Elith v Ku-ring-gai Council

[2024] NSWLEC 1757

Land and Environment Court

New South Wales

Medium Neutral Citation:

Elith v Ku-ring-gai Council [2024] NSWLEC 1757

Hearing dates:

6 August 2024

Date of orders:

22 November 2024

Decision date:

22 November 2024

Jurisdiction:

Class 1

Before:

Douglas AC

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) All exhibits retained.

Catchwords:

Appeal against refusal of permission for tree removal – Leyland Cypress competing with Turpentine tree – no current indications of negative impacts – negative impacts unlikely in the mid-term future – appeal dismissed

Legislation Cited:

Biosecurity Act 2015,

Electricity Supply Act 1995

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979, s 39

Roads Act 1993

Rural Fires Act 1997

Ku-ring-gai Local Environmental Plan 2015

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.2, 2.6, 2.7, 2.9, 2.11, 2.12, Pts 2.3, 3

Uniform Civil Procedures Rules 2005

Texts Cited:

Ku-ring-gai Council, Tree Assessment Guidelines.

Ku-ring-gai Council, Urban Forest Policy, 18 February 2020

Ku-ring-gai Development Control Plan 2024

NSW Rurual Fire Service, 10/50 Vegetation Clearing Code of Practice for New South Wales, 4 September 2015

Category:

Principal judgment

Parties:

Michael Elith (First Applicant)
Lucinda Alder (Second Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
M Elith (Self-represented) (First Applicant)
L Alder (Self-represented) (Second Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2023/331853

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Michael Elith and Lucinda Alder (the applicants) own a property at 90 Kintore Street, Wahroonga. On 7 July 2023, the applicants applied to Ku-ring-gai Council (Council), seeking a permit for the removal of a Leyland Cypress tree (Cupressocyparis leylandii ‘Leighton Green’) (the tree) from their rear yard.

2. The application was refused by Council on 2 August 2023. Mr Elith and Ms Alder appealed the decision to the Land and Environment Court of NSW (LEC) on 19 October 2023. The respondent is Ku-ring-gai Council.

3. A s 34 conciliation conference, initially held onsite on 29 April 2024, was terminated without agreement, hence the matter returned to Court for directions for a final hearing.

The hearing – Onsite and Hornsby Court

4. The hearing commenced onsite at the applicants’ property on 6 August 2024. The applicants, who were self-represented, were accompanied by Mr Martin Peacock, arborist. Council was represented by Ms Rose, Solicitor, who was accompanied by Council’s tree manager, Mr Gary Palmer, arborist. Mr Palmer had assessed the tree and refused permission for its removal.

5. The applicants’ relatively large irregular shaped property was zoned R2, Low Density Residential pursuant to the Ku-ring-gai Local Environmental Plan 2015 (KLEP). The tree was located near the rear boundary which extended from east, south-east to west, northwest. To the north and northeast, the property was bordered by a large Council Reserve, Claude Cameron Grove, zoned RE1, Public Recreation, which was heavily vegetated near the applicants’ rear boundary. To the north-west, the zoning was E2, Environmental Conservation, while the applicants’ east side boundary curved around in the shape of a fingertip and faced southwest where it joined the front boundary.

6. The tree was located near the middle of the rear boundary. It was about 8 metres (m) tall with a fairly even canopy spread of 3.5 - 4m and trunk diameter at breast height (DBH) of about 270 mm. The tree was growing close to and under the canopy of a mature Turpentine tree (Syncarpia glomulifera).

7. On advice from Mr Peacock, the applicants submitted that the tree had the genetic potential to reach 20m or more and would rapidly grow to damage the canopy of the Turpentine tree and reduce the health and growth of the Turpentine tree as a result of competition for nutrients and water. Mr Peacock contended that Council’s decision should be informed by arboricultural best practice, which would be served by removing the tree before it inevitably caused damage to the Turpentine tree.

8. Mr Palmer refuted this argument. He claimed the tree’s growth was suppressed and would continue to be suppressed by insufficient access to sunlight, but the tree was otherwise healthy and would not compromise the Turpentine tree’s health or structure. To illustrate the point, Mr Palmer indicated another much larger Leyland Cypress on the property, almost double the height of the tree, that had sunlight unencumbered by neighbouring trees and a third Leyland Cypress tree growing with partially obstructed sunlight, the height of which was about halfway between the other two. Mr Palmer said the tree failed to satisfy Council criteria that allowed for tree removal.

9. The hearing was adjourned and reconvened at Hornsby Court. Both parties made written and oral submissions and Ms Rose commenced with the Planning framework.

Framework for the decision

10. The Land and Environment Court Act 1979 establishes the Court’s power on appeals at s 39. In making this decision, the Court has all the relevant functions and discretions of Council - the body that made the original decision now being appealed. Thus, the Court is bound by the same planning framework and by any specified assessment procedure under the Council’s planning controls (s 39(2)). Fresh or additional evidence may be given on the appeal (s 39(3)). At s 39(4), the Court is required to consider “…any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.” Upon consideration of all the evidence, the Court may form different conclusions than those originally reached.

