Cox v Ku-ring-gai C - [2005] NSWLEC 536

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Cox v Ku-ring-gai C [2005] NSWLEC 536

PARTIES:
APPLICANT
Alister and Judy Cox

RESPONDENT
Ku-ring-gai Council

CASE NUMBER: 10603 of 2005

CATCH WORDS: Development Application

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Ku-ring-gai Planning Scheme Ordinance
State Environmental Planning Policy No. 53
Development Control Plan 47 - Water Management
Development Control Plan 40 - Construction and Demolition Waste Management
Ku-ring-gai Dual Occupancy Development Control Code.
Development Control Plan 31 (DCP 31). - Access

CORAM: Hussey C

DATES OF HEARING: 01/09/2005

DECISION DATE: 29/09/2005

LEGAL REPRESENTATIVES

APPLICANT
Mr J. Hones, solicitor
of Hones Lawyers

RESPONDENT
Mr S. Patterson, solicitor
of Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Hussey
29 September 2005
10603 of 2005 Alister and Judy Cox v Ku-ring-gai Council
JUDGMENT

Background.

This appeal relates to council's refusal of a development application for the construction of a detached dual occupancy dwelling at 27 Ayres Road, St. Ives, which necessitates the removal of several mature trees and vegetation on the site.

Insofar as a number of issues were initially identified, subsequent amendments to the proposal addressed some of these, so that the outstanding issue for the appeal concerns the balance between retention of mature vegetation, relative to the construction of the new dual occupancy dwelling.

The site.

The site is described as Lot 5 in DP 13482. It is located on the northern side of Ayres Road, St.Ives and has an area of 1696 square metres. The site contains an existing residence, which has direct frontage onto Ayres Road. The site extends through to Canoon Road, to which it has an 18.08m frontage.

At the rear of the existing dwelling there is an existing elevated deck and pool area. To the south of this is a freestanding garage.

The proposal.

The proposed development involves the demolition of the existing garage and construction of a new dwelling and detached garage towards the rear of the existing dwelling to create a detached dual occupancy.

The access to new development is to be via at crossing and access way directly onto Canoon Rd.

The proposal also involves the removal and trimming of a number of mature trees on the site and adjacent to the site.

Planning controls.

Ku ring gai Planning Scheme Ordinance; under which the site is zoned Residential A and dual occupancy is not permitted.
State Environmental Planning Policy No. 53 ( SEPP 53) ; which is the prevailing control that allows dual occupancy in residential zones, subject to satisfactory environmental impacts.
State Environmental Planning Policy No. 55 ( SEPP 55 ).
Development Control Plan 47 ( DCP 47 ). - Water Management.
Development Control Plan 40 ( DCP 40). - Construction and
Demolition Waste Management.
Ku-ring-gai Dual Occupancy Development Control Code.
Development Control Plan 31 (DCP 31). - Access.

The Evidence.

Detailed evidence on behalf of council was presented by councils landscape architect Ms T. Beaven, and neighbours Mr T. Mackle ( 7 Kirby Place) and Mr J. Waugh ( 6 Kirby Place).

Mr I. Glendenning provided planning evidence on behalf of the applicant and Mr D.Ford provided arborist evidence.

The site area of this property is relatively large with the dwelling house erected towards the southern (Ayres Rd.) boundary, which allows consideration of the dual occupancy development on the vacant land towards the rear of the property. However there is a spread of mature vegetation on this vacant area that effects prospective building platforms and this includes the following trees, as described by Mr Ford:
Tree 176 (T 176) Coryumbia maculata (Spotted Gum).
T 176 is a semimature specimen in good health and in fair structural condition with considerable potential for further growth. Safe useful life expectancy ( SULE ) is assessed as 3B, short, 5 to 15 years, may live for more than 15 years but would be removal for safety or nuisance reasons.
Tree 180 ( T180 ) Eucalyptus saligna (Sydney Blue Gum).
T 180 is in good health and poor structural condition. Safe useful life expectancy (SULE) on is assessed as 4B, transient, less than 5 years, dangerous tree due to damage and structural defect.
Tree 174.1 Quercus robur (English Oak).
T174.1 is a semimature specimen in the good health and in fair structural condition. Safe useful life expectancy (SULE) is assessed as 2D , medium, 15 to 40 years, could be made suitable for retention in the medium term by remedial care. The tree has been suppressed in the upper crown by the adjacent Tree 169 (Sydney Blue Gum) on the neighbouring property, so that the Crown is biased towards the east and not of good form.
Tree 169 Eucalyptus saligna (Sydney Blue Gum).
T 169 is located on the neighbouring property to the west of the site. It is in good health and in fair structural condition. Safe useful life expectancy (SULE) is assessed as 2D, medium, 15 to 40 years, could be made suitable for retention in the medium term by remedial care.
The threshold issue concerns the landscape impacts in terms of whether the proposed removal of three large, mature canopy trees as a result of the proposed new dwelling and driveway, will have an unacceptable, detrimental impact on the landscape character of the surrounding area. This arises because the available vacant land for the new dwelling necessitates removal of the T 176, T 180, T 174.1 and trimming of T 169.

