Sheldon v The Council of the City of Sydney

[2020] NSWLEC 1619

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sheldon v The Council of the City of Sydney [2020] NSWLEC 1619

Hearing dates:

30 July 2020; 21 August 2020

Date of orders:

8 December 2020

Decision date:

08 December 2020

Jurisdiction:

Class 1

Before:

Galwey AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Consent is granted to remove the Lilly Pilly at 85 Stewart Street, Paddington, subject to the attached conditions at Annexure A.

(3) The exhibits are returned except for A.

Catchwords:

APPEAL – application to remove vegetation (a Lilly Pilly) – appeal against refusal of application – heritage conservation area – whether the tree has damaged property – whether the tree needs to be removed to remedy or prevent damage – proposed conditions – whether a root barrier is required – replacement planting

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

Sydney Local Environmental Plan 2012

Trees (Disputes Between Neighbours) Act 2006

Texts Cited:

Australian Standard 2303:2015 ‘Tree stock for landscape use’

City of Sydney Tree Management Policy 2013

The NSW Office of Environment and Heritage: ‘Paddington South Heritage Conservation Area‘

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Anthony Sheldon (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
N Hammond (Applicant)
A Simpson (Solicitor) (Respondent)

Solicitors:
The Council of the City of Sydney (Respondent)

File Number(s):

2020/99099

Publication restriction:

No

Judgment

1. COMMISSIONER: In Sydney’s inner east, the residential dwelling of Anthony Sheldon (‘the applicant’) is within the Paddington South Heritage Conservation Area. In November 2019 Mr Sheldon applied to the Council of the City of Sydney (‘Council’), pursuant to cl 11 of the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (the ‘Vegetation SEPP’) to remove a Lilly Pilly (Syzygium smithii) (‘the Lilly Pilly’) that grows in his rear courtyard. On 8 January 2020, Council issued a Notice of Determination refusing the proposed removal of the tree. Mr Sheldon has appealed the refusal, pursuant to cl 12 of the Vegetation SEPP.

2. Mr Sheldon’s intent to remove the tree springs from the apparent damage the tree is causing to his property, and possibly to a neighbouring property. Council’s reasons for refusing to grant a permit focus on the tree’s good condition, its contribution to urban canopy cover, and the lack of evidence regarding its contribution to property damage.

Framework for this decision

3. The Land and Environment Court Act 1979 establishes the Court’s power on appeals at s 39. In making this decision, the Court has all the relevant functions and discretions of the body that made the original decision now being appealed – that is, Council (s 39(2)). Fresh or additional evidence may be given on the appeal (s 39(3)). At s 39(4), the Court is required to consider “…any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.”

4. The Environmental Planning and Assessment Act 1979 (the ‘EPA Act’) provides the overarching jurisdiction. At s 4.2 of the EPA Act:

(1) General    If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless—

(a) such a consent has been obtained and is in force, and

(b) the development is carried out in accordance with the consent and the instrument.

Maximum penalty—Tier 1 monetary penalty.

(2) …

(3), (4) (Repealed)

(5) …

(6)–(9) (Repealed)

Tree removal – general

5. The primary relevant planning instrument is the Vegetation SEPP, Pt 2 of which establishes at cl 7(1) that: “A person must not clear vegetation in any non-rural area of the State to which Part 3 applies without the authority conferred by a permit granted by the council under that Part.”

6. There is a general exemption from any consent requirement at cl 8 (Pt 2) of the Vegetation SEPP:

8 Clearing that does not require authority under this Policy

(1) …

(2) …

(3) An authority is not required under this Policy for the removal of vegetation that the council is satisfied is a risk to human life or property.

7. The framework for vegetation removal is set out in Pt 3. Permit requirements for vegetation removal vary between local government areas. According to cl 9 (Pt 3) of the Vegetation SEPP, a development control plan will usually declare vegetation to which Pt 3 of the Vegetation SEPP applies:

9 Vegetation to which Part applies

(1) This Part applies to vegetation in any non-rural area of the State that is declared by a development control plan to be vegetation to which this Part applies.

(2) A development control plan may make the declaration in any manner, including by reference to any of the following—

(a) the species of vegetation,

(b) the size of vegetation,

(c) the location of vegetation (including by reference to any vegetation in an area shown on a map or in any specified zone),

(d) the presence of vegetation in an ecological community or in the habitat of a threatened species.

8. Tree removal falls within the Sydney Development Control Plan 2012 (the ‘Sydney DCP’) at section 3.5: ‘Urban Ecology’, where section 3.5.3 deals with tree management. It must be noted here that although the Vegetation SEPP post-dates the earlier Sydney Local Environmental Plan 2012 (the ‘Sydney LEP’), the Sydney DCP still refers to the Sydney LEP in its objectives:

“Objectives

(a) Establish the trees to which Clause 5.9 Preservation of trees or vegetation of the Sydney LEP 2012 applies.

(b) Ensure the protection of trees within and adjacent to development sites.

(c) Maximise the quality and quantity of healthy tree canopy coverage across the LGA.”

Clauses 5.9 and 5.9AA of the Sydney LEP have been repealed, so the reference at Objective (a) can be taken to refer to cl 9 of the Vegetation SEPP. The objectives relevant to Mr Sheldon’s application are (a), establishing the trees to which the Vegetation SEPP applies, and (c), which aims to maximise healthy tree canopy cover.