Tree removal – general

11. The appeal is brought pursuant to s 2.12 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), which is formed under the jurisdiction of The Environmental Planning and Assessment Act 1979 (the EP&A Act). The appeal was lodged with the LEC as a Class 2 Application, but the matter was subsequently transferred to the Class 1 jurisdiction.

12. Section 2.12 of the Biodiversity SEPP provides that an applicant for a permit may appeal to the Land and Environment Court against the refusal by a council to grant the permit and that any such appeal is to be made within 3 months after the date on which the applicant is notified of the decision or within 3 months after the council is taken to have refused the application (whichever is the later).

13. The Biodiversity SEPP includes the following relevant definitions at s 2.2:

clear vegetation, includes—

(a) cut down, fell, uproot, kill, poison, ringbark, burn or otherwise destroy the vegetation, or

(b) lop or otherwise remove a substantial part of the vegetation.

…

permit means a permit issued by a council under Part 2.3.

…

vegetation means a tree or other vegetation, whether or not it is native vegetation.

14. Section 2.6 lists, ‘Clearing that requires permit or approval’, including, at s 2.6(1), “A person must not clear vegetation in any non-rural area of the State to which Part 2.3 applies without the authority conferred by a permit granted by the council under that part.”

15. There is a general exemption from any consent requirement for clearing at s 2.7 of the Biodiversity SEPP:

2.7 Clearing that does not require permit or approval

…

(3) A permit or approval is not required under this Chapter for;

(a) the removal of vegetation that the council is satisfied is a risk to human life or property, or

16. The framework for vegetation removal is set out in Pt 2.3 of the Biodiversity SEPP, ‘Council permits for clearing of vegetation in non-rural areas’. Section 2.9(1) provides that this part applies to vegetation that is declared by a development control plan (DCP) to be vegetation to which this part applies.

17. Permit requirements for vegetation removal vary between local government areas and a DCP may make the declaration in any manner, including by reference to species, size, or location of vegetation, or the presence of vegetation in an ecological community or in the habitat of a threatened species (s 2.9(2)).

18. Under s 2.11 of the Biodiversity SEPP, ‘Miscellaneous provisions relating to permits’, an application for a permit is to be made in the form and manner required by the council (s 2.11(1)(a)) and council is to determine an application for a permit within 28 days after the date on which the application was duly made (s 2.11(4)).

Ku-ring-gai Development Control Plan 2024

19. Part 13 of the Ku-ring-gai Development Control Plan 2024 (KDCP) covers ‘Trees and Vegetation Preservation’, the Introduction of which includes, “Ku-ring-gai’s urban forest includes both exotic and non-endemic native species as well as 24 native vegetation communities”.

20. This Part defines requirements and responsibilities with respect to the protection, retention and replacement of trees and other vegetation in Ku‑ring‑gai by:

“(iii) providing controls in relation to the management and long term survival of Ku-ring-gai tree and other native vegetation resource; and

(iv) establishing a framework for the submission of applications for tree and other vegetation works in Ku-ring-gai.”

21. Objectives of the Part 13 of the KDCP are:

“1. To manage Ku-ring-gai’s tree and vegetation resources in a sustainable manner.

2. To protect and enhance biodiversity values and identify replenishment opportunities.

3. To recognise, protect and enhance the aesthetic and heritage values of trees.

4. To secure and maintain local character and amenity.

5. To sustain and enhance the tree canopy.

6. To prohibit unnecessary injury to, or destruction of, trees and vegetation.

7. To encourage responsible management of trees and vegetation within an urban environment.

8. To protect the stability of waterways.”

22. This part is made pursuant to Part 3 of the Biodiversity SEPP, Chapter 2, Vegetation in Non-Rural Areas, Part 2.3 and prescribes the trees and other vegetation to which these clauses apply. A person who contravenes, or causes or permits to be contravened, the provisions of the Act and of this Part are guilty of an offence under the provisions of the Biodiversity SEPP, Chapter 2, Vegetation in Non-Rural Areas.

23. Injuring a tree or other vegetation does not require consent under this Part, where actions are required or authorised under separate legislation, such as bush fire hazard reduction work authorised by the Rural Fires Act 1997, vegetation clearing under the 10/50 Vegetation Clearing Code of Practice, or works prescribed by the Electricity Supply Act 1995, Roads Act 1993, or Biosecurity Act 2015.

24. Controls for Tree and Vegetation Work, at Part 13.1 of the KDCP, note the prescribed tree and vegetation that are protected by Part 3 of Biodiversity SEPP, Chapter 2, Vegetation in Non-Rural Areas, Part 2.3 and this section of the KDCP, include tree, other vegetation, and native vegetation, which are defined in the Dictionary, at Part 1B of KDCP. The definition of a tree is “a perennial plant with at least one self-supporting woody, fibrous stem, whether native or exotic, which is 5 metres or more in height or a plant that has a trunk diameter of 150mm or more measured at ground level”.

25. Under ‘Actions that cause injury’, at Part 13.1 of the KDCP, the injury of any tree(s) or other vegetation protected under this DCP is prohibited without the written consent of Council, except in accordance with the exemptions prescribed in Part 13.2. Nine categories of ‘Actions that cause injury’ are listed in Part 13.1 at Section 3, the first of which is “i) removing including cut down, take away, clearing or transplant a tree(s) or other vegetation from its place of origin”.

