Stewart v Inner West Council

[2023] NSWLEC 1240

Land and Environment Court

New South Wales

Medium Neutral Citation:

Stewart v Inner West Council [2023] NSWLEC 1240

Hearing dates:

03 February 2023

Date of orders:

19 May 2023

Decision date:

19 May 2023

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) All exhibits are returned, except for Exhibits A and 2.

Catchwords:

TREE PERMIT APPLICATION — review of decision on application to remove trees – whether development consent is required – whether removal of tree is justified - tree in heritage conservation area – contribution to landscape

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.2, 8.7

Inner West Local Environmental Plan 2022

Leichhardt Local Environmental Plan 2013, cll 5.9, 5.10

State Environmental Planning Policy (Biodiversity & Conservation) 2021, ss 2.6, 2.7, 2.10

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, Pt 2, cll 7, 8, 10

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Leichhardt Development Control Plan 2013

Inner West Council Tree Management Development Council Plan

Category:

Principal judgment

Parties:

Robert Stewart (First Applicant)
Shui Ping Zhou (Second Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
R Stewart (Self-represented) (First Applicant)
S P Zhou (Self-represented) (Second Applicant)
M Pearce (Solicitor) (Respondent)

Solicitors:
Inner West Council (Respondent)

File Number(s):

2022/284452

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to section 8.7 of Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) against the refusal of Tree Application TREE/2022/0662 for the removal of the Fiddlewood Tree (the tree), located at 32 Kentville Avenue, Annandale NSW 2038 (the Site) by Inner West Council (the Council).

2. The Applicants lodged a tree application seeking a permit for the removal of one tree. The application was refused by Council on 27 June 2022. The Applicants filed a Class 1 proceedings in the Land and Environment Court of NSW on 23 September 2022.

3. On 18 November 2022, a section 34 conciliation conference was held between the parties. No agreement was reached. The section 34 conciliation conference was terminated.

4. The respondent is the Inner West Council. At the time the original application was made, the relevant council was Leichhardt Municipal Council, and the applicable planning instrument remains Leichhardt Local Environmental Plan 2013 (LLEP), and its associated documents continue to apply.

The Site

5. The tree is located on private land located on the northern side of 32 Kentville Avenue, Annandale (the Site). The tree is an estimated 12 metres from the rear of the dwelling on the same lot.

6. The tree is estimated to be 12 metres high, with a canopy spread of about 15 metres.

The Proceedings

7. The matter commenced on-site and then returned to Court. Present at the on-site view were the Applicants, Mr Robert Stewart and Ms Shui Ping Zhou, who were self-represented, the legal representative for the Respondent Council, Mr Matthew Pearce, and the Council’s expert arborist, Ms Lisa Murphy.

8. The view commenced with examination of the tree, which was located in the Applicants’ rear yard. The tree was also viewed from the adjoining laneways and the surrounding area generally. At the onsite view a walk around the locality demonstrated that the tree is highly visible from the streetscape.

9. Ms Murphy provided evidence on-site that the tree should not be removed when one assesses the tree based upon a set of criteria in the Council’s Tree Management DCP (Tree DCP).

The Planning Framework

10. At the time of lodging the tree application, the LLEP was in force and is saved. Since that time, the Inner West Local Environmental Plan 2022 has taken effect.

11. The site is within the area covered by the LLEP. The site is in Zone R1 General Residential (Ex 2).

12. Clause 5.9 of the LLEP deals with the preservation of trees and vegetation, as follows:

5.9 Preservation of trees or vegetation

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

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

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

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

development consent, or

a permit granted by the Council.

13. The site is located within the Annandale Heritage Conservation Area. As such, cl 5.10 of the LLEP applies. Under the heritage conservation provisions of cl 5.10, development consent is required for the removal of a tree, unless under cl 5.10(2) 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.

14. The Site is situated within the Annandale Distinctive Neighbourhood, Annandale under the Leichhardt Development Control Plan 2013 (DCP 2013) Part C – Place – Section 2: Urban Character, Figure C24. The DCP 2013 controls applicable to the area include:

C7    Maintain the prevalence of mature regularly spaced street trees as well as mature and visually significant trees on private land.

15. The Tree DCP contains the relevant DCP provisions in the assessment of various tree applications relating to the pruning or removal of trees.

16. The purpose of the Tree DCP, is that:

“This section has been made in accordance with the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (‘the Vegetation SEPP’) and prescribes the vegetation to which the Vegetation SEPP and/or clause 5.10 of the LLEP, MLEP and ALEP applies and the applicable consent process.”