9. The Sydney DCP’s provisions declare the trees requiring a permit for removal (among other actions):

“Provisions

(1) A permit or development consent is required to ringbark, cut down, top, lop,

prune, remove, injure or wilfully destroy a tree that:

(a) has a height of 5m or more; or

(b) has a canopy spread of over 5m; or

(c) has a trunk diameter of more than 300mm, measured at ground level; or

(d) is listed in the Register of Significant Trees.”

Provisions (2)–(6) declare the situations in which, or trees for which, a permit is not required.

10. The Vegetation SEPP then gives Council the power to grant a permit at cl 10:

10 Council may issue permit for clearing of vegetation

(1) A council may issue a permit to a landholder to clear vegetation to which this Part applies in any non-rural area of the State.

(2) A permit cannot be granted to clear native vegetation in any non-rural area of the State that exceeds the biodiversity offsets scheme threshold.

(3) A permit under this Part cannot allow the clearing of vegetation—

(a) that is or forms part of a heritage item or that is within a heritage conservation area, or

(b) that is or forms part of an Aboriginal object or that is within an Aboriginal place of heritage significance,

unless the council is satisfied that the proposed activity—

(c) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or heritage conservation area, and

(d) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or heritage conservation area.

(4) A permit may be granted under this Part subject to any conditions specified in the permit.

In short, Council can issue a permit, although a permit cannot be granted in certain situations. If issued, the permit can be subject to any conditions.

11. The applicant’s capacity to appeal Council’s decision is established at cl 12 of the Vegetation SEPP:

12 Appeal to Land and Environment Court

(1) An applicant for a permit may appeal to the Land and Environment Court against the refusal by a council to grant the permit.

(2) Any such appeal is to be made within 3 months after the date on which the applicant is notified of the decision or within 3 months after the council is taken to have refused the application (whichever is the later).

Tree removal within a Heritage Conservation Area

12. In addition to the need for a tree removal permit set out above are further restrictions on removing a tree in a heritage conservation area. Firstly, at cl 10(3) of the Vegetation SEPP (see above at [10]) a permit under Pt 3 cannot allow the removal of a tree that (in my abridged wording relevant here) is (a) within a heritage conservation area unless the council is satisfied that (c) the tree’s removal is of a minor nature or is for the maintenance of the heritage conservation area and (d) would not adversely affect the heritage significance of the heritage conservation area.

13. Provision (2) of the Sydney DCP consolidates this restriction for tree removal within a heritage conservation area:

“(2) Under Clause 5.10 of the Sydney LEP 2012, development consent is required for certain activities affecting a tree which is a heritage item or a

tree within a heritage conservation area. However, this requirement may be waived if

(a) the criteria in clause 5.10(3) of the Sydney LEP 2012 are satisfied; and

(b) the work relates to a tree or activity to which provision (1) does not

apply.”

In this case, the relevant clause of the Sydney LEP was not repealed, but it bears a striking similarity with cl 10(3) of the Vegetation SEPP (I have added emphasis in bold):

5.10 Heritage conservation

…

(1) Objectives The objectives of this clause are as follows—

(a) to conserve the environmental heritage of the City of Sydney,

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

(c) to conserve archaeological sites,

(d) to conserve Aboriginal objects and Aboriginal places of heritage significance.

(2) Requirement for consent Development consent is required for any of the following—

(a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance)—

(i) …

(ii) …

(iii) a building, work, relic or tree within a heritage conservation area,

(b) …

(c) …

(d) …

(e) …

(f) …

(3) When consent not required However, development consent under this clause is not required if—

(a) the applicant has notified the consent authority of the proposed development and the consent authority has advised the applicant in writing before any work is carried out that it is satisfied that the proposed development—

(i) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or archaeological site or a building, work, relic, tree or place within the heritage conservation area, and

(ii) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place, archaeological site or heritage conservation area, or

(b) …, or

(c) the development is limited to the removal of a tree or other vegetation that the Council is satisfied is a risk to human life or property, or

(d) the development is exempt development.

(4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

(5) Heritage assessment The consent authority may, before granting consent to any development—

(a) …

(b) on land that is within a heritage conservation area, or

(c) …

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

(6) Heritage conservation management plans The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause.

(7) …

(8) …

(9) …

(10) …

14. In its wording and intent, cl 5.10 of the Sydney LEP is similar to the wording and intent of cl 10(3) of the Vegetation SEPP, except that the Sydney LEP, at subcl (3)(c) also includes an exemption for removing a tree if Council is satisfied the tree is a risk to human life or property. This exemption is reflected in cl 8 of the Vegetation SEPP (see above at [6]).

15. However, the Vegetation SEPP, at cl 6(2), prevails where there is any inconsistency with the Sydney LEP:

6 Relationship to other planning instruments

(1) This Policy does not affect the provisions of any other State Environmental Planning Policy or any provisions of a local environmental plan that are mandatory provisions under the Standard Instrument (Local Environmental Plans) Order 2006.

(2) This Policy prevails to the extent of any inconsistency with any provisions of a local environmental plan that are not mandatory provisions under the Standard Instrument (Local Environmental Plans) Order 2006.

16. It is possible that the provisions for consent requirements in both the Vegetation SEPP and the Sydney LEP apply. That is, if a tree is one which the Sydney DCP declares to be vegetation requiring consent, then according to the Vegetation SEPP at cl 10(3) a permit can only be issued on the following conditions as a result of it being within a heritage conservation area: its removal is of a minor nature or is for the heritage conservation area’s maintenance, and its removal would not adversely affect the heritage conservation area’s heritage significance. In the Sydney LEP, the four arms (a)–(d) of cl 5.10(3) are joined by ‘or’, so that satisfying any one of them relieves the requirement for consent. Therefore, if the Vegetation SEPP’s test is satisfied such that a permit may allow tree removal in the heritage conservation area, then the first test (a) is also satisfied within the Sydney LEP and consent is not required. If another of the tests in the Sydney LEP is satisfied, the test in the Vegetation SEPP must still be met. It follows that it is only the Vegetation SEPP that must be tested in regard to removing this tree within a heritage conservation area.

