Land and Environment Court New South Wales Medium Neutral Citation: Torrero Holdings Pty Ltd v Inner West Council [2023] NSWLEC 1008 Hearing dates: 22 November 2022 Date of orders: 11 January 2023 Decision date: 11 January 2023 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders: (1) the appeal is upheld; (2) the Applicant's application TREE-2022_0050 for the removal of one (1) tree identified as tree T1 at 2 West Street Lewisham is approved, subject to the conditions at Annexure 'A' and the tree location plan at Annexure 'B'; (3) the exhibits are returned, except Exhibits B and 1. Catchwords: TREE PERMIT APPLICATION – application to remove trees – whether removal of trees is justified – consideration of damage to property – consideration of conditions of consent. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Marrickville Local Environmental Plan 2011, cll 1.2, 6.4 State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 2.6 Cases Cited: Timbs v Shoalhaven City Council [2004] NSWCA 81 Texts Cited: Marrickville Development Control Plan 2011 Category: Principal judgment Parties: Torrero Holdings Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: P Rigg (Solicitor) (Applicant) S Turner (Solicitor)(Respondent) Solicitors: Peter R Rigg Solicitors (Applicant) Inner West Council (Respondent) File Number(s): 2022/171452 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: Torrero Holdings Pty Ltd (the Applicant) has appealed the refusal by Inner West Council (the Respondent) of its tree permit application TREE-2022-0050 seeking approval for the removal of trees (the Application) on land described 2 West Street, Lewisham (the Subject Site). 2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. 3. The Subject Site is located on a prominent corner at the intersection of West Street and Railway Terrace, opposite the West Street railway bridge as per following figure which illustrates the location from Google Maps. 1. A site inspection was undertaken at the commencement of the hearing and the balance of the hearing was undertaken at Court. The Application 1. The frontage of the Subject Site to West Street and Railway Terrace is occupied by three large specimens of Cook Pines (Araucaria columnaris) a species endemic to New Caledonia. The trees are identified in this judgment as trees T1, T2 and T3. 2. The Parties' expert arborists (see below at [13(1)]) had agreed that each of the trees would continue to grow but were approaching their maximum height, noting that in 2021 Mr Jackson had reported that the heights of the trees were 24.3m for T1, 22.6m for T2 and 25.8m for T3. 3. Applicant's tree permit application TREE-2022-0050 originally sought approval for the removal of trees T2 and T3, which are 'circled' in red pen in the following figure taken from the Respondent's filed Statement of Facts and Contentions in the proceedings, with tree T1 to the left and outside the red 'circle'. 1. By notice of motion on 23 September 2022, the Applicant was granted leave to amend it's the Application to include the proposed removal of tree T1. The context of the Application 1. The Subject Site also benefits from a consent granted by the Respondent Council on 12 August 2021 in relation to development application no. DA/2021/0071 for alterations and additions to the existing building on the Subject Site, and a change of its use to a boarding house. 2. The consent granted to DA/2021/0071: 1. included the following drawing prepared by Tier Architects that was included in the Respondent's bundle in this appeal and which has been amended to illustrate the position of each of trees T1, T2 and T3 relative to the existing building on the Subject Site. 1. required retention of all three of the trees T1, T2, and T3, and imposed certain specific conditions in relation to the protection and management of those trees should the consent be taken up. 1. Notwithstanding the requirements of the consent granted to DA/2021/0071, and as noted in the Respondent Council's assessment report in relation to that application, Inner West Council had previously approved the removal of tree T1 on 4 May 2021 under tree permit application TREE/2021/0218. Contentions 1. In the current appeal, the Respondent said that the Applicant's proposed removal of trees T1, T2, and T3 should not be approved as this would be contrary to the Council's relevant controls and objectives under Part 2.20 of Marrickville Development Control Plan 2011 (MDCP) in relation to tree management. 2. The Court was assisted in its considerations of these contentions by the evidence of the Parties' arboricultural and planning experts as follows: 1. the Parties' expert arborists: 1. Mr Ross Jackson, for the Applicant; and 2. Ms Elizabeth Looije, for the Respondent; 1. the Parties' expert engineer/building surveyor: 1. Mr Boris Miladinovic, for the Applicant; and 2. Ms Kerry Hunt, for the Respondent. Statutory context Environmental Planning and Assessment Act 1979 1. The following provisions of s 4.15(3A) of the EP&A Act are of particular relevance in this appeal: "(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority – (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria." Marrickville Local Environmental Plan 2011 1. The following provisions of Inner Marrickville Environmental Plan 2011 (MLEP) are of relevance in this appeal: 1. the provisions of cl 1.2 which provides the aims of the plan as follows: "(a) to support the efficient use of land, vitalisation of centres, integration of transport and land use and an appropriate mix of uses; (b) to increase residential and employment densities in appropriate locations near public transport while protecting residential amenity; (c) to protect existing industrial land and facilitate new business and employment; (d) to promote sustainable transport, reduce car use and increase use of public transport, walking and cycling; (e) to promote accessible and diverse housing types including the provision and retention of affordable housing; (f) to ensure development applies the principles of ecologically sustainable development; (g) to identify and conserve the environmental and cultural heritage of Marrickville; and (h) to promote a high standard of design in the private and public domain." 