Leonard v Woollahra Municipal Council
[2011] NSWLEC 1323
•14 November 2011
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Leonard v Woollahra Municipal Council [2011] NSWLEC 1323 Hearing dates: 23 and 24 August 2011 Decision date: 14 November 2011 Jurisdiction: Class 1 Before: Hewett AC Decision: (1)The appeal is dismissed.
(2)The exhibits are to be returned.
Catchwords: DEVELOPMENT APPLICATION - appeal against refusal of consent - dispute about the impact of pruning a state and local heritage listed tree Legislation Cited: Environmental Planning and Assessment Act 1979
Heritage Act 1977
Environmental Planning and Assessment Model Provisions 1980
Woollahra Local Environmental Plan 1995
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005Category: Principal judgment Parties: Mr Garry Leonard (Applicant)
Woollahra Municipal Council (Respondent)Representation: Counsel
Mr T Howard, with Mr D Thomas (Applicant)Mr P Rigg (Respondent)
Norton Rose (Respondent)
Solicitors
Wellings Lawyers (Applicant)
File Number(s): 10521 of 2011
Judgment
This is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 ( EP&A Act ) against the refusal by Woollahra Council (the Council) of Development Application No 429/2010/1 for pruning of an existing Deciduous Fig tree growing on adjacent land.
The development proposal
The proposal is for the pruning of a heritage-listed tree that grows on adjoining land and partly overhangs the applicant's property at 3A Fernleigh Gardens. The tree is listed on the New South Wales State Heritage Register as Ficus superba var henneana (Cedar Fig) listing No 00578 . The tree is also listed as a Heritage Item in Schedule 3 of Woollahra Local Environmental Plan 1995.
The Statement of Environmental Effects prepared for the applicant by Innovative Planning Australia, July 2010 relevantly states (at p 1 and p 6) in relation to the proposed development:
This development application is for the pruning of a heritage-listed tree on an adjoining property at 20 Rawson Road.
The Ficus superba tree located at 20 Rawson Road overhangs the site at 3A Fernleigh Gardens and creates a nuisance by causing excessive shading and shedding of leaves and fruit.
The shading restricts solar access to the dwelling and private open space, making clothes drying difficult. The shedding of leaves and fruit makes the pool and pavement difficult to clean, and blocks the gutters of the dwelling resulting in stormwater overflow. In some instances the storm water finds its way into the internal walls of the dwelling.
It is proposed to prune the tree back to previous pruning points from 20 years ago, as detailed in the Arboriculture Assessment.
The Statement of Heritage Impact (at pp 10-12) refers to the tree as an important landscape element:
The tree is thought to have been part of the original landscape in the early 1800's, or to have been planted around that time. It was located in the gardens of Fernleigh castle and remains a prominent feature of in the landscape from both the local perspective and the when viewed from the harbour. It is an important item in the areas of cultural and natural history.
The tree is of high aesthetic significance because of its immense scale. It is visible from a great distance due to this scale and the prominence of its canopy and location on the edge of the hill. Its prominent location within the suburb of Rose Bay also contributes to the aesthetic significance of the Castle as it contributes to the visual setting.
The tree is significant in the social context as its value has been recognised by many generations through its retention even though the land upon which it is situated has been subdivided many times and developed for urban purposes.
The Ficus superba has strong social significance within the Rose Bay area due to its visual prominence, and its association with the Fernleigh Castle. It also has strong importance due to its age possibly being part of the original vegetation of the site at the time of the land grant. That it has survived and retains its prominence in the face of development surrounding it is also of importance.
An Arboricultural Assessment (the UTM report) dated 26 March 2010 prepared by Mr Danny Draper of Urban Tree Management Australia Pty lists nuisances caused by the tree and the branches overhanging the property. The report recommends pruning the overhanging branches back to points to which they were cut about 20 years ago.
