Allcastle Homes Pty Ltd v Lane Cove Council

[2009] NSWLEC 1303

Land and Environment Court

of New South Wales

CITATION:	Allcastle Homes Pty Ltd v Lane Cove Council [2009] NSWLEC 1303
PARTIES:	APPLICANT Allcastle Homes Pty Ltd RESPONDENT Lane Cove Council
FILE NUMBER(S):	10347 of 2009
CORAM:	Tuor C - Fakes AC
KEY ISSUES:	DEVELOPMENT APPLICATION :- removal of trees and construction of a driveway, front fence and stormwater Whether retention of English Oak tree would unreasonably constrain future development of a dwelling on the site
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Lane Cove Local Environmental Plan 1987 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
DATES OF HEARING:	13 August 2009
DATE OF JUDGMENT:	16 September 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr K Webber, solicitor of Wilshire Webb Staunton Beattie RESPONDENT Mr A Seton, solicitor of Marsdens Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C and Fakes AC

16 September 2009

10347 of 2009 Allcastle Homes Pty Ltd v Lane Cove Council

JUDGMENT

1 COMMISSIONERS: This is an appeal against conditions of consent granted under delegated authority by Lane Cove Council (the council) for a development application (D55/09) at 7 Christina Street, Longueville (the site).

2 The development application proposed removal of trees, including a Quercus robur (English Oak tree), construction of a driveway, front boundary fence and connection of stormwater to the street drainage system.

3 Condition 2 is the main condition in dispute between the parties. It states:

The English Oak tree must be retained and protected. A 1.8m high fence of chain mesh shall be erected a radial distance of not less than 4m from the trunk of the English Oak tree. The setback distance may be reduced to 3m from the trunk of the tree on the South side only. The fenced area shall not be used for the storage of building materials, machinery, site sheds, or for advertising and the soil levels within the fenced area shall remain undisturbed.

4 Conditions 1 and 30 will remain or be amended depending upon whether the English Oak tree is retained as required by Condition 2. The applicant contends that Condition 2 should be deleted and the removal of the English Oak tree approved.

5 The parties have agreed to an amended wording of Condition 22.

The site and its context

6 The site is on the corner of Christina and Kenneth Streets, Longueville. It is rectangular and has an area of 720.8sqm. The site is vacant with trees along the Christina Street boundary and a Cupressus sempervirens ‘Stricta’ (Italian Cypress) on Kenneth Street near a Right of Way (ROW) along the northern boundary of the site, which provides access across the site to a garage at the rear of the adjoining property to the east (5 Christina Street).

7 The English Oak tree is centrally located approximately 5.3 m from the southern Christina Street boundary.

8 The adjoining house to the north (42 Kenneth Street) is a detached dwelling setback about 10m from its front boundary. 5 Christina Street is a two storey dwelling with separate garage currently under construction. This house and the adjoining house at 3 Christina Street are setback about 4m from Christina Street. There are Lophostemon confertus trees (Brush Box) planted within the front verge of the site and the adjoining properties in Christina Street.

9 The other corners of Christina and Kenneth Streets are developed with a dwelling house (42 Kenneth Street), a church (47A Kenneth Street) and a house converted and incorporated into a convalescent hospital (45-47 Kenneth Street)

Planning Framework

10 The site is zoned Residential 2(a2) under Lane Cove Local Environmental Plan 1987 (LEP 1987). The proposal is permissible with consent.

11 The Code and Development Application Checklist for Dwelling houses, Fences, Private Swimming Pools and Outbuildings (the Code) contains controls relating to floor space ratio (FSR), height, solar access, energy efficiency, privacy and overlooking, building line, setbacks to side boundaries and landscaping. These controls would be relevant to any future development application for a dwelling on the site. However, approval for a dwelling is not sought as part of this application. Mr Webber, for the applicant, has indicated that a future dwelling is proposed which would be complying development under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the SEPP).

