Kooloth v Ku-ring-gai Council

Land and Environment Court (NSW)|2019-10-14

Judgment

COMMISSIONER: This appeal made by Nanda Kooloth pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) is against the 'Determination of Development Application' DA0423/17 for alterations and additions at 11 Bell Street, Gordon ('the site') by Ku-Ring-Gai Council ('Council') dated 27 June 2018. Specifically, Mr Kooloth seeks review of Condition 49 of the consent, requiring the retention of Tree 16, a Cedrus Deodara (Himalayan Cedar) and amendment of any flow-on conditions from its retention (for example, conditions for tree protection).

Relevant background

The application for additions to the site's residential dwelling included removal of some trees, one of which was the Himalayan Cedar. Council considered the tree's condition, its contribution to the local landscape, and relevant parts of the Ku-ring-gai Local Environmental Plan 2015 (Ku-ring-gai LEP). Council's determination, consenting to the building works, included a condition that the Himalayan Cedar be retained.
Mr Kooloth is concerned that the Himalayan Cedar is damaging his dwelling and will continue to do so. He is worried it poses a risk of injury to his family. He wishes the Court to approve its removal.

The hearing and evidence

A conciliation conference began onsite to allow a view of the situation before returning to Court. When it was clear that the parties would not reach agreement, I terminated the conference and proceeded directly to a hearing.
Mr Kooloth relied on evidence from Craig Martin, consulting arborist, and Ralph Erni, geotechnical engineer. Council, represented by Mr Ede, relied on evidence from Guy Paroissien, consulting arborist. The arborists, Mr Martin and Mr Paroissien, prepared a joint report outlining their areas of agreement and contention.

The planning framework

The site is zoned R2 Low Density Residential pursuant to the Ku-ring-gai LEP. It is within the Love Estate, Thorne Grant Heritage Conservation Area (HCA14).
The aims of the Ku-ring-gai LEP are set out at cl 1.2. I include relevant points below. 1.2 Aims of Plan (1) This Plan aims to make local environmental planning provisions for land in Ku-ring-gai in accordance with the relevant standard environmental planning instrument under section 33A of the Act. (2) The particular aims of this Plan are as follows - (a) to guide the future development of land and the management of environmental, social, economic, heritage and cultural resources within Ku-ring-gai, (b) to protect, enhance and sustainably manage the biodiversity, natural ecosystems, scenic values, water resources and ecological processes within the catchments of Ku-ring-gai for the benefit of current and future generations, (c) … (d) … (e) … (f) to recognize, protect and conserve Ku-ring-gai's indigenous and non-indigenous cultural heritage, (g) … (h) … (i) … (j) … (k) … (l) to facilitate development that complements and enhances amenity for residential uses and public spaces.
The general aims of the Ku-ring-gai Development Control Plan 2016 (Ku-ring-gai DCP) are set out at Part 1A.5, with the relevant aims shown below: "1A.5 General aims of the DCP The general aims of this DCP are as follows: i) Establish a future character for Ku-ring-gai, and ensure that development across the Local Government Area positively contributes to the existing character of the residential areas; ii) … iii) … iv) … v) … vi) … vii) … viii) … ix) Ensure the heritage significance of the Heritage Items and Heritage Conservation Areas is conserved, and encourage development which respects that significance; x) … xi) Ensure the long term survival of Ku-ring-gai's native and exotic tree and vegetation cover; xii) … xiii) …"
Part 4 of the Ku-ring-gai DCP, "Dwelling Houses", includes landscaping controls at Part 4A.4 Landscaping: "Controls Tree retention 1 Landscape proposals are to retain existing trees, where possible. This may be achieved by: i) minimising changes to existing ground levels; ii) confining building works where appropriate to pre-existing building footprints."
Part 13 of the Ku-ring-gai DCP deals with "Tree and Vegetation Preservation". Exemptions to the tree and vegetation controls are at Part 13.2: "13.2 EXEMPTIONS FOR TREE AND VEGETATION WORKS Controls This section explains when approval from Council is required to carry out tree or vegetation works, pursuant to the provisions of Clause 5.9 of the KLEP 2015. These exemptions do not apply on land that is a heritage item or within a heritage conservation area. Works on heritage items and within heritage conservation areas are addressed within Part 13.3. Exemptions The following are exempt works: 1 … 2 Trees and other vegetation within 3m of an existing dwelling i) trees and other vegetation within 3m of any existing dwelling are exempt. The 3m distance is measured from the centre of the trunk of the tree / base of the plant at ground level to the external wall of the dwelling. - provided the owner of the land on which the trunk of the tree is located is in agreement and gives consent prior to the tree works. Note: Trees (Disputes between Neighbours) Act 2006 may apply ii) trees and other vegetation within 3m of verandahs, carports, detached garages, and ancillary buildings, cantilevered and pier supported structures such as balconies and decks are excluded from this exemption. 3 … 4 … 5 … 6 … 7 … 8 … 9 …"
Part 13.3 of the Ku-ring-gai DCP describes controls and exemptions for tree and vegetation preservation within Heritage Conservation Areas, including: "Under Clause 5.10 of the KLEP 2015, development consent is required to undertake works in relation to a tree or vegetation that is or forms part of a Heritage Item or is within a Heritage Conservation Area. However, development consent may not be required in the following circumstances…" The exemptions from consent include examples such as proposed works of a "minor nature", works that "would not adversely affect the heritage significance" of the Heritage Conservation Area, and removal of hazardous trees, but such exemptions require Council's written consent.

