Gibson v The Council of the City of Sydney

[2025] NSWLEC 1361

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gibson v The Council of the City of Sydney [2025] NSWLEC 1361

Hearing dates:

1 May 2025

Date of orders:

23 May 2025

Decision date:

23 May 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Tree Permit Application TPR/2024/54 for the removal of one Himalayan Cedar tree located at the rear of the site at 2 Burren Street, Erskineville, is approved subject to the conditions at Annexure A.

(3) Exhibit 1 is returned. All other exhibits are retained.

Catchwords:

TREE PERMIT APPLICATION — structural damage — health impacts of tree — appeal upheld

Legislation Cited:

Land and Environment Act 1979 (NSW), s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.6, 2.7, 2.9, 2.10, 2.12, Pt 2.3

Sydney Local Environment Plan 2012, cl 5.10

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Hurditch v Staines [2008] NSWLEC 1351

Tuft v Piddington [2008] NSWLEC 1249

Texts Cited:

City of Sydney Council, Greening Sydney Strategy, July 2021

City of Sydney Council, Sydney Development Control Plan, 2012

City of Sydney Council, Sydney Landscape Code Volume 1: Single Dwellings, November 2016

City of Sydney Council, Tree Management and Donation Policy, June 2023

City of Sydney Council, Urban Forest Strategy, June 2023

Category:

Principal judgment

Parties:

Bruce Neil Gibson (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
R McCulloch (Solicitor) (Applicant)
G Garrett (Solicitor) (Respondent)

Solicitors:
Pikes and Verekers Lawyers (Applicant)
Council of the City of Sydney (Respondent)

File Number(s):

2024/242727

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: Bruce Gibson has made a Tree Permit Application to the Council of the City of Sydney (the Council) to remove an existing Cedrus deodora, or Himalayan Cedar, that is situated within his garden at 2 Burren St, Erskineville, and to replace it with two small canopy trees. The Council has refused this application, and it is from this refusal that these proceedings arise pursuant to s 2.12 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C).

2. This application is the last in a line of various applications made by Mr Gibson and his wife relating to this tree, all of which have been refused except an application to prune the tree made in 2020 (TPR/2020/23).

3. The tree is 12-13m tall with a canopy spread of approximately 12-14m wide. It is in good health and condition, with an estimated useful life expectancy of 20-40 years. As per the views I was directed to observe on site, it is visible from several vantage points along Burren Street, and the top of the canopy can be seen amongst other trees from at least two points along Swanson Street. Although the canopy partly overhangs Burren Street, the tree is located entirely on private property.

4. Mr Gibson bases his request to remove the tree in his application on the poor health of the tree, structural damage to the adjacent concrete driveway, and serious health implications resulting from an allergy to the tree.

5. For the following reasons, I find that the health of the tree and structural damage do not justify its removal, however in this instance, the health implications for Mr Gibson are sufficient reason to permit the removal of the tree and replacement planting.

The legal basis for the Tree Permit Application

6. The State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) provides at s 2.6(1):

2.6   Clearing that requires permit or approval

(1) A person must not clear vegetation in a 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.

7. The application does not rely on any of the exemptions from requiring a permit or approval at s 2.7, and therefore a permit application is made under Pt 2.3 of the SEPP B&C, “Council permits for clearing of vegetation in non-rural areas”.

8. Under Pt 2.3, s 2.9 provides:

2.9   Vegetation to which Part applies

(1)  This Part applies to vegetation in any non-rural area of the State that is declared by a development control plan to be vegetation to which this Part applies.

(2)  A development control plan may make the declaration in any manner, including by reference to any of the following—

(a)  the species of vegetation,

(b)  the size of vegetation,

(c)  the location of vegetation (including by reference to any vegetation in an area shown on a map or in any specified zone),

(d)  the presence of vegetation in an ecological community or in the habitat of a threatened species.

(3)  This Part also applies to vegetation in a non-rural area of the State that, immediately before the commencement of this subsection, was—

(a) declared by a development control plan to be vegetation to which State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, Part 3 applies, or

(b) prescribed by a development control plan under the standard instrument set out in the Standard Instrument (Local Environmental Plans) Order 2006, clause 5.9, as in force immediately before 25 August 2017.

9. SEPP B&C s 2.10 provides:

2.10   Council may issue permit for clearing of vegetation

(1)  A council may issue a permit to a landholder to clear vegetation to which this Part applies in any non-rural area of the State.

(2)  A permit cannot be granted to clear native vegetation in any non-rural area of the State that exceeds the biodiversity offsets scheme threshold.

