Sandy Outlook Pty Ltd as the trustee for Sandy Outlook Trust v Ku-ring-gai Council [2021] NSWLEC 1519

Land and Environment Court New South Wales

Medium Neutral Citation: Sandy Outlook Pty Ltd as the trustee for Sandy Outlook Trust v Ku-ring-gai Council [2021] NSWLEC 1519 Hearing dates: 11,12 and 13 May 2021 Date of orders: 15 September 2021 Decision date: 15 September 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders: (1) The appeal is dismissed. (2) Development Application DA-0174/20 seeking consent for the demolition of structures, tree removal and community title subdivision of land to create six (6) allotments and associated works at 4 and 18 Cliff Avenue, North Wahroonga, is determined by way of refusal. (3) The exhibits are returned, with the exception of A and 2. Catchwords: DEVELOPMENT APPLICATION – subdivision of land – community title - bushfire prone land – terrestrial biodiversity mapped - proposed removal of trees – proposed impact on critically endangered ecological community (CEEC) – whether Applicant has given consideration to avoidance of impacts on CEEC – whether Applicant's biodiversity assessment report (BDAR) is acceptable – whether development complies with requirements of bushfire safety authority (BSA) – whether proposed biodiversity offsets are adequate to offset loss of biodiversity – whether proposed removal of 82 trees is acceptable Legislation Cited: Biodiversity Conservation Act 2016, ss 6.12, 7.5, 7.12, 7.13, 7.16 Biodiversity Conservation Regulation 2016 cl 6.5 Environmental Planning and Assessment Act 1979 ss 4.6, 4.15, 4,16, 8.7(1) Environmental Planning and Assessment Regulation 2000, cll 49, 77, Sch 1 Ku-ring-gai Local Environment Plan 2015 cll 2.3, 4.1, 6.3 Land and Environment Court Act 1979 s 34 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Threatened Species Conservation Act 1995 Cases Cited: Bulga Milbrodale Progress Association Inc. v Minister for Planning and Infrastructure and Warkworth Mining Ltd (2013) 194 LGERA 347; [2013] NSWLEC 48 Parrott v Kiama [2004] NSWLEC 77 Texts Cited: Ku-ring-gai Community Participation Plan Ku-ring-gai Development Control Plan Land and Environment Court of NSW COVID-19 Arrangements Policy, April 2019 NSW Rural Fire Service, Planning for Bushfire Protection: A guide for councils, planners, fire authorities and developers, 2019 Category: Principal judgment Parties: Sandy Outlook Pty Ltd as the trustee for Sandy Outlook Trust (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: N Eastman (Applicant) J Smith (Respondent)