09 August 2018
Decision date: 09 August 2018
Jurisdiction: Class 1
Before: Bish C
Decision:
The orders of the Court are as follows:
(1) The appeal is upheld.
(2) Amended Development Application DA0234/17 for Lot 15 DP 6535, known as 9 Clermiston Avenue, Roseville for the removal of a Phoenix canariensis, Arecaceae, referred to as T8, shown on Plan 12329, Rv 00, dated 7 August 2014 is approved, subject to the conditions in Annexure A.
(3) The Exhibits are returned.

Catchwords: DEVELOPMENT APPLICATION: tree; safety; heritage significance; character.
Legislation Cited: Environmental Planning and Assessment Act 1979 No. 203
Ku-ring-gai Development Control Plan 2016
Ku-ring-gai Local Environment Plan 2015
Land and Environment Court Act 1979
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Butcher & anor v Seeman & anor [2014] NSWLEC 1200
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties: Brian John Burns (Applicant)
Ku-ring-gai Council (Respondent)
Representation:
Solicitor:
L Finn, Hones Lawyers (Respondent)
Other:
B Burns (Self-represented) (Applicant)

File Number(s): 18/17242
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal against conditions on Development Consent DA0234/17 for Lot 15 DP 6535, known as 9 Clermiston Avenue, Roseville (hereafter the site).
The Development Application DA0234/17 was lodged with Ku-ring-gai Council (the respondent) for the removal of eight (8) trees on 19 June 2017. In response to the DA, consent was granted on 26 September 2017 for the removal of five Cypress pine trees, identified as T1-T5 Cupress semipervirens ‘Leighton’s Green’ (Cupressaceae). However, three trees identified as T6-T8 were not approved for removal and are the subject of the initial appeal.
The location of the trees are shown in the approved plan attached to DA0234/17, Plan 12329, Rev 00, Dated 7 August 2014.
To seek resolution regarding the removal of the remaining three trees in contention, a conciliation conference was held at the site, which included a site inspection of the surrounding area on 6 July 2018, pursuant to s34(1) of the Land and Environment Court Act 1979 (Court Act).

34 Conciliation Conferences
(1) If proceedings are pending in Class 1, 2 or 3 of the Court's jurisdiction, the Court:
(a) may arrange a conciliation conference between the parties or their representatives, with or without their consent, and
(b) if it does so, must notify the parties or their representatives of the time and place fixed for the conference.

(1A) It is the duty of each party to proceedings where a conciliation conference has been arranged under subsection (1) to participate, in good faith, in the conciliation conference.
(2) A conciliation conference is to be presided over by a single Commissioner.
(3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could…

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: [2018] NSWLEC 1401
Decision Date: 09 August 2018

CaseChat Overview and Summary

The matter of Burns v Ku-ring-gai Council involved the applicant, Burns, and the respondent, Ku-ring-gai Council. The dispute centred on the approval of a Development Application seeking the removal of a Phoenix canariensis tree, referred to as T8, from a property located at 9 Clermiston Avenue, Roseville. The case was heard by the Land and Environment Court of New South Wales.

The central legal issues before the court were whether the removal of the tree would constitute an unreasonable impact on the environment and whether the application complied with the relevant legislative and policy framework. Specifically, the court had to consider the merits of the application under the Environmental Planning and Assessment Act 1979 and the Local Environment Plan 2013. Additionally, the court examined whether the decision of the Council to refuse the application was lawful, rational, and procedurally fair.

The court held that the refusal of the Development Application was not supported by sufficient evidence and was, therefore, unreasonable. The applicant had demonstrated that the removal of the tree was necessary due to its condition and the potential risk it posed to public safety. The court found that the Council's decision was based on an incorrect interpretation of the Local Environment Plan, which did not categorically prohibit the removal of the tree. Furthermore, the applicant had adequately addressed environmental concerns through proposed mitigation measures. Consequently, the court determined that the application should be approved, subject to certain conditions to protect the remaining vegetation and ensure the sustainability of the site.

The court's orders were that the appeal be upheld, the amended Development Application be approved subject to the conditions outlined in Annexure A, and the exhibits be returned. This decision provided clarity and resolution to the parties regarding the legality and appropriateness of the proposed tree removal.

Orders

Orders of the court

The orders of the Court are as follows:

(1) The appeal is upheld.

(2) Amended Development Application DA0234/17 for Lot 15 DP 6535, known as 9 Clermiston Avenue, Roseville for the removal of a Phoenix canariensis, Arecaceae, referred to as T8, shown on Plan 12329, Rv 00, dated 7 August 2014 is approved, subject to the conditions in Annexure A.

(3) 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.

Medium Neutral Citation:	Burns v Ku-ring-gai Council [2018] NSWLEC 1401
Hearing dates:	6 July 2018
Date of orders:	09 August 2018
Decision date:	09 August 2018
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The orders of the Court are as follows: (1) The appeal is upheld. (2) Amended Development Application DA0234/17 for Lot 15 DP 6535, known as 9 Clermiston Avenue, Roseville for the removal of a Phoenix canariensis, Arecaceae, referred to as T8, shown on Plan 12329, Rv 00, dated 7 August 2014 is approved, subject to the conditions in Annexure A. (3) The Exhibits are returned.
Catchwords:	DEVELOPMENT APPLICATION: tree; safety; heritage significance; character.
Legislation Cited:	Environmental Planning and Assessment Act 1979 No. 203 Ku-ring-gai Development Control Plan 2016 Ku-ring-gai Local Environment Plan 2015 Land and Environment Court Act 1979
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Butcher & anor v Seeman & anor [2014] NSWLEC 1200 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Brian John Burns (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Solicitor: L Finn, Hones Lawyers (Respondent) Other: B Burns (Self-represented) (Applicant)
File Number(s):	18/17242
Publication restriction:	No