COMMISSIONER: Mr Sleiman lodged a Development Application (DA) under the Environmental Planning and Assessment Act 1979, with Strathfield Municipal Council (Council), seeking the removal of four trees from the rear yard of a property which he owns in Strathfield. The DA is for the removal of the trees only, there is no application for construction of a house or other structures or uses. The Council granted permission for the removal of three of these trees, but imposed condition 2 of the grant of consent, which refused permission for the removal of one Melaleuca decora (White Cloud Tree) (the tree).
Mr Sleiman, the Applicant, appealed this imposition of a condition of consent to the Land and Environment Court of New South Wales (LEC) by Class 1 Application filed 7 May 2020. A section 34 conciliation conference was held on-site on 10 August 2020, with Mr Laurie Smith (for the Applicant) and Mr Nicholas Skelton (for the Respondent), experts for the respective parties, both present. No agreement was reached, the conference was thus terminated, and the matter returned to Court for listing of a hearing.
[2]
The final hearing
The appeal was held on 10 September 2020, via Microsoft Teams in accordance with the LEC 'COVID-19 Pandemic Arrangements Policy, July 2020', under the provisions of s 34C of the Land and Environment Court Act 1979 (the LEC Act).
The Applicant was represented by Ms Nurpuri of Counsel, and Mr Smith, arborist, of About Trees. The Council was represented by Mr Fozzard of Counsel, and Mr Skelton, ecologist, of GIS Environmental Consultants.
The Court had the benefit of evidence adduced from the on-site s 34C conciliation conference on 10 August 2020.
Mr Fozzard provided written submissions at the hearing, while Ms Nurpuri filed and served written submissions on 18 September 2020, with leave of the Court.
[3]
Framework for this decision
The LEC Act establishes the Court's power on appeals at s 39. In making this decision, the Court has all the relevant functions and discretions of the body that made the original decision now being appealed - that is, Council (s 39(2)). Fresh or additional evidence may be given on the appeal (s 39(3)). At s 39(4), the Court is required to consider "…any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest."
The Environmental Planning and Assessment Act 1979 (the 'EPA Act') provides the overarching jurisdiction. At s 4.2 of the EPA Act:
(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless -
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.
Maximum penalty - Tier 1 monetary penalty.
(2) …
(3), (4) (Repealed)
(5) …
(6)-(9) (Repealed)
[4]
Tree removal - general
The primary relevant planning instrument is the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP), Pt 2 of which establishes at cl 7(1) that: "A person must not clear vegetation in any non-rural area of the State to which Part 3 applies without the authority conferred by a permit granted by the council under that Part."
There is a general exemption from any consent requirement at cl 8 (Pt 2) of the Vegetation SEPP:
8 Clearing that does not require authority under this Policy
(1) …
(2) …
(3) An authority is not required under this Policy for the removal of vegetation that the council is satisfied is a risk to human life or property.
The framework for vegetation removal is set out in Pt 3. Permit requirements for vegetation removal vary between local government areas. According to cl 9 (Pt 3) of the Vegetation SEPP, a development control plan will usually declare vegetation to which Pt 3 of the Vegetation SEPP applies:
9 Vegetation to which Part applies
(1) This Part applies to vegetation in any non-rural area of the State that is declared by a development control plan to be vegetation to which this Part applies.
(2) A development control plan may make the declaration in any manner, including by reference to any of the following -
(a) the species of vegetation,
(b) the size of vegetation,
(c) the location of vegetation (including by reference to any vegetation in an area shown on a map or in any specified zone),
(d) the presence of vegetation in an ecological community or in the habitat of a threatened species.
Ms Nurpuri summarised these legal principles in the Strathfield Municipal Council context:
"The Strathfield Local Environment Plan 2012 (LEP) applies to the Property. Historically, clause 5.9 of the LEP dealt with the preservation of trees or vegetation. That clause was repealed following the introduction of the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP)."
Clause 10 of the Vegetation SEPP authorises the relevant Council to issue a permit to a landholder to clear vegetation to which this Part applies in any non-rural area of the State in the form and manner required by the Council (cl 11).
