Mackenzie v Ku-ring-gai Council

CASES CITED: Telstra v Hornsby Shire Council (2006) 146 LGERA 10

APPLICANT Ms S Duggan, barrister INSTRUCTED BY Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr M Staunton, barrister INSTRUCTED BY Home Wilkinson Lowry

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10270 of 2008 Dugald Mackenzie v Ku-ring-gai Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

1 COMMISSIONER MOORE: Visible in the rear yard of the site in Dumaresq Street, Gordon, is a grey ironbark, Eucalyptus paniculata, some one hundred years old and which comprises a significant element in the treescape when viewed from the street over the roof of the existing house.

2 The applicant has sought consent to erect two residential flat buildings on a consolidated site comprising four allotments, including that upon which the Grey Ironbark is located. It is agreed by the aboricultural experts for the applicant, Mr Castor, and for the respondent council, Mr Ford, that the tree is a significant one, some 100 or more years old, and worthy of significant effort for its retention.

3 The tree will be impacted, as originally proposed, by the construction of the more eastern of the two blocks proposed by the applicant. The tree would have been impacted by the location of excavation for the basement car parking area and the location of the fourth and fifth units on the southern side of the more eastern of the two blocks.

4 During the course of the view and the course of the concurrent evidence given by Mr Ford and Mr Castor, a variety of matters were canvassed including the removal of a number of piers, two in total, that were proposed to have been sunk within the root protection area of the tree and the removal of the lowest level of the rear units being the unit designated number 5 in block B.

5 The consequence of these changes, together with: - the adoption of measures accepted by the applicant for a watering system as recommended by the groundwater experts who had given agreed evidence; - the acceptance by the applicant of a monitoring system for such groundwater matters as had been proposed by the council's expert but not accepted by the applicant's expert; and - the adoption of an ongoing maintenance regime together with the extent of the limited impact on the root zone of the tree caused by moving the basement car park two metres further to the north,

caused Mr Ford to accept that the impact on the tree was acceptable and was unlikely to cause significant long-term decline or death to the tree. 6 The applicant has also agreed to two further conditions. The first condition establishes a mulching regime and the second condition will exclude the right of the future Owners Corporation of these units, when built, from being able to take advantage of a provision in the council's tree preservation order that would otherwise permit unconstrained pruning of this tree within the area designated by the tree protection order.

7 All of these matters, we are satisfied, are consistent with and indeed go further than the position that Mr Ford indicated was an acceptable impact on the tree.

8 Those issues having been resolved, we are left with the position that submissions are made by Mr Staunton, barrister for the council, that the requirements are still not adequate in light of the provisions of the council's Development Control Plan and those of the British Standard 5A37 of 2005, 'Trees in Relation to Construction Recommendations' being the relevant standard to which observance is paid by arboriculturists in Australia (in the absence of a relevant Australian standard).

9 Mr Staunton submits that we should have regard to either the precautionary principle or to a precautionary and prudent approach and still reject the proposal. He also submits that we should also have regard to and consider that the impact on the aesthetic presentation of the tree is unacceptable.

10 Ms Duggan, counsel for the applicant, has put the contrary position, particularly pointing out that significant view lines through to the tree will be available from Dumaresq Street. In addition, Ms Duggan has dealt with the submission by the residents of the residential flat building at 11-19 Moree Street, being immediately to the south of the site, who are concerned about the loss of trees and the aspect that that provides them to the north of their property.

11 It is convenient to deal with that objection briefly and note that a number of lesser but still significant trees will be retained on the site which are within that viewing from that property and that, coupled with the landscaping proposed and the retention of tree 51, the Grey Ironbark, are matters that we consider satisfactorily address the concerns of that body.

12 I turn to the question of the precautionary principle and its context in this case. In Telstra v Hornsby Shire Council (2006) 146 LGERA 10, reading from para 129 on p 38, Preston CJ notes that, for the invocation of the precautionary principle, there are two sequential conditions precedent necessary to be established. The first is that there is a threat of serious or irreversible environmental damage and, second, that there is scientific uncertainty as to the environmental damage that would be occasioned.

13 In this case, on the basis of the evidence given by Mr Ford and the additional conditions that have been agreed to by the applicant which build upon and go further than the position that Mr Ford considered acceptable, I do not consider that the first of the pre-conditions to invoke the precautionary principle of being satisfied, that is that there is a threat of serious or irreversible environmental damage based on the proscriptive measures contained in the conditions proposed for consent.

14 I am also satisfied that the concept of a precautionary approach separate from that which is advocated by Preston CJ in his discussion of the precautionary principle is unnecessary as a proper consideration and application of the precautionary principle encompasses those matters put by Mr Staunton and no further step is required.

15 Council's Development Control Plan at 3.3 notes, amongst its intentions with respect to the existing landscape character, that it is the council's intention to maintain existing landscape character to the greatest extent that is possible given multi-unit housing.

16 There are then a number of design objectives and a series of design controls, the threat of which is to retain adequate open space around existing remnant indigenous trees to be retained to minimise future conflicts relating to branch drop and root damage from mature trees. (All housing to be outside the line of significant trees.)

17 I am satisfied that the risk of damage to this property as opposed to risk of damage to the tree, which I consider is acceptable in light of the now uncontradicted position of Mr Ford, is acceptable because the applicant has agreed to a regime which sets aside the automatic right of the applicant and the applicant has agreed to accept a stricter management regime than would otherwise apply under the tree preservation order.

18 As a consequence, we are satisfied that future conflicts have been resolved by a presumption in favour of the tree which is necessarily implied by the applicant's acceptance of the present and future need to obtain the council's consent before there would be any future pruning of the tree.

19 Mr Staunton took us to a number of provisions of the British Standard. It is our view that the British Standard and the various provisions to which he took us, 6.2.4, 11.1.1 and 11.6.1, are all answered by the fact that Mr Ford has reached the conclusion that the impact on the tree t(o the extent that it will occur) is an acceptable one when measured against the British Standard and that the additional protection measures go modestly further than is necessary merely to pass that test of acceptability.

20 For all these reasons, I consider that the appeal should be upheld and that the application should be given development consent subject to revised plans and revised conditions of consent.

21 COMMISSIONER TAYLOR: I agree with Commissioner Moore. I have nothing to add.

Tim Moore Dr Mark Taylor Commissioner of the Court Commissioner of the Court

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