Roney v Woollahra Municipal Council

Background to the Application

1. Development consent DA 534/2011 was granted on 12 February 2012 subject to conditions, which included condition E8, requiring compliance with the Council's Tree Preservation Order in relation to any tree with a height greater than 5m with a diameter spread of branches greater than 3m, and required the consent of the Council for works to be carried out within a 5m radius of a tree.
2. On 14 August 2012 the Council approved an application to modify the development consent for internal and external modifications. A modification application seeking to remove three trees along the southern boundary, including the tree the subject of this application, and modifications to the existing driveway, was refused on 4 February 2013. On 24 February 2014 the Council approved an application to remove one tree, Celis sinensis (Chinese hackberry) located on the southern side of the existing driveway and provide replacement planting.
3. The modification application the subject of these proceedings was lodged on 12 December 2014, and refused on 26 March 2015.

Planning controls

1. The Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (the SREP) applies. Relevant provisions in Part 3 Foreshores and Waterways Area include: 20 General The matters referred to in this Division (together with any other relevant matters): (a) are to be taken into consideration by consent authorities before granting consent to development under Part 4 of the Act, and (b) are to be taken into consideration by public authorities and others before they carry out activities to which Part 5 of the Act applies. … 25 Foreshore and waterways scenic quality The matters to be taken into consideration in relation to the maintenance, protection and enhancement of the scenic quality of foreshores and waterways are as follows: (a) the scale, form, design and siting of any building should be based on an analysis of: (i) the land on which it is to be erected, and (ii) the adjoining land, and (iii) the likely future character of the locality, (b) development should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands, foreshores and tributaries, (c) the cumulative impact of water-based development should not detract from the character of the waterways and adjoining foreshores. 26 Maintenance, protection and enhancement of views The matters to be taken into consideration in relation to the maintenance, protection and enhancement of views are as follows: (a) development should maintain, protect and enhance views (including night views) to and from Sydney Harbour, (b) development should minimise any adverse impacts on views and vistas to and from public places, landmarks and heritage items, (c) the cumulative impact of development on views should be minimised.
2. The Woollahra Local Environmental Plan 1995 (the LEP) applies. The objectives of the LEP are specified in cl 2, and relevantly include: (f) in relation to the landscape: (i) to protect and enhance the natural landscapes throughout the area of Woollahra, (ii) to promote the retention of trees and the planting of suitable new trees in appropriate locations, (iii) to control or minimise the impact of future development upon natural features such as significant trees or stands of trees, ridgelines or land within view of any waterway, (iv) to protect and enhance the environmental quality of the area of Woollahra through the appropriate management and conservation of the existing pattern of vegetation, and (v) to protect the native flora and fauna, … (h) in relation to the area's foreshores and the harbour foreshore scenic protection area: (i) to seek the retention of public foreshore lands for public purposes, (ii) to encourage development which, through its form, scale, materials and design is compatible with the natural and environmentally acceptable built landform of the foreshore areas as viewed from the water, (iii) to recognise the residential, recreational, tourist and commercial characteristics of the foreshore area and to co-ordinate development in order to protect the area's scenic and natural attributes, (iv) to consider the impact of development on the views of Sydney Harbour enjoyed by existing residents and promote the practice of view sharing, (v) to protect and, where possible, improve the view of Sydney Harbour and its foreshore areas obtained from public land, (vi) to protect the natural, scenic and cultural attributes of the area's foreshores, including the visually and ecologically significant beaches, inter-tidal rock formations, vegetation, rock faces, shelves and outcrops, (vii) to preserve existing public open spaces along the foreshores and to promote the dedication, acquisition, lease or occupation of additional useable areas so as to provide further public pedestrian access to and along the foreshores in appropriate locations, and (viii) to protect the native flora and fauna,
3. The site is in the Residential 2(b) zone. The objectives of the 2(b) zone include: (e) to protect the environmental attributes of the foreshore lands
4. Clause 8(5) of the LEP provides that the council shall not grant consent to the carrying out of development unless it is of the opinion that the carrying out of that development is consistent with the objectives of the plan and of the zone.
5. The Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005, and the Woollahra Residential Development Control Plan 2008, apply. The Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 includes provisions for Ecological Assessment (Part 2), Landscape Assessment (Part 3) and Design Guidelines for Land-based Development (Part 5). The Woollahra Residential Development Control Plan 2008 (the DCP) includes provisions in Parts 4.5 (Desired Future Precinct Character - Point Piper), 5.1 Streetscape, 5.2 Building Size and Location, 5.3 Open Space and Landscaping, 5.5 Views, 5.8 Acoustic and Visual Privacy, and 5.11 Harbour Foreshore Development.

