SLushY Pty Limited v Ku-ring-gai Council [2021] NSWLEC 1394

SLushY Pty Limited v Ku-ring-gai Council [2021] NSWLEC 1394

The amended proposal satisfied the applicable planning controls and jurisdictional requirements, and the remaining biodiversity, tree and amenity issues were either acceptable on the evidence or adequately mitigated by conditions. The removal of three cheese trees with nine replacement plantings complied with cl 6.3 of KLEP and Parts 18.4 and 18.7 of KDCP, or constituted a reasonable alternative solution warranting flexibility under s 4.15(3A). The likely impacts on liquidambar trees T1 and T2, cedar tree T7 and blackbutt tree N7 were acceptable with conditions and tree protection measures, and objector concerns did not justify refusal in light of expert evidence, amended plans and...

Jurisdiction
Australia
Judgment Date
13 July 2021
Procedural Posture
Class 1 Development Appeal / Appeal Against Deemed Refusal of Development Application Da0536/19; Principal Judgment
Outcome
Appeal upheld; development application determined by grant of consent subject to conditions.
Legal Topics
['child Care Centre Development Application' 'impacts on Significant Trees' 'offset Plantings' 'neighbour Amenity and Public Submissions' 'development Control Plan Flexibility' 'public Interest']
['planning and Environment Law' 'development Consent' 'biodiversity and Tree Protection'] ['child Care Centre Development Application' 'impacts on Significant Trees' 'offset Plantings' 'neighbour Amenity and Public Submissions' 'development Control Plan Flexibility' 'public Interest']

Case Brief

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Procedural Posture

Class 1 Development Appeal / Appeal Against Deemed Refusal of Development Application Da0536/19; Principal Judgment

Legal Issues

  1. 1 ['Whether the proposed 74 place centre-based child care facility should be granted development consent under s 4.16 of the Environmental Planning and Assessment Act 1979.' 'Whether potential impacts on liquidambar trees T1 and T2 could be adequately mitigated by conditions requiring hand excavation under arborist supervision.' 'Whether removal of three cheese trees and replacement with nine cheese trees satisfied cl 6.3 of Ku-ring-gai Local Environmental Plan 2015 and Parts 18.4 and 18.7 of Ku-ring-gai Development Control Plan 2015.' 'Whether driveway works affecting cedar tree T7 and blackbutt tree N7 were acceptable having regard to tree protection, biodiversity and AS4970-2009 considerations.' 'Whether objector concerns about character, traffic, parking, noise, privacy, waste, health, crime and amenity warranted refusal or were resolved by expert evidence, amended plans and conditions.' 'Whether the amended development application satisfied other jurisdictional requirements including the Child Care SEPP, Child Care Planning Guideline, height, floor space ratio, stormwater and contamination provisions.']

Ratio Decidendi

The amended proposal satisfied the applicable planning controls and jurisdictional requirements, and the remaining biodiversity, tree and amenity issues were either acceptable on the evidence or adequately mitigated by conditions. The removal of three cheese trees with nine replacement plantings complied with cl 6.3 of KLEP and Parts 18.4 and 18.7 of KDCP, or constituted a reasonable alternative solution warranting flexibility under s 4.15(3A). The likely impacts on liquidambar trees T1 and T2, cedar tree T7 and blackbutt tree N7 were acceptable with conditions and tree protection measures, and objector concerns did not justify refusal in light of expert evidence, amended plans and...

Court Disposition

Appeal upheld; development application determined by grant of consent subject to conditions.

Orders

  • ['The Applicant is granted leave to rely on amended plans.' 'The appeal is upheld.' "Development application DA0536/19 for the demolition of existing structures and the construction of a 74 place childcare centre with lower ground floor car parking, landscaping and associated works at 102 Kissing Point Road,...