Robertson v Blue Mountains City Council

[2016] NSWLEC 1087

Land and Environment Court

New South Wales

Medium Neutral Citation:	Robertson & anor v Blue Mountains City Council [2016] NSWLEC 1087
Hearing dates:	2 March 2016
Date of orders:	11 March 2016
Decision date:	11 March 2016
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal dismissed
Catchwords:	APPEAL: Conditions of consent; tree removal sought; streetscape; arboricultural evidence
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Rural Fires Act 1997 Blue Mountains Local Environmental Plan 2005 Blue Mountains Local Environmental Plan 2015
Category:	Principal judgment
Parties:	Helen and John Robertson (Applicants) Blue Mountains City Council (Respondent)
Representation:	Applicants: Mrs H Robertson (Litigant in person) Respondent: Mr D Baird (Solicitor)     Solicitors: Respondent: Marsdens Law Group
File Number(s):	11083 of 2015

Judgment

1. COMMISSIONER: Some 14 months ago the applicants purchased the last lot in a neighbourhood development known as ‘Leura Springs’ in Craigend Street, Leura. In June 2015 the applicants were granted development consent for alterations and additions to their dwelling at 12/112 Craigend Street, Leura. As is usual, Blue Mountains City Council imposed conditions of consent. The approved plans include a copy of the landscape plan, marked-up by council, identifying in red ink trees originally proposed to be removed by the applicants but now required to be retained in accordance with the conditions.

2. The applicants have appealed under s 97(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) against two conditions of consent imposed by Blue Mountains City Council.

3. The conditions, #13 and #15, go to tree removal and retention and to the landscaping plans. The applicants seek to increase the number of trees to be removed and to amend the approved landscape plan accordingly. The trees in question are primarily a row of conifers located along the southern boundary and frontage to Craigend Street.

4. In essence, the applicants’ position is that the proposed amendments are a proactive and strategic approach which will create a more attractive and sustainable streetscape and enhance the entrance to the estate by complimenting the high quality landscape on the western side of the entrance. Apart from contending that the proposal is consistent with the relevant provisions of Blue Mountains Local Environmental Plan 2005 (BMLEP 2005), the applicants maintain that the trees are a cause for concern as a fire hazard, they restrict natural light, and the shadows cast onto the road cause black ice to form in winter thus resulting in a traffic hazard.

5. The matter commenced on site as a mandatory conciliation under s 34AA of the Land and Environment Court Act 1979 (Court Act). During this process the applicants proposed an alternative landscape design that retained more trees than they originally proposed and which modified the replacement landscaping. The council did not oppose the amendment and the applicants were granted leave to rely upon it. Notwithstanding this amendment, no agreement could be reached and the conciliation was terminated in accordance with s 34AA(2)(b)(ii) of the Court Act; that is, the parties agreed to the hearing proceeding on the basis of what occurred during the conciliation process, including submissions made by objectors.

6. The council contends that the appeal should be dismissed as the proposed additional tree removal is counter to the objectives for the zone and the relevant provisions of Blue Mountains Local Environmental Plan 2005 (BMLEP 2005), particularly as the trees play a substantial role in the garden setting of the visually significant streetscape and the established character of the surrounding residential area.

The site and locality

7. The applicants’ property is one of 22 lots in a neighbourhood development, known as ‘Leura Springs’, created by the 2004 subdivision of a large estate in the central section of the northern side of Craigend Street, Leura. The subdivision plan indicates that the allotments range in size from 700m2 to 1413m2 with the majority being less than the applicants’ lot which has an area of 772.52m2.

8. The site is on the north-eastern corner of Craigend Street and the private access road into the gated community of which it is a part. The original two-storey building on this allotment was the sales office for the subdivision. The alterations and additions approved in the 2015 development consent enabled the addition of a two-storey wing to the west comprising kitchen, lounge, dining room, bathroom and bedrooms. These major alterations and additions are almost complete however an occupation certificate is yet to be issued.

9. The dwelling is located in the south-eastern portion of the lot with the principal orientation of living areas to the north, and west. The dwelling is set back approximately 8m from the southern boundary.

