Wen Yin Long ('the Applicant') applied to City of Parramatta Council ('Council') ('the Respondent') in May 2020 seeking to remove four trees on her Dundas Valley property. Council granted permission to Ms Long to remove one tree in the front garden and refused the removal of three trees in her back garden. Ms Long has appealed that decision to this Court. In the interim, Ms Long also filed, but subsequently withdrew, a s 34 application to the Court.
In her application to the Court, Ms Long seeks:
Overturning of Council's decision, and permission to remove the three remaining trees;
Costs of filing her appeal; and
Compensation for costs resulting from delays to developing her property due to Council's determination.
[2]
Framework for this decision
The framework for determining an appeal against a council's refusal of a tree removal application is set out in Sheldon v The Council of the City of Sydney [2020] NSWLEC 1619.
The State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 ('the 2017 SEPP') at cl 9 establishes the scope for a local development control plan to declare the type or location of vegetation requiring a permit for clearing, with cl 10 allowing a council to issue such a permit. An applicant can appeal a decision to the Land and Environment Court (cl 12). On appeal, the Court is to determine the application anew, with consideration of any fresh evidence.
The Parramatta Development Control Plan 2011 ('the DCP') declares protected vegetation at section 5.4.1, including all trees 5 metres or more in height. All trees in Ms Long's application are more than 5 metres tall. A permit is not required if Council is satisfied that the tree is dead, dying, or poses an imminent risk to human life or property (section 5.4.2.1).
Exemptions to the DCP's tree controls are listed at section 5.4.3. Trees within 3 metres of a legally constructed building are exempt. Ms Long's trees are more than 3 metres from the building under construction on her property, and also do not satisfy any of the other exemptions.
Council's 3-step assessment process in determining tree removal applications is set out clearly at section 5.4.2.2. of the DCP.
The first step is assessing the sustainability of the tree in its location;
The second step is assessing the tree's landscape and amenity significance;
The third step is to determine the tree's retention value, considering its sustainability and landscape value from the first two steps.
The first two steps each include an extensive list of questions to be considered. At the third step, a tree with high or medium retention value should be considered for retention; a tree with low retention value can usually be removed, but a condition may require its replacement. Issues which do not usually warrant tree removal include:
fears about healthy trees failing; and
tree roots blocking pipes, unless the damage is serious and recurring.
Regarding the second order sought by Ms Long, being for costs of her appeal, Commissioners of the Court do not have the power to order costs. Should she wish to pursue that, Ms Long would need to file a Notice of Motion to be heard by the Registrar or a Judge of the Court.
The Court has no jurisdiction to order compensation for Ms Long's potential lost income, the third order she sought. The Court must determine her application within the framework described above, which does not extend to compensation.
[3]
Other issues not relevant here
Ms Long's property has been subject to various applications. Ms Long looks after children at her property. An earlier application for a second building on her property included, within the building's footprint, removal of the three trees more recently refused in Ms Long's appealed tree removal application. A later application for a second dwelling, set back more than 3 metres from those trees, was approved. Ms Long has also applied to Council to run a childcare centre at the property. She contends in the current proceedings that the Court should take that application into consideration when determining this appeal. Mr Gough, solicitor representing Council, submitted that the childcare application is a completely separate matter, not relevant to these proceedings. I accept his submission - the Court has before it only an application to remove trees. Nevertheless, I am aware that Ms Long currently looks after children at her property, such that I consider the presence of children and others in the vicinity of the trees in making this decision, even if the numbers of children might be greater if Ms Long's childcare application is approved.
Ms Long submitted that Council was inconsistent in its decision making by granting permission to remove one tree but not the other three trees. Council's evidence made it clear that the Italian Cypress (tree D) was structurally defective and therefore met the DCP's guidelines for granting tree removal. There is no evidence of inconsistency - it is not uncommon for councils to grant removal of some trees but not others, based on tree health, structure, suitability and life expectancy.