26. Part 13.2 of the KDCP, ‘Exemptions for tree and vegetation works’, explains when Council approval is required to carry out tree and vegetation works, pursuant to Part 3 of Biodiversity SEPP, Chapter 2, Vegetation in Non-Rural Areas. These exemptions do not apply on land that is a heritage item or within a heritage conservation area. Works on heritage items and within heritage conservation areas are addressed within Part 13.3.

Exemptions

27. The following are exempt works under Part 13.2 of the KDCP:

“Tree branches directly over roof lines

i) removal of tree branches which directly overhang the roof of a residence or commercial building, if pruned back to the nearest branch junction or collar to remove from the roofline.

ii) detached garages, carports and ancillary buildings are not included in this exemption.

Note: Pruning is to be consistent with the Australian Standard for Pruning of Amenity Trees (AS4373-2007) and is not to result in a detrimental impact to the future health or stability of the tree or compromise the form of the tree. For example, removal of all branches from one side of a tree over a roof line would not be exempt.

1 Trees and other vegetation within 3m of an existing dwelling

i) trees and other vegetation within 3m of any existing dwelling on the same property are exempt. The 3m distance is measured from the centre of the trunk of the tree / base of the plant at ground level to the external wall of the dwelling.

- provided the owner of the land on which the trunk of the tree is located is in agreement and gives consent prior to the tree works.

Note: Trees (Disputes between Neighbours) Act 2006 may apply.

ii) trees and other vegetation within 3m of verandas, carports, detached garages, and ancillary buildings, cantilevered and pier supported structures such as balconies and decks are excluded from this exemption.

2 Removal of tree branches near electrical wires

i) removal of branches within 0.5m of electrical service lines to properties. This exemption applies to tree branches only, not tree trunks.

3 Minor pruning

i) pruning of trees and other vegetation provided:

- branches pruned, are not more than 50mm in diameter; and

- roots pruned are not more than 50mm in diameter.

Note: pruning is consistent with the Australian Standard for Pruning of Amenity Trees (AS 4373-2007).

4 Removal of dead wood

i) completely dead branches attached to tree(s) and other vegetation within the property may be removed.

Note: pruning is consistent with the Australian Standard for Pruning of Amenity Trees (AS 4373-2007).

5 Removal of dead or dying trees and other vegetation

i) removal of completely dead or dying trees and other vegetation provided that prior to any work being carried out:

- Council has advised the applicant of its satisfaction that the subject tree(s) or other vegetation is dead or are dying and is not required as the habitat of native fauna.

6 Removal of risk to human life or property

i) the removal of tree(s) which is structurally unsound and or unstable, which displays a high degree of hazard, provided that prior to any work being carried out:

- Council has advised the applicant, of its satisfaction that the subject tree(s) is posing an imminent risk to human life or property.

Note: an arborist’s report and testing may be required for significant trees.

7 Trees and other vegetation on Council owned and managed land

i) tree and other vegetation works may be undertaken by Council or Council’s authorised agents, on Council owned or managed land, providing these works are consistent with Council’s policies and internal guidelines

8 Exempt tree and other vegetation species

i) removal of species listed on the NSW State Priority Weeds list.

Note: Refer to the Greater Sydney Regional Strategic Weed Management Plan 2023-2027.

ii) within table below:

Note: This table does not apply for Heritage Items or in Heritage Conservation Areas.

…”

28. Part 13.3 of the KDCP, ‘Heritage items or heritage conservation areas’, explains approval requirements to carry out tree or vegetation works on land that is, or forms part of, a heritage item or is within a heritage conservation area.

29. Part 13.4 of the KDCP covers ‘Application for tree and other vegetation works’, and states:

“1 An application is required to be completed and forwarded to Council for all works on trees or other vegetation where an exemption under Section 13.2 does not apply.

Note: A permit cannot be granted for the clearing of:

i) native vegetation on land included on the Biodiversity Values Map except where the tree is assessed to be a risk;

ii) vegetation that is or forms part of an Aboriginal object or that is within an Aboriginal place of heritage significance.

…

4 A Development Application is required where the proposed works:

i) are within the core riparian zone of Category 1 or 2 Riparian Lands and the works will disturb soil within 2m of the channel or within the channel itself;

ii) will affect large stands of trees or other vegetation; or

ii) are in relation to a tree or other vegetation that forms part of a heritage item or within a heritage conservation area.”

Are the jurisdictional requirements satisfied?

30. The applicants did not claim the tree is a risk to persons or property and the tree does not satisfy the general exemption from any consent requirement at s 2.7 of the Biodiversity SEPP. The Leyland Cypress satisfies the definition of a tree under the KDCP (s 2.9(2)) of Biodiversity SEPP). Therefore, the Part 13 of the KDCP applies to the tree. Actions required or authorised under separate legislation, such as the Electricity Supply Act 1995, or Roads Act 1993 do not apply to the tree. None of the exemptions at Part 13.2 of the KDCP apply to the tree, the tree is not a NSW State Priority Weeds species, nor is the tree listed within the table of exempt species at Part 13.2 Section 8(ii).

