Land and Environment Court New South Wales Medium Neutral Citation: Scuccimarra v Canterbury-Bankstown Council [2023] NSWLEC 1025 Hearing dates: 23 August 2022, 24 October 2022 Date of orders: 19 January 2023 Decision date: 19 January 2023 Jurisdiction: Class 1 Before: Espinosa C Decision: In proceedings 2021/353867, the Court orders: (1) The appeal is dismissed. In proceedings 2022/134247, the Court orders: (1) The applicant is to pay the respondent's costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. (2) The appeal is upheld. (3) Development application DA-203/2022 is determined by granting consent to the application subject to the conditions in Annexure A. (4) All exhibits are retained. Catchwords: DEVELOPMENT APPEAL – tree removal – whether development application for built form required - orders TPO APPEAL – reasons for removal of tree - orders Legislation Cited: Canterbury Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979, ss 1.3, 5.9, 8.7, 8.15 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Sch 14 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cll 1.18, 3B.61 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, cll 9, 12 Trees (Disputes Between Neighbours) Act 2006, s 7 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Segal & Anor v Waverley Council [2005] NSWCA 310 Sheldon v The Council of the City of Sydney [2020] NSWLEC 1619 Texts Cited: Canterbury Development Control Plan 2012 Category: Principal judgment Parties: Frank Scuccimarra (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: L Nurpuri (Applicant) M Bonanno (Solicitor)(Respondent) Solicitors: Mills Oakley (Applicant) Canterbury-Bankstown Council (Respondent) File Number(s): 2021/353867 2022/134247 Publication restriction: No Judgment 1. This judgment determines two proceedings which were dealt with together as follows: 1. Class 1 Miscellaneous Appeal pursuant to cl 12 of State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017(Vegetation SEPP), now s 2.12 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021(Biodiversity SEPP 2021), being an Appeal against the refusal to issue a Council permit to remove a Quercus robur (English/common oak) pursuant to Tree Management Order Permit No. 658159 at 51 Ryrie Road, Earlwood legally described as Lot 59 in DP 10987 (the Site) in proceedings number 2021/353867 (SEPP Proceedings). 2. Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an Appeal against the refusal of a development application No. DA-203/2022 seeking development consent for the removal of one Quercus robur (English Oak) (Proposed Development) from the Site in proceedings number 2022/134247 (DA Appeal). 1. It is relevant to note at the outset that the Proposed Development was amended by the Applicant to include the planting of two replacement trees in accordance with Replacement Tree Location Plan Rev C, Drawing LP01, prepared by EziGrow dated 28 August 2022 (Ex G) reproduced at Fig 2 below. It is also relevant that the parties have agreed on terms of conditions of consent should the DA Appeal be upheld (Ex E). Agreed Draft/Proposed Conditions of Consent in identical terms were filed on 19 October 2022 for the DA Appeal (Ex E) and for the SEPP Proceedings (Ex F). The Respondent qualified its agreement to the conditions to be limited to the wording as drafted and that the Respondent had concerns with the Replacement Tree Location Plan Rev C (Ex G). 2. By motion dated 11 May 2022 and heard 17 May 2022 the two proceedings were joined and the evidence in one proceeding is the evidence for the other proceeding. 3. The proceedings commenced on site and there were no objectors present on Site. 4. The site is zoned R3 Medium Density Residential under Canterbury Local Environmental Plan 2012 (LEP) and has a total lot size of approximately 897.8m2. There is an existing brick, one storey, three bedroom, one bathroom dwelling house on the Site. 5. This case is about the reason for the proposed removal of a single Quercus robur (Oak tree) in a medium density residential zone and the proposal to plant two replacement trees on the Site in locations which will not impede future development of the Site either as a single lot or as an amalgamated development lot. The Applicant seeks consent and approval by way of a Tree Management Order pursuant to the Biodiversity SEPP 2021 and, or in the alternative, by way of development consent (EPA Act). The Respondent's case is that the relevant provisions applicable to the Canterbury-Bankstown local government area place limitations on when consent to remove a tree can be granted and that the Applicant does not satisfy those limitations. The Respondent submits that: "The Council is not happy about the removal of a tree merely for the purposes of making convenient a Code SEPP application. If the tree is damaged, if the tree is causing danger to life and property, if the tree otherwise meets with the DCP requirement, then yes, that's a correct reason for doing it, but just because it is inconvenient for the purposes of a CDC application, that is not a correct reason for getting rid of the tree." (Transcript 23 August 2022, page 18 at [5] ) 1. In opening, the Respondent states that "to use the SEPP Vegetation in non-rural areas, which talks specifically about getting rid of, or allows trees to be removed, when they are unhealthy, it talks about lopping them, it talks about cutting them back when they are damaged, it talks about removing them altogether. It does not give you the ability to get rid of a tree because it is inconvenient." (Transcript 23 August 2022, page 17 at [45]) I will come back to the relevant applicable provisions which the Court is to consider in determining these appeals. 