Farrell v Hornsby Shire Council

[2006] NSWLEC 195

Land and Environment Court

of New South Wales

CITATION:

Farrell v Hornsby Shire Council [2006] NSWLEC 195

PARTIES:

APPLICANT
Brian Frederick Farrell

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

10025 of 2006

CORAM:

Hoffman C

KEY ISSUES:

Appeal :- Development consent, removal of a large tree, entirely covers 2 backyards and parts of 4 houses, small allotments, falling branches, safety of persons, history of damage to houses, cars and personal injury, history of costly repairs to property and maintenance of the tree, likely future growth of tree, likely ongoing danger, damage and cost to occupants of property and neighbours

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hornsby Shire Council Local Environmental Plan 1994

DATES OF HEARING:

19/04/2006

EX TEMPORE JUDGMENT DATE:

04/19/2006

LEGAL REPRESENTATIVES:

APPLICANT
Self represented

RESPONDENT
Mr I Woodward, solicitor
SOLICITORS
Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

19 April 2006

10025 of 2006 Brian Frederick Farrell v
Hornsby Shire Council

JUDGMENT

1 This is a class one appeal 10025 of 2006 between Brian Frederick Farrell and Hornsby Shire Council in regard to the refusal to permit removal of a very large Blackbutt at a residential house and lot at No. 12 Knox Avenue, Epping. The applicant had made the application on 11 February 2005. On 13 April 2005 consent was refused although consent was granted for removal of one Cedrus deodara tree that was senescent in the front garden and the pruning of another large tree. The refusal of the Blackbutt was reviewed by council and confirmed the decision on 12 October 2005.

2 The issues in the appeal are:

1. Whether there is a sufficient basis to justify the removal of the Blackbutt tree pursuant to Council’s Tree Preservation Order.

Particulars

a) The tree is not exempt from the operation of Council’s Tree Preservation Order.

b) The tree is in a healthy condition.

c) Insufficient evidence has been provided to satisfy the consent authority that the tree should be removed.

3 Attendances at the on-site hearing were:

• Mr Ian Woodward, solicitor, appearing for the respondent and
• Mr Gideon Walker, tree management officer, parks and landscape for council.

3 The applicant was represented by himself and supported by Mrs Farrell.

4 The reasons for the application are in summary:

a) the size of the tree on a small residential lot
b) past experiences of injury to persons and damage to property due to falling limbs of the tree.
c) The cost of on-going maintenance of buildings and the tree
d) damage in the past to neighbours’ properties and potential future danger to property and persons
e) the tree is already 20 m high and is still growing vigorously and the species is known in forests to reach 40 m
f) the tree is free standing and exposed to winds that increases the frequency of branch drop.

5 The parties agreed the tree is beautiful and in very healthy condition. The council also pressed that the tree is quite visible in the streetscape which includes a considerable number of trees. Retaining the leafy dominance of trees to buildings is part of the Hornsby Shire environmental quality and the loss of this tree would be contrary to that objective.

6 Mr Walker agreed that further heavy pruning of the tree would not assist in reducing the applicant’s fears for branch drop. The council would only support removal of dead wood not green branches. The spread of the canopy would continue as the tree grew and branch drop is a natural process of Blackbutts.

7 Although it is usually only small branches that are subject to branch drop, Mr Walker agreed that main green branches do occasionally drop without warning. In repeated examination of the tree Mr Walker and Mr Hoye of the council said it is healthy and vigorous and no faults or infestations or decay or potential main branch problems could be detected.

8 The report the applicant obtained from Australian Tree Consultants Pty Ltd confirmed this but added that such a large tree is inappropriate on a small lot and should be in a park or reserve.

9 The tree covers most of the house and all of the back yard of No. 12 Knox Avenue. It covers the whole backyard and part of the house at No. 7 Abuklea Road at the rear of the property. It covers part of the backyard and part of the house at No. 9 Abuklea Road and it covers the driveway, garage and part of the house at No. 10 Knox Avenue.

10 The trunk of the tree is well over 1 m diameter and Mr Walker agreed the normal setback from the tree to buildings should be 10 times the diameter.

11 The house at No. 12 Knox Avenue is 7.8 m from the tree, and its ground level terrace built on a concrete slab is about 3 m from the tree, all well inside the nominal 10 plus metre setback. By estimating distances on-site three of the neighbours’ houses would be within or close to the 10 plus metre distance of the trunk and parts of the houses beneath the canopy as previously referred to.

12 The applicant said the tree had been originally on a much larger allotment with the original house in the locality. The original house is well away from the tree. That original property had been subdivided into small lots one of which is No. 12 Knox Avenue and houses built on those allotments.

13 The applicant had bought No. 12 some 15 years ago, and said the tree had been accepted then, but had grown considerably since and the problems associated with it grown also.

14 The applicant had been struck and dazed by a three kilogram branch and provided an affidavit that had it hit his head, his doctor said it would have killed him. There had been recent damage to the roof of the house and ceiling damage including water damage from rain on one occasion that had cost $2,000. There were numerous other occasions of roof damage. Quotes for pruning just one large branch of the tree is $1,800. In order to continuously prune dead wood it costs $200 to get a tree climbing arborist on-site plus the time to do the work and dispose of dead wood. Mr Walker agreed it would cost several hundred dollars each time and that would be a few times per year.

15 The applicant listed damage caused by the tree to his house over recent years as follows:

1. Water damage to ceiling in the kitchen and family room.

2. Repair damage to power connection to home

a) accumulated minor damage to Guta Arma armour on other sides of dwelling not covered by insurance and replaced at a cost of $1,650.00.

b) Repair and replace six damaged vergola louvres and TV antenna
3. Repair and replace damage vergola louvres again.
4. Replace damaged TV antenna again.
5. Sky Dome replaced.
6. Solar battery control panel for the vergola blades replaced by connection to mains electrical power as the tree canopy prevented sufficient sunlight to charge the battery, cost $258.
7. Repair ridge capping south-west corner, cost $100.
8. Orchid house destroyed by falling branch, not replaced.

