Arkibuilt Pty Ltd v Ku-ring-gai Council [2014] NSWLEC 1161

Land and Environment Court New South Wales

Medium Neutral Citation: Arkibuilt Pty Ltd v Ku-ring-gai Council [2014] NSWLEC 1161 Hearing dates: 26, 27 and 28 May 2014 Decision date: 14 August 2014 Jurisdiction: Class 1 Before: Dixon C Decision: 1. Appeal dismissed. 2. The Exhibits are returned. Catchwords: DEVELOPMENT APPEAL -residential and retail development - endangered ecological community - Sydney Turpentine Ironbark Forest (STIF) Legislation Cited: Threatened Species Conservation Act 1995 Ku-ring-gai Local Environmental Plan (Local Centres) 2012 Ku-ring-gai Local Centres Development Control Plan Category: Principal judgment Parties: Arkibuilt Pty Ltd (Applicant)

Ku-ring-gai Council (Respondent) Representation: P Tomasetti SC (Applicant) J Robson SC (Respondent) Di Marco Lawyers (Applicant) Wilshire Webb Stanton Beattie (Respondent) File Number(s): 10865 of 2013

Judgment 1The applicant, Arkibuilt Pty Limited, has lodged a development application with the Council for approval to construct an 8 storey mixed use development on a large site on the eastern side of Lindfield Station. The development comprises 62 apartments, with parking for 147 cars over three levels of basement car parking, a 100m2 neighbourhood shop and 1105m2 gourmet grocer. 2The development site is a consolidation of 5 properties at 43 - 49, 51, 55 and 55A Lindfield Avenue, Lindfield (the site). Access to the site is proposed via 9 Havilah Lane, Lindfield. 3Before the development can proceed the site must be cleared of all buildings and trees. Three of the trees, proposed to be removed, have been identified as remnant native trees comprising Turpentine species - mapped and forming part of the endangered Sydney Turpentine Ironbark Forest (STIF) ecological community. That ecological community is listed as an endangered ecological community under s 6 of the Threatened Species Conservation Act 1995. The removal of the STIF is the principal issue in these proceedings. 4The general location of the trees is plotted on Figure 23 reproduced below. The Figure is taken from the Species Impact Statement (SIS) prepared by the applicant's consultant, Frazer Ecological Consulting, on 5 November 2013 and identifies the STIF as 'Tree 21', 'Tree 29' and 'Tree 10'. Species Impact Statement 43-55a Lindfield Avenue LINDFIELD (Jacaranda), Brachychiton acerifolius (Illawarra Flame Tree) and a remnant Syncarpia glomulifera (Sydney Turpentine). Vegetation condition The health and condition of the native remnant STIF trees on the subject site were identified in the Arboricultural Impact Assessment Report prepared by Jacksons Nature Works (June 2013) are shown below in Figure 23. 5The trees are also identified as "Areas of Biodiversity Significance" on the Natural Resource Biodiversity Map referred to in cl 6.3 of Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (LEP). Importantly, before determining a development application for development on land to which this clause applies, I must consider the impact of the proposed development by reference to the matters listed in cl 6.3 (3). I cannot grant consent to development on land to which the clause applies unless I am satisfied that the development is consistent with the objectives of the clause, and satisfactorily addresses the other matters identified in cl 6.3(4). 6I will address cl 6.3 in due course but for present purposes I note the Council's position that I cannot form the requisite state of satisfaction required by cl 6.3(4) and therefore I am precluded from granting consent to this development. The Council contends that the development can be redesigned to preserve and protect the STIF in situ on the site. 7The applicant contends that there is no opportunity for a redesign of the proposal to save the STIF because the trees block the access path to the basement car park entry. However, the applicant submits that the removal of the trees is not a problem because - based on its ecological evidence - the STIF are of poor condition and in decline. They can be removed to facilitate this development because the vegetation offset proposed in this application more than compensates for their loss. In short, it is submitted that after a consideration of the matters raised by cl 6.3(3) against the applicant's evidence the Court can be satisfied about the matters raised by cl 6.3 (4) and grant consent to this development.