Issues

1. The Council raised three contentions:
2. The application should be refused because it will result in the loss of a significant mature tree to the Sydney Harbour foreshore area, contrary to the provisions of the REP, the LEP, the Foreshores DCP and the DCP;
3. The subject tree should be retained, on the basis that it is healthy and in good condition, the damage to the existing wall is minor and does not pose any risk to the tree, repairs and excavations for repairs to the existing retaining wall could be achieved without major impact on the tree, and the reasons for the proposed removal of the tree are not well founded; and
4. Public interest, being that the tree should be retained having regard to the matters raised in submissions to the Council to the extent that those submissions are consistent with the Council's contentions.

Evidence

1. The matter commenced on site as a conciliation conference pursuant to s34AA of the Land and Environment Court Act 1979.
2. Submissions were made on site by Mr William Dangar on behalf of the owners of 3 St Mervyns Avenue; Mr Brad Delapierre on behalf of the owners of 2 St Mervyns Avenue; and Dr Michael Joel on behalf of the owners of 3/3 Buckhurst Avenue, and 4/3 Buckhurst Avenue. The view included a view from 3/3 Buckhurst Avenue, and on Seven Shillings Beach.
3. The objector submissions related to impacts on privacy and amenity if the tree is removed; concerns about impacts on views depending on the height of replacement planting; and that the tree is well established and in good health, and screens views of the roof and solar panels on neighbouring properties.
4. Mr Gary George on behalf of the owner of 3B Buckhurst Avenue supported the application, stating that the tree and existing retaining wall impede access into the garage and restrict use of the right of way to that dwelling.
5. Notes of the submissions made on site, including speaking notes, are in evidence (ex 8). Copies of written submissions made to the Council in January and February 2015 during its assessment of the application are in evidence (ex 5, tab 13). As noted below, after the adjournment of the conciliation conference the applicant undertook additional assessment of the tree, and the parties' arborists considered the results of that testing, and provided a supplementary joint report. With the consent of the applicant a copy of that report was made available to the objectors, and two objectors (Dr Joel and Ms Ilana Kresna) provided further written submissions which are in evidence (ex 7). Those additional written submissions raised concern as to the proposed replacement species, in particular that regular maintenance and pruning be required so as to maintain existing views; and a submission that while the tree is in decline it should not be prematurely removed but should be preserved, with fertilising and adequate water, until it reaches a point of serous decline, and that any replacement species is regularly maintained so that it grows no taller than the existing tree with provision for any adjacent resident to request the applicant to trim the replacement trees.
6. Expert evidence was provided on behalf of the applicant by Mr Gary Shiels (planning), Mr Marek Blaszczakiewicz (engineering) and Mr Peter Castor (arborist). Expert evidence was provided on behalf of the Council by Mr Thomass Wong (planning), Mr Tony Russo (engineering), and Mr Nick Williams (arborist).
7. The expert planners prepared a joint report (ex 6) in which they agreed that the proposed removal of the retaining wall and new paving on the driveway would enhance the visual appearance; the replacement trees will grow to the same height and spread as the existing tree and be of equal and similar quality to the existing tree; the proposed visual appearance viewed from the Harbour and the driveway will be similar to the existing situation if the proposed landscaping is undertaken in accordance with the landscape plans; and while the proposal results in the removal of existing vegetation it is proposed to have replacement vegetation that will be the equivalent of the existing. The planners disagreed as to the visual amenity of the existing tree, Mr Wong considering that it currently provides good visual amenity while Mr Shield considered the appearance of the tree, bamboo and block wall to be unattractive. They agreed that if the tree is unhealthy, removal of the tree is in the public interest.
8. The expert engineers prepared a joint report (ex 3) in which they agreed that the existing planter box wall is suffering from a structural damage; a number of blocks are dislodged which indicates no vertical or horizontal reinforcement within the wall; at least some of the blocks have not been corefilled with concrete which is a standard construction practice, and as a result the planter wall is structurally inadequate not only to support the existing tree but to support 600mm-800mm deep soil within it; the planter does not appear to have a suitable drainage system to relieve the pressure of water onto the planter walls and the only way of relieving water pressure at present is onto the adjoining site through the boundary fence; and as a result the planter walls need to be demolished and reinstated as suitably designed retaining walls in accordance with good engineering practice, with as a minimum weep holes at the bottom of the walls to relieve water pressure within the planter. The experts did not agree on whether or not the tree needs to be removed to ensure adequacy of the planter walls, or whether, as Mr Blaszczakiewicz considered, the tree could be retained and a new planter wall constructed to retain it. At the site view the engineering experts discussed the work required, including the requirements for footings, and whether it would be necessary to pier and beam a new retaining wall, or to use a waterproof membrane.