The hearing

17. Due to COVID-19 restrictions on travel and gatherings, the hearing took place via audio-visual means according to the Court’s COVID-19 Pandemic Arrangements Policy. I was satisfied from the extensive material filed with the Court, to be considered along with the parties’ submissions and expert evidence, that I could determine the matter on its merits and that this decision would not suffer due to the lack of a site inspection.

18. Ms Natasha Hammond of Counsel represented the applicant. Council was represented by their senior lawyer Andrew Simpson. Melanie Howden, consulting arborist engaged by the applicant, and Geraldine Walsh, Council’s Tree Management Officer, provided expert arboricultural evidence. Afshin Kazemi, structural engineer engaged by the applicant, provided expert engineering evidence. Their earlier reports were filed with the Court. The oral evidence of all three experts was informative.

19. Ms Howden and Ms Walsh prepared a joint report outlining their points of agreement and outstanding areas of differences. During the initial hearing they disagreed on the evidence concerning site observations of a particular tree root, being observations they thought would be significant to this decision. Further directions were made to allow for another site inspection and joint report, as well as a further condition for Council to file proposed permit conditions should tree removal be granted:

1. By 13 August the arborists Ms Howden and Ms Walsh are to prepare a joint statement describing the findings of a further joint inspection of the exposed roots against the Applicant’s boundary wall, and the parties are to file the joint statement with the Court.

2. By 13 August the Respondent is to file with the Court its proposed permit conditions.

A further hearing on 21 August 2020 allowed submissions on these issues.

The applicant is able to appeal

20. Mr Sheldon appealed within three months of Council’s determination, as per cl 12 of the Vegetation SEPP.

A permit is required to remove the Lilly Pilly

21. Ms Hammond suggested that the evidence shows the Lilly Pilly has damaged property, and that it poses a risk of further damage to property. Therefore, pursuant to cl 8(3) of the Vegetation SEPP, consent is not required if Council is satisfied the Lilly Pilly is a risk to human life or property. Clearly, Council was not satisfied that this was the case, having found its consent was required, and denying such consent. I too find that cl 8(3) does not exclude the need for consent to remove the Lilly Pilly. Where people or property assets are near trees, within the target zones of branch, stem or root failure, or within their root zones (for property damage) there is inherently some level of risk. Risk standards generally promote a qualitative description of risk levels, using terms such as low, medium, high and very high. It would be absurd if cl 8(3) was referring to the entire range of risk levels when providing such a broad exemption for tree removal under the Vegetation SEPP, as that would result in almost all trees being exempt. It is more likely that such an exemption only applies where the risk of a tree causing injury or damage is high or very high, and even then perhaps only when the risk is imminent, or likely to be realised in the short term, so that there is no time for detailed analysis of suitable mitigation measures that might avoid tree removal.

22. The evidence of damage caused by the Lilly Pilly, and the likelihood of further damage, does not satisfy me that such a high level of risk with imminent consequences exists. I find that the exemption at cl 8(3) of the Vegetation SEPP does not apply to the Lilly Pilly.

23. Submissions from both parties sometimes returned to this reference to risk, at both cl 8(3) of the Vegetation SEPP and at cl 5.10(3)(c) of the Sydney LEP, as being determinative in whether or not Council should grant consent. But on my reading, this test of risk is only relevant to determining whether or not the proposed tree removal is exempt from the requirement for consent.

24. Mr Sheldon’s Lilly Pilly is more than 5 metres tall and has a canopy spread of more than 5 metres, so a permit is required for its removal pursuant to Provision (1) of the Sydney DCP. Exemptions at Provisions (3)–(6) do not apply to the Lilly Pilly.

Council may issue a permit to remove the Lilly Pilly

25. Despite the potential relevance of the tree’s presence within a heritage conservation area, and some submissions being made to that point, it is important to note that no expert evidence was adduced on this issue. Given my own somewhat rudimentary findings below, this is perhaps not surprising.

26. If removing the Lilly Pilly is of a minor nature or is for the maintenance of the heritage conservation area, and would not adversely affect the heritage significance of the heritage conservation area, a permit can be granted for its removal under Pt 3 of the Vegetation SEPP (cl 10(3) of the Vegetation SEPP).

25. The first test, then, is whether the Lilly Pilly’s removal is either: of a minor nature; or, for the heritage conservation area’s maintenance.

26. Details of the Paddington South Heritage Conservation Area are recorded by the NSW Office of Environment and Heritage. The Statement of Significance for this listing is:

“The Paddington South Heritage Conservation Area has historic significance as an area of early grants including Gordon’s Grant which developed to service the Victoria Barracks and as an 1860-1880 residential subdivision of the Sydney Common. On part of an early grant to Charles Gordon is the site of an early wind driven flour mill in the vicinity of Stewart Place.

The area is significant for the high concentration of Victorian institutional and religious establishments resulting from the original dedication of the land as Sydney Common. The area has aesthetic values for its fine highly consistent streetscapes comprising rows of middle and working class terrace housing, overlaying undulating topography.”

