Khreich v Holroyd City Council

[2015] NSWLEC 1360

Land and Environment Court

New South Wales

Medium Neutral Citation:	Khreich & anor v Holroyd City Council [2015] NSWLEC 1360
Hearing dates:	11 August 2015
Date of orders:	02 September 2015
Decision date:	02 September 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Order modified – see [46]
Catchwords:	SECTION 124 ORDER: Retention and habitat pruning of Cumberland Plain Woodland species; replacement planting
Legislation Cited:	Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Local Government Act 1993 Threatened Species Conservation Act 1995 Holroyd Local Environmental Plan 2013
Category:	Principal judgment
Parties:	Marwan Khreich and Ayad Al-Khouy Diab (Applicants) Holroyd City Council (Respondent)
Representation:	Applicants: Mr G McKee (Solicitor) Respondent: Mr M Fozzard (Barrister)   Solicitors: Applicants: McKees Legal Solutions Respondent: Bilias & Associates
File Number(s):	20056 of 2015

Judgment

1. COMMISSIONER:   On 16 September 2014, the applicants lodged a ‘General Tree Works Application’ with Holroyd City Council. The works proposed were the removal of six Gum trees from their property on the basis that each tree was dangerous and dropping dead branches, giving rise to complaints from neighbours.

2. The trees in question are four large Eucalyptus fibrosa (Broad-leaved Ironbark) (Trees 1-4) growing in the rear yard of the applicants’ property (the site) and two other mature specimens of E. fibrosa in the front yard (Trees 5 and 6). Tree 1 is located near the northern boundary of the site, to the east of the garage; its canopy overhangs the adjoining property to the north. Tree 2 is to the south and slightly east of Tree 1, in approximately the centre of the site. Trees 3 and 4 are to the east of Trees 1and 2 in the central portion of the backyard. The rear portion of the large backyard is mostly lawn.

3. The site is on the eastern side of Harris Street. Approximately 150m to the southwest is Gum Tree Reserve.

4. On 5 November 2014, council’s Landscape Officer inspected the trees. He observed the two trees in the front garden to be in acceptable condition and free from any visible structural defects and determined that the trees should be retained. The four trees in the backyard had died and defoliated. The officer observed a total of three hollows in two of the trees and a nest in another. On the basis of the species and the hollows, the officer concluded that the trees provided habitat and should be retained.

5. Council issued its Determination of General Tree Application on 27 November 2014 which deferred the assessment of trees in the backyard (Trees 1, 2, 3, and 4) and refused the removal of trees from the front yard.

6. On 27 November 2014, the council also issued a Notice of Intention to Give an Order No. 21 pursuant to s 124 of the Local Government Act 1993 (LG Act).

The order

7. The council issued the Order No. 21 on 29 December 2014. The terms of the order are:

1. Provide the name and contact number of a tree contractor of your choosing that will be used by you to carry out the works listed below. Council will contact this person/s to arrange a suitable day to meet on site so that works may commence.

2. In consultation with Council Officers on site and on the day that works are to occur, the tree contractor shall remove the upper canopy only of the 4 x poisoned trees in the rear yard, with the major first order lateral branches and trunk remaining (also known as skeletonising).

3. The tree trunks and 1st order lateral branches are to remain for the purposes of habitat and to satisfy the requirements of the approved recovery plan known as “Cumberland Plain Recovery Plan (January 2011)” prepared under the Threatened Species Conservation Act 1979 [1995].

4. 6 x Eucalyptus fibrosa (Broad-leaved Ironbark) trees from a minimum container size of 100 Litres are to be planted throughout the rear yard.

5. No works shall commence until Council has met the tree contractor/s on site, and instructed the contractor/s on the extent of works permitted, and that this is then provided by way of a written approval.

8. The reasons for the Order are summarised as:

• The trees are remnant Cumberland Plain Woodland and as such are not only protected by council’s Tree Management Controls but are listed as a Critically Endangered Ecological Community [CEEC] under the Threatened Species Conservation Act 1995 (TSC Act).