31. The applicants’ land is not part of a heritage item or within a heritage conservation area, thus the correct application for permit was made. Council assessed the tree within 28 days as required by s 2.11(4) of the Biodiversity SEPP, and the appeal was lodged with the Court within 90 days of notification of Council’s decision, in satisfaction of s 2.12 of the Biodiversity SEPP. Therefore, relevant jurisdictional requirements were met by both parties.

Applicants’ Submissions

32. Mr Elith and Ms Alder contended their application to remove the tree was based on the suggestion of numerous expert arborists that the tree was inappropriately planted so as to encroach on the Turpentine and the close proximity of the tree will inevitably impact both trees’ health. The applicants complained that the application was declined without consultation or an avenue to provide further justification.

33. Mr Elith and Ms Alder said they subsequently consulted Mr Peacock for an independent opinion and noted the following conclusions from his Arboricultural Assessment Report (AAR): From a horticultural perspective, the tree’s location is inappropriate due to the close proximity of the Turpentine, and shading of the Turpentine by the denser crown of the tree will impact the Turpentine’s health and vigour. The AAR concluded that the Turpentine has far greater ecological and biodiversity values than the tree, but these values will be diminished by growth of the tree, that the tree is of low value and provides negligible canopy cover as it is growing below crowns of larger adjacent trees, that removal will allow better development of the Turpentine, and the removal impact would be offset by planting an advanced size replacement tree. Should the tree remain, the Turpentine’s health will diminish, and the form and structure of both trees will be compromised.

34. The applicants contended that “the Ku-ring-gai development control plan was limited. It defines exemptions but does not provide controls for trees and situations not on the exemption list”. Mr Elith and Ms Alder nonetheless considered the tree’s proposed removal and outcomes of removal were consistent with the objectives of Part 13 the KDCP, as stated at [21].

35. In summary, the applicants claimed:

1. Objective 1 is upheld by implementing best practice tree management advice to ensure a high value locally indigenous tree is sustained for the future.

1. Objective 2 is upheld as the Turpentine, a component of the native plant community, has far greater ecological and biodiversity values than the tree. The Turpentine’s ecological and biodiversity values are protected by replacement of the tree.

2. Objective 3 is upheld as the tree does not have significant heritage values and both parties deemed its landscape value as low. The aesthetic values of both trees will diminish as encroachment occurs.

3. Objective 4 is upheld as the Turpentine can be viewed from the streetscape and adds to the character of the locality as part of a collection of indigenous Turpentines. The tree does not contribute as it is at the rear of the property. The tree does not add character as both parties agree it is of low landscape value. Amenity will be offset by planting a replacement tree.

4. Objective 5: The tree provides negligible canopy cover as it is growing below the crowns of larger adjacent trees. The Turpentine currently contributes to the Ku-ring-gai canopy but, over time, the tree will have a significant impact on the Turpentine’s canopy.

5. Objective 6: The tree is not providing significant environmental services but has the potential to cause irreversible health impacts for the environmentally significant Turpentine tree. Removal is considered necessary to ensure the higher value tree is retained.

6. Objective 7 is upheld by applying best practice tree management based on arborist’s recommendations to ensure maintenance of tree health.

7. Objective 8: Neutral impact. Waterways will not be impacted by tree removal.

36. Mr Elith and Ms Alder submitted that “tree assessment guidelines for what may be considered for removal are found on the tree works application form and include tree located in unsuitable position, poor condition or structure, life expectancy and likelihood of tree failure. As the form and structure of both the subject tree and the adjacent tree will decline due to their unsuitable positioning the application was made.”

37. The applicants noted that the policy, “[t]ree management officers cannot approve removal of a protected tree which is not dead, dying or dangerous or damaging property”, is not listed and is more restrictive than what is advertised to residents. As such it was “reasonable to expect council had appropriate avenues to approve replacing an inappropriately located low value tree in accordance with best practice tree management techniques”, and unreasonable for Council to accept application fees, yet limit approval to trees meeting their explicit criteria.

38. The applicants questioned how Council determined that the tree was not already compromising the Turpentine and what value the tree provided that cannot be provided by a replacement advanced tree that offsets any loss incurred by the tree’s removal. In response to Mr Palmer’s suggestion that a further application can be made if the tree continues to grow into the Turpentine’s canopy, the applicants questioned how much canopy impingement was enough to change Council’s decision to reject tree removal. They claimed an advanced Lemon Scented Tea Tree (Leptospermum petersonii), planned to replace the tree, would result in a superior outcome.

39. In conclusion, Mr Elith and Ms Alder submitted that approval of their application to remove the tree is in the public interest as this outcome improves the Ku‑ring‑gai tree resource and ensures the higher quality tree is protected and continues to contribute. Conversely, retention of the tree protects a tree deemed low value by both parties, with no positive impacts for the community.

Respondent’s Submissions

40. The respondent says the tree removal should be refused for the following reasons:

1. Tree Health – The tree displays good health and vigour, and no major defects were observed. The tree shows no signs of being dead, dying, or dangerous, and the appellant has not demonstrated risk to human life or property due to the tree. The applicants have not provided evidence indicating the tree’s health is compromised. Though the tree is growing close to a Turpentine, the tree is not affected by or affecting the Turpentine tree.