The Respondent's form is the Development Application for Tree Removal, which the Applicant lodged on 24 October 2019 (the Tree Application).
In its assessment of the Tree Application, the Respondent is required to undertake a merit assessment in accordance with the provisions of any Act or environmental planning instrument relevantly applying to the property, including Part O of the Strathfield Consolidated Development Control Plan 2005 (SCDCP).
The paramount objective of Part O of the SCDCP is to consider matters of human life and minimisation of possibility of personal injury above all else.
The Court, on appeal, is re exercising the powers of the Respondent.
[5]
Summary of contentions
Ms Nurpuri contends that:
"it is accepted between the parties that if the Court finds that the Melaleuca decora is not in good health, and the risk is such that a minimisation of the possibility of personal injury is necessary, the Appeal ought to be upheld, and the condition modified."
If the Court does not find that the risk is such that a minimisation of the possibility of personal injury is necessary, then the Court will need to undertake a merit assessment as to whether the Melaleuca decora ought to be removed, and if so, whether the Biodiversity Conservation Act 2016 (BC Act) is engaged, and a Biodiversity Development Assessment Report is required.
The Respondent submits that there are three central issues and a subsidiary issue in these proceedings for the Court to decide:
1. The health and safety of the tree, and whether the tree should be removed on this basis (Contention 5).
2. Whether the tree provides or contributes to local amenity and habitat (contentions 1, 2, 4, 6, 8 and 9).
3. Whether the BC Act is engaged, and if so, whether the removal of which would have a significant impact on the 'Endangered Ecological Community' (EEC) that occurs on the site/ locality (Contention 3 and 7), and
4. If so, the removal would trigger the need for a Biodiversity Development Assessment Report (BDAR) report to determine the appropriate ecological offset, which does not accompany the DA.
Mr Fozzard contends that issue (c) and the trailing issue (d) do not need to be answered in the affirmative to cause the removal of the tree to be denied by the Court.
The Respondent has filed without prejudice conditions, which became Exhibit 3 in the proceedings. The Applicant accepts those conditions, which requires a replacement tree for every tree removed. The replacement trees are to be of the species Melaleuca decora or Eucalyptus tereticornis.
The Applicant does not otherwise appeal the Consent. In light of the amendment made to the Class 1 Application, the outcome of these proceedings ought not affect the operation of the Consent. The removal of the Melaleuca decora is the only issue in dispute, and the Court can be satisfied that the Consent in its current form is otherwise acceptable. For this reason, Ms Nurpuri contends that the outcome of the appeal must be either:
1. If the Applicant is successful, that the appeal is upheld subject to the conditions in Exhibit 3; or
2. If the Applicant is unsuccessful, that the appeal is upheld on the conditions already granted under the Consent.
[6]
Evidence of experts in proceedings
On 4 September 2020, the parties filed a joint expert report prepared by Mr Smith, an expert arborist and ecologist, on behalf of the Applicant, and Mr Skelton, an expert ecologist, on behalf of the Respondent. This became Exhibit C in the proceedings. Both experts acknowledged, and accepted to be bound by the Uniform Civil Procedures Rules 2005 (UCPR), Expert Witness Code of Conduct in Schedule 7 to UCPR and Land and Environment Court Rules 2007 (LECR).
It is agreed that the tree is about 18 metres tall, with a fairly even canopy spread of about 14 metres, and trunk diameter at breast height (DBH) of about 900mm. It is a remnant of natural vegetation, of some 100 years old, and is extremely large for the species.
The tree is located near the centre of the property, and about midway between the two side boundaries. The house is not under the canopy of the tree, however there is a BBQ and outdoor table, and part of the garage under its canopy.
The three trees in the application, for which permission for removal was granted, are two Celtis sinensis (Celtis) and one Grevillea robusta (Silky Oak).
The nine points of contention in the joint report are summarised below:
1. Failure to satisfy the aims of the Vegetation SEPP, SCDCP.
2. The removal of the Melaleuca decora (White Cloud Tree) (the tree) does not maintain and preserve the existing high quality landscape character and amenity of the area.