Condition of the tree

The arborists, Mr Martin and Mr Paroissien, agreed that the Himalayan Cedar is a healthy tree with no major defects in its crown. It has not been pruned recently and would benefit from some pruning for crown maintenance. It is suitable for retention and could be expected to stand here for some time. Mr Martin thought the tree has a useful life expectancy (ULE) of 15-40 years, while Mr Paroissien thought its ULE is greater than 40 years. The tree is likely to be some 60-80 years old, planted around the same time the dwelling was built.

Contribution of the tree to the Heritage Conservation Area

Himalayan Cedars were commonly planted during the development of this area and there are others in the neighbourhood.
Both arborists used systems developed by the Institute of Australian Consulting Arboriculturists (IACA) for rating the tree's significance and its retention value.
Mr Martin thought the tree has medium significance in the landscape. The tree stands in the back garden of the site. He said it can be seen from some viewpoints in the street, but not from all parts of the street.
Mr Paroissien thought the tree has high significance in the landscape. He said it is highly visible when one turns into Bell Street, and is a dominant feature of the landscape. In the IACA system, a tree must meet three criteria of significance to reach a 'high' rating. Mr Paroissien said the tree meets the following three criteria: "- The tree is in good condition and good vigour; - The tree has a form typical for the species; - The tree is visually prominent and visible from a considerable distance when viewed from most directions within the landscape due to its size and scale and makes a positive contribution to the local amenity."
I prefer Mr Paroissien's findings regarding tree significance. The tree is approximately 22 metres tall and can be seen from a considerable distance along the street. It contributes to the amenity of the site and adjoining properties as well as to public amenity. Its form is fairly typical for the species. This exotic species forms a part of the fabric of the local landscape character. Its retention is compatible with, and satisfies, the aims of the Ku-ring-gai LEP at [7] above and the general aims of the Ku-ring-gai DCP at [8] above. The tree contributes to the landscape character of the Love Estate Thorne Grant HCA.
Considering the above, and in light of the landscaping controls at Part 4 of the Ku-ring-gai DCP, the tree should be retained if this is reasonably possible.

Is the tree exempt from planning controls?

In their joint statement Mr Martin and Mr Paroissien agreed that the Himalayan Cedar is not exempt from planning controls. Although the tree is less than three metres from a part of the dwelling, that particular exemption does not apply in Heritage Conservation Areas. However they agreed that the issues relating to trees close to dwellings, and that give rise to such exemptions, apply regardless of a property's heritage status. Those issues include the likelihood of a tree causing damage to the dwelling.
During the hearing, Mr Paroissien pointed out that the less-than-3-metres-from-a-dwelling exemption would not apply to the Himalayan Cedar regardless of the Heritage Conservation Area, as the wall near the tree supports a verandah rather than the main part of the dwelling. Part 13.2 of the DCP explains that "…trees and other vegetation within 3m of verandahs, carports, detached garages, and ancillary buildings, cantilevered and pier supported structures such as balconies and decks are excluded from this exemption."
It is clear from the above that a permit would be required for removing the Himalayan Cedar. That an exemption to controls usually applying to trees does not apply within the HCA, is recognition within the Ku-ring-gai DCP of the additional importance of trees to the landscape character of the HCA. This is not to say that such a tree can't be removed, only that it deserves further consideration in making a determination rather than being automatically exempt.

Would tree removal be appropriate within the Ku-ring-gai DCP's framework?

The Ku-ring-gai DCP aims to preserve the treed landscape character by retaining native and exotic trees. The Himalayan Cedar meets none of the exemption criteria. Mr Kooloth stated that he applied for a permit to remove the tree in 2016, but Council refused the application.
Mr Kooloth's principal concerns regarding the tree include damage it is doing to his dwelling and the fear of injury to his family from limbs falling or the whole tree falling. Council's "Application to Prune or Remove Trees on Private Property" form includes criteria to be considered when determining tree removal applications. On page 7 of the form, "Criteria NOT considered justification for tree removal or pruning" includes: "1.15 Unsubstantiated fear of tree failure". Criteria which may be justification for tree removal include: "2.3 Where the tree is causing substantial and continuing structural damage to a dwelling or substantial structure (excluding footpaths, retaining walls, driveways and fences) and remedial actions are not feasible or practical. A structural engineering assessment may be required to support these criteria."

