Parker Logan Property Pty Limited v Woollahra Municipal Council [2018] NSWLEC 155

Land and Environment Court New South Wales

Medium Neutral Citation: Parker Logan Property Pty Limited v Woollahra Municipal Council [2018] NSWLEC 155 Hearing dates: 25 July 2018 Date of orders: 25 July 2018 Decision date: 25 July 2018 Jurisdiction: Class 1 Before: Moore J Decision: At [19] Catchwords: DEVELOPMENT APPEAL - arboricultural issues - additional conditions to protect significant tree - no remaining issues between parties - planning matters raised by objectors - town planning experts' agreement that objector issues were resolved - no unresolved matters - development to be granted consent Category: Principal judgment Parties: Parker Logan Property Pty Limited (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: Mr A Boskovitz, solicitor (Applicant) Ms J Hewitt, solicitor (Respondent)

Solicitors: Boskovitz Lawyers (Applicant) HWL Ebsworth (Respondent) File Number(s): 277814 of 2017 Publication restriction: No

EXTEMPORE JUDGMENT 1. HIS HONOUR: I attended the site of the proposed development in Old South Head Road at Bellevue Hill this morning, accompanied by the legal representatives of the parties and those advising and instructing them. During the course of the inspection, we moved to the rear of the site in the vicinity of the Tallowwood tree, which is proposed to be protected. 2. As part of the evolution of these proceedings and the resolution of the matters that had previously been in contention pressed by the Council, the Council had proposed a range of additionally protective arboricultural conditions to form part of the conditions of consent for this proposed development. Those proposed conditions have been accepted by the Applicant and are to be incorporated in the conditions of consent. 3. As a consequence of the iterative process that has been undertaken, there are therefore no further matters remaining in contention between the Council and the Applicant over this proposed development. 4. However, during the course of the site inspection I made two suggestions with respect to arboricultural matters. 5. First, as I stood at the foot of the Tallowwood tree, I observed that there was a very substantial ivy vine growing onto the Tallowwood tree and a considerable penetration of ivy into the canopy of the tree. It has been my experience, having dealt with several hundred cases under the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) (together with the arboricultural training that I went through as a Commissioner of the Court), it was evident that the continued existence of that ivy posed an ongoing threat to the health of the tree. 6. I suggested that it would be desirable that, in the conditions of consent, there be specific requirement that that ivy be removed from that tree. That condition was embraced by the Council's arborist and readily agreed to on behalf of the Applicant. I am satisfied that an appropriately worded condition has now been incorporated at condition A7 of the draft conditions of consent that are before me in Exhibit 6. 7. The other matter that I raised was the issue of the agreement between the parties that the screening landscaping along the rear boundary of the site was to be bamboo. However, that which had been provided for did not impose any restriction on the height to which such bamboo might grow, it being possible that bamboo could achieve a very significant height and have an impact that was antithetic to the desire of the residents at the rear for screening, as such screening could achieve a height that could also have adverse view impacts from their premises. 8. The consequence of that has been a modification to the proposed conditions of consent, appearing at the second dot point of condition C1(c), that proposes an upper limit of RL56 as to the height to which the bamboo is permitted to grow. 9. I am satisfied that those two amendments to the conditions resolve the matters that are appropriately additional to the matters that were otherwise dealt with between the parties prior to the commencement of the hearing. 10. That left the position where the only matters that remain for my consideration are those which had been pressed by the various objectors as set out in (15) of the Council's Amended Statement of Facts and Contentions, a document filed 28 May 2018, which became Exhibit 1 in the proceedings. 11. The Council summarised the 18 matters that were raised by the objectors as being of concern to them relating to the proposed development. 12. During the course of hearings, Mr Booth, the town planner giving evidence on behalf of the Council, confirmed to me that those matters set out at (15)(a) to (15)(r) in the Statement of Facts and Contentions adequately represented the totality of the matters that were pressed by the objectors. 13. At this point I observe that, of those 18 matters, 17 of them are matters which are appropriately within the jurisdiction of the Court to have regard in the assessment of a proposed development. 14. That which is not within the jurisdiction of the Court to consider is that which is set out in (15)(j) - being loss of property values or adverse financial impacts, a matter raised by a person occupying one of the units at the rear of the site. It is long settled, legally, that where a development is otherwise permissible, the question of impact on property values is not a matter within the jurisdictional purview of a consent authority, whether that consent authority is the Council or this Court. I therefore set aside any consideration of that matter. 15. During the course of the site inspection, I suggested that it would be appropriate for Mr Booth to confer with Mr Mead, the Applicant's town planner, with respect to each of the 17 matters of objection that are within my jurisdictional purview and to prepare a short Supplementary Joint Report that explained why each of those elements of objection lacked foundation as a basis to consider refusal of the proposed development. 16. They met between the time of the site inspection and the commencement of the hearing and have produced a Supplementary Joint Report, which became Exhibit 3. 17. I have read that document and I am satisfied that it accurately and briefly summarises the reasons why there is no proper planning validity in any of the complaints that are raised in the 17 elements of objection that are set out at (15) of the Amended Statement of Facts and Contentions, and are engaged in my consideration. 18. I have also had regard, prior to the commencement of the hearing, to the other documents, many of which have now been tendered before me and are in formal evidence. 19. I am satisfied, as a consequence of that consideration and the evidence given to me, that it is appropriate that the appeal be upheld and that the proposed development be granted development consent, subject to the conditions of consent contained in Exhibit 6. 20. I propose to invite the Council's legal representative to e-mail orders to give effect to that to my Associate, and I will make orders giving effect to my determination as soon as I receive that material. Those orders are to note that, with the exception of Exhibits 1 and 6, the exhibits are returned. NOTE: The orders and conditions were provided and are annexed to this judgment. 277814of 2017 - Parker Logan v Woollahra MC - SMO - 26 Jul 18 (315 KB, pdf) Annexure A - conditions of consent - signed 26 Jul 18 (1.34 MB, pdf)