• The removal of dead trees is not exempt works under the TSC Act or the provisions of Holroyd Local Environmental Plan 2013 [HLEP] cl.  5.9(5).

• Removal of dead wood and dead trees is a Key Threatening Process listed in Schedule 3 of the TSC Act.

• Dead trees, dead wood and hollows provide essential habitat for a wide range of species.

9. The period of compliance was 21 days from the date of the Order.

10. The applicants appeal the order and seek to modify it by:

1. Retain

2. The tree contractor engaged by the owners of the site shall remove trees 2, 3 and 4 in the rear yard in their entirety. Tree 1 is to be retained.

3. Delete

4. Delete

5. Retain

6. The works recommended in the Landscape Plan prepared by Cumberland Ecology dated 1 May 2015 are to be carried out.

11. As expressed in Exhibit C, the modified order is sought on the basis that there is no evidence that trees 1-4 provide for, or are used for habitat by threatened species. The applicants contend that the trees, while being remnant Cumberland Plain Woodland trees, do not constitute an endangered ecological community as defined in the TSC Act. In addition, they maintain the trees pose a danger and their retention will provide no benefit to any endangered species in the local area. This position appears to arise from a report prepared for the applicants by Cumberland Ecology (see [15] below).

Practice and procedure

12. The matter commenced on site as a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act). As no agreement could be reached, the conciliation was terminated. Consistent with s 34(4)(b)(ii) of the LEC Act, the parties agreed that the matter should proceed on the basis of what occurred at the conciliation conference.

13. Before considering the evidence, a procedural matter requires attention. Although the Order was issued under s 124 of the LG Act, the applicants filed a Class 1 appeal under s 121ZK of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal should have been made under s 180 of the LG Act in Class 2 of the Land and Environment Court’s jurisdiction. At the commencement of proceedings, the applicants put on a Notice of Motion seeking to rectify this mistake. This was unopposed. Pursuant to s 31(2)(b) of the LEC Act 1979 and s 64(1)(b) of the Civil Procedure Act 2005, the applicants were granted leave to amend the application to an appeal under s 180 of the LG Act and transfer of the matter to Class 2 of the Court’s jurisdiction.

14. Section 180(4) of the LG Act states:

(4)   On hearing an appeal, the Court may:

(a)   revoke the order, or

(b)   modify the order, or

(c)   substitute for the order any other order that the council could have made, or

(d)   find that the order is sufficiently complied with, or

(e)   make such order with respect to compliance with the order as the Court thinks fit, or

(f)   make any other order with respect to the order as the Court thinks fit.

Evidence

15. The applicants engaged Cumberland Ecology to undertake a site assessment and ecological assessment of the trees with respect to the terms of council’s Order. On 14 January 2015, Cumberland Ecology staff inspected the site, recorded vascular plants on the site, and inspected the trees from the ground for evidence of hollows and decorticating bark that may indicate habitat quality for arboreal fauna, hollow dwelling birds and bats. A desktop analysis using the usual databases was also conducted. On 1 April 2015, Dr David Robertson, ecologist and Director of Cumberland Ecology provided the applicants with a draft report (Exhibit 5).

16. The draft report notes a bird’s nest in one tree, two hollows in another, and one hollow in another tree. The recorded flora species are principally exotic garden plants.

17. The results of the desk top survey are summarised in Table 3 in Exhibit 5. For each species there is a summary of the habitat requirements and other column indicating the likelihood of occurrence. The table notes that most threatened species of birds are unlikely to be present however, the report states that the Powerful Owl could possibly occur but the “site lacks suitable habitat but species may forage here periodically as part of a wider foraging range”. The table includes five species of micro bats, four of which roost in hollows. The table provides the same conclusion as made for the Powerful Owl, that is, the “site lacks suitable habitat but species may forage here periodically as part of a wider foraging range”.

18. The draft report states that the site is highly modified. It concludes:

The six canopy species of the subject site were identified as Eucalyptus fibrosa. The presence of this canopy species alone does not conform to CPW [Cumberland Plain Woodland] as it does not include a common CPW characteristic canopy species or any CPW understorey species. Additionally, due to past modifications, the subject site is unlikely to contain a CPW seedbank.

