Leonard v Woollahra Municipal Council [2011] NSWLEC 1323

Land and Environment Court New South Wales

Medium Neutral Citation: Leonard v Woollahra Municipal Council [2011] NSWLEC 1323 Hearing dates: 23 and 24 August 2011 Decision date: 14 November 2011 Jurisdiction: Class 1 Before: Hewett AC Decision: (1)The appeal is dismissed. (2)The exhibits are to be returned. Catchwords: DEVELOPMENT APPLICATION - appeal against refusal of consent - dispute about the impact of pruning a state and local heritage listed tree Legislation Cited: Environmental Planning and Assessment Act 1979 Heritage Act 1977 Environmental Planning and Assessment Model Provisions 1980 Woollahra Local Environmental Plan 1995 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Category: Principal judgment Parties: Mr Garry Leonard (Applicant)

Woollahra Municipal Council (Respondent) Representation: Counsel Mr T Howard, with Mr D Thomas (Applicant)

Mr P Rigg (Respondent) Solicitors Wellings Lawyers (Applicant)

Norton Rose (Respondent) File Number(s): 10521 of 2011

Judgment 1This is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 ( EP&A Act ) against the refusal by Woollahra Council (the Council) of Development Application No 429/2010/1 for pruning of an existing Deciduous Fig tree growing on adjacent land.

The development proposal 2The proposal is for the pruning of a heritage-listed tree that grows on adjoining land and partly overhangs the applicant's property at 3A Fernleigh Gardens. The tree is listed on the New South Wales State Heritage Register as Ficus superba var henneana (Cedar Fig) listing No 00578 . The tree is also listed as a Heritage Item in Schedule 3 of Woollahra Local Environmental Plan 1995. 3The Statement of Environmental Effects prepared for the applicant by Innovative Planning Australia, July 2010 relevantly states (at p 1 and p 6) in relation to the proposed development: This development application is for the pruning of a heritage-listed tree on an adjoining property at 20 Rawson Road. The Ficus superba tree located at 20 Rawson Road overhangs the site at 3A Fernleigh Gardens and creates a nuisance by causing excessive shading and shedding of leaves and fruit. The shading restricts solar access to the dwelling and private open space, making clothes drying difficult. The shedding of leaves and fruit makes the pool and pavement difficult to clean, and blocks the gutters of the dwelling resulting in stormwater overflow. In some instances the storm water finds its way into the internal walls of the dwelling. It is proposed to prune the tree back to previous pruning points from 20 years ago, as detailed in the Arboriculture Assessment. 4The Statement of Heritage Impact (at pp 10-12) refers to the tree as an important landscape element: The tree is thought to have been part of the original landscape in the early 1800's, or to have been planted around that time. It was located in the gardens of Fernleigh castle and remains a prominent feature of in the landscape from both the local perspective and the when viewed from the harbour. It is an important item in the areas of cultural and natural history. The tree is of high aesthetic significance because of its immense scale. It is visible from a great distance due to this scale and the prominence of its canopy and location on the edge of the hill. Its prominent location within the suburb of Rose Bay also contributes to the aesthetic significance of the Castle as it contributes to the visual setting. The tree is significant in the social context as its value has been recognised by many generations through its retention even though the land upon which it is situated has been subdivided many times and developed for urban purposes. The Ficus superba has strong social significance within the Rose Bay area due to its visual prominence, and its association with the Fernleigh Castle. It also has strong importance due to its age possibly being part of the original vegetation of the site at the time of the land grant. That it has survived and retains its prominence in the face of development surrounding it is also of importance. 5An Arboricultural Assessment (the UTM report) dated 26 March 2010 prepared by Mr Danny Draper of Urban Tree Management Australia Pty lists nuisances caused by the tree and the branches overhanging the property. The report recommends pruning the overhanging branches back to points to which they were cut about 20 years ago. 6The pruning recommendations are described in cll 5.15 and 5.16 of the UTM report and are illustrated in two diagrams appended to the report. The report recommendations are written as follows: * It is proposed to prune the 2 first order structural branches growing over the site to clear all regrowth back to near the old pruning wounds removing second and lower order branches from over the pool and the dwelling and most of the pavement area at the rear of the dwelling. This will remove approximately 15% of the live crown from the tree to abate the nuisance of encroachment . The extent of the pruning will not adversely impact upon the tree and will not detract from the local amenity as it will restore the pruning works previously carried out approximately 20 years ago and is intended to retain the tree and its integrity while undertaking minimal works to abate the nuisance with such works substantially screened by the dwelling at No. 4. All pruning works are to be undertaken to comply with AS4373-2007 Pruning of amenity trees with the extent of pruning shown in Appendix E - Pruning Diagrams. * It is proposed to maintain the pruning annually by removing any regrowth of epicormic shoots arising near to the pruning wounds. 7The pruning diagrams illustrate a total of seventeen branches to be removed and indicate the point at which each branch is to be cut. 8The pruning diagrams show a plan view of the distribution of what are described as the six " first order structural branches " in the tree. The two branches to be pruned are identified by the direction in which they grow, that is, one growing toward the southeast and one growing toward the south. These are the two structural branches that overhang the rear of the applicant's property.