Gramadah Pty Limited v Hilltops Council - [2022] NSWLEC 1022

Land and Environment Court

New South Wales

Medium Neutral Citation: Gramadah Pty Limited v Hilltops Council [2022] NSWLEC 1022
Hearing dates: 26 and 27 July 2021, 12 October 2021
Date of orders: 18 January 2022
Decision date: 18 January 2022
Jurisdiction: Class 1
Before: Douglas AC
Decision:
The Court orders that:
1) The appeal is granted, in part.
2) Permission is granted for the removal of trees 35, 52, and 172, subject to Conditions of Consent at Annexure ‘A’.
3) Tree 73 shall be pruned in accordance with AS4373:2007, and retained.
4) Trees 6, 20, 147, 160, and 187 shall be retained, without intervention.

Catchwords:
APPEAL – appeal against refusal of application to remove vegetation in critically endangered ecological community – whether DA approval is valid – whether evidence provided substantiates that the trees present a genuine risk of damage and/or injury – whether sufficient relevant information has been provided by applicant to support appeal

Legislation Cited:
Biodiversity Conservatipm Act 2016, s 2.11, Sch 2
Environmental Planning and Assessment Act 1979, s 4.2
Environment Protection and Biodiversity Conservation Act 1999
Land and Environment Court Act 1979, s 39
Local Land Services Act, s 60O, Pt 5B
State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, Pt 1 cl 6, Pt 2 cll 7, 8, Pt 3 cll 9,10,11,12
Trees (Disputes Between Neighbours) Act 2006
Uniform Civil Procedure Rules 2005, Pt 31, Div 2, Sch 7
Young Local Environmental Plan 2010, cl 6.5
Young Local Environmental Plan 1991—Urban Lands
Young Local Environmental Rural Plan 1993

Cases Cited:
Le Bron v Chidiac [2019] NSWLEC 1194
Sheldon v Council of the City of Sydney [2020] NSWLEC 1619

Texts Cited:
Australian Standard AS4970-2009-Protection of trees on development sites
Land and Environment Court of NSW, COVID-19 Pandemic Arrangements Policy, April 2021
The Body Language of Trees: A Hanbook for Failure Analysis by C. Mathheck and H. Breloer, 1994
Young Development Control Plan 2011

Category: Principal judgment
Parties: Gramadah Pty Limited (Applicant)
Hilltops Council (Respondent)
Representation:
Counsel:
J Farrell (Applicant)
A Menyhart (Solicitor) (Respondent)
Solicitors:
CML Lawyers Pty Ltd (Applicant)
BAL Lawyers (Respondent)

File Number(s): 2020/344819
Publication restriction: No

Judgment

COMMISSIONER: Gramadah Pty Limited (Gramadah) owns land at Lot 2 DP1229055 known as 52 Bendick Murrell Road, Bendick Murrell, a village near Young, in central NSW. In April 2020, Gramadah applied to Hilltops Council (Council), pursuant to cl 11 of the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP), to remove nine trees (the trees) that are growing on the property. On 27 July 2020, Council issued a Notice of Determination refusing the proposed removal of the trees. Gramadah has appealed against the deemed refusal by the council of the application for the removal of trees, pursuant to cl 12 of the Vegetation SEPP.
Mr George Parris, a director of Gramadah, is authorised to act on its behalf. He has received advice from Mr Jim McArdle, of McArdle Arboricultural Consultancy, recommending the removal of nine trees, or groups of trees, on the basis that the trees were in poor health and were a significant risk.
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 the body that made the original decision now being appealed – that is, Council (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.”
The Environmental Planning and Assessment Act 1979 (the EPA Act) provides the overarching jurisdiction. At s 4.2 of the EPA Act:

(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless—
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.
Maximum penalty—Tier 1 monetary penalty.

(2) …
(3), (4) (Repealed)
(5) …
(6)–(9) (Repealed)

Tree removal – general

The primary relevant planning instrument is the Vegetation SEPP, Pt 2 of which establishes at cl 7(1) that: “A person must not clear vegetation in any non-rural area of the State to which Part 3 applies without the authority conferred by a permit granted by the council under that Part.”
Clause 7 of the SEPP is, however, subject to cl 8. That clause provides a general exemption from the requirement to obtain a permit for vegetation clearing in the following circumstances:

An authority to clear vegetation is not required under this Policy if it is clearing of a kind that is authorised under section 60O of the Local Land Services Act 2013 (Clearing authorised under other legislation) or under Part 5B (Private native forestry) of that Act. This subclause does not apply to clearing merely because it is a part of or ancillary to the carrying out of exempt development.

An authority is not required under this Policy for the removal of vegetation that the council or Native Vegetation Panel is satisfied is dying or dead and is not required as the habitat of native animals.

An authority is not required under this Policy for the removal of vegetation that the council is satisfied is a risk to human life or property.

The framework for vegetation removal is set out in Pt 3. Permit requirements for vegetation removal vary between local government areas (LGA). According to cl 9 (Pt 3) of the Vegetation SEPP, a development control plan will usually declare vegetation to which Pt 3 of the Vegetation SEPP applies:

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.

Tree removal falls within the Young Development Control Plan 2011 (YDCP), which applies to all land in the Shire of Young to which the Young Local Environmental Plan 2010 (YLEP) (as amended), applies. It also applies to land identified as a deferred matter under the YLEP that is still controlled under the provisions of the Young Local Environmenal Plan 1991 – Urban Lands and Young Local Environmental Rural Plan – 1993 respectively.
Section 4.3. of the YDCP covers ‘Development requiring tree removal or lopping’, and applies to all zones except RU1 and RU3. At 4.3.1, the Objectives are listed as;

“(a) To provide a regulatory framework for the preservation of trees and other vegetation in order to maintain the visual integrity of Young Township and the village areas of Young Shire, and
(b) To ensure that all development is carried out with sensitivity to trees in the vicinity.
Note: For the purposes of this DCP and clause 9 of Vegetation SEPP a designated tree is defined as vegetation with:
a) 5m or more in height at any point above the ground; or
b) With a trunk diameter of 200mm or more when measured 1.5m above the ground level; or
c) With more than one trunk, where one or more of the trunks has a diameter exceeding 100mm at a height of one metre above the ground level.”

A designated tree does not include any noxious weed species as declared for the Young LGA or a tree of the species listed in a table below 4.3.1. None of the trees considered for removal on the Gramadah site are listed in this table, or otherwise qualify for this exemption.
Section 4.3.2, per the table below, covers Performance Outcomes (PT) and Acceptable Solutions (AT). Essentially, this provides assessment criteria.

Performance Outcomes (PT)	Acceptable Solutions (AT)
PT1 Trees are protected, unless they are an environmental weed species;	AT1.1 Development is designed to avoid impact on designated trees unless this would reduce the development yield of the property; AT1.2 Designated trees are retained where not directly impacted by a development or where they are not within 3 metres (measured from the trunk) of a building approved as part of a development or where they would create a safety risk for traffic unless a qualified arborist has assessed the tree and found that by reason of its health or otherwise that it is not worthy of retention;
PT2 If a tree is removed, in order to construct an approved development or provide a utility service, an environmental offset is provided. 4.3.3 notes that tree species endemic to the Young area should be used in any environmental offsets, and a list of species is provided at Appendix G.	AT2 Where a designated tree is removed, it is replaced by at least two trees, of a species endemic to the Young area, which would develop to a similar size at maturity. Note: where replacement on-site is not feasible, Council may nominate a public area in the vicinity, including a road reserve, where the trees may be planted, and may levy a contribution from the developer to cover the cost of planting and maintaining the tree to establishment.
PT3 Management of existing trees minimises the threat to the long term survival of the tree.	AT3.1 Work is not conducted within the drip line of a retained tree (such as digging, trenching, compacting, filling (by more than 150mm) or paving) unless a qualified arborist has assessed the tree and provided guidelines as to how the work can be carried out with minimal risk to the long term survival of the tree; AT3.2 Pruning or protection works are carried out in accordance with Australian Standard 4373;

The Vegetation SEPP then gives Council the power to grant a permit at cl 10:

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.

In short, Council can issue a permit, although a permit cannot be granted in certain situations. If issued, the permit can be subject to any conditions.

The applicant’s capacity to appeal Council’s decision is established at cl 12 of the Vegetation SEPP:

12 Appeal to Land and Environment Court
(1) An applicant for a permit may appeal to the Land and Environment Court against the refusal by a council to grant the permit.
(2) 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).

Where there is any inconsistency with the YLEP, the Vegetation SEPP, at cl 6(2), prevails:

6 Relationship to other planning instruments
(1) This Policy does not affect the provisions of any other State Environmental Planning Policy or any provisions of a local environmental plan that are mandatory provisions under the Standard Instrument (Local Environmental Plans) Order 2006.
(2) This Policy prevails to the extent of any inconsistency with any provisions of a local environmental plan that are not mandatory provisions under the Standard Instrument (Local Environmental Plans) Order 2006.

The hearing

The hearing was conducted via audio-visual means according to the Court’s COVID-19 Pandemic Arrangements Policy, on 26 and 27 July 2021. It continued at a site visit on 12 October 2021, after which, the judgment was reserved. This had been communicated to the parties by LEC Listings prior to the site visit.
Jeremy Farrell of Counsel, and Solicitor, Mark Gordon, represented the applicant. Council was represented by their Solicitors, Alice Menyhart, and Tomas Bush, of BAL Lawyers. Jim McArdle, engaged by the applicant, and Ross Jackson, on behalf of Council, provided expert arboricultural evidence. Ecologists, Nicholas Skelton, and Robert Speirs, provided evidence for the applicant, and respondent, respectively. Mr and Mrs Parris attended the hearing remotely from the offices of BAL Lawyers in Cowra, and Mr Parris provided evidence, under oath.
Mr McArdle and Mr Jackson prepared a joint report outlining their points of agreement and outstanding areas of differences, as did Mr Skelton and Mr Spiers. The arborist evidence was heard initially, and subsequently augmented by that of the ecologists.
All four experts acknowledged having read and prepared their statements in accordance with the NSW LEC Practice Note, Div 2, Pt 31 of the Uniform Civil Procedure Rules 2005 (UCPR), and the Expert Witness Code of Conduct in Sch 7 to the UCPR.

The applicant is able to appeal

Gramadah appealed within three months of Council’s determination, thus satisfying cl 12 of the Vegetation SEPP.

A permit is required to remove the tree

Pursuant to cl 8(1) of the Vegetation SEPP, Council advise that the clearing is not authorised under s 60O of the Local Land Services Act 2013 (Clearing authorised under other legislation) or under Pt 5B (Private native forestry) of that Act. This was not contested.
Council argued that standing in their shoes, I would not be satisfied that any of the trees nominated in the application are dead or dying and are not required as the habitat of native animals, because of the 9 trees for which consent is sought to remove;

One tree, tree 172, is identified by the applicant as being dead (Exhibit D; 8: Exhibit 3; 4).

Two trees are located in the offset area which was required to be established pursuant to development consent DA2013/00092 and which are protected via an 88B instrument registered on the land (Exhibit 3:3; Exhibit 2).

Five of the trees are large/ mature specimens (Exhibit 3:4).

The vegetation within the site, including the trees the subject of the application, is also part of a remnant vegetation patch which falls on the ecotone between the following two plant community types: Yellow Box – River Red Gum tall grassy riverine woodland of NSW South Eastern Slopes Bioregion and Riverina Bioregion and the White Box– Yellow Box – Blakely’s Red Gum Grassy Woodland and Derived Native Grassland (Exhibit 3:6).

The site is part of a Critically Endangered Ecological Community (the CEEC) (Exhibit 3:6).

