Karatasas v Inner West Council

[2022] NSWLEC 1367

Land and Environment Court

New South Wales

Medium Neutral Citation:

Karatasas v Inner West Council [2022] NSWLEC 1367

Hearing dates:

29 June 2022

Date of orders:

12 July 2022

Decision date:

12 July 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application DA/2021/0878 for the removal of the existing fence, the construction of a replacement fence, and the removal of the existing tree at 32 Carlisle Street, Leichhardt, is granted subject to the conditions of consent in Annexure A.

(3) Exhibits A, B and C are retained, and the remaining exhibits are returned.

Catchwords:

APPEAL – development application – removal of tree – whether tree has caused damage – whether requirements of a development control plan are met for its removal – evidence is that tree has caused damage and will cause future damage

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Leichhardt Local Environmental Plan 2013, cl 5.10

Texts Cited:

Inner West Council, Tree Management Development Control Plan, (February 2020)

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Vicky Karatasas (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
R Wilcher (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Inner West Council (Respondent)

File Number(s):

2021/307234

Publication restriction:

No

Judgment

1. COMMISSIONER: Ms Vicky Karatasas is the owner of a two-storey terrace dwelling at 32 Carlisle Street, Leichhardt. Immediately in front of the terrace is a front fence which separates a small area of landscaping from the public footpath. Within that small area is a Toona ciliata (red cedar tree) (the tree), the trunk of which is located 2.35m from the dwelling and 3.35m from the façade of the dwelling. Ms Karatasas seeks development consent for the removal of the existing fence, its replacement with a new front fence, and the removal of the tree. She lodged a development application with Inner West Council (the Council) on 7 October 2020. Following the expiry of the period after which a development application is deemed to be refused, Ms Karatasas lodged this appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The proposed development seeks the demolition of the existing fence and replacement with a new timber picket fence on a masonry base, which matches the design of the front fence of the adjoining terrace dwellings. It seeks the removal of the tree, and its replacement with two new plantings. The first is an Acer Palmatum (Japanese Maple) to be planted within the front setback where the tree is currently located, and the second is a Lagerstroemia indica (Crepe Myrtle) to be planted in the road reserve between the footpath and the roadway. Although the replacement trees were contemplated in the expert reports in evidence at the hearing, the plan showing the replacement trees is an amendment to the development application which was lodged on the NSW Planning Portal on 30 June 2022 with the consent of the Council, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000.

3. The Council raises no contention with respect to the replacement of the front fence. However, the Council is opposed to the grant of development consent on the basis that it is unnecessary for the tree to be removed. The Council contends that the tree has a high retention value with a long safe useful life expectancy, and that tree sensitive construction measures should be utilised for the construction of the front fence.

4. I have determined that, whilst the removal of the tree may not be necessary for the construction of a replacement front fence, the application for its removal ought to be granted on the basis of the evidence that the tree has caused damage to the dwelling, the tree continues to grow and will continue to damage the dwelling, and the proposed replacement trees will be appropriate in the streetscape.

The site and the locality

5. The hearing commenced with a site inspection. The site is legally described as Lot 6 in DP 33856, and is known as 32 Carlisle Street, Leichhardt. It has a site area of 173m², a frontage of 4.1m to Carlisle Street and a depth of 42.1m.

6. The tree is located in the landscaped area between the front porch of the dwelling and the front fence. On two sides of the landscaped area is paving which forms a path from the front gate to the front porch area, which sits on a concrete slab. Damage and cracking between the pavers is observable. Immediately adjacent to the front fence is the public footpath and a Telstra pit. The public footpath has been lifted and damaged by the tree roots. Above the area that is lifted and damaged is a yellow and black barrier board with a single A-frame stand at one end, which is marked “IWC”. The Telstra pit cover is intact, but appears to have only recently been repaired or replaced.

7. The site is located on the southern side of Carlisle Street and the immediate adjoining properties along Carlisle Street continue the two-storey terrace dwelling building typology along the streetscape. The surrounding area generally consists of single and two-storey dwelling houses, with single storey terraces located to the north of the subject site on the opposite side of the street. Carlisle Street is lined with Lagerstroemia indica (Crepe Myrtle) that are planted along each side of the road, within the road reserve between the footpath and the roadway.

8. The site is within the Leichhardt Heritage Conservation Area C1 (HCA) pursuant to the Leichhardt Local Environmental Plan 2013 (LLEP).

