Beasley v Blue Mountains City Council [2022] NSWLEC 1652

Land and Environment Court New South Wales

Medium Neutral Citation: Beasley v Blue Mountains City Council [2022] NSWLEC 1652 Hearing dates: 18-19 November 2021 Date of orders: 08 December 2022 Decision date: 08 December 2022 Jurisdiction: Class 1 Before: Adam AC Decision: The Court orders: (1) The appeal is upheld. (2) Development consent is granted to development application X/545/2020 for the decommissioning of the original driveway at the western end of the property, removal of the Chamaecyparis obtusa tree within the front building setback, construction of new driveway entrance and parking space at the eastern end of the property, compensatory works and installation of new vehicle access gates and a pedestrian gate within the existing front fence at 133 Waratah Street, Katoomba, subject to the conditions of consent in Annexure A. (3) The exhibits are returned except for 1, 2, 3, 4, 8, A, B, E and F. Catchwords: APPEAL – development application – relocation of access from public road to property – construction of hardstand for parking – removal of coniferous tree in HCA – is removal of tree justifiable – landscaping and restoration of garden – balance between amenity to residents of the property and the retention of the tree – weight given to development control plan – conditions Legislation Cited: Biodiversity Conservation Act 2016 Blue Mountains Local Environmental Plan 2015, cll 5.10, 6.4, 6.9, 6.17 Environmental Planning and Assessment Act 1979, ss 3.8, 4.15, 8.7 Land and Environment Court Act 1979, s 34AA State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 8 s 8.8; Ch 9 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4 s 4.6 State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997), cl 6 State Environmental Planning Policy No 55—Remediation of Land, cl 7 (repealed) Cases Cited: Saffioti v Kiama Municipal Council [2019] NSWLEC 57 Sutherland No. 7 Pty Limited v Ku-ring-gai Council [2021] NSWLEC 1209 Tomasic v Port Stephens Council [2021] NSWLEC 56 Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 Texts Cited: Chamaecyparis obtusa 'Crippsii'. American Conifer Society, <https://conifersociety.org/conifers/chamaecyparis-obtusa/>, accessed 11 November 2022 P D Tredici, 'The Introduction of Japanese plants into North America' (2017) 83 Botanical Review 215-252 Blue Mountains Development Control Plan 2015 Richard Ratcliffe, Australia's master gardener: Paul Sorensen and his gardens (1990, Kangaroo Press, Kenthurst) S. Barrett, 'The Sorensen's Nursery Saga' (1992) 4(2) Australian Garden History 6-7 Category: Principal judgment Parties: Gerald Beasley (First Applicant) Sally Lewis (Second Applicant) Blue Mountains City Council (Respondent) Representation: Counsel: G Beasley (Self-represented) (Applicants) A Seton (Solicitor) (Respondent)