12 Cl 1.18(1)(e) of the SEPP provides that to be complying development, a development must:

e) not involve the removal or pruning of a tree or other vegetation that would otherwise require a permit or development consent for removal or pruning, unless that removal or pruning is undertaken in accordance with a permit or development consent.

13 Approval to remove the English Oak tree is required in order for a future dwelling to be complying development under the SEPP.

14 The Court visited the site and heard expert planning evidence from Mr C Blythe, for the applicant and Mr R Shankar, for the council. Ms C Mackenzie, for the applicant, and Mr P Maish, for the council, provided arborial advice. Mr J Clay, Director of Allcastle Homes, provided evidence in relation to the stormwater at 5 Christina Street.

The condition and contribution of the English Oak tree

15 Ms Mackenzie and Mr Maish agree that the English Oak tree is in good condition with no structural defects but some disagree on its health. Mr Maish stated that he had seen the tree on numerous occasions and, apart from some lower dead branches, the tree had a normal healthy canopy. Ms Mackenzie had only seen the tree in its deciduous state but concluded that the presence of large diameter deadwood in the canopy indicated it is only in fair health. An aerial photograph of the tree was tendered by the respondent as evidence of the tree’s health and canopy cover. That photograph shows an apparently healthy upper canopy. The on-site inspection confirmed the presence of dead branches in the lower portion of the canopy. Both experts agreed that there is no reason to remove the tree because of its health or condition.

16 In the aboricultural report prepared by Mr Bruce which formed part of the development application determined the English Oak tree to have a Safe Useful Life Expectancy (SULE) of 1A, that is, a ‘structurally sound tree located in positions that can accommodate future growth’ for more than 40 years. The experts agreed that this should be amended to 2A, i.e. a life span of between 15 and 40 years.

17 The experts agreed that the tree has limited public visual amenity due largely to the presence of the two Brush Box in Christina Street and the existence of other trees and shrubs on the block close to the English Oak tree including a number of conifers, a Camphor Laurel and several Oleanders. Under cross examination, Mr Maish stated that the removal of the other nearby trees on the block would increase the visual prominence of the English Oak tree whilst Ms Mackenzie stated that it wouldn’t especially change its amenity value. Neither expert adequately addressed the issue of visual prominence should the Brush Box decline due to construction damage from the driveway.

Constraints of the English Oak tree on a future dwelling

18 The experts disagreed on the minimum setback from the English Oak tree for a future dwelling. Mr Maish commented that Mr Bruce’s report gave the English Oak tree a long SULE but then went on to recommend the removal of the tree as it required a tree protection zone of 9 m and thus represented an unacceptable constraint on development. Mr Maish is satisfied that a setback of 4.5 m to a building would be satisfactory. When questioned on what method he used to determine this setback, he stated that this was based on his experience and what he considers to be a reasonable setback to facilitate construction. He stated that the formulations in British Standard BS 5837:2005 Guide for trees in relation to construction (the British Standard) or the Draft Australian Standard AS4970 Protection of trees on development sites (the Draft Australian Standard) would rarely be achieved with mature trees on residential allotments in the Lane Cove Shire.

19 Ms Mackenzie determined that the structural root zone of the tree is a radial offset of 3.6 m from the centre of the trunk and, using the British Standard and the draft Australian Standard, the tree protection zone (TPZ)) and the offset for any construction should be 9.6 m from the tree. This zone was marked out on site and extended several metres beyond the canopy of the tree. Ms Mackenzie recognised that incursions could occur within this zone provided appropriate construction techniques were used. She further stated that the impact on the tree would be dependent upon the conditions of the site such as the location of the roots, loss of root mass, species tolerance to disturbance, soil type, size, age and vigour of the tree and the presence of existing structures which may limit root growth.

