Lawson v Lake Macquarie City Council

[2004] NSWLEC 678

Land and Environment Court

of New South Wales

CITATION:

Lawson v Lake Macquarie City Council [2004] NSWLEC 678

PARTIES:

APPLICANT
Alan and Maureen Lawson

RESPONDENT
Lake Macquarie City Council

FILE NUMBER(S):

10490 of 2004

CORAM:

Hoffman C

KEY ISSUES:

Development Consent :- Dwelling house - s 96 application against the retention of trees that would prevent construction of gatehouse

LEGISLATION CITED:

Hunter Regional Environmental Plan 1989
Development Control Plan No. 1
Lake Macquarie Local Environmental Plan 2004
Development Control Plan No. 31 Lake Macquarie Landscape

CASES CITED:

DATES OF HEARING:

06/09/2004 and 09/11/04

EX TEMPORE
JUDGMENT DATE :

11/09/2004

LEGAL REPRESENTATIVES:

APPLICANT
Ms M Carpenter, barrister
SOLICITORS
Adrian Guido & Co.

RESPONDENT
Mr G Long, solicitor
SOLICITORS
Peter Rees

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

9 November 2004

10490 of 2004 Alan and Maureen Lawson v
Lake Macquarie City Council

JUDGMENT

1 This was a class 1 appeal No. 10490 of 2004 between A & M Lawson and the Lake Macquarie City Council in regard to conditions of a consent for a dwelling at 38 Alkrington Avenue, Fishing Point.

2 The hearing commenced on site on 6 September 2004. Attending for the applicant was:

• Miss M Carpenter, barrister,
• Mr A Guido, solicitor,
• Mr A Lawson, applicant,
• Mrs M Lawson, applicant,
• Mr M Bury, arborist and
• Mr G Rees, representing Kingston Homes.

3 Appearing for the respondent was:

• Mr G Long, solicitor,
• Mr A Randall, town planner and
• Mr T Kehemanata, tree assessment officer for the council.

4 The major concern of the applicants was the council’s approval subject to a condition that certain trees be retained on the site. The trees would inhibit the construction of a gatehouse which was on the drawings approved by council, but was required to be deleted. Other trees that were within 3 m of the dwelling were also required to be kept. They were referred to in surveys as trees 1, 2, 7, 8 and 9.

5 On site it was seen that trees 1 and 2 was actually a bifurcated single tree, having two trunks and tree 7 appeared to be within 3 m of the approved house and therefore would be able to be removed under the council’s controls. However, its location within 3 m needed to be verified by survey and this has subsequently been done.

6 The hearing on site was adjourned due to difficulties that had arisen in regard to the service and receipt of expert reports, such being received at such short notice that they had not been able to be properly considered. The Court adjourned the on-site hearing so that the parties could properly consider the reports and there was discussion on site of their various content. The Court was shown the subject trees and the building corners had been pegged out so that their position was relatively clear.

7 Following the adjournment the matter was resumed on 9 November 2004 at which the parties tendered consent orders in Exhibit 1.

8 I notice that it is not signed by the parties so perhaps that can be done now as I continue the judgment.

9 The amended issues arising in this case from the applicant were:

1. The applicant appeals against the Lake Macquarie City Council’s insistence on the retention of the three trees in front of the proposed dwelling.
2. The applicant appeals against the Lake Macquarie City Council’s condition put forward by the council that the proposed gatehouse is not approved unless two of these trees are retained.
3. The applicant submits that if submissions (1) and (2) above are not removed by the Lake Macquarie City Council, and the applicant is not able to erect on the property the type of dwelling including the gatehouse as shown on the applicant’s plans and specifications submitted to the Council of the City of Lake Macquarie.
4. The development application DC/03/03690/1G:
(a) Whether the development consent should be granted for the gatehouse proposed in the development application.

5. Development application TRE/01/107:
(b) Whether the development consent should be granted for the removal of the three trees within the site.

6. The applicant, in being granted the above by way of orders, undertakes to replant sufficient trees so as to compensate for those removed in order that the applicant’s dwelling and gatehouse may be constructed and erected on the said property.

10 The subject lot had a total area of 771 sq m and was generally rectangular but angled on the southeast side boundary. The site had frontage to Alkrington Avenue of 23.94 m and a depth of approximately 30 m. It was on the low side of the street with a fall of approximately 4 m from the street boundary to the rear.

11 The area was characterised as a lakeside suburb with a mix of single, double and split-level dwelling houses on the sloping land facing both the water and the street. There was a mix of styles and ages in the buildings, such that there was no consistency of design style. Given that, the house itself would generally fit in with the locality, however, most houses did have a mixture of landscaping of a more traditional form interspersed with mature eucalypts which gave the area a particular character that the council was anxious to preserve for its streetscape value and part of that policy was to encourage tree retention wherever possible.

12 The applicable statutes in this matter were the Hunter Regional Environmental Plan 1989 to which the Court was told there were no particular clauses relevant to the matter before it. Lake Macquarie Local Environmental Plan 1984 in which clause 10 indicated that a dwelling house development is permissible with consent in the zone. The Lake Macquarie Local Environmental Plan 2004 in which the land was zoned Residential 2(1) and the following clauses were applicable: clauses 5, 11, 12, 13, 14, 15 and 16.

13 Then Development Control Plan 1 in regard to cll 2.7.1, 2.7.2, 2.7.8, 2.7.9, 3.2.1, 3.4.1 and 3.4.2. A further control was Development Control Plan 31 Lake Macquarie Landscape in which the following sections were relevant: sections 1, 2 and 3. Those parts of the statutes and controls the Court was taken to were relevant to the preservation of trees and streetscape and scenic qualities of the lakeside areas.

14 Having considered those matters, the Court can see no reason sufficient to reject the application of both parties for the consent orders in this matter. The final conditions are in fact a reproduction of the original conditions of consent by the council by additional conditions 30 to 34 which require the eventual removal of the trees of concern to the applicant subject to their replacement by the planting of another six trees along the street front boundary. That would provide vegetation endemic to the area, it would retain biodiversity, and attract the fauna, as well as contribute to the streetscape of Alkrington Avenue.

15 Therefore the orders of the Court by consent of the parties are:

1. The appeal in respect of the property known as 38 Alkrington Avenue, Fishing Point, is upheld.

2. The development application, submitted to the Lake Macquarie City Council for a residential dwelling is determined by the granting of consent subject to the conditions contained in Annexure “A”.

3. The exhibits are returned to the parties except Exhibits 1, 2, A, B, C and D.

___________________
K G Hoffman
Commissioner of the Court
rjs/ljr