This patch is of particularly high conservation value as it is the only large remnant of the CEEC remaining in relatively intact form within a five (5) kilometre radius (Exhibit 4).

Council note that habitat is defined in the Biodiversity Conservation Act 2016 (BC Act) as including; an area periodically or occasionally occupied by a species or ecological community, and, the biotic and abiotic components of an area. They assert that “this patch, and the nine trees the subject of the application, provide foraging habitat for the Superb Parrot, a listed threatened species under the BC Act (Exhibit 3; 7), and potentially other species of native fauna. It cannot therefore be said that the trees are “not required” as the habitat of native animals.”
On the basis of the Council’s submission, and my observations on site, I am satisfied that all trees, alive and dead, and individually and collectively, perform a role as the habitat of native animals. Therefore, no exemption is available under cl 8(2) of the Vegetation SEPP.
Pursuant to cl 8(3) of the Vegetation SEPP, consent is not required if Council is satisfied the tree is a risk to human life or property. Council have not been so satisfied that this was the case, rather, finding that consent was required, and denying such consent.
As Galwey AC says at para 21 of Sheldon v Council of the City of Sydney [2020] NSWLEC 1619 (‘Sheldon’); “Where people or property assets are near trees, within the target zones of branch, stem or root failure, or within their root zones (for property damage) there is inherently some level of risk. Risk standards generally promote a qualitative description of risk levels, using terms such as low, medium, high and very high, or a quantified assessment, where a numerical probability based on likelihood of failure and likely resulting consequences is determined. It would be absurd if cl 8(3) was referring to the entire range of risk levels when providing such a broad exemption for tree removal under the Vegetation SEPP, as that would result in almost all trees being exempt. It is more likely that such an exemption only applies where the risk of a tree causing injury or damage is high or very high, and even then perhaps only when the risk is imminent, or likely to be realised in the short term, so that there is no time for detailed analysis of suitable mitigation measures that might avoid tree removal.”
All trees covered by the application for removal, satisfy the definition of a designated tree, for the purposes of the YDCP, and cl 9 of the Vegetation SEPP.
The on-site evidence exhibited by the trees, in terms of the likelihood of damage or injury, does not satisfy me that such a high level of risk, with imminent consequences, exists. I also find that the exemption at cl 8(3) of the Vegetation SEPP does not apply to these nine trees.
Having traversed the statutory framework, I find that the trees are trees requiring consent for their removal. I find also that Council can grant a permit for removal, subject to any conditions specified in the permit.

Should consent be granted for removing the trees?

The site, the subject of the application, about 6 hectares in total area, is located on the eastern edge of Bendick Murrell, which has an estimated population of 110 people. It is zoned RU5 under the YLEP, which is a village zone subject to the Vegetation SEPP. The applicant advises that the site had historical use as a traveller’s stock and camping reserve.
This application seeks a permit pursuant to the Vegetation SEPP for the removal of nine trees on the site, for the reason that the trees pose an unacceptable risk to human life or property. It has not been made in association with an application for the development of the site. The trees the subject of the application are identified on the Diverse Project Solutions plan (Diverse plan), dated 9 April, 2021 (Exhibit B) as trees 6, 20, 35, 52, 73, 147, 160, 172 and 187. The site is located in a Critically Endangered Ecological Community (CEEC).
The aims of the Vegetation SEPP are at cl 3. The first is to protect the biodiversity values of trees and other vegetation in non-rural areas, while the second is to preserve the amenity of non-rural areas of the state through the preservation of trees and other vegetation.
The applicant has provided draft Conditions of Consent for the development to be carried out in accordance with tree works application number TWA2020/0012 (as amended on 20 April 2021) in accordance with the supporting documentation listed below:

Plan of 2 DP 1229055 Bendick Murrell Road, Bendick Murrell showing selected tree information prepared by Diverse Project Solutions time stamped 9 April 2021 at 9:39AM.

Arboricultural Assessment Report dated 9 April 2021 (Version 7) prepared by McArdle Arboricultural Consultancy (McArdle report).

Flora and Fauna Assessment Report for Lot 2 Bendick Murrell Road, Bendick Murrell dated April 2021 (Final Version 3) prepared by Narla Environmental Pty Ltd (Narla report).

Cl 6.5 of the YLEP is ‘Biodiversity’, which applies to areas mapped as “Areas of High Biodiversity” on the Natural Resources Sensitivity Biodiversity Map. As this site contains areas so mapped, the Narla report assumes, at page 8, that this applies to the site.
The objectives of cl 6.5 ‘Biodiversity’ are;

(a) protecting native fauna and flora, and
(b) protecting the ecological processes necessary for their continued existence, and
(c) encouraging the recovery of native fauna and flora and their habitats.

Before determining a development application (DA) for land to which this cl 6.5 ‘Biodiversity’ applies, the consent authority must consider any adverse impact from the proposed development on-

(a) a native ecological community, and
b) the habitat of any threatened species, populations or ecological community, and
(c) a regionally significant species of fauna and flora or habitat, and
(d) habitat elements providing connectivity.

Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that-

(a) the development is designed, sited and will be managed to avoid any adverse environmental impact, or
(b) if that impact cannot be avoided—the development is designed, sited and will be managed to minimise that impact, or
(c) if that impact cannot be minimised--the development will be managed to mitigate that impact.

An 88B instrument is registered on the title, and it refers to a subdivision of the site. There are two restrictions, labelled 1 and 2. On the Diverse Plan, a biodiversity offset area is marked R1, where the restriction is that no development shall be carried out within that area as a consequence of the previous sub-division. It is also included as part of the conditions of consent for the tourist park, which includes the dwelling, the cabins and infrastructure in the south of the site.
The area marked R2 is given the label, "Rehabilitation area" and again, the restriction is that no development shall be carried out within that area. The entity empowered to modify, vary or release the provisions of the 88B instrument is Hilltops Council.
The applicant submitted that the Court would determine this appeal having regard to the following matters:

1. out of a property containing, by Mr Mr McArdle’s latest written estimate, about 200 trees, the trees that are subject to this application are those which are showing the poorest health, the greatest risk of failure, and the lowest protection value.
2. the site is the subject of a development consent for a tourist park which will intensify the use of the site. Mr Farrell claims that this consent has commenced, and that Gramadah is making arrangements at the moment to proceed with that consent. That is the context of this application. The occupancy of the site is otherwise unpredictable with trespassers who not irregularly use or traverse the site for various purposes including recreation, and collecting firewood.
3. the ecological impacts can be mitigated or minimised including by conditions of consent relating to the sapling replenishment strategy in the long term and for this reason, any ecological impacts will be minimal.

Given the broad discretionary consideration that is available to the Court, as conferred by cl 10 of the Vegetation SEPP, the applicant submitted that these are three matters that are entirely within the scope of the Court’s considerations, and that they are three good reasons why the Court would uphold this appeal.

The arboricultural evidence

Both Counsel set out three topics for examination of the arborists;

methodology,

remedial measures, and

retention value.

Mr Farrell submitted that Mr McArdle “has prepared a detailed arboricultural report based on a methodology recognised by the industry that analyses the trees and recommends them for removal and replenishment”. Council contended that the risk assessment methodology used by Mr McArdle, was flawed.
Mr Jackson acknowledged that he had not completed his own risk assessment, claiming that his role was to review Mr McArdle’s methodology and findings, on behalf of Council. He criticised Mr McArdle’s risk assessment methodology, and referred to his own comments in the joint report “that the methodology, the site assessment, and frequency of use employed by Mr McArdle does not automatically justify the removal of the trees”. He said the risk is not as Mr McArdle proposed.
Referring to page 37 of the Mr McArdle report, Mr Jackson says; “Mr McArdle says that he’s quoted the visual tree assessment methodology as described by the “Body Language of Trees: A Handbook for Failure Analysis”. Ms Menyhart took Mr McArdle to the ‘Mechanical’ and ‘Biological’ flowcharts in this methodology, and noted the author’s comment, “If cause for concern, (undertake) more detailed inspection”. These flowcharts detail a range of diagnostic tools and practices which constitute “more detailed inspection”.
Mr Jackson concluded that Mr McArdle failed to perform relevant higher level Visual Tree Assessment (VTA) procedures, even though he had referenced them in his final report, thus rendering his decisions insufficiently justified.

He said;

“Mr Farrell, I’m trying to point out to you and to the Court that the processes that Mr McArdle has said he’s followed in detail as best professional advice for his client and now for the Court, that the visual tree assessment, which he agreed primarily fell into the mechanical side of that visual tree assessment. And I’m pointing out to you that my concern about the trees on this site, and if we’re talking about tree 6, that if there were identified defects or problems with these trees, there should’ve been escalation of the analysis to justify the removal of the trees”.

Risk assessment methodology

Ms Menyhart took Mr McArdle to Le Bron v Chidiac [2019] NSWLEC 1194 (‘Le Bron’), where he had acted as an expert witness, under the jurisdiction of the Trees (Disputes Between Neighbours)Act 2006.
Ms Menyhart noted comments in the judgment of Le Bron, where the Court had found that the risk assessment methodology employed by Mr McArdle was flawed, relative to two main internationally recognised methodologies, Tree Risk Assessment Qualification (TRAQ), and Quantified Tree Risk Assessment (QTRA).
Mr Farrell objected to reference to Le Bron, on the basis that it is not clear as to whether that decision has application here, or whether that case should be confined to the specific statutory framework.
I advised that it is accepted in the industry that the TRAQ or QTRA methodology would be appropriate, both in a domestic Class 2 Trees (Disputes Between Neighbours) action, where risk is the issue, and here, in an appeal under the Vegetation SEPP, where risk is also the crux. Mr Farrell accepted this position.
Para 25 of Le Bron says;

“The extremely conservative risk matrix used is inconsistent with either of the internationally accepted risk assessment methods, TRAQ and QTRA. The method used by Mr McArdle lacks or omits the final level of assessment, which considers the consequences of impact of a branch or tree. The application of either TRAQ or QTRA to this situation would correctly result in a conclusion of low, or perhaps, in the pool area in summer, moderate risk. Therefore, the danger is being exaggerated with the method applied by Mr McArdle. In reality, the tree is mature, in good health and sound structural condition, and exhibits no obvious evidence of decline.”