In response to this issue, the applicant relies significantly on the evidence of Mr Ford, whose assessment of the condition and form of the subject trees leads him to the conclusion that they should be permitted to be removed, in the interests of public safety, to enable the new dwelling to be constructed.

Considering the opposing positions presented regarding these subject trees, conferencing between the respective experts initially agreed that by shifting the building footprint some 600mm to the east, away from the trunk of T 169, then the risk to this tree and damage from its overhang would be within acceptable limits. Based on my observations the view, I accept this conclusion, although I consider it would desirable for some trimming of the damaged branches which overhang the subject property.

With respect to T 176, Mr Ford notes that it is located in the centre of the site and requires removal for the development. He says that ;

this species (Spotted Gum) is regarded as being too large for private gardens, since it is capable of growth to 45 m with the trunk diameter of 2m and is regarded as being prone to the shedding of large branches. The subject tree has a major fork in the upper crown which appears weak, and the tree already has a history of branch breakage,
the tree is not particularly prominent in the landscape from viewpoints to the east of the site since it is viewed against the background of the major specimen of Sydney Blue Gum on the neighbouring property to the west, Tree 169. It is not prominent from the road, being located approximately 37m from the front boundary of property.
the removal of the trees will not be detrimental to the landscape character of the surrounding area. The effect would be minor and should be set against a likely removal of the tree in the future due to safety or nuisance concerns.

With respect to T 180, Mr Ford notes that ;

it has been severely damaged by the loss of a major branch in the past with the resulting wound becoming decayed and there is a significant cavity in the heartwood of the main trunk at a height of approximately half height of the tree. Inspection of the tree shows that the cavity has been enlarged by birds and additional damage has been caused to the bark and sapwood around the wound. The tree has generated prominent ribs to each side of the wound as successive layers of woundwood are killed by the fungal disease.
there is no doubt that the defect is of sufficient severity to weaken the upper trunk and render it subject to failure. In addition, major broken branches are evident in the crown, large dead branches are present and there is a weak codominant junction in the upper crown,
the tree is hazardous and should be removed irrespective of the proposed development. Its hazardous state outweighs any effect on the landscape which may occur as the result of its removal.

Mr Ford's assessment of T 174.1 is that;

there is a major junction in the lower trunk at the attachment of a larger lateral branch. The branch supports a large portion of the crown and extends over the garden in the subject site. The junction is weak, with a slight bark inclusion present. A prominent ridge which extends down the southern side of the trunk to ground level is a sign that either the tree has attempted to strengthen the weak junction, or that root decay has affected the lower trunk. The tree requires extensive pruning to reduce weight and windload on this weak area.
this species is not native to the area,
the removal of this poorly formed tree would not have a detrimental impact on the landscape character of the area.

Insofar as Mr Glendenning supports the proposal on planning grounds, he defers to the arborists recommendations on the condition of the trees. Consequently he deals with the landscape quality assessment on the basis that having regard to the number of trees being maintained and the proposed landscape treatment of the site, the removal of the three trees is not of such significance as to warrant refusal of the application. In particular he says there are 46 trees located on the site, adjacent to the site and adjoining properties and within the nature strip. Of the 46 trees identified, 12 trees are proposed to be removed and 34 retained. Therefore he considers the proposal represents an appropriate balance between development and retention of existing vegetation.

Against this, Ms T. Beaven, council's landscape architect argues against the removal of the existing trees to enable dwelling house to be constructed. She considers the trees make an important contribution towards the landscape quality of the area and should be retained. Otherwise an alternative building footprint should be considered, which allows retention of these contributory trees.

In order to determine the threshold issue concerning the relative balance between appropriate development and retention of existing vegetation, various arguments were presented at the on-site hearing. From this, the parties were invited to make further submissions regarding the approach to be adopted, to determine an appropriate balance that should be applied in this regard.

