Proyas v The Council of the City of Sydney

Case •

[2016] NSWLEC 1091

•

15 March 2016

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Proyas v The Council of the City of Sydney [2016] NSWLEC 1091
Hearing dates:4 March, 2016
Date of orders: 15 March 2016
Decision date: 15 March 2016
Jurisdiction:Class 1
Before: O’Neill C
Decision:

1. The appeal is dismissed.
2. Development Application No. D2015/1644, for the removal of the Eucalyptus salinga (Sydney Blue Gum) located at 25 Georgina Street, Newtown, is refused.
3. The exhibits, other than exhibits 2 and A, are returned.

Catchwords: DEVELOPMENT APPLICATION: removal of a tree and replacement with a new tree.
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW)
Land and Environment Court Act (1979)
Category:Principal judgment
Parties: Mr Alex Proyas (Applicant)
Council of the City of Sydney (Respondent)
Representation:

Counsel:
Mr P. Vergotis solicitor (Applicant)
Mr A. Singh solicitor (Respondent)

  Solicitors:
McCabes (Applicant)
Council of the City of Sydney (Respondent)
File Number(s):11245 of 2015

Judgment

  1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. D/2015/1644 for the removal of the Eucalyptus salinga (Sydney Blue Gum) (the tree) located at 25 Georgina Street, Newtown (the site) by the Council of the City of Sydney (the Council).

  2. The applicant lodged an application for a permit to remove a tree on private land on 3 August 2015 (TPR/2015/322) and it was refused by Council on 25 August 2015. The applicant filed Class 1 proceedings with the Land and Environment Court on 18 September 2015 (10841 of 2015) (the first appeal). In the Council’s Statement of Facts and Contentions filed on 13 October 2015, it raised the issue that the application should have been a development application as the Council contended there is no right of appeal against the Council’s refusal of the application for a permit to remove a tree on private land. The applicant lodged a development application for the removal of the tree on 12 November 2015 (D/2015/1644) and properties within a 25m radius of the site were notified by letter of the development application and no submissions were received. The development application was refused by Council on 22 December 2015. The applicant filed Class 1 proceedings with the Land and Environment Court on 23 December 2015 (11245 of 2015).

  3. The first appeal (10841 of 2015) was subject to mandatory conciliation on 21 December 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation conference, it was terminated on 21 December 2015, pursuant to s 34(4) of the LEC Act.

  4. A notice of discontinuance of the first appeal was filed with the Court on 9 March 2015.

Issues

  1. The Council’s contentions in the matter can be summarised as:

  • The tree provides a positive contribution to the canopy cover and amenity of the immediate area;

  • The tree is in good health and structural condition; no obvious structural defects that would warrant the removal of the tree have been identified and there is no evidence of major or ongoing live branch failures;

  • The Arborist Report for the removal of the tree fails to demonstrate sufficient justification for the removal of the tree;

  • Insufficient information has been provided to demonstrate the Sydney Blue Gum is the cause of the damage to surrounding infrastructure and the rear boundary wall and retaining wall were not constructed in a manner that anticipates the growth of the tree.

The location of the Sydney Blue Gum

  1. The Sydney Blue Gum is located adjacent to the rear boundary of the site, in the south-western corner of the site, fronting Brocks Lane. The tree is close to the existing garage at the rear of 27 Georgina Street, Newtown.

The proposal

  1. The proposal is to remove the existing Sydney Blue Gum and replace it with a suitable tree in a nearby location on the site.

Planning framework

  1. The site is zoned R1 General Residential pursuant to Sydney Local Environment Plan 2012 (LEP 2012).

  2. The site is a heritage item listed in Schedule 5 of LEP 2012 (Terrace group including interiors 23-51 Georgina Street, item I976) and is within a heritage conservation area (Heritage Map Sheet HER_010 LEP 2012).

  3. Clause 5.9 Preservation of trees or vegetation of LEP 2012 relevantly includes the following:

(1) The objective of this clause is to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation.

(2) This clause applies to species or kinds of trees or other vegetation that are prescribed for the purposes of this clause by a development control plan made by the Council.

Note. A development control plan may prescribe the trees or other vegetation to which this clause applies by reference to species, size, location or other manner.

(3) A person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation to which any such development control plan applies without the authority conferred by:

(a) development consent, or

(b) a permit granted by the Council.

