Ong v Ku-ring-gai MC [2004] NSWLEC 163

Land and Environment Court of New South Wales

CITATION : Ong v Ku-ring-gai MC [2004] NSWLEC 163 APPLICANT V Ong PARTIES : RESPONDENT Ku-ring-gai Municipal Council FILE NUMBER(S) : 10013 of 2004 CORAM: Moore C Development Consent :- KEY ISSUES: Tree Preservation order Application for consent for removal of a tree LEGISLATION CITED: CASES CITED: DATES OF HEARING: 31 March 2004 EX TEMPORE 03/31/2004 JUDGMENT DATE :

APPLICANT Mr S Kondilios, solicitor Maddocks Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Ms J Smith, solicitor Wilshire Webb

JUDGMENT:

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10013 of 2004 Moore C 31 March 2004

V Ong Applicant

v Ku-Ring-Gai Municipal Council Respondent Judgment

1. This is an appeal against the refusal by Ku-ring-gai Municipal Council (the council) of an application to remove a Cabbage Tree Palm from the front yard of a property at 3 Royston Close, Pymble. The application was refused on the basis that it was contrary to the objectives of the council's Tree Preservation Order. A number of matters were canvassed in the evidence in the proceedings but I am satisfied that the one specific matter which requires to be address is whether the approval of the application would be consistent with or advancing of the objectives, overall, of the Tree Preservation Order.

2. The objectives of the Tree Preservation Order, in my view, are contained in the second sentence to the preamble of that order which reads the order is particularly aimed towards the preservation of Ku-ring-gai's indigenous tree canopy. The implementation provisions of the Tree Preservation Order are contained in the terms of the resolution of the council of 21 Mach 1995. In the third paragraph this resolution, it is noted that where trees, in themselves, are considered to be stable and structurally sound, the application will normally be refused. In the context of the present appeal, there are two elements that I need to consider. I do so against the factual backdrop where it is agreement between Ms M Howden, the applicant's consultant arborist and Mr R McKay, council's tree preservation officer, that the replacement of the Cabbage Tree Palm with a turpentine would make a positive contribution to the streetscape of Royston Close.