3. The BC Act does apply to the DA. The tree constitutes the 'Endangered Ecological Community' (EEC). The DA requires assessment under Part 7 of the BC Act.
4. The removal of the Melaleuca decora does not maintain and preserve the desired future character of the area.
5. The Melaleuca decora is a mature tree of reasonably good health and safety.
6. The Melaleuca decora is not to be removed because it provides remnant tree cover, high amenity and habitat.
7. The removal of the Melaleuca decora will cause a detrimental impact on native and local fauna.
8. The Melaleuca decora provides a positive contribution to the streetscape, character and surrounding amenity.
9. The removal of the Melaleuca decora is against the public interest.
Ms Nurpuri contended that, with respect to contentions 1, 2, 4, 5, 8, and 9 of the Joint Expert Report (Exhibit C), the aims of the Vegetation SEPP and SCDCP are not satisfied.
[7]
Tree risk
Highlighting the objectives of Part O of the SCDCP, which requires, above all else, matters of human life and minimisation of possibility of personal injury, the Applicant initially submitted that the tree represented an unacceptable risk.
Ms Nurpuri contended that Mr Smith is appropriately qualified to assess tree risk, and had undertaken a Level 2 Tree Risk Assessment Qualification (TRAQ) assessment on the tree. The Court accepted that Mr Skelton does not possess the appropriate Arboricultural qualifications, nor is he appropriately Tree Risk Assessment Qualified, to undertake such an assessment.
Ms Nurpuri submitted that "Accordingly, his evidence with respect to the health of the Melaleuca decora and any risks associated should be rejected and Mr Smith's evidence ought to be preferred and given determinative weight."
While I accept that Mr Skelton is not qualified to undertake a TRAQ or similar risk assessment, this does not impair his ability to provide evidence with respect to the health of the Melaleuca decora, as this is in his expert domain.
Mr Smith contends that the Melaleuca decora has exceeded 80% of its life expectancy, and is in a state of irreversible decline, posing an imminent risk (within 12 months) of personal injury. His opinion was that it was 50% dead and had deteriorated significantly between his initial site inspection in 2019, and his most recent inspection in August 2020. His observations were that there was a large degree of canker on the Melaleuca decora, evident in the site photos at Appendix 1 to Exhibit C.
Further, the location of the Melaleuca decora in the rear of the property, whilst unlikely to cause property damage, is still located in an area occasionally or constantly occupied by the residents of the dwelling, and it was very likely that branches would fail within 12 months, and would do so on their own load without any external influence. At a height of 18m, and the distance a branch would fall, even a branch in small diameter has the possibility to cause personal injury. It is the minimisation of this possibility that the SCDCP seeks to avoid, above all else. Ms Nurpuri submits that the Court ought not disregard this risk.
Ms Nurpuri contends that Mr Smith's evidence, that the likelihood of branches failing within 12 months to cause personal injury (or, in his words, 'significant' injury), is sufficient to warrant its removal in accordance with the SCDCP.
Mr Smith, being appropriately qualified, had undertaken a TRAQ assessment, following which he concluded (at page 67 of Exhibit C):
"8.9 Conclusions of Tree Risk Assessment
1…Risk rating of dead, dying and partially decayed 1st order branches within subject tree.
2. In my professional opinion, the likelihood branches in this tree to fail within 12 months, striking the patio on (the property), and resulting in minor property damage is Low.
3. In my professional opinion, the likelihood of the dead, dying and partially decayed 1st order branches in this tree to fail within 12 months, striking the pedestrians on (the property), and resulting in significant injury is Moderate."
The assessment as to the likelihood of failure is classified based on an evaluation of defects and structural conditions of the Melaleuca decora or its parts, expected loads, site conditions and weather. Mr Smith indicated that the likelihood of failure is not limited to 2nd or 3rd order branches but includes 1st order branches given the health and state of the tree.
