Cordato v City of Canada Bay Council

[2007] NSWLEC 327

Land and Environment Court

of New South Wales

CITATION:	Cordato v City of Canada Bay Council [2007] NSWLEC 327
PARTIES:	APPLICANT Anthony J Cordato & Colleen Comerford – Cordato RESPONDENT City of Canada Bay Council
FILE NUMBER(S):	10209 of 2007
CORAM:	Brown C
KEY ISSUES:	Appeal :- modification application - removal of trees
DATES OF HEARING:	5/06/07
EX TEMPORE JUDGMENT DATE:	5 June 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr G Newport, barrister SOLICITORS Cordato Partners RESPONDENT Ms P Whitford, solicitor SOLICITORS Maddocks

JUDGMENT:

- 4 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

5 June 2007

10209 of 2007 Anthony J Cordato & Colleen Comerford – Cordato v City of Canada Bay Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the determination of an application by the City of Canada Bay Council (the council) to modify Development Application 437/1999 for alterations and additions to a dwelling at 9 Wolseley Street Drummoyne (the site).

2 The proceedings were heard as an On Site Hearing on 5 June 2007 and the judgement reflects the contents of the Statement of Basic Facts and the findings given on-site.

3 The modification application addressed a number of different matters however the only matter in dispute is condition 3. This condition states:

3. Landscaping
The Ficus Hillii planted between sheds 2 and 3 are considered inappropriate species to be planted in such a position adjacent to the boundary and are to be replaced with the advanced species of a native variety capable of attaining a maximum height of 3 – 4 metres at maturity.

4 The three Ficus Hillii are located on the southern boundary between two recently constructed sheds, the rear fence and a brick retaining wall. The trees are located within a garden bed 4.2 metres in length and a width ranging from 1.75 metres to 2.14 metres. The trees were planted in October 2006 in an advanced state and are currently in the order of 3.5 metres in height.

5 The single issue in the proceedings is the ability of the enclosure to contain the roots of the Ficus Hillii so that the roots would not damage the adjoining property at 34 Collingwood Street.

6 Mr Ben Richards, a landscape architect provided evidence for the council. Ms Cheryl Heslop of 34 Collingwood Street and Ms Sophia Spanos on behalf of her mother Ms Maria Spanos of 11 Wolseley Street provided additional evidence on site. Ms Heslop raised concern over potential future damage to her property from the tree roots and the ability for the applicant to maintain the trees at a height of 3.5 metres. If the trees grew higher Ms Heslop stated that there would be an unacceptable impact on solar access to her property. Ms Spanos supported the concerns of Ms Heslop and provided photographs of the area where the trees are located during construction.

7 Mr Peter Castor an arborist and Mr Charles Rickard, a structural engineer provided evidence for the applicant.

8 Mr Richards stated that Ficus Hillii has an opportunistic root system capable of exploiting favourable growing conditions. For this reason the species needs to be controlled in an above ground structure or a concrete or a concrete structure in one continuous form. He notes that there are two ways a root system can damage a masonry structure. The first is a weakness in the wall, and in this case the vertical expansion joint. The second is the materials used for the construction and method of finishing the bedding and joints. In his opinion, both are inadequate in this case.

9 Mr Castor states that the trees will be restricted in growth potential by surrounding masonry walls, which create a virtual planter box. The footings for the planter box walling are substantial and have been constructed on heavily compacted subsoil rock with negligible opportunity for root outbreak. In his opinion the planter box is unlikely to be damaged by future root growth due to the heavy engineering of the foundations and walling.

10 Mr Rickard states that he has inspected a trial hole adjacent to the boundary wall. This confirmed that the footings are constructed at least 50 mm into shale. In his opinion the only way a root can travel into 34 Collingwood Street would be to penetrate the shale and with a required bearing capacity of around 300-400 Kpa, this will not occur. Mr Rickard also states that the quality of the mortar means that any breakdown of the mortar would only possibly commence in approximately 70 years. He describes this possibility as very small. In his experience roots will only penetrate a wall if a fracture has already occurred. Mr Rickard considers that the likelihood is negligible because the wall is founded on rock. Mr Rickard also considers that the vertical expansion joint does not provide the opportunity for roots to travel into the adjoining property.

11 In balancing the competing evidence I accept that the trees can remain. While there can be no certainty that the roots will not travel into the adjoining property, I am satisfied that the risk is so small that it does not warrant the removal of the trees. I accept the evidence of Mr Castor and Mr Rickard that tree growth will be restricted due to the limited growing area and the structure housing the trees is of sufficient strength to restrict the movement of any roots outside this area notwithstanding the opportunistic root system.

12 I also accept that the applicant’s offer of a condition limiting the height of the trees to 3.5 metres. It is clearly enforceable and not overly onerous based on the evidence of Mr Castor that any trimming is likely to be required only up to twice a year.

13 For these reasons the appeal is upheld and condition 3 modified to provide for the retention of the trees to a maximum height of 3.5 metres.

14 The Orders of the Court are:

1) The appeal is upheld.
2) Condition 3 of Development Application 437/1999 for alterations and additions to a dwelling at 9 Wolseley Street Drummoyne is deleted and replaced with:
3. Landscaping
The Ficus Hillii planted between sheds 2 and 3 are to be retained and maintained at a maximum height of 3 5 metres.

3) The exhibits are returned.

__________
G T Brown
Commissioner of the Court