2. The Applicant contends, in the context of contentions raised in both appeals, the central issue for the Court to determine is whether the removal of the Oak tree is reasonable and that in considering the reasonableness of the removal of the Oak tree, the following matters are relevant: 1. The health and structure of the Oak tree; 2. The orderly and economic use and development of the Site; 3. Whether the Oak tree is suitable, or whether two replacement trees is a better outcome. 1. The parties rely on the following three Joint Expert Reports: 1. Joint Expert Arborist report filed 24 May 2022 prepared by Stuart Sutton, Arboricultural Expert on behalf of the Applicant and Mathew Jean Da Prato, Arboricultural Expert on behalf of the Respondent regarding the SEPP Proceedings contentions. (Arborist SEPP JER) (Ex 3); 2. Supplementary Joint Expert Arborist report filed 25 July 2022 prepared by Stuart Sutton, Arboricultural Expert on behalf of the Applicant and Mathew Jean Da Prato, Arboricultural Expert on behalf of the Respondent regarding the DA Appeal contentions (Arborist DA Appeal JER) (Ex 4); and 3. Joint Expert Planner report filed 29 July 2022 prepared by Cameron Gray on behalf of the Applicant and Andrew Hargreaves on behalf of the Respondent (Planning JER) (Ex 5). SEPP Proceedings 1. The Applicant filed an Amended Statement of Facts and Contentions on 24 March 2022 (Ex A) in relation to the SEPP Proceedings (SEPP ASOFAC). The Respondent did not file a Statement of Facts and Contentions in Reply in relation to the SEPP Proceedings. An extract from the SEPP ASOFAC illustrating the location of the Oak tree and the existing dwelling on the Site is reproduced below at Fig 1: Fig 1 Extract from ASOFAC: Survey of Site with Oak tree Highlighted 1. The SEPP Proceedings appeal was initially brought pursuant to cl 12 of the Vegetation SEPP on 3 November 2021 and the Class 1 Application was filed by the Applicant on 13 December 2021. Clause 12 of the Vegetation SEPP provides that an applicant for a permit may appeal to the Land and Environment Court against the refusal by a council to grant the permit and that any such appeal is to be made within 3 months after the date on which the applicant is notified of the decision or within 3 months after the council is taken to have refused the application (whichever is the later). 2. On 1 March 2022, the Vegetation SEPP was repealed and the relevant provisions have been transferred to the Biodiversity SEPP 2021. Pursuant to s 1(1) in the now repealed Sch 14 of the Biodiversity SEPP 2021, "Parts 1–5, other than clauses 1 and 2, of the Vegetation SEPP have been transferred to the Biodiversity SEPP 2021 as Chapter 2, Parts 2.1–2.5." 3. Accordingly, the subject appeal has been transferred to be one brought pursuant to s 2.12 of the Biodiversity SEPP 2021. 4. The Respondent's case is that the Biodiversity SEPP 2021 does not give the ability to remove a tree because that tree is inconvenient. The Respondent submits that the Applicant is unable to undertake any development on the Site (either on its own or as an amalgamated site) pursuant to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) because certain conditions need to meet before a Complying Development Certificate (CDC) can be sought and issued including, relevantly, the precondition that no tree removal is required unless cl 3B.61 of the Codes SEPP is satisfied. It is agreed that the preconditions of cl 3B.61 of the Codes SEPP are not satisfied due to the size of the Oak tree. The Respondent Council is not satisfied with the removal of the tree for the mere reason that it causes an inconvenient obstacle to applying for, and obtaining a CDC under the Codes SEPP. 5. Ultimately, as expressed in the email dated 18 January 2022, tendered by the Respondent (Ex 1), the Respondent would prefer to deal with the built form development of the Site as a whole rather than a mere tree removal application. The Respondent read out from the email (Ex 1) in opening and repeats its position that using the Vegetation SEPP or the Biodiversity SEPP to "get rid of the tree for the purposes of then doing a Code SEPP application, to which the tree is the only thing that – the only precondition that doesn't allow you to finish it, the council says is wrong." (Transcript 23 August 2022, page 17 at [32]-[34]) 6. The Respondent acknowledges that the email in Ex 1 is not pleadings. 