The planning provisions

9. The site is zoned R1 General Residential pursuant to the LLEP. The objectives of the zone, which are required to be considered when determining a development application for a site within the zone, are as follows:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To improve opportunities to work from home.

• To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas.

• To provide landscaped areas for the use and enjoyment of existing and future residents.

• To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area.

• To protect and enhance the amenity of existing and future residents and the neighbourhood.

10. Clause 5.10 of the LLEP requires that consideration be given to the effect of the proposed development on the heritage significance of the heritage conservation area. Clause 5.10(4) provides:

(4) Effect of proposed development on heritage significance

The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

11. The Leichhardt Development Control Plan 2013 (LDCP) applies, and Part C1.14 on the contents page is said to relate to tree management. Curiously, in seeking to turn to Part C1.14, the Inner West Council Tree Management Development Control Plan (Adopted 11 February 2020) (Tree DCP) stands in its place. The Tree DCP sets a canopy target of 40% for the R1 General Residential zone. The relevant objectives are as follows:

“O2 To ensure the safety of the community, private property and public infrastructure assets.

O3 To protect trees within and adjacent to development sites and to ensure that all new development provides an opportunity for existing and new trees to grow.

O4 To manage the urban landscape so trees continue to make a significant contribution to its quality, character and amenity.

O5 To maintain and enhance the amenity of the Inner West Local Government Area through the preservation of appropriate trees and vegetation.

O6 To ensure the cost burden of meeting tree canopy targets does not fall unreasonably on property owners and lower income residents in particular.

O7 Encourage private property owners to plant new trees and replace inappropriate trees in order to meet Council’s tree canopy targets.”

12. Section 5.2 of the Tree DCP sets out the assessment criteria for considering an application to remove a tree. It provides as follows:

“Council will use the following assessment criteria when considering an application to remove a tree/s:

i. Distance

Automatic approval will be granted for any tree located within two (2) metres of a dwelling house or garage unless the tree is protected under section 4 of this part. The distance is measured horizontally from the closest point of the trunk at one (1) metre from ground level to the closest point of the vertical alignment of the building structure’s wall via a permit application. The issued permit will identify the type of any replacement tree required with a preference for advanced species. As a condition of the permit, verification of the planting of any replacement tree is also required.

ii. Danger

Danger is assessed based on a number of factors including;

• The potential/likelihood of a tree or tree part to fail;

• A history of previous branch failure;

• The size of the defective part of the tree;

• The use and occupancy of the area that may be struck by a defective part; and

• The tree exceeds 15m in height and is within the strike zone of a habitable dwelling.

Meeting the danger criteria gives significant determinative weight to the application to approve the removal and/or pruning of a tree.

Dangerous tree assessments are to be based on the safety risk in all weather conditions, not “normal” conditions.

iii. Property Damage

The likelihood of the tree having an adverse effect on property including trees renowned for having extensive root systems, which cause damage to footings of houses or, trees that cause blockages to domestic sewer and drainage lines.

iv. Condition of the tree

The structural integrity of the tree is assessed for any visible signs of decay or deterioration, this is usually indicated by a lack of foliage, dead branches evident in the canopy, presence of fungal fruiting bodies, excessive sap being exuded from the trunk and/or evidence of insect attack, particularly borer damage. Further, the likelihood the species displays toward branch failure and subsequent limb fall.

v. Health of the tree

The species’ susceptibility to environmental changes, which may affect the longevity of the species’ survival in its current location. This would include changes in soil level, excessive root damage caused during construction works, changes in water availability, competition for other vegetation (particularly climbing vines), and compaction of soil (particularly in high usage areas such as car parking areas).

vi. Complying Development

The need for tree removal in order to allow for development that could otherwise be carried out under a Complying Development Certificate. A statement from the certifier confirming that tree removal is the only impediment to the issuance of a CDC must be submitted to support the application.