The property is improved by a dwelling, the occupants of which use the entirety of the property for residential purposes. Ms Nurpuri submits that it is axiomatic that the occupants would spend time in the rear of the property. On Mr Smith's evidence, there is an imminent risk of personal injury to those occupants or other pedestrians from failing branches.
Ms Nurpuri asserts that there is no reason why the Court should not accept Mr Smith's evidence of the TRAQ assessment in full. As accepted by the parties, if the Court does accept Mr Smith's evidence with respect to the health of, and risks associated with, the Melaleuca decora, its removal is warranted, and there is no need for any further merit assessment.
Given that the Court, on appeal, is re exercising the powers of the Respondent, it is reasonable that, being qualified in TRAQ and having inspected the tree on-site, I also undertake a TRAQ assessment.
While Ms Nurpuri framed Mr Smith's assessment in light of the objectives of the SCDCP, which require, above all else, matters of human life and minimisation of possibility of personal injury, given that Mr Smith chose to use the TRAQ assessment process, it is also reasonable to examine this risk assessment in the context of the philosophy described in the Introduction to the TRAQ assessment process, within the Tree Risk Assessment training manual;
"It is impossible to maintain trees free of risk: some level of risk must be accepted to experience the benefits that trees provide. The National Tree Safety Group (NTSG), which is a partnership of organisations in the United Kingdom, has drafted a guidance document (2011) that identifies five key principles for tree risk management. This document provides a foundation for balancing tree risks and benefits:
• Trees provide a wide variety of benefits to society.
• Trees are living organisms and naturally lose branches or fall.
• The risk to human safety is extremely low.
• Tree owners have a legal duty of care.
• Tree owners should take a balanced and proportionate approach to tree safety management."
Should "matters of human life and minimisation of possibility of personal injury, above all else" be applied literally, as proposed by Ms Nurpuri, rather than a "balanced and proportionate approach to tree safety management", then all trees near human habitation would require removal. If similarly applied to motor vehicles, no one could risk driving. The risk of death or injury from doing so is far greater than that related to trees. Taken literally in the extreme, society would necessarily become paralysed, as humans could not retire to bed, for fear of the relatively high risk of injury that may occur from falling out. A pure ideological approach to risk is thus unworkable.
As occurs with most other activities and structures in a functioning society, assessment and management of risk must be informed by a common sense pragmatic approach, and measured against benefits. I am satisfied that the SCDCP objectives with respect to tree risk, should be considered in this context.
In Sheldon v The Council of the City of Sydney [2020] NSWLEC 1619, at [19], Galwey AC examines tree risk, with a similar pragmatic determination:
"[19]…Therefore, pursuant to cl 8(3) of the Vegetation SEPP, consent is not required if Council is satisfied the Lilly Pilly is a risk to human life or property. Clearly, Council was not satisfied that this was the case, having found its consent was required, and denying such consent. I too find that cl 8(3) does not exclude the need for consent to remove the Lilly Pilly. Where people or property assets are near trees, within the target zones of branch, stem or root failure, or within their root zones (for property damage) there is inherently some level of risk. Risk standards generally promote a qualitative description of risk levels, using terms such as low, medium, high and very high. It would be absurd if cl 8(3) was referring to the entire range of risk levels when providing such a broad exemption for tree removal under the Vegetation SEPP, as that would result in almost all trees being exempt. It is more likely that such an exemption only applies where the risk of a tree causing injury or damage is high or very high, and even then perhaps only when the risk is imminent, or likely to be realised in the short term, so that there is no time for detailed analysis of suitable mitigation measures that might avoid tree removal."
For my TRAQ assessment of the tree, I initially consider the targets under and around the tree. The TRAQ methodology is shown at Appendix 8, pages 63-67 of Exhibit C. I concur with Mr Smith that the roof of the patio, and pedestrians in the backyard are relevant targets, but the available evidence suggests that the 150mm part size used by Mr Smith is excessive.
Plate 10 of Exhibit C shows "failed 2nd and 3rd order branches", but these appear to be of a 10-50mm size range. Plates 8 and 9 show canker wounds on dead branches, but these remain intact in the canopy. No other plates exhibit wounds from failed branches.
