Lawrence Reed v Inner West Council - [2017] NSWLEC 1038 - NSWLEC 2017 case summary — Zoe

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Lawrence Reed v Inner West Council

[2017] NSWLEC 1038

Land and Environment Court (NSW)|2017-01-18

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2017-01-18

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

JUDGMENT

Mr and Mrs Reed, the applicants and owners of a property in Young Street, Annandale are appealing, pursuant to s97 (1) (a) of the Environmental Planning and Assessment Act 1979, the refusal by the respondent of Development Application D/2015/445 and subsequent s82A review DAREV/ 2016/4 in respect of two trees on their property.
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, and its associated documents continue to apply.
In August 2015 the applicants sought approval in D/2015/455 for the removal of three trees on their property (Exhibit 3, folio 120 - 125). The application did not provide identification to species level of the trees concerned, but there is agreement that they are a Bangalow Palm and an Arizona Cypress, both in the front yard of the property, and an English Oak at the rear.
On 21 October 2015 the respondent wrote to the applicants refusing the application in respect of all three trees (Exhibit 3, folio 156 - 158).
Following the refusal, the applicant sought advice from a structural engineer regarding the tree, the English Oak, at the rear of the property and the report of Mr. Kantouros of Ross Engineers dated 10 December 2015 is included in the Class 1 application (Exhibit. A). Mr Kantouros concluded that: "Should the tree remain, there is a high probability trunk and root growth in the near future will undermine the structural integrity of the masonry support walls resulting in major demolition and reconstruction works. In addition three roots have already caused severe damage to external concrete paths and drainage systems. To avoid future costly building repair works, I recommend that the tree preservation application for its removal be lodged with Council…."
In February 2016 the applicant sought a s82 review (Exhibit 3, folio 155) of the decision on D/2015/455. On 20 April 2016 the respondent council wrote to the applicants revising the original determination so as to permit removal of the Arizona Cypress but continued to refuse removal of the English Oak and the Bangalow Palm. The approval to remove the Cypress has been acted upon.

[3]

The proceedings

The matter commenced on site as a mandatory conciliation under s34AA of the Land and Environment Court Act 1979. Present were Mr and Mrs Reed, the legal representatives of the parties, Mr Sattler for the applicants and Mr Bonanno for the respondent council, and the parties' experts - arborists Mr Jackson (applicant) and Mr Mogensen (council), and, for engineering matters, Mr Kantouros (applicant) and Ms Hunt (Council). The experts had earlier participated in a joint conference and had prepared a Joint Expert Report (Exhibit 2).
The view commenced with examination of above ground features including the deck, the Oak tree, and external signs of damage to walls and paths. Entry was available to the space under the deck, which was examined. The thick covering of fallen oak leaves, visible in Plate 1 of the Joint Expert Report was pushed aside in places to locate and expose the wall and pier footings. The under floor space at the rear of the house was also inspected. The property was also viewed from the eastern side of Young Street to observe the appearance of the Oak tree canopy above the roofline and to assess the contribution of the Oak tree to the broader streetscape.
Matters observed on the view covered those discussed in the Joint Expert Report but a number of new issues were canvassed. It was agreed between the parties that the Court could have regard to these extra issues arising from the view, and that the opinions expressed in regard to them by the experts were to be taken as evidence in the matter.
At the conclusion of the view, there was an adjournment to Court where the conciliation phase continued for a short time, until, it being clear that no agreement could be reached, conciliation was terminated and the matter moved to a hearing. Prior to commencement of the hearing it was agreed by the parties that the evidence already heard from the experts would be taken into account and that there was no further need for the experts to be present.
Before turning to consideration of the substantive issue in the proceedings there are three other matters that should be briefly mentioned.

[7]

The planning framework.