These applications will be assessed based on the same criteria as a Development Application.

vii. Significance to Streetscape

An assessment of the visual environment and the significance the specimen plays within the streetscape. Other criteria would include if the tree is an endangered or rare species, is of historical significance or, the link the tree provides between bushland and reserves (the connectivity of habitat).

viii. Termites

Each case of termite infestation will be investigated on its merit.

ix. Potential Future Damage

The potential for the tree to cause damage in the future is also considered in an assessment for removal.

x. Extenuating circumstances

Circumstances, such as the owner’s capacity to undertake required maintenance of a tree and surrounds, whether the landowner planted the tree, or solar access for renewable energy systems and other like considerations

Criteria not considered

The following criteria are generally not considered justification for tree removal or pruning:

1. The dropping of leaves, flowers, fruit, sap, seeds or small elements of deadwood (or other natural processes);

2. Insect/animal nuisance;

3. Solar access to solar panel or data receivers;

4. Increase general natural light or reduce shade created by a tree;

5. Enhance view corridors;

6. Minor lifting of driveways, paths and paving or minor damage to outbuildings, garden structures, walls or landscape structures;

7. Damage to underground services (such as sewer lines, water services) and where there are feasible alternatives to mitigate or solve problems and retain the tree;

8. The tree is large or overhanging neighbouring property or roof line;

9. Pruning to reduce height, except pruning to reduce the height of hedge/s”

The expert evidence

13. Expert opinion evidence on the arboricultural issues was given by Mr Sven Mogensen, an arborist employed by the Council, and Mr Guy Paroissien, an arborist engaged by Ms Karatasas.

14. Mr Mogensen and Mr Paroissien agree that the tree is of good health and vigour, is of high landscape significance and that, in the short term, the risk of potential branch failures is low. However, they disagree as to whether the removal of the tree is justified.

15. Expert opinion evidence on the damage being caused by the tree was given by Mr Dimitri Tsagaris, an engineer engaged by Ms Karatasas. His evidence is that there are damages and defects at 32 Carlisle Street that are a direct result of the tree. His evidence is that the retention of the tree will result in the footings of the building being undermined, causing major cracking and damage to the façade. He opines that this will ultimately diminish the structural stability of the dwellings. His evidence is also that the tree has caused damage to the existing pedestrian footpath, which has resulted in the footpath having an uplift that causes a cross-fall that is not compliant with the acceptable limits under the Australian Standards.

16. The evidence of Mr Tsagaris was not contradicted by any other engineering evidence.

17. Expert opinion evidence on the town planning impact of the proposed development was given by Mr Anthony Betros, a town planner engaged by Ms Karatasas. Mr Betros’ evidence is that the proposed new fencing will enhance the streetscape, and the tree should be removed to allow the fencing to be replaced and, relying on the engineering and arboricultural evidence, to prevent further damage to the terrace. He opines that the replacement of the tree with a street tree in the road reserve and a tree in the front setback area would enable appropriate species to be planted that are better suited to the setting.

18. This was not contradicted by any other town planning evidence.

Resident evidence

19. The development application was notified by an on-site notice and a letter to adjoining neighbours. Three submissions in support of the development application were received by the Council. Two of those submissions gave specific examples of tripping incidents that have occurred in the location where the public footpath has been raised and damaged as a result of the tree roots.

The applicant’s position that consent ought to be granted to remove the tree

20. Ms Karatasas submits that, based on the evidence before the Court, the only reasonable conclusion that can be reached is that the tree is inappropriate in its location, will continue to cause damage to the dwelling, and can be replaced by trees that will be suitable for their location and compatible with the existing streetscape. In support of her position, Ms Karatasas relies on the evidence of Mr Paroissien and Mr Tsagaris.

21. Mr Paroissien’s evidence includes a root mapping exercise. His evidence is that the higher bar for justification to remove a tree of high landscape value is met as a result of the damage caused by the tree, evidence of its continuing growth, and therefore the predictable future damage.

22. Mr Paroissien’s evidence is that significant damage is already occurring due to displacement of roots from the tree, and future damage is entirely predictable due to the proximity of those roots to structures and services. Further, his root mapping demonstrates that there are two large diameter woody roots from the tree at the front boundary, which are 280mm and 350mm diameter, that are growing into the frontage of the adjacent property. He observed that the following damage to structures was observed in the areas immediately adjacent to these and other roots:

“• The base of the front boundary fence has been damaged and the fence is displaced from its original alignment.

• The public concrete foot path has been lifted and damaged and has been temporarily repaired using asphalt;

• Two adjacent utility/services pits have been repaired/replaced (I am advised by the Applicant that the pits have required repairs as a result of root displacement on several occasions);

• The water service in the front setback has been damaged and needed to be repaired – a structural root on the east side of the basal trunk has been severed as part of those repairs;

• Paving in the front setback has been displaced (20mm gaps on the east side, 15mm gaps on the west side) – this paving was only recently re-laid following past displacement by roots from the tree.”