(3)  A permit under this Part cannot allow the clearing of vegetation—

(a)  that is or forms part of a heritage item or that is within a heritage conservation area, or

(b)  that is or forms part of an Aboriginal object or that is within an Aboriginal place of heritage significance,

unless the council is satisfied that the proposed activity—

(c)  is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or heritage conservation area, and

(d)  would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or heritage conservation area.

(4)  A permit may be granted under this Part subject to any conditions specified in the permit.

10. Accordingly, the Sydney Development Control Plan 2012 (SDCP) makes relevant provisions for granting a permit for the clearing of vegetation under Clause 3.5.3 Tree Management. The relevant objectives of this clause are:

“Objectives

(a) Establish the trees to which Clause 5.9 Preservation of trees or vegetation of the Sydney LEP 2012 applies.

…

(c) Maximise the quality and quantity of healthy tree canopy coverage across the LGA.”

11. SDCP cl 3.5.3(1) sets out the criteria under which a permit or development consent is required:

“Provisions

(1) A permit or development consent is required to ringbark, cut down, top, lop, prune, remove, injure or wilfully destroy a tree that:

(a) has a height of 5m or more; or

(b) has a canopy spread of over 5m; or

(c) has a trunk diameter of more than 300mm, measured at ground level; or

(d) is listed in the Register of Significant Trees.”

12. The tree in question meets criteria (1)(a), (b) and (c) above, and the exemptions at Clause 3.5.3(3)–(5) do not apply, therefore, a permit is required to remove the tree.

13. The site is located within the Burren Estate Heritage Conservation Area (HCA) pursuant to the provisions of the Sydney Local Environmental Plan 2012 (SLEP). Under SDCP cl 3.5.3(2), development consent is required to remove a tree within a heritage conservation area, unless the criteria in cl 5.10(3) of the SLEP are met. Relevantly, cl 5.10(3) provides:

(3) When consent not required However, development consent under this clause is not required if—

(a)  the applicant has notified the consent authority of the proposed development and the consent authority has advised the applicant in writing before any work is carried out that it is satisfied that the proposed development—

(i)  is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or archaeological site or a building, work, relic, tree or place within the heritage conservation area, and

(ii)  would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place, archaeological site or heritage conservation area, or

…

(c)  the development is limited to the removal of a tree or other vegetation that the Council is satisfied is a risk to human life or property…

14. The parties accept that the work is of a minor nature (cl 5.10(3)(a)(i)), and based on consultation with the Council’s heritage expert, submit that the removal of the tree will not affect the heritage significance of the HCA. From the evidence in Ex 1 tab 3, I am satisfied that the tree is not of heritage significance, and its removal will not adversely impact the heritage significance of the HCA (cl 5.10(3)(a)(ii)). Accordingly, development consent under SLEP cl 5.10 is not required in this instance.

15. Further, pursuant to SEPP B&C s 2.10(3), for the same reasons, I am satisfied that the proposed activity is of a minor nature and would not adversely affect the heritage significance of the HCA.

16. Accordingly, the tree in question may be removed subject to the granting of a permit pursuant to SEPP B&C s 2.10.

The criteria for assessing the Tree Permit Application

17. The assessment criteria for tree removal and replacement are set out in the SDCP. The SDCP Clause 3.5.3 states in its preamble:

“Other policies that apply to the management of trees in the City of Sydney include the Urban Tree Management Policy, Urban Forest Strategy, Street Tree Master Plan, and Park Tree Management Plans and Register of Significant Trees. These are available at start="18">

From the list in this clause, Council clarified that the policies relevant to this application are the Urban Tree Management Policy (now Tree Management and Donation Policy 2023 (TMDP)), Urban Forest Strategy and the Sydney Landscape Code Volume 1. I note the Sydney Landscape Code (Landscape Code) is not specifically listed in SDCP 3.5.3 as “apply(ing) to the management of trees” and that it is generally directed to guidance for development applications, however the introduction states that it provides “best practice guidance for each type of landscape space”, including detached single dwellings, terraces and semi-detached dwellings (Ex 1 tab 6 Folio 247).

The relevant objectives of the TMDP are:

“• prioritise the protection and management of trees across the LGA.

• broaden the emphasis of tree management to include urban forestry principles, with trees managed as a collective asset, to maximise the benefits canopy cover provides

• improve the quality and quantity of the City of Sydney’s canopy cover

• increase species diversity and improve the age spread of the urban forest

…

• increase awareness and educate our communities, utilities, developers and City staff on the value of trees in the urban landscape

• enhance the City of Sydney’s reputation within the community as a steward and manager of trees and the urban forest.”