10. The site contains a number of established and mature trees. The trees in question are numbered in accordance with the Tree Report prepared by the applicants’ arborist, Mr Lawrie Smith from About Trees dated 15/12/2014. They are: trees 1-3 – a row of hedged Cupressus torulosa (Bhutan Cypress), trees 4-15 – a row of mature Bhutan Cypress left to grow to their natural form, tree 16 – a Cupressus macrocarpa ‘Lambertiana Aurea’ (Golden Cypress) on the eastern end of the row of Bhutan Cypress and the western side of a driveway on the eastern boundary of the applicant’s property, and tree 25, a mature Cedrus deodara (Himalayan Cedar) – to the north of trees 1-6. These trees are located on the southern boundary fronting Craigend Street.

11. The northern side of Craigend Street is characterised by dwellings set back from the street and screened by mature coniferous and deciduous trees. The view from east and west of the northern side of the street is dominated by vegetation with more Eucalypts to the west and deciduous trees to the east. The principal unifying feature of the northern side of Craigend Street are rows of conifers either formally hedged or left to take their natural form.

12. It would appear that the southern boundary of the original large estate comprised rows of Cupressus torulosa with Cupressus macrocarpa ‘Lambertiana Aurea’ (Golden Cypress) and other similar species/cultivars planted on either side of several original entrances along Craigend Street. The majority of these trees remain, including the trees contested in this appeal.

13. The southern side of Craigend Street has a more diverse and less formal landscape character, possibly as a consequence of the overhead power lines on that side of the street.

14. The landscape character of the locality is dominated by a diversity of tall exotic and native evergreen and deciduous trees and other vegetation in established and traditional gardens.

Contested conditions

15. The applicants seek to amend condition 13 by inserting additional tree numbers to be removed. The condition as imposed states:

Limit of tree removal

13.   The following trees are approved for removal as part of this development consent:

Trees numbered 23, 24, 26, 27, 28, 29, 30, and 31, 33, 34, as identified on the accepted Tree Report by About Trees, dated 15/12/14.

Other trees shall not be removed or damaged without an application being made under Council’s Tree Preservation Order. Trees numbered 1-16, 17-22, 25, 32, and 33 on the accepted Tree Report by About Trees, dated 15/12/14 are to be retained.

16. I note an inconsistency in the condition which indicates the removal and retention of tree #33.

17. The applicants originally sought to amend this condition by adding trees 4-16 to the list of trees to be removed. Following the amendment formulated during the conciliation, the applicants now seek to remove trees 7-16 – that is, nine Bhutan Cypress and the Golden Cypress.

18. Condition 15 refers to ‘Landscape implementation’ it states [contested element in bold]:

15.   In order to provide for the conservation and enhancement of a prominent landscape character and setting on the subject site, and ensure that the established landscape will adequately compensate for the loss of mature canopy trees, extensive landscaping of the site is required.

These works are to be undertaken generally in accordance with the approved detailed landscape plan prepared by Liane Atkinson, version dated 15/12/14, except as amended by Council in red.

All approved landscape works must be installed. The PCA is to ensure that during the installation of landscape components, including fencing, edging and planting, no activity which may compromise the SULE or stability of retained trees, both on and adjacent to the site, occurs.

The mature landscape on this site must:

1. Reinstate the traditional character of the area,

2. Reinstate a prominent canopy presence where necessary to compensate the loss of significant taller landscape elements,

3. Incorporate proposed planting that upon maturity, will provide screening of the development from public streets and adjoining dwellings, and

4. Include dominant landscape elements of sufficient scale that will ultimately contribute to the visual character of the locality.

Given the importance of timely re-establishment of the landscape character of the site, screen plants and feature trees as shown must be in an advanced stage of growth at the time of planting (25 litre containers for shrubs and minimum 45 litre container for trees or equivalent if purchasing bare rooted specimens).

Trees must not be less than 2 metres in height. All other infill plantings may be provided as semi-advanced (150mm container size).

19. The applicants originally proposed to substitute the original, unamended, landscape plan prepared on 15/12/14. This proposes a Camellia hedge along the southern boundary. The council approved marked up version indicates the trees to be retained as identified in condition 13. The trees shown in red are numbers 1-22, 25, 32 and 33.

20. The applicants’ amended proposal is to retain trees 1-6 and 25 and then replace trees 7-16 with a coniferous hedge to 5m as illustrated in Exhibit C.

Assessment framework

21. The site is located in the Living – Conservation zone under BMLEP 2005. The relevant objectives in clause 23 are:

(a)   To retain and enhance the character of residential areas that are formed by larger allotments and single dwelling houses within a prominent traditional garden setting.

(c)   To ensure development, including development within adjoining road reserves, retains the prominence of landscape elements and traditional garden settings.

