Kushe v City of Sydney Council
[2007] NSWLEC 311
•21 May 2007
Land and Environment Court
of New South Wales
CITATION: Kushe v City of Sydney Council [2007] NSWLEC 311 PARTIES: APPLICANT
RESPONDENT
Samuel Kushe
City of Sydney CouncilFILE NUMBER(S): 10146 of 2007 CORAM: Hoffman C KEY ISSUES: Development Application :- s 96 to delete condition from consent, tree, conflict with utility services, small yard, conservation area, streetscape. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan (1998)
South Sydney Development Control Plan (1997)
Urban Design and the City of Sydney Heritage Development Control Plan (2006)DATES OF HEARING: 21/05/2007 EX TEMPORE JUDGMENT DATE: 21 May 2007 LEGAL REPRESENTATIVES: APPLICANT
Mr S. Kushe, litigant in personRESPONDENT
Mr S. Kondilios, solicitor
of Maddocks Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESK G Hoffman
21 May 2007
JUDGMENT10146 of 2007 Samuel Kushe v City of Sydney Council
1 This is a s 96 appeal against a condition of consent in Development Application No D/2005/1910 at No 9 McDonald Street, Potts Point. The consent was granted on 7 March 2006, for the erection of a carport off McDonald Lane at the rear of the property. The consent included approval for new masonry boundary walls to the rear yard and on the plans was shown a tree to be planted in part of the rear yard. The planting of this tree was made a condition of consent. The applicant seeks to delete that condition.
2 The site has an area of approximately 227 sq m and is located on the corner of McDonald Street and McDonald Lane. McDonald Lane is L-shaped which runs north to south off McDonald Street and then east to west parallel to the street. The site has three street frontages as a result.
3 The site currently contains a 3 storey terrace building. The building was formerly used for the purposes of the backpackers hostel. The building is currently used for residential purposes. The rear of southern elevation of the boundary fence presently comprises approximately a 3 m high tree stump. This will be replaced with the approved masonry wall.
4 The site is located in a Residential 2(b) Zone and within the Elizabeth Bay Heritage Conservation Area CA19 as specified in the South Sydney Local Environmental Plan (1998).
5 McDonald Street comprises predominantly residential terraces and residential flat buildings. To the north of the site on the opposite side of McDonald Street are 3 storey residential flat buildings and to the east on the opposite side of McDonald Lane is a multi-storey residential flat building with a Macleay Street frontage. To the west of the site are further residential terraces with garages fronting McDonald Lane at the rear. Residential buildings on the southern side of McDonald Lane which are off Challis Avenue have garages off the laneway. There are views from these Challis Street apartments over McDonald Street towards Woolloomooloo.
6 The statutory controls applicable are the South Sydney Local Environmental Plan (1998), the South Sydney Development Control Plan (1997) Urban Design and the City of Sydney Heritage Development Control Plan (2006).
7 The issues in the appeal are:
- 1. Heritage conservation. The proposal is not compatible with cl 22 and 23A of the South Sydney Local Environmental Plan (1998) or the provisions outlined within the City of Sydney Heritage Development Control Plan (2006).
Particulars
- 1.1. The original tree, a Port Jackson fig, enhanced the character and appearance of the conservation area and environmental heritage of the streetscape.
1.2. The replacement tree provides for a significant contribution to the character of the Elizabeth Bay conservation area and streetscape. Its absence would be contrary to cl 22(a) and 23A(1)(f) and 23A(2)(d) of the South Sydney LEP (1998).
1.3. The removal of the placement tree would be unsympathetic to the landscape character of the rear lane contrary to provision 10.2(3)(d) of the City of Sydney Heritage DCP (2006).
- The proposal is not compatible with objectives for zone 2B residential as listed in cl 12 of the South Sydney Local Environmental Plan (1998), particularly cl 12(1)(a).
- 2.1. Failure to replace the Port Jackson fig tree will impact negatively on the amenity enjoyed by nearby residents and would detract from the future quality of the environment.
- The net loss of one tree would be contrary to the objectives performance criteria and controls listed in s 1.5 pt E Environmental Design Criteria of the South Sydney Development Control Plan (1997) .
- 3.1. The replacement tree will contribute to the natural landscape and enhance the setting of the existing building and new masonry fence.
3.2. The replacement tree encourages visual protection for the subject property and neighbouring properties by providing screening and filtering of light.