The property on which the Oak Tree is situated is within the area covered by the Leichhardt Local Environmental Plan 2013. The site is zoned R1 General Residential, and the proposal is permissible with consent.
Clause 5.9 of the Local Environmental Plan deals with the preservation of trees and vegetation: 5.9 Preservation of trees or vegetation (1) The objective of this clause is to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation. (2) 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. (3) 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: (a) development consent, or (b) a permit granted by the Council.
The Leichhardt Development Control Plan (DCP) 2013 section C1.14 deals with Tree Management and includes four objectives: a. improving visual and physical amenity; b. improving environmental quality; c. providing important habitats to local fauna and facilitating biodiversity; and d. contributing to cultural heritage.
The DCP includes at Part C Place in C1.14.2 C1 a a list of exempt species which might be pruned or removed without Council approval. English Oak (Quercus robur) is not included in the list of exempt species.
If trees do not fall within the exemptions in C1 .4 .2, they are prescribed trees as defined in C1.14.3; C1.14.3 Prescribed trees C2 A prescribed tree is: a tree of more than six (6) metres in height and having a trunk diameter of more than 200 millimetres when measured at a height of 1.4m from the ground, growing on privately owned land; or b. a tree that is or forms part of a Heritage Item or is within a Heritage Conservation Area; but c. excludes any tree listed as an exempt species as outlined within C1.14.2 - Work that may be carried out without Council approval.
The English Oak is a prescribed tree by virtue of reasons a and b. The site is situated within a Heritage Conservation Area (Exhibit 5). Under the heritage conservation provisions of the LEP (cl. 5.10), development consent is required 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.
The property is also situated within the Young Street Distinctive Neighbourhood, Annandale (DCP 2013 Part C Place (section 2 - Urban Character), Figure C 21). Among the controls applicable to the area is: C9 Maintain the prevalence of street trees in addition to mature and visually significant trees on private land.

[9]

The Tree

English Oak is a deciduous species native to temperate Europe. At the time of the on site inspection in January the tree was in full leaf.
The tree trunk emerges through an octagonal opening in the north west quadrant of the deck, the trunk leans slightly towards the north-west and is in contact with the deck on the north-west side of the opening. About a metre above the deck the major branches emerge - see photograph below. Photograph from Mr Kantouros' report of December 2015 in Exhibit A
The experts agreed that the tree was probably about 70 - 80 years old, and that it could be regarded as mature, and had a long life expectancy. The tree was not distinguishable in the earliest available aerial photographs, but could be seen in later photographs from the 1960s onward (Exhibit 3, folio 162 - 163). The tree was obviously well established when the deck was constructed with the opening through it to accommodate the trunk.
The arboricultural experts in the Joint Expert Report agreed (page 3, para 13 a) that "The English Oak shows good vitality and form, with recent removal of dead wood " the experts also concurred (page 3, para 13b) "the English Oak makes a significant and immediate contribution to the surrounding landscape."
Claimed damage to structures was discussed in Mr Kantouros' report of December 2015 (included in Exhibit A), and the opinions of Mr Kantouros and Ms Hunt are included in the Joint Expert Report. On site a number of additional issues were raised. Mr Sattler provided a handwritten list of damage (Exhibit B). On site the additional examples of damage identified which were not discussed in the Joint Expert Report were:

to the external wall of the neighbouring property to the south in Young Street, slight displacement of the lower courses of bricks was demonstrated by Mr Kantouros, although no cracking was observed;
to the external rear wall of the dwelling as observed from within the underfloor space. There are some displacement of bricks and cracking.

Damage to the external concrete pathways, external walls and the tiling on the deck, which was discussed and illustrated in the Joint Expert Report, was observed on site
It is worthy of note that during the on-site inspection under the deck, it was observed that the most substantial of the piers, approximately in the centre of the deck, and the pier closest to the tree, did not show any apparent displacement of bricks or cracking of either bricks or mortar. The underside of the deck does not show any apparent damage.

[10]

Is the tree the cause of the damage?