2. Removal is contrary to Objectives of the KDCP – The respondent contended removal of the tree is contrary to Part 13 of the KDCP Objectives 1, 2, and 4-7. In response to the applicants’ submissions, the respondent, regarding Objective 1, considered there was no reasonable basis for the applicants to necessarily value a local indigenous tree over an exotic tree.

1. With respect to Objective 2, the respondent claimed the tree has biodiversity values that would be lost if it was removed. For Objective 4, the respondent contended that the value of the tree is not relevant and views of the trees from the streetscape is not considered within the KDCP assessment criteria.

3. Response to Applicants’ contentions

1. That the Turpentine will be impacted by the tree’s growth: The respondent submitted the Turpentine tree does not appear to be affected by the (smaller) tree and is not considered likely to be adversely affected by future growth. The respondent said the contention that the tree should be removed to ‘protect’ a native tree is misplaced, as preference for one tree over another is not a basis for removal of a tree, unless it is an environmental weed species. KDCP promotes retention of a range of both exotic and native trees.

2. That the applicants were not offered an opportunity to provide further justification for tree removal: There is no requirement under Pt 2.3 of the Biodiversity SEPP, where the framework for vegetation removal is set out, to consult with applicants before an application to remove a tree is determined. Applicants are requested to provide detailed information with the submission of the permit application form, which says in bold writing; “By submitting this application, you are granting permission to the inspecting officer to enter the property for the purpose of tree assessment, without the owner being present”. Entry into the property was not necessary, however, as the tree could be observed from neighbouring Council managed land. In the interest of procedural fairness and ventilation of issues prior to the hearing, the respondents requested access to any further information the applicants seek to rely upon in the proceedings.

Tree Assessment Guidelines in the KDCP

41. The Tree Application Information document indicates that the “Ku-ring-gai’s Urban Forest Policy requires a focus on retaining and protecting trees, unless there are strong reasons for removal.” The document further sets out the following:

“1. The following are NOT considered reasons for tree removal or pruning:

1.1 There is substantial evidence the tree is healthy and has no major structural issues. 1.2 Flower, leaf, sap, or fruit fall.

1.3 Increasing natural light.

1.4 Enhancing views.

1.5 Proposed development. Tree removal is considered under the development assessment process and not in a Tree Removal Application Form

1.6 Reduce bird or animal droppings.

1.7 Lifting of driveways, paths and paving where there are alternatives to solve problems and retain the tree.

1.8 Insects and animals eg. possums jumping from tree to roof or cockatoos damaging the property or scale insects causing sooty mould or spiders in the tree.

1.9 Damage to minor structures such as fences, roof structures, outbuildings, garden structures, walls, driveways.

1.10 Damage to underground services such as sewer and water pipes and where there are alternatives to solve problems and retain the tree.

1.11 Fence construction.

1.12 Tree does not suit the existing or proposed landscaping.

1.13 Unsubstantiated fear of tree failure.

1.14 Tree removal for bushfire hazard reduction, unless identified by NSW Rural Fire Services as a bushfire threat.

1.15 Tree too large or too high.

1.16 Pruning to reduce height (hedges excluded).

1.17 Termite infestation where the structural stability of the tree is not affected.

2 The following may be considered reasons for tree removal or pruning:

2.1 Where there is likelihood of tree failure and remedial actions are not feasible or practical. An arborist’s report and testing may be required as supporting documentation. The report must comply with Council’s report guidelines that are available on the Council’s trees webpage.

2.2 Where the tree is causing substantial and continuing structural damage to a dwelling or substantial structure (excluding footpaths, retaining walls, driveways and fences) and remedial actions are not feasible or practical. A structural engineering assessment may be required.

2.3 Where the tree is in poor condition or structure, or declining health with a life expectancy of less than 5 years. There are no tree management options. An arborist’s report and testing may be required.

2.4 A tree located in an unsuitable position where its future growth will result in major damage to a dwelling or substantial structure and there are no practical options to prevent damage.

2.5 Pruning to improve tree’s health and structure.

2.6 Where the tree is proven to be directly causing substantial ill health, such as severe allergies. This must be supported by specialist medical evidence linking the health condition to the tree and where all other reasonable management options have been explored.”

Joint report

42. A joint expert witness report was compiled by the arborists at the direction of the Court. Both appropriately qualified arborists read and agreed to be bound by the Expert Witness Code of Conduct in Schedule 7 to the Uniform Civil Procedure Rules 2005 (UCPR). Responses to the six issues in contention are summarised below:

1. Appellants: Tree is fast growing conifer capable of 20 m height x 8 m spread at maturity. The tree was planted about 600 mm from a mature Turpentine, the health of which will be adversely affected as it becomes increasingly overgrown and suppressed by the tree.

Respondent: Disagrees as the tree is already showing signs of suppression by canopy of Turpentine and by a larger nearby Blackbutt tree. Noted the point made verbally on site that a nearby much larger Leyland Cypress specimen was in full sun, and the growth of another Leyland Cypress specimen that had partial sunlight obstruction was moderately suppressed.

2. Appellants: Wish to protect the Turpentine from being overgrown by the tree as the Turpentine is a locally indigenous species of higher ecological value than the exotic Leyland Cypress.