This is consistent with the findings at the site-visit of August 2020. The Court was taken to a pile of branches; some were collected more recently, while some were older, and intertwined with turf. These branches were said to have fallen from the tree. Their average size was about 1.5 metres in length by around 15mm thick.
None were large branches, and nor did Mr Smith show the Court wounds on the tree, from which larger 1st order branches may have broken.
Likelihood of failure is the next variable considered. Mr Smith classified the likelihood of failure of dead and partially decayed 1st order branches throughout the canopy as imminent. The Macmillan Dictionary defines imminent as "likely or certain to happen very soon", while TRAQ applies it when "Failure has started or is most likely to occur in the near future, even if there is no significant wind or increased load."
Again, the available evidence contradicts this assessment. At the site visit, the Court was not shown wounds on the tree, from which larger 1st order branches may have broken over recent months, nor similar branches where collapse or breakage was considered highly likely to happen. No branches failed during the site visit, nor was there evidence introduced as to large branches having failed in the period between Mr Smith's initial site inspection in 2019, and the final hearing in September 2020. The nature of the pile of small branches inspected at the site visit suggested that they had fallen progressively over time, and no evidence to the contrary was provided.
Mr Smith assessed the Occupancy rate of the patio as constant, and that of pedestrians as occasional, which TRAQ defines as occupied less than 50% of the time. I concur with this finding, and accept that, should a branch fail, the likelihood of impact on the patio is high, but on a pedestrian, the likelihood of impact is low.
The Failure and Impact Matrix is next used to determine the combined likelihood of failure impacting the target. Due to Mr Smith's Failure potential ranking of 'Imminent', his ranking of a failed branch impacting the patio is 'Very likely', and it is 'Somewhat likely' for pedestrians.
Based on the evidence adduced, however, I consider the appropriate Likelihood of branch Failure to be 'Probable' for small branches, and 'Possible' for larger 1st Order branches. This results in a ranking, of a failed branch impacting the patio, of 'Somewhat likely', and of a failed branch impacting pedestrians of 'Unlikely'.
I accept Mr Smith's view that the Consequences of failure is likely 'minor damage' to the patio, and possible 'significant injury' to pedestrians, though this degree of injury is perhaps overstated, given the small branches actually brought before the Court.
Even allowing for significant injury, however, the final TRAQ Risk rating, determining the level of risk as the consequence of the likelihood of a tree failing and impacting a specified target, and the severity of the associated consequences, is Low for both the patio and for pedestrians, as opposed to Mr Smith's result of Low for the patio and Moderate for pedestrians.
The Court has thus found that the tree does not present a risk to people or property of a level greater than low. This is normally considered an acceptable level of risk, but nonetheless, should also be measured against environmental and ecological benefits provided by the tree.
[8]
Tree Health and Longevity
At 5.2 of Exhibit C, Mr Smith defines Melaleuca decora as "a tall shrub or tree generally growing to 5-7 metres high with paperbark, life expectancy is about 100 years. (Ecology of Sydney Plant Species, Benson D and Mc Dougall L, 1998).
Mr Skelton submits that tree's trunk has a girth of 900mm with no faults or decay, and this is not challenged by Mr Smith. Beyond this agreement, the joint experts are completely apart with respect to tree health and anticipated longevity.
Mr Smith says that in his opinion the "tree is becoming sparse in the upper canopy, and is turning brown throughout the rest" and "the foliage in the upper canopy has died and been shed".
Mr Smith says the tree exhibits significant quantities of dieback throughout its canopy. He suggests that, while the retention of some dead twigs throughout a healthy tree is considered to be normal, these usually contained older foliage that became supressed after 2 or 3 years after growth had occurred. The older leaves are no longer required by the tree, nutrients are re-absorbed, and the leaves and twigs die, and are shed.
In this situation, however, Mr Smith contends that approximately 40% of the upper canopy of this tree is dead, resulting in defoliation in numerous second and third order branches, and the death of many 1st order branches.
Mr Skelton says the canopy is balanced, not misshapen and of an attractive, interesting and stable shape and the pompoms of leaves at the ends of the branches is typical of this species.