Para 29 of of Le Bron concludes with; “It would be unsurprising if Ms Le Bron’s fear was exacerbated by Mr McArdle’s assessment of the tree as ‘high risk’.” Mr McArdle acknowledged to this Court that he continued to employ this method for parks, schools, and in general, and he used it in his assessment for Gramadah Pty Limited.
Mr McArdle’s application of this methodology suggests a poor understanding of the critical importance of defined target zones and reliable and well substantiated occupancy rates of targets within zones.
The following extract from pages 58 and 59 of the 26 July, 2021, Court transcript, reflects that this is the case;

“MENYHART…. can I frame my questions this way then? You would accept, would you not, that each tree would have a defined extent of risk, an area of potential impact, so to speak?
WITNESS MCARDLE: If the tree was declining in some way or had an issue with health, yes.
MENYHART: Please correct my terminology, but is that what I understand to be the target zone, being the area in which a target may be impacted by an event or a tree failure event?
WITNESS MCARDLE: Yeah, that's correct, yes.
MENYHART: You would agree, would you not, that identifying the target area would be an inherent part of risk assessment for a particular tree?
WITNESS MCARDLE: We’ve looked at an area that would be affected by a tree, yeah.
MENYHART: And that area may vary if it was a branch, as opposed to the whole of a tree?
WITNESS MCARDLE: It just depends on the - it depends on how far the branch would go, I suppose. I mean branches can spin and move away from the canopy. The tree’s height is the felling zone generally, but when the TCAA, say the two, two times the tree’s drop is the felling zone.
MENYHART: In your report, Mr McArdle, do you identify the target zones for any of the nine trees?
WITNESS MCARDLE: Currently it would be just a general commentary about - that there is a target.
MENYHART: You would accept, would you not, that a target is only at risk if it’s within the target zone?
WITNESS MCARDLE: Well, that's right. There are numerous targets. The Threatened Species website, they’re targets. There’s people accessing the trees, they’re targets. There’s fences, they’re targets, yeah. So there’s numerous targets you would look at in the zone.
MENYHART: Do you agree that your report does not identify the target zones for any of the trees?
WITNESS MCARDLE: Other than a general statement about the risk, we don’t identify a specific target, I mean, because that can change within a minute. You can have somebody in there. They’re now a target. So we give a - you know, turn around and somebody has parked a car under a tree.
MENYHART: For each tree you’ve identified as being creating a risk, there must be a definable extent of that risk?
WITNESS MCARDLE: Well, based on the defects that - and the size, yeah, I suppose there would be a defined area.
MENYHART: But you haven’t specified or calculated what that area is?
WITNESS MCARDLE: No, I haven’t. I haven’t stated an area. I’ve just - trees don’t act predictably. So, you know, if you put one in the area, a target may be struck by lightning so, you know, it’s unpredictable. Like Lonsdale states, it’s an evolving industry, so in his book, trees management principles and so we haven’t given that a target, other than a general statement.”

It is clear from this exchange, at least to me, that Mr McArdle’s responses display a lack of understanding of the difference between a target zone (as distinct from the overall site), and the type and rate of occupancy of target zones, as well as the imperative to accurately consider both these factors, so as to make a valid determination of the level of tree risk.
Omission of this level of analysis from his risk assessments, may thus not be overtly deliberate, in the sense that he does not appear to appreciate its significance, but it nonetheless has consequences, as has apparently occurred here with denial of insurance.
In his oral evidence, Mr Parris said, “We cannot insure it, no, because we have to disclose any, anything which could affect decline. The disclosure condition and we've tried simple disclose, (that) (sic) we've been informed by the arborist that our trees branches, which were dangerous, (so insurance) (sic) has been declined.”
As had been the case after Le Bron, and to a much greater extent here, I can only conclude that a premise of Mr McArdle’s risk assessment methodology, is that after assessing the tree or tree part considered hazardous, and the likelihood of it failing, the result thus determined, is predicated on the assumption that the said tree or tree part will necessarily impact a target, and result in severe consequence.
Regrettably, some arborists do believe that because a hazard, such as a piece of deadwood in a tree, might fall into the target zone that people traverse, that the level of risk determined should be based on the hazard necessarily falling and impacting the person as they cross the zone, and causing, for example, a serious eye injury. Such a finding is clearly unsupportable.
However, the evidence provided by Mr McArdle, thus far, leads me to conclude that this approach and reasoning, intentionally underpins this risk assessment method, which he apparently employs as part of his normal practice.
Ms Menyhart took Mr McArdle to “Target rating” in his Tree risk assessment matrix at appendix D, on page 32 of his report, which includes a reference to it being adapted from B Sullivan. The two axes in the table are ‘Failure potential’ and ‘Target rating’. Five different targe ratings are shown, 1 (occasional), 2 (intermittent), 3 (frequent), 4 (constant), and 5 (continual), with descriptors for each.
The initial fault with these descriptors for occupancy is that they do not follow a logical hierarchy. It appears to be based on the long superseded Matheny and Clark target rating categories of 1 (occasional), 2 (intermittent), 3 (frequent), and 4 (constant), but with the addition of 5 (continual). Continual is defined as “access paths and gateways, where people congregate in numbers, assembly areas”, while constant is “occupied rooms and buildings, residences, offices, canteen, and sit down lunch areas”. On this spectrum, continual would logically be 4; with constant, the highest occupancy level, assigned 5.
Notwithstanding this fault, in this situation, Mr McArdle’s risk assessment does not even include detailed consideration of occupancy, by people or property, of target zones under each tree’s canopy (or, a larger area, deemed appropriate relative to a tree’s particular hazards, and likely modes of failure). Instead, Mr McArdle has only considered occupancy of the overall site, and he identified the target rating for all subject trees as intermittent to frequent use, except for tree 6, to which he had applied frequent use.
In the absence of detailed target analysis, any tree risk assessment results are quite meaningless, as they consider only the defects in the tree, and the likelihood of failure of the tree, or parts of the tree.
The second key methodological flaw in the McArdle Tree risk assessment matrix is the ‘Failure potential’ axis. This has five categories, apparently borrowed from TRAQ, which are Very likely, Likely, Somewhat likely, Unlikely and Highly unlikely, but there is no consideration of the size of the failed part, as a determinate informing the risk result.
With TRAQ, a series of matrixes are used. The first level determines ‘Likelihood of Failure’ combined with ‘Likelihood of Impact’. The second level matrix results in the risk ranking, as a combination of the ‘Likelihood of Failure and Impact’ with ‘Consequences of Failure’. This takes into consideration the size and height of the defective tree part, and protection by other trees or buildings that may mitigate the risk.
The McArdle methodology omits consideration of the size of the failed part, and the consequences of failure, and this inherently skews risk results to be higher than TRAQ, or similar sound methodologies. Under the McArdle methodology, a failure potential of “Unlikely” is defined as “not likely to occur but could happen”, and “Defects are minor and not likely to cause significant harm”. When combined with a target rating of continual use, the resultant risk rating is ‘High’. The same variables using TRAQ correctly results in a ‘Low’ risk.
Compounding these methodological flaws, exchanges between Ms Menyhart and Mr McArdle, illustrated his incorrect application of these descriptors, and a likely poor understanding of the meanings of the terminology, notwithstanding that examples of usage were provided for each. This, of course, has direct implications on subsequent risk determination.
The following exchange from the Court transcript illustrates this misapplication;

“MENYHART: I just said that it’s not a parking lot. We are trying to determine what’s an analogous occupation rate, having regard to your methodology. You’ve assigned occupancy of intermittent and frequent. Intermittent use is analogous or similar, is how I understand your table, to occupation of a parking lot or oval. What I’m putting to you is that privately owned site, which has a fence and a sign which says “Do not trespass” would be more analogous to an occasional use being out of bounds areas and restricted areas.
WITNESS MCARDLE: I’ve always seen that (occasional) target rating as - to be fully restricted as a biodiversity zone that would be fenced off, where no one would have access and I can’t - it may be an issue with the target rating. It certainly would - I would certainly think that intermittent use would be something where somebody is - has occupation, at least one person or two people a week. I don’t see that that would be a restricted and inducted area. It’s not an inducted area, but it is restricted, but with a low fence it’s still got access. Number 1 should be where there’s no access.
MENYHART: Pardon.
WITNESS MCARDLE: Occasional use would be where there is no access for people.
MENYHART: But isn’t that inconsistent with the very descriptor of occasional use, which contemplate some access, but on an occasional basis?”

Mr McArdle’s application of these occupancy descriptors is clearly faulty. In light of his stated understanding of ‘occasional use’ as “where there is no access for people”, and ‘intermittent use’ as reflecting an area with access restricted by a fence, but usage by “at least one person or two people a week”, his application of intermittent to frequent occupancy for the trees, except for tree 6, would infer a relatively low usage level.
It is, therefore, difficult to understand how Mr McArdle can interpret the usage descriptors as he has, determine occupancy of the site to be “intermittent to frequent”, except for tree 6, yet conclude that all nine trees present a high risk, with four deemed so dangerous, as to be recommended “to be removed immediately as a priority 2 within 12 weeks”. During this period, based on evidence provided, site usage would have only comprised trespassers, and Mr and Mrs Parris.
Mr Farrell challenged Mr Jackson’s contention in the joint report, that “an area with restricted access is of low frequency of use, therefore in the ISA basic tree risk assessment form, occupancy rate would be rare”. Mr Farrell suggested that, in forming this conclusion, Mr Jackson had failed to take into account both the extent of any access by trespassers or people in the local area, and the approved use of the site with an operational consent for a tourist park.
Mr Jackson accepted that his occupancy rating of ‘rare’ did not consider access by trespassers, but he opined that consideration of imminent construction activity associated with the tourist park was relevant only to the extent that the risk assessment done by Mr McArdle is at a specific time with what’s happening on the site at, and during the time of his assessment. Though Mr Farrell pressed Mr Jackson to concede that “it is entirely reasonable to take into account approved uses and operational consents when you are determining occupancy rates”, Mr Jackson reiterated that his indication of a rare occupancy was based on the application before the Court.

While acknowledging the “problem” Mr Jackson had with the McArdle methodology, and Mr Sullivan’s table contained within, Mr Farrell asked Mr Jackson to “analyse the approved use by reference to this table for a moment”, “when there are vehicles and construction workers and site managers and toilet facilities and matters of that nature”, thus encouraging Mr Jackson to “accept that that would fall into target rating perhaps 2 or 3, intermittent or frequent use”.
Mr Farrell invoked the scenario where the “development is completed and at capacity, let’s say it’s New Years Eve (NYE), for example, and the place is heaving with revellers and party goers and visitors”. Given, previous evidence suggesting maximum occupation across all cabins would be about 20 people, and five car spaces for visitors, in adherence to the DA conditions, a total of about 50 people was accepted as site capacity.
Mr Farrell then encouraged Mr Jackson to “imagine it’s NYE”, and accept that “that’s getting towards target rating 4, constant use, or indeed target rating 5, continual use, where people congregate in numbers, but certainly it is, not rare.
When I sought clarification as to whether Mr Farrell meant “in the target zones”, given, from my estimate, that they constituted far less than 5% of the estimated 1.5 hectares of the ‘tourist park’ site, he cleverly segued with “you’ve raised a good distinction between certain areas of the site and I think there is an important distinction to make in this case between the biodiversity offset area, which will be fenced, and the rest of the site which has no such restriction on the movement of people”.
Mr Farrell’s quick diversion attempt should not distract from the relevant context, which is the individual tree’s target zones, not the entire site. Similarly, his amusing NYE scenario, where about 50 revellers are wandering the site in various states of inebriation, may be a useful ‘worst case scenario’, but it does not represent any semblance of normal site activity, and, notwithstanding vagaries of weather, it is no more or less likely, for a tree or tree part to fail on that occasion, relative to any other day. Therefore, it should not be allowed to colour attempts to determine tree risk as accurately as possible.