(4) The refusal by the Council to grant a permit to a person who has duly applied for the grant of the permit is taken for the purposes of the Act to be a refusal by the Council to grant consent for the carrying out of the activity for which a permit was sought.

(5) This clause does not apply to a tree or other vegetation that the Council is satisfied is dying or dead and is not required as the habitat of native fauna.

(6) This clause does not apply to a tree or other vegetation that the Council is satisfied is a risk to human life or property.

  1. The provisions of Sydney Development Control Plan 2012 (DCP 2012) are a relevant consideration. Section 3.5.3 ‘Tree management’ cites other policies that apply to the management of trees, including Urban Tree Management Policy, Urban Forest Strategy and Street Tree Master Plan.

  2. Section 4.1.3.3 of DCP 2012 ‘Landscaping’ relevantly includes the following:

(1) A landscape plan may be requir3eed to be prepared and submitted with the development application concerning heritage items. The landscape plan.. is to include: (a) the retention of original and or significant landscaping (including plants with direct links or association with the heritage item);

(3) Existing trees are to be retained and protected by locating paved areas, underground services… where there will be minimum impact on the growing conditions needed by those trees.

  1. Section 4.1.6.2 ‘Heritage items and heritage conservation areas’ of DCP 2012 requires development to retain the predominant scale of the lane and any landscape features including mature trees.

  2. The City of Sydney Tree Management Policy 2013 states that while tree removal is a last resort option, public safety always takes priority. Tree removal is not permitted reduce the extent of leaf/flower/fruit drop or to reduce the impact from fauna.

  3. The City of Sydney Urban Forest Strategy states, ‘larger trees have been found to be more valuable (providing between 4 to 8 times the benefits) than small trees’ and the protection of existing trees will be encouraged by refusing the removal of trees for inappropriate reasons, including unsubstantiated fears of tree failure.

Expert evidence

  1. The applicant relied on the expert evidence of Dr Danny Wotherspoon and the Council relied on the expert evidence of Ms Samantha Knight.

  2. The experts agreed on the following:

  • The tree is 20m in height with a 10m canopy spread;

  • The tree is in good health and its health has improved since the conciliation conference on-site in December 2015, probably due to the heavy rainfall over summer, as demonstrated by lots of healthy new foliage and its green colour. Dr Wotherspoon qualified his evidence regarding the health of the tree by stating that the response of the tree to the recent heavy rainfall suggests that it is highly sensitive to changes in weather, compared to a very healthy tree which has good reserves of food and water and is more resilient during period of dry weather;

  • The tree is visually prominent from various surrounding aspects outside the site;

  • The removal of the tree will have negative impact on surrounding amenity and reduce canopy cover in the area;

  • The tree has developed a form or habit that is typical of its species in an urban environment as an isolated tree;

  • If the tree declines in health and/or vitality it would need to be removed;

  • The roots have not contributed to the damage of the upper retaining wall as roots from the tree would not be able to grow there.

  • The replacement tree.

  1. The experts disagreed about the life expectancy of the tree. Dr Wotherspoon is of the opinion the tree will decline in the next 15 years and Ms Knight is of the view that the tree has a life expectancy of 15 to 40 years.

  2. The experts disagreed on whether or not the tree presents a real risk of sudden limb failure. They agreed the tree has developed multiple trunks. According to Ms Knight, Sydney Blue Gums typically have a single trunk, however in urban areas, it is not uncommon for a specimen to have multiple trunks. According to Dr Wotherspoon, it is likely the tree was pollarded at a height of 3m, causing it to develop multiple trunks. Ms Knight does not agree that it is likely the tree has been pollarded and the multiple branches spring from different points along the trunk and not from a single point, as would be the case had the tree been pollarded. Dr Wotherspoon believes the tree shows signs of ‘included bark’ and Ms Knight disagreed. According to Dr Wotherspoon, the tree is ‘imminently dangerous’, however, Ms Knight disagrees; in her view there is no evidence that the tree is dangerous as the branches have a normal attachment with no indication of abnormality or weakness.

  3. In Ms Knight’s opinion, the deadwood through the canopy of the tree indicates that the tree has had no recent maintenance, as deadwood is naturally produced by all trees as new branches grow. Ms Knight is of the view that regular, biannual pruning of the tree would be sufficient to maintain its safety, assuming the tree’s health and vigour remains consistent.