The surrounding area is highly developed and no faunal corridors are present, leading to a lack of connectivity to fauna habitat offsite. Minimal fauna habitat is present on the subject site in the form of three tree hollows and one nest. Two of the dead trees in the back yard provide suitable habitat for native fauna, but are unlikely to be utilised or important to any threatened species in the locality.

19. As a consequence of the conciliation, on 16 April 2015 Cumberland Ecology supervised an arborist to carry out an aerial inspection of the four trees in the back yard. Any hollows found were inspected, measured, probed and photographed in order to determine actual or potential use of those hollows. The aerial inspection found:

• Tree 1 – 3 x hollows at about 7-7.5m above ground with the dimensions of [diameter] x depth in cm: [2.6 x 4] x 7; [9 x 5] x 16; [25 x 4] x 20.

• Tree 2 – 1 x hollow about 7m above ground; [30 x 3] x 20.

• Tree 3 – no hollows

• Tree 4 – no hollows; one unused nest

• Hollows on trees 1 and 2 had signs of bark stripping around the edge but no evidence of feathers or nesting material.

20. The ecological report (Exhibit A) based on the aerial inspection concludes:

Trees 1 and 2 contain habitat that is suitable for native species. Due to the absence of nesting material, feathers or fauna at the time of the inspection, the hollows present are likely utilised by urban adapted bird species only as a stopover point and not as roosting or breeding habitat. As both trees are dying and lack foliage, they offer little refuge and foraging habitat. Nevertheless, the evidence of bark stripping around three of the hollows is evidence that the hollows in trees 1 and 2 are utilised by fauna.

21. The report then recommends removal of trees 2, 3, and 4 and offsetting the loss by planting three CPW canopy species and four mid-storey species and additional ground cover. The loss of the hollow in tree 2 would be compensated by the installation of two nest boxes in the trees in the front yard.

22. Cumberland Ecology prepared a Landscape Proposal (Exhibit B) to accompany the Ecological Report. This report includes an indicative plan showing the planting of three x 100 litre CPW tree canopy species at no less than 5m centres in the rear quarter of the backyard and an 80m2 planting site along the rear boundary to include four x CPW small trees/ shrubs and groundcover plants. The ground cover plants are to be planted at a density of 8 units per m2. The species are to be selected from the tables of tree, mid-storey and groundcover CPW species provided in the proposal. The container size of the mid and ground cover species is not stated. The proposal recommends the work be carried out by a suitably qualified bushland regenerator and any tubestock used should be of local provenance. The proposal also recommends that the contracted bushland regenerator monitor the plantings and replace any that have died. The inspections should occur bimonthly for a year or until an agreed upon date.

23. The council engaged Mr Nicholas Skelton, an ecologist, to provide expert evidence, inspect the trees and the site, and to review the Cumberland Ecology material. His report dated 7 August 2015 is Exhibit 3.

24. Mr Skelton notes 12 locally native flora species on the site, eight of which are listed CPW-characteristic species. Apart from the E. fibrosa, the other CPW species include six herbs, one sedge and one grass observed growing near the bases of the trees. In his view, the presence of these species confirms NSW Government Vegetation Mapping showing the site as Shale Plains Woodland, a sub type of the CEEC CPW, although of low quality. He opines that the dead trees provide suitable habitat for at least three highly mobile and locally recorded species of threatened fauna (two micro bats and the Powerful Owl). Apart from these threatened fauna species, Mr Skelton considers the trees, in particular those with hollows, could be used by a range of birds and mammals for range of purposes including nesting, feeding on invertebrates, roosting, calling and perching. He is also of the opinion that these trees are part of a wildlife corridor, which includes the nearby high quality Gum Tree Reserve, and used by highly mobile species. Mr Skelton notes that there is a high likelihood of the ongoing formation of hollows, and in support of the retention of the four dead trees, he draws attention to the descriptions in the TSC Act of the two relevant Key Threatening Processes – Loss of Hollow-bearing Trees, and Removal of Dead Wood and Dead Trees.