Assessing site occupancy

Within his summation, Mr Farrell, submitted that the applicant urges a more cautious and conservative approach to risk, and contrasted this to Council’s approach.
However, when one applies Mr McArdle’s methodology, the resultant risk result will not simply be conservative, but almost certainly, incorrect.
While a conservative approach sounds reasonable in principle, a key role of the expert arborist is to consider and synthasize all tree and site factors that contribute to risk. If a tree assessment method inherently results in a higher risk rating than is reasonable, this will lead to sound trees being removed unnecessarily. There may be negligible residual risk after tree removal, but a poor outcome for the client, in terms of both financial, and opportunity cost. Considering the myriad benefits to humans, and the interrelated ecological services which trees provide, this is not in the public interest.
Human appetite for risk spans a spectrum across individuals, thus it is not possible to remove subjectivity from tree risk assessment. Determination of a threshold, beyond which intervention is deemed appropriate to reduce risk, also varies between individuals and is a function of the tree owner’s or manager’s relative tolerance of risk, across the spectrum of very conservative to relaxed.
This assessment is also inherently informed by assumptions and uncertainties regarding typical human behaviour. So as to minimise assumptions and thus the impact of subjectivity, quantified data, such as for pedestrian or vehicle traffic, should be used wherever possible. In its absence, one should measure a representative sample, but this is difficult in this context, as future usage rates and patterns are unknown.
I am empowered in this appeal with sitting in the shoes of the Council which made the original decision, and am not restricted to the evidence informing that decision. Mr McArdle’s methodology has, to say the least, been shown to be flawed and inadequate. I consider it discredited. Mr Jackson did not undertake a risk assessment, rather he confined his analysis to reviewing Mr McArdle’s work.
In this light, it is reasonable and necessary for me to assess the tree risk. To this purpose, I am qualified, experienced and requalified in TRAQ, and trained on multiple occasions in QTRA, though currently unlicenced. QTRA is a mathematical probability based method, with results expressed as risk ratios. The alternative TRAQ methodology assigns descriptors of likelihood at each level, with the product of rankings for ‘Likelihood of failure and impact’ and “Consequences of failure’ informing the final outcomes of low, moderate, high, or extreme. Of the two, I have employed the TRAQ method, as it has greater international reach and credibility, and more in common with the McArdle methodology, than QTRA. I have used conservative, but realistic assumptions, as necessary, and as with most tree risk assessment, reference a one year period.

Target zone occupancy -Tresspassers.

A cursory internet search of usage of the adjacent equestrian facilities, focussed on upcoming and past events, showed events primarily occurring at Easter. International events, which Mr Parris had said were held over 3-5 days, with about 2000 participants and spectators, were noted as occurring prior to Olympic games, every four years. I concede that my enquiries were limited, and international events may also occur in conjunction with the Commonwealth games. Nonetheless, they appeared to be infrequent.
Mr Parris said that trespasser activity is more likely during the summer, rather than winter months, and that he had seen about 3-4/month. He said that they weren’t, or were unlikely to be, ‘locals’. Though Mr Farrell suggested that there may be others that Mr Parris did not notice, given the remote reality of the location, to double this number to, say, 7/month would seem a generous estimate, consistent with a conservative approach. Further, given the clear signage on the gate prohibiting trespassing, I have assumed trespassers’ duration of occupation of the site is likely to be relatively short.
At my site visit on 12 October, 2021, the area around most of the trees (the target zones) were relatively inhospitable, with tall grass and weeds hindering my access to trunk bases. I acknowledge that sustained recent rainfall is likely to have resulted in more grass growth than during average, or drought conditions, but the terrain surrounding the trees ranged from fairly flat to very undulating. Without site modification, these areas are unlikely to encourage picnicking, or other types of sustained human occupation.
None of the trees considered high risk by Mr McArdle, appeared likely to uproot, or windthrow, except perhaps 172 (two trees), which were small and dead. Three large trees, 35, 52, and 73, appeared to be relatively higher risk. They displayed a moderate to high level of deadwood, and low to moderate foliage cover, with branch breakage being their more likely mode of failure. Therefore, it is reasonable to base the radius of each tree target zone on canopy spread x 1.5, to allow for branches shattering and bouncing upon impact.
Most people, upon glancing at such trees, are unlikely to consider them attractive. Unlike the majority of trees nearby, they provide little shade, or protection, so occupation of these trees’ target zones is thus most likely to consist of transiting through. Given this scenario for trespasser activity, a target zone occupancy rate of rare, as proposed by Mr Jackson, is entirely reasonable.
Even applying the untenable assumption that a branch or stem will break and fall during target zone occupation, and, that the trespasser, though likely alerted by the noise of breakage, will be unable to evade impact, this target zone occupation rate alone, is less than the level where the cost of intervention to reduce risk further would be considered to be justified.
Given, however, that at my site visit all nine ‘high risk” trees were still intact, and apparently barely altered from descriptions and photographs of them, derived months or years earlier, the product of the probabilities of branch failure, impact with a target, and significant consequences must be deemed to be very low. Under the TRAQ methodology, when ‘Likelihood of failure and impact’ is deemed ‘Unlikely’, as it should therefore be in this case, the resultant risk is always ‘Low’.
Therefore, on the basis of the adduced evidence thus far, and my intentionally conservative risk analysis, I conclude that the risk of injury to a trespasser, as a result of the trees, is very low. The issue of risk from the trees to trespassers can thus be dismissed as a genuine consideration in these proceedings.

Target zone occupancy - Tourist park.

The parties were of different opinion, as to whether tree risk should be assessed on the basis of the tourist park’s future operation, and Mr Jackson said it should not. Mr Farrell tendered an email from Mr John Osland, Director Infrastructure, Hilltops Council, dated 7 February, 2020 (Exhibit G), “just in case there was any lingering doubt as to the status of the subject (Tourist Park) consent”. Ms Menyhart accepted, at least tacitly, that this email confirmed that the Tourist Park DA was valid, and current. Mr Farrell advised that works were imminent, so I am of the opinion that the risk assessment should reflect near future reality, and thus consider the impacts of the tourist park.
Mr Farrell noted that all previous cases where a determination of a Council made under the jurisdiction of the Vegetation SEPP had been appealed to the LEC, related to Sydney LGA’s. He spoke of the irony that though Bendick Murrell was obviously within a rural area, its zoning of RU5 rendered it subject to a SEPP that is explicitly titled, Vegetation in non-rural areas.
Here, notwithstanding that fire, rarely encountered in urban areas of Sydney, has rendered a few of the trees somewhat hazardous, there is generally low occupancy of target zones. In Sydney there is much greater likelihood of permanent (constant) targets, such as dwellings, and of a significantly higher human occupancy rate within tree target zones. This normally increases risk significantly.
Occupation of the tourist park is likely to follow a seasonal pattern, with little activity in winter. This is consistent with Mr Parris’ evidence about winter trespassers. To be conservative, yet realistic, I have based my findings on the busiest period between mid-September and the beginning of May, rather than the NYE ‘worst case’ scenario.
Broadly speaking, regional cherry blossom may attract some visitors in the cool spring, particularly across the 2 weeks of school holidays, but full occupancy is unlikely. Full occupancy may be likely during summer holidays, particularly after Christmas, and at Easter, perhaps in conjunction with the aforementioned equestrian events. In total, five weeks of full occupancy would appear reasonable. Mr Farrell advised that the full cabin occupancy level was about 20 people, excluding visitors.
Based on the Diverse map, tree 6 is located on the road verge, close to the property boundary. Vehicles may park under it for sustained periods on some occasions, and pedestrians may similarly walk under it, but target zone occupancy should nonetheless, be considered occasional.
Trees 20 and 35 are closest to the proposed tourist park facilities, particularly tree 35. In busy periods, target zone occupancy may be frequent or greater, but considered across the year, it would only be occasional to intermittent. Mr Farrell suggested that tree 52 was similarly close to the tourist park, but in fact it is deeper within the site, and much further away from proposed structures than trees 20 and 35.
Trees 147, 160, 172 and 187 are all remote from the tourist park facilities, with no obvious paths nearby. For these trees, target zone usage must be deemed occasional, or ‘rare’ per TRAQ terminology. Tree 73 has its own perculiarities. Though it is located in an offset zone, and of all nine trees, is the furthest from the proposed tourist park, it is located near the dam and a path, and it displays an obvious structural hazard.

Individual tree assessment

Mr Farrell encouraged me to take a nuanced approach, based on the approved use of the site, assessing each tree on its merits, in its site context, and considering the longer term benefits to be gained from replacement and replenishment, by way of conditions of consent placed on the applicant. This is a reasonable approach.
Tree 6: Located very close to the boundary, within the road reserve for Bendick Murrell Road, tree 6 displays an old wound, long stabilised by active occlusion, about three metres above ground level, likely caused by an included stem failure. There was no obvious sign of decay in the exposed heartwood. The tree also has a swollen trunk base, but both of these features are of no consequence in terms of hazard. It has a small cavity about one metre above ground, with signs of old termite damage, but while Mr McArdle said he detected termite frass, neither arborist, nor I, noted any current activity. Though reported as present by Mr McArdle, I also saw no ‘termite decay’ and the tree’s active occlusion around the cavity suggested that this feature was of no relevance, in terms of tree risk.
Mr McArdle referred to the drainage swale on the council road reserve, which he said was within the tree’s structural root zone (SRZ). He suggested that road edge grading by Council may have compromised roots, and thus the tree’s stability in the ground. Mr Jackson noted that Mr McArdle had previously “said that his examination of root damage was just to kick the soil with his boots”, which Mr Jackson, understandably, did not consider a “detailed analysis of potential root damage to tree 6”. When asked about his investigation, Mr McArdle said “No, I did not put a shovel into the ground, but I uncovered the soil.”
From my observations, any evidence of grading was well outside the SRZ, and primary woody roots exposed in or near the swale, appeared strong, actively growing, and well distributed around the tree. Further, where any previous structural root damage was observed, tree 6 had responded with appropriate compensatory growth. This issue, thus, can also be disregarded.
Mr McArdle also emphasised the lean on the tree, and what he said was an unbalanced canopy, towards the south. He said “I think it’s unbalanced because the swale underneath, it gets very wet, like I said before, the groundwater is an issue in this site, and that’s been a mechanical swale that’s been put in that is reasonably deep. It’s probably 35 to 40 centimetres within the structural root zone. So, I would say that would contribute to making the canopy unbalanced,.… and probable root damage according to the standards.”
Mr Jackson agreed that there is a lean, and that the canopy has a bias towards the street, “but I don't say it’s unbalanced”. He added, “Yes, there is a swale there. Yes, there is a lean. Yes, it’s next to the structural root zone. But from the - from my point of view representing the council, that is not conclusive evidence that’s leading to the decline of this tree”.
He added; “my training has indicated that a tree that is leaning is not necessarily a dangerous tree. And what has been presented by Mr McArdle has not demonstrated that the slight lean of the tree represents a huge risk to people walking along that street….. not convinced that the work that’s been done in that area would suggest that that tree is likely to fail at all.”
I am of the same opinion as Mr Jackson, and believe that the ostensibly unbalanced canopy, is primarily related to ‘normal’ phototropism, perhaps exacerbated by the old stem failure. Though primary woody roots could be observed, there were no indications of soil heaving, or cracks, that might reflect past, partial windthrow.
Overall, risk for tree 6 must therefore be determined as low or very low, even though vehicles may park within its target zone for sustained periods, on some occasions. Tree 6 shall be retained, with no intervention required.
Tree 20: The Diverse plan indicates that tree 20 is located in the southwest corner of the site adjacent to the cabins and the access path. It has codominant stems, with an occluded wound on the south stem. Mr McArdle claimed that a mallet test had indicated some hollowness on the south stem. I don’t dispute this, but this level of diagnosis is insufficient to determine the location and extent of any hollowness, and implications arising from it. Some epicormic growth was also evident.
Mr Jackson rejected Mr Farrell’s assertion, that “these are some clear signs of deterioration”. I agree with Mr Jackson but my reasons differ from his. He reiterated that:

“in risk assessment, as I pointed out in the VTA and other documents, that it needs to be - I need to be convinced that the removal of the tree is based on further analysis of that tree, which includes a resistograph, which includes a sonic tomograph, which could also include electronic resistance testing. And then on that information I would be able to make a decision as to the health and vigour and condition of the tree and/or whether further remediation may be done to the tree. And I’m not convinced that that’s been provided.”