20 Ms Mackenzie considered that the required setback would place unrealistic constraints on the site for a future development of a house particularly given the additional constraints imposed by the Eucalypt located towards the rear (north west) of 5 Christina Street. Both arborists were of the opinion that this tree was worthy of retention and that the location of any future dwelling, garage or driveway should take this tree into consideration. Mr Maish recommended that a setback of 5 m with Ms Mackenzie recommending a setback of 9.6 m. The actual tree protection zone, as delineated by a metal fence, was approximately 3 m from the tree.

21 The experts raised concerns over the health and long term viability of the Gum tree because of the works that have occurred within its growing area as part of the development of 5 Christina Street. These include the installation of the sewer and a detention tank. Mr Maish and Mr Clay held different opinions on where the sewer pipe had been located. The arborists agreed that it would be necessary to undertake further investigations and to wait and see if the health of the tree deteriorated before a decision on its future could be made.

22 The experts also disagreed on the setback from the Italian Cypress for a possible dwelling on the site. This tree currently has a protection zone of approximately 2 m. Mr Maish recommended a setback of 3 m with Ms Mackenzie recommending a 6 m setback.

23 Mr Blythe and Shankar held different opinions on the constraints that retention of the English Oak tree would impose on a future development. Mr Blythe was principally concerned that the retention of the tree would require a significant front setback, of about 14.3m from the Christina Road frontage. This would provide open space at the front southern end of the site, which provides little amenity in terms of solar access and privacy, and is not consistent with the setback of adjoining houses in Christina Street. It would restrict the amount of area at the rear northern part of the site for open space and/or the footprint of a dwelling to be provided on the site. He considered that access off Christina Street was appropriate given that Kenneth Street was a busier Road and that there were trees and a power pole along the Kenneth Street frontage. In his opinion, the English Oak tree placed an unreasonable constraint on the site.

24 Mr Shankar held the contrary view that the application did not include a dwelling and it was therefore not possible to determine whether it placed an unreasonable constraint on development of the site. Mr Shankar considered that the tree may be able to be retained within a setback of about 10m which was not considerably more than the minimum setback of 7.5 required by the Code and consistent with the setback of other houses in Kenneth Street and Christina Street. He considered that a house with adequate open space could be accommodated on the site and that access off Kenneth Street was feasible.

Impact of the driveway and the fence on the English Oak tree and the Brush Box

25 Mr Maish contends that the approved development, subject to the driveway being setback a minimum of 3 m from the English Oak tree will not have a significant detrimental impact on either the health or structural integrity of the tree. He also stated that the removal of the surrounding trees and shrubs would benefit the tree. He believed the roots of the English Oak tree to be largely contained on the northern side by a concrete footing that previously supported a fence for a tennis court. At the on-site hearing, a woody root from the tree was seen on the surface beyond the footing.

26 Ms Mackenzie estimates that the construction of a driveway 3 m from the tree and a setback of 4.5 m for a potential dwelling would represent a loss of 44% of the tree’s rooting environment. She contends that this will remove some of the tree’s structural roots and lead to a marked decline in its health. Based on these calculations, she recommends the removal of the tree if a house is to be developed on the site.

27 Neither arborist was concerned about the construction of the driveway between the two Brush Box trees on Christina Street. It was noted at the inspection that a trench appeared to have been recently dug within a few metres to the west of the easterly of the two trees. It is interesting to note that the applicant’s arborist seems satisfied with the set back from these trees despite their diameter being similar to that of the English Oak tree. The Brush Box to the west had a slightly thinning canopy.

Findings

28 The English Oak tree is a specimen worthy of retention. It could reasonably be expected to have a life expectancy, in its current situation, of up to 40 years and together with the Brush Box trees adds to the canopy of the locality and provides a degree of visual amenity from certain locations, which will be increased with the removal of other trees in the front setback. Both arborists agreed that there is no reason for its removal other than the constraints it may pose to a development of the site for a future dwelling.

