Allcastle Homes Pty Ltd v Lane Cove Council [2009] NSWLEC 1303

Allcastle Homes Pty Ltd v Lane Cove Council [2009] NSWLEC 1303

The evidence does not demonstrate that retention of the English Oak tree will unreasonably constrain site development, as no specific dwelling design is proposed and setbacks/constraints are uncertain; thus, deletion of conditions requiring retention and approval for removal are not warranted. Approval of the driveway is also inappropriate in the absence of a dwelling proposal; in balance, the application should be refused and appeal dismissed.

Parties
Applicant: Allcastle Homes Pty Ltd; Respondent: Lane Cove Council
Jurisdiction
Australia
Judgment Date
16 September 2009
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed; application refused.
Legal Topics
Development Consent, Tree Removal, Local Environmental Plan, SEPP Complying Development
Planning Law Environmental Law Development Consent Tree Removal Local Environmental Plan SEPP Complying Development

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Parties

Allcastle Homes Pty Ltd

Applicant

Lane Cove Council

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether condition requiring retention of English Oak tree should be deleted and removal approved
  2. 2 Whether retention of English Oak tree would unreasonably constrain future development of a dwelling
  3. 3 Appropriateness of approving associated driveway, front fence, and stormwater works

Ratio Decidendi

The evidence does not demonstrate that retention of the English Oak tree will unreasonably constrain site development, as no specific dwelling design is proposed and setbacks/constraints are uncertain; thus, deletion of conditions requiring retention and approval for removal are not warranted. Approval of the driveway is also inappropriate in the absence of a dwelling proposal; in balance, the application should be refused and appeal dismissed.

Court Disposition

Appeal dismissed; application refused.

Orders

  • The appeal is dismissed.
  • The development application (D55/09) for removal of trees, construction of a driveway, a front boundary fence and connection of stormwater to the street drainage system at 7 Christina Street, Longueville, is refused.