(d)   To ensure that established gardens are retained or landscape settings are re-established as part of any development of land, including development involving major alterations and additions.

22. Before granting consent to any proposed development, cl. 9 BMLEP requires a consent authority to be satisfied that that, amongst other things, the development is consistent with the aims and objectives of the LEP and complies with the applicable locality management provisions within Part 2 of the LEP.

23. Clause 10 provides the aim of the LEP and states that it is to provide a comprehensive and explicit framework for development of the “City within a World Heritage National Park”. The relevant objectives of the LEP in cl. 12 which are pressed by council include:

(h)   To identify and retain the diverse built and landscape elements that contribute to the character and image of the Blue Mountains.

24. Clause 13 – General locality management in Part 2 BMLEP relevantly states:

(1)   Consent shall not be granted to the carrying out of any development on land to which this plan applies unless:

(a)   the development complies with the zone objectives within Division 2 (Zone objectives) that apply to the land and are relevant to the development.

25. Further, cl 15 – Locality management within the living zones states:

(2)   Consent shall not be granted to development within the Living – Conservation zone or to development within roads shown uncoloured on the map and adjoining the Living - Conservation zone unless the development proposed to be carried out has been assessed in accordance with the provisions that apply to the land, as specified within Part 2 of Schedule 2, and complies with those provisions.

26. Of relevance to the proposal and the site are parts of cl. 53 – Retention and management of vegetation and cl. 65 – Landscaping for residential development.

53(1)   Before granting consent to development that would involve the removal of vegetation, the consent authority must have regard to the following priorities:

(f)   retaining vegetation that contributes to the streetscape character of the locality.

65(1)   Consent shall not be granted for residential development unless the consent authority has considered a concept landscape plan that demonstrates to the satisfaction of the consent authority that:

(a)   the design of buildings compliments the physical characteristics of the site and minimises the removal of mature vegetation and site disturbance, and

(b)   the location of buildings maximises the retention of mature vegetation and maintains significant mature landscape features that contribute to the streetscape.

(c)   mature vegetation that shall be removed for the proposed development will be replaced with appropriate vegetation to provide screening from adjoining buildings and to maintain the contribution to the streetscape of the vegetation on the site.

27. Part 2 of Schedule 2 BMLEP sets out specific locality management requirements in the Living – Conservation zone. Clauses 1 and 2 in Division 2 set out the character and landscape considerations for the zone. Amongst other things, the assessment of character prescribed in clause 1 includes a demonstration of how the proposed development is consistent with and enhances the established character of the surrounding residential area in regard to landscaping and retention of vegetation (sub cl.1(2)(c)(iii)).

28. Division 2, cl. 2 – Landscape character states:

(1)   Consent shall not be granted to development…of land within the Living – Conservation zone unless the consent authority has considered a detailed landscape plan, except in the case of development that, in the opinion of the consent authority:

(a)   consists of minor additions, or

(b)   will not involve the removal of vegetation that contributes to an established and visually significant landscape setting.

(2)   The detailed landscape plan prepared to comply with subclause (1) shall demonstrate how the development incorporates:

(a)   landscape elements that achieve the objectives of the Living – Conservation zone, and

(c)   a building form and location that retains, where possible, existing significant vegetation and garden settings, including native and exotic species, that are visually significant when viewed from a public street, and

(d)   measure to re-establish a prominent landscape setting for development, in those instances where the removal of visually significant vegetation has been essential to enable construction.

Relevant background

29. As is usual, council’s Development Assessment Officer referred the assessment of the landscape plan and arborist’s report to the appropriate council officer, Ms Friedewald, council’s Environmental and Landscape Assessment Officer. Ms Friedewald’s detailed Referral Assessment dated 17 April 2015 identifies that she assessed an amended landscape plan which replaced the original camellias with a row of Magnolia grandiflora ‘Exmouth’ proposed for the southern boundary but which remained based on the presumption that the bulk of the existing vegetation was to be removed.