7. The Applicant submits that "contrary to the manner in which the Respondent put its opening submission, there is no requirement under the Vegetation SEPP (or now the Biodiversity SEPP) that a development application accompany an application for clearing, nor does it require vegetation to be dying or dangerous to permit its removal. Such an application can be made irrespective of the condition of the tree, and irrespective of the circumstances. The reasonableness of clearing vegetation is then the subject of assessment." (Applicant Written Submissions at par 18) 8. The Biodiversity SEPP 2021 includes the following relevant definitions at s 2.2: clear vegetation, includes— (a) cut down, fell, uproot, kill, poison, ringbark, burn or otherwise destroy the vegetation, or (b) lop or otherwise remove a substantial part of the vegetation. permit means a permit issued by a council under Part 2.3. vegetation means a tree or other vegetation, whether or not it is native vegetation. 1. Part 2.3 of the Biodiversity SEPP 2021 deals with Council permits for clearing of vegetation in non-rural areas. Section 2.9(1) provides that this part applies to vegetation that is declared by a development control plan (DCP) to be vegetation to which this part applies. 2. A person must not clear vegetation in any non-rural area of the State to which Part 3 of the Vegetation SEPP applies without the authority conferred by a permit granted by the council under that part (cl 7(1) Vegetation SEPP). Part 3 of the Vegetation SEPP confers power on the Respondent to issue a permit if it relates to clearing vegetation as declared by the Canterbury Development Control Plan 2012 (CDCP) (formerly cl 9, Vegetation SEPP now s 2.9, Biodiversity SEPP 2021). Tree Preservation is included at Part B3 of the CDCP. Control C1 in Part B3.2.1 of the CDCP relevantly declares that: "A person must not ring bark, lop, prune, remove, injure or deliberately destroy any trees 5m in height or greater an/or with a trunk diameter of 150mm or greater measured at 1.4m above ground level without a permit or development granted by the Council, except as otherwise stated in Clause 5.9 Preservation of Trees or Vegetation of the LEP or this chapter of the DCP." 1. Notwithstanding the repeal of cl 5.9 of the LEP, this provision of the CDCP is otherwise saved by the operation of the Biodiversity SEPP 2021 and cl 5.9 of the LEP is only relevant to the extent that there is something to the contrary to that expressed in Part B3.2.1 of the CDCP. 2. The Applicant contends that the permit to remove the Oak tree should be granted firstly because the Oak tree is damaged and in poor health and secondly, because the retention of Oak tree is preventing orderly and economic use and development of the Site (SEPP ASOFAC). The Applicant then contends that the following contention may be resolved by conditions of permit: 1. Replacement planting following issue of permit to remove Oak tree. "Reasonable replacement planting with achieve the following relevant objectives contained in Part B3.1 of the CDCP 2012: 1. Objective O2 by improving the physical and visual appeal and amenity of the local area upon facilitating a healthy and native urban tree canopy; 2. Objective O3 by facilitating the planting and management of suitable replacement trees in a safe and healthy condition." (ASOFAC, pages 8 and 9) Health of the Oak tree (Contention 1, SEPP ASOFAC) 1. The Oak tree is located in the middle of the rear yard of the Site as depicted in Fig 1, it is approximately 16m tall with a canopy spread of approximately 10m and has a Diameter at Breast Height (DBH) of 700mm. It is not disputed that the tree is larger than the size of tree able to be removed without a permit pursuant to cl 3B.61of the Codes SEPP. 2. In relation to the health of the Oak tree, the SEPP ASOFAC provides that removal of the Oak tree is warranted having regard to the relevant matters for consideration in Part B3.5 of the Canterbury-Bankstown Development Control Plan 2012 (CDCP) (SEPP ASOFAC, page 6). The CDCP provides a number of non-exhaustive matters to be considered when assessing proposed removal of a tree at Part B3.5. The SEPP ASOFAC includes a table addressing the relevant controls of Part B3.5 which I reproduce as follows: Control Consideration Assessment of the Oak tree C1(a) Health and structure of the tree The Applicant says that the Oak tree is damaged and in poor health and should be removed. Particulars (a) The Oak tree has a moderate level of dieback and epicormic growth present, as well as significant borer damage and cambium lifting. This damage is widespread extending up into the second order branches. There is significant scar tissue underneath the lifted bark, which is illustrated in Figures 3 and 4 of Arboricultural Impact Assessment prepared by EziGrow dated 10 October 2021 The Oak tree does not have a Safe Useful Life Expectancy of more than 5-10 years. C1(b) Defects of trunk and canopy As above C1(c) What damage is likely should the tree or part of it fail Likely damage to fencing if the Oak tree or part of it fails. C1(d) Its contribution to the streetscape The Oak tree is not prominent in the streetscape and furthermore, it is partially obscured from some public viewpoints by the existing street trees (e.g. Brushboxes on Ryrie Road and Bottlebrushes on William Street). C1(e) Its habitat value The habitat value of the Oak