Mr Smith submits that Plates 8&9 of Exhibit C show cankers on dead 1st, second and 3rd order branches, which has compromised the branches, resulting in numerous 120mm - 150mm branches falling to the ground. He contends that one of these cankers has destroyed almost 50% of the wood, and this branch is at risk of imminent failure.
Mr Skelton submitted that there is some canker present in smaller branches, but it is a minor infection, it is not significant, and is not impacting structural integrity or overall health. He contends that, based on the observed characteristics of this species of tree, the thick paper bark of this species is likely to provide some resistance to canker. He acknowledges that some 3rd order branches and smaller have been shed and may be shed as the tree compartmentalises the infected areas, however the size and amount of branches is small as canker is typically a very slow and minor infection and it does not require action.
Based on the tree's presence in photographic evidence from 1942, the experts agree that the tree is likely 90-100 years old. Applying Benson and McDougall's anticipated "life expectancy of about 100 years", Mr Smith contends, at 2.1 of Exhibit C, that the tree "is an over mature specimen and it has reached the upper limits of its safe life expectancy, and that this is unlikely to be significantly increased by treatment and/or tree surgery techniques." At 2.1.1, he defines an over-mature tree as "a tree greater than 80% of its life expectancy, in situ, or senescent with or without reduced vigour, and declining gradually or rapidly but irreversibly to death" (Draper and Richards (2009)).
To the contrary, Mr Skelton considered that the tree is healthy and structurally sound and likely to live another 10-20 years. He notes that "there are green leaves throughout and there are no dead main branches. This species retains fine dead twigs in the canopy and this is not a sign of poor health."
The experts' polarised views shall be considered in context. Though the definitions applied by Mr Smith may appear to render the tree's death as imminent, as with any living creature, the vagaries of genetics and environment combine to produce individuals within any given species, which exhibit characteristics and performance, such as size, vigour and life expectancy which far exceed those of the average specimen of a given species. My observations on-site leads me to conclude that this tree may well exhibit such characteristics.
The Applicant had the opportunity to conduct an aerial inspection of the tree, being one of a group of normal Level 3 assessments recommended under the TRAQ regime, where additional information is required for sound decision making. This could have clarified issues surrounding strength of branches, and the contested extent of live branches within the canopy. No such aerial inspection was conducted.
In the absence of this clarity, on the basis of my site inspection, and the arboricultural expertise which I bring to the court, I am not persuaded by Mr Smith's opinion that the tree has reached the upper limits of its safe life expectancy, nor that the tree is rapidly declining. My inspection revealed a greater live foliage cover than Mr Smith has noted, no obvious evidence of wounds from 120mm - 150mm branches falling to the ground, the pattern of deadwood is not typical of dieback, and I am not satisfied that the tree's death is imminent.
The impact of the drought of 2018 and 2019 also requires consideration. Many trees suffered extensive water stress through this period, with common symptoms being defoliation, and branch death. With a return to an average or above average rainfall pattern in 2020, notwithstanding a time lag, most trees are re-establishing canopy density. Given that the tree has a relatively intact and undisturbed root system, I am persuaded by Mr Skelton's opinion that this tree is fairly healthy, and retains regenerative capacity, particularly in response to improved environmental conditions.
Clause 1.4 of the SCDCP includes "Ensure that development incorporates the principles of Ecologically Sustainable Development", a major tenet of which is the Precautionary Principle."
This tree is 18 metres tall, far beyond the anticipated 'normal' size expected of this species, it is 80-100 years old, Mr Skelton suggested it had heritage value, and it is listed on Council's Significant Tree Register. While this listing does not afford the tree a higher level of protection from intervention, a listing of Significance normally involves a considered process against established criteria, and it is thus reasonable to presume that the listing of the tree was based, at least in part, on its outstanding proportions, and advanced age.
Even though the tree's health and longevity prognosis remains uncertain, it has been deemed to represent a low risk. Given the tree's significance, therefore, it is appropriate that the Precautionary Principle be applied, such that intervention with the tree, and particularly its removal, should not be based on the possibility that it has necessarily reached the end of its life, largely defined by average life expectancy, unless there is a justified basis for doing so.