29 The tree was deciduous at the time of the on-site inspection. An examination of the buds and branches showed some larger diameter deadwood in the lower part of the canopy but the majority of the canopy showed live buds and extension growth consistent with expectations for a tree of this age and species in this part of Sydney. The tree has unusually heavy branching in the lower part of the canopy. The construction and future use of the approved driveway would necessitate the removal of several large branches but would not necessitate the removal of the tree.

30 The arborists held different opinions on the impact of the driveway on the health of the tree due to the setback of 3 m. There are no conditions, other than the 3 m setback requirement, which specify construction techniques or protection measures to mitigate the potential impact. The driveway is required for a future development of the site, in the current application it is a driveway to nowhere and it provides access to a vacant site. Mr Webber submits that there needs to be a balancing between the retention of the tree and the reasonable development of the site. Within the context of the current application the arborists agree there is no need to remove the English Oak tree. Further given the concerns raised by Ms Mackenzie in relation to the impact of the driveway, that there may be other options for a driveway off Kenneth Street and that the driveway currently serves no purpose, we find that on balance the driveway should not be approved.

31 The main rationale for removing the tree is the constraints that it may pose on a future development of a dwelling on the site. However, the application does not include a proposed dwelling other than an indicative footprint. We accept that it would be difficult to place a footprint of this dimension on the site and provide the setbacks recommended by Ms Mackenzie from the English Oak, the Gum and the Cypress. There is a wide variation in the setbacks recommended by the arborists based on different methodologies. However, there is considerable uncertainty as to what setbacks are required given that neither arborist has investigated the actual location and distribution of the roots of these trees nor is a building is proposed.

32 Nevertheless, we do not accept that Mr Maish’s setback of 4.5m would be adequate, as it would require significant pruning of the canopy of the English Oak tree. Ms Mackenzie’s setback is based on the British Standard and Draft Australian Standard, however, these permit incursions within this zone. A setback, which retained the canopy, with pruning of the lower branches, may be appropriate if the driveway were relocated and appropriate construction techniques and protective measures were utilised. This may not be an excessive constraint given that a building line of 7.5m from the front boundary is required under the Code and the corner location of the site.

33 There is also uncertainty about the work, which has already been undertaken near the Gum tree, its ongoing viability and the constraint it may pose to a future development. The maximum site area and floor area permitted for a development to be complying under the SEPP is 360 sqm site area and 380 sqm floor area. The footprint proposed for the dwelling is about 215 sqm and the dwelling is proposed to be two storeys which would easily achieve the maximum floor area under the SEPP. The Code permits a maximum floor space ratio (FSR) of 0.5:1, which would equate to a two storey building with a floor plate of about 180sqm.

34 A different footprint may be able to be accommodated on the site with the tree retained. These are matters which would more appropriately be dealt with in a development application that may provide for the removal of the tree and a dwelling house. The balancing involved in the size and location of the dwelling and the retention of the tree could consider factors such the appropriate setback from Christina Street and Kenneth Street, the area of open space for the dwelling and solar access to it and to 5 Christina Street, driveway access, FSR and site coverage.

35 While the applicant has only sought to delete conditions of approval relating to the English Oak tree, it is an appeal under s97 of the Environmental Planning and Assessment Act 1979 and as such enables a review of the consent. For the reasons given above we find that the driveway and the removal of the English Oak tree should not be approved. We do not consider it appropriate that these be imposed as conditions of consent because they form a significant part of the development and would in effect constitute a refusal of the application. We therefore find that the application should be refused and the appeal dismissed.

Orders

36 For the above reasons the Orders of the Court are:

1. The appeal is dismissed.

2. The development application (D55/09) for removal of trees, construction of a driveway, a front boundary fence and connection of stormwater to the street drainage system at 7 Christina Street, Longueville, is refused.

3. The exhibits, except exhibits 1 and C, may be returned.

__________________
Annelise Tuor
Commissioner of the Court

__________________
Judy Fakes
Acting Commissioner of the Court