  4. According to Dr Wotherspoon, the applicant informed him that a branch from the tree fell onto power lines in the past. Dr Wotherspoon identified the likely point of failure in a photograph in his supplementary statement of evidence (exhibit C, p3). In Ms Knight’s opinion, there is no evidence within the tree canopy of previous live branch failures, typical of ‘sudden limb drop’. The photograph taken by Dr Wotherspoon in exhibit C is more typical of a branch that has been cut, according to Ms Knight, as in her opinion, sudden limb drop leaves a section of the branch, approximately 200mm long, remaining in the tree. In oral evidence, Ms Knight pointed to a photograph of another tree in Figure 11 of Dr Wotherspoon’s statement of evidence (exhibit B, p 17) as an example of what is left of a branch after sudden limb failure.

  5. The experts disagreed about the likely root run of the tree. According to Dr Wotherspoon, the available area for the root run of the tree is less than 41% of the ideal 360 degrees, due to obstructions including the laneway, the existing garage on the neighbouring property, the planter box to the east of the tree and the sewer line to the north of the tree (exhibit F). According to Ms Knight, if the roots of the tree are confined to the limited area identified by Dr Wotherspoon, the tree would not remain upright. In her view, the positive health and vigour of the tree and its structural soundness indicate that the roots are located in areas beyond that identified by Dr Wotherspoon, including the laneway and this is substantiated by the damage caused to the footpath and boundary walls in Brocks Lane by the roots of the tree, which are cited by the applicant as a justification for the tree’s removal.

  6. Dr Wotherspoon provided an addendum to his expert evidence report at the commencement of the hearing, stating that the tree is dropping leaves from the canopy and has many dead tips of small branches throughout the canopy. The experts revisited the site at the commencement of the hearing to discuss Dr Wotherspoon’s additional evidence and Ms Knight disagreed with Dr Wotherspoon’s assessment of the health and vigour of the tree, for the reasons set out in her statement of evidence.

Consideration

  1. I accept the agreement of the experts that the tree is visually prominent from various surrounding aspects outside the site and that the removal of the tree will have negative impact on surrounding amenity and reduce canopy cover in the area. I accept their agreement that the tree has developed a form or habit that is typical of its species in an urban environment as an isolated tree.

  2. I prefer and accept Ms Knight’s expert testimony in regard to the good health of the tree, the risk the tree presents of sudden limb failure and the likely root run of the tree. I accept Ms Knight’s evidence that it is not uncommon for a specimen of Sydney Blue Gum to have multiple trunks in urban areas and that it is unlikely the tree was pollarded at 3m in height as the branches spring from different points along the trunk. This is clear from observing the tree.

  3. I accept Ms Knight’s opinion that the applicant’s claim the tree is prone to sudden limb failure is not substantiated by evidence of a splintered limb within the tree canopy.

  4. I accept Ms Knight’s evidence that the tree would not be standing if the root run occupied the small area postulated by Dr Wotherspoon as the likely root run of the tree and this is further evidenced by the damage caused to the footpath and boundary walls in Brocks Lane by the roots of the tree. The applicant did not provide any evidence to substantiate Dr Wotherspoon’s opinion that the root run of the tree was confined to the small quadrant on the site indicated in exhibit F.

Findings

  1. Considering all of the evidence before me, I am satisfied that the tree is provides a positive contribution to the canopy cover and amenity of the immediate area and that the tree is in good health and structural condition and has no obvious structural defects that would warrant the removal of the tree, nor is there any evidence of major or ongoing live branch failures.

  2. I accept Ms Knight’s evidence that regular, bi-annual maintenance of the tree should be sufficient to maintain its good health and safety. I accept the agreement of the experts that the tree would need to be removed if it declines in health and/or vitality.

Orders

  1. The orders of the Court are:

  1. The appeal is dismissed.

  2. Development Application No. D/2015/1644, for the removal of the Eucalyptus salinga (Sydney Blue Gum) located at 25 Georgina Street, Newtown, is refused.

  3. The exhibits, other than exhibits 2 and A, are returned.

_____________________

Susan O’Neill

Commissioner of the Court

**********

Decision last updated: 15 March 2016

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