29. Where Stewart Street and Stewart Place are identified within this listing, their description is:

“Stewart Street: 2 storey Victorian terraces, park closure Rating B

Stewart Place: Victorian terrace, high fences, garage. Rating B”

The description of only one street (Martin Street) within the area mentions trees, and there only street trees.

30. The extensive ‘Recommended Management’ for this heritage conservation area mentions trees only once: “Maintain and enhance street planting to unify streetscape”.

31. Trees on private property are not identified as contributing to the area’s heritage significance. Streetscapes are significant, so where a private tree contributes significantly to a streetscape, it might be considered to contribute to heritage significance, but the intentional omission of private trees within the area’s significance suggests this should not be a high priority. Furthermore, the Lilly Pilly is in the rear garden of Mr Sheldon’s property, closest to the no-through street that passes alongside, but also visible from the street fronting his property. In the joint report of the arborists, Ms Howden was of the opinion that the Lilly Pilly is “…visually prominent from immediately outside the rear of the property in Stewart Place, however the tree is not considered visually prominent from the Stewart Street road frontage”, while Ms Walsh’s opinion was “…that the subject tree is visually prominent from Stewart Place and can be seen from Stewart Street.” The Court was also provided with photographs and video footage of the tree viewed from both Stewart Place and Stewart Street. Having viewed that evidence, I find that the Lilly Pilly does not make a significant contribution to the overall streetscape of the area. While it is prominent when viewed within Stewart Place, the descriptions by both arborists regarding the tree’s prominence from Stewart Street support this finding.

32. The Lilly Pilly is neither insignificantly small, nor significantly large. It is a medium-sized tree, approximately 8 metres tall with a crown spread of approximately 8 metres. Considered within the context of the surrounding landscape, its removal might be classed as ‘minor’ in nature. Relative to the cost of other aspects of property maintenance, the cost of removing the tree might also be regarded as relatively minor.

33. If I am wrong about the magnitude of its removal, I am also minded to find that its removal is proposed by Mr Sheldon for the purpose of maintaining his property, which is part of the heritage conservation area. Although the parties agree that the Lilly Pilly’s roots have damaged paving, which can be repaired, there remains disagreement between the parties as to whether the tree has caused structural damage to dwellings or a boundary wall. Maintenance works to the dwellings and the boundary wall are surely works ‘for the maintenance of the heritage conservation area’ (cl 10(3)(c) of the Vegetation SEPP). To avoid future damage, Council has proposed a condition for installing a root barrier, thereby acknowledging the future maintenance issue. But removing the tree, whether or not that be the reasonable outcome, would also be for the purpose of avoiding damage and maintaining property in the heritage conservation area. This does not mean a permit should be issued, but is part way to satisfying the test of whether a permit may be issued.

34. Although only one test at cl 10(3)(c) of the Vegetation SEPP must be satisfied, I find both are satisfied: the Lilly Pilly’s removal is of a minor nature and is for the heritage conservation area’s maintenance.

35. The remaining test is found at cl 10(3)(d) of the Vegetation SEPP: would removing the Lilly Pilly adversely affect the heritage significance of the heritage conservation area? The significance of the Paddington South Heritage Conservation Area has been briefly explored above at [28]–[31]. Removing the tree would not adversely affect any of the elements identified in the statement of significance for this heritage conservation area.

36. Having navigated this path through the statutory framework, I find that the Lilly Pilly is a tree requiring consent for its removal. I find also that Council can grant a permit for its removal, subject to any conditions specified in the permit. It is here that, to some extent, we leave the firm footing of the statutory framework.

Should consent be granted for removing the Lilly Pilly?

Overview of the assessment criteria

37. Mr Sheldon applied to remove the Lilly Pilly on the grounds of damage it was causing, and will continue to cause, to property.

38. What are the decision guidelines for determining an application for tree removal? The Sydney DCP does not provide them, but lists other relevant policies.

“Other policies that apply to the management of trees in the City of Sydney include the Urban Tree Management Policy, Urban Forest Strategy, Street Tree Master Plan, and Park Tree Management Plans and Register of Significant Trees. These are available at start="39">

The Lilly Pilly is not a street tree or a park tree, nor is it listed on the Register of Significant Trees, so those policies are not relevant to this application.

Council’s Urban Forest Strategy defines the urban forest as consisting of all trees and vegetation throughout the local government area, including trees on private property. Its objectives include protecting and maintaining the existing urban forest, and increasing canopy cover. Other key policies and plans identified in the Urban Forest Strategy include the Sydney DCP, the Sydney LEP, and the Tree Management Policy. The Urban Forest Strategy provides general guidance on tree protection, for instance at section 4.2:

“The Tree Management controls within the City Plan and Development Control Plan (DCP) will be the main tool to regulate and assess applications to prune or remove trees on private property. The use of assessment criteria by tree management staff will ensure a consistent approach to tree assessment.”

The assessment criteria used by tree management staff are not provided. A similar statement at section 4.5 hints at the approach but provides no detail:

“We assess applications for the pruning or removal of trees on private property using a consistent approach, in order to maintain and protect the trees, so that all the community receive their benefits.”

41. Council’s Tree Management Policy, approved February 2013, includes the following policy statement on page 3:

“The City of Sydney will regulate tree pruning and tree removal through its Tree Management Controls. The use of assessment criteria by tree management staff will ensure a consistent approach to tree management.”

42. A further policy statement on page 5 addresses the issue of assessment:

“The City of Sydney will use its tree assessment procedures to ensure consistency in the approach to determining tree removal, root pruning, and pruning applications.

