Fernhill Property Group Pty Ltd and Clark Building Co Pty Ltd v Kogarah Council

[2006] NSWLEC 817

Land and Environment Court

of New South Wales

CITATION:

Fernhill Property Group Pty Ltd and Clark Building Co Pty Ltd v Kogarah Council [2006] NSWLEC 817

PARTIES:

APPLICANT
Fernhill Property Group Pty Ltd and
Clark Building Co Pty Ltd

RESPONDENT
Kogarah Council

FILE NUMBER(S):

11534 of 2005

CORAM:

Bly C

KEY ISSUES:

Appeal - Development Application :- Modification of development consent, removal and replacement of trees.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979; s96(6)

DATES OF HEARING:

4/12/2006

EX TEMPORE JUDGMENT DATE:

12/04/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. Kondilios, solicitor
of Maddocks Lawyers

RESPONDENT
Ms. P. Hudson, solicitor
of Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Bly

4 December 2006

11534 of 2005 FERNHILL PROPERTY GROUP PTY LIMITED & CLARK BUILDING CO PTY LTD v KOGARAH COUNCIL

This decision was given extemporaneously. It has been revised
and edited prior to publication.
JUDGMENT

1 On 28 April 2006 the Court granted conditional consent for development application No.330/05 for the demolition of an existing building and the construction of an 8 storey mixed commercial/residential development including strata subdivision at 578 - 580 Railway Parade, Hurstville.

2 That consent required the retention of a number of trees on the Empress Lane and West Street corner of the site. However it has now been discovered, taking into account the basement arrangement in the vicinity of these trees that they are unlikely to survive. In this regard I accept the conclusions reached in the applicant's arborist' s report in relation to the removal of these trees and in relation to the provision of a replacement tree.

3 Taking into account the arborist’s report and the council’s support of the proposed amendments I have decided that the consent should be amended. .

4 The orders of the Court will therefore be that:

1. The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is upheld.
2. The development consent granted by the Court on 28 April 2006 for the demolition of the existing building and construction of an eight storey mixed commercial/residential development, including strata subdivision at Nos. 578-580 Railway Parade, Hurstville, is amended as follows:

A. Condition 20(a) being amended to read as follows:

20(a) The 3 x Eucalyptus sp - Iron Barks (located on Corner West Street and Empress lane), the 3 x Corymbia maculate (located on corner West Street and Railway Parade), 1 x Corymbia citriodora (located on Railway Parade), 1 x Eucalyptus scorparia (located corner Railway Parade and West Street), 4 x Iron barks (located in West Street), 2 x Bottle brush (located in West Street), be removed.

B. Condition 21(a), (b) and (c) be deleted.

C. A new Condition 21 be inserted to read as follows:
21. A replacement tree shall be planted in the location of the tree known as tree 3 (Eucalyptus paniculata) in the arborist report prepared by Axact Services dated 27/7/06. The species shall be one of the following, Cupaniopsis anacardiodes (Tuckeroo)/Elacocarpus reticulates (Blue Berry Ash)/Tristanin laurina (Water Gum). The replacement tree to be planted must be purchased no smaller than 2.0 m in height, and in a container no smaller than 45L and should be planted in accordance with NATSPEC tree planting standards.


3. These amendments are reflected in Annexure “A” hereto.

___________________

T A Bly
Commissioner of the Court
As/ljr