30. Ms Friedewald responded to Mr Smith’s claims in his initial report that the trees: created a nuisance by shedding leaves, shaded the southern façade, and had lost their value as a screen. She noted that leaf drop and the like is not generally considered by Blue Mountains City Council to be a legitimate reason for tree removal, particularly when there is no substantiated evidence of personal hardship or damage to property. Ms Friedewald states that as the trees are on the southern boundary of the applicants’ property the trees do not have any adverse impact on the solar amenity of the applicants’ dwelling. In regards to privacy and screening, she notes that whilst that may have been a purpose of the original planting, as trees grow and mature their role in the landscape changes. In her conclusions Ms Friedewald states that the proposed extent of tree removal should not be supported as “the removal of all site vegetation is inconsistent with the provisions of LEP 2005, specifically Cl. 53: The retention and management of vegetation or with the zone objectives for Living Conservation (Cl. 23a, c, d)”. Whilst she acknowledges that zone objectives allow for restoration of landscape, that option is generally limited to trees which are in poor health or decline or where development cannot proceed if trees are retained. Ms Friedewald specifically notes the significance of the conifer hedge in question and its contribution to the landscape character and streetscape. Her recommendations essentially form the basis of the contested conditions which permit the removal of a number of trees and the retention of others, including trees 4-16.

31. Following this internal referral, the council wrote to Mrs Robertson on 21 April 2015 advising her of the internal assessment and requested that she “submit an amended detailed landscape plan for consideration which demonstrates the retention of the following trees indicated in the Tree Report dated 15/12/14 – 1-16, 17-22, 25, 26, 30, 32, 33, 34.” A letter in reply from Mr Fragar on behalf of Mrs Robertson, dated 8 May 2015 requests an onsite meeting with a senior council officer, the applicants’ arborist and himself. Further, he states: “Mrs Robertson is not prepared to accept the request for the retention of the trees nominated in the Council’s letter 21st April 2015.”

32. The requested on-site meeting was held on 15 May 2015. The file notes of the meeting [folio 00151 Exhibit 1] indicate that some of the contested trees were agreed to be removed however the parties agreed to disagree on the significance and retention of trees 4 -16. It is also recorded that Mrs Robertson wished to replace the conifers with a hedge to 2m high and wished to rely on the original landscape plan [presumably the plan with Camellias on the southern boundary].

33. Further correspondence from Mr Fragar on 19 and 20 May 2015 thanks the council for the meeting but presses the applicants’ arguments in favour of removing the conifers.

34. Exhibit 1, council’s bundle of documents, also includes a report pursuant to State Environmental Planning Policy 1- Development Standards (SEPP 1) prepared by council’s Development Assessment Officer. The applicants requested a variation to the council’s development standard for roof height, the standard being 6.5m, the proposed height being 8m. In recommending support for the proposed variation, the officer notes, amongst other things, that “The mature pine trees on the southern boundary will provide effective screening of the bulk [of the] development from Craigend Street and will minimise the bulk and scale of the development”.

35. The final Development Application Assessment Report dated 12.06.2015 recommending the development application be approved subject to conditions, includes the references to the issues raised by Ms Friedewald. Development consent No: X/31/2015 was determined on 12 June 2015, subject to conditions, inclusive of those in dispute.

The evidence

36. Three owners of nearby properties located across the road from the site made oral submissions opposing the proposed removal of the trees. The issues raised are summarised as:

• Removal of the trees would be contrary to the provisions in Blue Mountains Development Control Plan which require the retention, wherever possible, of mature and significant vegetation;

• The trees are a significant part of the streetscape and provide considerable visual amenity;

• The retention of the trees has no impact on the amenity of the development, as the trees are on the southern boundary;

• The trees are part of the original windbreak and their removal would expose properties to the north to south-westerly winds;

• Replacing the trees with a camellia hedge would not screen the rear of the two-storey dwelling on the site;

• Removal of the trees was not required for the construction of the extensions to the dwelling;

• The site is surrounded by display gardens which bring up to 7,000 visitors each year; removing the trees, which are a major component of the streetscape, would have a detrimental impact on the streetscape and the experience of visitors;

• Removing the trees would contravene the efforts of the council to maintain the unique cool-climate landscape of the Blue Mountains; and

• The city is within a World Heritage Area; one of the criteria for listing is that there is an outstanding diversity of habitats which can be taken to include the diversity of exotic species.

37. The parties’ experts prepared joint reports and were present during the hearing. For the applicants – Mr Max Fragar, Planning and Mr Lawrie Smith, Arboriculture; for the council, Mr Paul Weston, Planning and Ms Deborah Friedewald, Arboriculture. Mr Fragar and Mr Smith also prepared individual reports. These reports do not consider the proposal as amended on the day of the hearing but are still relevant considerations as the experts maintained their fundamental opinions in regards to the removal of most of the row of conifers along Craigend Street.

