APPEAL — development application — children’s carousel within existing hotel grounds and adjacent to harbour foreshore walk — amusement device — recreation facility (outdoor) — whether visual impact is acceptable — viability of proposed landscaping screening — whether there is an impact on trees in the public domain — whether there is an impact on significance of heritage conservation area — whether design excellence clause applies and if proposal exhibits design excellence — impact on coastal use area — appeal dismissed
Quick Take
1Where a development application relies on landscape screening to demonstrate acceptable visual impact, the applicant bears the onus of demonstrating that the proposed landscaping works will not adversely impact existing trees in the public domain, and internal inconsistencies between arborist assessments and landscape plans are fatal to that onus.
2A condition of consent requiring arborist supervision of excavation works is insufficient to discharge the applicant's persuasive burden where the extent of root encroachment is unknown and the feasibility of the entire landscaping scheme may be compromised.
3A carousel permanently affixed to the ground with a structural foundation constitutes a 'building' under s 1.4 of the EPA Act and, as a new structure physically and functionally separate from an existing hotel, enlivens the design excellence clause (cl 7.5(1)(a) NLEP) as a new building rather than an alteration or addition.
