Devenish-Meares v Ku-ring-gai Council

[2010] NSWLEC 1142

Land and Environment Court

of New South Wales

CITATION:

Devenish-Meares v Ku-ring-gai Council [2010] NSWLEC 1142

PARTIES:

APPLICANT
Stephanie Devenish-Meares
Stephen Devenish- Meares

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10198 of 2010

CORAM:

Fakes C

KEY ISSUES:

DEVELOPMENT APPLICATION :- Tree retention and protection

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

DATES OF HEARING:

16/06/2010

EX TEMPORE JUDGMENT DATE:

16 June 2010

LEGAL REPRESENTATIVES:

Mr J Hones, soilicitor
Hones La Hood

Mr A Hudson, solicitor
Wiltshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

16 June 2010

10198 of 2010 Devenish-Meares v Ku-ring-gai Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against a refusal by Ku-ring-gai Council (the council) of development application 580/09 for the demolition of an existing dwelling and the construction of a duel occupancy (dwellings one and two) at 10A Ivey Street Lindfield.

Background

2 This matter is stage 1 of a four-stage development. The other relevant matters are appeal 10199 of 2010 for stage 2 (DA0582/09) regarding a Torrens Title subdivision of the proposed duel occupancy in stage1; appeal 10200 of 2010 for stage 3 (DA0583/09) for construction of a third dwelling as a detached dual occupancy with dwelling two; and appeal 10203 of 2010 for stage 4 (DA0584/09) for a Torrens Title subdivision of dwellings two and three. The council states that there is non-compliance with statutory requirements for stages 2-4 as a result of stage 1 being refused. The remaining matters are yet to be determined.

Issues

3 The primary reasons for the refusal of the development applications relate to the proposed removal of two trees and the inadequacy of the landscape plans with respect to compliance with Rural Fire Service requirements and with BASIX. The latter contention has been resolved and the applicant will prepare minor amendments to the landscape plans to address these issues.

4 The outstanding issue concerns two trees initially recommended by the applicant’s first consulting arborist to be removed due to the likelihood of unacceptable impacts of the proposed works on the trees’ root zones. Council objects to their removal as they are considered to be healthy, locally indigenous trees with no obvious structural defects. The applicant contends that the trees are not proposed for removal and that appropriate construction techniques can be implemented to ensure that there will be no long-term deleterious impacts on the trees. The dispute now rests on the adequacy of the proposed tree protection measures.

The trees and the site

5 The trees are Tree 27 a Eucalyptus haemastoma (Scribbly Gum) and Tree 60 a Eucalyptus resinifera (Red Mahogany). The Scribbly Gum is growing on a sandstone outcrop in the central eastern section of the site, to the east of the existing dwelling and the Red Mahogany is growing at the bottom of a slope at the southern end of the site which adjoins Edenborough Park. The site falls towards the rear southern boundary and there are numerous sandstone outcrops.

6 For Tree 27, the main issue is the impact on the roots of the excavation and other works for the proposed driveway and turning circle for dwellings 1 and 2. The proposed landscaping in the vicinity of the tree is also a concern. For tree 60, the main concerns are the landscaping treatment and the impact on the roots of the construction of the southern section of dwelling 2. Concerns about crown lifting/ canopy pruning in order to meet RFS requirements were also raised for both trees however it was acknowledged that compliance with these requirements is necessary.

The hearing

7 Mr P Castor gave expert arboricultural evidence for the applicant and Mr I English appeared for the respondent.

8 The matter commenced as a conciliation conference in accordance with s 34 of the Land and Environment Court Act 1979 (the Court Act). During this stage, agreement was reached between the parties in regards to Tree 60, the Red Mahogany. Conditions are to be developed to ensure that any landscaping in the vicinity of the tree retains the existing ground levels and is sympathetic to the long-term health of the tree. The southern section of dwelling 2 is to be of pier and beam construction in order to minimise impacts on tree roots. Architectural plans are to be revised to show this.

9 As no agreement could be reached between the parties’ arborists with respect to the impact of the proposed development on Tree 27, the conciliation conference was terminated. The parties agreed to me hearing and disposing of the matter in accordance with s 34(4)(b) of the Court Act.

10 As the proposed development is permissible with consent, the parties agreed not to tender the planning controls and the hearing proceeded directly to the expert arboricultural evidence.

11 The difference in opinion relates to a strip of soil approximately 1m wide and 7 m long between an existing rock platform to the east of the existing dwelling (and on which the dwelling is partly constructed) and the proposed excavation for the driveway and turning circle. Several azaleas are growing in this area and there is the stump of a Banksia.

12 Mr Castor contends that this excavation and another incursion for a guest room in dwelling 1 will result in a loss of less than 10% of the calculated tree protection zone for this tree and as such will not pose any long term risk to the tree’s longevity. He proposes an offset in an area of soil to the south of tree 27 in which eucalypt roots (assumed to be from Tree 27) have been exposed by a root mapping exercise. The offset is proposed to be protected by raising the level of the garage for dwelling 2 and using pier and beam construction.

13 Mr English contends that roots are likely to be present within the area in question. He cites the presence of the Banksia stump as providing evidence of deeper soil between the rock outcrops. He considers that the relatively small incursion into the calculated tree protection zone is no guarantee of a minor impact given the complexity of the landform in which the tree is growing, in particular the sandstone outcrops. He asserts that there is too much uncertainty with respect to the long-term prospects for the tree’s health. He is also concerned that excavation will interfere with roots accessing bedding planes and associated water.

14 He stated that whilst the proposed incursion is unlikely to kill the tree, it would result in undesirable levels of stress. His opinion is that the excavation should be moved to the west by about 1 m to the position of what appears to be an existing vertical cut through the rock platform. He also suggested changes to the layout of the garage for dwelling 2.

15 In the opinion of planners who were in attendance, relocation of the building and driveway and changes to the layout of dwelling 2 would have major design ramifications for the entire project.

16 Both arborists acknowledged the potential detrimental impacts of the proposed landscaping plans and agreed that these could be modified to minimise any impacts to the remaining root zone of the scribbly Gum.

Findings

17 After hearing from the arborists and viewing the site, I am satisfied that whilst some roots are likely to be present in the area of soil in question, the proposed development will not cause undue harm to the tree and therefore the appeal is upheld.

18 However, this finding is contingent on the preparation of a detailed Tree Protection Plan in accordance with AS4970-2009 Protection of Trees on Development Sites. The plan is to include but not be limited to specifications for tree protection, site-supervision and monitoring, appropriate hold-points and reporting as well as measures for managing the root zones of trees 27 and 60 during and after construction.

19 Plans are to be modified to show the changes in levels and construction methods as described in this judgement and agreed to on site. Landscape plans are to be revised to ensure that there are no changes in the existing grades of the root zones of trees 27 and 60 that are not directly impacted by the construction of the dwellings and the driveway. The landscaping plans are to be revised to ensure that the proposed plantings are compatible with ensuring the long-term health of both trees.

20 Therefore, for the reasons outlined above, I conclude that development application 0580/09 for the demolition of the existing dwelling and the construction of dwellings 1 and 2 can be approved, subject to the preparation of a detailed Tree Protection Plan and the revision of the relevant plans. The parties are to prepare conditions of consent to be sent via e court by the close of business on 15 July 2010. If agreement is reached on the conditions and if they reflect the findings in this judgment, I will then be in a position to issue formal orders. Should there be any disagreement between the parties, the matter is set down for a mention on 16 July 2010 at 9.30 am. If agreement is reached, the parties are to advise the listings manager and the mention date will be vacated.

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