Ecol Pty Ltd v Inner West Council

[2017] NSWLEC 1496

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ecol Pty Ltd v Inner West Council [2017] NSWLEC 1496
Hearing dates:	16 August 2017
Date of orders:	12 September 2017
Decision date:	12 September 2017
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders:  (1) The appeal is upheld. (2) Development consent is granted to DA D//2016/174, subject to the conditions of consent attached as Annexure ‘A’. (3) The exhibits are returned, with the exception of Exhibits 1 and D.
Catchwords:	DEVELOPMENT APPLICATION: removal of a prescribed tree - property damage
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013 Leichhardt Development Control Plan 2013
Cases Cited:	Nil
Texts Cited:	Leichhardt Council Tree Management Technical Manual
Category:	Principal judgment
Parties:	Ecol Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: Ms N Hammond (Applicant) Mr S Turner (Respondent) Solicitors: Cordato Partners Lawyers (Applicant) Inner West Council (Respondent)
File Number(s):	2017/115562
Publication restriction:	Nil

Judgment

Background

1. COMMISSIONER: Ecol Pty Ltd (the Applicant) has appealed a decision by Inner West Council (the Respondent) to refuse its development application D/2016/174 for removal of a Liquidamber tree (Liquidamber styraciflua) (referred to hereafter as the Liquidamber) located within the grounds of the Baille Hunter Church in Annandale (the Subject Site). The appeal is made pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (‘EP&A Act’).

2. The Subject Site is located on the corner of Johnston St and Collins St Annandale and is identified as a Heritage Item, within a Heritage Conservation Area, on the Heritage map within Leichhardt Local Environmental Plan 2013 (‘LLEP’).

3. The Liquidamber is located in the south east corner of the Subject Site, and adjacent to its western boundary with the adjacent lot at 19 Collins St.

4. The appeal was not the subject of a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the ‘LEC Act’) proceeding directly to hearing on 16 August 2017.

5. An inspection of the Subject Site was undertaken prior to the commencement of the hearing. No objectors made submissions to the Court during the on-site inspection and hearing.

Statutory considerations

Environmental Planning and Assessment Act 1979

6. Section 79C(1) of the EP&A Act states:

“79C Evaluation

(1) Matters for consideration--general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.”

Leichhardt Local Environmental Plan 2013

7. The Subject Site is zoned SP2 Infrastructure under the LLEP and is a place of public worship. The proposed development is permissible with consent under the provisions of LLEP.

8. Relevant to the proceedings, cl 5.9 of LLEP titled “Preservation of trees or vegetation" states:

“5.9 Preservation of trees or vegetation

(1) The objective of this clause is to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation.

…

(3) A person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation to which any such development control plan applies without the authority conferred by:

(a) development consent, or

(b) a permit granted by the Council.

9. As noted above, the Liquidamber is located within a Heritage Conservation Area. Under the provisions of cl 5.10 of LLEP, development consent is required to demolish or move or alter the exterior of a tree within a heritage conservation area.

Leichhardt Development Control Plan 2013

10. The Subject Site is also subject to the provisions of Leichhardt Development Control Plan 2013 (‘LDCP’).

11. In applying the provisions of LDCP, s 79(C)(3A) of the EP&A Act is relevant:

“(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards--is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards--is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.”

12. Within the LDCP, the following sections are of particular relevance.

1. Section C1.12 “Landscaping”, which includes the following:

1. Objective O2 for non-residential development which is:

“To ensure that landscaping:

a. complements the character of the surrounding area and reinforces local character;

b. ensures a high level of visual attractiveness when viewed from the street;

c. softens the visual impact of development, particularly on adjoining and nearby residential uses;

d. contributes to the amenity of the residents and visitors;

e. provides adequate on-site recreation space for workers; and

f. increases the environmental performance of a development.”

2. Control C21 concerning landscaping, which requires that:

“Landscaping reflects the dominant character of trees and vegetation in the surrounding neighbourhood, including height, spread and type.”

3. Control C26, concerning tree removal (residential and non-residential development), which states that:

“An arborist report is to be submitted where the proposed development is within the Tree Protection Zone (TPZ - as defined in Australian Standard AS 4970 – ‘Protection of trees on development sites’) of a tree on an adjacent site.”

While the Liquidamber is not located on the adjacent site, an arborist report has been prepared by the Applicant in support of the development application.

2. Section C1.14 “Tree Management”, which includes the following:

1. Objectives:

“O1 To protect trees and their contribution to the visual, social, cultural and environmental amenity of the Leichhardt LGA.

O2 To facilitate a healthy tree canopy across the Leichhardt LGA.

O3 To outline Council’s provisions regarding the management, removal and replacement of trees in the Leichhardt LGA including pruning works, arborist reports and conditions of consent.