The pruning recommendations are described in cll 5.15 and 5.16 of the UTM report and are illustrated in two diagrams appended to the report. The report recommendations are written as follows:
- It is proposed to prune the 2 first order structural branches growing over the site to clear all regrowth back to near the old pruning wounds removing second and lower order branches from over the pool and the dwelling and most of the pavement area at the rear of the dwelling. This will remove approximately 15% of the live crown from the tree to abate the nuisance of encroachment . The extent of the pruning will not adversely impact upon the tree and will not detract from the local amenity as it will restore the pruning works previously carried out approximately 20 years ago and is intended to retain the tree and its integrity while undertaking minimal works to abate the nuisance with such works substantially screened by the dwelling at No. 4. All pruning works are to be undertaken to comply with AS4373-2007 Pruning of amenity trees with the extent of pruning shown in Appendix E - Pruning Diagrams.
- It is proposed to maintain the pruning annually by removing any regrowth of epicormic shoots arising near to the pruning wounds.
The pruning diagrams illustrate a total of seventeen branches to be removed and indicate the point at which each branch is to be cut.
The pruning diagrams show a plan view of the distribution of what are described as the six " first order structural branches " in the tree. The two branches to be pruned are identified by the direction in which they grow, that is, one growing toward the southeast and one growing toward the south. These are the two structural branches that overhang the rear of the applicant's property.
The Council determination
Council considered the application to be integrated development and referred it to the New South Wales Heritage Council, pursuant to s 48 of the Heritage Act 1977.
The application was determined on 3 March 2011, under designated authority for refusal, as the Heritage Council declined to issue an approval stating the following reasons:
(1) the proposed extent of pruning appears insufficiently justified or described with the current information that has been submitted
(2) the proposed pruning is not likely to remedy the stated problems and may jeopardize the long term health, structure and integrity of this heritage tree;
(3) further specific arborists advice is required to itemize the current condition of the tree, extent and location of any falling dead branches, wounds or included bark, extent of recommended canopy thinning or other proposed pruning, ongoing care (mulching, pruning, monitoring) required to ensure the ongoing health of the tree while assisting management of falling debris in the vicinity of the swimming pool and clothes drying area.
The contentions
The Council filed (on 12 July 2011) a Statement of Facts and Contentions identifying the following contentions:
(1) Whether the proposal satisfies the provisions of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) and accompanying Development Control Plan, particularly with regard to the visual impact of the proposal upon Sydney Harbour and adjoining foreshore areas by way of reducing the visual amenity value of the tree, and the likelihood that it will reduce the trees health and life expectancy (Contention1 (1))
(2) Whether the proposal satisfies the relevant provisions of the Woollahra Local Environmental Plan 1995 (WLEP)(Contention 1(2))
(3) Whether the proposed pruning would reduce the heritage significance of the tree because it would have a detrimental impact on its health and stability (Contention 2)
The relevant planning documents
Woollahra Local Environmental Plan 1995
The site is within Zone 2(a) (RESIDENTIAL "A" ZONE) under Woollahra Local Environmental Plan 1995 (WLEP). The relevant objective is:
(d) to protect the environmental attributes of the coastal and foreshore lands.
Clause 6 in Part 1 of the WLEP relevantly refers to the adoption of clause 8 of the Environmental Planning and Assessment Model Provisions 1980 .
Clause 2(1) of the WLEP states the aims and objectives of the plan. They relevantly state:
(g) to conserve the environmental heritage of the area of Woollahra,
(h) to protect the amenity and natural environment of the area of Woollahra.
Clause 2(2)(f) of the WLEP in relation to landscape relevantly states:
(i) To protect and enhance the natural landscape throughout the area of Woollahra.
(ii) To promote the retention of trees and the planting of suitable new trees in appropriate locations.
(iii) To control or minimise the impact of future development upon natural features such as significant trees or stands of trees, ridge linings or land within view of any waterway.
(iv) To protect and enhance the environmental quality of the area of Woollahra, through the appropriate management and conservation of existing patterns of vegetation and
(v) To protect the native flora and fauna.