It was agreed that the tree could be applying pressure to the structure in two ways; by the direct contact of the trunk against the north-west sector of the octagonal hole, and through pressure applied by the root system extending under walls and paths
The arborists in their joint report calculated the Tree Protection Zone (TPZ) as having a 11.64 m radius from the centre of the tree, and the Structural Root Zone (SRZ) of 3.51 m radius from the centre of the tree. The rear wall of the house is circa 3.2 m from the tree so that the SRZ extends under the house. The walls under the deck are also likely to be in or close to the SRZ.
The actual distribution of roots around a tree will be influenced by many factors; the concept of the SRZ is a useful tool, but Mr Mogensen advised (Joint Expert Report at paragraph 15) that "root-mapping has not been undertaken to identify the extent of the root-plate or any major roots."
The experts agreed that the tree has been responsible for damaging structures, although Ms Hunt during the on-site discussion suggested that there may be other contributory factors, pointing in particular to the lack of an expansion joint between the concrete slab of the deck and the house.
This case involves the application of planning law and not the Trees (Disputes Between Neighbours) Act 2006. Nevertheless judgements made under the Trees Act may be of assistance in this matter.
The operation of the Trees (Disputes Between Neighbours) Act 2006 requires that there be a nexus between the tree or trees the subject of the application and any damage, or likely future damage, to property or likely injury to a person (in s10 (2)). Preston CJ in Robson v Leischke [2008] NSWLEC 152 at [179] stated that 'the tree need not be "the cause "of the damage to property or likely injury to any person; it will be sufficient if the tree is "a" cause
Applying this to the present case I need to be satisfied that the tree is a cause of the damage, but not necessarily that it is the only cause, before going to the next stage of analysis.
However, what must be demonstrated to give satisfaction that the tree is contributing to, or is the sole cause of, damage? In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 this issue was addressed by Craig J. That case involved determining whether a Sydney Blue Gum. through force exerted by its roots, was responsible for cracking the footings and walls of a building on an adjoining property. Investigation of the situation involved digging trenches to expose both roots and footings, and also calculation of forces generated by the observed roots. The majority of the experts agreed that the roots were not responsible for the cracks and Craig J. adopted ( at [62]) the respondent's submission that "something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes Between Neighbours) Act to make an order to remedy, restrain or prevent damage as a consequence of the tree".
In the present case the evidence contained considerable speculation, but the respondent has conceded that the tree has caused some damage to structures. However, in regard to some of the damage which was raised on the inspection, the threshold set by Smith & Hannaford is not reached.
The alleged damage to the neighbouring property involves slight displacement of bricks and no apparent cracking. There was no information about how long the brickwork had been in this state, there is no information about whether the external appearance could be a manifestation of damage from within the property, the concrete pathway between the south wall of the deck and the neighbouring property has not cracked or displaced (unlike other parts of the pathways around the deck) and there was no evidence that the neighbour had at any time raised issues regarding this wall.
The damage to the rear wall of the house may be within or close to the SRZ, but there is no root-mapping to determine whether there are growing roots in this position. There is apparently no evidence of damage within the house, and Ms Hunt's suggestion that the absence of an expansion joint may be causing pressure on the wall has not been investigated.
It was claimed that the drain along the edge of the path to the west of the deck (which can be seen in photo 4 in Mr Kantouros' December 2015 report) was non-functional because it had been displaced by the tree. Displacement and lack of function has not been demonstrated. During the on site inspection Ms Hunt removed, by hand, a considerable amount of composted leaf litter from under the central grill. It would appear there has been no routine maintenance for some time and it is possible that, if maintenance were to occur, functionality could be restored.

[11]