1. the provisions of cl 6.4 in relation to terrestrial biodiversity, the objective of which is to maintain terrestrial biodiversity, but which only has application to the assessment of a development application (DA), and so has limited, if any, relevance to this appeal in which the Court is not considering an appeal against a decision of the respondent concerning a DA. Marrickville Development Control Plan 2011 1. The provisions of the following parts of MDCP are of relevance in this appeal: 1. the provisions of Part 2.20 in relation to tree management and which: 1. have the following objectives: "O1 To establish a coordinated approach to the assessment and management of trees. O2 To ensure the safety of the community, private property and public infrastructure assets. O3 To protect trees within and adjacent to development sites and to ensure that all new development provides an opportunity for existing and new trees to grow. O4 To manage the urban landscape so trees continue to make a significant contribution to its quality, character and amenity. O5 To maintain and enhance the amenity of the Inner West Local Government Area through the preservation of appropriate trees and vegetation. O6 To ensure the cost burden of meeting tree canopy targets does not fall unreasonably on property owners and lower income residents in particular. O7 Encourage private property owners to plant new trees and replace inappropriate trees in order to meet Council's tree canopy targets." 1. provide the following specific controls of relevant to this appeal: 1. the provisions of section 3, which establish the circumstances under which consent is not required for tree work, and none of which apply to the circumstances in this appeal; 2. the provisions of section 4, which provide exemptions to the provisions of section 3, and which include, relevantly in this appeal, the circumstance where the proposed works are contrary to a development consent that requires trees to be retained; 3. the provisions of section 5 including those of control C3, under which the three trees T1, T2, and T3 are all identified as protected (prescribed) trees as each exceeds 6m in height, and which notes that under the provisions of s 2.6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 a person must not clear vegetation without the consent of Council; 4. the control C6, under which approval to remove a protected tree that is not on the Respondent's heritage tree list or a tree that is an Aboriginal object or is located within an Aboriginal place of heritage significance, requires a tree works permit such as has been applied for by the Applicant; 5. the provisions of section 5.2 of the MDCP, which provide application assessment criteria that apply to the assessment of the Application in this appeal, and which, as identified by the Parties, relevantly include for this appeal: (i) Distance Automatic approval will be granted for any tree located within two (2) metres of a dwelling house or garage unless the tree is protected under section 4 of this part. The distance is measured horizontally from the closest point of the trunk at one (1) metre from ground level to the closest point of the vertical alignment of the building structure's wall via a permit application. The issued permit will identify the type of any replacement tree required with a preference for advanced species. As a condition of the permit, verification of the planting of any replacement tree is also required. iii. Property Damage The likelihood of the tree having an adverse effect on property including trees renowned for having extensive root systems, which cause damage to footings of houses or, trees that cause blockages to domestic sewer and drainage lines. ix. Potential Future Damage The potential for the tree to cause damage in the future is also considered in an assessment for removal. Criteria not considered The following criteria are generally not considered justification for tree removal or pruning: The dropping of leaves, flowers, fruit, sap, seeds or small elements of deadwood (or other natural processes); Insect/animal nuisance; Solar access to solar panel or data receivers; Increase general natural light or reduce shade created by a tree; Enhance view corridors; Minor lifting of driveways, paths and paving or minor damage to outbuildings, garden structures, walls or landscape structures; Damage to underground services (such as sewer lines, water services) and where there are feasible alternatives to mitigate or solve problems and retain the tree; The tree is large or overhanging neighbouring property or roof line; Pruning to reduce height, except pruning to reduce the height of hedge/s. 1. the provisions of control C8 which require that: "C8 Council will require replacement tree/s to be planted as a condition of any consent to remove a tree to effectively maintain the urban forest canopy across the LGA. Where replacement of trees is approved, Council prefers that trees that are removed are replaced on the site with a suitable replacement canopy tree and in a suitable location onsite. However, there may be circumstances when there is no suitable location on site (for example, in the case of small backyards); a financial contribution will be required to be paid to support public tree planting. Fees are set out in Council's fees and charges." 