O4 To prescribe trees in accordance with Clause 5.9 of the Leichhardt Local Environmental Plan 2013.”

2. Controls, including the following:

1. C1.14.2 that provides a list of trees that can be removed without approval. The Liquidamber is not one of the listed species under this control.

2. C1.14.3 that provides the definition for a prescribed tree under LDCP, as follows:

“A prescribed tree is:

a. a tree of more than six (6) metres in height and having a trunk diameter of more than 200 millimetres when measured at a height of 1.4m from the ground, growing on privately owned land; or

b. a tree that is or forms part of a Heritage Item or is within a Heritage Conservation Area; but

c. excludes any tree listed as an exempt species as outlined within C1.14.2 - Work that may be carried out without Council approval.”

The Liquidamber meets this definition and so is a prescribed tree under LDCP.

3. C1.14.7 provides criteria for assessment of development applications for the removal of prescribed trees. This states, inter alia that:

“C13 In considering whether to grant a tree permit or development consent to remove a prescribed tree, Council will consider whether the tree is unsuitable for site conditions. A tree may be considered by Council to be unsuitable for site conditions if, as set out in the Tree Management Technical Manual, Council is satisfied of any of the following:

…

c. the tree poses a threat to human life or property;”

4. C1.14.7, also provides that:

“C14 If the tree is said to be the cause of existing or future damage Council may require the applicant to submit a report prepared by a Consulting Engineer to establish the damage is or is likely in the future to be caused by the tree and to examine feasible alternatives for the remediation of the impacts without the removal of the tree.”

A report was prepared on behalf of the Applicant by a consulting engineer to establish whether damage is or is likely in the future to be caused by the Liquidamber and to examine feasible alternatives for the remediation of the impacts without the removal of the tree.

5. C1.14.9, concerning conditions of consent, and which provides that:

“C17 A tree permit or development consent to undertake work to a tree may be subject to conditions including any of the following:

…

c. a requirement for the planting of a replacement tree will be at the discretion of Council and may be imposed in order to implement the objectives of this part of the Development Control Plan. The pot size of any replacement tree which may be required will be at the discretion of Council and will generally be based on the size of the tree that has been approved for removal and the characteristics of the subject property.”

3. Section C2.2 Distinctive Neighbourhoods, which identifies that the Subject Site lies within the Johnston Street Distinctive Neighbourhood (one of the Annandale Distinctive Neighbourhoods). The Desired Future Character for this area includes the following control:

“C8 Maintain the prevalence of mature, regularly spaced street trees as well as mature and visually significant trees on private land."

4. Leichhardt Council has also developed a Tree Management Technical Manual to supplement the development controls contained in Part C1.14 of LDCP. This manual applies to all development sites upon which trees are located and where a proposed development will impact trees, including their removal and pruning. This case concerns the proposed removal of a tree and so the provisions of the manual are applicable.

5. The Tree Management Technical Manual sets out matters for consideration when determining any proposal for the removal of trees. These include:

soil type and depth or other prevailing environmental conditions;

insufficient space available for future growth and development;

inappropriateness of the position relative to underground or overhead services, structures or buildings.

6. The Tree Management Technical Manual also notes that:

“these considerations are to be firmly established in an arboricultural report prepared by a consulting arborist (AQF Level 5) in accordance with section 3.3 - appropriate assessment methodologies of this manual. It must be demonstrated that the identified issues cannot be remediated by other reasonable practical means.”

Matters for resolution in this appeal

13. Based on the above consideration of the statutory framework I am satisfied that:

1. the Liquidamber is a prescribed tree under the LDCP;

2. the removal of the Liquidamber is permissible on the Subject Site, with development consent, and consistent with the requirements of LLEP and LDCP;

3. while the Liquidamber does contribute to the canopy cover and amenity of the local area, it does not form part of the curtilage of the church which is a heritage item;

4. Control C13 of s14.3 Tree Management of LDCP requires that in order to grant consent for the removal of the Liquidamber, Council, or the Court on appeal, must consider whether it is unsuitable for its site conditions; and

5. a tree may be considered to be unsuitable for site conditions if, as set out in the Tree Management Technical Manual, Council , or the Court on appeal, is satisfied, inter alia, that the tree poses a threat to human life or property.

14. As a consequence, I view the principal questions for resolution in this case as:

1. Does the Liquidamber represent a threat to human life or property?

2. Are there feasible alternatives available to the removal of the Liquidamber?

3. If no alternatives are available, is removal of the Liquidamber justified?

15. During the hearing, these questions were addressed in the expert evidence provided by the following individuals, each of whom had participated in the preparation of individual expert reports, and in the case of the arborists, a joint expert report:

1. Mr Charles Rickard, RH Consulting Engineers, Consulting Engineer, for the Applicant;

2. Ms Margot Blues, Consultant Arborist, for the Applicant;

3. Mr Sven Mogensen, Landscape Assessment Officer and Arborist, Inner West Council, for the Respondent.

Is the Liquidamber a threat to human life or property?

