44 Therefore, the expectation ought to be that remnant, isolated and small stands of trees, particularly those that are components of endangered ecological communities or are comprised of indigenous vegetation must be protected in order to counter the ongoing fragmentation and denudation.
Alternative options for the sub-division
45 Alternative proposals for the subject site that would enable some form of dwelling on Lot 1 while respecting the environmental constraints of the site were discussed. The parties referred to a previous consent (DA714/04) that was commonly known as the 'RTA approval'. This former approval was also considered in Commissioner Tuor's decision in Dazdon Pty Ltd v Ku-ring-gai Council [2008] NSWLEC 1271, as was the constraint of tree 31 in the proposed sub-division in that appeal:
28. I accept Mr Kondilios' submission, for the applicant, that this does not require development to be the same as other development but that it should "fit in". The two lot subdivision (DA 786/04) and construction of two houses (DA 714/04) demonstrate that subdivision and development on the site can occur which "fits in" with the character of the area. While house 1 in DA714/04 is a similar distance from the southern boundary as the proposal it provides a considerable area of open space on the corner of the site to enable the retention of the turpentine tree. I note that the planning of house 1 is orientated towards the open space on the corner with the family room and terrace opening onto this area. As such, this is an appropriate response to the constraint of retaining the turpentine tree and its corner location.
29. The current proposal removes the turpentine tree, which is agreed by the parties to be significant. While this may be acceptable on a site that is of a size consistent with the character of the area, it is not acceptable on a site significantly smaller than other sites, particularly as it has been demonstrated that a reasonable development can occur on a site more characteristic of the area.
46 In the broader scheme of balancing development with conservation McClellen CJ made the following relevant comments in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 (12 August 2004):
113. In my opinion, by requiring a consent authority (including the Court) to have regard to the public interest, s 79(C)(e) of the EP&A Act obliges the decision-maker to have regard to the principles of ecologically sustainable development in cases where issues relevant to those principles arise. This will have the consequence that, amongst other matters, consideration must be given to matters of inter-generational equity, conservation of biological diversity and ecological integrity. Furthermore, where there is a lack of scientific certainty, the precautionary principle must be utilised. As Stein J said in Leatch [ Leatch v National Parks and Wildlife Service and Anor (1993) 81 LGERA 270], this will mean that the decision-maker must approach the matter with caution but will also require the decision-maker to avoid, where practicable, serious or irreversible damage to the environment.
114. Consideration of these principles does not preclude a decision to approve an application in any cases where the overall benefits of the project outweigh the likely environmental harm. However, care needs to be taken to determine whether appropriate and adequate measures have been incorporated into such a project to confine any likely harm to the environment."
and:
118. In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.
119. However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project.
47 In the joint statement of evidence it is clear that after balancing tree 31 against the requirements of DCP 38, Mr Minto favours the removal of the tree. In contrast, Mr Sanders argues that the land can be developed around the constraints and referred the Court to the RTA Approval design that was approved by the Council in 2005.