Risk of tree failure

There is no evidence that failure of the Himalayan Cedar is likely. Mr Martin and Mr Paroissien agreed that the crown is structurally sound and that any risk of limb failure can be satisfactorily addressed through routine pruning. Mr Martin thought that the shallow rock shelf might restrict root growth, so there is some risk of failure. This was a theoretical possibility only - he did not find any signs that such failure was likely. Mr Paroissien agreed that there might be some limits on root growth, but the tree has grown in this environment and he did not think tree failure was likely. I find his explanation best describes the situation - the tree has been able to grow within these conditions and roots have developed where needed. Despite Mr Kooloth's assertions that the soil in the tree's root zone is restricted by a shallow rock shelf, there is no evidence that total tree failure is likely. His fear of tree failure is unsubstantiated.

Damage caused by the tree

Mr Paroissien concurred with Mr Martin, and Council accepted, that the Himalayan Cedar's roots growing beneath the verandah's supporting wall had contributed to the wall's damage. Mr Martin carried out root mapping that found two significant structural roots from the tree growing beneath the block wall. The arborists agreed that upward force caused by root growth has contributed to damage, rather than roots lifting or moving when the tree is blown by wind.
Mr Erni, geotechnical engineer, was also of the view that these roots have pushed up and cracked a section of the block wall. He said roots might continue further beneath the dwelling and be the cause of a crack in an internal wall that was repaired some time ago. However roots have not been traced beyond the block wall, and Mr Erni conceded that the cause of damage beyond the block wall was only speculative.
The tiled verandah surface above the block wall appeared level and undamaged, with no signs of cracking. Mr Kooloth said that water pools sometimes on the verandah. No evidence of its cause was provided, and it could equally be due to subsidence in places.
Mr Kooloth's development application, which includes extensive works and additions to the dwelling and the installation of a swimming pool, did not show any works to occur on this block wall supporting the verandah. During the hearing, Mr Kooloth submitted that the wall was an integral part of the dwelling and any loss of its structural integrity put the entire dwelling at risk. Mr Ede showed historic plans indicating that the verandah was added to the dwelling around 1952, so it is not integral to the remainder of the dwelling.
Once Council made the tree's retention a condition of the development consent, the onus was on Mr Kooloth to demonstrate that "remedial actions are not feasible or practical" (see [23] above). Prior to the hearing, Mr Erni had not been asked to turn his mind to any engineering solutions that would repair the wall without damaging the tree or requiring its removal.
At the hearing, Mr Erni contemplated and described the repairs that might be required if the tree is retained. At the section of the block wall near the two tree roots, one or two rows of block would need to be removed to enable a beam to be inserted above and clear of the roots, supporting the rest of the wall above. The beam would require support from piers or some other foundation. Considering the proximity of the rock shelf, piers could be installed into rock. Mr Paroissien thought the works could be done in stages, one for each tree root, so that the tree would not temporarily lose all support that the wall might be providing to the two roots. Such works have not been specified or costed, however on Mr Erni's explanation the works sounded both feasible and practical.
Mr Ede pointed out that a geotechnical report accompanying the development application found that tree roots are unlikely to cause significant damage in future, as the tree is mature and growing slowly.
Mr Kooloth submitted that tree roots might damage his pipes. Both arborists agreed that any damage of this sort could be prevented by replacing any old terracotta pipes with PVC pipes.

Is tree removal required?

All elements of the development application can proceed without removing the Himalayan Cedar. In Barrett v Blue Mountains City Council [2011] NSWLEC 1341, Brown ASC considered a range of arboricultural evidence in determining whether removal of a significant tree should be approved as part of the development consent. In that case, the tree's retention (regardless of its structural issues) would have limited the development potential of part of the site. The tree was a significant factor in Council's decision to refuse the application. Retention of the tree would have interfered with the applicant's proposal. In the matter before me, retention of the tree would not prevent any element of the proposed development proceeding.

Conclusion

Condition 49 of the development consent, requiring retention of the Himalayan Cedar, is consistent with the aims of the Ku-ring-gai DCP. The tree contributes to the character of the Heritage Conservation Area in which the site is located. Its retention does not prevent any element of the approved development from proceeding.
Pursuant to the Ku-ring-gai DCP, removal of the Himalayan Cedar would ordinarily require a permit. Mr Kooloth has previously applied for, and been refused, permission to remove the tree. In making this decision, I have also considered the criteria that Council is required to consider when determining a tree removal application. Although the tree is damaging a block retaining wall that supports the dwelling's verandah, a solution for the wall's repair that allows retention of the tree seems feasible and practical. Mr Kooloth has not presented evidence to the contrary.

Orders

As a result of the foregoing, the Court orders: 1. The appeal is dismissed. 2. The exhibits, apart from Exhibit A, are returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2019

At a glance

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Judgment (14 paragraphs)

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