Robinson v Council of the City of Sydney [2011] NSWLEC 1389

Land and Environment Court New South Wales

Medium Neutral Citation: Robinson v Council of the City of Sydney [2011] NSWLEC 1389 Hearing dates: 21 October 2011 Decision date: 21 October 2011 Jurisdiction: Class 1 Before: Dixon C Decision: (1)Development consent to D/2010/1302 is refused. (2)The appeal is dismissed. (3)The exhibits are returned upon publication of this judgment in writing. Catchwords: DEVELOPMENT APPEAL - removal of Jacaranda tree to accommodate the development of a garage Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Development Control Plan 2000 Leichhardt Local and Environmental Plan 2000 Category: Principal judgment Parties: Erica Robinson (Applicant)

Council of the City of Sydney (Respondent) Representation: Counsel Ms J Reid (Applicant)

Ms K Morrin (Respondent) Solicitors Wilshire Webb Staunton Beattie Lawyers (Applicant)

Council of the City of Sydney (Respondent) File Number(s): 10741 of 2011

EX-Tempore Judgment 1The applicant seeks consent to construct a single garage with landscaping at the rear of their property at 59 Boyce Street, Glebe. In order for the development to proceed it is necessary to remove a mature Jacaranda tree that is growing in the location of the proposed entry to the garage. 2The Council of the City of Sydney has refused its consent to the development because it does not agree with the removal of the tree. It contends the Jacaranda adds to the landscape character of the laneway and its removal would be inconsistent with the controls in Leichhardt Local Environmental Plan 2000 (LEP) and Leichhardt Development Control Plan 2000 (DCP). It invites the applicant to redesign a carport/garage in the north/north east corner of the rear yard and thereby avoid the need to remove the tree. 3The applicant, however, does not want to relocate the garage to the north/north east corner of their rear yard. They desire continuity of access from their principal family/living area onto the proposed open landscaped courtyard as discussed in their written submission to the Court (exhibit D). Locating the garage on the north/north east boundary would in their opinion frustrate continuity of access and their amenity. Their planner, Ms McCabe, told the Court that the development of a garage in that location would cause overshadowing of the main outdoor courtyard. It would also require a redesign of the applicant's family room to the southwestern side of the garage and this would offer a lesser amenity. 4The applicant wants the tree removed. It contends that the Jacaranda tree's leaf and flower drop is a nuisance, which at times makes the backyard unusable. The applicant contends that the Jacaranda tree is simply the wrong species of tree in its present location. The canopy spread across the rear laneway is a nuisance and the tree's roots are causing damage to the applicant's site and to the property to the south. While the applicant's landscape architect, Ms Sonter, and council's tree officer, Ms Funnell, agree that the species is an acceptable tree in Sydney they do not agree about its appropriateness in the applicant's back yard. Ms Sonter believes that the Jacaranda should be removed and a more suitable replacement tree, such as a Chinese Pistachio tree, is planted in a location 1 m from the laneway. If that substitute tree were planted Ms Sonter told the Court that in time it would grow to a height of 4 m and replace the amenity currently provided by the Jacaranda. 5This appeal was heard on site in the applicant's backyard. This allowed the Court an opportunity to appreciate the tree and its impact on the site, Toxteth Laneway and the adjoining properties. A number of neighbours attended the on-site hearing. Several neighbours told the Court that they supported the removal of the tree because it drops leaves, flowers, seeds and pods. I was told the tree is a burden particularly for the immediate neighbours who say that the leaf drop and flowers stain washing and make paths slippery. Tree debris fills gutters and pavements. 6In determining this appeal the Court must balance both the public and private interests of the community within the legal framework. While I appreciate the applicant's desire to maximise their northern aspect at the rear I also accept council's commitment to applying the DCP controls to retain where possible existing trees to the rear of properties to contribute to the character of the lanescape. 7In coming to my decision to refuse this appeal I have relied on the information in Council's statement of facts and contentions in reply dated 13 September 2011. It identifies this property as being within a conservation area and as part of the Toxteth Estate Distinctive Neighbourhood. The desired future character of the Toxteth Estate is set out in Part A 3of the DCP. Under the heading "local area character of laneways" it states: "preserve and enhance the mature gardens to the rear of dwellings along laneways, which contribute to the amenity of the vegetated corridors." Ms McCabe told the Court that the rear laneway is a service lane. In her opinion the visually dominant character in the laneway is not necessarily one of trees. She believes that the current streetscape is one of hard edge structures with some green. The Court's view of the laneway does not support her evidence and I prefer Mr Girvan's assessment " At more than 6 m in height the tree makes a significant contribution to the laneway in public and private amenity. Its retention achieves the objective of retaining the landscape character of the rear lane, including matured trees". 