25. In essence, Mr Skelton rejects the conclusions made by Cumberland Ecology. In his opinion: the trees will remain standing for many decades and will provide habitat for threatened fauna; the loss of the trees will have a large impact on fauna in the locality; and the close proximity of the trees, height, large size, rough bark, sturdy wood and structural form make the trees a particularly important part of the local ecosystem.

26. Mr Skelton recommends that the intent of the Order should not change but it could be refined to allow offsetting and remediation both on and off the site. Amongst other things he also recommends installation of more nest boxes and creation of additional hollows in the standing trunks and main limbs. He considers 6 replacement trees is inadequate and there is insufficient information in the Landscape Proposal in regards to mulching, fencing, weeding, legal protection and so on to ensure long term success.

27. The questions considered in oral evidence go to the number of trees to be retained, their significance, and the quantum and composition of the replacement planting. It is common ground that the trees are derived from CPW however the experts disagree as to their current and future habitat value and whether or not they are part of a wildlife corridor.

28. Dr Robertson agrees that in general, big CPW trees with hollows are a rarity. Specifically, he agrees that the trees in question have the potential to be used by a range of species, do provide perching and territorial habitat for some birds, and thus have some value. However he considers that the trees are not part of any particular wildlife corridor. While Dr Robertson accepts that the trees could provide good habitat for micro bats and that four trees provide more habitat than one, he is of the opinion that as dead, isolated, trees with no foliage cover (as opposed to dead trees within a plant community of otherwise healthy trees or living trees that provide food and shelter) the hollows will be exposed to the full force of the elements and that the lack of cover will also bring an increased risk of exposure for sitting and calling birds. He also considers the size and shape of the hollows are not conducive to occupation by many species other than hardy mobile species. Dr Robertson accepts that if left in place, hollow formation will take place but given the durability of Ironbarks, this will take time.

29. Mr Skelton agrees that trees with leaves provide more habitat than dead trees however he relies on the descriptions in the NSW Scientific Committee Final Determinations for the key threatening processes of the loss of hollow-bearing trees and the removal of dead wood and dead trees that do not limit the processes to forested land. He maintains that the dead trees on the site are akin to dead trees in paddocks in more rural areas and are capable of use by mobile hardy species. While Mr Skelton agrees that trees 1 and 2 have the hollows he considers retaining the clump is more valuable than retaining only tree 1 as the applicants propose to do. He opines that the existing hollows will enlarge over time and new ones will form.

30. The experts maintained their positions on the adequacy or otherwise of the proposed landscaping.

Submissions

31. Mr McKee for the applicants notes the agreement between the experts as to the significance of CPW and the importance of large ironbarks, however, he submits that the applicants’ case is that the habitat value was established when the council inspected the trees and should not include future and uncertain values. He contends that the applicants have provided evidence of limited use of the trees by fauna. Mr McKee cites Mr Skelton’s report at [42] and [45] in which Mr Skelton states in part that the death of the trees has caused, and will cause, ecological habitat loss in the locality and the amount and importance of the types of habitat is difficult to quantify. In Mr McKee’s submission the habitat value of the trees should be considered in the context of the site as containing four isolated trunks rather than being four dead trees in a forest. He asserts that the landscape proposal is genuine and real as is the need to make the trees safe.

32. Mr Fozzard for the council argues that the four trees should be retained because as a clump of trees, and thus the sum of all parts, the clump provides better habitat than a single tree. He notes Dr Robertson’s agreement that notwithstanding the hollows, the trees also provide other habitat values. Given the agreement that the trees are part of the CEEC CPW, there should be a presumption that the trees will be retained. Mr Fozzard also noted Dr Robertson’s agreement that the landscape proposal needed some refinement in order to ensure implementation and compliance.

Alternative orders

33. At the conclusion of the hearing, in order to assist the Court, the parties were invited to prepare alternative orders that reflected the discussions between the experts, particularly in regards to the landscape proposal.

