Kumar v Hornsby Shire Council [2005] NSWLEC 43

Land and Environment Court of New South Wales

CITATION : Kumar v Hornsby Shire Council [2005] NSWLEC 43

APPLICANT Kishor Kumar

PARTIES : RESPONDENT Hornsby Shire Council

FILE NUMBER(S) : 11252 of 2004

CORAM: Hoffman C

KEY ISSUES: Development Application :- Significant tree in way of house

Hornsby Local Environmental Plan 1994 LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 10/02/2004 EX TEMPORE JUDGMENT DATE : 02/10/2004

APPLICANT Mr G McKee, solicitor SOLICITORS McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT Mr T Pickup, solicitor SOLICITORS Storey & Gough

JUDGMENT: - 4 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

10 February 2005

11252 of 2004 Kishor Kumar v Hornsby Shire Council

JUDGMENT

1 This was a class 1 appeal No. 11252 of 2004 between Kishor Kumar and Hornsby Shire Council in regard to the refusal of consent for extensions to a house at No. 55 Dorset Street, Epping. 2 The site was a corner lot with Gloucester Road. The original reasons for refusal were related to streetscape and tree preservation. Amended plans resolved the streetscape concerns and at the hearing on-site, the single issue was tree preservation. 3 A large Blackbutt in the back yard exceeded 22 m in height and was in good health and assessed as a significant tree under the council's Dwelling House DCP adopted under the Hornsby Shire Council's LEP 1994. 4 The house was in the Residential A zone. The house extensions were permissible with consent. 5 This locality of Epping was characterised as a leafy treed area in which the indigenous Eucalyptus predominated. There were heritage listed trees along the roadway in Dorset Street. The parties agreed this proposal did not affect them. 6 The single issue remaining in this appeal was: " Design 1. Deleted. Removal of Tree 2. The proposed development will require removal of a significant tree which contributes to the environmental character of the area. (Refer Landscaping and Flora and Fauna Protection Elements of the Dwelling House DCP)". 7 The hearing was attended on behalf of the respondent by: · Mr T Pickup, solicitor for the respondent of Storey and Gough · Mr T Stenning, building surveyor, Hornsby Shire Council · Mrs C Lawrenson, resident, 62 Gloucester Road, Epping · Ms R Lawrenson, resident, 62 Gloucester Road, Epping · Ms M Smith, resident, 60 Gloucester Road, Epping · Mr L Smith, resident, 60 Gloucester Road, Epping · Ms K Formatti, Hornsby Shire Council · Mrs Lawrenson had authority to speak for Mr and Mrs Browning of No. 50 Dorset Street who were away. 8 On behalf of the applicant the hearing was attended by: · Mr K Kumar, 55 Dorset Street, Epping · Ms S Lall, 55 Dorset Street, Epping · Mr G McKee, solicitor for the applicant of McKees Legal Solutions 9 The existing house was about a 1950's small brick bungalow of 3 bedrooms, a combined living and dining room with a separate kitchen and back verandah. 10 The applicant's position was that the modest house extensions came so close to the tree such that it would interfere with the roots and the extension would be clearly under the canopy of the tree. 11 The interference with the roots would destabilise and probably kill the tree, and in any case limbs were known to drop from it and a house beneath and persons could be safety impacted. 12 The neighbour at No. 53 Dorset Street a Mrs Kollman had a 4 m long x 13 cm diameter branch from the tree fall on her yard recently and it damaged roof tiles. She had formerly requested the tree be removed due to the danger. The letter was in Exhibit C. 13 The subject site was constrained under the control plan in that any extension to the rear of the house would have to stay a minimum of 4 m from the tree trunk. 14 Four metres may not be sufficient for such a large tree to keep it healthy. No root survey had been done to know if a setback greater than 4 m would be needed. 15 Even at 4 m distance, it would leave only a 5 m width for building extensions between that and the Gloucester Road side setback requirement. That would result in a long finger-like extension to the house down the sloping back yard in order to obtain a similar floor space to that proposed. If more than 4 m clearance from the tree was needed the house extension would need to be narrower than 5 m. 16 The proposal included a family room and 2 bedrooms at the existing house level and a garage and store room below. It was modest in size. Vehicle access to the garage was obstructed by a twin pole overhead electrical transformer on the Gloucester Road frontage adjacent the location for the extension. 17 The driveway to the garage could not be taken directly from Gloucester Road to the lower floor. 18 As a result the driveway had to enter the site beyond the rear of the extension and then curve into the garage in the lower level. 19 The lower level of the extension was excavated up to a metre in the ground. To obtain a practical gradient to the drive and a suitable driveway curve for a car the garage needed to be on the side of the extension near the tree. The driveway would actually pass through the trunk of the tree. This would certainly destroy the tree. 20 The only other alternative would be a detached garage further down the back yard, and a considerable reduction of the modest extension of the house to give sufficient clearance to the tree. 21 Even that solution would still retain the large canopy that overhung the neighbour's house and yard at No. 53 Dorest Street and would overhang most of the proposed extensions. 22 The objectors and the council were concerned about the loss of a significant tree that was so tall it was visible from many locations outside the site. As trees go in the vicinity it was about the same height as the many larger trees. Its loss would reduce the visual amenity of the locality and one would not want to diminish that. As the objectors said, the large trees were part of the reason people chose to live in this area. If many trees were lost as a result of this and extensions to other houses then the ambience and fauna habitats would slowly disappear. 23 The applicant volunteered to plant three new indigenous trees in locations on the site where they could not interfere with the proposed extensions or neighbouring houses and minimise danger to persons beneath their canopies. The respondent drafted a suitable condition in Exhibit 5. It required species of large trees to be grown and maintained. 24 It seems to the Court this is the sensible approach. In this particular case the site constraints did not permit a practical redesign of the house extensions that would preserve the tree. Also there were existing potential dangers from the existing tree to the neighbours and children/adults in the back yard of the site. 25 Therefore the Orders of the Court are: 1. The appeal is upheld. 2. Consent is granted to house extensions and removal of a significant tree at No. 55 Dorset Street, Epping, as shown on annotated plans in Exhibits A and B of this appeal as retained on the Court's file all subject to the conditions as annotated in Exhibit 5 and reproduced in Annexure A hereto. 3. The exhibits are returned to the parties except Exhibits A, B, C, D, 1, 2 and 5.