Planning

38. Mr Fragar prepared the applicants’ ‘Statement of Facts’ included in the Class 1 application and against which the council prepared its Statement of Facts and Contentions in Reply (Exhibit 4). In his individual report (Exhibit A), Mr Fragar considers that Living – Conservation zone objective (d) makes provision for the removal of vegetation and subsequent re-establishment as part of a development for alterations and additions. He states that the proposed landscaping offsets the removal of the trees and demonstrates that a traditional garden setting can be achieved within a reasonable timeframe of 5 years. Mr Fragar considers that the site is relatively small when compared to other properties along Craigend Street and that the proposed replanting is adequate for its size. In his opinion, the proposed removal of trees, which he describes as “aging, unmanaged, unsightly vegetation”, will enhance the landscape character and garden setting of the site and result in an improvement of the streetscape character. Mr Fragar goes on to opine that the current performance of the trees proposed to be removed is poor. In his view, the ‘pines’, in particular, are out of context with the surrounding streetscape due to excessive height, age, and poor maintenance in the past. He considers that the medium and long term benefits provided by the proposal will outweigh any short-term impacts.

39. Mr Fragar considers that when viewed from the applicants’ dwelling, the trees are “ugly and imposing, dwarf and dominate[s] the site, constituting an obtrusive feature when viewed from within the site”. In his opinion, the trees seriously impact on the liveability, enjoyment and amenity of the site which is to be used for residential purposes. Mr Fragar also states that the trees are unsightly for people who live on the estate and who see them when they exit onto Craigend Street. In regards to their contribution to the streetscape, Mr Fragar considers their contribution minimal as they are visually “lost” against a backdrop of taller, larger pines.

40. The joint planning report is Exhibit 3. The planners agree on very little apart from the applicability of various clauses of BMLEP, the non-applicability of the recently gazetted Blue Mountains Local Environmental Plan 2015, and the trees the subject of the proposal.

41. Mr Fragar maintains that the council, by not considering the spatial (immediate, neighbouring, broader streetscape) and temporal (short, medium, long term) aspects of the proposal, did not take a balanced approach in considering the zone objectives and how they should be achieved. He relies on his position expressed in his individual report [outlined above].

42. Mr Weston is of the opinion that the row of conifers along the front of the site plays a substantial role in the garden setting of the streetscape and residential character of the area and that the proposed removal is inconsistent with the relevant zone objectives and provisions of BMLEP. In his view, the objectives prioritise retention and only contemplate replacement if trees must be removed to allow for development to proceed, which in this case, does not apply.

43. In regards to bushfire hazard, the planners agree that the site is not mapped as Bushfire Prone Land and the 10-50 Vegetation Clearing Code under the Rural Fires Act 1997 does not apply. Mr Fragar considers that in an extreme fire event the trees could pose a hazard through ember attack and as such, the possible hazard is a valid matter for consideration under the LEP and s 79C of the EPA Act. Mr Weston’s view is that the trees have a substantial separation from mapped bushfire prone land and that whilst the risk is low, any property in the Blue Mountains could potentially be impacted by embers during a bushfire event.

44. The planners also agree that roads in the upper Blue Mountains are subject to snow and ice in winter. Mr Weston considers that this fact should not be used to justify the removal of the garden stetting in areas where trees overshadow a street.

Arboriculture

45. In his Amended Tree Report dated 02/02/16 (Exhibit B, [4.1]) Mr Smith states:

The proposed removal of tree No’s 4-16 will have an impact on the amenity of the local area as they are mature trees and are prominent in the streetscape. However, they no longer provide screening and privacy due to their close proximity to the existing dwelling and proposed extension, they reduce radiant light from the south and ongoing shed foliage will create a nuisance.

46. Mr Smith concludes that while the removal of the trees [referring to all of the trees proposed for removal for the purpose of the development application] will have an impact on the local amenity, their removal is justifiable because of their limited amenity values, the future impacts on the amenity of the applicants, and potential risks to people and property.

47. In their joint report dated 17.2.2016 (Exhibit 2), the arborists agree that:

• Trees 4-16 epitomise an approximately replicated pattern of planting along Craigend Street boundary of Leura Springs estate.

• The trees represent part of a traditional landscape setting; the size and age of the trees contribute positively to the character of the street frontage; the landscape is typical of many parts of Leura and other Blue Mountains townships.

• The trees do not overshadow the dwelling on the site, nor do they appear disproportionately large or dwarf the building; the height and scale of the trees and building are compatible.

• Any loss of individual trees or sections of the planting may significantly compromise the amenity and structural integrity of the remaining trees.