- The net loss of one tree in the area is inconsistent with the tree removal permit granted by the council on 17 August 2004 for the Port Jackson fig.
- 4.1. The tree removal permit was granted subject to the following condition:
- “Area to be landscaped and a suitable advanced replacement tree (minimum 2 m in height) will be planted.”
- 4.2. Location of the replacement tree as proposed by the applicant in D/2005/1910 is considered appropriate and would restore the natural character and setting lost as a result of the tree removal.
8 Although not involved in this appeal, the council and the applicant referred in detail in their written evidence to this huge fig tree at the rear of the site that council had given consent to remove in 2004 with the condition to plant a replacement tree. The fig tree has gone but the stump remains. Apparently the tree had occupied most of the rear section of the back yard where the carport is proposed and from photos this appeared true. Its roots had damaged sewer pipes of the subject property and the neighbours for quite a distance either side of the subject site.
9 The applicant had never provided a replacement tree under the tree removal consent. He said the tree in his development application for the carport should not be required as he produced Sydney Water documents showing his branch sewer line in his courtyard passes within one metre of where the replacement tree is shown in a 2 m wide yard. That is actually the pathway from the carport and the outside toilet and bathroom to the backdoor of the house. The sewer pipe runs the length of this side yard and anywhere along it tree roots could grow into the sewer line.
10 The council felt that the construction of the masonry boundary wall and the carport would cause enough disturbance that the existing concrete paving in the yard areas would have to be rebuilt and at that time the existing terracotta sewer pipe could be re-laid in plastic to avoid any tree root intrusion.
11 The applicant said that is not a condition of the council consent and he had not intended to do it and no new paving or new sewer pipe is part of his development application.
12 Ms Sweeney, the council arborist, had produced a report suggesting the tree’s replacement be magnolias because they are a thematic tree as planted in McDonald Street, otherwise a firewheel tree or a water gum because they corresponded to the Victorian era of the terrace house on the site and nearby. The area is a conservation area and such requirements are provided for in the council’s applicable instruments and controls.
13 It seems to me that any of those trees are much too large for such a narrow yard and their trunks at maturity could restrict the pathway and damage the pavement as well as the roots getting into the terracotta sewer pipe if it is not made into plastic.
14 Also Sydney Water has a document that the applicant produced which states that magnolias should definitely be nowhere near sewer pipes.
15 Ms Sweeney said that that document had been the subject of discussion between her and Sydney Water and that the document had not been fully researched in her opinion. She said, however, that an alternative tree would be a blueberry ash that has a much smaller trunk and a less invasive root system and it also had been planted in McDonald Street.
16 In viewing the site and the locality, it is true that the area could do with additional vegetation because it is a high density area with buildings between three and eight storeys all around. There is, however, an oak tree on the opposite side of the laneway to where any tree on the subject site would go. There are street trees. There are trees in the front yards of some of the buildings in McDonald Street and in some of the back yards off McDonald Lane. Also Macleay Street nearby has large trees within the footpath reservation as well as on some properties adjoining the street.
17 It seems to me that council’s consideration of the application for the car port should have looked more closely at the impacts and whether the sewer pipe and rear yard paving should be replaced if the intended tree grew. The tree shown on the plans is less than 300 mm to the centre of the trunk from the new masonry boundary wall. Ms Sweeney agreed it should need to be at least 500 mm clear of the wall. Once any tree grows to the 5 m minimum height that the council wants I suspect it would obstruct the narrow side yard and probably get into the existing paving and the terracotta sewer line that council did not require to be rebuilt.
18 I understand the council approved the removal of the huge fig partly due to the recognition that it is an entirely inappropriate specie for such a small yard. It seems to me the side yard, that is the only place for a tree once the carport is built, is too small for any tree. The complication of its use as a walkway to the carport, the toilet and the bathroom, and as the route of the house sewer pipe only emphases that point.
19 Although the conservation area requires consideration of its streetscape, landscape, and maintenance of its character, I do not think it is practical or appropriate to attempt it by a tree in this small yard.
20 The orders of the court are:
1 The appeal is upheld.
3. The exhibits are returned to the parties except Exhibit 2.2. Condition 2 of Consent No. D/2005/1910 at No. 9 McDonald Street, Potts Point is deleted and the need for a tree as shown on the approved plans is also deleted by the substitution for them with Drawings 16/A3, 2b/A3, 3b/A3, 4b/A3 as held on the Courts file.
- ________________________
K G Hoffman
Commissioner of the Court
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