Clause 2(2)(g) of the WLEP in relation to heritage conservation relevantly states:
(i) to identify heritage items and heritage conservation areas and to provide measures for their conservation, protection and enhancement.
Clause 26 (1) of the WLEP deals with heritage items, relevantly stating:
(1) A person shall not, in respect of a building, work, relic, place or tree that is a heritage item or that is an item that is part of a heritage item group:
(d) damage or move the tree
except with the consent of the Council.
Clause 26(2) provides that:
The Council shall not grant consent to a development application required by subsection (1) unless it has taken into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the item or of any heritage group of which the item is part and any stylistic or horticultural features of its setting.
Clause 26(3) provides that:
The Council shall not grant a consent required by subclause (1) unless it has considered the statement of heritage impact or a conservation plan or both as may be required by Council
Part 4 Schedule 3 the WLEP lists heritage items, relevantly at page 57 is:
Rawson Rd and Fernleigh Gdns, Rose Bay, Street No 20, 3 and 4, Ficus superba, var Henneana (Cedar Fig)
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP)
Clause 13 of the SREP deals with the planning principles concerning natural assets, relevantly stating:
(b) the natural assets of the catchment are to be maintained and, where feasible, restored for their scenic and cultural values and their biodiversity and geodiversity.
(f) development that is visible from the waterways or foreshores is to maintain protect and enhance the unique visual qualities of Sydney Harbour
(j) development is to protect and if practicable, rehabilitate watercourse, wetlands, riparian corridors, remnant native vegetation and ecological connectivity within the catchment
Clause 26 of the SREP deals with views to and from the harbour:
(a) development should maintain, protect and enhance views (including night views) to and from Sydney Harbour
(b) development should minimise any adverse impacts on views and vistas to and from public places, landmarks and heritage items
The Heritage Act 1977 and the New South Wales State Heritage Register
The tree has the unique status as the only individual tree listed on the New South Wales State Heritage Register.
The Heritage Statement of significance relevantly states:
This rare and magnificent specimen of Port Hacking fig (Ficus superba var henneana) is of natural, scientific (botanical) and aesthetic heritage significance, and is one of the most important trees and notable in the Woollahra Municipality. Estimated by the National Herbarium to be as old as the late 1820s, it is considered by fig expert Dr Wee Lek Choo to be quite rare, and likely to be a natural remnant of the original vegetation of the Eastern Suburbs area, given its location, age and size, and the species' dispersed distribution. It has attained an enormous spread, and its fruit provides fodder for many of Sydney's (now endangered) grey headed flying foxes (bats). It is highly unlikely to have been planted as this species is also very rare in cultivation.
Description
The tree's root zone and canopy spread cover at least parts of the sections of 20 Rawson Road, 3-3A and 4 Fernleigh Gardens, with a radius of at least 9 metres (1987). 5 Fernleigh Gardens site is approximately 50% covered by the tree's canopy and root zone (as corrected by Rappoport, 2010).
Physical Condition
Some lopping in early 1980s of parts of the canopy due to adjacent development, in 1987-8 some damage to roots and stone wall around base of tree when installing swimming pool and plumbing at 4 Fernleigh Gardens. Date Condition Updated: 16 Jan 04.
Modifications and Dates
9/7/1987 HC approved a swimming pool & spa to be constructed at 4 Fernleigh Gardens, shallow end located near tree roots to minimise excavation. 17/4//1989 HC approved extensions to existing house at 4 Fernleigh Gardens on the northern side boundary of the tree (and part of the SHR curtilage), extending the rear of this house to two storeys, reroofing and a new front verandah. Council's landscape architect advised that these works would not appear to compromise the tree's integrity. Condition placed on avoidance of impacts within root zone, and need for separate application for any canopy lopping.