23. Mr Paroissien also gave evidence, which was not disputed, that the location of the tree prevents the effective drainage of stormwater from the site, which now relies on the adjacent property to drain stormwater to the street. This evidence was not disputed.

24. Mr Tsagaris’ evidence is that this damage has continued into the dwelling, with cracks and defects observed at the interface between the porch and the façade, and cracks and defects surrounding the entry door skirting and ceiling cornice. His evidence is that this is caused by the tree.

25. In giving his oral evidence and following cross-examination on whether that damage within the dwelling could have occurred by reason of movement associated with clay soils, Mr Tsagaris’ evidence remained that it occurred due to the tree. He considers that damage associated with soil movement would be observed throughout the dwelling, whereas it was present only within the areas around the front façade.

26. Mr Tsagaris’ evidence is that the existing dwelling and neighbouring dwellings “are sensitive as they are constructed on brick piers with limestone mortar”, and that “limestone mortar is typically frail and easily fragmented with minor ground movements”. His evidence is that the root mapping demonstrates that a major tree root travels towards the footings, resulting in structural root zone impacts, and that a major root continues below the porch. In cross-examination, Mr Tsagaris explained that the porch and paved front pathway are a single slab, and that the slab is cracked which caused the pavers to move. His evidence is that this is caused by the roots of the tree uplifting the concrete slab.

27. The evidence of Mr Paroissien is that the tree continues to have significant growth. His evidence is supported by the growth of one of the tree roots as follows:

“• When I first inspected the tree and site on 6th May 2021 the footpath had just been repaired and exhibited a level undamaged asphalt surface. At that time the large root opposite the tree growing into the nature strip was measured as having a 270mm diameter.

• When I re-inspected the tree on 23rd March 2022 (S.34 Conciliation) this root has grown to a diameter of 320mm and the asphalt path was lifted and cracked due to displacement by the root (i.e. the root had expanded by ca. 18.5% in the intervening 10 months and further damage to the repaired footpath had occurred in that time).”

28. In light of this continued growth, Mr Paroissien opines that future damage is entirely predictable. Mr Tsagaris opines that the future growth will see the existing frail footings of the dwelling undermined, causing major cracking and damages to the façade and “ultimately diminish the structural stability of the heritage dwellings and surroundings.” His evidence that the existing cracks located at the interface of the porch and the façade, surrounding the entry door skirting and ceiling cornice will see those cracks lengthen and widen. In oral evidence given when cross-examined, Mr Tsagaris gave evidence of his visual inspections of the damage, in which he observed that the cracks and damage had increased over the time between inspections.

29. It is further submitted on behalf of Ms Karatasas that there is no evidence that the replacement trees or the replacement fence will have any adverse impact. Ms Karatasas submits that the Lagerstroemia indica (Crepe Myrtle) will be consistent with the other plantings along the streetscape and within the heritage conservation area, and that the Acer Palmatum (Japanese Maple) will be better suited to the size of the landscaped area.

The Council’s position that the tree ought not be removed

30. The Council submits that the extent of the damage that has been caused by the tree is not such as to warrant its removal, and that, when assessed under the criteria in Section 5.2 of the Tree DCP, the tree ought not be removed. The Council says that the damage that has occurred in the past has been rectified and can continue to be managed, including by moving the services above ground, and that, whilst the damage to the footpath has not been repaired, the health of the tree is of greater value to the Council than repairing the damage to the public footpath. The Council submits that the position advanced on behalf of Ms Karatasas is not founded upon the provisions of the Tree DCP, which supports its retention. In particular, the Council says that the tree doesn’t meet the criteria for distance or danger, is in good condition, is not a species known for having extensive and damaging root systems, is of high significance to the streetscape, and does not have termite damage.