tree is very low. C1(f) How, on the balance of probabilities, the tree may impact in the future on major structures, land and neighbouring properties The Oak tree is already over mature and does not pose any significant impact from further growth – other than from shredding branches as mentioned above. C1(g) The number of existing established trees on the property The Oak tree is the only large tree remaining on the Site. C1(h) Its prominence in the landscape The Oak tree is prominent within the Site as it takes up most of the backyard. There is very little space left for other landscaping under or around the tree. C1(i) Whether the tree is protected under the Threatened Species Conservation Act 1995 The Oak tree is not protected under the Threatened Species Act. C1(j) Australian Standard for the protection of trees on development sites AS 4970- 2009 (Provides guidance on how to decide which trees are appropriate for retention and the means of protecting those trees during the construction process) The Oak tree dominates the rear yard of the Site. Its Tree protection Zone (TPZ) is 8.4m from the trunk and this circle of protection encompasses most of the rear garden. The Oak tree severely restricts the usage of the property and its potential for redevelopment. It would be very difficult to protect under any substantial redevelopment of the Site. 1. The Applicant submits that in the context of Council's refusal to remove the Oak tree and the granting of permission for "removal of all deadwood and pruning up to 15% crown thinning of the tree's foliage" on 9 December 2021, Council must necessarily have conceded to aspects of the Oak tree being dead and had some concerns for safety. (Applicant Written Submissions at par 32) 2. The Respondent submits that the shedding of leaves and branches of itself is not a reason to condemn the tree and relies on the decision of Barker v Kyriakides [2007] NSWLEC 292 (Barker). That decision is authority for a tree dispute principle in that decision is as follows: "The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree." 1. For the purposes of these proceedings, I note that a tree dispute principle is a statement of a probable outcome from a chain of reasoning aimed at reaching a list of appropriate matters to be considered in making a decision concerning an application which has been made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006. The Court will set out tree dispute principles, from time to time, when appropriate cases arise, to provide an understanding of how the Court has approached a particular aspect of such disputes. While tree dispute principles are stated in general terms, they may be applied to particular cases to promote consistency. Tree dispute principles are not legally binding and these proceedings are not a tree dispute. 2. Similarly, Planning principles are not legally binding and they do not prevail over councils' plans and policies. Planning principles assist when making a planning decision, including: 1. where there is a void in policy 2. where policies expressed in qualitative terms allow for more than one interpretation 3. where policies lack clarity. 1. In the SEPP Appeal, there are policy provisions in the Biodiversity SEPP 2021 and the CDCP and these do not lack clarity in my opinion. The Court is tasked with assessing the two appeals in accordance with the objectives and controls for Tree Preservation contained in Part B3 of the CDCP. Accordingly, the decision of Barker does not provide the Court with the assistance intended of a planning principle. I consider the non-exhaustive matters for consideration listed in Control C1 of Part B3.5 of the CDCP as listed in the table reproduced above. These are the controls which the consent authority looks to in order to decide when lopping or cutting down a tree (Respondent Written Submissions at par 35). What do the experts say about the health of the Oak tree? 1. Mr Da Prato, for the Respondent, expresses his opinion that although there is likely to be damage to the fence if the Oak tree, or part of it, fails, and accepting that there is canopy dieback and deadwood with epicormic growth, if routine maintenance including pruning is undertaken, the concerns of the Oak tree can be resolved. He assessed the likelihood of branches failing on 10 March 2022 as "probable" in an ISA Basic Tree Risk Assessment Form assessed by Mathew Da Prato (Ex 3), however he concludes that the consequences of failure to be minor and the risk to be low. In the SEPP JER, at par 29 Mr Da Prato appears to concede there is some risk associated with deadwood when asserting "should the tree be maintained through crown lifting, deadwooding the general usability and amenity under the tree would be increased." 