Schedule 3 of the Woollahra Local Environmental Plan 1995 lists the tree as a heritage item. The Woollahra Council Register of Significant Trees states:
This rare Cedar Fig, magnificent and very old specimen and part of the original "Fernleigh Gardens" estate, is the only known example of this species in the Municipality. As such this tree is a botanically significant item of great heritage value. This tree is a sub-tropical rain forest species extending from the Illawarra are to Queensland and the Northern territory. Although its natural range covers this area, the tree is unlikely to be an indigenous remnant and is considered to be an ornamental planting associated with the former estate.
The tree is located in a position of great prominence on a sandstone outcrop on the western side of the ridge overlooking Rose Bay. This is a position of visual significance, particularly from the harbour and the approach through Rose Bay along New South Head Road. This Fig's stature and canopy is not large by standards of other common figs in the Municipality, however this is most likely the result of limiting factors such as shallow soils in this location and exposure to southerly winds.
This Fig nevertheless, has a massive, multi-trunked base with buttressing and roots extending across three properties including 20 Rawson Road and 3 and 4 Fernleigh Gardens. The subdivision of the original "Fernleigh Castle" estate has increased the threat of severe lopping and alignment to property boundaries and the severing of intrusive roots. The tree has been the subject of such action, whereby 30% of the crown and substantial roots were removed during alterations and additions to 4 Fernleigh Gardens. The Fig is now under a Permanent Conservation Order.
The site view
The Court, in the presence of the parties, conducted a site view on the morning of the first day of hearing.
At the commencement I disclosed that I had a previous professional association with the arborist who has made a submission on behalf of the owner of the tree. The parties indicated that they had no objection to my continuing to hear the matter.
Mr Howard for the applicant, assisted the Court by summarizing the applicant's concerns, including the impact of shade from overhanging branches, fruit fall into the pool and into roof gutters and root damage to pavement and other structures on the applicant's land.
Orange coloured tape had been tied to each branch to show where each proposed pruning cut was to be made. I made the observation, to which the parties agreed, that the tape appeared to have been located essentially to reflect the alignment of the property boundary.
The Court heard comment from arborist Mr Peter Richards for the applicant and arborist Mr Andrew Simpson for the respondent, on the extent of pruning proposed and on the impacts of past pruning events on the health and condition of the tree.
During the discussion, the arborists agreed that most of the orange tape markers indicated cutting points that would equate with the definition of lopping in the Australian Standard for Pruning amenity trees (AS4373-2007). They agreed that pruning in accordance with the Australian Standard would necessitate cutting to branch collars and that the majority of those branch collars are on parts of the tree that are not on the applicant's land.
The Court proceeded to 20 Rawson Street, Rose Bay where the tree stands near the western rear boundary of that property. The tree owner attended during the inspection of the tree from her property.
The tree's canopy extends partly over the rear portions of 3A Fernleigh Gardens and partly over an adjoining property to the north. A majority portion of the canopy extends to the east above the roof of the house at 20 Rawson Street.
In response to a question put by Mr Rigg for the respondent about property maintenance imposed by the tree, the owner said she had not experienced any building damage or water ingress as a consequence of leaves and other debris from the tree in the 40 years that she been in residence. She said she had installed gutter guards all around her roof and has them cleaned every few years to remove composting material from the Fig tree.
The Court then visited nearby streets to observe the tree from various vantage points including from Fernleigh Lane.
The expert evidence
Engineering issues
Mr Cosmo Farinola of Cardno Pty Ltd provided structural engineering evidence to assist the Court in understanding the structural issues relating to the application to prune the tree.
Mr Farinola prepared a report (14 February 2011) for lodgement with the development application. He prepared a second report (August 2011) for these court proceedings.
Mr Farinola's second report, which was submitted as an expert report included a statement confirming that he had read and agreed to be bound by the provisions of the Uniform Civil Procedures Rules and Schedule 7 of the Expert Witness Code of Conduct.
His report details a number of structural defects that he observed during inspection of the applicant's property. The defects included lifting and cracking of external pavement and a brick garden wall , and a repaired ceiling in the first floor bedroom due to a previous roof collapse.