The retention of significant trees is a priority.

Tree removal will not be permitted to facilitate views (including advertising signs), off-street parking, installation of solar panels or to reduce the extent of leaf / flower / fruit drop, or to reduce the impact from any bird / bat / other animal waste or noise.”

43. No further information regarding the assessment criteria or decision guidelines is provided. The approach to determining tree removal applications involving property damage is not described.

44. I note at this point that some local governments publish explicit tree assessment guidelines that provide further information to applicants regarding the criteria to be considered by Council when determining an application. When I asked Mr Simpson if Council had such a document, he replied that they do not.

Council’s reasons for refusing consent

45. Council’s determination of Mr Sheldon’s application gave nine reasons for refusing consent for tree removal.

“Reasons for refusal

You are advised that your application has been refused for the following reasons:

1. The tree appeared to be in a healthy condition with no obvious structural defects at the time of inspection.

2. The tree provides a high contribution to the amenity and canopy cover of the immediate area.

3. The information in the Tree Report prepared by treeREPORT dated 18 November 2019 is inadequate and has not demonstrated why the tree should be removed.

4. The information in the Structural Engineering Report prepared by SDA Structures dated 31 October 2019 is inadequate and has not demonstrated why the tree should be removed. Concerns relating to the proximity of the tree to the surrounding structures have been noted as concerns in that damage to these structures is considered imminent. There was nothing sighted nor evidenced that would suggest that any of these structures are being damaged or are likely to be damaged in the near future. Tree removal cannot be supported on a theoretical possibility that damage might occur.

5. The information in the Inspection Report prepared by MDR Waterproofing dated 02 February 2018 is inadequate and has not demonstrated why the tree should be removed.

6. Insufficient information has been provided to demonstrate why the lifted pavers cannot be repaired without requiring removal of the tree. The City notes your concerns about lifted pavers caused by tree roots. However it is important to note that the City considers the removal of trees as a last resort option and only when all other options have been exhausted. Council generally does not consider lifted pavers as a reason to warrant the removal of healthy trees, as such damage can be repaired without requiring the removal of large healthy trees. This feedback was provided in TPR/2017/258.

7. The proposal does not satisfy the Objective 3.5.3(c) of the Sydney Development Control Plan 2012 which relate to tree management.

8. The removal of the tree is not consistent with the Greening Sydney Plan 2012 which has articulated a percentage canopy cover target to be achieved across the Local Government Area by 2030.

9. The removal of the tree is not consistent with other policies implemented by Council aimed at maintaining and increasing canopy cover across the Local Government Area including Sustainable Sydney 2030 Community Strategic Plan 2014, City of Sydney Urban Forest Strategy 2013, the City of Sydney Tree Management Policy 2013 and the City of Sydney Landscape Code 2016.”

   46. It is not the role of the Court to simply review the initial decision, determining whether or not it was the ‘correct’ decision. The Court is to consider the application afresh, including any new evidence. Council’s decision may well have been the correct decision on the information available within the application, in line with their assessment criteria. Since then the applicant has adduced extensive arboricultural and engineering evidence, which forms part of this appeal. Reviewing Council’s reasons for refusal might provide an insight into the assessment criteria applied here.

   • The Lilly Pilly’s good health and structure (reason 1) is not disputed by the applicant. Its condition was not a reason for his application.

   • The tree contributes to the amenity and canopy cover of the area (reason 2), although Ms Howden found its contribution was less than ‘high’.

   • Reasons 3–5 refer to evidence (arboricultural, engineering and waterproofing) being inadequate or not demonstrating to the required extent that the tree is the cause of damage and that reasonable remediation is possible without tree removal.

   • Reason 6 refers to pavers in the courtyard surrounding the tree. Pavers had been displaced. Since Council’s determination the applicant has lifted and removed pavers, showing the extent of root growth beneath. Despite this, the applicant agrees that pavers could be replaced without removing the tree. His principal issues concern property damage other than the pavers.

   • Council found at reasons 7–9 that removing the Lilly Pilly would not be consistent with Council’s policies, plans and strategies relating to urban forest and tree management. These include goals for canopy cover, tree retention, and objective 3.5.3(c) of the Sydney DCP: “Maximise the quality and quantity of healthy tree canopy coverage across the LGA.”

   47. When a healthy tree causes property damage, the benefits and value of the tree might be weighed against the extent and severity of the damage and the cost of remediation or prevention. This is not dissimilar to consideration of matters under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006. If, as happens from time to time, it is found that a tree is causing significant property damage and the only reasonable solution to remedy that damage, or to prevent further damage, is tree removal, the tree’s contribution to canopy cover should not preclude Council giving consent for tree removal. The loss of canopy cover – its area and the potential for its replacement – must be considered in the balance when weighing the tree’s benefits against the damage caused.

The tree

48. As I have described above, this healthy Lilly Pilly is approximately 8 metres in both height and crown spread. If it were removed, its canopy area could potentially be replaced by a new tree in some 10–­20 years. The required space and soil area are available in the applicant’s courtyard to establish and maintain a replacement tree. The applicant is willing to replace the tree, and planting a replacement tree could be a condition of a permit.

49. The overall canopy cover of the urban forest can be diminished by incremental tree removal, including the removal of a medium-sized tree. At the same time, all trees have a limited lifespan, so maintaining or increasing the urban forest’s canopy cover relies on minimising losses, replacing losses, and finding opportunities to increase tree planting.