Respondent: Accept the Turpentine is a member species of Sydney Turpentine Ironbark Forest vegetation type and of higher ecological value. However, disagree that Turpentine requires protection from the tree or will adversely affect the Turpentine tree. The respondent anticipates the roots of both trees to co-exist without adverse impacts on Turpentine. No provision in either the KLEP or KDCP requiring non-indigenous trees to be removed because they may hypothetically affect a local endemic tree in future, when there is no evidence of this occurring or being likely to occur.

3. Appellants: Though based on observation only, area of dead foliage in lower canopy of tree may be Cypress canker, in which case further foliage and branch dieback is likely.

Respondent: Not convinced that foliage death due to canker and no test results provided to confirm presence on pathogen. The tree is currently in good condition and does not satisfy tree assessment guidelines which justify removal. Should the condition of the tree decline significantly, a future application for removal may be lodged.

4. Appellants: The tree is growing below the canopy of the larger adjacent trees and currently provides negligible canopy cover. The tree is of low landscape significance and was planted in an inappropriate position. Removal of the tree allows for better development of the higher value Turpentine.

Respondent: Agree that tree is of low landscape significance, but it is a “prescribed tree” which is protected under the KDCP. Under the KDCP and ‘Tree Assessment Guidelines’, Council’s Tree Management Officers cannot approve removal of a prescribed tree which is not dead, dying, dangerous, or damaging property.

5. Appellants: Mr Peacock’s initial AAR addressed stated aims of the KDCP including, (at point iii of Introduction) “providing controls in relation to the management and long-term survival of Ku-ring-gai tree and other native vegetation resource”. Recommendation for removal of an inappropriately planted, low value tree to prevent impact to the health and long-term viability of a better-quality adjacent tree aligns with the aims of the KDCP. Recommendation for removal is based on arboricultural best practice which achieves the most appropriate outcome for management of the Ku-ring-gai tree resource. The AAR also provides recommendations for planting of a more appropriate species which should not conflict with established trees.

Respondent: KDCP has recently been revised and adopted in March 2024, but changes are minor and immaterial to this issue. The Introduction to ‘Trees and Vegetation Preservation’, at Part 13 of KDCP, acknowledges “Ku-ring-gai’s urban forest includes both exotic and non-endemic native species”, recognising inclusion of exotic species as a component of the urban forest. The tree is a “prescribed tree” which is protected under the KDCP. Nothing in the KDCP allows for removal of non-locally indigenous species in favour of locally indigenous species, especially when no detrimental impact on the locally indigenous species has been established. Mr Palmer attributed minor signs of suppression and canopy asymmetry in the Turpentine to the nearby larger mature Blackbutt tree rather than the smaller Leyland Cypress and speculated that any future decline of the Turpentine is more likely to be caused by the Blackbutt tree than the Leyland Cypress.

6. Appellants: Based on assessment of the tree and its growing environment, the tree’s Useful Life Expectancy (ULE) has been determined as less than five years and the tree is recommended for immediate removal. ULE is not an estimate of the tree’s biological lifespan but an arboricultural term that relates to the time frame over which the tree will provide a positive contribution to its growing environment. Should the tree be retained beyond its allocated ULE, it will increasingly impact the better-quality Turpentine tree.

Respondents: Council’s ‘Tree Assessment Guidelines’ do not reference ULE. Section 2.3 of the Tree Assessment Guidelines does allow for removal, “[w]here the tree is in poor condition or structure, or declining health with a life expectancy of less than 5 years”. However, the tree’s growth is being and will continue to be reduced due the effects of the larger trees’ canopies, but the tree is not in poor condition or of poor structure, nor likely to have a life expectancy of less than five years. Therefore, Section 2.3 of the Tree Assessment Guidelines does not apply to the tree.

Discussion

43. The KDCP Introduction explains Council’s role with respect to the protection, retention, and replacement of trees by: “iii) providing controls in relation to the management and long-term survival of Ku-ring-gai tree and other native vegetation”, and “iv) by establishing a framework for the submission of applications for tree and other vegetation works in Ku-ring-gai”. Part 13.4 Section 2 of the KDCP, notes that “[f]urther information on types of applications, fees, assessment timeframes and criteria for approvals can be found on Council’s web site” (emphasis added).

44. The applicants contended that “the Ku-ring-gai development control plan was limited. It defines exemptions but does not provide controls for trees and situations not on the exemption list”.

45. The crux of the issue is that the tree is a prescribed tree under the KDCP that is subject to exemptions provided for in the KDCP, and to assessment of the tree in accordance with Council’s Tree Assessment Guidelines.

46. The KDCP, at Part 13.2, lists and clarifies eight exemptions from the requirement for a tree removal or pruning permit, including trees within 3 m of a dwelling, trees and other vegetation on Council owned and managed land, species listed on the NSW State Priority Weeds list and Council’s exempt species list, plus pruning of deadwood, of branches near electricity wires, and branches less than 50mm diameter (Minor pruning).

47. The two remaining exemptions are, “5. Removal of dead or dying trees and other vegetation”, and “6. Removal of risk to human life or property”, which do not apply to the tree. As none of the exemptions at Part 13.2 applied to the tree, the tree is therefore a prescribed tree, subject to assessment under the Tree Assessment Guidelines in the KDCP, which provide six scenarios that “may be considered reasons for tree removal or pruning” as produced in Section 2 at [41].

