Iqbal v Ku-ring-gai Council

[2021] NSWLEC 1532

Land and Environment Court

New South Wales

Medium Neutral Citation:

Iqbal v Ku-ring-gai Council [2021] NSWLEC 1532

Hearing dates:

Conciliation conference on 26 August 2021

Date of orders:

14 September 2021

Decision date:

14 September 2021

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent for development application DA0012/21 for the removal of one tree (identified as Tree 19) and replacement landscaping ancillary to a future dwelling house at 69 The Chase Road, Turramurra, is approved subject to the conditions of consent at Annexure A.

Catchwords:

APPEAL – development application – conciliation conference – agreement reached

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 6.3

Land and Environment Court Act 1979, ss 34, 34AA

State Environmental Planning Policy No 55— Remediation of Land, cl 7

Category:

Principal judgment

Parties:

Syed Samir Iqbal (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
A Pickles SC (Applicant)
J Smith (Respondent)

Solicitors:
Bick & Steele (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2021/112257

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Ku-ring-gai Council's refusal of development application 0012/2021 (DA).

2. The DA seeks consent for tree removal at 69 The Chase Road Turramurra, legally described as Lot 1 in DP14863. Consent is sought for the removal of a single tree, referenced in documents accompanying the application as “Tree 19 Cupressus sempervirens (Italian Cypress)”. Certain wider site landscaping is also agreed and accommodated in conditions.

3. The tree removal is related to the construction of a proposed future dwelling on the site under a Complying Development Certificate issued by a private certifier.

4. On 26 August 2021, the Court arranged a mandatory conciliation conference between the parties, under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) at which I presided. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to them. The decision agreed upon would uphold the appeal and have the Court exercise the function under s 4.16(1) of the EPA Act to grant consent to the development application in accordance with agreed conditions.

5. The parties submit that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act), and provided a jurisdictional statement to that effect. I agree with this submission of the parties, and address the jurisdictional tests in regard to the application as indicated below.

6. In regard to State Environmental Planning Policy No 55—Remediation of Land, and in particular cl 7(1), I note and accept the advice that the land has been used for residential purposes for an extended timeframe and is not considered to be at risk of contamination. The requirements are met.

7. In regard to Ku-ring-gai Local Environmental Plan 2015 (KLEP):

• The site falls within the R2 Low Density zone under KLEP. The proposal is permissible within the zone as ancillary to a dwelling house. I have had regard to the zone objectives in accordance with the requirements of cl 2.3.

• Clause 6.3 of KLEP relates to biodiversity. The provision applies to land shown on KLEP’s Biodiversity Map. That map shades a small fraction of the subject land in the south-west corner. The proposed development does not affect the area of land shown on the Biodiversity Map. I accept the advice of the parties that as a consequence the proposal is consistent with the objectives of the clause and is designed appropriately to manage any potentially adverse environmental impacts.

8. Under s 4.15(1)(d) of the EPA Act, I must take into consideration lay submissions. The parties have drawn to my attention the single lay submission received and the requirements of s 4.15(1)(d) of the EPA Act are satisfied.

9. Based on the material outlined above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. In turn I am required to dispose of the proceedings in accordance with the parties’ decision. I note that I have had no direct regard to the merits of the application in coming to this position. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders which follow do so.

10. The Court orders that:

1. The appeal is upheld.

2. Development consent for development application DA0012/21 for the removal of one tree (identified as Tree 19) and replacement landscaping ancillary to a future dwelling house at 69 The Chase Road, Turramurra, is approved subject to the conditions of consent at Annexure A.

……………………………

P Walsh

Commissioner of the Court

Annexure A (165237, pdf)

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