50. In the case of the Lilly Pilly, I find that its removal would have an impact on canopy cover, minor thought that might be, but importantly, its contribution to canopy cover could be replaced on the same site within a reasonable timeframe.

Damage to property

51. According to Mr Sheldon, the elements of property damage include his dwelling wall, pipes, paving, a side boundary masonry wall, and part of the neighbouring dwelling. He relies on the evidence of Mr Kazemi and Ms Howden.

52. The front part of Mr Sheldon’s dwelling covers the front half of the property with its street frontage to the north. On the rear half of the property, the dwelling extends along the western half of the land to the rear laneway, with this part of the dwelling containing the kitchen and master bedroom with a bathroom. The remaining quarter of the property, in the southeast, comprises the courtyard, approximately 12 metres long and a little more than 4 metres wide, with a door opening to the rear laneway. The rear half of the courtyard, at the level of the rear laneway, is predominantly paved. Three steps then go down to the lower level of courtyard near the main part of the dwelling, this area being covered with timber decking.

53. The Lilly Pilly grows in the upper level, approximately 1.2 metres from the masonry wall on the eastern side boundary, and close to the top of the courtyard steps. Its crown covers more than half of the courtyard and spreads over the western wing of the dwelling and over the neighbouring property to the east. A barbeque that stood between the Lilly Pilly and the eastern boundary wall was removed to investigate damage. Photographs show that the Lilly Pilly’s stem was against the barbeque structure.

54. The large stump of a Hackberry (Celtis sinensis) remains in the lower part of the courtyard, at the bottom of the courtyard steps and against the eastern boundary wall. It is within two metres of the Lilly Pilly. Council gave consent for the Hackberry’s removal in 2012.

The masonry boundary wall

55. Mr Kazemi made several visits to the site to conduct investigations. During his first visit on 8 April 2020 he noted minor cracking in the eastern boundary wall and horizontal displacement in the wall’s vertical joint approximately 1.6 metres from the Lilly Pilly.

56. During his second visit on 20 May 2020 Mr Kazemi measured the wall’s displacement, concluding that the southern part of the wall, from the vertical join to the rear boundary, tilted 0.3–0.4 degrees from vertical. Inspecting from within the neighbouring property, he observed cracks up to 2 mm wide in the boundary wall. He also observed other cracks further to the north.

57. Before Mr Kazemi’s fourth visit, on 23 June 2020, a section of the concrete slab near the tree, next to eastern boundary wall, was removed. The slab supported the paving tiles on the courtyard’s upper level. Mr Kazemi found the slab was approximately 120 mm thick, with top reinforcement only, and free of cracking or damage. A mass of roots against the base of the boundary wall, now exposed by removal of the slab section, prevented Mr Kazemi observing the wall’s footing system.

58. Mr Kazemi concluded from his observations that the eastern boundary wall has tilted by some 10–15 mm due to movement of its foundation material. He concluded that “…the root growth has potentially been pressuring the footing in the easterly direction, contributing to its movement.”

59. When questioned by Mr Simpson, Mr Kazemi conceded he could not rule out the possibility that the wall’s displacement was caused by the Hackberry that once grew here. Mr Kazemi did not have the opportunity to observe the situation earlier. He has no knowledge of the extent of damage prior to April 2020, so cannot say if the displacement has increased at all since the Hackberry’s removal. Mr Simpson submitted that the Hackberry, being a larger tree and growing against the wall, was more than likely to have been the cause. Ms Walsh suggested the same – that the damage might have been caused by the Hackberry and that there was no evidence demonstrating the Lilly Pilly had contributed to wall damage. Ms Walsh may not have Mr Kazemi’s engineering expertise, but as Council’s Tree Management Officer she has extensive experience observing and assessing tree applications involving property damage, and her opinions should not be taken lightly. Mr Kazemi was of the opinion that, while other factors including the Hackberry may have contributed to the wall’s condition, the Lilly Pilly’s roots are now against the wall and will increase the severity of the damage.

60. Mr Kazemi made it clear that the wall is not about to fail. At present it requires relatively minor repairs. He stated that further root growth is likely to increase the wall’s displacement. Should that be allowed to happen, parts of the wall may require replacement.

61. Whether or not the Lilly Pilly has damaged the wall, Ms Walsh and Ms Howden agreed that a root barrier would be required to prevent damage to the wall if the tree is retained. The root barrier would need to be installed close to the wall. Both arborists observed the mass of roots, referred to above, growing against the base of the wall. They appear to be alive, so they belong to the Lilly Pilly. Ms Walsh and Ms Howden disagreed as to the size of the largest root – where Ms Howden thought there was one root approximately 160 mm in diameter near the wall, Ms Walsh thought this was a mass of smaller roots and the largest root was only 60 mm in diameter. Ms Howden therefore formed the opinion that cutting the root would adversely affect the Lilly Pilly, whereas Ms Walsh thought the tree would tolerate roots being severed along the wall.

55. Following their further inspection of the site and their additional joint report, Ms Howden and Ms Walsh still disagreed on this issue. Ms Howden thought the large root might be several roots fused together, approximately 250 mm wide. Her opinion remained that severing these woody roots would have a significant impact on tree health and stability. Ms Walsh’s opinion remained: that the roots near the wall were relatively small and could be cut to install a root barrier.

56. Reviewing the evidence and opinions above, and bringing my own arboricultural expertise to these issues, I conclude the following.

• The principal cause of the boundary wall’s condition was most likely the Hackberry. The species is vigorous, the tree was large, at ground level its stem and roots grew directly against the wall. During that period the Lilly Pilly may have made a secondary contribution.