1. Mr Sutton for the Applicant prepared the Arboricultural Impact Assessment on 10 October 2021 (SEPP Proceedings) and 21 March 2022 (DA Appeal), both of which are annexed to Arborist SEPP JER, Ex 3. Mr Sutton identifies the Oak tree as an already over mature tree having "a moderate level of dieback and epicormic growth present, as well as what appears to be significant forer damage and cambium lifting due to this damage. This damage is widespread extending up into the second order branches but appears to be largely healing. There is significant scar tissue underneath the lifted bark, however there is evidence that the borers have attempted to return with small holes exuding kino evidence on the tree. The presence of borer is not necessarily a reason for the decline of a tree, but rather a symptom of overall poor tree health. Substantial borer damage can ring bark a tree causing dieback and sometimes death." 1. Mr Sutton's long-term prognosis for the Oak tree is that it will continue through phases of decline and healing until it eventually succumbs to the borer and either dies or the risk of branch failure becomes too great. On that basis, his opinion is that the Oak tree does not have a Safe Useful Life Expectancy (SULE) of more than 5-10 years (Applicant Written Submission at par 35). 2. The Applicant referred the court to the general objectives of tree preservation contained within Part B3.1 of the CDCP, in particular Objective 3 which is "[t]o encourage the preservation, management of suitable existing trees" (Emphasis added.). 3. Having considered the evidence of the experts and the submissions of the parties, I am satisfied that the Oak tree, in its form, state of health and location, is not a suitable existing tree. I find that the Oak tree is not in good health and that the evidence supports my finding that there is a probability of branches or limbs failing resulting in the space beneath the Oak tree, a very large portion of the rear yard of the Site, being rendered unusable. 4. I conclude that Contention 1 in the SEPP ASOFAC is supported by the evidence and that all matters in Part B3.5 of the CDCP have been considered when assessing proposed removal of the Oak tree. Orderly use and development of the Site (Contention 2, SEPP ASOFAC) 1. The objectives of the EPA Act at s 1.3 are relevant in the assessment of the DA Appeal, and the objectives include the objective to promote the orderly and economic use and development of land. 2. It is an agreed proposition that having regard to the tree protection zone of 8.4m radius, the rear half of the Site is largely unusable and that the development potential of the Site is constrained or even sterilised by the presence of the Oak tree (Transcript 24 October 2022 page 35). 3. I conclude that the evidence supports Contention 2 of the SEPP ASOFAC and I find that removal of the Oak tree will promote the orderly and economic use and development of the Site. I also accept the Applicant's submission that there are various pathways available to an applicant to develop a site in accordance with the laws as they have been drafted and intended by parliament. Replacement tree planting condition (Contention 3, SEPP ASOFAC) 1. The Applicant's proposal is to plant two replacement trees which are to be maintained, together with a mechanism for informing Council of the growth of the replacement trees, to a height of 6m, without the ability to remove those trees unless prior consent from Council is obtained. 2. The Applicant refers the Court to the decision of Sheldon v The Council of the City of Sydney [2020] NSWLEC 1619 to support the submission that the proposed requirement to annually submit a photo to Council until the replacement trees reach 6m in height to be appropriate. 3. I have referred to the Agreed Conditions (Exhibits E and F) and I have extracted Condition 3 below at [60], and to the Replacement Tree Location Plan Rev C, Drawing LP01, prepared by EziGrow dated 28 August 2022 (Ex G) reproduced at Fig 2 below. I have taken into account that the Replacement Tree Location plan (Ex G) includes a list of replacement tree options as follows: Botanical Name Common Name Pot Size Mature Ht Angophera costata Sydney Red Gum 75L 24m Backhouse citriodora Lemon Mytle 75L 10m Banksia integrifolia Coastal Banksia 75L 15m Eucalyptus citriodora Lemon scented Gum 75L 30m Lephostemon confertus Brushbox 75L 20m Waterhouse floribunda Weeping Lilypilly 75L 18m 1. I note cl 3B.61 of the Codes SEPP applies to a tree height of less than 8 m "for development that is the erection of a new dual occupancy or manor house" and less than 6m "for any other development". 2. The Respondent submits that the Tree Replacement Location Plan (Ex G) raises concerns as to the location of the proposed replacement trees. The experts were cross examined on this aspect. 3. The evidence of Mr Sutton is that the two trees in the locations that are proposed are of no concern to him in consideration of the Site as it currently exists. Mr Sutton's evidence is that the two locations proposed are appropriate and reasonable, do not raise any concerns for any damage to the dwelling as it currently exists. Mr De Prato was asked the same questions. He had no concern in relation to the replacement tree at the very rear of the site. With respect to the replacement tree to the south‑west of the existing dwelling, his concern was not that the replacement tree would cause damage to the existing structures or the existing dwelling, his concern was limited to the effect that the location would have on the tree reaching maturity, not in terms of height, but in terms of width. He was asked whether even if the tree did not reach maturity in terms of the width, whether that would have any impact upon the lifespan of that replacement tree. His response to that was that it might, it might not. Mr Sutton's response to that was it would not, and otherwise Mr De Prato raised no concern in relation to that tree in that location. 