Lalith Senanayake v Parramatta City Council

[2007] NSWLEC 170

Land and Environment Court

of New South Wales

CITATION:

Lalith Senanayake v Parramatta City Council [2007] NSWLEC 170

PARTIES:

APPLICANT
Lalith Senanayake

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

11100 of 2006

CORAM:

Bly C - Fakes AC

KEY ISSUES:

Development Application :- removal of an Eucalyptus microcorys

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Parramatta Local Environmental Plan 2001 Regulation 33
Parramatta Development Control Plan

DATES OF HEARING:

22/03/2007

EX TEMPORE JUDGMENT DATE:

22 March 2007

LEGAL REPRESENTATIVES:

APPLICANT
Dr Berverling, barrister

RESPONDENT
Mr C. Gough, solicitor
of Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C and Fakes AC

22 March 2007

11100 of 2006 Lalith Senanayake v Parramatta City Council
This decision was given extemporaneously on site. It has been revised and edited prior to publication.

JUDGMENT

1 This appeal relates to a development application pursuant to cl 33 of Parramatta Local Environmental Plan 2001- Regulation 33 (“the LEP”) for the removal of a Tallowood tree, Eucalyptus microcorys (“the tree”) from the rear of the premises at No. 149 Midson Road, Epping.

2 The application was lodged by the owner of No. 77 Carlingford Road, Epping, the property immediately adjoining the property at No. 149 where the tree is located. The Court was advised of the owners consent to the application during the proceedings.

3 The site is included in the Residential 2(a) zone under the LEP and the provisions of that zone include the following objective:

(a) to enhance the amenity and characteristics of the established residential area.

4 Also said by the respondent to be applicable are the provisions of the Parramatta Development Control Plan (“the DCP”) particularly the objectives in s 4.1.10. The relevant objectives there refer to:

seek to conserve significant natural features and to retain and provide for mature vegetation particularly large and medium sized trees.

5 The remaining issues in the appeal comprise the following:

1. Whether approval should be granted as the tree, the subject of the appeal, is a significant tree and its removal shall have an adverse impact on the streetscape and character of the locality;

2. Whether approval should be granted for the removal of the tree in circumstances where there is an acceptable alternative method available of mitigating any damage caused by the tree;

3. Whether approval should be granted for the removal of the tree that will remove habitat for native animals and birds;

4. Whether removal would be in the public interest having regard to the significant nature and size of the tree.

6 The tree is positioned immediately adjacent to the applicants property and his garage. The Court understands that the main reason for the applicant wishing to remove the tree is that the trees roots have damaged the garage and have penetrated sewer pipes.

7 The Court had the benefit of evidence from the respondent’s arborist Mr N. Williams and the applicant’s arborist Mr W. Back. We also had the benefit of the evidence of Mr B. Hearne a council health and building surveyor and from Mr B. Muhunthan an engineer. In addition there was a report and quote from a qualified plumber in relation to root blockage of sewer pipes.

8 The application was advertised and a number of adjoining owners objected to the trees removal. When the hearing began on-site the Court heard from three neighbours who expressed concerns regarding the loss of the tree, which was described as a “magnificent tree”, which is a “landmark” in Epping. It has aesthetic benefits and attracts wildlife. It was said to be worth much more than the garage and was planted before the garage was constructed.

9 I also heard from Mrs L. Wearne, a councillor representing the ward in which the site is situated. She took the opportunity to explain how significant trees such as this, in Epping were sought to be maintained by the council.

10 Having considered all of the evidence we agree that the tree has caused significant damage to the concrete floor of the garage. It may also have as a result of the lifting of the slab caused other damage to its structure. We also agree that there is also a reasonable likelihood that the tree’s roots have managed to penetrate the sewer pipes on the applicant’s property and caused blockages, which have been required to be rectified by plumbers. We accept that as a result of the tree’s roots entering the applicant’s property there is an economic cost involved.

11 In terms of the tree itself there was no dispute that the tree has significant values. These values can be discerned from the Thyer Tree Valuation work sheet that was provided by Mr Williams. This analysis considers the size and age of the tree as well as a range physical and social factors and we heard no evidence to suggest that the particular assessments within that evaluation were incorrect and we give them significant weight.

12 In addition we were given the opportunity of viewing the tree from a number of neighbouring properties and from the wider locality. Plainly the tree makes a significant contribution to the amenity of the locality particularly given its size and good health. It provides a high level of visual amenity for neighbours and we expect that given its age and condition its benefits will continue for many years to come. It is thus necessary for us to weigh the adverse impacts of the tree against the benefits that it provides for the amenity of the neighbourhood.

13 In considering these matters it is important to note that the tree was in existence a number of years prior to the construction of the garage. Whilst we accept that the tree may continue to affect the sewer pipes and the garage the benefits to the amenity of the locality are considerable and in our opinion out weigh the impacts.

14 We agree with the council that not only do the objectives in cl 16(3)(a) of the LEP apply but that the landscaping objectives in the DCP are also relevant. In the context of these controls we are satisfied that the tree comprises a significant natural feature, which should thus be conserved.

15 Therefore the removal of the tree would not enhance the amenity of this established residential area and therefore fails to comply with the threshold test in cl 16(3) of the LEP, which provides that consent must not be granted to the carrying out of development unless it is consistent with the objectives of the zone. The appeal is therefore dismissed and the development application is refused. The Court will retain Exhibit 1.

___________________ ____________________

T A Bly J Fakes
Commissioner of the Court Acting Commissioner of the Court
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