Salkild v Council of the City of Sydney

[2009] NSWLEC 1443

Land and Environment Court

of New South Wales

CITATION:

Salkild v Council of the City of Sydney [2009] NSWLEC 1443

FILE NUMBER(S):

10324 of 2009

CORAM:

Murrell C

KEY ISSUES:

DEVELOPMENT APPLICATION :- tree removal.

LEGISLATION CITED:

Land and Environment Court Act 1979
South Sydney Local Environmental Plan
South Sydney Development Control Plan
City of Sydney Heritage Development Control Plan

CASES CITED:

Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

DATES OF HEARING:

24 November 2009

EX TEMPORE JUDGMENT DATE:

24 November 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Baird, barrister
SOLICITOR
David Geddes

RESPONDENT
Mr A Hawkes, solicitor
Council of the City of Sydney

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

24 November 2009

10324 of 2009 Salkild v Council of the City of Sydney

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

1 COMMISSIONER: This matter commenced on site as a s 34 conciliation conference. The parties proceeded in the spirit of conciliation. However, no agreement was reached and the parties consented to the Court determining the matter under s 34(4) of the Land and Environment Court Act.

2 The Court met on site as I stated, and had the opportunity of viewing the subject site and the surrounding area. By way of background, I refer to council’s statement of facts and contentions. The issue that remains to be determined is whether the silky oak tree near the northern and rear boundary should be retained.

3 The subject site is 25 Cook Road, Centennial Park, and there is rear lane access from Centennial Lane. The proposal is for the removal of a tree on the site and the construction of a new double garage with a studio above. The site is on the south-east side of Cook Road and has a total site area of 383 square metres. The tree in contention is a silky oak tree very close to the northern side boundary. The adjacent property to the north also contains a two-storey dwelling house as currently erected on the subject site.

4 The council describes the lane area in the vicinity. The lane generally consists of the rear of properties fronting Cook Road on the west side and the rear of properties fronting Lang Road on the east side. Centennial Lane consists of a general mix of rear boundary fences, roller doors and garage structures. The proposed garage structure and studio is a matter in terms of the design that has been assessed and commented on by council’s heritage officer, and there is no contention with respect to the design of the garage. The issue is the removal of the silky oak tree and the construction in the vicinity. Council contends that the silky oak tree could in fact be retained if a single garage is erected on the subject site.

5 The contentions are:

1. the proposal is inappropriate in its context because it requires the removal of the silky oak tree, which is prominent and provides a high streetscape value along Centennial Lane, and that it is in good health and condition, and it would adversely impact on the amenity of the surrounding area if it is removed.

2. the proposal is not consistent with cl 32 of the South Sydney Local Environmental Plan and the tree should be retained. Any proposed development works must be supported by an arborist’s report and construction details. The removal of the tree with a double garage loft would not enhance the amenity of the residential area and would detract from the nearby existing quality and environment.

3. the proposed garage exceeds the rate of one car parking space per single dwelling as outlined in the South Sydney Development Control Plan transport guidelines for development, and the removal of the silky oak is not justified.

4. the proposal is contrary to the public interest, and there have been objections to the proposal.

6 The other issues concerning the windows and the design of the structure were resolved and there were amended plans in this regard.

7 The Court has the benefit of hearing expert evidence on site and on behalf of the applicant. Evidence was given by Mr Hayden Coulter, an arborist, and Mr Harvey Sanders, a consultant town planner. For the council, evidence was given by Ms Emma Burke, a planner, and there were also two arborists in attendance at the on-site hearing, Ms Samantha Knight and Ms Karen Sweeney. The Court also heard evidence from the owners of the subject property.

8 The Court determined at the end proceedings on the of the day that, subject to amended plans, the proposal was satisfactory having regard to the circumstances of the case, and it is important to put on the record that the Court sees the removal of the silky oak tree as not a precedent as such and there are good reasons as to why I do not consider it to be a precedent.

9 The arborist’s report provides for an assessment of the tree in terms of the height of the tree being approximately eighteen metres with a trunk diameter of point five three and a canopy spread of some eleven metres. The estimated age it was described as a self-sown mature tree, and that the safe useful life expectancy is medium. The tree is large with an average health, vigour and form. It has a low level of dieback, dead wood and epicormic growth. The tree has some evidence of minor failures in the past and has some branch inclusions. It appears that the tree has been self-sown and is poorly positioned, lifting the adjoining slab and the shed on the subject property at number 25. It is noted, as I stated, that the tree is in very close proximity to the northern side boundary where it adjoins another property.