16. It was common ground between the parties, supported by the expert evidence of arborists, that the Liquidamber was in good health and sound structural condition, and that there were no obvious structural defects that would warrant its removal.

17. The experts further agreed that the tree did not pose a threat to human life.

18. The parties did not agree as to whether the tree presented a threat to property.

19. The Applicant said that the Liquidamber was the cause of existing and potential future damage to property on the lot adjacent to the Subject Site at 19 Collins St.

20. Two reports had been prepared for the Applicant by Consulting Engineer, Mr Charles Rickard, to establish whether the Liquidamber has caused, or is likely in the future to cause, damage to property and, if so, to examine feasible alternatives to the removal of the tree that could the mitigate any threat to property posed by the Liquidamber. The reports were tendered as evidence at the hearing.

21. Mr Rickard reported that:

1. There is clear evidence that the root system of the Liquidamber is damaging both the western boundary fence of Subject Site, including the retaining structure upon which it sits, as well as the concrete driveway adjacent to that fence at 19 Collins St.

2. Excavations in the vicinity of the driveway confirmed the presence of a number of large roots from the Liquidamber, which Mr Rickard said provided evidence that the tree had been responsible for significant cracking and lifting of portions of the driveway along its full length.

3. While two smaller trees on the Subject Site may also be having an impact on the driveway, their impact is not to the same extent as the impact of roots from the Liquidamber.

4. Excavation had identified a large root travelling along the rear, south east, wall of the building on the adjacent lot.

5. A single crack was identified in the wall of one flat with in the building on the adjacent lot. However, the Mr Rickard reported that it was not possible conclusively to attribute that damage to tree root activity.

22. The damage to the fence and driveway on the adjacent lot was confirmed during the site inspection and consisted of:

1. Displacement of the retaining wall upon which the boundary fence sits.

2. Uplifting of the driveway concrete slab in several places.

23. During the site inspection, the arborists concurred that the roots made visible by excavation near the fence and driveway, were likely to be from the Liquidamber and that these were likely to have been the cause of the damage to the driveway and fence structures.

24. There is no definition of the word “property” in the LLEP, and there was debate between the parties as to whether this damage constituted damage to property.

25. The Respondent argued that property should be interpreted as damage to a building rather than to structures such as fences and driveways.

26. The Applicant said that a common language interpretation of the term property would not restrict its use to just the building, and would properly include fixtures or structures upon the land including the driveway and fence structure.

27. Having considered the positions of each party, I accept the position of the Applicant that a common language interpretation should be adopted in this case and the term “property” should be interpreted to include the driveway and fence structures.

28. Consequently, I consider that the damage evident to the driveway and fence, attributed by Mr Rickard to the Liquidamber roots, constitutes damage to property, and that the Liquidamber, through the action of its root system, is a threat to property.

Are there feasible alternatives to removal of the Liquidamber?

29. Control C1.14.17 requires that where a consulting engineer’s report confirms that a tree is causing, or has the potential to cause in the future, damage to property, the report should include consideration of feasible alternatives for the remediation of the impacts without the removal of the tree.

30. Mr Rickard considered alternatives to tree removal and proposed that a tree root barrier be installed to a depth of one metre along the boundary between the Subject Site and the adjacent lot, to restrict the future growth of roots from the Liquidamber.

31. Ms Blues had noted in her expert report that the remediation works recommended by Mr Rickard to repair and protect the damaged driveway, including installation of a root barrier at the boundary of the Subject Site, would have a serious impact on the Liquidamber’s health and stability. This boundary is located approximately 1.8m from the trunk of the Liquidamber.

32. During the hearing the arborists agreed that this alternative would cause significant damage to the structural root zone of the Liquidamber and that this would threaten the viability of the tree.

33. In response to questions from the Applicant during the hearing, Mr Morgensen proposed further alternatives for consideration. These included:

1. placing a root barrier at the edge of the building on the adjacent lot to mitigate the risk of potential future damage from the roots of the Liquidamber to the building;

2. replacing the driveway with an elevated wooden structure, with supporting piers placed so as to avoid damage to the Liquidamber root system, thus mitigating the potential for future damage from the Liquidamber’s roots; and

3. replacing the concrete driveway with a bitumen driveway built on a bed of gravel that would be more easily maintained in time as the Liquidamber and its associated root system grew.

