Thomson v Ashfield Municipal Council

[2008] NSWLEC 1220

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Thomson v Ashfield Municipal Council [2008] NSWLEC 1220

PARTIES:
APPLICANT
James Evan Thomson

RESPONDENT
Ashfield Municipal Council

FILE NUMBER(S):
10015 of 2008

CATCHWORDS:
Development Application :- Garage/Studio - significant tree removal, loss of amenity

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Ashfield Local Environmental Plan 1985

CORAM:
Hussey C

DATES OF HEARING:
27/02/2008 and 05/06/2008

EX TEMPORE DATE:
6 June 2008

LEGAL REPRESENTATIVES

APPLICANT
Mr J. Thomson, litigant in person

RESPONDENT
Mr S. Patterson, solicitor
of Wilshire Webb Staunton beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

6 June 2008

10015 of 2008  James Evan Thomson v Ashfield Muncipal Council

This decision was given extemporaneously.

It has been revised and edited prior to publication.

JUDGMENT

Backgound

1. Mr Thomson lodged this appeal against Council’s refusal of a development application for the demolition of an outbuilding and the construction of a garage with a studio above, located at 16 Dickinson Avenue, Croydon.  The proposal involves the removal of three trees, including a mature Jacaranda designated T1.

1. A number of issues were initially identified for the appeal including:

   The height, bulk and scale of the building.
   Amenity impacts on neighbouring properties, including loss of privacy due to the tree removal.
   Heritage impacts.
   Tree removal.

2. Following conferencing between the parties, agreement was reached on conditional resolution of most of these issues.  However, the remaining threshold issue concern the necessity to remove the Jacaranda T1 to accommodate the building design.

The Site

1. The proposed application is in relation to the property at 16 Dickinson Avenue, Croydon.  This allotment of land is described as Lot 17 SEC B DP:5954.

1. The site is rectangular in shape and has a street frontage to Dickinson Avenue.  The front and rear boundary lengths are 15.24 metres.  The side boundaries, being the north-east and south-west boundaries, are 42.67 metres in length.

2. The allotment area is approximately 645 square metres.

1. The subject site is located on the south-eastern side of Dickinson Avenue, bounded by Thomas Street to the north-east and Liverpool Road to the south.  The surrounding area comprises residential development.

Planning Controls

1. The subject site is zoned 2(a) Residential under the Ashfield Local Environmental Plan 1985 (“LEP 1985”) as amended.  The proposed works are permissible with this zone with development consent.

1. The property is not a heritage item.  The property is located within the Gads Hill Heritage Conservation Area, under Ashfield Development Control Plan 2007 (Ashfield DCP 2007) Part C10 Heritage Conservation. Ashfield DCP 2007 also applies to the site.

The Evidence

1. Detailed evidence was presented by:

   Ms Mr. Barrett, Council’s Planning Consultant;
   Mr P. Laverty, Councils Arborist,
   Mr D. Draper, Applicant’s consulting Arborist.

2. The threshold issue arises because of the size and location of the proposed building, relative to the site constraints, particularly T1. In this regard, I note the Council agrees the other 2 trees can be removed subject to suitable replacement.

1. However the proposed building represents a significant increase in bulk over the existing outbuilding. This occurs due to the proposed footprint increases and the additional studio level, which has a pitched roof. Also, the building is shifted away from the boundaries, closer to T1, where it has a clearance in the order of 2m.

2. A detailed tree assessment was undertaken by the arborists. The Jacaranda T1 has an approximate height of 14m and a crown spread of 14/9. According to Mr Draper’s assessment, T1 has a significance classification of 2, i.e. second only to class 1 – high significance according to the UTM Ratings System. It is also has a Category 1- High Retention Value.

1. Whilst Mr Laverty did not agree with this assessment approach, nevertheless he confirmed that T1 is a substantial, healthy tree and in its context provides a significant landscape contribution. He prefers the tree to be retained and says that this may be achieved with careful construction methods and a minimum offset of 2.5m. The approval of the proposed building would also require pruning branch T1B3, to enable the roof construction.

2. Ms Barrett supports the objections from the neighbours that the removal of T1 would reduce the vegetative outlook by the loss of the existing canopy. This would be replaced by a more visually dominant building structure. On the basis of the DCP and TPO provisions she does not support the proposal.

Conclusions.

1. Having considered the evidence I accept that it is possible for a reasonable garage/studio to be built in this rear yard, as is the case with neighbouring properties. This may necessitate the alteration, removal and replacement of some existing vegetation, which could be covered by conditions of consent.

1. However in deciding whether the site is suitable for the proposal, I consider it reasonable to assess the site constraints. In this case T1 is a significant tree, which is healthy and has a relatively long (+30 years) life span. As such its presence makes a significant contribution to the landscape character of the particularly attractive neighbourhood, including the streetscape. It also provides a high level of visual amenity and privacy to the neighbouring properties.

1. Under these circumstances, I consider the removal of T1 would result in negative environmental impacts and amenity for this neighbourhood. I do not consider that the proposal has adequately addressed this site constraint.

1. It seems to me that the shift of the building footprint and inclusion of the 1st level element compromises T1, requiring it’s removal. It is apparent that there are other design solutions to provide a reasonable level of building accommodation and retain the T1 with minimum risk.

2. This would accord with the evidence of Ms Barrett and Mr Laverty on which I rely. Such alternatives could involve retaining similar side boundary setbacks (north side) to that current to increase separation to the tree, reverse the roof pitch away from T2 and while this may impinge on some distant views from the dwelling, I consider this would represent a more reasonable balance in the competing private and public interest considerations.

1. Notwithstanding this, I have considered the applicant’s submissions that there will be 3 appropriate native replacement trees and they will provide longer-term environmental benefits, due to extended life expectancy, species diversity and carbon uptake.

2. In the ultimate, I do not consider the public interest is well served by allowing the removal of this significant and healthy Jacaranda (T1) when there are other design solutions to enable its retention. Accordingly, I Rely on the opinions of the Council experts, resulting in the failure of the application.

Court Orders.

1     The appeal is dismissed.

2     Development application DA 2007.206.1 for the construction of a garage and ancillary works at 16 Dickinson Avenue, Croydon is refused.

3     The exhibits may be returned except A and 2.

___________________

R. Hussey
Commissioner of the Court

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