Blake v Ku-ring-gai Council [2021] NSWLEC 1461

Blake v Ku-ring-gai Council [2021] NSWLEC 1461

The Court upheld the appeal because the amended proposal satisfied the preconditions to consent and did not have an unacceptable ecological impact. The cl 4.6 request adequately justified the height breach by reference to the sloping topography and driveway and basement design, and the proposal remained consistent with the height standard and zone objectives. The proposal, considered as a whole, avoided and minimised impacts on Blue Gum High Forest by retaining three mature canopy trees, limiting removal, providing replacement and additional Blue Gum High Forest species plantings, implementing a vegetation management plan over an equivalent area, and offsetting any residual impacts. The...

Jurisdiction
Australia
Judgment Date
13 August 2021
Procedural Posture
Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Principal Judgment After Hearing; Appeal Upheld and Development Consent Granted
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['development Application for Multi Dwelling Housing' 'endangered Ecological Community' 'blue Gum High Forest' 'serious and Irreversible Impacts on Biodiversity Values' 'clause 4.6 Variation Request' 'height Development Standard' 'biodiversity Development Assessment Report' 'development Control Plan Controls' 'accessibility Requirements']
['environmental Planning and Assessment' 'biodiversity Conservation' 'development Control' 'land and Environment'] ['development Application for Multi Dwelling Housing' 'endangered Ecological Community' 'blue Gum High Forest' 'serious and Irreversible Impacts on Biodiversity Values' 'clause 4.6 Variation Request' 'height Development Standard' 'biodiversity Development Assessment Report' 'development Control Plan Controls' 'accessibility Requirements']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Principal Judgment After Hearing; Appeal Upheld and Development Consent Granted

Legal Issues

  1. 1 ['Whether leave should be granted to rely on the amended Clause 4.6 Variation Request dated 28 July 2021.' 'Whether development consent could be granted notwithstanding breach of the 11.5m height development standard in cl 4.3 of the Ku-ring-gai Local Environmental Plan 2015.' 'Whether the proposed development would have an unacceptable impact, or a serious and irreversible impact, on Blue Gum High Forest.' 'Whether the Biodiversity Development Assessment Report adequately addressed avoidance and minimisation measures under the Biodiversity Conservation Act 2016 and the Biodiversity Assessment Method.' 'Whether the proposed development satisfied cl 6.3 of the Ku-ring-gai Local Environmental Plan 2015 and relevant Ku-ring-gai Development Control Plan 2020 controls concerning biodiversity and tree retention.' 'Whether accessibility issues concerning nominated platinum level dwellings and winder stairs warranted refusal.']

Ratio Decidendi

The Court upheld the appeal because the amended proposal satisfied the preconditions to consent and did not have an unacceptable ecological impact. The cl 4.6 request adequately justified the height breach by reference to the sloping topography and driveway and basement design, and the proposal remained consistent with the height standard and zone objectives. The proposal, considered as a whole, avoided and minimised impacts on Blue Gum High Forest by retaining three mature canopy trees, limiting removal, providing replacement and additional Blue Gum High Forest species plantings, implementing a vegetation management plan over an equivalent area, and offsetting any residual impacts. The...

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['Leave is granted to the applicant to rely on the amended Clause 4.6 Variation Request dated 28 July 2021.' 'The appeal is upheld.' 'Development consent is granted for the construction of a multi dwelling housing development comprising 12 dwellings, basement parking and associated works at 5-7 Duff Street,...