34. In response to these proposals, Mr Rickard, said that:

1. the use of an elevated wooden structure above the driveway would not be feasible in terms of maintaining access for vehicles other than small cars to the garage at the end of the driveway;

2. the use of a bitumen driveway on a gravel base would require the removal of material to a depth of 200mm and risked causing damage to the root system of the Liquidamber. Mr Rickard added that even if the works did manage to avoid damage to the root system, future root growth was likely to cause damage to the bitumen and gravel driveway. This would require further ongoing repairs, imposing ongoing maintenance costs that would need to be borne by the owners of 19 Collins St. Mr Rickard said that, in his opinion, for both of these reasons, this alternative was not feasible; and

1. the proposal to install a root barrier along the edge of the building at 19 Collins St was not feasible because, notwithstanding its capacity to mitigate future impacts on the building, it would not mitigate potential future damage to any replacement driveway, whether of concrete or bitumen and gravel construction.

35. Mr Rickard concluded that, in his opinion, there was no feasible alternative to the removal of the Liquidamber that would mitigate the risk of future damage to the driveway and fence structures.

Is removal of the Liquidamber justified?

36. The LDCP Tree Management Technical Manual requires, inter alia, that consideration be given to the inappropriateness of the position of a tree relative to underground or overhead services, structures or buildings. It further says that these considerations are to be firmly established in an arboricultural report prepared by a consulting arborist (AQF Level 5) in accordance with section 3.3 – “Appropriate Assessment Methodologies” and that it must be demonstrated that the identified issues cannot be remediated by other reasonable practical means.

37. An arboricultural report had been prepared by Ms Blues, who holds an AQF Level 5 qualification. Ms Blues’ report concluded that the removal of the Liquidamber was supported because the natural depth of the soil in the area is considered to be shallow, restricting the space available to the Liquidamber roots for future growth.

38. Ms Blues further concluded that the natural growth of the roots would, as a consequence of the restricted space, place pressure on structures above it, such as the driveway on 19 Collins St, leading to predictable damage to the driveway in the future.

39. Mr Rickard said that, given the advice of the arborists during the site inspection that the tree had the potential to double in size, there was also the potential for the tree’s roots to cause future damage to both the building on the adjacent lot as well as to the driveway and fence.

40. Having considered evidence, I am satisfied that:

1. The Liquidamber is healthy and poses no threat to human life.

2. The root system of the Liquidamber is currently causing damage to property including the driveway of the adjacent lot, and to the fence structure on the boundary with the Subject Site;

3. There is a risk of future damage to property from the root system of the Liquidamber, including to the driveway, boundary fence and building on the adjacent lot. This risk will increase through time as the Liquidamber is anticipated to grow to double its current size.

4. Alternatives to removal of the Liquidamber have been considered by the experts, and none of the alternatives is considered feasible.

41. Consequently, I conclude that the Liquidamber is unsuitable for its site conditions and that its removal is justified.

What conditions should accompany the consent to remove the Liquidamber?

42. Section C1.14.9 of the LDCP Tree Management Technical Manual provides controls with respect to conditions of consent that may accompany a consent to undertake works to a tree.

43. Specifically, Control C17 within that section says that a development consent to undertake work to a tree may be subject to conditions including a requirement for the planting of a replacement tree. It notes that the imposition of such a condition will be at the discretion of Council, or the Court on appeal, and may be imposed in order to implement the objectives of this part of LDCP.

44. The Applicant’s said, and I concur, that a condition requiring the planting of a replacement tree is consistent with the requirements of s 79C(3) of the EP&A Act that requires a consent authority to be flexible in applying the provisions of a DCP through allowing reasonable alternative solutions that achieve the objects of the control.

45. A replacement tree would contribute to the achievement of two of the objectives for tree management under clause1.14 of LDCP. These are:

“O1 To protect trees and their contribution to the visual, social and cultural and environmental amenity of the Leichhardt LGA;

O2 To facilitate a healthy tree canopy across the Leichhardt LGA.”

46. Control C17 also states that the pot size of any replacement tree which may be required will be at the discretion of the consent authority and will generally be based on the size of the tree that has been approved for removal and the characteristics of the subject property.

47. The parties submitted draft conditions for my consideration following the hearing. These include a requirement for planting of a 75 litre container size replacement tree.

48. I accept the Respondent’s proposal that a pin oak tree (Quercus palustris) would be suitable replacement tree for the Liquidamber following its removal.

Conclusion

49. Based on the above considerations, I conclude that:

1. the removal of the Liquidamber, as proposed by the Applicant under DA D/2016/174, is justified; and

2. development consent, with conditions, should be granted to application.

Orders

50. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to DA D/2016/174, subject to the conditions of consent annexed hereto as Annexure ‘A’.

3. The exhibits are returned with the exception of Exhibits 1 and D.

……………………….

Michael Chilcott

Commissioner

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Decision last updated: 12 September 2017