Mr Farinola concluded that the damage he observed was due to the presence of the fig tree.
Mr Farinola's report does not meet essential requirements in s 5 of schedule 7 of the Expert Witness Code of Conduct as follows:
(a) his qualifications as an expert on the issue the subject of the report are not stated.
(b) the facts and assumptions of fact on which his opinions are based are not stated.
(e) no relevant references are cited in support of his opinions. The referenced NSW State Forests brochure on Tree Roots, Buildings and Sewers is completely irrelevant to the matters under investigation.
(f) there is no evidence of any examinations, tests or other investigations having been carried out .
As a result of these deficiencies I give no weight to Mr Farinola's report.
Under cross-examination, Mr Farinola agreed that he could have given advice to his client on ways to reduce future root damage, and for the design of external decking to minimise the problems of bat droppings, and on managing the penetration of water into the house. He said he had not done so because he had not been asked.
Heritage issues
Mr Paul Rappoport and Mr Roger Hedstrom provided heritage evidence for the applicant and the council respectively on the likely impact of the proposed pruning on the heritage values of the tree.
In the course of the hearing, it was revealed that Mr Hedstrom had not provided evidence of his qualifications as an expert on the issue the subject of the report as required under Schedule 7 s 5 of the UCPR 2005. Mr Hedstrom then proceeded to prepare a handwritten submission of his qualifications, which was accepted into evidence.
In oral evidence, Mr Hedstrom agreed that he has no experience in giving evidence in respect of matters where a heritage expert was required. He understood that Woollahra Council employs people with heritage expertise and he was unable to explain why such expertise was not sought in relation to the matter before the Court.
Mr Howard submits that since Mr Hedstrom does not have heritage qualifications, no weight should be given to his evidence.
Mr Rappoport says that any single listed heritage item can be modified out of necessity whether a tree or a building. He says he uses the five criteria usually applied by NSW heritage practitioners to assess significance. He says that in this particular case two of the five criteria are relevant, the first being historical and secondly, aesthetic. His opinion is that the tree has historical significance because of its age and because it can be seen from the harbour, Fernleigh Castle and surrounding areas so it has a landmark aspect and therefore aesthetic significance. He says that each of the criteria is then measured against two further filters, one being representativeness and the other being rarity.
Mr Rappoport was of the opinion that from an aesthetic point of view to prune 15% of the tree "would still allow the tree to be there, it would probably still allow its grandness, its landmark qualities and views to it from various points on the harbour or from Fernleigh Castle to remain intact, albeit slightly reduced.
Mr Rappoport says his opinion on the impact of the proposal on the historical significance of the tree is based on his acceptance of the UTM report that states that the work can be done without having a detrimental impact on the aesthetics or the health of the tree. As a consequence, he concludes there will be no detrimental impact on the heritage significance of the tree, because the UTM report states that the tree can be carefully pruned without affecting its health, longevity or the viability in the long term.
Mr Hedstrom says the council charged him with the assessment of the application and his starting point was the fact that the tree is listed in the State Heritage Register. He agreed with Mr Rappoport as to the way the heritage issues are assessed but said his main concern was the visual quality of the tree, because of the extent of the pruning and the impact that would have when viewed from the public domain.
Mr Hedstrom says the tree has an intact dome shape when viewed from various different aspects. He says the dome shape "is one of the reasons why it's such a highly valued rare landscape element, and the size of it of course in the locality and it's why it's listed as a heritage item and it's why it's listed in the council's LEP."
Mr Rappoport agrees that pruning only on the southern side of the canopy would cause a change capable of being perceived from the harbour. He disagrees that the change would be perceived from within the grounds of Fernleigh Castle because he says from that viewing direction there would be no perception of the tree's silhouette.
Mr Hedstrom agrees that the impact on the silhouette viewed from Fernleigh Castle would be the least of the view impacts under consideration, but he says there would still be a significant visual impact because of exposure of the internal branch structure of the tree after removal of the foliage.