48. Mr Elith and Ms Alder submitted that “tree assessment guidelines for what may be considered for removal are found on the tree works application form and include tree located in unsuitable position, poor condition or structure, life expectancy and likelihood of tree failure. As the form and structure of both the subject tree and the adjacent tree will decline due to their unsuitable positioning the application was made”.

49. While such text is found within the tree assessment guidelines, the applicants have used it out of context. A “tree located in unsuitable position” applies in guideline 2.6 to a tree, “where its future growth will result in major damage to a dwelling or substantial structure and there are no practical options to prevent damage”. “In poor condition or structure” and “life expectancy” arise in guideline 2.3, where “the tree is in poor condition or structure, or declining health with a life expectancy of less than 5 years. There are no tree management options. An arborist’s report and testing may be required”.

50. While Mr Peacock assigned the tree a ULE of less than 5 years, Mr Palmer said ULE was not a criterion used by Council and, regardless, he determined the tree’s life expectancy to be more than 5 years. “Likelihood of tree failure” is noted in guideline 2.1, “Where there is likelihood of tree failure and remedial actions are not feasible or practical”. This scenario does not apply to the tree.

51. At Point 4 of the Joint Report, Mr Palmer submitted that “[t]ree management officers cannot approve removal of a protected tree which is not dead, dying or dangerous or damaging property”. The applicants contended this was a policy that “is not listed and is more restrictive than what is advertised to residents. As such, it was reasonable to expect council had appropriate avenues to approve replacing an inappropriately located low value tree in accordance with best practice tree management techniques”.

52. Mr Palmer’s submission in the Joint Report is not a Council policy, and it is incomplete. From my understanding, it implies that all other exemptions had been excluded and the tree satisfied none of the six scenarios in the Tree Assessment Guidelines. As this is the reality with the Leyland Cypress tree, it was a reasonable submission from Mr Palmer in terms of the provisions of the KDCP.

53. While I am not aware “what is advertised to residents” about rights and responsibilities with trees, having considered the text of Council’s Tree Assessment Guidelines, I disagree with the applicants’ submission, “it was reasonable to expect council had appropriate avenues to approve replacing an inappropriately located low value tree in accordance with best practice tree management techniques”.

54. The applicants submitted that “the Ku-ring-gai development control plan was limited. It defines exemptions but does not provide controls for trees and situations not on the exemption list”. However, the KDCP does provide controls for trees and situations not on the exemption list, expressed as the six scenarios in the Tree Assessment Guidelines that “may be considered reasons for tree removal or pruning”. They are not described as possible examples, nor does the KDCP invite other reasons for consideration. These scenarios reflect the limit of the jurisdiction. They are finite. It is a logical and necessary conclusion that an application to remove a tree that fails to satisfy the requirements of at least one of these six scenarios must be refused.

43. Though the issue of application fees appeared as only a minor grievance, payment of a tree application fee does not and should not impose any requirement on Council to consider an application other than under the terms of the KDCP. The KDCP is relatively detailed, but it is easy to access, and exemptions and assessment criteria are logical and fairly easy to understand.

Merit assessment

56. Though the appeal is unsuccessful due to the tree’s failure to satisfy the Assessment Criteria of The KDCP, it is nonetheless relevant to consider tree merits, which I preface with Council’s Urban Forest Policy Statement (Policy Statement) of 18 February 2020:

“Ku-ring-gai, with its high rainfall, ridgelines capped with rich shale soils and steeply incised sandstone valleys, has evolved a special tall forest character, which is one of the defining and valued characteristics of the area.

Ku-ring-gai’s Urban Forest has been modified over the years which has left extensive bushland within gullies, leading to scattered remnant vegetation and bushland along ridgelines, including a significant number of threatened species and ecological communities.

The diversity, heritage, visual and cultural landscape character of Ku-ring-gai has been further defined through the planting of exotic and non-endemic native species within the Urban Forest.

Council is committed to protecting and enhancing this character and identity through sustainable management of its Urban Forest. This includes:

� Integration of green landscaping elements within built infrastructure

� Conservation of our magnificent environment for future generations

� Balancing benefits from the protection, health and growth of the urban forest against associated risks.”

57. Although I concur with Mr Peacock that planting the tree so close to the Turpentine was poor arboricultural practice, the tree has grown sufficiently to be a tree for the purpose of the KDCP and removal now to remedy poor arboricultural practice is not the best option.

58. As the Court could see from the density and considerable size of trees growing in the reserve neighbouring the applicants’ land, the environmental conditions in this area are amongst the best on Sydney’s north shore in terms of the “high rainfall” and “rich shale soils” noted in line 1 of the Policy Statement. Considering both the near ideal conditions for tree growth and the density of trees in the reserve, I am not satisfied that competition between the trees presents a risk to the current good health of either tree.

