Burns v Ku-ring-gai Council [2018] NSWLEC 1401

Land and Environment Court New South Wales

Medium Neutral Citation: Burns v Ku-ring-gai Council [2018] NSWLEC 1401 Hearing dates: 6 July 2018 Date of orders: 09 August 2018 Decision date: 09 August 2018 Jurisdiction: Class 1 Before: Bish C Decision: The orders of the Court are as follows: (1) The appeal is upheld. (2) Amended Development Application DA0234/17 for Lot 15 DP 6535, known as 9 Clermiston Avenue, Roseville for the removal of a Phoenix canariensis, Arecaceae, referred to as T8, shown on Plan 12329, Rv 00, dated 7 August 2014 is approved, subject to the conditions in Annexure A. (3) The Exhibits are returned. Catchwords: DEVELOPMENT APPLICATION: tree; safety; heritage significance; character. Legislation Cited: Environmental Planning and Assessment Act 1979 No. 203 Ku-ring-gai Development Control Plan 2016 Ku-ring-gai Local Environment Plan 2015 Land and Environment Court Act 1979 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Butcher & anor v Seeman & anor [2014] NSWLEC 1200 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Brian John Burns (Applicant) Ku-ring-gai Council (Respondent) Representation: Solicitor: L Finn, Hones Lawyers (Respondent)

Other: B Burns (Self-represented) (Applicant) File Number(s): 18/17242 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against conditions on Development Consent DA0234/17 for Lot 15 DP 6535, known as 9 Clermiston Avenue, Roseville (hereafter the site). 2. The Development Application DA0234/17 was lodged with Ku-ring-gai Council (the respondent) for the removal of eight (8) trees on 19 June 2017. In response to the DA, consent was granted on 26 September 2017 for the removal of five Cypress pine trees, identified as T1-T5 Cupress semipervirens 'Leighton's Green' (Cupressaceae). However, three trees identified as T6-T8 were not approved for removal and are the subject of the initial appeal. 3. The location of the trees are shown in the approved plan attached to DA0234/17, Plan 12329, Rev 00, Dated 7 August 2014. 4. To seek resolution regarding the removal of the remaining three trees in contention, a conciliation conference was held at the site, which included a site inspection of the surrounding area on 6 July 2018, pursuant to s34(1) of the Land and Environment Court Act 1979 (Court Act). 34 Conciliation Conferences (1) If proceedings are pending in Class 1, 2 or 3 of the Court's jurisdiction, the Court: (a) may arrange a conciliation conference between the parties or their representatives, with or without their consent, and (b) if it does so, must notify the parties or their representatives of the time and place fixed for the conference. (1A) It is the duty of each party to proceedings where a conciliation conference has been arranged under subsection (1) to participate, in good faith, in the conciliation conference. (2) A conciliation conference is to be presided over by a single Commissioner. (3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner: (a) must dispose of the proceedings in accordance with the decision, and (b) must set out in writing the terms of the decision. (4) If no such agreement is reached, the Commissioner must terminate the conciliation conference and: (a) unless the parties consent under paragraph (b), must make a written report to the Court: (i) stating that no such agreement has been reached and that the conciliation conference has been terminated, and (ii) setting out what in the Commissioner's view are the issues in dispute between the parties, or (b) if the parties consent to the Commissioner disposing of the proceedings, must dispose of the proceedings: (i) following a hearing, whether held forthwith or later, or (ii) with the consent of the parties, on the basis of what has occurred at the conciliation conference. (5) The Commissioner, when giving his or her decision under subsection (4) (b), is to give reasons for the decision: (a) in writing, or (b) orally and recorded by means that can be reproduced. (6) If satisfied that there is a good reason to do so, the Commissioner may adjourn the conciliation conference to a time and place fixed in consultation with the Registrar. (7) Subject to this Act and the rules, the Commissioner disposing of, or hearing and disposing of, proceedings pursuant to subsection (3) or (4) (b) has and may exercise the functions of the Court. (8) The decision of the Commissioner under subsection (3) or (4) (b) is taken to be the decision of the Court. (9) If a report is made to the Court under subsection (4) (a), it must, as soon as practicable, furnish a copy of the report to each of the parties. (10) If an agreement is reached between the parties and proceedings are being dealt with under subsection (3), any document signed by the parties is admissible as to the fact that such an agreement has been reached and as to the substance of the agreement. (10A) The same privilege with respect to defamation as exists with respect to judicial proceedings and a document produced in judicial proceedings exists with respect to: (a) a conciliation conference, and (b) a document or other material sent to or produced to a Commissioner, or sent to or produced at the Court or the registry of the Court, for the purpose of enabling a conciliation conference to be arranged. (10B) The privilege conferred by subsection (10A) extends only to a publication made: (a) at a conciliation conference, or (b) in a document or other material sent to or produced to a Commissioner, or sent to or produced at the Court or the registry of the Court, for the purpose of enabling a conciliation conference to be arranged. (11) Subject to subsections (10) and (12): (a) evidence of anything said or of any admission made in a conciliation conference is not admissible in any proceedings before any court, tribunal or body, and (b) a document prepared for the purposes of, or in the course of, or as a result of, a conciliation conference, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body. (12) Subsection (11) does not apply with respect to any evidence or document if the parties consent to the admission of the evidence or document. (13) The Commissioner presiding over a conference under this section in relation to any proceedings is disqualified from further participation in those proceedings, unless the parties otherwise agree. (14) Unless otherwise directed by the Chief Judge, the Registrar may preside over a conference under this section and, in that event, a reference in this section to a Commissioner includes a reference to the Registrar. 1. Objections regarding the removal of trees identified as T6, T7 and T8 were heard from two neighbours. Issues raised by the objectors related to loss of privacy and visual amenity, character/streetscape impacts and bird life. 2. As a result of the conciliation conference, the Council agreed that T7 (a Phoenix canariensis, Arecaceae) could be removed. Council however presses that T6 and T8 should remain as they are consistent with the heritage character of the surrounding area. 3. At the conciliation conference, the applicant withdrew his appeal regarding removal of T6 (a Cinnamomum camphora, Lauraceae) and T7, and stated his appeal for consideration of the Court relates solely to the removal of T8 (a Phoenix canariensis, Arecaceae), on the grounds of resident safety. 4. The respondent has agreed to consideration in this appeal of removal of T8 only. 5. Leave is granted to amend the appeal of DA0234/17 for the removal of T8 only, the location of which is as shown on Plan 12329, Rev 00, dated 7 August 2014, as provided in the Respondents bundle. 6. As the issue of the removal of T8 could not be resolved, the conciliation conference was terminated, pursuant to s34(4)(a) of the Court Act. The parties agreed to have the matter disposed of by the presiding Commissioner, pursuant to s34(4)(b)(ii). 7. Leave is granted to rely on submissions tendered as evidence and filed by both parties with the Court on 16 July 2018. 8. Leave is granted to rely on draft conditions of consent provided by the respondent to the court on 6 August 2018.