Drivilas v Ryde City Council

[2004] NSWLEC 458

Land and Environment Court

of New South Wales

CITATION:	Drivilas v Ryde City Council [2004] NSWLEC 458
PARTIES:	APPLICANT Drivilas RESPONDENT Ryde City Council
FILE NUMBER(S):	11416 of 2003
CORAM:	Tuor C.
KEY ISSUES:	Development Application :- Villa Homes Removal of trees Suitability of replacement trees
LEGISLATION CITED:	Ryde Planning Scheme Ordinance
CASES CITED:
DATES OF HEARING:	22 March and 11 June 2004
EX TEMPORE JUDGMENT DATE :	06/11/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr C Gough SOLICITORS Storey and Gough RESPONDENT Ms J Walsh SOLICITORS Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

11 June 2004

11416 of 2003 Drivilas v Ryde City Council

JUDGMENT

1 Commissioner: At the on-site hearing on 22 March 2004, I gave preliminary findings on this matter, which Ms Walsh, for Ryde City Council (council), articulated at the opening of today’s hearing. These findings can be summarised as:

i. the two liquid amber trees on the site are on the Significant Tree Register of the council and they, and the fiddle wood, are protected by the Tree Preservation Order

ii. the liquid amber trees are visually significant, being large trees that are seen from a distance which make a contribution to the amenity of the area because of their greenery and their size.

iii. the Tree Preservation Order provides that if a significant tree is removed it should be replaced.

iv. based on the arborial evidence and the constraints of the site and the development, the two liquid amber trees can be removed and replaced and the fiddle wood either retained or replaced with a suitable tree.

v. amended plans with suitable replacement trees are to be provided.

2 The amended plans were prepared and further evidence from the arborists, Mr Stacy, for the council, and Mr Ford, for the applicant, has been provided. The key disagreement between the experts is whether the proposed replacement trees and their locations are suitable.

3 The site is zoned residential 2(a) under Ryde Planning Scheme Ordinance (RPSO) and villa homes are a permissible use. The Urban Housing Development Control Plan (DCP) provides that villa homes should maintain the existing character of the area. Part of that character is its landscape character, which includes canopy trees.

4 The development of villa homes should not necessarily preclude the ability to provide canopy trees of sufficient size to be of benefit not only to the site itself, but also to the character of the surrounding area. What I previously decided was that the three existing trees on the site could be removed but that suitable replacement trees should be planted. In reaching that decision I did not state that the replacement trees had to be the same size, shape, form or in the same location as the existing trees to be removed. However, the replacement trees should provide amenity and reflect the character of the wider area. Therefore they should be of sufficient size and have sufficient space around them to ensure that they can grow and survive and that they are not something that interferes with the amenity of the occupants on the site.

5 In relation to what was proposed at the start of today’s hearing, I accept Mr Stacey’s evidence, for the council, that having large trees in small spaces has inherent conflicts and is not something that is appropriate.

6 The amendments that have now been put forward by the applicant as conditions will meet the concerns that have been raised. Condition 3 proposes two canopy trees with sufficient space around them. While these trees are not the same as the liquid ambers, they are of a size that should be read within the wider area and, with the other proposed landscaping, will be consistent with the character of the area. On that basis I accept that the application is capable of being approved with the conditions proposed.

Orders

The orders of the Court are:

1. The appeal is upheld.

2. The development application to demolish the existing dwelling and to construct three (3) villa houses at 13 Haig Avenue, Deniston East, is determined by the grant of development consent subject to the conditions in Annexure “A”.

3. The exhibits, except exhibits H and 12, may be returned.

_____________________
Annelise Tuor
Commissioner of the Court