McKeen v Wollongong City Council [2011] NSWLEC 1101

McKeen v Wollongong City Council [2011] NSWLEC 1101

The Court was not satisfied that Condition 2 should be deleted or that the Bunya Pine should be removed. The applicants knew of the tree and its risks when purchasing and developing the land, previous removals were for access, the retained Bunya Pines were a dominant streetscape feature, there was no evidence of the fruiting history of this particular tree, and the feared risk of fruit fall could be managed by inspection and harvesting if it arose.

Jurisdiction
Australia
Judgment Date
03 May 2011
Procedural Posture
Appeal Pursuant to S 96 of the Environmental Planning & Assessment Act 1979 Against Refusal to Modify Development Consent DA 2010/1052 / Hearing After Terminated Conciliation; Reserved Judgment
Outcome
Appeal dismissed
Legal Topics
['modification Application' 'tree Retention Condition' 'bunya Pine Removal' 'streetscape and Landscape Amenity' 'risk of Injury or Property Damage From Falling Fruit']
['environmental Planning and Assessment' 'land and Environment' 'development Consent Modification'] ['modification Application' 'tree Retention Condition' 'bunya Pine Removal' 'streetscape and Landscape Amenity' 'risk of Injury or Property Damage From Falling Fruit']

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Procedural Posture

Appeal Pursuant to S 96 of the Environmental Planning & Assessment Act 1979 Against Refusal to Modify Development Consent DA 2010/1052 / Hearing After Terminated Conciliation; Reserved Judgment

Legal Issues

  1. 1 ['Whether Condition 2 requiring retention of the Bunya Pine should be deleted from development consent DA-2010/1052.' 'Whether the risk of falling Bunya Pine cones justified removal of the tree.' "Whether the tree's landscape, streetscape and contextual significance warranted retention with management measures."]

Ratio Decidendi

The Court was not satisfied that Condition 2 should be deleted or that the Bunya Pine should be removed. The applicants knew of the tree and its risks when purchasing and developing the land, previous removals were for access, the retained Bunya Pines were a dominant streetscape feature, there was no evidence of the fruiting history of this particular tree, and the feared risk of fruit fall could be managed by inspection and harvesting if it arose.

Court Disposition

Appeal dismissed

Orders

  • ['Appeal No 10127 of 2011 is dismissed.' 'The exhibits except exhibit 1 are retained.']