9. The expert arborists in their first joint report (ex 2) agreed that the existing tree is 11.5m high; and is of "moderate" landscape significance being category 3 on a 4 point scale with 1 being exceptional, 2 being high, and 4 being of low significance. They agreed that if the tree is removed there will be tree canopy beyond screening existing structures from the foreshore, and that the tree is mature. They agreed that the tree is of 'fair" health vigour and condition, which Mr Castor considered results in a short (5-15 years) useful life expectancy (ULE) and which Mr Williams considered was at the upper realm of the "short" ULE category and lower end of the "medium" ULE category (both 15 years). They agreed that some feeder roots of the tree are likely to have been trimmed as part of the construction of the new timber boundary fence at 3 St Mervyns Avenue and the sleeper retaining wall beneath. They agreed, based on the geotechnical report by GeoEnviro Consultancy Pty Ltd dated 9 November 2012, that the existing soil is capable of supporting tree root growth. At the site view both arborists noted wounds and cavities on the tree, and both agreed that dead wood could be removed.
10. After the adjournment of the conciliation conference the applicant arranged for Arboricultural Resistograph testing of two of the five stems emerging at or near ground level (dated 6 August 2015), and Picus Sonic Tomograph tests on two stems (dated 29 July 2015). The Arboricultural Resistograph Testing report (ex F) concluded that with the current volume of decay identified and a reduced crown cover/density of approximately 70% and 65% respectively for the stems tests, the estimated life expectancy of the tree "is likely to be short term". The Picus Sonic Tomograph tests report (ex G) identified considerable amounts of decay and altering wood on one stem tested, and that tests on the other stem at the sites of poor past pruning works showed minor amounts of decay.
11. The expert arborists reviewed the results of those tests. In the supplementary joint report (ex 4) Mr Williams concurred with the conclusion of the Resistograph testing that given the volume of decay and reduced crown cover/density the estimated life expectancy of the tree is likely to be short term, because the tree is demonstrating low vigour and trees with low vigour have less ability to resist stress such as root damage and attack from pathogens; in his opinion if the tree were to remain the proposed repair to the existing retaining wall would represent additional stress to the tree. Mr Castor concurred, noting that the existing crown vigour is likely to decline further as a result of the recently completed works to the south at 3 St Mervyns Avenue and any repair works to the adjacent retaining wall.
12. The arborists also considered the proposed replacement planting of 2 x 400L Waterhousia floribunda trees, which Mr Williams noted would be at a height of 4.5-6m when planted and would have the potential to reach a mature height and spread equal to the existing tree possibly within a time frame of 10 years, and the potential to provide quality amenity to the site and surrounding properties. Mr Williams did not consider it appropriate to plant Magolia grandiflora "Exmouth" as they would be unlikely to reach the same mature dimensions as the proposed Waterhousia and were slower growing. The experts agreed that the removal of the existing tree is acceptable in the light of the proposed planting and that implementation of the landscaping works proposed in the application would represent a more sustainable landscape solution than preservation of the existing tree and repair of the existing retaining wall.
13. Mr Castor and Mr Williams gave oral evidence at the hearing. In response to the objectors' concerns as to the mature height of the proposed Waterhousia floribunda being in the order of 30m, Mr Williams noted that the applicant is proposing to plant a cultivar, "Green Avenue", which would have a mature height of 12-15m; Mr Castor noted that the diameter would be around 8m. Planting two trees side by side would mean that there would be more root competition and some suppression of canopy, compared with planting one tree which would get higher. In response to the concerns of Dr Joel that the existing tree screens the roof and solar panels of the property next door, Mr Williams stated that the replacement trees would do that in time. Mr Williams agreed with Mr Castor that the replacement trees would take approximately 5-10 years to get to 10m. Mr Williams responded to Ms Kresner's concerns about potential view loss, stating that the non-cultivar form could get to 30m but the proposed cultivar in the planting environment would be unlikely to exceed 10m. Mr Williams considered that pruning might be possible if the trees exceeded the existing tree height; the Waterhousia responds reasonably well to pruning and it could possibly be done. Mr Castor did not consider pruning to be ideal and while the trees could cope if lopped it is preferable to select the appropriate tree to plant; in his opinion the proposed trees would plateau at a reasonable height. Neither expert considered that the existing tree could be improved with additional fertilising or water. Mr Castor was of the opinion that the tree has had a chequered history, with recognised defects which have been tested and lots of dysfunctional tissue because of poor pruning in the past, and so water and fertiliser will not help a tree in this class. Mr Williams agreed, noting that there is some crown dieback because of stress, which is almost irreversible. In response to Dr Joel's request to leave the tree until it is in serious decline, both experts agreed that it is now at that stage.

