Land and Environment Court New South Wales Medium Neutral Citation: Brennan & anor v Leichhardt Council [2013] NSWLEC 1172 Hearing dates: 3 September 2013 Decision date: 18 September 2013 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld subject to a condition requiring the planting of a replacement tree Catchwords: APPEAL: Tree Preservation Order; removal of a tree; jurisdictional validity and merits of the imposition of a condition requiring the planting of a replacement tree Legislation Cited: Environmental Planning & Assessment Act 1979 Environmental Planning and Assessment Model Provisions 1980 Interpretation Act 1987 Leichhardt Local Environmental Plan 2000 Cases Cited: Botany Bay City Council v Saab Corporation Pty Limited [2011] NSWCA 308 Category: Principal judgment Parties: Sean Brennan (First Applicant) Deborah Soden (Second Applicant) Leichhardt Council (Respondent) Representation: Applicants: Mr S Brennan (Litigant in person) Respondent: Ms R McCulloch (Solicitor) Respondent: Pikes & Verekers Lawyers File Number(s): 10388 of 2013 Judgment 1COMMISSIONER: In March 2013 the applicants lodged a Tree Application with Leichhardt Council seeking permission to remove a large Jacaranda from their rear garden. The basis of the application appears to have been the failure of a large branch onto the applicants' garage. 2The application to remove the tree was refused in May 2013. Permission was given for pruning in accordance with the Complying Works section of the Leichhardt Council Tree Preservation Order (TPO). 3The applicants have appealed under s 97 of the Environmental Planning & Assessment Act 1979 (EPA Act) seeking orders for the removal of the tree without the imposition of any unreasonable or irrelevant conditions such as the requirement to plant a replacement tree. 4For reasons given later in this judgment, council no longer opposes the removal of the tree but requires its replacement in accordance with the provisions of the TPO and the general objectives of the Leichhardt Local Environmental Plan 2000 (LLEP). 5Council's draft condition of consent is: 1. A replacement tree of one of the following species shall be planted in the front yard of the premises within 28 days of the removal of the Jacaranda from the premises: Acer buergeranum (Trident Maple) Lagerstroemia indica (Crepe Myrtle) Acer palmatum (Japanese Maple) 6The applicants oppose the condition and question the jurisdictional validity of its imposition. Background to the appeal 7On 13 March 2013, apparently on a calm day, a large live branch fell from the tree and landed across the roof of the applicants' garage and into the laneway at the rear of their property. The branch failed approximately one metre from the trunk to which it was attached. 8The next day, a Tree Application was faxed to council requesting permission to remove the tree. However, as the application did not include the signatures of all owners, it could not be processed at that stage. The appropriately amended application was resubmitted on 19 March. 9On 21 March, council's landscape assessment officer undertook a ground based visual inspection of the tree and determined that the tree was in good health with normal vigour and there were no visible signs of any likely structural issues that would predispose the tree to further branch failure. 10On 14 April, a friend or associate of the applicants who has horticultural qualifications inspected the tree and advised that there may be a fungal infection, possibly Armillaria. 11In the light of this possibility, the council officer and a consulting arborist inspected the tree on 17 April. They noted no signs of the fungus but advised of the need for testing and described other diagnostic signs such as golden yellow mushrooms in May/June. 12On 18 April, the applicants sent a sample of loose bark from the fallen limb to the Plant Disease Diagnostic Unit of the Royal Botanic Garden Sydney. On 26 April, Dr Edward Liew, Manager Plant Pathology, advised the applicants of a negative result for Armillaria. 13Following discussions with Dr Liew as to the correct procedure for the taking of samples for testing, the applicants sent another sample for testing on May 9. 14On 13 May, the applicants received a letter from council dated 7 May advising them of council's refusal to grant permission to remove the tree. 15Dr Liew wrote to the applicants on 24 May and advised that Armillaria had been detected on the second sample. Amongst other things, Dr Liew notes: Armillaria species are primary plant pathogens causing white rot across a wide range of plant species. Armillaria species are capable of injecting and killing woody roots of trees and shrubs, causing non-specific symptoms of crown dieback, reduced growth as well as specific symptoms such as basal cankers and kino formation. 16Further, Dr Liew states that there is currently no effective fungicidal control of Armillaria and that management is generally restricted to containment and improving the health of the plants. He adds that in situations where the disease is advanced, as indicated by extensive internal decay or by branch failure, then serious consideration should be given to removing the tree. 17A copy of Dr Liew's letter was sent to council and further electronic correspondence ensued. Council's landscape assessment officer advised the applicants that further consideration of the evidence would be the subject of an appeal of the original determination and that a further fee was required. The applicants were also advised that another council officer would assess the site and consider the new evidence. 18Rather than go through the council's appeals process, the applicants elected to file this appeal in the Land and Environment Court. Independent arboricultural assessment 19Leichhardt Council engaged My Guy Paroissien, Consulting Arborist, Landscape Matrix Pty Ltd to carry out an independent assessment of the tree. 20Mr Paroissien inspected the tree on 2 July 2013 and observed the tree to be of good health, fair vigour and containing a normal percentage of internal dead wood. While acknowledging that a sample of bark had tested positive for Armillaria, he notes no visual evidence of any significant pest or disease, including on the broken branch. He notes the structural condition of the tree and concludes that there is nothing to indicate a risk of mechanical failure in the short term. 21He concludes that the characteristics of the broken branch stub and the point of failure are indicative of an unpredictable branch failure commonly referred to as "summer branch drop" or "sudden branch failure". He states that future failures may not occur but, equally, cannot be ruled out. 22Mr Paroissien notes the visibility of the tree in its environs and considers the tree to be of moderate to high landscape value. However, in taking the tree's age, health, vigour, and positive test for Armillaria into account, he concludes that the tree has a relatively short Safe Useful Life Expectancy (SULE) of 5-15 years. 