Background
Schwartz Family Co Pty Ltd sought consent to install a carousel for hotel guests in the private recreational area of Rydges Newcastle at 350 Wharf Road, beside the Newcastle Harbour foreshore walk. The revised proposal was a 4.8-metre-high, 7-metre-wide carousel, operating daily between 10 am and 4 pm, with proposed landscaping intended to screen it from the public domain.
Newcastle City Council refused the development application. In the ensuing Class 1 appeal, it maintained that the carousel would cause unacceptable visual and heritage impacts and did not meet requirements concerning design excellence and the coastal use area. A central dispute concerned proposed trenching to plant a Syzygium hedge near three Council-owned Tuckeroo trees on the adjoining foreshore walk.
The Court’s Holding
Acting Commissioner Swan dismissed the appeal and refused the development application. The determinative issue was that the application did not adequately assess the effect of trenching for the proposed hedge on the roots and health of the three public-domain Tuckeroo trees.
The Court found that the arboricultural assessment incorrectly proceeded on the basis that there would be no below-ground excavation and that the works would be outside the trees’ protection zones. It was not enough to leave the issue to arborist supervision or a future condition of consent: the evidence did not establish whether planting could proceed without damaging roots, or whether the screening scheme on which the proposal relied would remain feasible. As a result, the Court could not be satisfied under s 4.15(1)(b) of the Environmental Planning and Assessment Act 1979, the design-excellence clause, or the coastal-use-area provisions.
Key Takeaways
- A development application must contain coordinated and consistent architectural, landscape and arboricultural material.
- Conditions cannot cure a material evidentiary uncertainty where the likely impacts and feasibility of the proposed solution have not been demonstrated.
- The Court considered the carousel’s visual and heritage impacts acceptable if the public trees could be retained, but that unresolved issue required refusal.
Why It Matters
The decision illustrates the practical importance of tree-root impacts in development appeals, particularly where landscaping is integral to mitigating visual effects. An applicant bears the onus of showing that proposed works will not harm public trees and that its relied-on mitigation measures are achievable.
It also confirms that a permanent carousel can be a “building” for the purposes of the Newcastle Local Environmental Plan’s design-excellence clause, even though its scale is comparatively modest.