Chang v Kur-ring-gai Council

[2022] NSWLEC 1240

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chang v Kur-ring-gai Council [2022] NSWLEC 1240

Hearing dates:

Conciliation conference on 12 April 2022

Date of orders:

5 May 2022

Decision date:

05 May 2022

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders that:

(1) The appeal is dismissed.

Catchwords:

TREE APPLICATION – critically endangered ecological community – appeal against Council’s refusal to grant consent to remove a tree

Legislation Cited:

Land and Environment Court Act 1979, s 39

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, cl 12

Texts Cited:

Ku-ring-gai Development Control Plan 2015

Ku-ring-gai Council, Tree Assessment Guidelines to Prune or Remove Trees on Private Property and Council Managed Land

Category:

Principal judgment

Parties:

Richard Chang (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

R Chang (Self-represented) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Ku-ring-gai Council (Applicant)

File Number(s):

2021/354246

Publication restriction:

No

Judgment

1. The applicant, Richard Chang, lodged an application to Prune or Remove Trees on Private Property (Tree Application) with Ku-ring-gai Council (the Council) requesting the removal of two mature Sydney Red Gum (Angophora costata) trees at 30 Mount William Street, Gordon. Mr Chang is the owner and resident of the neighbouring house at 32 Mount William Street, and has concerns about the potential safety implications of the continued presence of these trees which overhang his home and property. The application was filed with the consent of the owners at 30 Mount William Street.

2. On 15 September 2021, The Council determined this Tree Application by way of ‘refusal with pruning consent’. This gave approval for the removal of Tree 1 but refused the removal of Tree 2, however granted consent to prune Tree 2 in accordance with details specified in the permit within the Tree Application Determination notice, RMTR21/02889. These pruning works have been undertaken and completed in accordance with this permit. Tree 2 is approximately 22m in height with a canopy spread of 14m.

3. Irrespective of the pruning works already undertaken, Mr Chang is appealing the refusal for removal of Tree 2 to the Court pursuant to cl 12 of the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Tree SEPP), requesting the Court exercise its power under s 39 of the Land and Environment Court Act 1979 (LEC Act) to grant permission to remove Tree 2 in accordance with his original Tree Application, or alternatively to prune to the property boundary.

4. These Class 3 proceedings commenced on site as a conciliation conference pursuant to s 34 of the LEC Act, over which I presided. Following the site view, the parties agreed, under s 34 (4)(b)(ii), to the conciliation conference being terminated and to me disposing of the proceedings on the basis of what occurred at the conciliation conference, and the evidence filed with the Court to date. With the further consent of the parties, Mr Chang was given the opportunity to file expert arboricultural evidence by Thursday 14 April 2020. He declined this invitation and so it is upon the expert evidence of the Council’s arborist, Gary Palmer, that I now rely.

5. In his Statement of Facts and Contentions (SOFAC), Mr Chang submits that on 26 November 2019, several large branches fell from Tree 2 onto his house and courtyard, causing extensive and costly damage to his property. He subsequently maintains that this tree causes an unacceptable risk to both property and life, particularly given the history of actual branch failure and the high level of pedestrian traffic from occupants and visitors of 32 Mount William St beneath the remaining canopy of Tree 2.

6. Mr Chang elected to bring no expert evidence to these proceedings to substantiate his concerns and relies on the fact of the 2019 branch failure event.

7. At the site view, Mr Gary Palmer, the Council’s arboricultural expert, affirmed the evidence of Mr Michael Garton, Tree Management Officer, which is provided in the SOFAC in Reply. This evidence states that no arborist report has been provided to demonstrate that Tree 2 poses a risk to property and life, and that in the Council’s own assessment, following the permitted branch pruning, Tree 2 is in good health, does not exhibit any structural issues, is not likely to fail, and should not be removed. In the opinion of Mr Palmer, the application is not based on any of the reasons for tree removal set out in the Tree Assessment Guidelines to Prune or Remove Trees on Private Property and Council Managed Land (Guidelines).

8. Mr Palmer further submitted at the site view that Mr Chang’s suggestion to prune the tree to the boundary is not only unnecessary but could result in structural defects, rendering a tree that is currently deemed low risk at a much higher risk of failure.

9. In addition, the Council submits that, pursuant to the Ku-ring-gai Development Control Plan 2015 (KDCP) Part 13, Tree 2 is native vegetation, is included on the Biodiversity Values Map and is classified as Sydney Turpentine Ironbark Forest, a critically endangered ecological community (CEEC).

10. It is my considered opinion that the Council’s position is justified and that that the request to remove Tree 2, which has biodiversity value as part of a CEEC, and has been assessed to be in good health with no apparent structural issues, is unreasonable and unnecessary. Further, in the absence of expert evidence to the contrary, I accept the Council’s submission that the alternative of pruning to the property boundary is unacceptable due to the likelihood of creating a risk of structural failure where one does not currently exist.

11. Accordingly, the appeal is dismissed.

12. The Court orders:

1. The appeal is dismissed.

​​​​​​​……………………….

E Washington

Acting Commissioner of the Court

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Decision last updated: 05 May 2022