• Since the Hackberry was removed, its roots have died. Roots growing against the base of the boundary wall are now the Lilly Pilly’s. They are numerous. They are a short distance from the stem and are likely to increase in girth, applying pressure on the wall. Without intervention, the Lilly Pilly’s roots are likely to cause further damage to the wall. I accept Mr Kazemi’s evidence that such a situation will require more extensive repairs than any repairs required at present, and should be avoided.

• Roots against the wall could be cut. I find Ms Walsh’s opinions on this the most persuasive. It appears that there are numerous smaller roots, even if, as Ms Howden suggested, some are now fused together. Furthermore, photographs taken since pavers were removed in the courtyard show the extent of root growth throughout the courtyard. The loss of roots against this section of the wall would be a small portion of the overall root system, including its structural roots. The tree would be unlikely to suffer long-term consequences.

• Cutting the roots without installing a root barrier would provide a short-term solution only, as severed roots would quickly regrow to the boundary wall. Installing a root barrier, however, is likely to be somewhat problematic. Root barrier installation must be done by experienced professionals. Services must be located and the root barrier installed and sealed around any services that are found. The top of the root barrier must be maintained to prevent roots growing over it. Experience has shown that root barriers often have a very limited effective life, sometimes no more than 5–10 years. This ought to be considered when weighing the costs of remediation and prevention against the benefits of the tree. For a more significant tree, the expense may be worth it, but I am not convinced that such resources are warranted for an 8-metre Lilly Pilly in a small rear courtyard.

The bedroom wall

64. The applicant’s bedroom wall, a few metres west of the tree, has internal cracking and some damage around the window. The applicant’s documents show that when the dwelling was renovated in 2006, flashing and waterproofing were installed as necessary in the structure. Ms Hammond submitted that any damage to this part of the dwelling is not due to faults with its design or construction.

65. Mr Kazemi inspected this wall and its windows during his visit of 10 June 2020. His observations of cracks in the bedroom window’s sill led him to conclude that they were caused by “…an uplift and inward force from the footing on the courtyard side.” He observed a small but dense root system alongside this wall. Mr Kazemi concluded that the damage to the windowsill was most likely caused by root pressure on the bedroom wall’s sandstone footing. He categorised the windowsill’s condition “…as ‘significantly damaged’ and ‘unrepairable’.”

66. Ms Howden said she would expect roots to grow near the bedroom wall in a similar fashion to their growth against the eastern boundary wall. Ms Walsh pointed out that no excavation had been carried out next to this wall. The removal of pavers against the wall showed only fine roots that would not cause such damage. Again, Mr Simpson asked if the Hackberry might have caused the damage. Although Ms Howden thought the damage looked to have occurred more recently than the Hackberry’s removal, Mr Kazemi conceded it was possible, but unlikely.

67. On the evidence before me, I cannot be satisfied that the Lilly Pilly has contributed to damage of the bedroom wall or windowsill. Mr Kazemi has suggested the damage is due to root pressure, but it has not been shown that any woody roots grow against the wall’s footing. It also remains unclear if any tree roots are likely to cause damage to the dwelling in the foreseeable future.

Sewer pipes

68. On several occasions during 2019 and 2020 the applicant had to engage a plumber to clear the sewer pipe to the bathroom, which is approximately 6 metres southwest of the Lilly Pilly. On 20 May 2020 Ms Howden collected root samples from within and adjacent to the sewer pipe. Root identification by the Plant Disease Diagnostic Unit of the Royal Botanic Gardens Sydney confirmed they were Lilly Pilly roots. Mr Sheldon’s Lilly Pilly is the only tree of this species nearby.

69. Ms Walsh suggested that roots would not invade the sewer pipe if it was a properly repaired and sealed PVC pipe. Mr Sheldon’s documents show that a PVC sewer pipe was installed during the 2006 renovation.

70. Despite the sewer pipe being PVC, it is improbable that roots would find ingress without some pre-existing fault in the pipe, most likely at a joint. Leaks from such a fault would promote the kind of root growth found here alongside the sewer pipe. Roots growing within the pipe have highlighted what was perhaps an existing problem, although the problem might have been of no great consequence if not for the roots.

71. Whether the Lilly Pilly remains, or is replaced by another tree, roots will grow into the pipe again if no further action is taken. Repairing the pipes might be less onerous than installing a root barrier along the dwelling wall to prevent root growth.

The neighbouring dwelling

72. Mr Kazemi observed cracking of the common boundary wall (party wall) inside the neighbouring dwelling to the east. His findings regarding this damage were similar to those for the garden boundary wall. He concluded that tree root growth might be causing some displacement of the wall’s footing. Despite this, I find that there is no evidence of Lilly Pilly roots growing against this part of the wall. The Hackberry was closer to this area of damage and much more likely to be its cause.

Balancing the issues

73. Ms Walsh’s position, which I broadly accept, is that the applicant has not demonstrated, to the extent required by Council, that the Lilly Pilly has caused much of the damage that is claimed: damage to the bedroom wall and windowsill, the sewer pipe, the neighbouring dwelling, and perhaps even to the adjacent eastern boundary wall. Mr Simpson submitted that the tree should therefore remain, and a root barrier should be installed.

74. Ms Hammond submitted that Mr Sheldon has already gone to extraordinary lengths to reveal the extent of root growth on his property. He has also incurred significant costs in obtaining expert reports. Mr Kazemi’s engineering evidence, uncontested by any other engineering expert, points to the Lilly Pilly being the cause of damage.

