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

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

Tree 105 should be retained because it makes a significant contribution to the landscape character of the neighbourhood and there is reasonable flexibility to locate a dwelling on the 1100 sq. m. lot without removing it. However, on the parties' agreement, the original 88B restriction condition could be revised to preserve Trees 105 and 77, restrict works within specified radii, require a deed with Council, and provide purchaser notification by caveat.

Jurisdiction
Australia
Judgment Date
31 March 2005
Procedural Posture
Appeal Concerning Conditions of Consent for a Two Lot Residential Subdivision / Judgment
Outcome
The appeal is upheld and Condition 7 is revised by agreement.
Legal Topics
['conditions of Consent Relating to Drainage' 'tree Retention' 'restriction on Use of Land' 'caveat' 'subdivision Application']
['environmental Planning and Assessment' 'land Subdivision' 'development Consent Conditions'] ['conditions of Consent Relating to Drainage' 'tree Retention' 'restriction on Use of Land' 'caveat' 'subdivision Application']

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Procedural Posture

Appeal Concerning Conditions of Consent for a Two Lot Residential Subdivision / Judgment

Legal Issues

  1. 1 ['Whether Condition 7 requiring retention of Tree 105 should be maintained.' 'Whether tree retention and restrictions on nearby works should be secured by a Restriction on the Use of Land under Section 88 B of the Conveyancing Act 1919 or by revised conditions of consent and a deed with caveat notification.']

Ratio Decidendi

Tree 105 should be retained because it makes a significant contribution to the landscape character of the neighbourhood and there is reasonable flexibility to locate a dwelling on the 1100 sq. m. lot without removing it. However, on the parties' agreement, the original 88B restriction condition could be revised to preserve Trees 105 and 77, restrict works within specified radii, require a deed with Council, and provide purchaser notification by caveat.

Court Disposition

The appeal is upheld and Condition 7 is revised by agreement.

Orders

  • ['The appeal is upheld.' 'Condition 7 of the Notice of Determination # 243 of 2004, 4 November 2004 is revised as set out in Schedule B of the Notice.' "The specified trees in the Pre-construction Tree Assessment Report by Earthscape Horticultural Services dated March 2004 shall be preserved and excavations, soil...