Assessment

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. 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.
Criteria for assessment are given in the DCP at C1.14.7 C1.14.7 Criteria for assessment C 13 In considering whether to grant a tree permit or development consent to remove a prescribed C13tree, Council will consider whether the tree is unsuitable for site conditions. A tree may be considered by Council to be unsuitable for site conditions if, as set out in the Tree Management Technical Manual, Council is satisfied of any of the following: a. the tree is located where the prevailing environmental conditions are unsuitable; b. the tree is in a state of irreversible decline or is dead; c. the tree poses a threat to human life or property; d. the tree is causing significant damage to public infrastructure which cannot be remediated by any other reasonable and practical means; e. the replacement of damaged or failed sewer pipes or storm water lines cannot reasonably be undertaken with the retention of the tree; f. the tree is not deemed to be a tree of landscape significance; and g. replacement planting can better achieve the objectives of this section of the Development Control Plan within a reasonable time. h. the tree is the primary and agitating source of a medical condition, which cannot be effectively treated/alleviated without the removal of the tree as a causing factor. Council may consider removal where an application is supported by a medical certificate from a practicing and specialist medical practitioner (e.g. immunologist or allergy specialist) demonstrating that there is a direct link between the subject tree and the owners illness. Where the tree is considered to be of landscape significance and can only be identified as one contributing factor of many within the surrounding landscape with its removal likely to provide no overall benefit or medical relief (e.g. where allergens are airborne etc.), removal will not be supported. Note: A report from a suitably qualified arborist (minimum qualification AQF level 5 Arboriculture) using appropriate assessment methodologies set out in the Tree Management Technical Manual should be submitted to Council as per Council's Specifications for Development Application Documentation. C14 If the tree is said to be the cause of existing or future damage Council may require the C14 applicant to submit a report prepared by a Consulting Engineer to establish the damage is or is likely in the future to be caused by the tree and to examine feasible alternatives for the remediation of the impacts without the removal of the tree. Note: Unsubstantiated opinion relating to the damage caused by the tree is considered an unsatisfactory basis for recommending the removal of a healthy and/or structurally sound tree. A demonstrated link must be established and the damage. Refer to Tree Management Technical Manual. Further details of methodologies required to document a case for removal are provided in the Leichhardt Council Tree Management Technical Manual.
In determining whether to grant development consent for tree removal the consent authority must consider whether the tree is unsuitable for site conditions. The Tree Management Technical Manual expands on this, in Section 3.1 b '"b whether it can be demonstrated that the tree is unsuitable for site conditions including: soil type and depth or other prevailing environmental conditions insufficient space available for future growth and development inappropriateness of the position relative to underground over overhead services, structures or building Importantly the note accompanying section 3.1 b states…… "It must be demonstrated that the identified issues cannot be remediated by any other reasonable practical means"
The question posed in C 1.14.7 C13 a must be answered in the negative - the arborists are agreed that the tree is healthy, thus the soil conditions and other environmental factors must have sustained growth of the tree up to the current stage of its development, and there is no reason to anticipate change in the conditions Similarly question b must be answered in the negative because the tree is clearly alive and the experts are agreed that is healthy.
Question c, on whether the tree poses a threat to human life or property requires a more qualified answer. 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 it is the agreed position of the tree experts that the tree is healthy, so there is no indication of failure in the near future. The threat to property will be discussed later in this judgment.
There is no 'causing significant damage to public infrastructure ' so difficulty of repairing public infrastructure does not arise ( question d)
There was no information about the distribution of sewer and storm water pipes, nor was there any evidence that pipes had been damaged, so that at present so there is currently no requirement to replace such pipes (question e)
The experts were in agreement that the tree was of landscape significance ( question f)
The applicant has agreed that were permission to be granted they would be keen to plant native replacements. ( question g)
Question h -whether the Oak contributes to medical problems was not raised
If damage to structure is alleged, council may require an engineer's report. In this case a engineer's report has been submitted. An engineer's report must not only document damage but is also to examine feasible alternatives for the remediation of the impacts without removal of the tree. Thus both the LEP and DCP require consideration of alternatives.

[12]

Submissions

The respondent submits that the Oak tree is healthy and is making a significant and immediate contribution to the surrounding landscape, and that these are the agreed joint positions of the arboricultural experts. Despite the agreement on the value of the tree the parties disagree over whether it should be retained. The applicants and their arborist and engineer argue that the current and potential future damage to property make retention of the tree too expensive.
The respondent argues that determination of whether the Oak tree should be retained requires application and interpretation of the planning framework and controls.
LEP cl 5.9 requires consent from council for the removal of the tree, as under the DCP (C1.14.3) it is a prescribed tree by virtue of its size and because it occurs within a Heritage Conservation Area.
The criteria to be considered by the consent authority in determining whether to approve removal of a prescribed tree (DCP C1.14.7 listed in Control C13). The respondent in its submissions says that none of the factors in Control C13 support a decision to remove the tree. Control C14 may require the applicant to examine feasible alternatives to removal, as is also required by the Leichhardt Council Tree Management Technical Manual - Trees on Private Property. The respondent contends that there has been no consideration of alternatives to removal.
Mr Sattler for the applicants argued that the tree was not in a healthy place, even if, in itself, it was healthy. Taking ' not in a healthy place' to have the same meaning as 'unsuitable for site conditions', this reflects DCP C1 .14 .7 C13 - "In considering whether to grant a tree permit or development consent to remove a prescribed tree, Council will consider whether the tree is unsuitable for site conditions. A tree may be considered by Council to be unsuitable for site conditions if, as set out in the Tree Management Technical Manual, Council is satisfied that any of the following" Of the criteria then listed below the critical criterion is "c. The tree poses a threat to human life or property"
Mr Sattler further argued that the applicants have over the years incurred expense in repairs and tree maintenance and that it would be unreasonable to impose further costs on them when the costs would be disproportionate to the benefits of retaining the tree.