1. the provisions of control C12 which provides as follows: "C12 All development proposals must be designed to maintain or improve the urban forest values of the site by minimising the impact on tree/s and planting compensatory tree/s for tree/s that are proposed for removal. This requirement applies to Council owned trees and trees on private or other property and adjoining land." 1. the following definition within section 7: "Dwelling house means a building containing only one dwelling." Remaining contentions resolved 1. The remaining contentions in the appeal were identified above (at [12]) and resolution of those contentions requires the Court to consider the following questions in the context of the objectives and controls in Part 2.20 of MDCP: 1. should the removal of tree T1 be approved? 2. should the removal of tree T2 be approved? 3. should the removal of tree T3 be removed? 1. I consider each of the questions in turn, and in doing so make the following preliminary observations: 1. it was common between the Parties' expert arborists that each of the three trees T1, T2, and T3, were in healthy condition and they agreed that, notwithstanding issues concerning actual or potential property damage, the trees did not pose any danger to humans in their current form; 2. as the experts had agreed that the trees posed no danger per se I do not embrace a submission from the Applicant at the hearing, citing the case of Timbs v Shoalhaven City Council [2004] NSWCA 81, that approval for removal of the trees ought to be automatic; 3. I agree with the Respondent's submission that the existing building on the Subject Site is currently used as a residential flat building, and has an approval for use as a boarding house, and consequently: 1. the existing building on the Subject Site should not be considered a dwelling house for the purposes of assessment of the Application under the provisions of Part 2.20 of MDCP; and, most relevantly 2. the provisions (see above at [16(1)(b)(v)]) under which an automatic approval might be granted for removal of a tree located within one metre of a dwelling house should not apply in relation to the Application in this appeal; 1. the Applicant had submitted that, notwithstanding that the existing building on the Subject Site is used as a residential flat building, the use of the term 'dwelling house' in the assessment criteria in section 5.2 of Part 2.20 of MDCP merited the application of flexibility consistent with the requirements of s 4.15(3A) of the EP&A Act (see above (at [14]). The Applicant's submission was made, in particular, in relation to the distance criteria and the automatic approval of applications for removal of a tree within two metres of a dwelling house. However, I do not embrace this submission because: 1. the terms of s 4.15(3A) of the EP&A Act state that its provisions relate to the "development that is the subject of a development application", and the subject of this appeal is a tree works permit application and not a development application; and 2. the provisions of s 4.15(3A)(b), if they were to apply to the Application in this appeal, would require the application of flexibility should the Applicant's proposal provide a reasonable alternative solution that achieves the objects of the relevant controls in Part 2.20 of MDCP (see above at [16(1)(a)]), and I am not satisfied that the Applicant's proposed removal of trees T1, T2, and T3 would achieve the objectives of Part 2.20 of MDCP; 3. the terms of the distance criteria state that it would not apply in a situation where the tree proposed for removal is protected under section 4 of Part 2.20 of MDCP, and one of those applicable situations in section 4 is where the proposed work is contrary to a development consent, which is the situation in this appeal; 1. while I note the Respondent's submission that the consent granted to DA/2021/0071 required retention of the three trees as a condition of consent, that does not, in my assessment, preclude me granting approval to the Applicant's tree permit application in part or in whole if the application is assessed as having merit in relation to the assessment criteria in Part 2.20 of MDCP (see above (at [16(1)(b)(v)]). Should the removal of tree T1 be approved ? 1. From the site view undertaken with the Parties at the commencement of the hearing, tree T1 was confirmed to be located closest of the three trees to the existing building on the Subject Site. 2. The arborists agreed that the structural root zone of tree T1 has a radius of 3.1m and the base of the tree's trunk was located not much more than one metre from the wall of the existing building. 3. Excavations undertaken by Mr Jackson as recorded by him in his report of March 2021, which was tendered as evidence at the hearing, confirmed that the tree's roots were located near to the front of the building. 