Mackenzie v Ku-ring-gai Council - [2008] NSWLEC 1525

Land and Environment Court

of New South Wales

CITATION: Mackenzie v Ku-ring-gai Council [2008] NSWLEC 1525

PARTIES:
APPLICANT
Dugald Mackenzie
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S): 10270 of 2008

CORAM: Moore C at 1 - Taylor C at 21

KEY ISSUES: Development Application - Trees :-

CASES CITED: Telstra v Hornsby Shire Council (2006) 146 LGERA 10

DATES OF HEARING: 5 and 8 September 2008

EX TEMPORE JUDGMENT DATE: 8 September 2008

LEGAL REPRESENTATIVES:
APPLICANT
Ms S Duggan, barrister
INSTRUCTED BY
Pike Pike & Fenwick
RESPONDENT
Mr M Staunton, barrister
INSTRUCTED BY
Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
TAYLOR C

8 September 2008

10270 of 2008 Dugald Mackenzie v Ku-ring-gai Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 COMMISSIONER MOORE: Visible in the rear yard of the site in Dumaresq Street, Gordon, is a grey ironbark, Eucalyptus paniculata, some one hundred years old and which comprises a significant element in the treescape when viewed from the street over the roof of the existing house.

2 The applicant has sought consent to erect two residential flat buildings on a consolidated site comprising four allotments, including that upon which the Grey Ironbark is located. It is agreed by the aboricultural experts for the applicant, Mr Castor, and for the respondent council, Mr Ford, that the tree is a significant one, some 100 or more years old, and worthy of significant effort for its retention.

3 The tree will be impacted, as originally proposed, by the construction of the more eastern of the two blocks proposed by the applicant. The tree would have been impacted by the location of excavation for the basement car parking area and the location of the fourth and fifth units on the southern side of the more eastern of the two blocks.

4 During the course of the view and the course of the concurrent evidence given by Mr Ford and Mr Castor, a variety of matters were canvassed including the removal of a number of piers, two in total, that were proposed to have been sunk within the root protection area of the tree and the removal of the lowest level of the rear units being the unit designated number 5 in block B.

5 The consequence of these changes, together with:

the adoption of measures accepted by the applicant for a watering system as recommended by the groundwater experts who had…

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.

Keep reading for free

Create a free CaseChat account to read Mackenzie v Ku-ring-gai Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] NSWLEC 1525
Decision Date: 8 September 2008

CaseChat Overview and Summary

The case of Mackenzie v Ku-ring-gai Council involved the applicant, Dugald Mackenzie, seeking development consent from the Ku-ring-gai Council to construct two residential flat buildings on a consolidated site in Gordon. The site included a significant grey ironbark tree, which was approximately one hundred years old. The applicant's development proposal involved the construction of two blocks, one of which would impact the tree. The case was heard by the Land and Environment Court of New South Wales, with Commissioner Moore delivering the judgment, and Commissioner Taylor concurring. The central issue was whether the proposed development would cause unacceptable harm to the tree and if the proposed conditions would mitigate any potential harm.

The court had to determine if the precautionary principle or a precautionary approach should be applied, given the potential impact on the tree. The applicant argued that the proposed conditions, including a watering system, monitoring system, and ongoing maintenance regime, were sufficient to protect the tree. The council argued that these measures did not adequately protect the tree and that the proposed development should be rejected. The court considered the evidence provided by the aboricultural experts for both parties and concluded that the proposed conditions were acceptable and would not cause significant long-term decline or death to the tree. The court also considered the council's Development Control Plan and British Standard 5A37 of 2005, 'Trees in Relation to Construction Recommendations', and found that the applicant's conditions exceeded the requirements of these standards.

The court found that the proposed development, with the agreed conditions, would not cause unacceptable harm to the tree and upheld the appeal. The court granted development consent subject to revised plans and conditions of consent. The court noted that the proposed conditions were consistent with and went further than what the council's expert considered an acceptable impact on the tree. The court also found that the precautionary principle was not applicable in this case, as there was no threat of serious or irreversible environmental damage, and there was no scientific uncertainty regarding the environmental damage that would be occasioned. The court concluded that the risk of damage to the property, as opposed to the risk of damage to the tree, was acceptable, given the applicant's agreement to a strict management regime for the tree.

Orders