Ong v Ku-ring-gai MC

[2004] NSWLEC 163

Land and Environment Court

of New South Wales

CITATION:	Ong v Ku-ring-gai MC [2004] NSWLEC 163
PARTIES:	APPLICANT V Ong RESPONDENT Ku-ring-gai Municipal Council
FILE NUMBER(S):	10013 of 2004
CORAM:	Moore C
KEY ISSUES:	Development Consent :- Tree Preservation order Application for consent for removal of a tree
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	31 March 2004
EX TEMPORE JUDGMENT DATE :	03/31/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr S Kondilios, solicitor Maddocks Lawyers RESPONDENT Ms J Smith, solicitor Wilshire Webb

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10013 of 2004 Moore C 31 March 2004

V Ong
Applicant

v Ku-Ring-Gai Municipal Council
Respondent Judgment

1. This is an appeal against the refusal by Ku-ring-gai Municipal Council (the council) of an application to remove a Cabbage Tree Palm from the front yard of a property at 3 Royston Close, Pymble. The application was refused on the basis that it was contrary to the objectives of the council’s Tree Preservation Order. A number of matters were canvassed in the evidence in the proceedings but I am satisfied that the one specific matter which requires to be address is whether the approval of the application would be consistent with or advancing of the objectives, overall, of the Tree Preservation Order.

2. The objectives of the Tree Preservation Order, in my view, are contained in the second sentence to the preamble of that order which reads the order is particularly aimed towards the preservation of Ku-ring-gai’s indigenous tree canopy. The implementation provisions of the Tree Preservation Order are contained in the terms of the resolution of the council of 21 Mach 1995. In the third paragraph this resolution, it is noted that where trees, in themselves, are considered to be stable and structurally sound, the application will normally be refused. In the context of the present appeal, there are two elements that I need to consider. I do so against the factual backdrop where it is agreement between Ms M Howden, the applicant’s consultant arborist and Mr R McKay, council’s tree preservation officer, that the replacement of the Cabbage Tree Palm with a turpentine would make a positive contribution to the streetscape of Royston Close.

3. I am satisfied that, although such an application would normally be refused, in the present circumstances the council’s resolution makes it explicitly clear that there are occasions when such an application might - contrary to that normal expectation - be granted. It is clear that such an exception would only arise where there would be a positive contribution to the preservation (or, by necessary implication, the enhancement) of Ku-ring-gai’s indigenous tree canopy.

4. Ms Howden gave evidence that she was not aware of any locations within the municipality where the Cabbage Tree Palms were growing naturally. However, it was Mr McKay’s evidence that at least in the vicinity of Campbell Parade, Wahroonga, an area which is a gully location, typically, rather than the present plateau location. Although its location of the subject property may not be indigenous, it is not contested that a Cabbage Tree Palm is an indigenous tree. I accept, on Mr McKay’s evidence, that, in fact, it is a tree indigenous to the municipality. However, although it is a matter of fine balance, I am satisfied that it would be appropriate to permit the removal of the tree on the basis of the positive contribution that its replacement will make to the preservation and enhancement of Ku-ring-gai’s indigenous tree canopy, generally, and to the streetscape of Royston Close, specifically.

Tim Moore
Commissioner of the Court