P S Graham & Associates v Hornsby Shire Council [2014] NSWLEC 1153

Land and Environment Court New South Wales

Medium Neutral Citation: P S Graham & Associates v Hornsby Shire Council [2014] NSWLEC 1153 Hearing dates: 17 June 2014 Decision date: 18 June 2014 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. Development Application No 924/2013 for the demolition of an existing dwelling and the construction of a new dwelling at 88 Malton Road Beecroft is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 5 and G. Catchwords: DEVELOPMENT APPLICATION: demolition of a dwelling house and the erection of a new two storey dwelling house - removal of existing tree Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: P S Graham & Associates (Applicant) Hornsby Shire Council (Respondent) Representation: Mr J Hones, solicitor (Applicant) Mr C Gough, solicitor(Respondent) Hones La Hood Lawyers (Applicant) Storey & Gough Lawyers (Respondent) File Number(s): 10193 of 2014

Judgment 1COMMISSIONER: This is an appeal against the refusal of development application number 924/2013 for the demolition of a dwelling house and the erection of a new two storey dwelling house at 88 Malton Road, Beecroft. 2The appeal was subject to mandatory conciliation and arbitration on 17 June 2014 under s 34AA of the Land and Environment Court Act 1979. As no agreement was reached, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with forthwith pursuant to s 34AA(2)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34AA(2)(b)(ii). 3The application proposes the removal of a Angophora costata (Tree 60). The contentions raised by the council centre on whether Tree 60 should be removed to allow the construction of the new dwelling. The evidence on this contention addressed town planning, ecological, arboricultural and heritage matters. If the Court finds that Tree 60 can be removed, it was accepted that there are no other contentions raised by the council that would warrant the refusal of the application. The residents who provided evidence on the site inspection supported the contention raised by the council and also raised the potential impact on the Right-of-Way (ROW) that runs near the western boundary of the site and provides access to a number of adjoining dwellings.