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McKeen v Wollongong City Council [2011] NSWLEC 1101 (3 May 2011)

New South Wales Land and Environment Court

McKeen v Wollongong City Council [2011] NSWLEC 1101 (3 May 2011)

Last Updated: 3 June 2011

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 96 of the Environmental Planning & Assessment Act 1979 (the Act) against the refusal by Wollongong City Council (the council) to modify development consent DA-2010/1052 for a 'New split level dwelling house' on Lot 4 DP 1135696, 152 Brokers Road Balgownie (the site).
   
2. The modification sought by the applicant relates to Condition 2 'Trees to be retained'. The applicants seek to modify condition 2 to permit the removal of a Bunya Pine ( Araucaria bidwillii ) (the tree) on the basis that falling cones from the tree could cause damage to property or injury to any person.
   
3. The tree is one of five trees on the site conditioned for retention by council. Condition 2 states:
   

"The developer must retain Trees No. 1-5 as numbered on the submitted Arborist Report by Moore Trees, dated August 2010.

The developer must carry out all recommendations as indicated on the submitted Arborist Report by Moore Trees, dated August 2010. In particular the tree protection fencing/methods for the Structural Root Zone3.5 m from the face of the trunks of the Araucaria bidwillii (Trees No 4 and 5). All recommendations listed in Section 4 and the Tree Protection measures laid out in Section 5 of the report must be demonstrated on the Site, Engineering and Architectural plans and supporting documentation for the Construction Certificate submission."

4. The tree is identified as Tree 4 in the Arborist Report and is one of an original row of nine Bunya Pines that flanked the internal road/shared access. However, in arboricultural and council reports concerning the nine Bunyas, it is referred to as Tree 3. In this judgment it is referred to as the tree.
   

Assessment framework

5. Wollongong Development Control Plan 2009 (WDCP) applies; in particular Part E General Controls - Design Controls E6 - Landscaping. Clauses 5.2.3 and 5.2.4 relate to Streetscape Character and state that landscaping should be used to soften the impacts of buildings and car parking areas when viewed from the public domain.
   
6. WDCP Part E General Controls - Environmental Controls E17 concerns Preservation and management of Trees and Vegetation. Relevant objectives are:
   

2.1 Objectives of this part of the DCP
(d) Conserve trees and other vegetation of ecological, heritage, aesthetic and cultural significance.
(f) Manage non-native vegetation in accordance with its cultural significance and landscape significance.
(g) Ensure that any new development considers and maximises the protection of existing vegetation in the site planning, design, development, construction and operation of the development.

Relevant background

7. The site is one of four Torrens Title lots on a subdivision approved in 2007.
   
8. The original development application DA-2005/1690 for the subdivision proposed six lots and the construction of five new dwellings. This application proposed the removal of the tree. However, prior to the lodging of the subdivision application with council on 12 October 2005, the owner of the land commissioned an ' Arborist Report for Potential Subdivision at Lot 48 DP164360 Brokers Road, Balgownie, NSW' from Lenice Tuckett-Carr. That report, dated 17 November 2004, assessed the current health of the trees on the site and assigned each of them a retention value using the TREEAZ Assessment System [a rating system used quite commonly by arborists] as to whether any of the trees on the site should be a material constraint to development. The report states that the trees were planted in 1962.
   
9. The Tuckett-Carr report describes the Bunyas and each tree was assigned a rating of A1 - Trees worthy of being a material constraint (suitable for retention for more than 10 years) - 'No significant defects and could be retained without remedial care'. The recommendation with respect to these trees (p 10 of the report) states in part:
   

Dependent of the layout of the proposal for the site, there may be requirements to remove SOME of these trees. There are no single specimens that would stand out as candidates for removal, but there MAY be scope to remove some of the Bunya Pines without loss of the overall avenue effect of this stand. Removing alternate trees, or the like, would maintain the visual amenity these trees currently provide. This should be further discussed with Council at the planning stage.

10. A council file note to the planner dated 23 November 2005 raises concerns about the proposed removal of the Bunya Pines in the subdivision DA. The author states that the trees "should almost qualify for trees of cultural significance". The memo notes the high rating assigned by the arborist. The note states that there are pros and cons of retaining the trees including the "dangerous nature of huge cones and spiky leaves dropping".
    