75. While I am swayed by Council’s assertion that causation (by the Lilly Pilly) has not been demonstrated, especially where the Hackberry is most likely to have caused damage, I find that the Lilly Pilly is likely to intensify the displacement of the eastern boundary wall to the extent that more significant repairs would be required if this is not prevented. Indeed, Council’s proposed condition for installing a root barrier demonstrates they are cognisant of this likely outcome.

76. If the Lilly Pilly is retained, a root barrier would need to be installed, at least along the eastern boundary wall. This would require some root pruning, but only to an extent that would not adversely affect the tree. In fact, Council proposed installing a root barrier around the entire perimeter of the courtyard. Apart from being an onerous requirement, the durability of this solution is uncertain, such that I find its expense could not be justified as a condition of a permit, especially when compared with the Lilly Pilly’s somewhat limited significance beyond the subject site. Turning away from the option of installing a root barrier, the only remaining avenue left open to prevent the Lilly Pilly causing damage is to consent to its removal.

Consent for tree removal should be granted

77. Having considered the Lilly Pilly’s benefits, its potential for causing damage, and the works required if it is retained, I find it is reasonable to consent to its removal.

Permit conditions

78. For the initial hearing, Ms Howden provided the applicant with conditions that might be considered should consent for tree removal be granted. These conditions suggested a suite of small tree species that might be suitable for replanting, and general guidelines for installing a root barrier.

79. Council was provided the opportunity to propose conditions prior to the second hearing and returned the following:

“(a)   One tree is to be planted in the rear courtyard of 85 Stewart Street, Paddington within three (3) months from the date the approved tree removal was completed.

(b)   The replacement tree species, when mature, must attain a minimum height of no less than 8 metres and minimum canopy spread of 6 metres. Palms, fruit trees, undesirable species and species recognised to have a short life span are not considered a suitable replacement

(c)   The replacement tree must be grown to Australian Standard 2303:2015 ‘Tree stock for landscape use’

(d)   At the time of planting, the container size is to be a minimum of 75 litres and a minimum height of 2 metres.

(e)   The replacement tree must be planted in natural ground with adequate soil volumes to allow maturity to be achieved. Planter boxes will not be accepted for tree planting;

(f)   The replacement tree must be appropriately located away from existing buildings and structures to allow maturity to be achieved without restriction;

(g)   A root barrier (depth determined by an AQF Level 5 Arborist) must be installed no more than 100mm from existing structures around the perimeter of the rear courtyard.

(h)   The replacement tree must be planted by a qualified Arborist with a minimum Australian Qualifications Framework (AQF) of Level 3.

1. The replacement planting must be planted in such a manner as to promote good health during the establishment period, and must be maintained, as far as practicable to ensure healthy tree growth into maturity.

(j)   Clear dated photographs of the replacement tree must be submitted to Council’s Tree Management Officer annually until the tree reaches 6 metres in height.

(k)   If the replacement tree fails before reaching 6 metres in height it must be replaced with a tree of comparable qualities and maintained as outlined above until the tree reaches 6 metres in height.”

80. The applicant’s response included the following suggestions from Ms Howden:

“(a)   One tree is to be planted in the rear courtyard of 85 Stewart Street, Paddington within twelve (12) months from the date the approved tree removal was completed.

(b)   The replacement tree species, when mature, must attain a minimum height of no less than 6 metres and a minimum canopy spread of 4m. Palms, fruit trees, undesirable species and species recognized to have a short life span are not considered a suitable replacement.

(g)    A root barrier (depth to be determined by an AQF Level 5 Arborist) must be installed no more than approximately 100mm from the footings of the existing structures around the perimeter of the rear courtyard.

(h)    The replacement tree must be planted by a qualified Arborist/ Horticulturalist/Landscaper with a minimum Australian Qualifications Framework (AQF) of Level 3.”

81. Ms Howden considered that condition (j)

“…is onerous and is not a condition that I have come across previously. The Council is the authority and therefore has the responsibility of ensuring ongoing compliance with conditions rather than the applicant providing evidence.”

Root barrier installation

82. For reasons set out earlier, I find that imposing a condition for the installation of a root barrier around the entire courtyard is unreasonably onerous and may be of limited efficacy. If the applicant determines it is an appropriate measure for preventing potential damage, he may install a root barrier as he sees fit. Of course, it remains possible that damage will eventually be caused by a replacement tree, in which case the owner can apply at that time for any consent required to take appropriate action.

Replacement tree planting

83. The general terms of Council’s proposed conditions for a replacement tree seem reasonable. The size of the proposed tree is appropriate for the courtyard size. To me, six months is a suitable timeframe for replanting as it allows for the replacement tree to be planted during a suitable season, while a 12-month timeframe is unnecessarily long. I see no issue with the applicant’s proposed amendments to condition (h) for the qualifications of the person planting the tree. I do not accept that the requirement at condition (j), for the applicant to annually submit a photo to Council until the tree reaches 6 metres in height, is too onerous. This is far more efficient than a Council officer regularly visiting properties to ensure compliance with conditions.

Orders

84. For the reasons given above, the Court orders that:

1. The appeal is upheld.

2. Consent is granted to remove the Lilly Pilly at 85 Stewart Street, Paddington, subject to the attached conditions at Annexure A.

3. The exhibits are returned except for A.

……………………………….

D Galwey

Acting Commissioner of the Court

Annexure A (89465, pdf)

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Decision last updated: 08 December 2020