Asked by Mr Farrell to explain why, in his opinion, there is sufficient evidence to have this tree replaced and replenished, Mr McArdle said,

“On the basis of this assessment - the standards would call it a preliminary assessment and it is in the standards in table 1, it looks at hazards and so I think it's pertinent that we look at the proximity of movement around that tree, of what's on the plan. It certainly does have either an impact damage there, it has fire scarring, it has cracking, which you've seen the evidence of large portions of Yellow Box failing on this site and you'll see that in, in other photos. I certainly - in my experience, I certainly - being regionally tied to the Yellow Box, over, over many years as a young man furnishing wood for my father out at Bathurst, looking at the railway corridors of Bathurst and Forbes and Orange and, and many other areas, Millthorpe, schools that I've looked at in the area. I certainly think this tree is high risk and, and I - well, I've certainly mentioned that it's something that I don't think we should retain. And I'm opposed to Ross' question on that. I think the surface crack is because the wood is so dense; it's one of the densest woods you have, I just don't think it's dehydration crack, knowing that the climate also has got snow and ice and you get cracking from ice like that, where you'll get a shear. So I'm totally opposed to Ross' (Jackson’s) assessment on that.”

That, the local climate features snow and ice, Mr McArdle has vast experience with Yellow Box, and Yellow Box wood is especially “dense”, is undisputed. This evidence, nonetheless, is insufficient to justify Mr McArdle’s conclusion; that water would freeze in the observed minor surface cracking, expand sufficiently to cause a major shear crack, and subsequent failure at the co-dominant junction. Therefore, I disagree with Mr McArdle’s high risk rating, and his recommendation for removal.
My rationale is that neither co-dominant stems, observed fire damage, occluding wounds on the south stem, an undetermined extent of internal hollowness, nor some epicormic growth, should be considered “clear signs of deterioration”. Minor surface cracking may technically be viewed as a sign of deterioration, but the junction between the co-dominant stems where I observed such cracks, appeared to be extruded and well structured. Junctions between co-dominant stems are normally only a hazard if they contain included bark, which this junction does not. I am satisfied that it is appropriately complex and strong.

Epicormic growth may be a symptom of stress, but it initiates in response to various biological and environmental triggers, and in this case, I’m not satisfied that its presence is “a sign of deterioration”. While I observed some fire impact on the tree trunk, active woundwood occlusion attests to tree health and vigour.
The tree’s location, adjacent to the proposed cabins and the access path, requires consideration, however. Asked by Mr Farrell, what steps, or actions, are appropriate in this context, Mr Jackson noted that the normal procedure would be an ‘impact assessment report’. This includes determination of a tree protection zone (TPZ), and examination of the area within the TPZ, with respect to development impact on that tree, both above and below ground, as guided by AS4970:2009 Protection of trees on development sites.
Mr Farrell noted that the ‘Diverse map’, the best available, was “somewhere in between a precise construction diagram and a mud map”, with respect to future development. Mr Jackson said that the absence of detail about the TPZ, SRZ, or distance of the tree from the gravel road and cabins on this map, restricted his ability to determine appropriate tree protection steps.
Given that the applicant is yet to lodge detailed design drawings and gain a construction certificate, the opportunity exists for the applicant and Council to determine final locations of structures, and determine specifications for works around trees, so they are outside the TPZ, and in compliance with AS4970:2009. In conjunction with adequate inspection, and enforcement, as necessary, this should provide genuine tree protection.
While this tree will be one of the closest to the development subject to a relatively high occupancy rate within its target zone for parts of each year, so long as the protection measures are implemented appropriately, I am sufficiently satisfied with its structural status and health to deem its risk as low, and thus acceptable. Tree 20 shall be retained.
Tree 35: Located roughly adjacent to some of the proposed cabins and adjacent to the proposed septic tank area, this tree has suffered significant fire damage, and it exhibits extensive dieback, deadwood, and epicormic growth. Mr McArdle referred to indications of minor fungal attack, of which both Mr Jackson and I were unconvinced, but this issue is of little consequence.
Asked by Mr Farrell, whether the tree was difficult to fix up, and indeed past the point of repair, Mr Jackson said;

“If you are trying to regain its former health, then yes, there is certainly limited scope for improving its environmental condition to regain its health and regrowth of branches. However, I'm not convinced that the extent of the damage at the bottom, lower of the trunk is enough to warrant its removal and I'm of the opinion that this tree could be left in situ with what we call - reducing the canopy by pruning to leave it as a stag and that way the risk factor would be reduced.”

Mr McArdle said retention was a gamble, and cited two fires events that had scarred this tree, since he became involved with the site about six years ago. He said the tree would “re-sucker, and those suckers can grow to a reasonable size and they - in Yellow Box, they are not well attached”. He strongly urged removal and replenishment with tree 35, and suggested that five trees would adequately replenish the numbers.
Mr Jackson agreed with respect to epicormic growth having weak attachment, but clarified that he was suggesting pruning to reduce the length of dead branches in the canopy to overcome the risk factor, not the live portion. He later provided photos to the Court, which displayed his recommended pruning location on dead branches. When Mr Farrell challenged this pruning recommendation, Mr Jackson justified the tree’s retention on its role encouraging biodiversity, in terms of habitat it may provide.
For tree 35, I disagree with Mr Jackson’s recommendations, and am of the opinion that his suggested pruning locations, may not sufficiently reduce the risk in the medium term. This is informed by its location close to proposed cabins, the anticipated construction and pedestrian activity, and the likelihood of structural deterioration of deadwood over a period of say, 3 years. Whilst I have specified this risk assessment as covering one year, in light of my conservative approach, and because of the opportunities for replenishment, it is reasonable to consider intervention, where target occupancy is likely, and structural failure may become probable within a few years.
With precise locations of structures yet to be determined, I am also concerned about the impact on the health of the tree, of root damage from excavation for the septic tank installation, and associated plumbing works. This is an issue that the applicant and Council should address with all trees growing nearby, again with recourse to AS4970:2009.
Applying Mr Farrel’s suggested nuanced cost/benefit approach for tree 35, it is reasonable to deem risk as moderate during peak periods. Though this isn’t necessarily a threshold suggesting intervention is urgent, there are more safety, ecological and biodiversity benefits to be gained, particularly over time, through the replenishment program than from retaining the tree for its habitat role. Therefore, tree 35 shall be removed, and replenished.
Tree 52: Located to the east of tree 35, deeper within the tourist park area, and further away from structures, this tree has received extensive fire damage at its base, which has ringbarked the main trunk. Mr Jackson accepted that the tree is about 80% dead, including its main trunk, which had fractured and fallen at about seven metres above ground. The tree’s second leader, likely to have initiated long ago from a lignotuber near ground level, is growing at an angle of about 30 degree from the vertical with a live canopy. Mr Jackson again criticised the inadequate risk assessment analysis completed by Mr McArdle to justify the removal of all nine trees, but, as with tree 35, Mr Jackson agreed that there are limited steps available to improve the tree’s tree health to a significant degree.
With respect to the “safety of persons around this tree”, Mr Jackson recommended pruning to reduce the dead trunk and branches, and retain the tree as a ‘dead trunk/live branch stag’. The arborists differed about the impact such pruning would have, with respect to altered forces and loads exerted on the tree.
Mr McArdle opined that the marked reduction in the weight of the vertical stag resulting from the pruning, will bring relatively greater wind impact on the canopy of the lateral leader than on the vertical dead leader, and thus less force distributed down into the stem because of the other (sloping) stem absorbing some of the force. He again noted that the tree would produce (poorly attached) epicormics and that, in these circumstances, it would not be advisable to retain it amongst a tourist park.
Mr Jackson submitted that there is already evidence based on observation, that this tree is coping with the amount of weight being distributed throughout the live portion, versus the main portion of the tree that appeared to be dead. His pruning recommendations, therefore, would not alter in response to Mr McArdle’s rationale.
Ms Menyhart objected to Mr Farrell’s attempt to seek the arborist’s opinions, as to whether replacement and replenishment is a better ecological outcome for this site. She stressed the issue for the arborists was tree risk, and they were “probably not the best persons to direct questions to” about ecological value.
Though this tree’s more remote location on site significantly reduces the likely occupation of its target area, and thus risk, it is deteriorating nonetheless. While I am not satisfied that the pruning proposed by Mr Jackson would bring any marked change on forces impacting the tree, it does not provide the best outcome here. With about 80% trunk ringbarking and apparently slow occlusion of wounds, I’m not convinced that Mr Jackson’s 15-40 year suggested Useful Life Expectancy (ULE) is realistic. Assuming relatively ‘normal’ conditions in the interim, I question whether the tree will remain very “useful”, notwithstanding that I don’t doubt its potential to survive for many years.
In summary, though it is difficult to justify removal of this tree if based purely on risk, its relatively low ULE which is likely to progressively reduce as the tree deteriorates further, again tips a nuanced cost/benefit analysis in favour of removal and replacement. Therefore, this is my determination.
Tree 73: Located in the biodiversity offset area near the dam, this Yellow Box can be considered to be of mid-maturity, with minor fire damage to its trunk base. The soil surrounding the tree has been disturbed, apparently by mechanical activity, but perhaps also through erosion. Some soil has been removed, and there are indications of mounding. The tree bifurcates about three metres above ground, into one fairly vertical live stem, and a dead stem which leans at an angle of about 20 degrees from vertical towards the west. There is also a cavity which looks shallow, about five metres up the more vertical trunk, and minor basal suckering.
Mr Jackson acknowledged seeing soil changes around the roots within the structural root zone and movement of soil or removal of soil around the tree. Mr Farrell asked him to agree that “potential damage to the roots in the structural root zone” was, along with the fire impact and cavity, likely to cause tree deterioration. Again, Mr Jackson criticised Mr McArdle’s analysis, saying;

“I could not see any root damage in the soil there. Mr McArdle has admitted that he did not use a shovel and he just kicked the soil with his boots to substantiate the root damage. He's assumed that with the removal of soil that there has been root damage to tree 73.”

Mr McArdle, when asked why the tree should be removed and replenished in accordance with his recommendations, cited three issues;

“One is that it's a regular walking track from George's house down to the area of the tourist village, which George (Parris) is fond of. The second thing is that it's almost within the dam wall, which is only - less than 10 metres away. So the drainage there is quite substantial. And the other point that I want to make is that there - that, that soil, when I was there earlier in 2014 was quite stable, but it's appeared that a number of tonnes of soil have been taken or scooped or pushed around. I would strongly suggest that you'll see decline in this tree and because it's near a dam wall it's not something that I would think would be suitable for retention, even though it is a biodiversity area. It's root damage, when you have had machinery on is not apparent until like five years down the track and it starts to decline.”

