Robertson & anor v Blue Mountains City Council [2016] NSWLEC 1087

Land and Environment Court New South Wales

Medium Neutral Citation: Robertson & anor v Blue Mountains City Council [2016] NSWLEC 1087 Hearing dates: 2 March 2016 Date of orders: 11 March 2016 Decision date: 11 March 2016 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal dismissed Catchwords: APPEAL: Conditions of consent; tree removal sought; streetscape; arboricultural evidence Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Rural Fires Act 1997 Blue Mountains Local Environmental Plan 2005 Blue Mountains Local Environmental Plan 2015 Category: Principal judgment Parties: Helen and John Robertson (Applicants) Blue Mountains City Council (Respondent) Representation: Applicants: Mrs H Robertson (Litigant in person) Respondent: Mr D Baird (Solicitor)

Solicitors: Respondent: Marsdens Law Group File Number(s): 11083 of 2015

Judgment 1. COMMISSIONER: Some 14 months ago the applicants purchased the last lot in a neighbourhood development known as 'Leura Springs' in Craigend Street, Leura. In June 2015 the applicants were granted development consent for alterations and additions to their dwelling at 12/112 Craigend Street, Leura. As is usual, Blue Mountains City Council imposed conditions of consent. The approved plans include a copy of the landscape plan, marked-up by council, identifying in red ink trees originally proposed to be removed by the applicants but now required to be retained in accordance with the conditions. 2. The applicants have appealed under s 97(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) against two conditions of consent imposed by Blue Mountains City Council. 3. The conditions, #13 and #15, go to tree removal and retention and to the landscaping plans. The applicants seek to increase the number of trees to be removed and to amend the approved landscape plan accordingly. The trees in question are primarily a row of conifers located along the southern boundary and frontage to Craigend Street. 4. In essence, the applicants' position is that the proposed amendments are a proactive and strategic approach which will create a more attractive and sustainable streetscape and enhance the entrance to the estate by complimenting the high quality landscape on the western side of the entrance. Apart from contending that the proposal is consistent with the relevant provisions of Blue Mountains Local Environmental Plan 2005 (BMLEP 2005), the applicants maintain that the trees are a cause for concern as a fire hazard, they restrict natural light, and the shadows cast onto the road cause black ice to form in winter thus resulting in a traffic hazard. 5. The matter commenced on site as a mandatory conciliation under s 34AA of the Land and Environment Court Act 1979 (Court Act). During this process the applicants proposed an alternative landscape design that retained more trees than they originally proposed and which modified the replacement landscaping. The council did not oppose the amendment and the applicants were granted leave to rely upon it. Notwithstanding this amendment, no agreement could be reached and the conciliation was terminated in accordance with s 34AA(2)(b)(ii) of the Court Act; that is, the parties agreed to the hearing proceeding on the basis of what occurred during the conciliation process, including submissions made by objectors. 6. The council contends that the appeal should be dismissed as the proposed additional tree removal is counter to the objectives for the zone and the relevant provisions of Blue Mountains Local Environmental Plan 2005 (BMLEP 2005), particularly as the trees play a substantial role in the garden setting of the visually significant streetscape and the established character of the surrounding residential area.