34. In essence, the applicants propose the removal of Trees 2, 3 and 4 with Tree 1 to be retained but with the canopy removed to the extent of retaining 1-2m of each primary branch. With respect to the replacements, the applicants propose that they engage a suitably qualified ecologist or bush care specialist to prepare a landscape plan that prescribes the replanting of CPW trees and shrubs in a strip at the rear of the property. The accompanying diagram indicates a fenced area within 10m of the rear fenceline and includes the proposed 3 x 100 litre E. fibrosa at 5m centres and 24 other shrub/ mid-storey species planted at the rate of 1 per 10m2. The notes on the plan indicate the area is to be mulched, the planting is to be carried out by qualified bush regenerators, and any dead plants are to be replaced. The plan also indicates the placement of two nest boxes in each of trees 5 and 6. The proposed orders do not specify any time frame for ongoing maintenance.

35. The council proposes that a TAFE trained AQF level 5 arborist remove all parts of trees 1-4 that are more than 1.5m from the trunk of each tree. Any future removal will require an application to be made under council’s LEP and a Licence under s 91 of the TSC Act. Six x 100 litre E. fibrosa trees are to be planted throughout he yard with no tree to be planted closer than 4m from a boundary fence. Each tree is to be protected by 4 x hardwood stakes placed 500mm from the trunk and the base of each tree is to be mulched. The trees are to be maintained for a period of no less than 5 years or until such time that they exceed 3.6 m in height when they will be protected by council’s LEP and Tree management controls. Any trees that die are to be replaced.

Findings

36. Having considered the evidence, submissions and alternative orders I make the following findings.

37. As stated in [11] above, the applicants oppose the Order on the basis of: no evidence of use of the trees by threatened species, the trees do not constitute an endangered ecological community, the trees pose a danger, and their retention will provide no benefit to any endangered species in the local area.

38. On the first ground, the draft ecological report focussed on a visual inspection of the type of fauna habitat potentially provided by the trees and a desktop survey of threatened fauna species known to occur, or which have the potential to occur, within a 10 km radius of the site. No other fauna surveys were conducted. As discussed in [17], the desktop survey indicated that a number of species could potentially use the site, in particular the four species of micro bats that roost in tree hollows, but the author concludes that that the site lacks suitable habitat but the animals may use the site for foraging. Mr Skelton’s report identifies at least two species of micro bats that are likely to use hollows such as those found in Trees 1 and 2. In oral evidence, Dr Robertson agreed that the hollows on the site could provide good habitat for micro bats. While the aerial inspection of the hollows concluded that one hollow in each of Trees 1 and 2 could be used by micro bats, the absence of visual signs of use resulted in the conclusion that use was unlikely. The aerial inspection focussed only on the hollows; no other ecological assessments of habitat were conducted.

39. I am not persuaded by the evidence before me, that the hollows in Trees 1 and 2 are not capable of use, now or in the future, by threatened species or by any other native fauna that are not yet endangered; the ecological report (Exhibit A) draws this conclusion (see [20]). The stripping of bark around the edges of two cavities is evidence of use by something, and absent any conclusive evidence as to what that is, a cautious approach is required.

40. I reject Mr McKee’s submission that the habitat value of the trees was established when the council officer inspected the trees. Council’s reasons for the Order do not take such a narrow focus and are not limited to threatened species. The applicants have adopted a position that assumes the Order relates to current use of the trees by threatened species. On my reading of the reasons given in the order, the Council is considering current and future use. Therefore I am not satisfied on the applicants’ evidence that Trees 3 and 4 may not provide future habitat for threatened and other native fauna or that further hollows may not develop in Trees 1 and 2. The Final Determination for the key threatening process of the Loss of Hollow-bearing Trees at paragraph [2] of the determination summarises the process of decay and the formation of hollows. While the experts agree that Ironbark timber is durable and hollow formation would take time, it is nonetheless possible that this will occur in some or all of the remaining trunks and pruned limbs. Therefore the fourth ground of the applicants’ position is rejected.