Consideration

1. The modification application as described in the letter to Council dated 12 December 2014 (ex C) proposes the removal of the Magnolia grandifloria, demolition of the existing retaining wall along the southern edge of the driveway and extension of the driveway to the south with permeable paved material; provision of a new block wall and planter along the southern boundary; and provision of two new trees within a tree pit along the southern boundary and bamboo planting. The two new trees are to be planted on either side of the location of the existing tree. As shown on the landscape plans (ex A, sheets L02 and L03 Issue B) the trees are to be planted in a Strata Cell matrix, at soil level rather than in a raised planter bed.
2. I accept the agreed evidence of the arborists that the existing Magnolia grandiflora is mature, and of moderate landscape significance; that its condition is "fair"; and that with the current volume of decay and reduced crown cover/density its estimated life expectancy is likely to be short term. I accept their agreed evidence that undertaking work required to rectify the structural inadequacies of the existing retaining planter wall identified by the engineering experts would cause further stress to the existing tree; and that given the current state of the tree it is not likely to respond to fertilising or additional water. I accept the agreed evidence of the arborists that the existing soil is capable of supporting tree root growth; and that removal of the existing tree and replacement with two appropriate trees as proposed in the landscape plans represents a more sustainable landscape solution than preservation of the existing tree and repairs to the existing retaining wall.
3. I accept the agreed evidence of the arborists that planting of the "Green Avenue" cultivar, rather than a non-cultivar of Waterhousia floribunda, is appropriate in this context, and that the replacement trees would be in the order of 4.5-6m when planted from a 400litre container size. I accept their evidence that while this cultivar can reach a mature height of 10-12m, given the location and the planting of two trees together it is more likely that they would reach a height of 10m. I accept their evidence, which is supported by the photographs of the existing tree and as observed on the view, that trees of this height would, at maturity, screen the rooftop and solar panels of the adjoining property. I accept that there would be a period of time, which on Mr Castor's evidence would be in the order of 5-10 years, before the trees reached that height.
4. Section 96(3) of the Act provides that in determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application. The relevant planning controls are identified in the Council's Statement of Facts and Contentions (ex 1), and noted above. The relevant objectives of the LEP are those provided in cl 2(2)(f)(ii), (iii), and (iv), and cl 2(2)(h)(ii), (iii) and (iv). The existing tree is not, based on the evidence of the arborists, a significant tree. The objectives include both the retention of existing trees, and the planting of suitable new trees (cl 2(2)(f)(ii)), and the appropriate management and conservation of the existing pattern of vegetation (cl 2(2)(f)(iv)); and also require consideration of view sharing (cl 2(2)(h)(iv)). The objective (e) of the Residential 2(b) zone is to protect the environmental attributes of the foreshore lands. I agree with the applicant that the removal of a tree in serious decline and its replacement by two trees which, on the arborists' evidence, results in a better landscape outcome, is consistent with these objectives.
5. The DCP includes a number of objectives and performance criteria. Section C4.5.7.10 specifies as a desired future character performance criterion for Point Piper to "maintain and preserve significant trees and vegetation"; and objective O 5.2.1 for building size and location aims to "preserve existing tree and vegetation networks and promote new networks…". In relation to open space and landscaping, objective 05.3.2 is to "retain important existing mature trees, vegetation and other landscape features" and performance criterion C 5.3.12 is that existing significant trees and vegetation are incorporated into proposed landscape treatment. In relation to harbour foreshore scenic protection, performance criterion C 5.11.1 is that building forms follow the natural topography "and maintain or enhance vegetation cover as viewed from Sydney Harbour".
6. I accept the submissions of the applicant that in the context where what is proposed is not simply the removal of a tree, but the removal of a mature tree of moderate landscape significance which is in "fair" condition and in decline and with a short life expectancy, and its replacement by two trees which on the agreed expert evidence will reach a similar height, is consistent with the objectives of the relevant provisions in the DCP. In particular, I am satisfied that the proposed landscaping will, once the trees reach their expected height, maintain the existing vegetation cover when viewed from the Harbour and maintain and enhance the existing tree canopy, consistent with performance criteria C 5.11.1 and C 5.11.20 of the DCP. For the same reasons I am also satisfied that the proposed landscaping works achieve the aims of the SREP as expressed in clauses 25(b) and 26(a). The proposed conditions include a condition (E.31) requiring that the replacements trees are maintained in a healthy and vigorous condition, and if found to be faulty, damaged, dying or dead before attaining a size protected by the Council's Tree Preservation Order, must be replaced with another of the same species and planting size.
7. The SREP also requires consideration of impacts on views, in cl 26(b) and (c). The potential height of the replacement trees was a matter of concern for some of the objectors. I accept the expert arboricultural evidence that the cultivar specified in the proposed conditions, namely Waterhousia floribunda (Weeping Lillypilly) "Green Avenue", would have a maximum expected height at maturity of 12-15m, however in the context of this site and with the planting of two trees would be likely to achieve a maximum height of 10m. Given the slope of the site to the west, and the consequent difference in height of both trees when viewed from properties to the east higher up the slope, I am satisfied on the evidence before me that the replacement trees would not at maturity impact on the views observed at the site view and represented in the photographs provided by the objectors.
8. The other specific concerns of the objectors raised in their written submissions both to the Council and in response to the supplementary joint report of the arborists, and on site, were put to the arborists in their oral evidence. I accept their agreed expert evidence that the further testing undertaken has confirmed that the existing tree is in serious decline, and that fertilising and additional water would make no difference.
9. Dr Joel (ex 7) sought conditions specifying that the replacement trees are maintained and pruned on a six monthly basis and grow no taller than the existing tree, and requiring the applicant to undertake works to trim the replacement trees if advised by an adjacent resident that the trees are higher than 1.5m above the northern roofline of 3 St Mervyns Avenue. The applicant opposed such conditions, in particular on the basis that any enforcement measures should be undertaken by the Council and not by adjacent residents.
10. I accept, based on the arborists' evidence, that pruning is feasible, if not ideal according to Mr Castor. I accept Mr Castor's approach that it is preferable to ensure that an appropriate tree is planted so as not to require intervention in the form of pruning. That approach is supported by the decision of Preston CJ in Dipper v Pittwater Council [2006] NSWLEC 273 where at [32] his Honour noted that the preferable planning solution is not to depend on constant maintenance of landscape material, but to replace trees with trees which have the inherent capacity to grow only to the desired height; the alternative of continually maintaining plant material at a certain height involves constant dealings between respective owners. The expert arboricultural evidence before the Court establishes that the cultivar required in the proposed conditions will grow only to the desired height. Based on that evidence, there is in my view no basis on which it would be appropriate to impose a condition requiring regular pruning of the replacement trees. I agree with the applicant that it would be inappropriate to impose a condition enabling adjoining residents to require pruning and that it is preferable that if an issue arises it is dealt with by the Council, and that in any event it is likely that only the replacement tree planted closer to the foreshore would potentially impact on views. While on the expert evidence before the Court it is unlikely to be required, it would be appropriate to impose a condition that if the replacement tree reaches a height of 12.5m and a request is made to the Council by an adjoining resident, and the Council is satisfied that there is an unacceptable impact on views, the Council can request the owner of 3A Buckhurst Avenue to prune the tree. The Council indicated in submissions that such a condition could be drafted.