4. The Respondent made separate submissions as to the likelihood that a certifier for a CDC Application would merely regard the size of the replacement trees and notwithstanding any conditions of consent or conditions of permit, and simply proceed to issue a CDC resulting in the loss of the replacement trees. I accept the Applicant's submission that the Applicant is "entitled to the starting position that there will be compliance with conditions". I do not give any weight to the hypothetical scenario that there will be no compliance with conditions. 5. I am satisfied that Contention 3 of the SEPP ASOFAC is resolved. Conclusions in relation to the SEPP Proceedings 1. For these reasons, I conclude that a tree management order can be issued for the removal of the Oak tree however in the circumstances where there is an application for development consent for the same outcome, I will not grant the permit but will determine the DA Appeal by the grant of consent subject to conditions and I will give my reasons. DA Appeal 1. The Proposed Development is for the removal of a tree (Class 1 Application, Ex D) and planting of two replacement trees in accordance with the Tree Replacement Local Plan Drawing LP01 Rev C (Ex G). 2. The removal of the Oak tree is ancillary to the current use, which is a residential dwelling. I note that Mr Hargreaves, for the Respondent agrees that there is no provision which prevents a development application being lodged for the removal of a tree which is ancillary to residential use (Transcript 24 October 2022 page 34 at [3]). 3. The Respondent's case for the DA Appeal is essentially that there is no proposal for replacement tree planting and is set out in the Amended Statement of Facts and Contentions (DA ASOFAC) filed 27 May 2022 (Ex 2) and particularised under the following four contentions: 1. Unreasonable tree removal – The Application is not supported by sufficient information to justify the isolated removal of a significant tree from the site; 2. Tree replacement under separate consent – the reliance on separate consent to replace the tree is not supported. 3. Public interest; and 4. Undesirable precedent 1. All the contentions in the DA ASOFAC relate to the inconsistency with the objectives of the relevant statutory instruments applying to the Site on what appears to be the sole basis of there being no replacement planting which has since been addressed by the amended Proposed Development with the Tree Replacement Location Plan (Ex G) and the agreed conditions of consent (Ex E). 2. In opening the Respondent submits that the email dated 18 January 2022 (Ex 1) explains and sets out why Council takes the position that it does (Transcript 23 August 2022, page 5 at [27] and page 21 at [15]-[24]) and that the suggestion in that email to the Applicant to submit a development application was intended to refer to a full development application including the built form (Transcript 23 August 2022 page 18 at [30]). The Respondent explains that the hope was to get a development application for a new built form. "[T]he Council is not saying that this tree has to stay there forever, it's in an R3 zone. It is located in such a way that virtually any development that takes over either 51 or 51 and 49 together is going to end up, the tree's future, in terms of development potential, is not looking good. Therefore at some time it is going to go. But then, the Council's concern with the tree is that if we knew what the built form was going to be like, we could then go and condition a proper landscaping plan" (Transcript 23 August 2022 page 18 at [41]-[47]). 1. The Respondent also relies on the reasons for refusal of the Development Application in the Determination dated 4 May 2022 (Ex D at Tab 2). I note that at the time of the Determination on 4 May 2022 the Proposed Development did not include the proposal to plant two replacement trees. 2. The Applicant submits that the conclusion set out in the email (Ex 1) is wrong and addressed on the final day of the hearing as follows: "it appears to be that council does not have an issue, or does not consider it unreasonable to remove this tree, it's just that they take issue with the applicant then having the ability to redevelop this site in a way that doesn't put a DA before council, and instead allows a redevelopment of the site pursuant to the Codes SEPP by way of a CDC. We would say that that's improper, and that's not the consideration or the way in which the matter should be considered by the Court." (Transcript 24 October 2022 page 40 at [6]) 1. Ultimately, the Court is tasked with determining the DA Appeal and the SEPP Appeal by addressing the principal contested issues as particularised in the contentions in the DA ASOFAC (Ex 2) and the SEPP ASOFAC (Ex A); Segal & Anor v Waverley Council [2005] NSWCA 310. 