4. Mr Jackson had concluded, and Mr Miladinovic had agreed in his evidence, that the damage to the existing building's structure, including to footings, the wall of a front room, and the front fence, in the vicinity of tree T1, had been caused by the root system of that tree. 5. This damage was also evident during the site view undertaken at the commencement of this hearing. 6. The Parties' engineering and building surveying experts did not agree as to whether tree T1 should be removed for the following reasons: 1. Ms Hunt, for the Respondent, said that, in her view, the Applicant should undertake certain works to cut out the foundation stones of the existing building in the vicinity of the tree T1's roots and then undertake bridging works across those roots to secure the building from future damage; 2. Mr Miladinovic, opined that, while he agreed with Ms Hunt that a bridging support system could work in theory, he did not assess this to be a viable option because the roots in the structural root zone (SRZ) of tree T1 are large and it was not possible to identify adequate areas within the SRZ to support the bridging structure without damaging those structural roots. 1. The Parties' expert arborists agreed that if it were required, the removal of tree T1 could be effected without causing damage to the root systems of either trees T2 or T3. 2. Having considered the evidence of the Parties' experts, and their submissions, and having viewed the circumstances of tree T1 and its root system first hand during the site view, I accept the evidence of Mr Jackson and Mr Miladinovic that: 1. the root system of tree T1 is causing damage to the existing building on the Subject Site; 2. the circumstances of the roots within the SRZ of tree T1 make it unlikely that an engineering solution can be found to repair the damage already caused by the root system of tree T1 and prevent potential for future damage from that root system. 1. As a consequence of my findings above (at [26]) and having regard to the assessment criteria in section 5.2 of Part 2.20 of MDCP, particularly in relation to property damage and potential future damage, I am satisfied that, the removal of tree T1 should be approved. 2. In reaching this conclusion I note that the Respondent has previously approved an application for removal of tree T1, although I do not rely on this previous decision as a basis for arriving at my own conclusions in relation to tree T1. Should the removal of tree T2 be approved? 1. The Parties' expert arborists agreed that the structural root zone of tree T2 has a radius of 3.0m and the base of the tree's trunk was located at around 2.8m from the wall of the existing building, although it was some 1.1m from a column at the righthand side of the verandah as observed the front of the existing building from West Street. 2. At the hearing the Parties' expert arborists confirmed their agreement that the root systems of trees T2 and T3, and particularly those in each tree's SRZ, are entwined and provide mutual support, such that removal of tree T2 would place the viability of tree T3 at risk. 3. However, for reasons provided below (see [46]), I have concluded that the removal of tree T3 by itself is not justified. 4. Given this, the assessment of the proposed removal of tree T2 must establish that there is a clear imperative justifying its removal because, given the trees' co-dependency, an approval to remove tree T2 will have the consequential effect of placing the viability of tree T3 at risk or, given this risk, requiring its removal. 5. The joint report of the Parties' aboricultural experts had included details of the outcomes of further root mapping undertaken by the Applicant's expert, Mr Ross Jackson, in relation to which: 1. the mapping had identified a root of 180mm diameter from tree T2 that had grown under the concrete front verandah of the existing building at a depth of 580mm which disappeared under the foundations of the building below a front window; 2. the roots of tree T2 had contributed to damage to the masonry front fence of the property along West Street; 3. Mr Jackson stated that the 180mm wide root, which passed directly below the sandstone footing of the existing building, would generate more than enough force to dislodge footings and brickwork above. 1. The Respondent's expert arborist, Ms Looije, had stated in the joint expert report she prepared with Mr Jackson that: 1. the root mapping did not establish whether the root at a depth of 580mm had interacted with any part of the building or footing, and 2. in her opinion, and noting the configuration of roots in the SRZ of tree T2, an engineering solution to support the building could be installed given the depth and position of the root. 1. The Respondent's expert building surveyor, Ms Hunt, stated that the 180mm root from tree T2 appeared to correlate with the cracking under the ground floor window above the root area, but also noted that there was no translation of this cracking through the building either at above the window or through the height of the wall. Ms Hunt also noted that there was no displacement of the roof area above the root. 2. Having considered the evidence of the Parties' experts, and their submissions, and having considered the assessment criteria in section 5.2 of Part 2.20 of MDCP, I am not satisfied that's sufficient reasons have been established by the Applicant to justify removal of tree T2. 