Kushe v City of Sydney Council [2007] NSWLEC 311

Kushe v City of Sydney Council [2007] NSWLEC 311

The replacement tree condition was deleted because the only available location after construction of the carport was a very small side yard used as a walkway and containing the house sewer pipe; the proposed and suggested replacement trees were likely to obstruct the yard, damage paving or affect the terracotta sewer line, and the consent did not require the paving or sewer pipe to be rebuilt. Although conservation area considerations supported vegetation and streetscape character, requiring a tree in this yard was not practical or appropriate.

Jurisdiction
Australia
Judgment Date
21 May 2007
Procedural Posture
S 96 Appeal Against a Condition of Consent in Development Application No D/2005/1910 / Ex Tempore Judgment After Hearing
Outcome
Appeal upheld.
Legal Topics
['development Application' 'condition of Consent' 'tree Replacement' 'conservation Area' 'streetscape' 'residential Amenity' 'utility Services Conflict']
['planning and Environment Law' 'heritage Conservation' 'development Consent'] ['development Application' 'condition of Consent' 'tree Replacement' 'conservation Area' 'streetscape' 'residential Amenity' 'utility Services Conflict']

Case Brief

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Procedural Posture

S 96 Appeal Against a Condition of Consent in Development Application No D/2005/1910 / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether Condition 2 requiring a replacement tree should be deleted from the development consent for a carport and masonry boundary walls at No. 9 McDonald Street, Potts Point.' 'Whether deleting the replacement tree requirement would be incompatible with heritage conservation, residential amenity, setting and the previous tree removal permit.' 'Whether the small rear yard, pathway use, paving and terracotta sewer line made the required replacement tree impractical or inappropriate.']

Ratio Decidendi

The replacement tree condition was deleted because the only available location after construction of the carport was a very small side yard used as a walkway and containing the house sewer pipe; the proposed and suggested replacement trees were likely to obstruct the yard, damage paving or affect the terracotta sewer line, and the consent did not require the paving or sewer pipe to be rebuilt. Although conservation area considerations supported vegetation and streetscape character, requiring a tree in this yard was not practical or appropriate.

Court Disposition

Appeal upheld.

Orders

  • ['The appeal is upheld.' 'Condition 2 of Consent No. D/2005/1910 at No. 9 McDonald Street, Potts Point is deleted and the need for a tree as shown on the approved plans is also deleted by the substitution for them with Drawings 16/A3, 2b/A3, 3b/A3, 4b/A3 as held on the Courts file.' 'The exhibits are returned to the...