11. In a further arborist report prepared for the subdivision in July 2006, Andrew Burnett of Burnett Trees found that the Bunyas to be "worthy of retention in some form due to the size and integrity of the row and due to their good health and structure." He considered that in achieving a compromise to enable development that "some Bunya-Bunya Pines will require removal to provide access". The Burnett report discusses the general habit of the trees, in particular in relation to fruit production, and then possible management options.
    
12. On 29 May 2007, council approved a 4-lot subdivision that permitted removal of Bunyas 2, 4 and 6 for access purposes, but retained Tree 3 (the tree in question). Approval required compliance with the Tuckett-Carr and the Burnett reports.
    
13. On 5 August 2010 the applicants in these proceedings lodged DA-2010/1052 for a dwelling house on the site in which the removal of Tree 3 was proposed.
    
14. In preparing the DA, the applicants commissioned an 'Arborist development assessment report' from Paul Vezgoff of Moore Trees (Exhibit C). This report dated August 2010 considered five trees on the site. The tree in question is noted as Tree 4. Tree 5 is another Bunya identified as Tree 1 in the previous reports. The Moore Trees report notes that both Bunyas " are in good health and appear structurally sound. Subdivision works have created drive way entry points for each lot and the associated landscaping has been sympathetic to reducing extreme soil level build up around the base of the trees by way of small stone retaining walls ." The recommendation for Tree 4 is cl 4.2 of the report and states:
    

Tree 4 is proposed to be removed for the purpose of the development to allow for increased solar access to help the house solar power hot water heating system. Unfortunately this tree will cause large solid blocks of shade to cover the solar power system for the dwelling thus preventing the system to operate effectively. This species is known to produce large fruit. The size of the fruit could potentially cause serious injury or damage to anything below the canopy. Another consideration is the location of the garage and associated driveway below the canopy of this tree. If Council does not consent to the removal of the tree then the TPZ and SRZ measurements for Tree 5 shall be applied to Tree 4. Uplifting of the canopy to a height of four (4) metres would also assist in the clearance to the garage. The canopy should be inspected every two (2) years for mature [sic] fruit and if found, the fruit should be removed before reaching maturity.

15. On 22 October 2010 council granted consent for the construction of the dwelling but conditioned the retention and protection of both Bunya Pines in accordance with the Moore Trees report. This condition of consent (Condition 2) is the subject of the appeal now before the Court. It is noted that the applicants have commenced construction of their dwelling.
    

The hearing

16. The hearing was originally set down for a mandatory conciliation and arbitration hearing under s 34AA of the Land & Environment Court Act 1979 (the Court Act) . As there was no agreement, the conciliation was terminated and the matter automatically proceeded to a hearing as is required under s 34AA(2)(b). After hearing the evidence and submissions, the judgment was reserved.
    
17. Subsequently, it was determined that the matter was erroneously listed for hearing, as s96 applications cannot be heard under s 34AA (s 34AA(1)). The appropriate listing should have been a s 34 conciliation conference. A telephone mention was convened and the position was made clear to the parties. The parties were given the option to allow me to proceed with the judgment or to relist the matter to be heard by another Commissioner. The parties agreed to me proceeding with the matter in accordance with s 34(4)(b) of the Court Act.
    
18. At the hearing, expert evidence was given by Mr Danny Draper, Consulting Arborist on behalf of the council. The council engaged Mr Draper to prepare a report to address the tree management matters relating to the s 96 application. He was engaged on the basis of an article he had written for an arboricultural trade magazine on managing Bunya pines in urban environments. The report contains general information about Bunya Pines and their fruiting habits as well as comments on the tree.
    
19. In Mr Draper's evidence at 2.9 he states that " there is no doubt that fruit fall from A. bidwillii can be hazardous"... however he also states that " as the amount of fruit produced by the tree is unknown the actual volume of fruit should be monitored to determine frequency and density of yield. This will allow the fruit to be harvested and managed and for the extent of the harvest, size of yield and frequency to be better predicted as part of the garden maintenance for the site."...
    
20. Appended to Mr Draper's report is an article published in an arboricultural trade magazine Arbor Age titled " Araucaria bidwillii - Bunya-Bunya Pine - Management in urban environments". This article was written by Mr Draper and edited by Mr Mark Felgate a former tree management officer with Wollongong City Council. The article is comprehensive and includes, by way of an example, a table recording the fruit numbers of five Bunya Pines in the Ku-ring-gai Council area over nine consecutive summers. The variability of fruiting over the years is significant between individuals and within individuals.
    
21. Mr Draper, in his statement of evidence, concludes:
    

3.1 The tree could be retained and the fruit production once known removed with minimal risk as a schedule of programmed maintenance.