While changes in soil levels are evident, like Mr Jackson, I didn’t see any root damage here. Few roots were exposed. I am not convinced by Mr McArdle’s claim that roots “are almost within the dam wall, which is only - less than 10 metres away”. He provided no evidence of exposing and mapping roots out towards the dam wall, or of root damage to or near the wall. From my imperfect recollection, the dam was more than 10 metres from the tree and the dam walls are not raised prominantly. The water level appeared to be below the surrounding ground level, even after recent rains.
I disagree with Mr McArdle’s ‘strong suggestion’, that the tree will decline from root damage caused by machinery, and because it's near a dam wall. There were signs of soil disturbance around the tree, but no obvious indications of root damage, and Mr McArdle’s provided no photographs, or other evidence, to support his position.
Roots from this tree can and probably will grow towards the dam. To date, however there is no evidence of root damage to the dam wall, nor to anything else, nor reports of any problems. In the absence of evidence, there is no basis to assume that problems will arise, so this issue is set aside.
My inspection did, however, reveal that one side of the tree’s bifurcated junction is cracking, and failure of the large leaning stem is probable. The tree is located adjacent to, and is leaning slightly towards “a regular walking track from George's house down to the the area of the tourist village”, and is near the dam. Anecdotal evidence suggests that the dam attracts usage by trespassers, at times fairly prolongued, and usage of this track is likely to increase with the tourist park development, and with further construction and occupation of adjacent new houses.
Though I doubt that occupancy of the tree’s target zone will rise beyond occasional, usage around this area is unpredictable, the fault is sufficiently severe, and failure sufficiently probable, that intervention is appropriate. The sloping stem shall initially be section felled from a sound point above the junction, with a final single cut executed towards the vertical stem, in compliance with diagrams in AS4373:2007, Pruning of amenity trees.
While I may ordinarily not recommend this type of pruning, this tree provides considerable environmental benefits that are likely to increase. In this context, there is an imperative to retain the second stem untouched. It is fairly vertical, displays light but healthy foliage coverage, and sufficient vitality to expect a reasonable rate of occlusion around the wound. Even in the unlikely event that this vertical stem did also fail in the medium term, it would almost certainly fall away from the path into a target zone with a low occupancy rate, and thus a low risk of injury. This tree shall be retained and pruned as specified.
Tree 147: This is the only Eucalyptus camaldulensis (River Red Gum) amongst the trees that have been recommended for removal. Reported by Mr McArdle as suffering “some physical damage with a wire in the stem”, I observed only minor fire damage. This relatively small tree is semi-mature to mature, and growing in close proximity to a larger specimen. It bifurcates less than one metre above ground level. Largely in response to shading by the larger tree, the two main stems of tree 147 are growing phototropically out towards the light.
Mr McArdle claims that weakness from an old ‘flush cut’, and the presence and location of the wire in the top of the co-dominant junction are likely to produce a fracture. He said that “Yellow Box don't do well with iron, and they tend to have a black sort of crevice with iron and it doesn't seem to weld well. So my thought would be, I'd remove that tree and put five more, it would be a lot better scenario.” This tree had been identified in the application as a River Red Gum.
Mr McArdle stressed the tree’s limited room for expansion and growth, and the forces exerted on the co-dominant junction by the two long stems, especially when subjected to strong winds typical of this site.
Mr Jackson agreed with Mr Farrell that there's been a pruning point, but claimed “that wound does not show decay, it's just showing that the tree is repairing around that pruning cut as wound wood or it's starting to occlude, so it's trying to cover over, but I don't see how the wire has made a significant impact on this tree's longevity”, and it “is not necessarily going to be reason for structural failure”.
He agreed that it was competing with a mature tree, but said this “is typical of a tree that's in a shady situation and the branch, the trunk is reaching for the sunlight, which all trees try to do. He thus refuted that the stem lean was “a negative feature about this tree”, and claimed that it was “not dissimilar to a lot of the trees around the site”.
Mr McArdle’s contentions do not adequately justify removal of this tree. I agree with Mr Jackson that the wire issue is minor. During my inspection, the wire readily broke away where it emerges from the timber in the junction, at which point, I would anticipate rapid wound occlusion similar to that exhibited in Plate 18, around the old ‘flush cut’. While I concede that thick chain or bulky metal items enveloped within a junction, may well compromise structure and strength, I’m not satisfied that this wire has done, or is likely to do so.
The observed active wound occlusion suggests strong health and vigour, and both the co-dominant junction, and the stems appear to be sound and strong, in spite of their lean. I agree with Mr Jackson that the tree’s close proximity to another is normal and certainly not a reasonable basis for removal. Though it may be exposed to westerly winds, it is closely protected by many taller trees on all other sides, and this will mitigate wind impact.
The tree is located at the far north-east of the tourist park, away from existing paths where occupancy of its small target zone is likely to be negligible even during ‘peak periods’. Given this minimal site usage, and the tree’s sound condition, tree 147 presents a very low risk, and shall be retained.
Tree 160: Two small semi-mature trees, located in the south-east of the site within the tourist park area, are jointly considered as tree 160. In his report, Mr McArdle suggests they may be lignotubers emerging from a shared root crown. Both arborists accept that the trees appear to show mechanical impact, but only one wound, covering about 25% of the larger tree’s trunk circumference was relevant, and it was actively occluding. Both trees have reasonable canopy cover, are largely free of epicormics, and exhibit good vigour. Mr Jackson reported seeing no fire damage.
These trees are located on the eastern edge of the tourist park, with small target zones, far distant from current, or likely future occupancy and usage. Again, these are sound trees, growing in a wind protected area, which is subject to minimal access or activity. Hence, target zone occupancy is deemed occasional, at its peak, and tree risk is very low. Trees 160 shall be retained.
During submissions, Mr McArdle accepted that trees 160, along with tree 187, may be appropriate for retention and remediation, rather than removal and replacement. He recommended staking the wounded tree to provide additional strength. Mr Jackson strongly disagreed, and referenced his experience as a landscape contractor over 25 years. He said “We've got two trees growing out in the open that are quite stable and they're quite healthy, and my opinion is you won't need to stake them at all”.
I concur with Mr Jackson. As with trunk and branch development, root growth and strengthening is not passive, but occurs in response to the various environmental loads on the tree, particularly wind and gravity. Given the forces exerted on the tree over its life to date, and its sound health and vigour, one can expect that the root system has established with sufficient strength to accomodate the loads resulting from its exposure and lean. Staking these trees is contra-indicated, and it has long been accepted, in general, as a poor arboricultural practice.
Tree 172: Located in a remote area of the proposed tourist park, close to 160, this is two dead trees, again recorded under one number. Regardless, I accept Council’s position that these trees, whether or not they display obvious hollows, are likely to contribute to the site’s biodiversity and are not subject to exclusions that may be available under cl 8 of the Vegetation SEPP. Council have granted no such exclusion, thus the trees must be assessed on their merits.
The arborist’s differed as to whether roots were “releasing”, and thus whether the trees were stable in the ground, a key element in justification for tree removal. Nonetheless, when Mr Farrell questioned why, as an arborist, you would retain a dead tree in a future operational area for a tourist park, assuming the ecologists say it has no ecological value, Mr Jackson supported the removal of the trees, compensated by replacement trees. I agree that this is the optimum outcome, which will be ordered for trees 172.

Tree 187: Located in the far south-east corner of the site, within the biodiversity offset area, R1, McArdle claims this tree has signs of termite damage, and a hollow cavity at the base, which he detected by sounding with a mallet. According to his report, it is positioned on the edge of the patch where it would be susceptible to wind.
Mr Jackson agreed that there is a basal wound, but again questioned the adequacy of Mr McArdle's testing, given that sounding with a mallet is a preliminary test, that does not result in quantification of the extent or location of hollowness, and thus is insufficient to determine the significance and extent of the cavity. In the absence of additional information, McArdle's tree removal justification is thin at best.
McArdle's cited unspecified research which he claimed, “says that a cavity is one-third then it would be considered as a 70% cavity and therefore the threshold, the safety threshold has been exceeded”. This field based research, normally attributed to Dr Claus Mattheck, in fact suggests that trees generally become much more prone to trunk breakage once centralised stem hollowness exceeds about 2/3 of diameter. This is, however, normally applied only as a guide which prompts arborists to carefully consider the site context, in terms of, for example, targets, exposure to wind, and characteristics related to tree age, vigour and species. As noted, Mr McArdle's mallet testing provided no evidence to inform the application of this guideline, whereas Resistograph or Sonic Tomograph tests would likely have provided such data. Mr Jackson noted that Mr McArdle made no reference to the unspecified research in his report.
Mr McArdle, pressed to substantiate his reasons for recommending removal, spoke of a stem wound, and an “unbalanced canopy”, but added that “this is one that I thought we might be able to retain from the previous evidence”. He, nonetheless, claimed that the fence was a relevant target and suggested putting a warning sign on the fence near the tree because “there's some very high hazard trees up in this area”, even though the biodiversity offset area was fenced off. When he claimed persons outside the fence were targets requiring consideration, Ms Menyhard noted the absence of evidence suggestive of pedestrian activity in this area.
At my site inspection, I saw a trunk wound resulting from fire, and also detected an internal cavity. Nonetheless, the tree displayed reasonable health and vigour, and occlusion around the wound. It is a small tree with a similarly small target zone, in a fenced offset rehabilitation area. It is not inaccessible, but is remote from the proposed tourist park, where it is reasonable to expect very limited if any target zone occupancy. Therefore, this tree shall be retained.
In summary, trees 35, 52 and 172 (x2) shall be removed, with compensatory replenishment. Tree 73 shall be pruned and retained. Trees 6, 20, 147, 160, and 187 shall be retained, with no intervention required.

Remediation and risk mitigation

Mr McArdle’s analysis lacks appropriate consideration of measures to remediate the trees, and/or mitigate risk. The primary purpose of remediation is to boost tree health and vigour, but it may also improve, and/or prolong, structural integrity and/or stability in the ground.
Mr McArdle’s assessment did not suggest remediation measures in respect of any of the nine trees, instead recommending all for removal based on perceived high risk, and low retention value. On page 21 of his report, he says, “Remediation of these nine trees is not viable as the assessed trees have either structural faults, impacts or are dead with defects”. Mr Jackson suggested that Mr McArdle “hasn’t considered remediation of any of the trees. He’s jumped from high risk, (and) a high level of occupancy immediately to removal”. Following cross-examination from Counsel, Mr McArdle conceded that trees 160 and 187 “may have some room for remediation”.
Remediation measures include mulching, a watering program, and weed and grass removal, as they may otherwise compete for water and nutrients. Integrated pest managment focussed on monitoring, manual removal and biological control is another remediation measure. Pesticides should be avoided so as to protect the biodiversity of the CEEC.
Typical risk mitigation measures would include routing paths around, rather than through target zones, or planting target zones with prickly shrubs to discourage access and sustained occupancy. Even mulching with coarse, woody organic matter has been shown to significantly reduce the intensity and duration of occupancy of target zones, which had they remained as shady grassed areas, may otherwise encourage picnics, and the like.

The ecologists’s evidence

The vegetation within the site, including the trees the subject of the application, is part of a remnant vegetation patch which falls on the ecotone between the following two plant community types: Yellow Box – River Red Gum tall grassy riverine woodland of NSW South Eastern Slopes Bioregion and Riverina Bioregion and the White Box – Yellow Box – Blakely’s Red Gum Grassy Woodland and Derived Native Grassland (Exhibit 3:6). According to the Narla report, at page 19, the site has status as a CEEC under the BC Act, but the vegetation on site does not meet the requirements of the Federal Environmental Protection and Biodiversity Conservation Act 1999. Narla’s description of the CEEC is referenced to Benson (2006) who considered it “a threatened plant community that is very poorly represented in protected areas as of 2005”.
Evidence was heard from the ecologists, Nicholas Skelton, for the applicant, and Robert Speirs, on behalf of Council. Both agree that the site is correctly classified in the Narla report, which identifies the bioregions and the fact that this site is on the ecotone on the transition zone between plant communities, and that it is a CEEC.
Five topics were listed for consideration by the ecologists. These were;

hollows,

the critically endangered ecological community and its spread more generally,

this individual patch, how it is mapped, and fragmentation,

mature trees,

replacement ratios.

Hollows

Council contended that this patch, and the nine trees the subject of the application, provide foraging habitat for the Superb Parrot, a listed threatened species under the BC Act (Exhibit 3: 7), and potentially other species of native fauna. Council thus dispute any claim that the trees are “not required” as the habitat of native animals, where habitat is defined in the BC Act as including:

(a) an area periodically or occasionally occupied by a species or ecological community, and
(b) the biotic and abiotic components of an area.