41. With respect to the risks to safety posed by the trees, in the absence of any independent arboricultural evidence, and with the arboricultural expertise I bring to the Court, as the dead branches (in particular the smaller branches) dry and begin to decompose, they will fall from the trees and they could cause damage to property or injury to anyone in the vicinity. There is no evidence to suggest that the trunks themselves pose any imminent risk of damage or injury. The removal of the majority of the canopy so that the trunks and first 1.5m of the first order branches remain will remove the most hazardous portions of the trees but retain those parts of the trees that provide current and future habitat potential for a range of species.

42. Therefore, I find no reasons why the four trunks should not remain. I propose to adopt the main elements of council’s amended orders 1-4.

43. In regards to the proposed replacement planting and installation of nest boxes, the applicants’ proposal includes fewer canopy trees but a range of other species in a fenced and maintained area; this should provide a better long-term outcome for local biodiversity. The retention of all four trunks removes the need the need for the two nest boxes proposed by the applicants. I am not persuaded that the additional measures suggested by Mr Skelton are warranted in this instance or capable of being ordered.

44. Again, with the horticultural expertise I bring to the Court, and on the basis of the Landscape proposal and the parties’ proposed orders and in accordance with s 180(4)(b) and (f) of the LG Act, I have modified and tightened the orders with respect to the replacement planting. As neither party made submissions about the time frame for compliance, I have taken a practical approach for each of the two main elements of the order.

45. The reasons for the orders are to retain the trunks and portions of the four dead mature Eucalyptus fibrosa for current and future habitat and to provide additional replacement and future habitat for a range of native species.

Orders

46. The Orders of the Court are:

1. The appeal is dismissed.

2. The Order 21 as modified is:

1. The applicants are to engage an AQF level 5 arborist to carry out the tree pruning works specified in orders 2 and 3 below. The Arborist is to certify in writing that the works have been carried out as prescribed in this order. The certification is to be supplied to council within 35 days of the date of these orders.

2. The trees the subject of this order are the four large dead Eucalyptus fibrosa trees in the year yard of the property at 27 Harris Street Guildford. Nothing in this order permits any interference with the two E. fibrosa in the front yard of this property.

3. Within 30 days of the date of these orders, all parts of the four trees that are more than 1.5m from the trunk(s) are to be removed. In other words, the trunk and first 1.5m of the first order lateral branches of each of the four trees is to be retained as habitat. The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

4. Any proposed future pruning or removal of any of part of any of the four trees the subject of this order will require an application to be made, and approval granted, under Holroyd City Council’s Local Environmental Plan and a Licence pursuant to s 91 of the Threatened Species Conservation Act 1995.

5. Within 60 days of the date of these orders the applicants are to engage a suitably qualified ecologist or bush care specialist to carry out the following works in orders 6-10. The ecologist/ bush care specialist is to certify in writing that the works have been carried out as prescribed in this order. The certification is to be supplied to council within 65 days of the date of these orders. The certification is to include a management plan/ maintenance routine for the first three years.

6. The area 10m from the eastern/ rear boundary fence and bounded by the northern and southern boundary fences of the rear yard of 27 Harris Street Guildford is to be appropriately fenced off from the remainder of the yard. The area is to be prepared for planting in accordance with the landscape plan attached as Annexure 1.

7. Three Eucalyptus fibrosa trees from a minimum container size of 100 litres are to be planted within the fenced off area with spacings of not less than 5m from each other and from the boundary fences.

8. Native shrubs from a minimum container size of 5 litres are to be planted and maintained as set out in the landscape plan. Where possible, local provenance material should be used. The area is to be watered, and mulched with weed free Eucalyptus wood chip mulch.

9. Any plants that die within the next three years are to be replaced.

10. The trees and shrubs are to be maintained for a period of no less than 3 years or longer if the E. fibrosa trees have not reached a height of 3.6m when they will be protected by Council’s Local Environmental Plan and Tree Management Controls.

3. The exhibits are returned.

_______________________

Judy Fakes

Commissioner of the Court

20056 of 2015 Annexure 1 Landscape plan (1.21 MB, pdf)

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Decision last updated: 02 September 2015