3.2 The tree is of high significance and provides long term amenity at the front of the site with Tree 3 and its heritage can be integrated into the site and managed with minimal risk with fruit monitoring and harvesting annually or biannually as part of the landscape maintenance of the site.

22. During the hearing, the applicant raised the issue of the spiky and sharp nature of fallen branchlets and the risk they may pose, particularly if they fell onto a child. Whilst this was not part of the original appeal, the issue was canvassed. The applicant asked Mr Draper's opinion on the risk the branchlets posed. Mr Draper considered that while the leaves were quite sharp and leathery, the mass of the branchlets was low and thus falling branchlets would pose a low risk of injury.
    
23. During the hearing, we observed one very weathered and partly decomposed Bunya cone at the base of the tree. It is unknown whether that fruit was from that tree or how old it was.
    
24. As the appeal involves a Bunya Pine and as the applicants in their written evidence raised the case of Newman v Eizenberg [2009] NSWLEC 1203, a matter heard pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) , I drew the parties attention to two other cases from that jurisdiction and gave them time to consider them. The cases are Adamski v Betty [2007] NSWLEC 200 and Langtip v Granstrom [2008] NSWLEC 44, both of which involved Bunya Pines.
    

The applicants' position

25. The applicants seek the deletion of Condition 2 and the removal of the Bunya Pine on the basis that the large fruits the tree may produce may fall and cause injury to anyone on their premises or cause damage to their property.
    
26. They contend that council approved the dwelling and was well aware of the proximity of the tree to the pathway to their front door and to the driveway. They state in the rationale appended to their appeal that council was aware of the limits on their allotment due to flooding, easements and height restrictions imposed by the new LEP. They contend that these limits restricted their ability to locate the house further away from the tree.
    
27. The applicants contend that, " council should have taken these limitations into account when they approved the original development and subsequently in considering the application for removing the tree ". Apart from the risk the tree poses to anyone on their property, they submit that as it also overhangs the right of way and the adjoining property, it poses a risk to others.
    
28. In support of their position they contend that council permitted other trees in the row to be removed when the subdivision was approved and therefore a precedent exists.
    
29. They also rely on Newman v Eizenberg [2009] NSWLEC 1203, a matter heard pursuant to the Trees (Disputes Between Neighbours) Act 2006. In this matter a Bunya Pine was ordered for removal because of its increasing risks to property and persons. The applicants contend that this matter involved a Bunya Pine that overhung a dwelling and pathway and therefore a similar situation to their own.
    
30. Apart from Newman v Eizenberg the applicants cite references to fruit drop from their arborist's report and make various references to documents and policies from other councils and authorities (Gold Coast, Hunter Water), a plant reference book and a nursery. They give two instances where Hornsby and Greater Taree Councils permitted the removal of heritage listed Bunya Pines on the basis of actual or potential risk of injury from falling cones.
    
31. In reply to council's statement of facts and contention in relation to the amenity of the area, the applicants contend that Bunya Pines are not appropriate for contemporary residential development due to their fruit drop and that their replacement with more suitable native vegetation would improve the amenity now and into the future.
    
32. They also contend that council has been inconsistent in applying their guidelines for Preservation and management of Trees and Vegetation, in that this policy allows trees to be removed without a Tree Management Permit or development Consent "where a tree or other vegetation is located within 3 metres of an existing habitable building". They consider that this should be applied to a new dwelling.
    
33. The applicants produced a council brochure outlining the factors council considers in assessing trees. One of those factors is the impact on health. The applicants contend that this includes psychological and mental health and that, once they move in, their psychological well-being will be detrimentally affected by having to live with the risk the tree poses.
    
34. The applicants stated that they had received an email from council's senior planning officer issuing approval for the removal of the Bunya Pine, however no evidence of that email was provided. They do accept that it may have been a mistake but in the alternative, permission may have been granted.
    
35. In conclusion they contend that while solar efficiency was once a consideration for the removal of the tree, the main issue is one of safety. They submit that safety issues should outweigh all other matters of landscape and heritage.
    

The respondent's position

36. Council contends that the modification application should be refused for the following reasons.
    
37. The removal of the tree would result in non-compliance with clauses 5.1 and 5.6 of Chapter E6 of the Wollongong DCP 2009, as well as the objectives in Chapter E17. Specifically, removal of the tree does not reinforce the natural attributes of the site and it would diminish the contribution of the established trees to the character of the streetscape. With respect to Chapter E17, removal of the tree contravenes the requirements to conserve significant trees and to maximise the protection of existing trees with new development.
    