• Removal of the trees was not required to enable the development to proceed and there appears to have been no significant damage to the trees as a consequence of the development.

• The Bhutan Cypress – trees 4-15, have a long safe useful life expectancy (SULE) of greater than 40 years and are currently healthy and without any major structural or other defects. The northern side of some trees have been suppressed by trees since removed; regeneration of new foliage will not occur on that side.

• The views of the tress from within the estate are predominantly positive as the upper parts of the canopy are healthy and typical of the species.

• Tree 16, Golden Cypress, is likely to live for another 10-15 years; it has considerable amenity and is paired with its cohort on the adjoining property; the removal of dead wood would improve its appearance.

• The removal of tree 16 would have a deleterious impact on the visual amenity of the remaining hedge, and render trees 13-15 virtually redundant because of the impact of the foliage of Tree 16 on the branching habit of those trees. It would also detract from the visual amenity of its ‘twin’ and from the visual impression of the replicated planting pattern on the adjoining lot to the east.

• Tree 25, a Cedrus deodara (Himalayan Cedar) has bifurcated into codominant stems in the upper canopy, above the height of the Bhutan Cypress hedge. In addition, there may have been an impact on the tree as a consequence of the construction of a retaining wall and removal is an option. Removal of tree 25 would also enhance the opportunity to provide suitable screening.

• There is sufficient area for the establishment of supplementary landscaping on the northern side of trees 4-15, using species tolerant of the conditions, which would screen the bare trunks.

48. During the hearing, the planning experts maintained their opinions as expressed in their individual/ joint reports. The arborists agreed that any potential structural failure of tree 25, the Himalayan Cedar, was not imminent and that if the applicants wished to retain the tree that was a matter for them.

Submissions

49. The applicants’ primary submissions, made by Mrs Robertson, are outlined in paragraph [4] above. Mrs Robertson remains firmly of the view that BMLEP should be applied flexibly and that thus far, the council has not taken a balanced approach in considering the needs of residents. She submits that when she and her husband purchased their lot they inherited many neglected trees. While the trees were originally part of a much larger estate they are now unsuitable in the context of her relatively small allotment. Mrs Robertson maintains that the trees do not play a significant role in the streetscape, which in her opinion has already been compromised. She maintains that they have no heritage value, are not native, and nor do they provide for any biodiversity.

50. Mrs Robertson contends that given her property’s location at the entrance to the gated community, the community deserves a better quality and revitalised landscape which complements, what she describes as a very attractive garden at 10/112 Craigend Street on the opposite corner of the entrance. The landscaping along 10/112 Craigend Street comprises a formally pruned coniferous hedge with two emergent conifers [possibly Chamaecyparis sp] and additional planting in the road reserve. Mrs Robertson maintains that the amended landscape plan replicates this style by retaining several of the taller Bhutan Cypress and replacing the remaining trees with a formally pruned hedge. She refers to letters of support from a number of owners of other properties within the estate and one from an owner of a property across the road who considers the trees block winter sun [these letters are included with the Class 1 Application].

51. Mrs Robertson asserts that her aim is to establish a strong, diverse, sustainable and complimentary entrance to the estate by adopting a proactive and strategic approach to the landscaping of her property. Apart from improving the amenity of the street and the estate, replacing the trees would also improve the amenity from her property, which contends is currently poor and unacceptable. In short, Mrs Robertson argues that she is fighting to improve the streetscape for the future. She relies on Mr Fragar’s expert report.

52. In regards to the suggestion that retention of the trees would not prevent landscaping, Mrs Robertson contends that the continuous falling of needles from the trees would limit any new planting.

53. Mr Baird for the council submits that there is clear evidence that council officers, as they were required to do, assessed the original development application against the relevant controls in BMLEP and granted conditional consent. He maintains that in matters such as these, a planning approach is essential and the appropriate starting point is assessing a development proposal in the light of the zone objectives. Mr Baird notes that cl. 13(1)(a) BMLEP states that consent shall not be granted unless the development complies with the zone objective. He asserts that the zone objectives consistently require the retention and enhancement of prominent landscape elements and traditional garden settings that contribute to the character of the Blue Mountains.

54. Mr Baird notes the arborists’ agreed position and contends that there is no arboricultural requirement to remove trees 7-15, and that while tree 16 is in a comparatively poorer state, it too has considerable amenity value. In regards to the planners’ evidence, Mr Baird maintains that Mr Fragar’s chief complaint appears to be that the council should have exercised more discretion in its assessment by placing more emphasis on the amenity of the applicants. Mr Baird presses Mr Weston’s evidence that the trees in question play a significant role in the streetscape and garden setting of Craigend Street; they unify the street and are prominent when approaching from the west. He reiterates that the trees have no adverse impacts on the dwelling and the site is not in a mapped bush fire area.