17. As of 1 March 2022, the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) has been replaced by the State Environmental Planning Policy (Biodiversity & Conservation) 2021 (Biodiversity and Conservation SEPP). Under cl 10 of the Vegetation SEPP, a permit may not be granted for the clearing of vegetation within a heritage conservation area unless it would not adversely affect it. This same provision is reflected in s 2.10 of the Biodiversity and Conservation SEPP (p 67, Ex 2).

18. Section 2 of the Tree DCP sets out Objectives 01 to 07, as follows:

“O1 To establish a coordinated approach to the assessment and management of trees

O2 To ensure the safety of the community, private property and public infrastructure assets.

O3 To protect trees within and adjacent to development sites and to ensure that all new development provides an opportunity for existing and new trees to grow.

O4 To manage the urban landscape so trees continue to make a significant contribution to its quality, character and amenity.

O5 To maintain and enhance the amenity of the Inner West Local Government Area through the preservation of appropriate trees and vegetation.

O6 To ensure the cost burden of meeting tree canopy targets does not fall unreasonably on property owners and lower income residents in particular.

O7 Encourage private property owners to plant new trees and replace inappropriate trees in order to meet Council’s tree canopy targets.”

19. Section 3 sets out tree works that do not require consent:

“a. Canopy lifting to 2.5 metres above ground level;

b. Selective pruning to a 3 metre clearance above the roof or from the face of all structures; and

c. The pruning of deadwood that does not have hollows or provide habitat for native fauna.

d. Works to trees owned by, or under the care, control and management of Inner West Council and undertaken by delegated Council staff or their authorised contractors.”

20. Section 4 Trees to be protected of the Tree DCP states that the exemptions in Section 3 do not apply to, in part:

“x. Any tree that is within a heritage conservation area or item where the works are:

1. Not of a minor nature; or

2. Likely to have an adverse impact on a Heritage Conservation Area or Heritage Item.”

The evidence

21. Ms Lisa Murphy, arborist for the Respondent provided an assessment under section 5.2 of the Tree DCP to determine whether the tree should be removed or retained (Ex 5).

22. The evidence from Ms Lisa Murphy concludes that the tree should be retained and that development consent is required for the removal of the tree, as it is prescribed tree located within a Heritage Conservation Area.

23. No expert evidence was tendered by the Applicants.

Submissions

24. The Applicants submit that the Fiddlewood tree, due to its proximity to their house should be removed to prevent the risk of damage and injury to residents, in the event that the tree becomes unstable and falls.

25. At the onsite view the Applicants noted that large branches from the tree had fallen onto their property in the past and “due to luck” no-one was injured. They also indicated that the tree was infested with Lantana bug and that this would affect the tree’s health. No expert evidence was provided by the Applicants in relation to the health of the tree or its potential risk to life and property.

26. The Respondent submits that the Fiddlewood tree is healthy and is making a significant and immediate contribution to the surrounding landscape. The Council’s expert arborist provided evidence that there is no predictable threat to human life from the tree and there is no evidence as to the potential of the tree to cause damage to property in the future. They also provided evidence that the Lantana Bug can be chemically treated and is not causing any integrity issues with the tree (Ex 5).

27. The parties disagree over whether it should be retained. The Applicants argue that the tree should be removed as it is listed as an undesirable species under the Council’s Tree DCP. They indicated that they would replace the tree with a frangipani and a lemon tree.

28. The Respondent is of the view that tree should be retained due to its positive streetscape value as it is a visually significant tree within the Annandale Heritage Conservation Area. The Council’s expert arborist was of the opinion that removal of the tree is inconsistent with the character controls in Section C2.2.1.2 Annandale Street Distinctive Neighbourhood of DCP 2013, which requires applicants to “maintain the prevalence of mature, regularly spaced street trees as well as mature and visually significant trees on private land.”

Assessment

29. In determining an appeal, the Court is standing in the shoes of the Council. This means that I am bound by the same planning framework and by any specified assessment procedure under the Council’s planning controls. However, I can consider evidence additional to that available to the original consent authority, and when considering all the evidence it is open to me to draw different conclusions from those reached originally.