9. Replace broken tile and repair ridge capping north-western corner.

10. All vergola blades (31) dented again. Repairs to blade edges were affected by owner.

11. Ceilings in second bedroom and laundry suffered water damage due to the broken tiles.

12. Due to hazardous conditions and windy weather the Hills clothes line was installed on the back patio, cost $125.

13. Many tiles have been replaced by the owner without resorting to lodge an insurance claim, this saved $100 excess on each claim. In future if self repairs cannot be effected the $100 excess each time will be forfeited.

16 Neighbours had sent letters in support of tree removal. Those sent for instance:

Mr D Dunn of No. 9 Abuklea Road:
I wish to record danger to our property, one branch of the tree on No. 12 Knox Avenue extends 3 m over my bedroom. Dead wood falling from this tree has on one occasion broken a tile letting rain water pour into the ceiling. Detecting water raining down the inside of my window frame I had to climb on to the roof in rain to replace the tile then go into the roof and drag out sodden insulation and mop up the remaining water. Other times twigs and leaves blocked the drainage allowing water to enter and stain the ceiling. I have spent $10,000 in replacing roof, blocked downpipes and leafguard installation.

17 Mr Dunn is 91 years old.

18 Mr and Mrs Lowther of 7 Abuklea Road said:

We are writing to express our concerns about a very large gum tree at the rear of the property in 12 Knox Avenue Epping. The tree over hangs our property and it often drops small to large branches on our roof. We are very concerned about our safety and possible damage to our home from the tree.

We would like to support the property owner's application to remove the tree due to issues of personal safety and frequent damage to our home.

19 Mrs J and P Amery of 10 Knox Avenue say:

We are writing to express our concerns about a very large gum tree at the rear of No. 12 Knox Avenue. The tree over hangs our property and we are very concerned about our safety and possible damage to our house from the tree. At present we only use the lower third of our driveway and on windy days we don't park our cars in the driveway at all, as the tree often drops small to large branches. One of our cars has a deep dent caused by a falling branch, which speared into the roof of the car. A large branch, which again fell like a spear, narrowly missed landing on my head on the 23rd of December 2005. We do not allow our son to play in the driveway area on windy days for safety reasons.

Every four to five weeks we have to clean the gutters of our house of leaf debris, which has fallen specifically from this tree. Recently, the tree flowering and gum nuts, along with leaves blocked one of the gutters despite our regular cleaning cycle. Heavy rain caused the blocked gutter to overflow causing damage to the ceiling of our study. An insurance quoted $600 - $700 for repairs.

The property has been in our family for the past 38 years. It has caused my parents considerable concern over the time they resided here, dropping branches up to 10 cm in diameter and 3.5 m long, generally falling spear like onto the driveway.

20 The statutes and controls are:

The site is zoned Residential A (low Density) under the provisions of Hornsby Shire Council Local Environmental Plan 1994.
Clause 8 of the LEP contains controls relating to Tree Preservation.
Clause 8(2) provides that removal of a tree requires consent.
Clause 8(1) of the LEP provides that council may make a Tree Preservation Order and this was enacted on 24 November 2000.
Council has also made a Tree Management Plan, dated October 2000. The Management Plan contains the council’s Tree Preservation Orders at cl 3.
Clause 2 of the Plan sets out the council’s Tree Management Policy and cl 3.1 to 3.3 sets out the considerations the consent authority should apply when considering an application under the Tree Preservation Order.
The Tree Preservation Order Application is an application under section 78A of the Environmental Planning and Assessment Act 1979, and the appeal to the Court is under section 97 of the Act.

21 Having the evidence and having inspected the tree, the site, seen the neighbours’ properties and the streetscape, I have come to the conclusion that the council’s Tree Management Plan cll 2.3 and 2.4 have five statements of assessment inter alia that must be given determinative weight in this appeal:

a) During the assessment of trees safety of persons and property take priority;

b) Safety hazards posed by the tree must be considered;

c) Substantial property damage caused or likely to be caused by the growth of the tree must be considered;

d) Whether pruning the tree branches would provide satisfactory relief from any nuisance caused by the tree;

e) The retention of the tree if it is causing unjustifiable hardship to the owner must be considered.

22 The criteria to be considered in any assessment are at the discretion of the Manager, Parks and Landscape. Whilst the full range of criteria are not stated in the policy it is said that only in extreme situations would age, disability or medical practitioner’s certification be taken into account. The latter do not apply to this case.

23 I have formed the opinion that the evidence shows that there is no remedy that would enable the tree to be kept based on the five assessment criteria that I believe are determinative.

24 It is a beautiful tree and it is with some concern that I agree to its removal. However, Knox Avenue does have a considerable number of trees, as does the whole locality, and whilst this tree is seen in the streetscape its removal would not endanger the council’s primary objective of maintaining the leafy dominance of trees to buildings within the Hornsby Shire.

25 The evidence in this individual case is sufficient to require the tree’s removal. The backyard of the house is so small that I see no reason to require planting of another tree and the property does have other mature trees both on the site and within the street reserve.

26 Therefore the orders of the Court are:

1. The appeal is upheld.

2. Consent is granted to the removal of the large Blackbutt tree ( Eucalyptus pilularis ) in the rear yard of No. 12 Knox Avenue, Epping.

3. The exhibits are returned to the parties except Exhibits 1, 2, 5, A, B and C.

___________________
K G Hoffman
Commissioner of the Court
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