Burns v Ku-ring-gai Council

The site

1. The site is rectangular in shape which has a 19.10 m frontage to Clermiston Ave and fall towards the front western corner. The site has a depth of 60.96 m and a total area of 1195 square meters.
2. A single storey dwelling with a pitched tile roof and single carport plus garage currently sits within the central-front portion of the site. The area is dominated with similar sized dwellings and allotments, of differing styles.
3. A secondary dwelling has been approved, although not yet constructed, at the rear of the site, towards the north-western boundary.
4. T8 is a Phoenix canariensis, Arecaceae, also known as a palm located between the existing and approved secondary dwellings, behind a brick shed, along the northern boundary of the site.

Planning controls

1. As identified in the Ku-ring-gai Local Environmental Plan 2015 (KLEP 2105), the site is located within the Clanville Heritage Conservation Area (C32), although the site itself, including dwelling and subject trees are not heritage listed items.
2. Cl 5.10 of the KLEP 2015 requires the consent authority to consider when assessing a development application the objectives for the conservation of heritage, and with specific relevance to this appeal ensure cl 5.10(2)(a)(iii) and cl 5.10(4) as follows are satisfied: 5.10 Heritage conservation (1) Objectives The objectives of this clause are as follows: (a) to conserve the environmental heritage of Ku-ring-gai, (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) a heritage item, (ii) an Aboriginal object, (iii) a building, work, relic or tree within a heritage conservation area, (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).
3. The removal of trees from the site should consider the objectives and controls established in Part 19C.3 of the Ku-ring-gai Development Control Plan 2016 (KDCP 2016), as it relates to the (Clanville) Heritage Conservation Area (HCA). Objectives 1 To retain the garden character of Ku-ring-gai's HCAs which is largely due to the deep frontages and large lots that support remnant trees, early surviving gardens with established introduced trees and built garden features such as fences, walls and paving. The street tree planting and pattern of soft and hard road verges also contribute to the landscape character. 2 To conserve, retain and enhance the significance of the garden and landscape character within individual properties, streetscapes and the HCA as a whole. 3 To ensure streetscapes within the HCAs are characterised by front gardens with substantial landscaped area and minimum hard surfaces. Controls 1 The established landscape character (height of the tree canopy, early gardens, remnant trees, historic tree plantings) that contributes to the significance of the streetscape and the HCA as a whole are to be retained and conserved in any new development. The reinstatement of original planting, where known, is encouraged. 2 Original garden features such as gates, paths, stonework, garden terracing, tiling, cement crazy paving, walling and garden edging are to be retained and conserved. 3 New paving and hard surfacing, particularly to front setbacks is to be limited. 4 Front gardens are to: i) have a minimum of 70% landscaped area; ii) include substantial tree and shrub planting along street frontages. 5 Materials for new garden paving or pathways are to be appropriate to the architectural style of the HCA, such as gravel for Federation style and sandstone flagging for Inter-war styles. Plain or stencilled concrete is not acceptable.

Evidence

1. The Applicant relies upon written expert horticultural evidence, by Mr Trevor Hawkeswood, dated 5 May 2017, and an arboriculture impact assessment by Mr Guy Parroissien, dated 9 December 2014. These experts did not participate in the conciliation conference.
2. The applicant also relies upon his visual observations as resident of the site.
3. The respondent relies on written assessments undertaken in August 2018 for heritage and landscape from Ms Kate Higgins and Mr Geoff Bird, respectively, whom participated in the conciliation conference and provided oral evidence based on their observations.