8In this instance there is an existing healthy visually significant tree 9m in height. The council's controls in the DCP seek to retain the landscaped character of the rear lane by retaining mature trees over 6m in height and the Jacaranda falls into that category. I accept Mr Girvan's assessment that removal of this tree does not "maintain the prevalence of mature and visually significant trees on the laneways" as desired by Part A 10.4.1 of the DCP. 9I do not believe it is appropriate to remove this tree to facilitate the erection of a garage when it could be relocated to avoid the removal of the tree. I accept Mr Girvan's evidence that the applicant has opportunity to construct a carspace on the north/north east corner of their property. The rear courtyard has a generally northern aspect that allows for good amenity irrespective of whether the garage is located against either side boundary. If the garage were relocated to the north/north east corner then the rear courtyard would only be overshadowed by a single storey structure and that would allow for suitable solar access in excess of the requirements of the DCP controls. The walls of the garages can be treated with landscaping to soften their impact on the courtyard. This solution would as Mr Girvan explained to me allow for the retention of the Jacaranda tree , onsite parking and a courtyard that provides good amenity for the residents. 10Council's tree management officer, Ms Funnell does not support removal of the tree. She explained to me that since 31 May 2010 - when the applicant first made application for the removal of the tree - council has consistently determined that the tree should be retained and that any built form be designed around that constraint. While she accepts the Chinese Pistachio may be a suitable replacement tree, she is of the opinion that it is far more preferable to keep the existing healthy Jacaranda. Ms Funnell is of the opinion that the tree has a future life expectancy of between fifteen to forty years. In her opinion the approved garage to the south is unlikely to interfere with the health of the tree which to date has grown without problem in an environment of concrete and road infrastructure. 11I agree with Ms McCabe evidence that a landscape is a dynamic process and that trees grow and die and are replaced. I also accept that a replacement Chinese Pistachio tree may in several years provide the same or similar private and public amenity currently enjoyed by those who admire the Jacaranda. It is also possible that a replacement tree will have a longer life span than the Jacaranda and will be a more appropriate species for a laneway setting. 12However, that must be balanced against Ms Funnell's expert assessment that this Jacaranda has a potential life of between fifteen to forty years. The tree is in good health and I agree with council that it is not ecologically sustainable to approach landscaping to require the removal of a healthy existing tree that shows no signs of decline only to replace it with a new tree with similar attributes. The new tree could take up to ten years to reach the size and maturity of the existing tree and there is no guarantee of a new tree will establish in this landscape even with the maintenance condition. 13I accept Mr Girvan's assessment that the Jacaranda is a large contributor to the amenity of the locality and laneway. It does seasonally drop flowers and leaves but that is for a limited time. The view confirmed that this tree is visually prominent when viewed from the laneway and adjoining properties. Its canopy spreads over the laneway in summer to provide shade and being deciduous its leaves allow sunlight in the winter. 14A new tree planted as proposed - set back 1 m from the laneway- will not be as visually prominent in the laneway. Therefore, I agree with Mr Girvan that the amenity provided by the new tree would not be as good as that provided by the existing tree. Although the laneway is by definition a service laneway council maintains that it is important to retain the tree because of its contribution to the character of the laneway as required by DCP B 4.3. This existing 9 m high mature Jacaranda tree together with the gum trees further up the lane are "visually significant trees on the laneways" as desired by Part A 10.4.1 of the DCP. 15The applicant seeks to justify removal of the tree on the basis that a courtyard adjacent to the north/north east boundary would provide a better amenity for their use of the site. I do not believe removal of the tree is justified on the evidence. I accept Mr Girvan's planing assessment that a more efficient design and layout could achieve retention of the tree and provide acceptable amenity for the occupants of the site. 16The applicant has elected to proceed with the building of their home hoping for the removal of the tree. There are other design options available to the applicant that achieves a car space or garage and a rear courtyard with sun and amenity. Consideration could be given to reducing the size of the car space /garage to comply with the Australian Standard and a design that provides amenity at the rear courtyard. Appropriate landscaping can soften any carport/car space on the north/north-eastern boundary. As Ms McCabe notes at p 12 of the joint report, there is always more than one option available for the design and layout of a building. 17Any design change to accommodate the needs of the applicant and provide for a car space on the site in some other location and form could be made by application under s 96 of the Act. Council supports a car space on the site and has been supportive of the applicant's SEPP 1 objections on this site. It did not take issue with an increased FSR in this particular streetscape having regard to the context of built form and a non-compliant landscape outcome provided there is a redesign to retain the tree. Clearly, however, any new application needs to be assessed on its merits. 18In short I have decided to refuse this application because it does not meet the objectives of council's controls. It removes a visually prominent Jacaranda and replaces it with a garage that could be accommodated elsewhere on the site. The amenity the Jacaranda provides cannot be adequately replaced by the proposed planting. There are alternative options for a garage on this site, which ensure good amenity for the occupants. 19Council has consistently determined that the healthy Jacaranda tree should be retained. I agree with the council. When the applicant purchased this property the tree existed and I have decided after an assessment under s79C of the Act that this development application should be refused and the appeal dismissed. I make the following Orders: (1)Development consent to D/2010/1302 is refused. (2)The appeal is dismissed. (3)The exhibits are returned upon publication of this judgment in writing. Susan Dixon Commissioner of the Court