55. In conclusion, Mr Baird submits that the development application was assessed against the necessary controls and that the conditions in contention were properly imposed having regard to the zone objectives and other relevant provisions of BMLEP. He presses the council’s position that the appeal should be dismissed.

Consideration

56. Whilst I understand the intent of the applicants’ position, the application to amend conditions of consent #13 and #15 must be determined in accordance with s 79C(1) of the EPA Act. Amongst other things, s 79C(1) requires the consent authority, in this case the Court, to take into consideration the provisions of any environmental planning instrument, the likely impacts on the natural and built environments, any submissions made in accordance with the EPA Act, and the public interest.

57. The relevant environmental planning instrument is BMLEP 2005. As noted by the planners and by Mr Baird, although BMLEP 2015 is in force, the original development application was determined under BMLEP 2005 and the zoning of the site under the current instrument is yet to be determined.

58. I must agree with Mr Baird that cl. 13(1) BMLEP makes it very clear that consent shall not be granted to any development unless the development complies with the relevant zone objectives. The relevant objectives for the Living – Conservation zone are provided in paragraph [21] of this judgment. The applicants’ position, as articulated by Mr Fragar, is that objective (d) allows for the re-establishment of a landscape setting as part of development involving major alterations or additions such as those approved by the development consent. However, I concur with council’s position that the primary intent of objectives (a), (c), and (d) is the retention of landscape settings, including prominent traditional garden settings and prominent landscape elements and any replacement is secondary. The fall-back position of replacement is reinforced in Part 2, Division 2, subclause 2(2)(d) which requires a detailed landscape plan to demonstrate the re-establishment of a prominent landscape setting where the removal of visually significant vegetation has been essential to enable construction. It is also clear from the evidence that the trees were no impediment to, or essential for, the construction of the approved development.

59. As considered in Ms Friedewald’s assessment, the trees are on the southern boundary of the applicants’ property the trees do not have any adverse impact on the solar amenity of the applicants’ dwelling; a matter that was taken into consideration during the assessment of the development application [folio 00142, Exhibit 1].

60. I note Mr Smith’s revised opinion as expressed in the joint report. The arborists are in agreement (see [47]) that the trees in question are part of a traditional landscape setting, in particular, the replicated pattern of planting along the boundary of the original estate, and that they contribute positively to the character of the streetscape. With the benefit of the site inspection I am satisfied that the trees are a prominent feature of the streetscape which is a streetscape characteristic of many parts of the Blue Mountains.

61. With the horticultural and arboricultural expertise I bring to the Court I agree with the arborists that the trees in question are healthy and have a medium to long-term useful life expectancy. Given the agreed expert opinions of the arborists in regards to the health of the trees, no weight can be placed on Mr Fragar’s opinion of it as expressed in his report. I also agree that there is sufficient room between the applicants’ dwelling and the trees for the planting of other plants, such as the Camellias identified in the approved landscape plans, in order to screen the view of the bare stems of some of the Bhutan Cypress trees from the rear of the dwelling. The proposed landscape plantings on the western side of the applicants’ dwelling, as illustrated in the approved landscape plans, should also screen any bare parts of the Bhutan Cypress from residents exiting the estate onto Craigend Street.

62. Although I accept that the amended landscape plan put forward on the day of the hearing would make a more substantial contribution to the streetscape than the proposed Camellia hedge, I am not satisfied on the evidence that there are any arboricultural or planning reasons to justify the removal of a row of healthy, visually prominent trees on the southern boundary of the applicants’ property. I find that the removal of the trees is counter to, and does not comply with, the relevant objectives for the Living – Conservation zone and therefore, in accordance with clauses 9 and 13(1)(a) BMLEP, the appeal cannot be upheld. Similarly, it does not achieve objective 12(h) of the BMLEP 2005 and does not meet the provisions of clauses 15(2), 53(1)(f), 65(1)(b) and Division 2, cl. 2 of BMLEP (see [21]-[29]).

63. As agreed by the arborists, I also find that the removal of trees 7-16 would have a detrimental impact on the natural and built environment (s 79C(1)(b)).

