Fernhill Property Group Pty Ltd and Clark Building Co Pty Ltd v Kogarah Council [2006] NSWLEC 817

Fernhill Property Group Pty Ltd and Clark Building Co Pty Ltd v Kogarah Council [2006] NSWLEC 817

Taking into account the arborist's report and the council's support, and the likelihood that existing trees would not survive the basement configuration, it is appropriate to amend the development consent to allow removal of certain trees and require planting of a suitable replacement tree.

Parties
Applicant: Fernhill Property Group Pty Ltd; Applicant: Clark Building Co Pty Ltd; Respondent: Kogarah Council
Jurisdiction
Australia
Judgment Date
04 December 2006
Procedural Posture
Appeal Development Application / Hearing and Determination
Outcome
Appeal upheld; development consent amended
Legal Topics
Modification of Development Consent, Removal and Replacement of Trees
Planning and Environment Law Modification of Development Consent Removal and Replacement of Trees

Case Brief

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Parties

Fernhill Property Group Pty Ltd

Applicant

Clark Building Co Pty Ltd

Applicant

Kogarah Council

Respondent

Procedural Posture

Appeal Development Application / Hearing and Determination

Legal Issues

  1. 1 Whether consent should be amended to allow removal and replacement of trees required for retention under prior development consent

Ratio Decidendi

Taking into account the arborist's report and the council's support, and the likelihood that existing trees would not survive the basement configuration, it is appropriate to amend the development consent to allow removal of certain trees and require planting of a suitable replacement tree.

Court Disposition

Appeal upheld; development consent amended

Orders

  • The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is upheld.
  • The development consent granted by the Court on 28 April 2006 is amended: Condition 20(a) is replaced to allow removal of specified trees; Condition 21(a), (b), and (c) are deleted; and a new Condition 21 is inserted specifying the planting of a replacement tree as detailed in the arborist's report.