Ryan and Anor v Ku-ring-gai Council [2015] NSWLEC 1168

Land and Environment Court New South Wales

Medium Neutral Citation: Ryan and Anor v Ku-ring-gai Council [2015] NSWLEC 1168 Hearing dates: 14 May 2015 Decision date: 20 May 2015 Jurisdiction: Class 1 Before: Moore SC and Adam AC Decision: For directions see (67). Catchwords: DEVELOPMENT APPLICATION: proposed piping of streamway; controls and policies concerning waterway enhancement; policy against piping; residential amenity; need to balance outcomes Legislation Cited: Ku-ring-gai Planning Scheme Ordinance Ku-ring-gai Local Environmental Plan 2015 Category: Principal judgment Parties: Felicity Ryan (First Applicant) Rodger Ryan (Second Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel Mr S Kondilios, solicitor (Applicants) Mr K Webber, solicitor (Respondent)

Solicitors Hall & Wilcox Lawyers (Applicants) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 10867 of 2014

Judgment

Introduction 1. COMMISSIONERS: For descriptive purposes in these proceedings, it is appropriate to regard Wallace Parade at Lindfield as running north/south. The Ryan's property (the site) is located on the western, lower side of Wallace Parade. The site slopes from east to west and, in the rear open space behind the house, slopes toward the south-western corner. A streamway (whether ephemeral or permanent being irrelevant in these proceedings) enters the site at approximately the midpoint of its northern boundary and flows, in a slightly curved path, to the south-western corner of the site. This streamway is one of those that eventually contributes to and becomes part of Blue Gum Creek. However, on the site it has no specified name. 2. The streamway drains a modest but nonetheless significant catchment upstream from the site and is, until almost immediately after it enters the site, contained within a piping system (the details of which are also not relevant). 3. However, having entered the site, the streamway is an open one which flows across a gentle slope for approximately half the length of its path within the site and then slopes more steeply as its path progresses to the south-western corner of the site. 4. The streamway divides off a section of the rear yard - with it being appropriate to make three observations concerning the element of the yard in the north-western corner that is divided from the remainder by the streamway: * First, this portion of the yard is comparatively flat and generally at grade with the portion of the yard adjacent to it across the streamway. * Second, there is a large, healthy Turpentine growing on the site near the rear boundary within this portion. Immediately adjacent to the Turpentine is a Pittosporum. Both these tree species are elements of the suite of trees and other plants in the Sydney Turpentine Ironbark Forest Endangered Ecological Community. * Third, access to the children's cubby house erected on this portion of the site (to the north of the two trees and close to the north-western corner of the site) is obtained by a wooden bridge that has been erected across the streamway adjacent to and very slightly upstream of the point where there is a significant downward change of gradient within the streamway and of its western bank. 1. There is a deal of vegetation in the streamway or within its immediate riparian zone. To our observation, that vegetation comprised primarily Morning Glory and Wandering Jew, both commonly regarded as weed species. There is also a coral tree on the eastern bank near the boundary with the neighbouring property to the south and there were several other pieces of spindly vegetation that appeared to be (but cannot certainly be identified as) privet plants. 2. We also observed that, in addition to the wooden bridge providing access to the flatter north-western portion of the site located across the streamway, there is a somewhat dilapidated two rail wooden fence running along the eastern side of the streamway. 3. The western boundary of the site is fenced with a pipe and link mesh fence and, from the comparatively flat portion in the north-western element of the site earlier described, the bank on the far side of the streamway also falls away along this fence line. 4. We were able to observe, over the paling fence between the site and the property to its south, that, after flowing under the fence and pass an informal gross pollutant trap installed by the Ryans (being a section of pool fencing rotated by 90° and held in place by the paling fence above), the streamway became contained within a formalised channel with the western side of the channel being a low brick retaining wall and the floor of the channel appearing to be of concrete. We were unable to observe the precise nature of the eastern structure of this channel but it appeared to be part of the supporting structure for a swimming pool on the neighbouring property.