3. In particular, I note the remarks of the Respondent's experts above (at [34] and [35]) and, having viewed the circumstances of the root from tree T2, including its substantial depth below the wall of the existing building and the area available for the Applicant to undertake potential remediation works to footings, I agree with them that an engineering solution should be possible to ensure that damage to the building can be repaired and future risk of damage mitigated. 4. I am also satisfied that, given the fact that the trees, including tree T2, are approaching maturity, the repairs required to stabilise or replace the front masonry wall, and mitigate the risk of future damage, can be undertaken without the need to remove tree T2, and without so without giving rise to the consequential potential impacts on tree T3. 5. Based on the above findings, I conclude that the Applicant's application to remove tree T2 should be refused. Should the removal of tree T3 be approved? 1. The Parties' expert arborists agreed that the structural root zone of tree T3 has a radius of 3.01m and the base of the tree's trunk was located at around 3.2m from the wall of the existing building, although it was some 1.9m from a column at the righthand side of the verandah as one observed the front of the existing building from West Street. 2. A root from tree T3 was mapped as extending towards the side verandah of the existing building along the Subject Site's boundary with Railway Terrace. 3. The Respondent's arborist observed that, in her opinion, there was no direct connection established by the root mapping between the root from tree T3 and structures associated with the building. 4. Consistent with that observation, during the site view it was not apparent to me that the root system from tree T3 had caused any significant damage to the existing building on the Subject Site, and no significant damage was visible to the side of the building adjacent to tree T3. This observation was consistent with the arborists' agreement that the tree itself was located more than 3m from the wall of the building. 5. In the joint expert report prepared with Mr Jackson, the Respondent's expert arborist, Ms Looije, stated that: 1. she agreed that the structural roots of trees T2 and T3 were damaging the masonry fence fronting West Street; but 2. it had not been demonstrated, to her satisfaction, that the fence could not be successfully reconstructed such that damage to the roots of tree T3 was avoided. 1. She also opined that reconstruction of the fence might be effected using either in a masonry or some other form along with a technique such as suspending the wall elements of the fence between piers to avoid damage to the tree's roots. 2. For reasons provided above (at [42], [43], [44] and [45]), including the observation of Ms Looije concerning the reconstruction of the masonry front wall, with which I agree, and having considered the assessment criteria within section 5.2 of Part 2.20 of MDCP, I am satisfied that the Applicant's application for removal of tree T3 should be refused. Conclusion in relation to principal contentions in the appeal 1. In summary, I have concluded that: 1. the removal of tree T1 should be approved, subject to conditions, for reasons provided above (at [27]); and 2. the proposed removal of trees T2 and T3 should not be approved for reasons provided above (at [36], [37] and [46]). Other matters Conditions of consent 1. The Parties have filed with the Court proposed conditions of consent that were agreed other than in relation to a proposed draft condition 7 concerning compensatory tree replacement plantings. 2. Given the conclusions of this judgment that one of the three trees on the Subject Site (tree T1) should be approved for removal and two of the trees (trees T2 and T3) will be retained on the Subject Site, the Court's preference is to impose the Respondent's original form of proposed condition 7 requiring that the Applicant plant one (1) compensatory replacement trees to ensure the preservation of the landscape amenity and sustain the urban forest. 3. I am satisfied that there is no reason why a street tree planted in the nature strip outside the Subject Site should not establish successfully in that location noting that: 1. the Respondent's proposed conditions illustrate the area of the nature strip outside the Subject Site in which the replacement tree should be planted; and 2. the nature strip along West Street to the east of the Subject Site is of comparable width to that immediately outside the Subject Site and it contains multiple examples of successful street tree plantings.. Conclusions 1. On the basis of my assessment and conclusions above in this judgment, I am satisfied that: 1. the Applicant's application to remove the tree referred to as tree T1, being a specimen of Cook Pine (Araucaria colmnaris) should be approved, subject to conditions as discussed above (at [48] to [50(2)]); 2. the Applicant's application to remove the trees referred to as trees T2 and T3 should be refused. 1. As a consequence, the Court makes the following orders: Orders 1. The Court orders: 1. the appeal is upheld; 2. the Applicant's application TREE-2022_0050 for the removal of one (1) tree identified as tree T1 at 2 West Street Lewisham is approved, subject to the conditions at Annexure 'A' and the tree location plan at Annexure 'B'; 3. the exhibits are returned, except Exhibits B and 1. M Chilcott Commissioner of the Court ********** Annexure A Annexure B 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: 11 January 2023