59. With the benefit of more than four decades working in the arboriculture industry, observing trees, I am satisfied that growth of Leyland Cypress trees is highly sensitive to light intensity, such that the tree’s growth is likely to have been and to continue to be suppressed under the canopies of the adjacent Turpentine and the large Blackbutt tree. Leyland Cypress are commonly used for rural hedges, and it is not unusual to see trees in sections of Leyland Cypress hedges that are shaded by larger trees to be much shorter and of far less volume than neighbouring trees growing in full sun. Though a small sample size, I agree with Mr Palmer’s observation that the relative size of the applicants’ Leyland Cypress trees on site was primarily due to the extent of each tree’s exposure to sunlight. Conversely, Turpentine trees naturally grow in and tolerate moderately shady conditions.

60. Therefore, I would anticipate the tree and the Turpentine to continue to grow compatibly with little detriment to either tree resulting from their proximity. Even if I am wrong, and the tree grows steadily into the Turpentine’s canopy, it will probably take many years before the trees require assessment by an arborist, and even then, damaged or intermingled branches can probably be rectified by minor pruning.

61. If the tree does grow tall and large and signs of stress emerge or structural issues develop, the tree may then satisfy criteria allowing for removal. In anticipation, the applicants could plant a replacement tree, given this would be a likely condition of removal. If the tree is suppressed, I would anticipate the tree and the Turpentine may grow intermingled, just like many trees in natural environments, for many decades. At worst, even if the tree grows very rapidly, it would probably be about ten years before significant branch conflict issues arise, ten years where the tree continues to provide community benefit.

62. The precautionary principle, a key tenet of Ecologically Sustainable Development, is a useful consideration when dealing with uncertainty and unpredictability that accompanies many natural processes. The tree currently appears healthy, structurally sound, and presents a low risk. The expert arborists have conflicting opinions about the tree’s prognosis, so it is uncertain. Applying the precautionary principle through a wait and see approach is the most reasonable and appropriate solution. It is not reasonable to remove the tree now to mitigate possible future structural and health issues, when neither the tree nor the Turpentine show any current signs of health or structural problems. Issues that may arise in future are likely to become apparent relatively slowly and may be simple to mitigate, by minor pruning for example. Should genuine problems arise, the tree can be reassessed for removal.

63. Amenity value of a tree includes visual amenity, ecological value, whether a tree provides habitat for fauna, and/or canopy connectivity. While the tree is unlikely to offer much food for fauna, it is common to find possum drays within the protective canopies of Cypress trees and species with similar form. Though the tree was deemed to have low landscape significance, this is a largely subjective value and Leyland Cypress has merit as a relatively long-lived species which generally requires little maintenance.

64. In both Mr Peacock’s AAR and the Applicants’ submission, planting of a replacement tree was recommended to offset the tree’s loss. Replacement planting is important to maintain Ku-ring-gai’s tree stock, and replanting is a KDCP condition commonly applied when permission for tree removal is granted. However, even when advanced trees are used as replacements, there is usually a considerable time lag between tree removal and when a replacement tree has grown and matured sufficiently to provide environmental services similar to those formerly provided by the tree which had been removed.

65. I am satisfied that the tree and the Turpentine are likely to continue to grow in close proximity for many years with minimal negative impact to either tree. If and when obvious and potentially serious health or structural issues arise, a determination may be made that is appropriate to the changed circumstances. This approach is more aligned to the objectives of the KDCP than the current removal of the tree and replacement with a Leptospermum petersonii, as recommended by Mr Peacock.

The public interest

66. Mr Elith and Ms Alder submitted that approval of their application to remove the tree is in the public interest as this outcome improves the Ku-ring-gai tree resource and ensures the higher quality Turpentine tree is protected and continues to contribute. As both trees are to be retained, the applicants’ submission is now a moot point. However, the applicants’ case allows insight into the public interest and a functional Tree DCP.

67. As noted above at [16], under the Biodiversity SEPP, “permit requirements for vegetation removal vary between local government areas and a DCP may make the declaration in any manner”. Some Councils accommodate values such as ULE, amenity, or landscape significance in their DCP assessment criteria, or their assessment criteria may be underdeveloped, vague, or undisclosed. Inherently, there is considerable subjectivity in these assessment processes.

68. Though community members may champion the area’s tree resource and enjoy the myriad benefits that the trees provide, it is natural for people to be less enamoured if their own trees impinge on the free use of their land or present financial costs to satisfy tree protection requirements. There are many alternative valuation methods commonly used for arboricultural assessment and different arborists may reach different conclusions about the same tree, even when using an identical methodology. Where DCP tree assessment criteria are open to considerable interpretation, or Council accepts a novel argument contrary to published assessment criteria, inconsistent decisions are likely, along with distrust.

69. The Ku-ring-gai Tree Assessment Guidelines clearly describe the parameters of the jurisdiction, in satisfaction of the community’s reasonable expectation of decision making based on transparent published criteria. In this case, application of the Assessment Guidelines resulted in the correct decision to reject the tree removal application. In the broader context, the public interest is well served by a Tree DCP with clearly defined guidelines which provides for consistent, efficient decision making by Council’s Tree Management Officers, and genuine protection of the LGA’s urban forest.

Orders

70. As a consequence of the above, the Court orders that:

1. The appeal is dismissed.

2. All exhibits retained.

J Douglas

Acting Commissioner of the Court

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Decision last updated: 22 November 2024