10 The Court in deciding that it was appropriate for the tree to be removed has had regard to the circumstances of the case and also has had regard to the importance of the subject tree to the surrounding area to the subject site and to the laneway. The Court has had the opportunity of viewing the tree from both the northern and southern portions of the lane and within the immediate vicinity. It could be seen that in the total context that the tree in itself is one of several other canopy trees within the area and its removal, whilst it is a contributory factor in terms of the greening of the area and in terms of the importance of providing canopy trees within urban areas, at the same time it is one that is not dominant in the context of other trees within the area. It could be seen on site that to the north of the subject site and to the east of the subject site there are large eucalypts, gum trees. In particular, the angophoras were seen to be trees that clearly have been established and have a good rigorous growth within this area. There were other trees also existing within the vicinity of the area, such that this single tree in itself was not one that dominated the landscape.

11 The Court also is most cognisant of the fact that replacement canopy trees should be provided wherever a tree is removed, and in the circumstances of this case the applicants agreed that the existing hard paved area within the backyard of the subject site would be reduced in size to allow the planting of a red gum tree in the rear yard between the proposed studio/garage and the paved area.

12 The Court in determining that in the circumstances of this case while normally a healthy tree should not be removed, the circumstances of this case are that in the future it may cause conflict with the neighbours because of the root structure. The Court also heard evidence on site, although not determinative in my determination of this matter, that the adjoining property to the north may in the future also seek to build a similar structure at the rear of their property of a garage with access from the rear lane.

13 The importance of trees in an urban context is most important, in particular where the urban fabric is one that is tightly knit as in areas such as this. However, I am satisfied with the replacement tree and the conditions imposed that the removal of the subject tree is such that it can be readily replaced with space to provide for a red gum tree to be planted in the backyard, which in the future will also continue to contribute to the greening and the landscape features of the area.

14 In terms of precedent, I am aware of the judgment of his Honour Justice Lloyd in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 wherein any single decision can be used as a precedent that others may seek to invoke with similar applications. In the circumstances of this case, I am satisfied with the replacement canopy tree, and because of the difficult position of the subject tree on the boundary that it is not inappropriate that this tree be removed. As I said, I do not believe that this would create a precedent and for this decision to be involved. The importance in the circumstances that distinguish this case are that there will be space for a replacement canopy tree to make a positive contribution to the environment into the future.

15 In terms of the council’s controls, I am conscious of council’s controls and must have regard to the planning framework. The zoning controls for the 2(b) residential medium density zone are that the relevant objectives of the zone are: “to enhance the amenity of existing medium density residential areas and to ensure that building form is in character with the surrounding built environment, and does not detract from the amenity enjoyed by nearby residents of the existing quality of the environment”. These objectives are the ones cited by the council as the relevant objectives in the circumstances of this case. I am satisfied that the objectives of the zone are satisfied by the proposed development.

16 The Court has also had regard to the council’s South Sydney DCP 11, ‘transport guidelines for development’, and it is noted that there can be departures from guideline rates, and that parking provision is to be flexible to suit particular circumstances and local conditions. In this regard, it is clear that the dwelling house on the site is a very large, two-storey, four-bedroom terrace house and that the parking of two vehicles would be commensurate with the size of that dwelling, and in the circumstances once again of this case the variation from the DCP is justified in my assessment of the application.

17 The Court was also taken to the council’s other controls in this matter which were identified in the statement of facts and contentions, and the other relevant controls that were cited by the council is the South Sydney LEP, and I have considered the objectives of the zone the urban design DCP for South Sydney of 1997, and also the City of Sydney Heritage Development Control Plan. The Court was advised that the design of the double garage and studio was the subject of discussion with the heritage officer of the council and the council was now satisfied in terms of the design of the proposed structure. As such there is no issue in terms of council’s controls in this regard.

18 The amended plan was submitted to the Court following the s 34 conciliation conference, as I said, to show the increased space area where the tree is to be planted, and there is also a condition that in the event of the tree dying that it would be replaced by a similar species until it is covered by the council’s tree preservation order. Council’s tree preservation order is activated once a tree reaches a certain size, and then approval to remove trees is required from the council.

19 The issue concerning overlooking and the windows in the studio above the garages had been discussed with the council, and the proposal is now satisfactory. As such with the amended plans there is no concern with respect to privacy and overlooking from the studio above the garage.

20 The Court in its decision to allow the removal of the silky oak tree has had regard to the environment and has had regard to council’s controls, which must be given central consideration in the Court’s determination, and has also had regard to the fact that I do not consider that the approval of this application is a precedent that can be readily invoked.

21 In my assessment wherever trees are removed, there needs to be consideration given to providing sufficient space and suitable replacement canopy trees to ensure the longevity and the renewal of canopies within urban areas.

22 Therefore, on the basis of the Court’s assessment and its determination under s 34(4) of the Act, the Court’s formal orders in this matter are,

1. The appeal in respect of the property known as 25 Cook Road, Centennial Park, is upheld.
2. The development application submitted to the City of Sydney Council and as amended and shown in the plans submitted 22 October to the Court is approved subject to the conditions contained in annexure ‘A’; and
3. The exhibits may be returned with the exception of the amended conditions and the plans of 22 October.

___________________

JS Murrell
Commissioner of the Court
ljr/ajl