Niu v Warringah Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Niu v Warringah Council [2012] NSWLEC 1109
Hearing dates:	8, 9 March, 26 April 2012
Decision date:	04 May 2012
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	Appeal upheld
Catchwords:	CONSENT ORDERS - Development Application - Dwelling house - Asset Protection Zone - Impact on vegetation
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Warringah Local Environmental Plan 2000 Warringah Local Environmental Plan 2011
Cases Cited:	Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Vigor Master Pty Ltd v Warringah Council [2011] NSWLEC 1096 Weal v Bathurst City Council (2000) 111 LGERA 181
Category:	Principal judgment
Parties:	Wei Ru Niu (Applicant) Warringah Council (Respondent)
Representation:	Mr J Doyle (Applicant) Mr K Webber, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	10015 of 2012

Judgment

1. This is an appeal under s97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of Development Application DA 2011/0877 for the erection of a dwelling house on lot 8 DP 1035344, known as Lot 8 Beacon Hill Road Brookvale (the site).

1. The Council refused consent on 24 October 2011 and the applicant appealed to the Court on 9 January 2012. In its Statement of Facts and Contentions filed on 24 February 2012 the Council contended that the site is environmentally sensitive because it is steeply sloping and potentially subject to landslip, there are rock outcrops throughout the site, the site is densely vegetated, is in a sensitive location at the top of Glendale Creek catchment, and the site is visually prominent. The Council identified as reasons for refusal of consent that the applicant had not provided sufficient information to demonstrate that the site can be developed for a dwelling, or that the development is consistent with the principles in the applicable planning controls. The Council contended that further information was required including an accurate survey plan, hydrology details, a geotechnical report, details of cut and fill, details of the extent of the change and impact to vegetation to create any asset protection zones (APZs), a visual impact analysis, and a fauna assessment.

1. The matter was set down for a conciliation conference under s34AA of the Land and Environment Court Act 1979 on 8 March 2012. On that occasion the Council accepted that most of the information identified in the Statement of Facts and Contentions had been provided and assessed pursuant to a separate development application then before the Council, and identified as remaining issues the provision of an accurate survey plan, provision of evidence to show that the applicant had adequately demonstrated or explored options to reduce or minimise the amount of vegetation removed, provision of information to assess the impact of clearing, and resident issues and concerns.

1. The parties reached agreement during the conciliation conference on most of the issues in dispute. At the hearing of the matter following termination of the conciliation conference the Council's representative advised that…