Charalambos H v Ku Ring Gai Council
[2004] NSWLEC 106
•03/19/2004
Land and Environment Court
of New South Wales
CITATION: Charalambos H v Ku Ring Gai Council [2004] NSWLEC 106 PARTIES: APPLICANT
Charalambos HRESPONDENT
Ku Ring Gai CouncilFILE NUMBER(S): 11454 of 2003 CORAM: Tuor C. KEY ISSUES: Development Application :- Construction of a swimming pool
impact on treeLEGISLATION CITED: CASES CITED: DATES OF HEARING: 19/03/04 EX TEMPORE
JUDGMENT DATE :03/19/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr J Hones, Solicitor
Hones Lawyers
Ms J Smith, Solicitor
Wilshire Webb
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
11454 of 2003
19 March 2004Tuor C
- Applicant
- Respondent
1 This is an appeal against the refusal by Ku Ring Gai Council (the council) of a development application for alterations and additions to an existing house at 1 Mahratta Avenue, Wahroonga.
2 The Statement of Basic Facts prepared by Mr. Falson, town planning expert for the council, describes the site, its context, the relevant planning controls and the history of the development application.
3 There were two main aspects of proposal that were in disagreement between the parties:
i) the fence around the site, and
ii) the location of the pool in relation to the Sydney Blue Gum Tree on council’s nature strip in Lucinda Street.
4 The first issue was resolved on site. The planning experts, Mr Glendenning, for the applicant, and Mr Falson, agreed to the wording of a condition for the design of the fence.
5 In relation to the tree, before the hearing the plans had been amended to move the pool further away from the tree; six metres from the centre of the tree to the copping of the pool, and to remove paving between the pool and the fence. While council acknowledged that these changes were an improvement, they did not resolve the issue. The main concern was whether the application complied with s5.7.1 of Development Control Plan 38 (DCP 38), in particular the Assessment Criteria that:
- Swimming pools should be sited to minimise the impact on existing trees both on site and on adjoining properties.
6 And the Design Requirement that:
- Pool excavation should not be beneath the canopy of trees subject to Council’s Tree Preservation Order.
7 The Court heard arborial evidence from Mr English, for the council, and Mr Ford, for the applicant. The main areas of disagreement between the experts were:
i) whether the pool would have an adverse impact on the health and longevity of the tree through loss of its absorbing root system, and
ii) whether the location of the pool beneath the canopy of the tree was appropriate because it may increase the likelihood for limbs to drop and would necessitate increased maintenance of the tree.
8 In relation to the first matter, both experts agreed that the tree would not die as a result of the proposal but held different opinions as to the likely impact on its health. Mr Ford had undertaken root investigation which in his opinion indicated that “ roots have not colonised the area of the proposed excavation to any great extent” from this he concluded that there would be no impact on the health of the tree.
9 Mr English held the different opinion that the tree could lose as much as 30% of its absorbing root system and while this is within the tolerance of the tree i.e. it would not die, it would “predispose the tree to dehydration, pest attack and induce the formation of dead wood”.
10 Mr English also concluded that this would result in the tree requiring more maintenance; on a bi-annual basis, to remove the dead wood and avoid it dropping on the pool, which he described as a “target zone”. He said that council would not be able to undertake maintenance so regularly and contractors could not undertake it.
11 Mr Ford’s opinion was that as the health of the tree was not likely to be affected by the pool, there would be no increase in the likelihood of limbs dropping. Although he recognised that “overhanging branches are already over the recreation area. An increase in usage of the area would increase the hazard, but could be addressed by pruning as and when needed”.
12 These divergent opinions probably represent the best and the worst-case scenarios. I do not accept that there will be no impact on the tree, as described by Mr Ford. Nor do I accept that it will be as marked, as described by Mr English. However, both experts agree that the development of the proposed pool is within the tolerance of the tree.
13 The location of the pool is within the canopy of the tree and clearly does not satisfy the Design Requirement in DCP 38. The question is whether it meets the Assessment Criteria of “minimising the impact on the existing trees”. The agreed evidence of the arborists was that the pool location would not result in the death of the tree; the evidence in relation to its impact on the health of the tree was inconclusive. There is no evidence that a more suitable location exists for the pool, or that there is other design changes that can be made to the proposed pool. The application has already been amended to address its impact on the tree and the applicant has accepted stringent conditions of approval. I am therefore satisfied that the pool has been designed to minimise its impact on the tree.
14 In reaching this conclusion I note that there will be a conflict between the use of the pool and the tree, if not from dropping limbs but from leaves and loss of sun. Permitting the pool in this location is on the basis that the applicant recognises this conflict and that this approval is not a rationale for removal of the tree.
Orders
1. The appeal is upheld.
3. The exhibits, except exhibits A and 2, may be returned.2. Development application No. 1344/03 for alterations and additions to an existing dwelling, including installation of an in ground swimming pool and the erection of a boundary fence at 1 Mahratta Ave, Wahroonga, is approved subject to conditions at Annexure “A”
____________________
Annelise Tuor
Commissioner of the Court
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