[4]
DCP controls apply to these trees
The four trees in Ms Long's original application to Council were:
A. Lophostemon confertus (Brushbox)
B. Lophostemon confertus (Brushbox)
C. Melaleuca quinquenervia (Broad-leaved Paperbark)
D. Cupressus sempervirens (Italian Cypress)
Lettering is used in this judgment to avoid confusion, as the numbering in Ms Long's application was not followed in Council's determination, so that Ms Long's tree 1 was Council's tree 4 (tree 'D' here). Trees A-C in this judgment were Ms Long's trees 2-4 and Council's trees 1-3. Council granted permission to remove tree D, the cypress in Ms Long's front garden. Trees A, B and C in Ms Long's rear garden are 12-15 metres tall. They grow in roughly a straight line across the rear part of her property. A second building, additional to her dwelling, is under construction between the dwelling and the trees, a little more than 3 metres from the nearest tree.
None of the DCP's exemptions apply to trees A, B and C.
[5]
Should permission be granted for removal?
Council's 3-step process is applied below. Council filed a report by Elizabeth Hannon, Parramatta City Council's Landscape Tree Management Officer. Ms Long did not obtain expert evidence in relation to these proceedings, so Mr Gough submitted that Ms Hannon's evidence is uncontested. Ms Long provided a copy of an arboricultural report obtained for her earlier development application. Ms Long filed with the Court many minutes of video footage of the trees filmed during windy days. Ms Long also asked that several local acquaintances be permitted to make statements during the onsite view. I recorded their names before hearing their statements, which included personal concerns about safety for visitors to Ms Long's property. In addition to the above, I bring my own arboricultural expertise and experience to this decision.
[6]
Step 1 - sustainability of the trees in their location
In the DCP, questions to be considered at step 1 are:
"Has the tree reached the end of its lifespan or is there evidence of decline?
Does the tree show evidence of potential structural failure, and could become dangerous requiring it to be removed at a later date?
Does the tree impact on a main area of private open space, so that it compromises the use of the open space for passive or active recreation?
Is there evidence of damage to the tree due to pests or disease that will reduce the lifespan of the tree?
Is there evidence that the tree is causing structural damage to a building?
Is the species of tree suited to the location?"
The three trees (two Brushbox and a Broad-leaved Paperbark) are all reaching maturity and are in good health. The middle of the three trees (Brushbox, tree B) has a stem bifurcation, but there are no signs of structural weakness within this stem union. Stem failure is unlikely within the foreseeable future. The bifurcation was not noted in Ms Hannon's report. The three trees are otherwise without structural defects visible from the ground. They are not significantly affected by pests or diseases. That is, the trees are healthy, structurally sound, with useful life expectancies of several decades. They are thriving, rather than declining, and are unlikely to have major structural failures within the foreseeable future.
The trees do not impact adversely on the property's private open space. Rather, they provide amenity and, importantly, extensive shading to the open area behind the second building under construction.
As the trees are structurally sound, they pose a low risk of injury to people on the property. This finding is supported by Ms Hannon's findings in her report, as well as the findings of Ms Long's arboricultural report for her earlier development application, where these three trees were described as having good health and structure with moderate useful life expectancies. Ms Long submitted that the report supported removal of the three trees, but review of that report revealed that it showed only that the three trees were proposed for removal because they were within the proposed building's footprint - there was no other reason for removing the trees.
Ms Long also relied on her video footage, which she said showed the trees moving dangerously in the wind. Having watched this footage, I observed the movement of these trees and their branches was typical of trees of this size during winds, with no signs of branches falling. There was nothing to suggest that branches are more likely to fall from these trees than the average garden tree.
