McKeen v Wollongong City Council [2011] NSWLEC 1101

Land and Environment Court New South Wales

Medium Neutral Citation: McKeen v Wollongong City Council [2011] NSWLEC 1101 Hearing dates: 14 April 2011 Decision date: 03 May 2011 Before: Fakes C Decision: Appeal dismissed Catchwords: Modification application; deletion of a condition requiring the retention of a Bunya Pine; Legislation Cited: Environmental Planning & Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006 Land & Environment Court Act 1979 Cases Cited: Newman v Eizenberg [2009] NSWLEC 1203 Adamski v Betty [2007] NSWLEC 200 Langtip v Granstrom [2008] NSWLEC 44 Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 Category: Principal judgment Parties: G and K McKeen (Applicants) Wollongong City Council (Respondent) Representation: Mr G McKeen (Applicant in person) Mr J Reilly (Respondent) Wollongong City Council File Number(s): 10127 of 2011

Judgment 1COMMISSIONER: This is an appeal pursuant to s 96 of the Environmental Planning & Assessment Act 1979 (the Act) against the refusal by Wollongong City Council (the council) to modify development consent DA-2010/1052 for a 'New split level dwelling house' on Lot 4 DP 1135696, 152 Brokers Road Balgownie (the site). 2The modification sought by the applicant relates to Condition 2 'Trees to be retained'. The applicants seek to modify condition 2 to permit the removal of a Bunya Pine ( Araucaria bidwillii ) (the tree) on the basis that falling cones from the tree could cause damage to property or injury to any person. 3The tree is one of five trees on the site conditioned for retention by council. Condition 2 states: "The developer must retain Trees No. 1-5 as numbered on the submitted Arborist Report by Moore Trees, dated August 2010. The developer must carry out all recommendations as indicated on the submitted Arborist Report by Moore Trees, dated August 2010. In particular the tree protection fencing/methods for the Structural Root Zone3.5 m from the face of the trunks of the Araucaria bidwillii (Trees No 4 and 5). All recommendations listed in Section 4 and the Tree Protection measures laid out in Section 5 of the report must be demonstrated on the Site, Engineering and Architectural plans and supporting documentation for the Construction Certificate submission." 4The tree is identified as Tree 4 in the Arborist Report and is one of an original row of nine Bunya Pines that flanked the internal road/shared access. However, in arboricultural and council reports concerning the nine Bunyas, it is referred to as Tree 3. In this judgment it is referred to as the tree.