Accordingly Mr Hones submissions are summarised as follows:

What are the reasonable planning expectations for the site ?
Will the removal of the tree, or trees, assist in achieving the aims and objectives relevant to the application?
Does retention of the tree, or trees render the site unable to be developed based on the reasonable planning expectations ?
Does the proposed development comply with the relevant planning controls?
Will an alternative design achieve the same development potential?
Where the impact arises as a consequence of proximity to vegetation, is that vegetation located on adjoining land ( i.e. land not owned by the person seeking consent for the development)?
What is a safe useful life expectancy of the tree?
Is the tree, or vegetation a threatened species?
Is the tree of high significance in the landscape?
Is the tree appropriate for its location?
Is there provision for the replacement of the tree or augmentation of other vegetation in the proposal to mitigate the loss of the tree?

Apart from this, Mr Hones acknowledges that the question of assessment is a fine one to be weighed against the planning expectations to carry out particular forms of development and the need ( or want ) to retain trees. He refers to the matter of Quirante Holdings v Ku-ring –gai Municipal Council (2004) NSWLEC 134, where Bly C said:
"It is clear to me that the code should not be interpreted to mean that trees, even significant trees, should be retained at all costs. A balanced approach is required, I take into account not only existing vegetation but also the provision of well-designed and landscape housing development which takes efficient use of existing infrastructure."
Against this, Mr Patterson submits that "reasonable planning expectations" is not an appropriate starting point, but can only be the conclusion drawn from full consideration of the relevant matters. Accordingly, he says that the following matters (as summarised) should be considered:

The presence of significant trees on a site can be a major consideration as to the suitability of the site for development, just as the existence of a heritage building can be a constraint on the use of the site,
There is a need to assess the impact of the potential loss of significant trees as a result of proposed development - see section 79C (1) (b), (c) and (e) of the EPA & Act,
It is erroneous to proceed from a starting point that assumes specific development can take place on a site on the basis of "reasonable planning expectations",
The question of what are the "reasonable planning expectations" of a site is only able to be determined following an examination of the range of planning considerations that would have to be assessed for the type of development been considered,
The fact that the site is among the sites subject to a State Environmental Planning Policy or some other planning instrument that permits specified development does not necessarily mean that the particular site will be suitable for that development after assessment of those matters listed under Section 79 C. of the EP & A Act. The matters that can arise for consideration are wide and can include;
the characteristics of the site details,
the likely impact of the development,
suitability of the site,
the consideration of the proposal against the relevant planning instruments,
the public interest.

From these submissions, it appears to me that the following approach in the circumstances of this case is fair and reasonable. Firstly, reference to the planning framework should provide guidance on what development opportunities are permitted for the site, based on its zoning and other relevant development controls. Ideally this planning framework includes realistic provisions for classification and retention of significant vegetation, associated with managing change in the local environment.

Acknowledging that some changes are inevitable as building proposals are made to incorporate more environmentally sustainable developments, then the role of existing vegetation as a constraint to permitted developments can be assessed. These constraints may include:

the classification/significance of the vegetation,
location of the vegetation,
the amenity contribution of the vegetation in the current and ongoing circumstances,
condition, form and longevity of the specimen,
maintenance regimes.

Reference to the planning framework confirms that this site is zoned Residential "A " under the KPSO and its relatively large area of 1696 square metres provides development opportunities. These opportunities are available via SEPP 53, which overrides the provisions of the KPSO. The objectives of SEPP 53 include:
(a) broaden the choice of building types and locations available in the housing market, and
(b) make more efficient use of existing infrastructure and services, and
(c) reduce the consumption of land for housing and associated urban development of the urban fringe, and
(d) be of good design.
In addition to this, the objectives for dual occupancy are:
(a) to create opportunities for two dwellings to be developed on a single allotment of land, and
(b) through the other provisions of this Policy, to ensure that dual occupancy development is:
(i) designed and assessed with a full understanding of the opportunities and constraints of each site, and
(ii) designed and assessed having adequate regard for the design principles contained in Part 5.
In this case, the proposal comfortably complies with the minimum area provisions, boundary setbacks, floor space ratio provisions and other numeric controls contained within the relevant planning framework. Also, the site is not within any heritage/conservation area, so that the initial expectation for dual occupancy is a reasonable in the circumstances.