Statements made by Ms Long's local acquaintances all shared a common theme: their children come to the property, and they are concerned about their safety. Some suggested that their children have fears regarding the trees' branches falling. Ms Long submitted that the fear of branch failures might cause psychological harm to these children. It is not uncommon for the fear of tree failures or other environmental risks to be disproportionate to the actual risk level. The Court has discussed this in decisions involving trees under the Trees (Disputes Between Neighbours) Act 2006, for instance: Oakey v Owners Corporation Strata Plan 22678; Oakey v Owners Corporation Strata Plan 5723 [2009] NSWLEC 1108 at [13], [14]; and Owners of SP 37485 v Owners of SP 4193 [2014] NSWLEC 1185 at [13], [14]. The risk of injury resulting from branch failure, from any of these three trees, is low. The DCP identifies several issues which do not warrant tree removal, including: "There are fears about healthy trees" (perhaps what is meant is 'structurally sound trees' or 'trees with a low risk of causing harm or damage'). This appears to describe the situation here.
The trees are not causing structural damage to a building. The nearby building that is under construction has been designed and constructed with knowledge of the trees' presence, so presumably its footings and slab have been engineered accordingly. The three trees have recently been pruned, reducing branches above the new building, so that branch failure onto the building is unlikely.
Ms Long submitted that tree roots have blocked a sewer pipe in the past, and are likely to do so again. No evidence was adduced that would satisfy the Court that obstruction of pipes is likely. The obstruction is so far not 'serious and recurring'. Furthermore, according to Ms Long the pipe that passes between two of the trees is an older terracotta pipe. Its replacement with a PVC pipe would likely prevent further damage. The DCP encourages proactive and preventative solutions such as this.
The species are commonly planted in gardens, suitable to the location and the size of the property.
[7]
Step 2 - amenity and landscape significance
Questions to be considered at the second step are:
"Is the tree prominent in the streetscape?
Does the tree have heritage significance or contribute to the significance of a place?
Is the tree a contributory item to a heritage place or conservation area?
Does the tree represent a typical planting of the era of the associated building or park's construction or creation?
Does the tree contribute to an established streetscape?
Does the tree have high aesthetic value?
Is the tree indigenous or endemic species?
Is the tree part of a remnant endemic collection of trees or vegetation?
Does the tree have the potential to provide a habitat for native fauna?
Is the tree part of a threatened ecological community listed under the Threatened Species Conservation Act 1995? If yes, a Seven Part Test may be required."
During the onsite view, Mr Gough took the Court some distance along the street to point out the trees. They could be seen from the street, but were not 'prominent'. They contribute to neighbourhood amenity. Both species, Brushbox and Broad-leaved Paperbark, are commonly planted in gardens of this era. They have high aesthetic value within the subject site, and moderate aesthetic value from neighbouring properties. They are not indigenous or endemic to the area, nor are they part of an endangered ecological community. They have the potential to provide habitat to native fauna.
[8]
Step 3 - determining the trees' retention value
Based on the first two steps, all three trees have medium retention value. They are all suitable to the site and have long useful life expectancies. They are not prominent in the streetscape, nor are they locally indigenous, so they do not have 'high' retention value. They are not causing damage, and they pose a low risk of injury. They have aesthetic value to the site and surrounding properties. Therefore they do not have 'low' or 'very low' retention value.
[9]
No reason to permit removal of the three trees
Based on the above, there is no reason to permit removal of the two Brushbox and the Broad-leaved Paperbark (trees A, B and C). Council's decision to permit removal of tree D (Italian Cypress) was reasonable, based on Ms Hannon's description of that tree. This appeal concerns the original application to Council, so for completeness I include permission to remove tree D, even though it has already been removed.
[10]
Orders
As a result of the foregoing, the Court orders:
1. The appeal is refused.
2. Tree removal application number TA/243/2020 seeking to remove trees A, B and C (two Brushbox and a Broad-leaved Paperbark) at 83 Evans Road, Dundas Valley is determined by refusal. The application to remove tree D (Italian Cypress) is granted.
3. The exhibits are returned, except for Exhibit A.
[11]
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Decision last updated: 20 May 2021