The ecologists agreed that the main tree species on this site is the Yellow Box and that it rarely forms hollows, largely because it is a “very hard, durable wood”. With respect to Superb Parrot habitat potential of a hollow identified on tree 6, Mr Speirs said it was too close to the ground, and that they tend to use hollows that are 4 to 5 metres and above in eucalypts, and that he’d “never seen one next to anywhere that you can look into. That's not to say that other common species don't. But, certainly Superb Parrots don't. It's also, having a look at that hollow, it would take a fair bit of work to take what's there, that small cavity and produce it or form it into a hollow that a parrot could use anyway.”

Though Mr Farrell took Mr Speirs to his comment at page 6 of the joint report, where he agreed that “none of the nine trees currently support functional hollows, stick nests or other fauna nests”, Mr Speirs and Mr Skelton agreed that tree 6 is an example of a tree that may provide foraging habitat regardless of the fact that it may not have a hollow suitable for the Superb Parrot.
Mr Speirs disputed that the impact of tree removal on potential threatened fauna that may occupy the subject site at some stage of their lifecycles, was negligible, but accepted it was minor.

The CEEC and its spread, more generally

Council submitted that this patch of the CEEC is of particularly high conservation value as it is the only large remnant of the CEEC remaining in relatively intact form within a five (5) kilometre radius (Exhibit 4).
Mr Farrell noted that Yellow Box Woodland has a large geographical range, from the “South East Queensland bioregion going all the way through the tablelands in the north, down through the Sydney bioregion, down to the New South Wales Southwestern Slopes and into Victoria”, and took the Court to 3.13 of the CEEC scientific determination, which says; "The geographic distribution of the Yellow Box Woodland is not restricted. The best estimate of the extent of occurrence is 702,800 kilometres squared based on a minimum convex polygon enclosing likely occurrences of the community.” Mr Speirs agreed that the ecological community can occur across parts of all of those bioregions.

The individual patch, how it's mapped, and fragmentation

In disputing the ecological significance of the site, Mr Farrell referenced page 53 of the Narla report, which says, "More than 40 hectares of the Yellow Box Woodland occurs within the locality of the subject site.", and that "The vegetation proposed for removal on the subject site therefore represents less than .1% of the estimated local occurrence of the CEEC."
Mr Farrell asked Mr Speirs to acknowledge that the conditions of consent, as they're currently drafted, require the planting of replacement trees before any of the subject trees are removed. Asked to opline on the likely impact of the trees’ removal, with consideration of this, Mr Speirs said;

“Provided that there is a level of certainty and assurance that over a period of time, and when we work in a temperate woodland community that period of time is quite long, provided we are given some certainty that that will actually meet that objective, thereby replacing what is taken, then yes the removal of a number of trees as proposed, with appropriate replacement, will effectively offset the loss.”

Mr Skelton did not agree “that removal of the trees would contribute to fragmentation, “because it's a woodland community, the trees are naturally well‑spaced and the removal of nine trees in an area of this size would not contribute to fragmentation because the community would still exist. He added that, “we'd still map it the same way”.
Highlighting the complexity around this issue, Mr Skelton said “there's fragmentation for fauna species and you could also have fragmentation for the ecological community as well, and you could have fragmentation for the actual tree species. So, if you are talking about this tree species then it would probably be as far as the pollen can be transferred by bees or birds. And in this case the main tree species are eucalypts and the mechanism for their pollen getting from tree to tree to allow crossbreeding would probably be through birds and bats and possibly bees, and fragmentation would start to occur when the distance is probably more than 200 metres. So, the removal of individual trees would not cause a gap between canopies of greater than 200 metres. If it did cause a gap of greater than 200 metres then I would agree there would be fragmentation.”

Mature trees

In response to Mr Speirs claim that Yellow Box take 50 years to reach maturity, Mr Skelton said, “No, I'd say 50 years is quite an old tree. To reach maturity, maturity is defined as when it's reproducing, so when it's flowering and producing seed. I would put a much shorter (period) than 50 years, 50 years would be a very mature tree. I would say in the order of probably 15 years would be a mature tree that could reproduce for the Yellow Box.” He opined that five of the trees were mature, that tree 172 was dead, and three were juveniles, likely younger than 15 years.
As to whether the removal of mature trees is likely to have a greater environmental impact than the removal of juveniles, Mr Skelton said, “the removal of mature trees is likely to have a greater impact than the removal of juvenile; a greater environmental impact, slightly, because they’re able to reproduce now rather than reproduce in the future. Normally hollows would be an issue but this species doesn’t produce hollows frequently, so, yes, it’s mostly to do with seed production and the, the size of the canopy is generally bigger but not necessarily.”
In response to Mr Farrell’s request to consider the condition of the trees, Mr Skelton said they are generally consistent with the arborist’s comments from page 7 of the joint report, notwithstanding that he had not conducted a site inspection. He agreed with the Narla report conclusion, at page 58, that “The trees proposed for removal are in a deteriorated state offering minimal habitat value”. Expanding on this, Mr Skelon said “a tree in a very poor condition has no sap flowing or very little sap flowing, so you don’t get so many insects such as sap‑sucking insects and leaf‑eating insects which reduces the fauna habitat; there is less shade; there is less food for animals that eat leaves, so yes, they’re generally of less habitat value than a healthy tree.”

Replacement ratios

Mr Farrell took Mr Speirs to replacement ratios, stressing that Council’s DCP requires that trees, once removed, be replaced at a ratio of two to one, and that it doesn’t refer to the type of stock used for replacement ratios. He noted that the applicant in these proceedings proposes a replacement ratio of five to one, whereas “in theory you would be able to satisfy the provision in the DCP by using tube stock at a ratio of two to one.”
Mr Farrell challenged Mr Speirs claim, at page 8[2] of the ecologists’ joint report, that “The proposed compensatory plantings of woodland eucalypts if successful would take at least 50 years to develop to the size that would make a substantial contribution to the woodland canopy.”
Mr Speirs accepted that proposed removal trees vary in height between seven metres and 20 metres, and thus average height of the tree to be replaced is about 13 metres, and that the YDCP defines a tree as “5 metres in height or has 200 millimetres diameter”, He opined that only under perfect conditions could Yellow Box could get to a height of five metres within seven to ten years, and to a height of about ten metres within another five years after that. He added, (after 12-15 years), “I would say they’re starting to make a contribution, probably not substantial, because most woodland eucalypts grow up to that height reasonably straight and then the canopy broadens as the tree ages and matures, so the age at which they tend to contribute more, from a projected foliage cover point of view, as in looking from the satellite down to how much of a canopy the tree is providing, generally it occurs later in the tree’s lifespan than early.”
Mr Farrell challenged Mr Speirs; “If you agree that the three in best case scenario would be about 10 metres and have a canopy after ten years and it would start flowering and reproducing after 15 years, it’s a bit of a stretch, isn’t it, to say that they wouldn’t start make a substantial contribution to the woodland canopy until they’re at least 50 years old?”
Mr Spiers disagreed, and said, “I believe that eucalypts, particularly Yellow Box, in order for them to start, you know, functioning as a canopy tree and providing the vast sort of array of functions that canopy trees provide, needs to be an age of about 50 years before it starts covering all those bases and therefore replace what’s taken if those trees taken were mature canopy trees”. At 10 to 15 years old, “trees will contribute to the woodland canopy, but they are not, at that stage, providing all the functions that (mature canopy trees) in a woodland provide and I would agree that at that age and at that size they are a valuable tree in that patch, they have the potential at that point to - and at that point are likely to be (performing) quite important functions and they certainly have the potential at that size to grow, and for a very long period of time provide ecosystem services in that patch that are very valuable to that patch.”
Mr Farrell presented Mr Speirs a final scenario on this topic; “If it’s the case that the Court decides in the council’s favour in these proceedings and it decides not to order the removal of any of the subject trees, it would follow that there would be up to 45 saplings that would also not be planted in the subject area, and in 50 years’ time or even 25 years’ time isn’t it an advantage ecologically as the subject trees die and pass away to have new growth and replenish trees in their way?”
Mr Speirs agreed, on the proviso “that there’s a level of certainty that it achieves the purpose and that these planted trees do go on to provide that function for the longer term, thereby replacing what has been lost, for those trees which are agreed to be in a condition which is declining and they, because of that, wouldn’t provide long term similar broad functions in the landscape. Then I agree that it would be a better outcome if everything is achieved through that planting program, it would be a better outcome for the biodiversity for the patch in the long term.”
In terms of ecological value, he said “My view on that would vary tree to tree”. “There are certain trees of the nine which I would say have limited ecological value going forward so it doesn’t apply uniformly”.
Ms Menyhart took Mr Skelton to the amended Conditions of Consent proposed by the applicant (Exhibit F). He acknowledged that the benefits gained from the replenishment trees increase over time, and particularly, when they mature reproductively.
Mr Skelton agreed that “the purpose of offset planting is to improve the site so as to achieve a better standard than what’s removed”, and that it is important that the trees do achieve their potential. He said, “The number of trees, where they’re planted, and how old they get are three different ways of looking at the same thing; they all contribute”.
Asked whether “having a plan and schedule for tree planting, which specifies how those trees are to be maintained to reach their potential, would be a common occurrence in development conditions, Mr Skelton said, “I think it could be achieved by a condition of consent, but an alternative which is possibly slightly better would be a management plan of several pages, yes”. He noted, however, that conditions for “Tree Replacement and Revegetation” that are now re-numbered 22 to 30 in Exhibit F, were submitted as conditions of consent.
Mr Skelton agreed with Ms Menyhart that “those conditions relate to the planting of the trees”, but “do not relate to how those trees are to be looked after once they’re planted” He also agreed that reinstatement of condition 35, which had been struck out by the applicant, would help ensure the planted trees survive. He said “Yes, it would in the long term, yes.”
Mr Farrell said that condition 35 may be more acceptable if ambiguity was addressed by replacing “All trees (or tubestock) are to be replaced…”, with “All planted trees are to be replaced…” Ms Menyhart confirmed “that it’s the replacement of offset trees that is intended to be regulated by that condition”. Mr Skelton, asked to quantify the total planting cost, suggested $80/ tree “if you’re planting, say, 40 or 30 of them”, rather than the $120 proposed by Council.
The conclusion of Ms Menyhart’s examination of Mr Skelton is best included as verbatim;

“MENYHART: We’re looking at measures to ensure that any replacement trees get to that point. This application is not made pursuant to the EP&A Act, it’s made pursuant to the vegetation SEPP. Pursuant to the vegetation SEPP conditions can be imposed on a permit for tree removal but there’s no reference to the condition regime in the EP&A Act. What I’m putting to you is it would not be unreasonable to require a bond to secure each of these offset trees to ensure they reach maturity. You would agree that a bond is one method that is used by local councils or others to secure tree growth?

WITNESS SKELTON: I am unfamiliar of - I, I can’t think of any cases where a bond has been used under the SEPP. DAs, yes, but for SEPP I, I just don’t know, I couldn’t answer that. That’s more of a legal question.
MENYHART: Is there any reason a distinction would be made in your view if the objective is to ensure trees reach maturity?
WITNESS SKELTON: I can’t see any problem with that mechanism other than it may not be enforceable, that’s all.
MENYHART: You would agree that a bond would readily facilitate the replanting of any trees that are lost on this site?
WITNESS SKELTON: Yes, that would be a mechanism that would ensure replacement of any losses.
MENYHART: I put to you that a condition in the nature of condition 20 would be appropriate, perhaps subject to the 120 being amended to 80. Would you agree that that condition would assist in assuring that the replanting proposed would reach maturity?
WITNESS SKELTON: Just let me read the condition. Yes, that would achieve that goal.”