Mr Smith consistently submitted that the tree had reached the upper limits of its safe life expectancy, and that this is unlikely to be significantly increased by treatment and/or tree surgery techniques. When pressed as to why the tree could not be regenerated, Mr Smith suggested that due to the tree's over-maturity, it would take years to achieve, and that it may have insufficient vitality, to successfully regenerate.
This issue deserves further examination. Pruning of dead, poorly attached, and damaged branches from the canopy would necessarily improve tree safety, and based on Mr Smith's analysis, a considerable proportion of the canopy fits this description.
Other common and simple maintenance procedures, such as mulching of the root zone, may well produce beneficial results. Extensive international research supports the efficacy of such practices, and it is surprising that Mr Smith dismissed such options, apparently without consideration.
The original Notice of Determination from Council, dated 20 November, 2019, noted at [2]:
"Within 14 days of the date of determination the applicant is to engage the services of an AQF level 3 arborist who is to carry out urgent, appropriately scheduled remedial care (of this poisoned tree), that shall include mulching, fertilising, and irrigation for a period of not less than 36 months."
Notwithstanding that this poisoning is unconfirmed, there was no sign at the August 2020 site visit of any such treatment being implemented.
[9]
Local amenity and habitat
The Joint experts are relatively closer on amenity and habitat. They both agree that the tree is correctly classified as a remnant indigenous tree. They both identify numerous native flora species on the site, and surrounding the site. While they differ on whether the tree is part of an endangered ecological communities (EEC), they both accept the tree is a species which is characteristic of Cooks River/Castlereagh ironbark forest, and Mr Smith accepts that at least three or possibly four of the 11 indigenous species located on site, are indicative of the flora species Cooks River/Castlereagh ironbark forest.
Mr Fozzard contends that under Part O of the SCDCP, the Court would have regard to the: "Amenity value of the tree/s including visual amenity, ecological value, heritage significance, and whether the tree/s provide habitat for fauna and/or canopy connectivity".
Mr Smith rated the tree's ecological value as low, reduced from medium, due to dieback, reduced foliage and less food resources. He opines that it would provide low shelter and breeding cavities, and provides "intermittent and/or marginal foraging habitat".
Mr Skelton says that this remnant tree provides high amenity and is likely to be habitat for a wide variety of native day and night birds, bats and invertebrates.
Mr Smith said that he accepted that "local fauna species" would "interact" with the tree, but said that such species would use its resource in much the same way as they do any other native tree or introduced plant. That point was opposed by Mr Skelton who relied upon the size of the tree as providing habitat. Mr Skelton said that: "when the tree is in flower it would be an important local food resource and would be very important for native nectivorous and insectivore, birds, microbats, possums and fruit bats. The large size of this tree means it is likely to be important for behaviour such as territory establishment".
I accept Mr Fozzard's position that irrespective of differences regarding the type and extent of ecological value, the experts agree that the tree provides habitat, and thus amenity value.
Because of "its ordinary or plain appearance" and that it was "only visible to neighbourhood residents and people passing by", Mr Smith submitted that the tree provided low visual amenity. In this respect, Mr Skelton relied heavily on the fact the tree is a large tree. He said that it is an important part of the "streetscape and surrounding character' and its "loss of this tree would significantly reduce the amenity of the surrounding properties" and the enjoyment of the "woodland type surroundings" would be reduced.
Based on my site inspection, the tree's 18 metre height is such that it protrudes significantly above the house, and its wide canopy spread, and unusual form, renders it conspicuous and significant to the local vicinity. I am thus more persuaded by Mr Skelton's position.
Considering other factors influencing merit assessment of the tree, Ms Nurpuri noted that the immediate area surrounding the property has a considerable number of trees, as does the whole locality, and whilst the Melaleuca decora is seen in the streetscape given its height, though largely blocked by the dwelling, its removal would not endanger the Respondent's primary objective of maintaining the leafy dominance of trees. I am not persuaded by this argument. It is a generalised approach that, if broadly adopted, would cumulatively reduce local canopy cover, and there is no reasonable basis for accepting this position here.