Orders

1. For the reasons above, I am satisfied that it is appropriate to approve the application to undertake the landscape works proposed in the modification application. The parties are to draft a condition as foreshadowed in paragraph [36]. On receipt of an agreed condition, the following orders will be made in chambers: 1. The appeal is upheld; 2. The application to modify Development Consent No DA 534/2011 for alterations and additions to an existing dwelling house at 3A Buckhurst Ave Point Piper to remove an existing Magnolia grandiflora (Bull Bay magnolia) located along the southern boundary, plant two replacement trees Waterhousia floribunda (Weeping lilly pilly), demolish existing retaining walls around the tree, and construct a new 150mm kerb and garden bed, is determined by approving the modifications as set out in Annexure A; 3. As a consequence of order 2, Development Consent No DA 534/2011 is now subject to the consolidated, modified conditions of consent set out in Annexure B; and 4. The exhibits, other than Exhibits A, B, 1 and 9, are returned.
2. Following delivery of this judgment the parties provided a draft condition as required by paragraph [36] and final orders were made in chambers. Linda Pearson Commissioner of the Court 10404 of 2015 Pearson (C)_Annexure A (18.8 KB, pdf) 10404 of 2015 Pearson (C)_Annexure B (323 KB, pdf)

Amendments 07 October 2015 - Minor typographical changes 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: 07 October 2015