Dazdon Pty Ltd v Ku-ring-gai Council - [2009] NSWLEC 1147

Land and Environment Court

of New South Wales

CITATION: Dazdon Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 1147
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Dazdon Pty Ltd
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S): 11325 of 2008 and 11327 of 2008

CORAM: Taylor C

KEY ISSUES: DEVELOPMENT APPLICATION :- Sydney Turpentine-Ironbark Forest (STIF) Endangered Ecological Community (EEC), Sub-division, visual character and amenity of a significant tree

LEGISLATION CITED: Environmental Planning and Assessment Act, 1979
NSW Scientific Committee Final Determination for STIF, gazetted 16th October 1998
Interpretation Act 1987
Ku-ring-gai Council DCP 38 Residential Design Manual
Ku-ring-gai Planning Ordnance Scheme
Threatened Species Conservation Act 1995
Water Management Act, 2000

CASES CITED: Ahmadian v Ku-ring-gai Council [2009] NSWLEC 1077
BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399
Black v Ku-ring-gai Council [2008] NSWLEC 1501
BTG Planning v Blacktown City Council [2008] NSWLEC 1500
Dazdon Pty Ltd v Ku-ring-gai Council [2008] NSWLEC 1271
Hastings Point Progress Association Inc v Tweed Shire Council and Anor; Hastings Point Progress Association Inc v Tweed Shire Council and Ors [2008] NSWLEC 180
Murlan Consulting Pty Limited v Ku-ring-gai Council and John Williams Neighbourhood Group Inc [2007] NSWLEC 374
Murlan Consulting Pty Ltd v Ku-ring-gai Council and Anor [2007] NSWLEC 704
Silva v Ku-ring-gai Council [2009] NSWLEC 1060
Zhang v Canterbury City Council [2001] NSWCA 167

TEXTS CITED: Kahn, A. E. 1966. The tyranny of small decisions: Market failures, imperfections, and the limits of economics. Kyklos 19(1), 23-47

DATES OF HEARING: 15 and 16 /04/2009

DATE OF JUDGMENT:
18 May 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr G. Mckee, Solicitor
Mckees Legal Solutions
RESPONDENT
Dr J. Smith, Solicitor
Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Taylor C

18 May 2009

11325 of 2008 Dazdon Pty Ltd v Ku-ring-gai Council
11327 of 2008
JUDGMENT

1 This appeal arose following the refusal by Ku-ring-gai Council for two development applications:

The site and proposal

2 As stated in the Council’s Statement of Facts and Contentions, the subject site is located on the corner of Killeaton Street and Yarrabung Road, St Ives (to the east of Mona Vale Road) and is known as Lot 4,5,6 and 7 in DP 240562 or 152 Killeaton Street, St Ives. The site comprises four vacant lots and is irregular in shape with a frontage to Killeaton Street of 70.985 m and a frontage of 12.2 m to Yarrabung Road. The total area of the subject site is 1999.8 sq m.

3 The…

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: [2009] NSWLEC 1147
Decision Date: 18 May 2009

CaseChat Overview and Summary

Dazdon Pty Ltd appealed against the Ku-ring-gai Council's refusal of two development applications: a two-lot subdivision of land and the erection of a two-storey detached dwelling on one of the lots. The subject site is located on the corner of Killeaton Street and Yarrabung Road, St Ives. The primary issue in dispute was the significance of a large turpentine tree (tree 31) on the site, which the Council argued was a remnant of the Sydney Turpentine-Ironbark Forest (STIF) Endangered Ecological Community (EEC) and thus required a Species Impact Statement (SIS). The applicant contended that the tree was not part of an EEC and therefore not significant. The court found that the site likely contained a remnant STIF EEC and that an SIS was required, but did not make a definitive determination on the presence of an EEC. The court also found that the tree made a significant contribution to the visual character and amenity of the area and should be protected. The court held that the proposed development could be modified to accommodate the tree while still meeting the requirements of the Council's Design Control Plan (DCP). The court refused the appeal for the dwelling on Lot 1 but upheld the appeal for the subdivision and dwelling on Lot 2, subject to minor amendments to the plans and agreed conditions of consent.

The court's decision was based on the evidence presented by the experts and the relevant legislation and case law. The court found that the evidence indicated a strong likelihood that the site contained a remnant STIF EEC and that the removal of the tree would contribute to the fragmentation and loss of the community. The court also found that the tree made a significant contribution to the visual character and amenity of the area and should be protected. The court held that the proposed development could be modified to accommodate the tree while still meeting the requirements of the Council's DCP. The court refused the appeal for the dwelling on Lot 1 but upheld the appeal for the subdivision and dwelling on Lot 2, subject to minor amendments to the plans and agreed conditions of consent.

Orders