20. The TMDP further sets out principles that apply to tree removal and replacement on pages 4-6. It states in the introduction at Part 3:

“Trees like all living things grow, age and eventually die. Over their lifespan, trees require active management to maintain their health and structure and to minimise potential risks. Whilst tree removal is a “last resort”, public safety always takes priority.

….

We assess applications to remove trees on private property and determine these applications in accordance with this Policy and the relevant planning controls (SEPP and DCP).

The following policy principles apply to tree removal and replacement:

Issue

Policy Statement

Assessment and determinations

We use tree assessment procedures, based on industry standards to ensure consistency in the approach to determining tree removals.

The retention of significant, healthy, and structurally sound trees is a priority.

We approve the removal of trees that are in poor health or have significant structural defects. We will also approve the removal of trees where there is significant damage to an approved habitable structure or significant infrastructure, where it is demonstrated the tree’s removal is the only option available to address the issue.

Tree removal is not permitted to facilitate views (including advertising signs), off-street parking, installation of solar panels, to reduce the extent of leaf / flower / fruit drop, or to reduce the impact from any bird / bat / other animal waste or noise.

Emergency situations

Risk to public safety and property takes priority in tree removal decisions in emergency situations.

Public tree removal notifications

We notify the community of a planned street or park tree removal by placing a notification sign on the trunk, for a period of up to 14 days, confirming the reason for removal and the replacement planting proposed.

Poor performing trees

We remove and replace poorly performing trees to reinvigorate the urban forest.

Weed species

We undertake the staged removal and replacement of trees classified as noxious or environmental weed species. The impacts to canopy cover is a key consideration in removing trees as part of this process.

Poisoned or damaged trees

We will consider the retention or delayed removal of appropriate trees that have been poisoned or otherwise damaged. These trees will be managed until they are removed and/or replaced.

Age diversity

We aim for a sustainable spread of our street and park tree age classes (e.g. young, semi mature, mature, over-mature) to minimise the impact of high numbers of tree removals required within short timeframes and / or within specific areas as a result of age over-maturity.

Capital works improvements

We will develop strategies for the installation of new plantings, where feasible, prior to tree removal required for capital work projects.”

21. From the above table, I note from the expert evidence of the arborists, Ms Catriona Mackenzie for the applicant and Mr David Shackleton for the respondent, that the tree is neither a weed species nor a “poor performing tree”. No emergency situation as referred to in the table has been suggested or established, and therefore the relevant criteria lay in the first part of the table under the issue heading of “assessment”.

22. Importantly, under this heading in the TMDP, the Council states that “the retention of significant, healthy and structurally sound trees is a priority.” It then identifies the following reasons to approve tree removal: for trees in poor health or with significant structural defects; where there is significant damage to an approved habitable structure or significant infrastructure where it is demonstrated that the tree’s removal is the only option available to address the issue. None of these reasons apply in this case.

23. It then identifies reasons why tree removal would not be permitted, and from this I note that this tree is not identified as a significant tree. Further, the removal of the Cedar is not requested to facilitate views, off-street parking, installation of solar panels or to reduce the extent of leaf / flower / fruit drop, or reduce the impact from any bird / bat / other animal waste or noise.

24. Having confirmed that none of the principles for assessment identified in Part 3 of the TDMP apply here, the applicant submits that there is a gap in Part 3 between the reasons why tree removal may be approved and the reasons why it may be refused. They submit, and the Council does not refute, that it is in this gap that this medical evidence lies, and that there is no guidance in any of the Council’s policies or controls to direct consideration of this issue.

25. Further, s 38(2) of the Land and Environment Court Act relevantly states that:

“38 Procedure

…

(2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits.”

26. It is on this basis, which is accepted by the Council, that I consider the medical evidence before me in Ex C.

27. The Council’s suite of policies is consistently focussed on tree retention and increasing canopy cover. By way of overview: the TMDP falls under the umbrella of the Greening Sydney Strategy, July 2021, in which the Council has set targets for increasing canopy cover to a minimum overall canopy of 27 per cent by 2050. This includes increasing canopy cover targets from 12% to 20% on private property by 2050 (Ex 1 tab 6 folio 94).

28. These targets are supported in both the Urban Forest Strategy and the Urban Tree Management Policy. The Urban Forest Strategy sets a specific target of increasing canopy cover in Erskineville from 15-20% in 2022 to 20-25% in 2022.