My Findings

Reviewing the adduced evidence and expert’s opinions, and bringing my own arboricultural expertise to these issues, I conclude the following:
As a result of the risk assessment, there are three trees, 35, 57, and 172, for which removal permission will be granted. Returning to Mr Farrell’s nuanced approach to managing this site, the benefits from replenishment should exceed the ecological costs of removal. Consistent with Mr Skelton’s comments, that “the purpose of offset planting is to improve the site so as to achieve a better standard than what is removed”, the compensatory replanting and replenishment scheme shall be structured to maximise the likelihood of long term success.
The site is relatively exposed, and subject to strong winds, as noted in the McArdle report, and confirmed by Mr and Mrs Parris during the site visit. Mr McArdle also submitted that it is subject to water inundation and pooling, and receives snow, and sufficiently cold temperatures for ice to form in cracks in trees.
Individual trees grow, and develop strength in trunks, branches, and roots, relative to the protection, or lack there of, afforded by other trees and or structures in their immediate vicinity. Put simply, trees normally develop strength in trunks, branches, and roots, sufficient to handle average extreme conditions to which they are exposed. The taller trees, and those at the edge of the patch, are thus more adapted to harsh conditions due to greater exposure to the elements.
If a tree is growing in an environment, such as within a forest where they receive protection from the elements, they are more vulnerable to breakage or uprooting (windthrow), at least in the short and medium term, if conditions become more extreme in their immediate vicinity, as a result of the removal of neighbouring trees.
Therefore, while the removal of individual trees distributed across an area with many trees may seem insignificant, the relatively unpredictable results from additional exposure to the elements is likely to have a cumulative negative impact on surrounding trees. This is normally characterised by increased vulnerability to a decline in structural integrity and health of additional trees within the site.
While Mr Skelton said that the removal of the subject trees would not alter the way that this patch is mapped, that is not the issue. My argument above suggests that the removal of any trees, regardless of what small proportion of the total tree population they represent on the property, or on the estimated 40 hectares of the CEEC occuring within the locality of the subject site, nonetheless is likely to reduce the resilience of the remaining population, however incrementally. One may say it’s the ‘thin edge of the wedge’.
I am not satisfied with the Narla report conclusion, at page 58, that “The trees proposed for removal are in a deteriorated state offering minimal habitat value”. I acknowledge that appreciation of the protective role provided by the forest collective is not conceptually within the ecologists’ remit, but six of the nine trees are actively growing, and all but one of the six display minor damage, at worst. Even trees 35 and 52, which I deemed appropriate for removal, provide considerable ecosystem benefit. As an example, while Mr Skelon said “a tree in a very poor condition has no sap flowing or very little sap flowing, so you don’t get so many insects such as sap‑sucking insects and leaf‑eating insects which reduces the fauna habitat”, in the field, arborists commonly find sap‑sucking insects, and beetle larvae, colonising stressed trees over sustained periods. Similarly, the myriad fungi species that colonise deadwood perform important ecosystem services.
Further, while trees 35 and 52 display extensive deadwood, were they to be pruned and retained, they both appear to have sufficient vigour and species resilience to re-establish from lignotuberous growth, which, unlike epicormics, is not normally poorly attached.

Tree replenishment and Conditions of Consent

Mr Speirs claimed that “the proposed compensatory plantings of woodland eucalypts if successful would take at least 50 years to develop to the size that would make a substantial contribution to the woodland canopy.” Mr Farrell pressed Mr Speirs to concede that Mr Skelton’s estimate of 15 years for Yellow Box maturity from seed, based on commencement of flowering, was more reasonable than his own estimate of 50 years. While he gave some concessions, Mr Speirs consistently noted that the height and sizes postulated by Mr Farrell may be achieved “only under perfect conditions”.
As reported previously, harsh environmental conditions impact this site. Prior to 2020, the area suffered from drought, and this is not uncommon. Future impacts of climate change must also be considered. Anecdotal and scientific evidence suggests a future with increasing average temperatures, greater likelihood and severerity of drought, and greater frequency and intensity of extreme weather events, and temperature extremes. Climate change will thus impact existing trees, and make tree establishment and subsequent survival more challenging.
In light of the ‘normal’ harsh site conditions, plus increasing impacts of climate change, future ‘perfect conditions’ are highly unlikely.
In promoting the replacement program’s benefits to Mr Speirs, Mr Farrell emphasised long term success, and stressed the advantage ecologically to have new growth and replenished trees in 50, or even 25 years’ time. Mr Speirs agreed, on the proviso “that there’s a level of certainty that it achieves the purpose and that these planted trees do go on to provide that function for the longer term, thereby replacing what has been lost, for those trees which are agreed to be in a condition which is declining and that they, because of that, wouldn’t provide long term similar broad functions in the landscape”.
The inclusion of the Conditions of Consent proposed by Council, but deleted by the applicant in its “Draft Conditions in Response”(Exhibit F), increase the likelihood of achieving a successful replenishment program. Council supported Mr Speirs evidence, that it is important that an appropriate management plan is prepared and implemented to ensure that the replacement trees are correctly planted and appropriately protected until well established. Mr Skelton agreed that “having a plan and schedule for tree planting, which specifies how those trees are to be maintained to reach their potential”, “ could be achieved by a condition of consent, but an alternative which is possibly slightly better would be a management plan of several pages, yes”.
To this effect, Condition 19 shall be retained, subject to an amendment to the conclusion of the fourth sentence from, “…and a minimum 20mm in circumference” to “…and a trunk diameter of 100mm or more when measured 1.5m above the ground level”.
Council contended that as the trees proposed for removal form part of a critically endangered ecological community and provide foraging habitat for threatened species, it is imperative that the impacts of the removal are appropriately mitigated by replanting, and that retained vegetation is protected during the works. They submit that “The provision of financial security will provide an additional level of assurance that the replanted trees will be appropriately maintained and grow to a maturity which is sufficient to mitigate the impacts of removal.”
Mr Skelton also acknowledged that a bond would be an appropriate mechanism to facilitate the replanting of any trees that are lost on this site, and agreed with Ms Menyhart that “a condition in the nature of condition 20 would be appropriate, perhaps subject to the 120 being amended to 80, would assist in assuring that the replanting proposed would reach maturity”.
I support this position. Mr Skelton had advised that a combined planting cost of about $80, rather than $120, could be gained from economies of scale if 30 – 40 trees were to be grown and replanted. A total of only 15 trees shall be ordered for replanting here, and therefore Condition 20 shall be retained with the bond per replacement tree being set at $120. Condition 21 shall also be retained as a mechanism to ensure that existing vegetation is protected during the tree removal works.
As the trees proposed for removal form part of a threatened ecological community listed under Sch 2 of the BC Act, a biodiversity conservation licence under s 2.11 of the BC Act is required to authorise their removal. This is acknowledged in the Narla Report, in support of the permit application. Recommendations for Impact Mitigation and Minimisation (6.1 on p 55) include, “Once approved from Council the client will obtain a Biodiversity Conservation licence from DPIE.” I agree with Council’s contention that it is appropriate to impose a condition on the permit requiring that such a licence be obtained to ensure that independent contractors or anyone else acting on the approval are aware of their obligations and do not inadvertently breach the BC Act. Therefore, Condition 22 shall be retained.
Part 4.3 of the Young DCP provides for a replanting ratio of 2:1, as compensation for tree removal. Council acknowledge that the Court has the power with respect to a tree permit application made under the Vegetation SEPP, to impose a replanting ratio which exceeds that ratio, and contend that a replanting ratio of 10:1 is appropriate on the basis of the expert evidence of Mr Speirs.
I am of the opinion, however, that Condition 19 is sufficiently comprehensive and demanding, to provide an effective mechanism for successful longer term tree replenishment. As such, I find it unreasonable to also require a replanting ratio of 10:1, given that any dead or dying planted trees are to be continuously replaced, unless they have reached or exceeded a height of 10 metres, and a trunk diameter of 100mm or more when measured 1.5m above the ground level. Notwithstanding the demanding environmental conditions the trees are likely to endure in the future, tree loss is more common during early establishment than when they are more mature.
Therefore, I accept the applicant’s submission that a 5:1 replacement ratio is appropriate for each tree to be removed, but this shall include tree 172. Condition 26 shall reflect this. In total, 15 trees shall be planted to compensate for the loss of trees 35, 52 and 172.
Condition 29 shall be modified such that the depth of ‘coarse’ mulch is 75mm rather than 100mm, in keeping with current industry recommendations.
Condition 35 shall be retained, subject to an amendment to the commencement of the first sentence from, “All trees (or tubestock) are to be replaced…”, to “All planted trees are to be replaced…”.
Condition 32 in the Applicant’s Draft Conditions of response, says “All tree replacement is to be carried out prior to any tree removal.” This shall be deleted, as it duplicates Condition 26.

Orders

For the reasons given above, the Court orders that:

The appeal is granted, in part.

Permission is granted for the removal of trees 35, 52, and 172, subject to Conditions of Consent at Annexure ‘A’.

Tree 73 shall be pruned in accordance with AS4373:2007, and retained.

Trees 6, 20, 147, 160, and 187 shall be retained, without intervention.

……………………….

John Douglas

Commissioner of the Court

(Annexure A)(153135, pdf)

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Decision last updated: 18 January 2022

Medium Neutral Citation:	Gramadah Pty Limited v Hilltops Council [2022] NSWLEC 1022
Hearing dates:	26 and 27 July 2021, 12 October 2021
Date of orders:	18 January 2022
Decision date:	18 January 2022
Jurisdiction:	Class 1
Before:	Douglas AC
Decision:	The Court orders that: 1) The appeal is granted, in part. 2) Permission is granted for the removal of trees 35, 52, and 172, subject to Conditions of Consent at Annexure ‘A’. 3) Tree 73 shall be pruned in accordance with AS4373:2007, and retained. 4) Trees 6, 20, 147, 160, and 187 shall be retained, without intervention.
Catchwords:	APPEAL – appeal against refusal of application to remove vegetation in critically endangered ecological community – whether DA approval is valid – whether evidence provided substantiates that the trees present a genuine risk of damage and/or injury – whether sufficient relevant information has been provided by applicant to support appeal
Legislation Cited:	Biodiversity Conservatipm Act 2016, s 2.11, Sch 2 Environmental Planning and Assessment Act 1979, s 4.2 Environment Protection and Biodiversity Conservation Act 1999 Land and Environment Court Act 1979, s 39 Local Land Services Act, s 60O, Pt 5B State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, Pt 1 cl 6, Pt 2 cll 7, 8, Pt 3 cll 9,10,11,12 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005, Pt 31, Div 2, Sch 7 Young Local Environmental Plan 2010, cl 6.5 Young Local Environmental Plan 1991—Urban Lands Young Local Environmental Rural Plan 1993
Cases Cited:	Le Bron v Chidiac [2019] NSWLEC 1194 Sheldon v Council of the City of Sydney [2020] NSWLEC 1619
Texts Cited:	Australian Standard AS4970-2009-Protection of trees on development sites Land and Environment Court of NSW, COVID-19 Pandemic Arrangements Policy, April 2021 The Body Language of Trees: A Hanbook for Failure Analysis by C. Mathheck and H. Breloer, 1994 Young Development Control Plan 2011
Category:	Principal judgment
Parties:	Gramadah Pty Limited (Applicant) Hilltops Council (Respondent)
Representation:	Counsel: J Farrell (Applicant) A Menyhart (Solicitor) (Respondent) Solicitors: CML Lawyers Pty Ltd (Applicant) BAL Lawyers (Respondent)
File Number(s):	2020/344819
Publication restriction:	No