64. In regards to any submissions made in accordance with the Act (s 79C(1)(d)) while the applicants’ Statement of Facts’ erroneously states [but later corrected] that no submissions were received, council’s bundle includes objections from eight nearby properties in Craigend Street to the north, south east and west of the site including two from owners of properties within ‘Leura Springs’ estate. All submissions oppose the proposed removal of the row of conifers along Craigend Street and all discuss the significance of the trees in the streetscape. The specific issues raised are generally consistent with those raised by the objectors who spoke on the day of the hearing and whose oral submissions are summarised in [36] of this judgment. Several submissions note that Lot 12 forms part of ‘Neighbourhood Plan DP285849’ and that any proposed development must meet the requirements under the “Neighbourhood Management Statement” and By-Laws to which owners of allotments are bound as members of the Neighbourhood Association. Attention is drawn to clause 3.5 of the Neighbourhood Management Statement which states: “No trees are to be removed from the estate unless they impact on the building envelope and approvals must be sought prior to removal”. Although the applicants have included letters of support in their Class 1 Application from some other residents of the estate, these are not submissions made in accordance with s 79A of the Act.

65. Having considered the submissions, I consider they add weight to council’s position that the trees should be retained and are consistent with my findings that the removal of the trees is counter to the zone objectives and other relevant provisions of BMLEP.

56. The applicants raise the issue of black ice on the section of Craigend Street shaded by the trees as a reason for removing the trees. I am considering this submission in accordance with s 79C(1)(e) ‘the public interest’. I note the agreement in the joint planning report that snow and ice can affect any street in the upper Blue Mountains in winter. The applicants have not provided any evidence of any accident statistics or similar to substantiate why black ice in this particular section of one street in the upper mountains warrants special attention. There must be a multitude of other east-west orientated streets that are shaded in winter by large trees or other structures. Apart from the reasons already given for rejecting this appeal, I find that removing the trees on the basis of black ice would not be in the public interest.

57. The other reason advanced by the applicants for removing the trees is that they are a bushfire hazard. Exhibit 1 includes a series of maps illustrating various land use applications that apply to the site and its surrounding locality; one of these maps is of ‘Bush Fire Prone Land’. As agreed by the planners, the site is not mapped as bushfire prone land. Council’s development assessment checklist notes the bushfire risk as ‘low’. While parts of other adjoining lots on the estate are mapped as bushfire buffer zone, to which the 10/50 Vegetation Clearing Code of Practice, prescribed under Division 9, Rural Fires Act 1997, may apply, this is not, in my view, a relevant consideration in this appeal against the contested conditions of consent that specifically apply to the applicants’ land. Indeed, had the applicants’ land been mapped as bushfire prone land, additional expert reports and referrals would have been required in accordance with s 79BA of the EPA Act.

58. Finally, I reject Mrs Robertson’s submissions that the council has not taken a balanced or flexible approach in its assessment of the original proposal as part of the development application, the evidence of the assessment records and internal referrals included in Exhibit 1, council’s bundle of documents, and summarised in paragraphs [29]-[35] of this judgment demonstrates that the council has consistently raised their concerns about the proposed removal of trees 4-16. The proposal was assessed against the zone objectives and relevant controls and determined accordingly. I note the SEPP 1 report considered that the retention of the trees along the street frontage and their value as a screen were key considerations in permitting the increased roof height. Although the applicants’ dwelling complies with the front setback provisions in council’s controls, it was clear from the site inspection that there are few two storey dwellings as close to the street frontage as the applicants’ dwelling. This was an issue raised by the resident objectors on the day of the hearing.

59. Returning to reason for this appeal, s 80A of the EPA Act enables a consent authority to impose conditions of consent. Although no legal argument was made as to the validity of the conditions or the reasonableness of their imposition, in my view the conditions pass both the ‘Newbury’ and ‘Wednesbury’ tests. In regards to the threefold ‘Newbury’ test, I am satisfied that the conditions: were imposed for a planning purpose as they directly respond to zone objectives and specific provisions of BMLEP; relate fairly and reasonably to the development for which the consent was given; and are reasonable. In considering the test of ‘reasonableness’ in the ‘Wednesbury’ test, the conditions are not so unreasonable that no reasonable decision maker could have imposed them.

Orders

70. Having considered the evidence and the submissions and with the benefit of the site inspection, the Orders of the Court are:

1. The appeal is dismissed.

2. The exhibits are returned.

_____________________________

Judy Fakes

Commissioner of the Court

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Decision last updated: 14 March 2016