Accordingly the principal constraint concerns the existing vegetation, in terms of the necessary removal of T 176, T 180, T 174.1, to enable the new dual occupancy. However these trees are not identified or classified in any formal manner as trees of particular significance. Presumably significant trees would be listed in a Significant Tree Register, which would place them in a higher classification for maintenance and retention.

An associated concern then is the location of the trees, as to whether they are located on public or private land. In the absence of any compelling evidence, I would be inclined to give diminished weight to the retention of (non-classified) trees in less prominent positions on private land, where they inhibit the implementation of residential development strategies, unless extraordinary circumstances are demonstrated.
Notwithstanding this, the detailed merit assessment requires that consideration should be given to the contribution of the tree/trees to the visual amenity and character of area, within the context of the immediate setting. If there are other surrounding trees/vegetation, which limits the contribution of the particular specimen being assessed, then it's removal may be supported. An associated matter concerns the value of the type of the vegetation, in terms of it being a native or introduced species. It also appears to me, that the condition, form and longevity of the species as to be considered in this regard.

In applying this criteria, the provision of detailed tree assessment information is essential. Accordingly Mr Ford undertook detailed field assessment of these particular trees and the applicant relies on his conclusions. Apart from this, Ms Beaven expressed her preference of the retention of the trees based on their landscape amenity contribution. However this preference is substantially based on the original tree assessment report prepared by Ms Howden (Footprint Green), which accompanied the original development proposal.

Considering that this report (Footprint Green) appears to be a much broader, generalised report covering the 46 specimens on the site and that the applicant did not rely on this assessment, preferring the more detailed, specimen specific assessment of the subject trees by Mr Ford, I am inclined to give more weight to his evidence. Mr Ford attended the on-site hearing and explained the basis for his assessment and was subject to examination and maintained his conclusions that it was appropriate to remove these trees. However no other arborist evidence was presented at the hearing for examination, and in the circumstances I rely on Mr Fords detailed assessment.

The next consideration concerns community attitudes to maintenance regimes and risk assessment for mature trees. As it is obvious that the lifespan of mature trees is limited, consideration is warranted to the maintenance programs to maximise the life of appropriate trees both in the public and private domains so that there is acceptable level of risk to persons and property. In the current case, it is apparent that the subject trees have not been subject to regular maintenance and that they now present significant risks to persons and property. Whilst this risk may have been minimised and accepted in the past due to the area vacant land within the site, the detailed arborist assessment now available, indicates to me that the public interest/safety would be well served by the removal of these trees, as recommended by Mr Ford. As no details of programs to maintain mature trees or replace those in decline was presented, I am satisfied that Mr Fords conclusion, based on his risk assessment is reasonable to the circumstances.

I also note the neighbours objections from Kirby Place were related to possible increased stormwater drainage overflows. However reference to the council assessment report indicates that this matter has been assessed by Council engineers, who consider it satisfactory to be covered by conditions of consent. These conditions consent require on-site drainage control, so that the rate of discharge from the development is not increased and I accept that this is a reasonable approach. This does not however improve or address any pre-existing drainage problems that exist in councils drainage system in this neighbourhood.

Conclusions.

Having consider the evidence, the submissions and undertaken a view, I consider this application merits conditional consent. This property has a relatively large area of 1696 square metres, which has development opportunities consistent with the aims and objectives of SEPP 53 to broaden choice of building types, make more efficient use of existing infrastructure/services by constructing another dwelling on the single allotment of land.

Even though the proposal satisfies the these objectives and comfortably complies with the numeric controls, detailed consideration has been given to the constraints imposed by the existing, mature trees designated T 176, T 180 and T 174.1. These trees have been subject to the detailed assessment of their condition by arborist Mr Ford, which indicates their form, condition, longevity and resultant contribution to landscape amenity is significantly compromised in the current context. In the absence of alternative arborist evidence, which can be tested, I am satisfied to rely on this evidence to permit the removal of these trees to facilitate the dual occupancy development.

In reaching this conclusion, I also considered whether an alternative building footprint could be adopted to retain the trees, however the position of the trees and other site constraints preclude this. Therefore, I now consider that an appropriate balance is achieved by allowing this dual occupancy development, in accordance with provisions of SEPP 53.

Court Orders.

1 The appeal is upheld.
2Development consent is granted to DA 251/05 for the construction of a dual occupancy development at 27 Ayres Road, St. Ives subject to the conditions in Annexure A.

3 The exhibits may be returned except for 2, A, B, C, D and E.
________________________
R Hussey
Commissioner of the Court

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Cox v Ku-ring-gai C [2005] NSWLEC 536

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