Ahmadian v Ku-ring-gai Council [2009] NSWLEC 1077

Ahmadian v Ku-ring-gai Council [2009] NSWLEC 1077

The appeal was dismissed because the extent of tree removal and likely canopy decline would change the site's landscape character and impact its visual catchment and the landscape quality of the locality, so the proposal did not satisfy cl 32(a)(i) of SEPP 53 or the objective in s 5 of the Code. The Court also found that dwelling 2 would unacceptably affect the amenity of dwelling 1 through visual bulk, and that the proposal did not demonstrate adequate regard to cl 32(h) of SEPP 53 because the building form did not relate to the site's landform.

Jurisdiction
Australia
Judgment Date
31 March 2009
Procedural Posture
Appeal Against Refusal of a Development Application Under the Environmental Planning and Assessment Act 1979 / Judgment After Hearing
Outcome
Appeal dismissed; development application refused.
Legal Topics
['dual Occupancy Development' 'removal of Canopy Trees' 'sydney Turpentine Ironbark Forest Endangered Ecological Community' 'streetscape and Landscape Character' 'visual Bulk' 'private Open Space' 'height Control and SEPP 1 Objection']
['environmental Planning and Assessment' 'development Control' 'biodiversity Conservation'] ['dual Occupancy Development' 'removal of Canopy Trees' 'sydney Turpentine Ironbark Forest Endangered Ecological Community' 'streetscape and Landscape Character' 'visual Bulk' 'private Open Space' 'height Control and SEPP 1 Objection']

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Procedural Posture

Appeal Against Refusal of a Development Application Under the Environmental Planning and Assessment Act 1979 / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed detached dual occupancy development would adversely impact significant canopy trees and alter the landscape character of the locality.' 'Whether the proposal would significantly impact the Sydney Turpentine-Ironbark Forest endangered ecological community on the site.' 'Whether the streetscape impacts from tree removal and canopy decline were acceptable.' 'Whether dwelling 2 would create unacceptable visual bulk impacts on dwelling 1, including having regard to separation, height and landform.' 'Whether adequate private open space would be provided for each dwelling.']

Ratio Decidendi

The appeal was dismissed because the extent of tree removal and likely canopy decline would change the site's landscape character and impact its visual catchment and the landscape quality of the locality, so the proposal did not satisfy cl 32(a)(i) of SEPP 53 or the objective in s 5 of the Code. The Court also found that dwelling 2 would unacceptably affect the amenity of dwelling 1 through visual bulk, and that the proposal did not demonstrate adequate regard to cl 32(h) of SEPP 53 because the building form did not relate to the site's landform.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'The development application (DA776/07) for a dual occupancy development on lot 5 DP 31547, 21 Vale Street, Gordon is refused.' 'The exhibits, except Exhibit 3, may be returned.']