31. The Council relies on the evidence of Mr Mogensen, who opines that the high landscape significance of the tree means that a higher bar to justify its removal is required to be achieved. Mr Mogensen’s evidence is that the urban environment within which the tree is located will limit its future growth, such that it is unlikely to grow much bigger than its current size. He considers that there is no evidence of a direct link between the tree and the damage identified in the evidence of Mr Tsagaris, and that the damage that has occurred can be repaired. He considers that the criteria within Section 5.2 of the Tree DCP have not been met to allow its removal. Mr Mogensen considers that the evidence of damage is within the “criteria not considered” under Section 5.2, as it relates only to “Minor lifting of driveways, paths and paving” and “Damage to underground services… where there are feasible alternatives to mitigate or solve problems and retain the tree”. Further, Mr Mogensen’s evidence is that appropriate construction techniques can be used for the replacement fence so as to retain the tree and ensure that it is not damaged.

32. The Council submits that the evidence of Mr Paroissien with respect to the safe useful life expectancy of the tree is unreliable, as it relies on future hypothetical events that may or may not occur.

33. The Council also disputes the evidence given by Mr Tsagaris. Mr Wilcher submits on its behalf that Mr Tsagaris’ evidence is “fearmongering” and “weak”. Mr Wilcher advances this submission on the basis that, he says, Mr Tsagaris’ evidence was not supported by testing or methodology. In particular, Mr Wilcher says that Mr Tsagaris’ evidence was not supported by inspecting underneath the house (which is not accessible), or by “tell-tales”. Mr Wilcher points out that, in cross-examination, Mr Tsagaris conceded the inaccuracy of a description, given in Figure 18 of the report, that the depicted damage is “significant”.

Development consent should be granted

34. Whilst the removal of the tree may not be necessary for the construction of a replacement front fence, I consider that development consent should be granted to allow the removal of the tree and its replacement with an Acer Palmatum (Japanese Maple) within the front setback and a Lagerstroemia indica (Crepe Myrtle) within the road reserve. I reach this conclusion for the following reasons.

35. Firstly, the evidence is that the tree has caused damage. That is one of the tree assessment criteria pursuant to Section 5.2 of the Tree DCP. That damage includes damage to the dwelling. I am satisfied that the damage identified by Mr Tsagaris and Mr Paroissien is caused by the tree, based on the root mapping and the observable evidence that a major tree root travels towards the footings and a major root continues below the porch. Contrary to the position of Mr Mogensen, that damage goes beyond “Minor lifting of driveways, paths and paving” and “Damage to underground services… where there are feasible alternatives to mitigate or solve problems and retain the tree”, which are “criteria not considered” for the removal of a tree pursuant to the Tree DCP. Instead, it has uplifted and cracked the concrete below the paving and it has caused cracks at the interface of the porch and the façade, surrounding the entry door skirting and at the ceiling cornice. On the evidence of Mr Tsagaris, that damage has increased over time, as it has increased in between the inspections carried out by him. That increase in damage over time, together with Mr Paroissien’s evidence of the growth in the tree, provides further support that the damage is caused by the tree.

36. I do not accept the assertions of Mr Wilcher that Mr Tsagaris’ evidence was “fearmongering” or “weak”. The Council’s submission that there was no testing or methodology used to form Mr Tsagaris’ opinion is unfounded. There is not a skerrick of evidence furnished by the Council that suggests that particular “testing or methodology” is required for Mr Tsagaris to form his opinion. On the contrary, Mr Tsagaris gave opinion evidence based on observable facts and his experience and qualifications as an engineer. Those observable facts were also recorded in photographs attached to his individual expert report. His evidence was challenged in cross-examination. Those questions did not lead him to change or modify his expert testimony, save for a detail relating to the rate of severity of some of the paving damage and a matter concerning the accessibility requirements of a footpath. In the absence of either an expert opinion to the contrary or a challenge to the observable facts, I accept the expert opinion evidence of Mr Tsagaris. No expert opinion to the contrary or challenge to observable facts is proffered by the Council. Further, the opinion of Mr Mogensen that the damage to the dwelling is not linked to the tree is contrary to the observable facts and is not supported by an expert opinion of an engineer. Accordingly, I accept Mr Tsagaris’ evidence that there are defects in the dwelling that result from the tree, and that there is a direct link between the roots of the tree and the damage that has been observed.

37. I therefore find that the tree is having an adverse effect on property, consistent with the tree assessment criteria in the Tree DCP for property damage. I consider that this criterion is met notwithstanding that the tree is of a type that is not “renowned” for extensive root systems or for causing damage.