Ms Nurpuri also contended that further satisfaction of the SCDCP objective of maintaining the leafy dominance of trees, is achieved by the imposition of condition 9 in the Consent, which requires the replanting of a replacement tree for every tree removed of the species Melaleuca decora or Eucalyptus tereticornis. Indeed, Mr Smith considered replanting would improve the ecology of the property ''four-fold'. The replanting of trees for every tree removed would further preserve the desired future character of the area, achieving the aims of the Vegetation SEPP and the DCP.
While very important, this approach does not consider the considerable time lag between tree removal, and when the replacement trees have grown and matured sufficiently to provide environmental services near equivalent to those formerly provided by the trees which had been removed.
[10]
Impact on threatened species and EEC
With respect to contention 3 and 7, that the removal of the Melaleuca Decora is likely to significantly affect threatened species, such that a BDAR is required, I am not satisfied that this is the case. Ms Nurpuri submitted that:
"The Scientific Committee's Final Determination of Cooks River/Castlereagh Ironbark Forest (contained at pages 35 - 39 of Exhibit C), notes, following extensive clearing and major fragmentation and isolation in the area including the Property has effectively eliminated the community. Only small quantities remain".
When challenged on his own mapping of areas in which Endangered Ecological Community was present, Mr Skelton could not identify the Applicant's property as containing the Cooks River/Castlereagh Ironbark Forest. His suggestion that the tree, nonetheless, forms part of a fragmented community, too small to feature on regional mapping, was unsupported by evidence.
Given that there are two mature Melaleuca decora street trees growing in a wide nature strip near the property, and another large specimen in a nearby rear yard, there is insufficient evidence before the Court to support a finding that the removal of this Melaleuca decora is likely to place the species' local occurrence at risk, or significantly affect threatened species.
Though there does not appear to be obvious alteration of soil levels around the tree base, the historical vegetation clearing, and alteration and containment of natural waterways, to facilitate urbanisation, leads me to conclude that this property does not possess values required to be considered part of EEC.
Ms Nurpuri raised issues arising from Mr Smith's initial report from 2019, one of which relates to numerous small splits, detected within the thick paperbark on the tree's lower trunk. Though Mr Smith suggested that the small splits are not a natural feature on this species and may be associated with an overall decline on the vitality of the tree, there are also other more benign explanations, and no valid evidence was presented by Mr Smith to substantiate his opinion.
[11]
Conclusion
The Court finds that the risk associated with the tree is low, such that intervention with the tree to minimise the possibility of personal injury is unnecessary. Should the Applicant wish to further mitigate the risk, however, this can be achieved through minor pruning to remove deadwood.
Based on a merit assessment, the Court confirms contention 5, that the Melaleuca decora is a mature tree of reasonably good health and safety. Retention of the tree satisfies the aims of the SCDCP (contention 1), it provides remnant tree cover, high amenity and habitat (contention 6), and provides a positive contribution to the streetscape, character and surrounding amenity (contention 8).
Conversely, removal of the tree would not maintain and preserve the existing high quality landscape character, or future character of the area (contentions 2 and 4), and will cause a detrimental impact on native and local fauna (contention 7). The tree does not however exhibit qualities that allow in to be considered a threatened species, nor part of an EEC ((contention 3).
I accept the respondent's position; given the DA is for the removal of the trees only, and there is no application for construction of a house or other structures or uses, if the Court finds that the tree is in good health and does not pose an unacceptable safety risks, there is no reason to support the removal of the tree at this stage.
The proportions, and advanced age of the tree, combined with a level of vigour and live canopy cover sufficient to sustain it, leads me to conclude that it is an outstanding example of its species, and this alone provides a sound basis for its retention. It is a significant and valuable tree, and its removal is not in the public interest (contention 9).
[12]
Orders
The orders of the Court are:
1. The appeal is dismissed.
[13]
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Decision last updated: 30 December 2020