Mr Rappoport characterised the aesthetic impact of pruning back to the southern boundary of 3A Fernleigh Gardens as "just on the border of being tolerable". He says that pruning 15% of the tree canopy would be acceptable because, in his words:
"...one never looks at these things from a static position, you're either on a boat moving from one direction to another, in a car up or down a road or walking. One doesn't look at these things from a fixed position and therefore we need to bear in mind that you're looking at this thing in the round and therefore the nature and the scope of the change contemplated in my view would be acceptable."
Mr Rappoport disagrees with the proposition that in the future there would be growth to the north, east and west but not to the south. He says that after the tree is pruned it will grow back, to quote his words:
"I think things that grow in fact have a better chance. I think the decisions one has to make with buildings is far more, what's the word, one has to be a lot more careful because if you make a decision to remove a part of a significant building it doesn't grow back, whereas with a tree if you make an error with natural heritage items there's always the possibility that it can grow back."
Mr Hedstrom characterized the proposed work as lopping that would, in effect, create a vertical slice from the tree's southern side.
In response to a question as to why the statements he had prepared for the heritage joint experts report emphasised tree nuisances, Mr Rappoport says that the Heritage Council's reasons for refusing the application mentioned the words "justification and necessity" and he took it that this implied that the pruning was not necessary and could not be justified, which is a proposition he disagrees with.
Arboriculture issues
Mr Peter Richards and Mr Andrew Simpson provided arboriculture evidence for the applicant and the Council respectively.
Mr Richards was a signatory to the joint experts report. He gave evidence on the health and condition of the tree and on the likely impacts of the proposed pruning. Mr Draper the author of the UTM report made the recommendations for pruning but he did not give evidence at the hearing. Mr Howard for the applicant says that Mr Draper was not before the Court as a witness because he thought it was appropriate to get an independent arborist who had not already committed to a view on the matter.
The arborists agree that the selective removal of four second order and three third order branches could provide building clearance and minimise the risk of branch contact with the building, but they disagree on the likely impact of further pruning on the health and longevity of the tree.
Mr Richards was of the opinion that further pruning, that is, pruning as recommended in the UTM report could be undertaken without adversely impacting the tree.
Mr Simpson disagreed, saying that further pruning was excessive, as it would adversely impact the medium to long-term health and stability of the tree. He reasoned that the age of the tree, being approximately 190 years, was a significant factor limiting its ability to respond to the pruning wounds and to resist decay and pests in the future.
Mr Richards says he inspected the tree and the site prior to the site view, although he prepared no documentary evidence of his inspection. He said he was not aware until the site hearing that the orange tape attached to the branches indicated where it was proposed to cut each branch. He agreed that such cutting represented a proposal to lop the branches as distinct from a proposal to prune them. He agreed that undertaking the work in accordance with the Australian Standard for pruning amenity trees would necessitate work of a physical kind within the adjoining property.
Mr Richards disagreed with the proposition that carrying out pruning only on the southern side of the tree would lead to starvation of that part of the tree's supporting root system. He accepted that in dealing with a tree of such significance, the precautionary principle would need to be adopted. To that end, he says he had "some site discussions with the builder" in regards to undertaking "more proactive measures such as fertilising the tree at the same time as the pruning."
Mr Simpson says he observed decay in some of the past pruning cuts that had been made as "flush" cuts. In oral evidence he said he thought the tree was not in the best of health, evidenced by a lack of callus growth on some of the older pruning wounds.
Mr Richards expressed no opinion on the matter of decay and he says the callus growth indicates that the tree is in good health.
Submissions
Mr Howard submits that the evidence supports the proposition that the pruning would have a negligible discernable impact on views from the water.
Mr Rigg submits that it is not correct to say that there is a negligible visual impact on views from Sydney Harbour. He says the council agrees there is no impact from the northern reaches of the harbour, but from the southern reaches there is an impact because of the reduction in the spread of the tree.