38. Secondly, I find that the continued growth of the tree will cause future damage. Potential future damage is another assessment criteria for considering an application to remove a tree, pursuant to the Tree DCP. Mr Paroissien’s evidence that the tree is continuing to grow is not disputed by Mr Mogensen. A tree of this species, growing unobstructed, has the potential to grow to 60-80m, although Mr Paroissien and Mr Mogensen agree that in this context it will not grow to that height. It is currently 19m in height. Whilst Mr Mogensen opines that the future growth will be limited, he nevertheless agrees that the tree is still growing.

39. I accept the evidence of Mr Tsagaris that the future growth of the tree will increase the existing cracking and will result in the existing frail footings of the dwelling undermined, causing major cracking and damages to the façade and diminishing the structural stability of the dwelling. Again, this evidence was not contradicted by any expert evidence to the contrary, or by any challenge to the facts upon which the opinion is based. Those facts include the nature of the footings and the growth of the tree roots. Whilst Mr Tsagaris’ evidence with respect to the footings was questioned in cross-examination, those questions did not lead him to change or modify his testimony.

40. I therefore find that the tree will cause damage to the dwelling in the future. This falls squarely within an assessment criterion for removal of the tree, and is of particular significance given that the dwelling forms part of a heritage conservation area.

41. Thirdly, the development application includes a proposal to replace the tree with an Acer Palmatum (Japanese Maple) within the front setback and a Lagerstroemia indica (Crepe Myrtle) within the road reserve. I accept the evidence of Mr Paroissien that the Japanese Maple is a smaller tree more appropriate to the landscaped area on the site, and that the Crepe Myrtle is consistent with the existing streetscape. As such, the proposed development proposes the planting of tree species that are appropriate for their location and appropriate in the streetscape.

42. For the above reasons, I consider that it is appropriate for development consent to be granted for the removal of the tree and its replacement. Two of the criteria in the Tree DCP have been met, which are sufficient to allow tree removal. Although the tree has high streetscape significance and the remaining assessment criteria in Section 5.2 of the Tree DCP do not support its removal, it is nevertheless causing damage to a dwelling located in a heritage conservation area and will cause further damage in the future. The replacement trees are appropriate for their context and consistent with the existing streetscape. In meeting the two assessment criteria for the removal of the tree and by proposing replacements that are appropriate in their context, the proposed development is consistent with the objectives of the Tree DCP, which include ensuring the safety of private property (O2), managing the urban landscape so trees continue to make a significant contribution to its quality, character and amenity (O4), and to encourage private property owners to replace inappropriate trees in order to meet Council’s tree canopy targets (O7).

The issue of the footpath safety is not determinative

43. The above conclusion on the development application is reached without taking into consideration the observable damage to the public footpath which Mr Mogensen agrees is caused by the tree. The Council conceded that the footpath is not a priority for repair and asserts that the footpath is safe, although the evidence of Mr Mogensen is that it is scheduled for repair in future.

44. Two of the three residents who made submissions in support of the development application each made reference to tripping incidents caused by the damaged footpath. On the other hand, the Council relied upon a single observation made by Mr Mogensen of a person with a walker using the footpath without tripping on the day of the site view.

45. Notwithstanding the debate between the parties with respect to the safety of the footpath and the Council’s insistence that it is safe despite evidence to the contrary, I need not determine any issue with respect to the state of the footpath in circumstances where I have above made findings that form an adequate basis upon which to grant development consent for the removal of the tree and its replacement.

Final orders

46. I have above concluded that development consent for the removal of the tree should be granted on the basis that the tree is causing damage to the dwelling, will cause future damage, and there is an acceptable streetscape outcome brought about by the replacement trees. The Council has raised no contention with respect to the replacement of the front fence. The proposed development is also consistent with the heritage significance of the HCA, as it achieves a consistent streetscape with the remaining areas of the HCA and the tree removal will avoid damage to a dwelling that forms part of the HCA.

47. There are no jurisdictional barriers to the grant of development consent, and consent should therefore be granted, subject to the conditions of development consent that are agreed by the parties.

48. The Court orders that:

1. The appeal is upheld.

2. Development application DA/2021/0878 for the removal of the existing fence, the construction of a replacement fence, and the removal of the existing tree at 32 Carlisle Street, Leichhardt, is granted subject to the conditions of consent in Annexure A.

3. Exhibits A, B and C are retained, and the remaining exhibits are returned.

……………………….

Joanne Gray

Commissioner of the Court

Annexure A (181899, pdf)

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Decision last updated: 12 July 2022