38. The tree is healthy, significant in its context and worthy of retention. In support of this, they refer to the consistently high ratings given to the tree by all arborists, including the applicants' own. Council contends that the retention of the tree, as well as other Bunya Pines, was assessed and determined as part of the subdivision that created the site and the approval of the applicants' dwelling. Mr Reilly contends that this was an exhaustive process.
    
39. The applicants chose the block and sought to have a dwelling design approved that they knew was close to a tree that had been identified as a site constraint. Council's position is that the arborists' reports identified ways of managing the tree.
    
40. Mr Reilly referred to the decision of Preston CJ in Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133. Part of that judgment deals with fears or concerns without rational or justified foundation. Relevant is [203] which reads in part: 'Consideration of the relevant matters must be based on probative evidence. The decision reached must also involve a process of logical reasoning'. In the matter subject to this appeal he contends that the applicants' fears are subjective but the evidence is that while the risk is foreseeable it can be managed.
    
41. With respect to the applicants' reliance on the order in Newman v Eizenberg, the respondent contends that in this matter, the tree was there first. Mr Reilly referred to Adamski v Betty at [28] where the Commissioners said:
    

28 However, we are also of the view that it would be equally unreasonable to require removal of the tree if there were any realistic possibility of an alternative methodology for dealing with the foreseeable risk of injury to persons in the rear yard.

42. Mr Reilly submits that the tree can be managed and that apart from the recommendations made in the various arborists' reports, orders made in both Adamski v Betty and Langtip v Granstrom show how this can be achieved.
    

Findings

43. After viewing the tree and the site and reviewing the evidence, I find that the applicants were aware of the risks posed by the tree and they chose to purchase the land and build a house in close proximity to it. The applicants have relied on what they saw as a precedent in the council's approval of the removal of three of the trees as part of the approval of the subdivision. In this regard, I am satisfied that the previous removals were to provide access to the new lots. The retained trees are a dominant feature of the site and the former larger lot from which it was sub-divided.
    
44. While it is a fact that Bunya Pines can produce large fruit, there is no evidence of the fruiting history of this tree. The applicants' appeal is based on the fear of something happening and is not based on any evidence particular to this tree. I note that no particular concerns are raised about the other Bunya Pine on the site. This too overhangs the access road and part of the dwelling.
    
45. The one decayed fruit at the base of the tree is not evidence of fruit production by this tree. The information in Mr Draper's report and appended article refers to many examples of the intermittent fruiting habit of this species. This is inferred in the Moore Trees report by the recommendation to inspect the tree every 2 years for fruit [it is assumed the arborist meant 'immature' fruit to be removed before it matured].
    
46. The Trees Act cases are relevant. That jurisdiction requires a determination of jurisdictional matters relating to whether or not a tree subject to an application under s 7 Part 2 of the Trees Act 'has caused, is causing, or could in the near future cause damage to property or could cause injury to any person' (s 10(2)). If any of the tests in s 10(2) are satisfied, the jurisdiction of the Court is enlivened and the Court may make an order under s 9. Section 9 enables the Court to make any orders it sees fit to remedy, restrain or prevent damage to property or injury to persons as a result of a tree subject to the application.
    
47. While this matter before the Court is clearly not a Class 2 Trees Act matter, the applicants in part rely on the finding in Newman v Eizenberg that ordered removal of the Bunya Pine in that matter. However, the Court in Adamski v Betty and Langtip v Granstrom found the Bunya trees worthy of retention, but ordered routine inspections and fruit harvesting down to the detail of specifying the size of cones and the time of harvesting. Those orders have relevance to this matter as they relate to an acceptable manner by which the risk posed by fruit falling from the tree can be managed.
    
48. In this matter, apart from the applicants being aware of the risks associated with the tree, they were also aware of a method of managing the risk should it arise. The assessment and development approval processes applied by the council for both the subdivision and the approval of the applicants' dwelling have been consistent as has the information provided in the arborists' reports. The trees are an obvious feature of the site and the immediate streetscape and the matter of fruit management can be addressed if and when it arises.
    
49. On the facts before me I am not satisfied that the condition of consent #2 should be deleted or that the tree should be removed.
    

Orders

50. The Orders of the Court are:
    
    • (1) Appeal No 10127 of 2011 is dismissed.
      
    • (2) The exhibits except exhibit 1 are retained.
      

J Fakes
Commissioner of the Court