Kooloth v Ku-ring-gai Council [2019] NSWLEC 1586

Kooloth v Ku-ring-gai Council [2019] NSWLEC 1586

Retention of the Himalayan Cedar (Condition 49) is consistent with the Ku-ring-gai DCP as the tree contributes to the character of the Heritage Conservation Area; there is feasible and practical engineering solution to remedy any wall damage without removing the tree, and removal would ordinarily require a permit, not justified on the evidence.

Jurisdiction
Australia
Judgment Date
08 November 2019
Procedural Posture
Class 1 Appeal Under S 8.7(1) Environmental Planning and Assessment Act 1979 / Final Judgment
Outcome
Appeal dismissed
Legal Topics
['development Application' 'tree Retention' 'heritage Conservation Area']
['planning and Environment'] ['development Application' 'tree Retention' 'heritage Conservation Area']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7(1) Environmental Planning and Assessment Act 1979 / Final Judgment

Legal Issues

  1. 1 ['Whether Condition 49 of consent requiring retention of Tree 16 (Himalayan Cedar) should be removed' 'Whether removal of the tree would ordinarily require a permit' 'Whether there is any reason to remove the condition of consent']

Ratio Decidendi

Retention of the Himalayan Cedar (Condition 49) is consistent with the Ku-ring-gai DCP as the tree contributes to the character of the Heritage Conservation Area; there is feasible and practical engineering solution to remedy any wall damage without removing the tree, and removal would ordinarily require a permit, not justified on the evidence.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.' 'The exhibits, apart from Exhibit A, are returned.']