[13]

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

On the agreed evidence of the experts the tree is healthy and there is no predictable threat to human life, but is there a threat to property?
The respondent concedes that the tree has caused some damage to structures, so the issues become the extent of the damage, the immediacy or otherwise of possible major structural damage, and the viability and reasonableness of alternative solutions,
The damage over which there is agreement that the tree has caused or contributed towards, and may continue to cause in the future, are to the tiling layer of the deck, the walls under the southern, western and northern sides of the deck and the adjoin pathways. The damage to the exterior wall of the house in the northwest corner of the underfloor space could theoretically have resulted from pressure from roots, but in the absence of root mapping the evidentiary threshold set by Smith & Hannaford is not reached.
Mr Kantouros in his report of December 2015 concludes that "..there is a high probability trunk and root growth in the near future will undermine the structural integrity of the masonry support walls resulting in major demolition and reconstruction works."
Mr Kantouros did not define "in the near future", nor provide justification for how he reached this conclusion. 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.
Nothing was pointed to on site which indicated that major damage was likely to occur within twelve months. Mr Sattler in his hand written note on damage (Exhibit B) included an annotation against a number of items "Potential damage 10 years". While this sets a longer interval than that in Yang v Scerri, there was no discussion on site between the experts to establish the basis for the ten year estimate.
There was, at its highest, some general discussion of alternatives to removal, but little that helped assessment of feasibility and reasonableness.
From observation the deck structure is substantial. Council suggested that one option would be to demolish the deck, and replace it with a lighter structure, possibly of timber. Mr Sattler opposed demolition and suggested that any timber structure would not be durable.
Demolition of the deck would require approval of council (LEP2013 cl 2.7) and construction of a new deck would similarly require approval.
The tree trunk is currently in contact with the edge of the octagonal opening in the deck and is imposing pressure on the deck. The aperture has been widened in the past. Mr Jackson (Joint Expert Report at 14 paragraph 3) argued that further widening of the opening will expose the steel mesh reinforcing in the concrete, reducing the structural strength of the deck. Ms Hunt, on site, indicates that there were treatments available which would address this issue. However, no details were provided.
Ms Hunt also suggested on site that absence of expansion joints at various positions could be exacerbating the potential for cracking, and indicated a few possible locations for their insertion. However, details of location and form would need to be developed, and reaching conclusions on the run would be inadvisable.
Mr Reed provided information that he had replaced the tiles on the deck on three occasions. Currently there was a visible upwards bowing of the tiles, and a crack of the southern side. However, these might reflect movement of the tile layer as there was no obvious distortion or damage to the concrete of the slab itself when viewed from the underside. Mr Reed was concerned that the state of the tiling represented a trip hazard and that this would worsen over time.
Mr Sattler handed up the judgment in Tasdemir v Fahey [2009] NSWLEC 1418 as providing an example where removal of a tree which was causing damage to a property was ordered. That case may, however, be distinguished from the present matter on a number of grounds. Tasdemir involved a dispute over an avocado tree, which was agreed to be in a healthy condition. The tree was alleged to have caused damage to the applicant's sewer and storm water pipes; in the present matter damage to pipes has been raised but is not supported by evidence. In Tasdemir the parties agreed that the damage had been caused by the tree, and there was supporting evidence in the form of a letter from a plumber. The Court concluded that the roots had caused damage and would continue to do so, and ordered removal of the tree. In reaching its conclusion the Court was satisfied that the requirements of s10(2) of the Trees Act were met. The Court was not required to consider any requirements of the LEP or DCP relevant to the local government area. In the present matter s 10(2) of the Trees Act is not applicable, rather it is the 2013 LEP and DCP which establish the framework to be followed, and both these plans require consideration of alternatives to tree removal.
Mr Bonnano drew attention to Black v Johnson (No 2) [2007] NSWLEC 513. This enunciated a principle for matters for consideration of pre-existing trees ( at [15] ). The final paragraph of the principle states "equally, it will be relevant to consider whether the choice of location for the structure was unnecessary or avoidable or, on the other hand, if it would have been an unreasonable constraint on the development potential of the site had the existence of the tree limited that potential.'
The Oak tree was clearly present before construction of the deck. When the deck was constructed whoever was responsible thought sufficiently highly of the tree so that the deck was constructed with an octagonal opening around the tree. Unfortunately that opening was not sufficiently large as to accommodate continuing growth of the tree, but the presence of the tree was not then regarded as an unreasonable constraint on development.
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" There is nothing in the present situation which would raise it above the ordinary, so there is no basis to depart from the principle.
In terms of larger elements of deadwood then there are mechanisms for neighbours to apply to remove overhanging dead wood and permit limited pruning up to their boundaries.

Lawrence Reed v Inner West Council

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