29. Cedrus deodara is listed in the Urban Forest Strategy as an appropriate tree species for the urban forest.

Is removal of the tree adequately justified?

The condition of the tree and its impact on the driveway

30. This application was preceded by several applications, in various forms, requesting the removal of this tree.

31. The application the subject of this appeal is framed in response to the reasons for refusal given by the Council for TPR/2023/23, under the headings of:

1. Health grounds for home owner occupier Bruce Gibson

2. New evidence regarding the declining state of the tree health.

32. An additional contention is raised by the applicant in these proceedings regarding damage to the adjacent concrete driveway which the applicant states is caused by the tree roots.

33. Mr Gibson no longer relies on the arboricultural impact statement prepared by Advanced Arborist Reporting that accompanies application TPR/2024/54, and now relies on the assessment and expert evidence of Ms Mackenzie. The outcome of the new AIS and subsequent joint reporting is that it is agreed that the tree is of good health and vigour, and this contention is no longer pressed.

34. Should the tree be removed, the application requests, and agreed conditions of consent confirm, that the Cedar would be replaced with two smaller, alternative tree species. This would likely result in canopy loss of over 50%, which the arboricultural experts agree would have an immediate, minor effect of reduction of the total existing canopy in the entire local government area (Ex 4). Ms Mackenzie goes further to state that, in her opinion, the effect on local tree canopy cover would be minor.

35. The tree is located directly adjacent to a concrete driveway which has some visible displacement and cracking. Mr Gibson contends that the roots of the tree are causing lifting and cracking of the concrete slab of the driveway. In support of this contention, an expert report was provided by a structural engineer, Mr Art Candarakis (Ex D). Mr Candarakis states in his report that the displacement and cracking is the direct result of the growth of roots from this tree. He provides three options to rectify this damage, including repairing the slab, replacing the slab with a pier and beam construction, and removing the tree, but concludes that the first two options are impractical and recommends removal of the tree.

36. However, in oral evidence, Mr Candarakis accepts that there are alternative paving types to concrete slabs that could be suitable and practical in this instance. He also accepts that the highly reactive clay soil upon which this slab is constructed may have also contributed to the damage to the slab, and that there has been no detailed investigation to conclude the extent of actual root damage.

37. Further, I note that the driveway and carport in question were built some time after the tree was planted, and so the applicant’s submission that this tree is an entirely inappropriate species for its proximity to these structures is unjustified. On the basis of this evidence, I do not accept that damage to the driveway is definitively caused by the tree, and is therefore insufficient reason to justify removal of the tree on these grounds.

The impact of the tree on Mr Gibson’s health

38. The final contention, which was the focus of most of the oral submissions in these proceedings, is the impact of the tree on Mr Gibson’s health.

39. Mr Gibson contends that the tree is adversely impacting his health due to a contact dermatitis and aggravated asthma caused by direct contact with the needles, and submits in an affidavit (Ex E) that he is subsequently unable to use his backyard at all due to the uncontrolled spread of the fine needles. He also submits in Ex E that he is unable to dry his clothes in the garden as needles dropping on to his clothes cause the same allergic reaction, and that they are carried into the house on shoes and clothing.

40. In support of this, Mr Gibson has provided an expert report from his GP, Dr Cara Frame, which contains a letter from an immunologist, Dr Karl Baumgart. In his letter, Dr Baumgart concludes that the results of a patch test demonstrate that Mr Gibson has contact dermatitis resulting from contact with the needles from this tree, and further that “he should minimise direct contact with Cedar Trees”.

41. Dr Frame uses this as the basis for her confirmation in Ex C of Mr Gibson’s contact dermatitis. She further states that Mr Gibson has chronic asthma, but provides no evidence as to whether the tree exacerbates this. In the opinion of Dr Frame, “the recommended management of any contact dermatitis is to remove contact with the offending allergen”. There is no direct evidence to support Mr Gibson’s claim of worsening asthma as a result of the tree.

42. Both parties agree that this medical evidence is relevant in these proceedings, and the Council accepts that the tree causes Mr Gibson’s contact dermatitis. No medical evidence was brought by the Council, and so the only medical evidence is that of Dr Frame, and by inclusion, the opinion of Dr Baumgart.

43. In response to this evidence, the Council highlights that Part 3 of the TMDP identifies:

“Tree removal is not permitted to … reduce the extent of leaf/flower/fruit drop, or …”

And

“Risk to public safety and property takes priority in tree removal decisions in emergency situations.”

