Webb A v Ku-ring-gai C

[2005] NSWLEC 115

Land and Environment Court

of New South Wales

CITATION:

Webb A v Ku-ring-gai C [2005] NSWLEC 115

PARTIES:

APPLICANT
Ashley Webb

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

11572 of 2004

CORAM:

Hussey C

KEY ISSUES:

Appeal :- Subdivision application - conditions of consent relating to drainage - tree retention.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Conveyancing Act 1919

CASES CITED:

Hillpalm Pty Ltd v Heavens Door Pty Ltd [2004] HCA 59

DATES OF HEARING:

17/02/2005

 
DATE OF JUDGMENT: 

03/31/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr B Hones, solicitor
of Hones Lawyers

RESPONDENT
Ms G. Tyrrell, solicitor
of Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

31 March 2005

11572 of 2004 Ashley Webb v Ku-ring-gai Council

JUDGMENT

Background.

1 This appeal was lodged against some of the conditions of consent imposed on a two lot residential subdivision at No. 6 Eastern Arterial Road, St. Ives. Initially the disputed conditions related to drainage matters and tree retention requirements. However, conferencing between the parties resolved drainage issue.

2 The remaining tree issue concerns the condition requiring the retention of Tree 105 (a mature Blackbutt) and also the appropriate method to achieve this. Detailed evidence was submitted by Mr G. Bird, councils landscape development officer.

3 The disputed condition (No. 7) requires the creation of a Restriction on the Use of Land under Section 88 B of the Conveyancing Act 1919, to burden the area of land beneath the canopy of the tree for a specified radius, the terms of which state that excavation, soil level changes or construction works are prohibited with the exception of any driveway approved by Council. This condition also applies to Tree 77, a Sydney Redgum.

4 The applicant's position is that Tree 105 is too close to the designated building footprint for the new lot and unreasonably inhibits the building of a new dwelling on this approved residential lot. Therefore, the applicant submits that the maintenance of this condition is unreasonable in the circumstances.

5 Against this, Mr Bird refers to the applicant's Pre-Construction Tree Assessment Report (Report), which although recommending removal of this tree, nevertheless, assessed it as visually prominent in the landscape and having a medium to long life expectancy. In particular, Mr Bird concurs with the following key criteria for trees of landscape significance listed in the Report and supports its retention because:

• the subject tree makes a positive contribution to the amenity of the property,
• the tree is visually prominent in view from the street and surrounding properties,
• the tree is a locally indigenous species,
• the tree is healthy and structurally sound,
• the tree is an excellent representative of the species,
• the tree has a life expectancy of greater than 20 years assuming normal maintenance.

6 Having undertaken a view, I note that the subject land contains extensive mature vegetation, much of which comprises exotic species. As most of these are considered undesirable and their removal is accepted, to allow the erection of the new dwelling, this will result in a noticeable thinning on the vegetation. Under these circumstances, I consider it desirable to retain Tree 105 because of the significant contribution it makes to the landscape character of this neighbourhood. This contribution will most likely increase following removal of the exotic vegetation.

7 Furthermore, the area of the approved new Lot 23 is 1100 sq. m. and the initial building footprint plan is of indicative nature only. From the discussions on-site, I am satisfied that there is reasonable flexibility to locate a new dwelling on this allotment, without necessitating the removal of this significant tree. If future detailed investigations reveal the significant problems in positioning a new house, alterations or amendment of this condition may be assessed on its merits then.

8 Accordingly I am satisfied that the condition requiring the retention of Tree 105 should be maintained. At the on-site hearing the parties considered this option and the most appropriate way to achieve it. The submissions on behalf of council are that the 88B covenant requirement should be maintained to secure the tree retention and provide effective notification to prospective purchasers of this lot of the restriction on the use of the land, within proximity to Tree 105.

9 Against this, Mr Hones submits that it is inappropriate to require the covenant burdening the land, when the future life of the tree is uncertain and accordingly a condition of consent should suffice.

10 On this question of the most appropriate way to achieve this condition, submissions were made about current Court practices and also reference was made to the recent High Court decision in Hillpalm Pty Ltd v Heavens Door Pty Ltd (2004) HCA 59, which has significant implications for conditions relating to subdivisions.

11 In particular, the following clauses:

42 … Where, as here, the subdivision of the land was the relevant development, the subsequent the purchaser of a subdivided lot does not "carry that development out" by occupying, and thus using, one of the lots in the subdivision.

It follows that, even if there was a relevant condition of the subdivision concerning the creation of a right of way, the appellant did not contravene s 76 A of the EPAA by without creating that right of way. It did not breach s76 A because it did not carry the development of subdivision out on the land .

12 Considering these various submissions, I am inclined to follow the common practice whereby the Court does not generally impose conditions requiring supplementary easement creation to restrict partial use of the land, where such outcome can be achieved under the provisions in being Environmental Planning and Assessment Act 1979. It appears that the required outcome to retain this tree and restrict surrounding use is achievable by the imposition on appropriate conditions of consent.

13 However, the parties have conferred further and agree on a draft condition for the retention of Trees 105 and 77, together with no-development areas around the tree trunks. The applicant also agrees to enter a deed, which requires the owner of the land to notify future purchasers of this lot about the tree retention and no-development area restriction. This is to be done by way of a Caveat in favour of Council, on the land, notifying the terms of the deed to prospective purchasers.

14 On the basis of the agreement between the parties, I accept that the disputed condition can now be revised, so that the intent of the original condition to retain Trees 105 and 77 and also restrict nearby development is achieved. Accordingly the agreed, revised condition 7 is approved.

1. The appeal is upheld.
2. Condition 7 of the Notice of Determination # 243 of 2004, 4 November 2004 is revised as follows to be inserted in Schedule B of the Notice:

7.1 The following trees referred to in the Pre-construction Tree Assessment Report by Earthscape Horticultural Services dated March 2004 shall be preserved on the site and excavations, soil level changes and construction works, with the exception of any driveway as approved by council, shall not be permitted within the radius from the trunk of each tree as specified below except where the applicant has submitted the report of a qualified arborist to council indicating that the proposed works will not affect the health and longevity of the trees specified below, and council has approved that report.

Tree No Tree/Location Radius in metres

#105 Eucalyptus pilularis (Blackbutt) 7.5
#77 Angophora costata Sydney Redgum) 6.0

7.2 The applicants shall enter into a Deed with council prepared at the cost of the applicants that provides for the following:

7.2.1 The conditions of this consent being #243 of 2004 are to be included in any contract or proposed contract or proposed contract for the sale of the land the subject of this consent.

7.2.2 The applicants shall require any subsequent purchaser as a condition of the terms of the contract or proposed contract to enter into a Deed in similar terms with council upon the subsequent sale of the land.

7.2.3 Any future development of the land shall require the owner for the time being of the land to use their best endeavours to preserve the trees listed in 7.1 above and to ensure that no excavations, soil level changes or construction works (with the exception of any driveway approved by council) occur within the radius from the trunk of each of those trees as specified in this condition unless the arborist’s report required in 7.1 above has been submitted to and approved by council.

7.2.4 The owner of the land shall consent to a caveat being registered and maintained by council on the title to the land noting the obligations contained in this condition.

________________________
R Hussey
Commissioner of the Court
Lj/rjs