Mr Howard submits that one of the reasons given by the Heritage Council for refusing the application is that the proposed extent of pruning appeared to be insufficiently justified or described with the information provided to it. He urges the Court not to accept that proposition, as he says the development application was supported by a very detailed proposal put together by Mr Draper in the Urban Tree Management report.
Mr Howard submits that the tree imposes amenity impacts in the extreme category and that the remedy sought is a modest modification of the tree that will not give what the applicant seeks, but will go part way to giving some relief. He submits that despite the significance of the tree, the Court can be satisfied that the modest proposal will not cause any harm to the tree. He submits there is no evidence that the 1985 or the 2003 pruning caused any structural instability in the tree and that the arborists agreed there were no signs of instability.
Mr Howard submits that the applicant should be permitted to prune a small amount of the canopy of the tree in the manner proposed in the UTM report, leaving 3-5 m of foliage still extending across the rear of 3A Fernleigh Gardens.
Findings
The parties agree that the theme of the tree is one of unrestrained growth in all directions. Mr Rappoport does not agree that pruning 15% of the crown from the southern side of the tree would create a permanent intrusion into the appearance of the tree because, as stated previously, he says the tree will grow back. However, the application is for consent to prune the tree in the first instance, and then to remove annually all subsequent regrowth arising near the pruning wounds. It follows that there will be no regrowth and so any intrusion to the characteristic form of the tree will be a permanent intrusion.
Mr Rappoport's opinion that the proposed pruning would not diminish the heritage value of the tree appears to me to be unfounded because it is an opinion based on the unfounded assumptions in the UTM report.
Mr Rappoport's proposition that the aesthetic impact of the pruning is an impact "just bordering on tolerable", and one that would "probably still allow the tree's grandness" does not persuade me to conclude with any degree of comfort that the pruning is unlikely to have a detrimental effect on the aesthetic character of the tree. The statements "just bordering on tolerable" and "probably still allow the tree's grandness" do not engender a level of confidence that might be reasonably required in applying a precautionary approach. As a consequence, I conclude that it is more likely than not that the work will create a discernable intrusion into the crown form when viewed from the southern parts of the harbour and thus diminish the aesthetic character the tree.
Taking the UTM report pruning diagrams as presented, the removal of the two structural branches constitutes one third of the total of structural branches in the tree. I am not persuaded that the removal of one third of the structural branches represents a modest intrusion into the tree.
The UTM report does not determine the condition or dimensions of each of the seventeen branches recommended for removal. The report relies on generalised and unsupported assumptions and on the basis of these assumptions concludes that the aesthetics, health and stability of the tree would be unaffected by the extent of the work.
In forming their opinions about the likely impact of the work, both Mr Rappoport and Mr Richards give substantial weight to the UTM report. As a consequence of the shortcomings in the UTM report, I find no basis on which to conclude that the pruning is unlikely to be detrimental to the tree's appearance when viewed from surrounding areas and from the harbour. Neither am I able to conclude that the pruning is unlikely to threaten the health and stability of the tree.
Mr Howard submits there is no evidence that pruning undertaken in 1985 and again in 2003 caused any structural instability in the tree, a proposition accepted by the arborists, however the UTM report has a contrary view relevantly stating:
The tree was aerially inspected on 10 February 2010 by Mr Ken Cantor of Glochidian Arboriculture and Horticulture and the branch junctions of the pruning wounds from pruning approximately 20 years ago and the regrowth since that event examined. Many of the junctions were subject to decay and the congested branches formed as regrowth from epicormic shoots had branch bark inclusions forming weak and structurally unsound unions, subject to failure and collapse posing a serious risk of hazard.
The UTM report provides no documentary evidence of the aerial inspection by Glochidian Arboriculture and makes no further reference to the hazard.