30. Criteria for the assessment of a tree removal application are given in the Tree DCP at 5.2, as follows:

i. Distance: Approval will be granted for any tree located within two (2) metres of a dwelling house or garage located within the same lot as the tree, unless the tree is protected under section 4 of this part. The distance is measured horizontally from the closest point of the trunk at one (1) metre from ground level to the closest point of the vertical alignment of the building wall. The issued permit will identify the type of any replacement tree required with a preference for advanced species. As a condition of the permit, verification of the planting of any replacement tree is also required.

ii. Danger: Danger is assessed based on a number of factors including;

• The potential/likelihood of a tree or tree part to fail; • A history of previous branch failure;

• The size of the defective part of the tree;

• The use and occupancy of the area that may be struck by a defective part; and

• The tree exceeds 15m in height and is within the strike zone of a habitable dwelling. Meeting the danger criteria gives significant determinative weight to the application to approve the removal and/or pruning of a tree. Dangerous tree assessments are to be based on the safety risk in all weather conditions, not “normal” conditions.

iii. Property Damage: The likelihood of the tree having an adverse effect on property including trees renowned for having extensive root systems, which cause damage to footings of houses or, trees that cause blockages to domestic sewer and drainage lines.

iv. Condition of the tree: The structural integrity of the tree is assessed for any visible signs of decay or deterioration, this is usually indicated by a lack of foliage, dead branches evident in the canopy, presence of fungal fruiting bodies, excessive sap being exuded from the trunk and/or evidence of insect attack, particularly borer damage. Further, the likelihood the species displays toward branch failure and subsequent limb fall.

v. Health of the tree: The species’ susceptibility to environmental changes, which may affect the longevity of the 8 Inner West Development Control Plan species’ survival in its current location. This would include, changes in soil level, excessive root damage caused during construction works, changes in water availability, competition for other vegetation (particularly climbing vines), and compaction of soil (particularly in high usage areas such as car parking areas).

vi. Significance to Streetscape: An assessment of the visual environment and the significance the specimen plays within the streetscape. Other criteria would include if the tree is an endangered or rare species, is of historical significance or, the link the tree provides between bushland and reserves (the connectivity of habitat).

vii. Termites: Each case of termite infestation will be investigated on its merit.

viii. Potential Future Damage: The potential for the tree to cause damage in the future is also considered in an assessment for removal.

ix. Extenuating circumstances: Circumstances, such as the owner’s capacity to undertake required maintenance of a tree and surrounds, whether the landowner planted the tree, or solar access for renewable energy systems and other like considerations.

31. Ms Murphy made an assessment of the tree against the criteria in 5.2 and this assessment is summarised below:

• With regard to criteria (i) the tree is a prescribed tree. The distance between the tree and dwelling house exceeds 2 metres but not the garage on the neighbouring property. There is no evidence of property damage.

• With regard to (ii) there is no evidence that the tree is dangerous.

• With regard to (iii) there is no evidence of the likelihood of the tree having an adverse effect on property that would cause damage.

• With regard to (iv) the tree is healthy and is making a positive contribution to the Annandale streetscape and locality.

• With regard to (v) the tree is healthy.

• With regard to (vi) the tree is making a positive contribution to the Annandale streetscape. The site falls within a Heritage Conservation Area. It falls within C2.2.1.2 Annandale Street Distinctive Neighbourhood, which has a Desired Future Character Control C7 to “maintain the prevalence of mature, regularly spaced street trees as well as mature and visually significant trees on private land”.

• With regard to (vii) there is no evidence of termite infestation. There is a colony of Lantana Bug which can be chemically treated but is not causing any integrity issues with the tree.

• With regard to (viii) there is no evidence as to the potential of the tree to cause damage in the future.

• With regard to (ix) there is no evidence of the Applicants’ incapacity to carry out any maintenance of the tree and surroundings

Submissions

32. The Applicants submit that the Fiddlewood tree, due to its proximity to their house should be removed to prevent the risk of damage and injury to residents, in the event that the tree becomes unstable and falls. At the onsite view, the Applicants noted that large branches from the tree had fallen onto their property in the past and “due to luck” no-one was injured. They also indicated that the tree was infested with Lantana bug and that this would affect the tree’s health. No expert evidence was provided by the Applicants in relation to the health of the tree or its potential risk to life and property.

33. The Respondent submits that the Fiddlewood tree is healthy and is making a significant and immediate contribution to the surrounding landscape. The Council’s expert arborist provided evidence that there is no predictable threat to human life from the tree and there is no evidence as to the potential of the tree to cause damage to property in the future. They also provided evidence that the Lantana Bug can be chemically treated and is not causing any integrity issues with the tree (Ex 5).

34. The parties disagree over whether it should be retained. The Applicants argue that the tree should be removed as it is listed as an undesirable species under the Tree DCP. They indicated that they would replace the tree with a frangipani and a lemon tree.

35. The Respondent is of the view that tree should be retained due to its positive streetscape value as it is a visually significant tree within the Annandale Heritage Conservation Area. The Council’s expert arborist was of the opinion that removal of the tree is inconsistent with the character controls in Section C2.2.1.2 Annandale Street Distinctive Neighbourhood of DCP 2013, which requires applicants to “maintain the prevalence of mature, regularly spaced street trees as well as mature and visually significant trees on private land.”