Safety and maintenance

1. The parties agree that T8 is located in a position close to the fence behind a structure that inhibits access for tree maintenance directly from the site. Both parties also agree that proper maintenance of the tree would ensure resident safety (from dropping of fronds), although this would require access from the neighbouring property at 11 Clermiston Ave.
2. The parties agree that T8 is no longer located in the footprint of the approved secondary dwelling, although is located near or within the access path to this dwelling.
3. The primary concern of the applicant with regards to retaining T8 relate to safety and maintenance obligations, which he considers are interrelated.
4. Mr Burns considers the spikey fronds that regularly drop from the tree to be a hazard to those walking beneath the tree, and cites his late wife being injured previously from a frond. He also notes that T8 is currently in a 'dangerous condition' with a lean of 12 degrees, which has been exacerbated over the last 12 months.
5. Mr Burns contends that the maintenance required to ensure T8 in a safe condition is onerous and unreasonable. He does not consider that he would have easy nor reliable access to maintain T8 from the neighbouring property.
6. Mr Paroissien's report (in 2014) notes that T8 is approximately 8 m in height with a diameter at breast height (DBH) of 0.82 m and a canopy spread of 6 m. He considers T8 at the time of inspection to be in good health and vigour, stable with no visual evidence of pest of disease. Based on the tree's age, health and species, he estimates the 'Useful Life Expectancy' ULE for the tree is long, in excess of 40 years.
7. He notes that the tree is partially visible from the streetscape, although does not in his opinion make a significant contribution. He considers that removal of the tree will not result in loss of landscape character, and could be replaced by planting of two 'medium' sized native trees.
8. The report (in 2017) prepared by Mr Hawkeswood identifies the tree as being 12 m in height, aged between 30-40 years and in medium condition with borer damage. He notes that this tree attracts undesirable bird life and vermin.
9. The report by Mr Bird notes that T8 is, in his opinion, in good health and condition, which requires basic maintenance to remove fronds and dead wood. He considers that the tree provides amenity to the site and neighbouring property.
10. In oral evidence, Mr Bird advised that T8 would require maintenance every 4-5 years at a cost of approximately $2000, and although he agreed that the fronds can present a hazard to humans, with proper maintenance this hazard could be mitigated. He considers that with proper and regular maintenance the fronds will not drop.
11. He also considers this species of palm to be characteristic of the area, and is of the same species as planted along the road reserve of Bancroft Street (6-7 palms), which are maintained by Council. He agrees that T8 was planted approximately 35 years ago and is not a heritage item, although can be seen from the street and neighbours.

Heritage significance

1. The applicant suggests that the replacement of T8 with native tree/s of 'medium' height would be more consistent with and make a positive contribution to the character of the Clanville Heritage Conservation Area.
2. The primary contention of Council is that T8 provides heritage significance to the (C32) Clanville Heritage Conservation Area (HCA), and is contributory to the streetscape.
3. Ms Higgins acknowledges that the site is not a heritage item listed in the KLEP 2015. She notes in her assessment report the significance of the HCA as follows: The Clanville HCA has high historic significance as the David Dering Mathew grant of 400 acres called "Clanville", whose boundaries are evident through the following streets; Archbold Road, Boundary Street Pacific Highway and Tryon Road. Successive subdivisions in the late nineteenth century were spurred by the development of the North Shore Railway Line in 1890-1893. This subdivision reflects improved transport connections due to the construction of the North Shore Railway line. Further subdivisions took place in the early twentieth century. The HCA has high aesthetic significance as a cohesive early twentieth century and Interwar development and for the high proportion of quality houses.
4. In oral evidence, Ms Higgins contends that T8 contributes to the HCA, and is indicative of other similar palm species scattered throughout the area, as observed in neighbouring properties around the site.

Is T8 safe to be retained?

1. For the Court to consider the removal of T8 it must be satisfied that the tree: has caused, is causing, or is likely in the near future to cause, damage to the applicant's property; or that it is likely to cause injury to any person. In this appeal, the issue relates to potential injury to a person.
2. Acting Commissioner Fakes addresses the issue of personal safety when assessing the removal of a tree in Butcher & anor v Seeman & anor [2014] NSWLEC 1200, and at [53] states: In regards to injury, the Court considers the risk posed by a tree in the 'foreseeable future' based on the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing. While no time frame has been identified in any judgment, the qualifying statement is intended to require consideration of the supportable facts in the particular circumstances of the matter. The use of the term 'forseeable' should not imply an open-ended time frame, to do so would drift into the speculative realm of "hypothetical possibility" as considered by Craig J in Smith & Hannaford (see [44] of this judgment). While an applicant may hold a genuine fear that something may happen, the Court must apply an evidence-based approach to determine if that fear is reasonably likely to be realised.
3. In Yang v Scerri [2007] NSWLEC 592, the Court found that 12 months was a reasonable time to be considered as the 'near future'.
4. I agree with the applicant and respondents expert that without proper maintenance T8 poses a risk to (secondary dwelling) resident safety. I consider this could be a risk in the near future following secondary dwelling construction. I accept the applicants evidence that his wife was injured previously on a frond from T8, although do not know if this was due to dropping of a frond or during maintenance.
5. Council have not provided in evidence any risk assessment detailing maintenance by Council along Bancroft Street for similar trees to ensure safety is maintained. It is therefore not possible for the Court to verify the maintenance requirements for T8 as suggested by the respondents expert and whether the applicant is able to achieve them to properly address safety.
6. Therefore, there remains an element of risk, as I recognise that the maintenance of T8 relies on access from the neighbouring property, which by the admission of Mr Burns is not assured. The Court acknowledges there is no obligation on the neighbour to provide access.
7. I also accept that T8 is located in an area where the prevention of dropping fronds is required to ensure safety for access to the approved secondary dwelling.
8. The issue of general maintenance from leaves and bark from a tree is addressed by Commissioners Moore and Hussey, and Acting Commissioner Fakes in Barker v Kyriakides [2007] NSWLEC 292 where they state that at [20]: For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.
9. However, I find that this does not apply in this appeal as the spikey fronds of T8, could not be considered as 'small elements', being larger than 1 m in length with an indeterminate weight that could do significant damage if they were to fall on a person.
10. I consider that T8 is not in an appropriate location, with regards to safety, close to the pathway of an approved secondary dwelling.
11. The requirement for access from the neighbour's property to maintain T8 places an unreasonable burden upon the applicant, whereby the risk to safety cannot be adequately mitigated without a reasonable presumption that maintenance can be undertaken at appropriate intervals to prevent fronds causing injury.
12. Relevant for consideration here is:

• The tree is in a location that makes effective maintenance untenable from the applicants property;
• The tree will continue to grow taller as it has a long life span and will require more dedicated maintenance to ensure safety; and
• Removal of the tree will effectively mitigate the risk for residents of the secondary dwelling from injury from fronds.

1. Both experts agree that T8 poses a risk to safety without proper maintenance. After considering the evidence and the discretionary matters, including the location of the tree on the path to the approved secondary dwelling and the constraint in gaining access to ensure maintenance, I am satisfied that the removal of T8 is justified to reduce the risk of future injury.

Is T8 of heritage significance?

1. It is acknowledged that the site is located within the Clanville HCA, although neither the dwelling itself, nor T8 are heritage listed items. The issue therefore to be resolved is whether T8 contributes to the heritage significance of the HCA.
2. The experts agree that T8 is partially visible from the streetscape, which is obstructed due to the location of the shed at the front of the site. I note the photo on the front cover of Mr Paroissien's report clearly shows the canopy of T8 at the height of the existing dwelling which blends well with the existing structures on the site.
3. The description of the Clanville HCA provided in the KLEP 2015 makes no reference to these palms as being of contributing significance and they are not considered a remnant nor native species. The Respondent has provided no written evidence of the historic significance of the Phoenix canariensis, Arecaceae to the HCA.
4. I agree with the suggestion of the applicant that native tree/s of 'medium' height are an appropriate replacement of T8, and would be consistent with the character of the Clanville HCA, as described in the KLEP 2015.
5. Due to its height, I observe that T8 does not provide any privacy benefit to neighbouring properties. I concede that T8 is visible from neighbouring properties, however it does not provide any significant amenity benefit to neighbouring properties, and may even contribute adverse impact if the observations by Mr Hawkeswood of undesirable birdlife and vermin are considered.
6. The experts agree that T8 is approximately 35-40 years old, not part of the original or historic tree planting in the HCA, which would have occurred around the 1890's and contributes 'limited' significance to the streetscape. Therefore, I find that the removal of T8 is not inconsistent with the relevant control in Part 19C.3(1) and achieving the objectives in Part 19C.3 of the KDCP 2016.
7. For the reasons that T8 provides no 'significant' contribution to the streetscape and that this tree is not an 'original planting' in the HCA, I also find that the removal of T8 would not be inconsistent with relevant cl 5.10(2)(iii) and cl 5.10(4) of the KLEP 2015.
8. I accept the conditions of consent as provided by the respondent for the removal of a Phoenix canariensis, Arecaceae, referred to as T8. These conditions are provided in Annexure A of the orders.

Orders

1. Consequently, the orders of the Court are as follows: 1. The appeal is upheld. 2. Amended Development Application DA0234/17 for Lot 15 DP 6535, known as 9 Clermiston Avenue, Roseville for the removal of a Phoenix canariensis, Arecaceae, referred to as T8, shown on Plan 12329, Rv 00, dated 7 August 2014 is approved, subject to the conditions in Annexure A. 3. The Exhibits are returned. ……………………. Sarah Bish Commissioner of the Court Annexure A (88.1 KB, pdf)

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