The evidence does not support Mr Howard's proposition that the UTM report adopts a measured and careful approach by detailing a thorough assessment of the tree and the likely impacts of the proposed pruning. The UTM report advocates extensively for the "abatement of nuisances" by pruning to the extent carried out 20 years ago, and for the annual removal of subsequent new growth. The arborists agree that the work described in the UTM report is in fact lopping as it is to be undertaken by cutting at the points identified by orange tape on each branch. They agree that lopping is a type of cutting described by the Australian Standard as an unacceptable practice, and that if the work were to be undertaken in accordance with the Australian Standard it would be necessary to cut to branch collars, necessitating work on the adjacent property.
I accept Mr Howard's submission that the proposal is to carry out works on the property of the applicant and therefore I find that the development proposal cannot be carried out in accordance with the UTM recommendations, as it would be work that is contrary to those recommendations and it would be work undertaken on property that is not the subject of the application.
Mr Richard's inspection of the tree and his understanding of the full extent of the proposed work appears superficial. He relies on the unfounded assumptions and findings in the UTM report. Only after it was pointed out at the site viewing was he aware that the orange tape markers on the branches indicated the points at which each branch was to be cut and therefore the majority of the cuts involved lopping that is contrary to the Australian Standard for pruning amenity trees.
Mr Richard's statement that he had site discussions with the builder about fertilising the tree as a proactive measure to reduce the impact of the pruning is a measure inconsistent with the UTM report since that report makes no case for any such measures.
I find Mr Simpson's proposal for the adoption of a precautionary approach in view of the age of the tree a more measured approach than the prophylactic approach proposed by Mr Richards who seeks to offset the impact of the work by fertilising the southern most area of the tree's root spread.
I find that the health and structural condition of the tree is inadequately determined. The UTM report discusses decay and branch weakness posing a serious risk of hazard, whereas both Mr Simpson and Mr Richards say the tree is healthy, although Mr Simpson qualifies his opinion identifying decay and an absence of callus growth in some older pruning wounds. There is no documentary evidence of Mr Richards' assessment of the tree and he relies on the findings in the UTM report prepared by Mr Draper. As previously discussed, the evidence shows that implementing the UTM report recommendations would require the majority of the branches to be lopped to the boundary and would likely threaten the tree's health and longevity and as a consequence diminish its heritage values.
I find that the tree is the only individual tree listed on the State Heritage Register. The listing states, "This rare and magnificent specimen...is of natural, scientific (botanical) and aesthetic heritage significance..." The Woollahra Local Environmental Plan 1995 heritage listing states, "The tree is located in a position of great prominence...this is a position of visual significance particularly from the harbour and the approach through Rose Bay..." The applicant's own Statement of Heritage Impact prepared by Innovative Planning Australia states that the tree "is of high aesthetic significance because of its immense scale..."
Therefore, it is clear that a major reason for the tree's heritage listing is its visual amenity and that any diminution of that aesthetic character would be a matter of especial heritage concern.
Conclusions
I conclude that the proposal contravenes the provisions of cl 13(b)(f)(j) of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 as it is likely to reduce the visual amenity value of the tree, and reduce the tree's health and life expectancy.
I conclude that the proposal fails to satisfy cl 26 (a) and (b) of the SREP as the proposal will not protect and enhance views to this heritage item.
I conclude that the proposal fails to satisfy the provisions of cl 2(1)(g) of the Woollahra Local Environmental Plan 1995 in that it does not conserve the environmental heritage of the area of Woollahra.
I find that the proposal does not satisfy cl 2(2)(f)(iii) of the Woollahra Local Environmental Plan 1995 in that the extent of the work will not minimise the impact of development on a significant tree.
In accordance with cl 26(2) of the Woollahra Local Environmental Plan 1995, I find that I cannot grant consent to the development, as there will be an unacceptable impact on the heritage significance of the item.
Orders
(1) The appeal is dismissed.
(2) The exhibits may be returned.
Philip Hewett
Acting Commissioner of the Court
Amendments
24 November 2011 - Amended paragraphs: Appearances amended
Decision last updated: 24 November 2011
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