Discussion

Is the removal of the tree a minor matter or does it require a development application?

36. From the evidence, I am satisfied that the Fiddlewood tree is a protected (prescribed) tree under Section 5 of the Tree DCP, as it is greater in height than 6 metres and its canopy spread is equal to or greater than 3 metres. Therefore, an application must be made to the Council for removal of the tree.

37. To determine what type of application is required, Section 5.1 C7 of the Tree DCP states that Tree Minor Works Applications are required for the removal of tree species listed in C7, which includes a Fiddlewood tree. However, under Section 5.1 C5, development consent (a development application) is required for the removal of trees located within a Heritage Conservation Area or Heritage Item, where the works are determined to be not of a minor nature or likely to have an adverse impact on a Heritage Conservation Area.

38. Notwithstanding that the tree is a Fiddlewood tree, it is my view that the removal of the tree cannot be deemed minor and is likely to have an adverse impact on the Heritage Conservation Area. In relation to the type of application required to remove the tree, I concur with the evidence of Ms Murphy, that the removal of the tree is not minor in nature, due to its significance in the streetscape and due to its location within the Annandale Heritage Conservation Area. It would therefore fall under the category of Section 5.1 C5 of the Tree DCP, which requires Council’s development consent (a development application) for tree removal in a Heritage Conservation Area, where the works are determined to be not of a minor nature; or likely to have an adverse impact on a Heritage Conservation Area.

39. The tree is a prescribed tree, situated within a Heritage Conservation Area. Further, under the Heritage Conservation provisions of the LLEP 2013, cl 5.10(2)(a)(iii) states that development consent is required for the removal of a tree and therefore requires a development application.

36. Section 4.2 of the EP&A Act stipulates that a person must not carry out a development if an environmental planning instrument provides a specific development may not be carried out except with development consent.

37. Under the provisions of cl 7 of the Vegetation SEPP and s 2.6 of the Biodiversity and Conservation SEPP, a person must not clear vegetation without the consent of Council. There is no evidence that qualifies a risk to life, person, or property under Pt 2, cl 8(3) of the Vegetation SEPP and s 2.7 of the Biodiversity and Conservation SEPP.

38. This appeal relates to a refusal of a tree minor works application, rather than a development application. The Court therefore has no jurisdiction to hear the appeal in the circumstances where the matter before the Court is that of an application seeking a tree removal permit as opposed to a development application. On this basis alone the appeal must be dismissed.

Will retention of the tree pose a threat to life and property?

43. Any tree could be potentially damaged in a severe storm (by very strong winds or by lightning) but these would be rare events. If this is the sort of threat intended, then it could apply to almost every tree. If the question is intended to capture more likely possibilities, then the Council expert arborist is of the view that the tree is healthy and there is no predictable threat to human life or no evidence of the likelihood of the tree having an adverse effect on property that would cause damage, in the near future.

44. In matters dealt with under the Trees (Disputes Between Neighbours) Act 2006, the Court has adopted as a rule of thumb the interpretation proposed in Yang v Scerri [2007] NSWLEC 592 that the near future is within a period of twelve months from the date of the determination. This rule has been applied in very many cases and nothing was pointed to on site which indicated that any major damage was likely to occur within twelve months

45. The neighbours’ concerns about shedding of leaves and fruit are met by the principle in Barker v Kyriakides [2007] NSWLEC 292 at [20] that

…..“The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide a basis for ordering removal of or intervention with an urban tree”

46. There is nothing in the present situation which would raise it above the ordinary, so there is no basis to depart from the principle. From my observations, there was no evidence at the onsite view, that the tree would cause damage to property or threat to human health, in the near future.

Decision

47. The provisions of the LLEP 2013, and the Tree DCP Controls governing tree removal clearly point to the preference that trees be retained in Heritage Conservation Areas and Distinctive Neighbourhoods where the trees make a significant contribution to the character of the urban landscape, and this argument was put by the Respondent’s arborist and no contrary expert evidence was provided by the Applicants.

48. From my observations, the tree is both mature and visually significant in the streetscape and provides a positive contribution to the Annandale Heritage Conservation Area in which it is located. Further, the evidence of the expert arborist was that the tree does not pose a risk to life or property.

49. On the evidence available, and the lack of analysis of the feasibility of possible alternatives to removal, the appeal should be rejected.

50. The Court makes the following orders:

1. The appeal is dismissed.

2. All exhibits are returned, except for Exhibits A and 2.

L Sheridan

Acting Commissioner of the Court

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Decision last updated: 19 May 2023