Knox v Ku-ring-gai Council [2016] NSWLEC 1039

Land and Environment Court New South Wales

Medium Neutral Citation: Knox v Ku-ring-gai Council [2016] NSWLEC 1039 Hearing dates: 28 – 29 January 2016 Date of orders: 05 February 2016 Decision date: 05 February 2016 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed. 2. Development Application No. 0001/15 for the construction of a tennis court at 8 Wahroonga Avenue, Wahroonga is refused consent. 3. The exhibits, other than exhibits 4, B and F, are returned. Catchwords: DEVELOPMENT APPLICATION: proposed tennis court; removal of trees; impact on endangered ecological community. Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) Land and Environment Court Act 1979 (NSW) Threatened Species Conservation Act 1995 (NSW) Cases Cited: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 Category: Principal judgment Parties: Jennifer Knox (Applicant) Ku-ring-gai Municipal Council (Respondent) Representation: Counsel: Mr D. Clarke solicitor (Applicant) Mr C. Shaw solicitor (Respondent) Solicitors: Clamenz Lawyers (Applicant) Swaab Attorneys (Respondent) File Number(s): 10863 of 2015

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 0001/15 for the construction of a tennis court, including a concrete slab, fencing and a controlled discharge drainage pit and the removal of trees (the proposal), at 8 Wahroonga Avenue, Wahroonga (the site) by Ku-ring-gai Council (the Council). 2. The appeal was subject to mandatory conciliation on 28 January 2016, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.