2. I accept the Applicant's submission that the CDC has limited relevance in the DA Appeal and the SEPP Appeal because all it does is provide a form of development that is permissible on the Site if it were amalgamated or consolidated with the adjoining site at number 49. (Transcript 24 October 2022 page 38 at [11]). 3. In response to the Respondent's submission as to the risk of removal of the replacement trees upon planting them, the Applicant draws the Court's attention to the Codes SEPP cl 1.18(1)(h) as follows: cl 1.18 General requirements for complying development under this Policy (1) To be complying development for the purposes of this Policy, the development must— (h) for development involving the removal or pruning of a tree or other vegetation that requires a permit, approval or development consent—before the complying development certificate is issued, have the permit, approval or development consent. Note— A permit or approval may be required under State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 2 or other legislation. Paragraph (h) may not apply to some removal or pruning of trees. See, for example, clause 3.33. 1. I accept that proposed Consent Condition 3(h), reproduced below, results in the creation of the status of the replacement trees as trees requiring "a permit, approval or development consent" as per cl 1.18(1)(h) of the Codes SEPP and will define the extent of any future complying development which may be proposed by the Applicant on the Site, either on its own or amalgamated with the adjoining site. A certifier, for the purposes of the Codes SEPP, is bound to comply with the conditions of permit or consent. 2. The Amendment by the Applicant to the Proposed Development – Drawing LP01 Rev C Tree Replacement Location proposing tree replacement which is included in condition 3 of the agreed conditions of consent filed 19 October 2022 (Ex G). I reproduce the Tree Replacement Location plan below at Fig 2 Fig 2: Tree Replacement Location plan Drawing LP01 Rev C 1. I reproduce the terms of proposed Condition 3 as follows: "TREE REPLACEMENT 3. Two (2) replacement trees must be planted on the site as shown in the Replacement Tree Location Plan (Rev C), Drawing LP01, prepared by EziGrow dated 28 August 2022 and in accordance with the following requirements: a. The replacement tree species, when mature, must attain a minimum height of no less than 6 metres and minimum canopy spread of 6 metres. Palms, fruit trees, undesirable species and species recognised to have a short life span are not considered a suitable replacement. b. The replacement trees must be grown to Australian Standard 2303:2015 'Tree stock for landscape use'. c. At the time of planting, the replacement trees' container size is to be a minimum of 75 litres and the tree a minimum height of 1.5 metres. d. The replacement trees must be planted by a qualified Arborist, Horticulturalist or Landscaper with a minimum Australian Qualifications Framework (AQF) of Level 3. e. The replacement planting must be planted in such a manner as to promote good health during the establishment period, and must be maintained, as far as practicable to ensure healthy tree growth into maturity. f. Clear dated photographs of the replacement trees must be submitted to Council's Tree Management Officer annually until the tree reaches 6 metres in height. g. If a replacement tree fails before reaching 6 metres in height it must be replaced with a tree of comparable qualities and maintained as outlined above until the tree reaches 6 metres in height. h. A replacement tree must not be removed without the prior consent of Council. i. The replacement planting shall be completed within 28 days of the date on which the existing Oak tree is removed. j. A Tree Management Plan shall be provided to Council, prior to planting of the 2 replacement trees, in accordance with s.8.6 of Council's Tree Management Manual." 1. It is relevant that the requirement of a Tree Management Plan in condition 3(j) above is consistent with the Arborist DA Appeal JER (Ex 4). 2. I now address each of the contentions of the DA ASOFAC in turn. Unreasonable tree removal – The Application is not supported by sufficient information to justify the isolated removal of a significant tree from the site. (Contention 1) 1. This contention is particularised (a) to (e) where Particular (a) is a statement of fact which reads as follows: "(a) The application is supported by an Arboricultural Impact Assessment, prepared by Ezigrow Trees and Landscaping, dated 21 March 2022. This report finds the tree has sustained some damage and has a Safe Useful Life Expectancy (SULE) of between five and ten years. The report recommends the tree be removed and replaced." 1. The Applicant proposes tree replacement Rev C Plan (Ex G) and this resolves particular (b), (c), (d) and (e). 