44. The Council submits, and I accept, that this is not an emergency situation that results in risk to public safety and property. However, although leaf drop contributes to the cause of Mr Gibson’s dermatitis, it is reductive to state that this application is requested based on a desire to reduce the extent of leaf drop. The application is to remove the tree from which leaves (needles) directly cause an allergic reaction, and therefore the established principle in Barker v Kyriakides [2007] NSWLEC 292 on whether the Court’s discretion should be exercised against a tree dropping leaves is not relevant here.

45. The Council refutes the basis of the medical evidence by claiming that taping Cedar needles to one’s arm represents an extreme and unrealistic scenario. The applicant submits, and I concur, that this misconstrues the purpose of a patch test, which is not to demonstrate the effects of contact over a long duration, but to demonstrate a sensitivity to a particular allergen. This test was conclusively positive (Ex C).

46. The Council further submits that Mr Gibson’s condition is not severe because severity is only determined by Dr Frame, not Dr Baumgart. I accept that having confirmed the condition with an immunologist, Dr Frame, as a qualified medical doctor and general practitioner, is suitably qualified to determine the degree of Mr Gibson’s condition which she determines is “severe”.

47. Based on Ex E, the Council states that Mr Gibson’s condition is manageable through reasonable mitigation methods such as reducing contact with the tree, showering after contact with the tree, washing his clothes after working under it and drying them inside, and taking antihistamines when necessary. They also suggest that Mr Gibson should have undertaken due diligence regarding his health upon purchasing the property, knowing that he had a medical history of asthma and allergies.

48. No information is provided in evidence regarding antihistamines or other medication for ongoing treatment of Mr Gibson’s condition. The recommended management of this condition as stated by Dr Baumgart is to minimise direct contact with the offending allergen. I do not accept that Mr Gibson had any ability to undertake health-related due diligence regarding this tree at the time of purchase, as at that time he was unaware of his sensitivity to this tree, contrary to the example cited by the Council in Tuft v Piddington [2008] NSWLEC 1249.

49. Regarding the minimisation of contact with the needles, as I was directed to observe on site, whilst the canopy only covers a portion of the back yard, it does drop fine needles that distribute throughout the garden, and are difficult to avoid as the garden is small and contained. I accept Mr Gibson’s sworn evidence that contact with the needles occurs both in the garden and inside the house when carried in on shoes, and that removing contact with the offending allergen is difficult. I also accept from Exs C and E and that his allergic reactions are ongoing.

50. The Council further submits that “minimising contact with the offending allergen” could be done through wearing long-sleeved shirts and gloves, however Dr Frame states that this is unreasonable as any activity outside risks accidental exposure to the very fine needles, with “significant health consequences” (Ex C).

The balance of canopy loss and Mr Gibson’s health

51. The Council has a focussed and consistent series of policies and development controls that support the importance of maintaining canopy cover. Their decision-making to date regarding the retention of this tree has been largely based on upholding the retention of existing urban canopy.

52. The arboricultural experts have confirmed that the removal of this tree will result in a loss of canopy, given the limited space available for replacement tree planting. Acknowledging that it is a large tree in a small space, and based on the guidance given in the Landscape Code and their expert opinion, it is agreed that replacement of a tree of equivalent size would be inappropriate on this property, and that the garden only has adequate space for two small trees. This would result in a net loss of canopy greater than half the existing canopy area.

53. The evidence demonstrates that minimising direct contact with the needles of the tree is impractical if Mr Gibson is to be able to use his garden, and that, as per the only medical evidence, accidental exposure to the very fine needles has significant health consequences. Unlike the findings in Hurditch v Staines [2008] NSWLEC 1351, Mr Gibson has supported this with specialist medical evidence.

54. Although the removal of this tree will result in a small loss of canopy, the arborists acknowledge that the impact of this is minor, and that the agreed conditions of consent will ensure the planting and ongoing maintenance of suitable replacement trees.

55. I note that small canopy losses such as this could, if frequent, have a more significant adverse impact on the Council’s ability to achieve their canopy targets, however it is my considered opinion that in this instance, as the impact on urban canopy is minor and the medical evidence is clear, Mr Gibson’s medical condition provides sufficient justification to permit the removal of this tree and its replacement with two suitable alternative species.

Orders

56. The Court orders:

1. The appeal is upheld.

2. Tree Permit Application TPR/2024/54 for the removal of one Himalayan Cedar tree located at the rear of the site at 2 Burren Street, Erskineville, is approved subject to the conditions at Annexure A.

3. Exhibit 1 is returned. All other exhibits are retained.

E Washington

Commissioner of the Court

**********

Annexure A (107 KB, pdf)

Decision last updated: 23 May 2025