Gibson v The Council of the City of Sydney [2025] NSWLEC 1361 | Case summary | Zoe

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Gibson v The Council of the City of Sydney [2025] NSWLEC 1361 | Case summary | Zoe

| Issue | Policy Statement | | Assessment and determinations | We use tree assessment procedures, based on industry standards to ensure consistency in the approach to determining tree removals. The retention of significant, healthy, and structurally sound trees is a priority. We approve the removal of trees that are in poor health or have significant structural defects. We will also approve the removal of trees where there is significant damage to an approved habitable structure or significant infrastructure, where it is demonstrated the tree’s removal is the only option available to address the issue. Tree removal is not permitted to facilitate views (including advertising signs), off-street parking, installation of solar panels, to reduce the extent of leaf / flower / fruit drop, or to reduce the impact from any bird / bat / other animal waste or noise. | | Emergency situations | Risk to public safety and property takes priority in tree removal decisions in emergency situations. | | Public tree removal notifications | We notify the community of a planned street or park tree removal by placing a notification sign on the trunk, for a period of up to 14 days, confirming the reason for removal and the replacement planting proposed. | | Poor performing trees | We remove and replace poorly performing trees to reinvigorate the urban forest. | | Weed species | We undertake the staged removal and replacement of trees classified as noxious or environmental weed species. The impacts to canopy cover is a key consideration in removing trees as part of this process. | | Poisoned or damaged trees | We will consider the retention or delayed removal of appropriate trees that have been poisoned or otherwise damaged. These trees will be managed until they are removed and/or replaced. | | Age diversity | We aim for a sustainable spread of our street and park tree age classes (e.g. young, semi mature, mature, over-mature) to minimise the impact of high numbers of tree removals required within short timeframes and / or within specific areas as a result of age over-maturity. | | Capital works improvements | We will develop strategies for the installation of new plantings, where feasible, prior to tree removal required for capital work projects.” |

An additional contention is raised by the applicant in these proceedings regarding damage to the adjacent concrete driveway which the applicant states is caused by the tree roots.
Mr Gibson no longer relies on the arboricultural impact statement prepared by Advanced Arborist Reporting that accompanies application TPR/2024/54, and now relies on the assessment and expert evidence of Ms Mackenzie. The outcome of the new AIS and subsequent joint reporting is that it is agreed that the tree is of good health and vigour, and this contention is no longer pressed.
Should the tree be removed, the application requests, and agreed conditions of consent confirm, that the Cedar would be replaced with two smaller, alternative tree species. This would likely result in canopy loss of over 50%, which the arboricultural experts agree would have an immediate, minor effect of reduction of the total existing canopy in the entire local government area (Ex 4). Ms Mackenzie goes further to state that, in her opinion, the effect on local tree canopy cover would be minor.
The tree is located directly adjacent to a concrete driveway which has some visible displacement and cracking. Mr Gibson contends that the roots of the tree are causing lifting and cracking of the concrete slab of the driveway. In support of this contention, an expert report was provided by a structural engineer, Mr Art Candarakis (Ex D). Mr Candarakis states in his report that the displacement and cracking is the direct result of the growth of roots from this tree. He provides three options to rectify this damage, including repairing the slab, replacing the slab with a pier and beam construction, and removing the tree, but concludes that the first two options are impractical and recommends removal of the tree.
However, in oral evidence, Mr Candarakis accepts that there are alternative paving types to concrete slabs that could be suitable and practical in this instance. He also accepts that the highly reactive clay soil upon which this slab is constructed may have also contributed to the damage to the slab, and that there has been no detailed investigation to conclude the extent of actual root damage.
Further, I note that the driveway and carport in question were built some time after the tree was planted, and so the applicant’s submission that this tree is an entirely inappropriate species for its proximity to these structures is unjustified. On the basis of this evidence, I do not accept that damage to the driveway is definitively caused by the tree, and is therefore insufficient reason to justify removal of the tree on these grounds.

The Council submits, and I accept, that this is not an emergency situation that results in risk to public safety and property. However, although leaf drop contributes to the cause of Mr Gibson’s dermatitis, it is reductive to state that this application is requested based on a desire to reduce the extent of leaf drop. The application is to remove the tree from which leaves (needles) directly cause an allergic reaction, and therefore the established principle in Barker v Kyriakides [2007] NSWLEC 292 on whether the Court’s discretion should be exercised against a tree dropping leaves is not relevant here.
The Council refutes the basis of the medical evidence by claiming that taping Cedar needles to one’s arm represents an extreme and unrealistic scenario. The applicant submits, and I concur, that this misconstrues the purpose of a patch test, which is not to demonstrate the effects of contact over a long duration, but to demonstrate a sensitivity to a particular allergen. This test was conclusively positive (Ex C).
The Council further submits that Mr Gibson’s condition is not severe because severity is only determined by Dr Frame, not Dr Baumgart. I accept that having confirmed the condition with an immunologist, Dr Frame, as a qualified medical doctor and general practitioner, is suitably qualified to determine the degree of Mr Gibson’s condition which she determines is “severe”.
Based on Ex E, the Council states that Mr Gibson’s condition is manageable through reasonable mitigation methods such as reducing contact with the tree, showering after contact with the tree, washing his clothes after working under it and drying them inside, and taking antihistamines when necessary. They also suggest that Mr Gibson should have undertaken due diligence regarding his health upon purchasing the property, knowing that he had a medical history of asthma and allergies.
No information is provided in evidence regarding antihistamines or other medication for ongoing treatment of Mr Gibson’s condition. The recommended management of this condition as stated by Dr Baumgart is to minimise direct contact with the offending allergen. I do not accept that Mr Gibson had any ability to undertake health-related due diligence regarding this tree at the time of purchase, as at that time he was unaware of his sensitivity to this tree, contrary to the example cited by the Council in Tuft v Piddington [2008] NSWLEC 1249*.*
Regarding the minimisation of contact with the needles, as I was directed to observe on site, whilst the canopy only covers a portion of the back yard, it does drop fine needles that distribute throughout the garden, and are difficult to avoid as the garden is small and contained. I accept Mr Gibson’s sworn evidence that contact with the needles occurs both in the garden and inside the house when carried in on shoes, and that removing contact with the offending allergen is difficult. I also accept from Exs C and E and that his allergic reactions are ongoing.
The Council further submits that “minimising contact with the offending allergen” could be done through wearing long-sleeved shirts and gloves, however Dr Frame states that this is unreasonable as any activity outside risks accidental exposure to the very fine needles, with “significant health consequences” (Ex C).