2. I find that Contention 1 is resolved. Tree replacement under separate consent – the reliance on separate consent to replace the tree is not supported. (Contention 2) 1. Contention 2 is resolved by the amended application (Ex G) and agreed conditions of consent (Ex E and F). Public interest and Undesirable precedent (Contentions 3 and 4) 1. These contentions rely on the reasons given for Contentions 1 and 2 which are resolved now that there is tree replacement proposed by the Applicant. Conclusions in relation to DA Appeal 1. I conclude that the Development Application should be determined by a grant of consent subject to conditions of consent as agreed in the Draft/Proposed Conditions of Consent filed 19 October 2022 (Ex E). Jurisdictional prerequisites 1. There are jurisdictional prerequisites that must be satisfied before the Court may grant development consent. 2. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the land is contaminated prior to granting consent to the carrying out of any development on that land. Should the land be contaminated, the consent authority must be satisfied that the land is suitable in a contaminated state for the proposed use. If the land requires remediation to be undertaken to make it suitable for the proposed use, the consent authority must be satisfied that the land will be remediated before the land is used for that purpose. I am satisfied that the Site, having been historically used for residential purposes is not considered to have a high risk of contamination and is suitable for its proposed continued residential purpose. 3. The aims of Ch 2 of the Biodiversity SEPP 2021 are to protect the biodiversity value of trees and other vegetation in non-rural areas and to preserve the amenity of non-rural areas through the preservation of trees and other vegetation (s 2.1, Biodiversity SEPP 2021). 4. The Biodiversity SEPP applies to the Site (s 2.3, Biodiversity SEPP 2021). The application is seeking to remove one Oak tree from the Site and may not do so without authority conferred by a permit (s 2.6, Biodiversity SEPP 2021). The Respondent contends in the DA ASOFAC in Contention 1(c)(iv) as follows: " iv. Chapter 2 in SEPP (Biodiversity and Conservation) 2021 applies to vegetation in the Canterbury-Bankstown LGA. Section 2.1 lists as its aims the protecting of the value of trees and the preservation of non-rural amenity through preservation of trees. The removal of a large canopy tree without replacing it is not consistent with that objective." 1. I find that the proposed replanting brings the Proposed Development into being consistent with the aims of the Biodiversity SEPP 2021. 2. I find that the jurisdictional prerequisites are satisfied and do not pose an impediment to the granting of consent. 3. Having reached the conclusion in both proceedings that each warrants the grant of a permit and consent, the final matter to be settled is whether to grant the SEPP permit or to grant consent to the Proposed Development. 4. The Respondent submits that neither should be allowed and does not address the question of whether either appeal should be upheld. 5. The Applicant submits as follows: "It's not necessary, of course, for there to be a tree permit and a DA that's issued, so the way in which we see an option available to you, Commissioner, is that either if you reach a finding that the removal of the Oak tree is reasonable, subject to conditions, then you could indicate that to the parties and the applicant could discontinue one of the appeals; alternatively, you could order a permit be issued for the removal of the tree, subject to conditions, and the DA appeal could just be dismissed. I think that's the way in which you would deal with both, just so that three's not a permit and a DA ... but either way is obviously an option for the Court; both ways are put before the Court, there are two appeals before the Court, so whether you deal with one and then don't need to deal with the other, subject to it being favourable to the applicant. (Transcript 24 October 2022 page 45 and 46) 1. I have considered the evidence and the concerns raised by the Respondent regarding future compliance with the agreed conditions. I conclude that the DA Appeal should be upheld and development consent be granted subject to conditions for a number of reasons including the fact that a development consent runs with the land and that enforcement of a development consent will be more straightforward and efficient for Council if any of the conditions were not to be complied with. I note that the indicative CDC development plans and drawings included in the evidence of these proceedings will no longer be applicable and any future development will need to accommodate the location of the two replacement trees. 2. Accordingly I will dismiss the SEPP Proceedings and uphold the DA Appeal. Orders: 1. In proceedings 2021/353867, the Court orders: 1. The appeal is dismissed. 1. In proceedings 2022/134247, the Court orders: 1. The applicant is to pay the respondent's costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 2. The appeal is upheld. 3. Development application DA-203/2022 is determined by granting consent to the application subject to the conditions in Annexure A. 4. All exhibits are retained. ………………………. E Espinosa Commissioner of the Court Annexure A (111432, pdf) ********** 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: 19 January 2023