23In regards to possible management options, Mr Paroissien gives three: * undertake further testing to determine the extent of Armillaria infection [as it may be quite limited]; * retain the tree to prolong its SULE through cultural methods; or * remove the tree, including as much of the root system as possible [to contain the potential spread], and replace it with a species suitable for the scale and context of the site. 24After considering the options, Mr Paroissien recommends removal and replacement. His reasons include the absence of any effective controls for the disease, the relatively short SULE, and the proximity of the tree to a garage and the likelihood of future damage to that structure. 25In regards to replacement, given the space constraints of the rear yard, he considers that a medium sized deciduous tree such as Chinese Tallow or Ornamental Pear would be appropriate. However, he states that a replacement planting in the back garden would necessitate the removal of as much of the stump and root system as possible so as to prevent infection of the replacement tree. 26In oral evidence on site, Mr Paroissien stated that root removal could be expensive and onerous. In his report, Mr Paroissien suggests an alternative to removing roots and soil from the rear garden would be to plant a small deciduous tree in the front garden, well away from any likely Jacaranda roots. He suggests four species, three of which are nominated in the council's draft condition. 27In preparing its Statement of Facts and Contentions, council has adopted Mr Paroissien's options and does not object to the removal of the Jacaranda provided that a suitable replacement tree is planted. The site view 28The hearing commenced on site with an inspection of the Jacaranda and the applicants' property (the site). 29The site is one of four semi-detached dwellings of uniform style and appearance, said to date from about 1915. To the west and south are well-treed parks that form a corridor of open space along a former creek line. At the rear of the site is a garage, which along with other similar garages, opens on to a trafficable laneway. 30The Jacaranda is the only tree in the applicants' back garden and it is growing within a metre or so of the garage. A large root appears to penetrate beneath the soil beneath the slab. The tree's canopy is clearly visible from the street. 31The applicants' front garden is relatively small. A stump of a large Murraya paniculata is located beside the brick front wall. Photographs tendered during the hearing indicate that it had at some stage reached a height of about 4m and, because of the removal of lower branches, had the appearance of a small tree. The canopy overhung the footpath. For some reason, the Murraya was radically reduced to a stump about 1m high. Some of the stems were observed to be producing spindly new growth. 32The adjoining front gardens contain shrubs and small trees; some of which have been formally clipped. The property immediately to the west has a Japanese Maple growing in the south-western corner. The assessment framework 33The council presses the relevant clauses in LLEP 2000, in particular: 7 General provisions in relation to development of land 7(3) Land use objectives Consent must not be granted for development proposed within a zone unless the consent authority has taken into consideration such of the objectives of the Plan as are relevant to the proposal and is satisfied that the development is consistent with those objectives. For the purposes of this subclause, in the event of an inconsistency between the general objectives of the Plan and a specific objective applicable to the proposed use, the specific objective applicable to the proposed use prevails. 9 Model provisions This Plan adopts clauses 8 and 35 of, and Schedule 1 to, the Environmental Planning and Assessment Model Provisions 1980 (the Model Provisions). 34Clause 13(2) states that the general objective for the built and natural environment and amenity being to encourage the design of buildings, structures and spaces which are compatible with the character form and scale of the area in order to, amongst other things: (a) protect and enhance the area's natural features, character and appearance, and (d) maintain amenity and contribute to a sense of place and community, and 35Clause 8 of the Model Provisions concerns the preservation of trees. The relevant subclauses are: 8 Preservation of trees (1) Where it appears to the council that it is expedient for the purpose of securing amenity or of preserving existing amenity, it may, for that purpose and by resolution, make an order (hereinafter referred to as a "tree preservation order") and may, by like resolution, rescind or vary any such order. (2) A tree preservation order may prohibit ring-barking, cutting down, topping, lopping, removing, injuring or wilful destruction of any tree or trees specified in the order except with the consent of the council and any such conditions as council thinks fit. [emphasis added] (3) A tree preservation order may relate to any tree or trees or to any specified class, type or description of trees on land described particularly or generally by reference to the Local Government area or any divisions thereof. 36Leichhardt Council Tree Preservation Order, made under the provisions of Clause 8 of the Model Provisions applies to the whole of the Leichhardt Local Government Area (LGA) and applies to all trees on private property unless the tree is an Exempt Species listed in cl 5.1. 37The TPO was appropriately adopted, Gazetted and advertised in accordance with cl. 8(4) of the Model Provisions. 38Clause 3 of the TPO gives the aim of the Order. It states: The aim of the Order is to conserve and enhance the tree cover, understorey, ground covers and general landscaping of Leichhardt. This is to conserve the ecological, climatic, amenity, aesthetic, economic and cultural values of the area. 39Clause 4 - 'Why does Council have a Tree Preservation Order?' states in part: Existing trees should be conserved as far as possible. If their removal is unavoidable, they should be replaced. Wherever opportunities arise, new trees should be planted so that all properties in both the public and private domain contribute to the shared landscape. 40The removal of a tree that is not an exempt species and which is in excess of 4m high is classed as 'Consent Work - Application Required' in cl 6.2 of the TPO. This clause details the process and requirements of the consent process. It describes the circumstances where consent may be granted for the removal of a tree. Relevantly it states; Should any such consent be granted, this may be given subject to such conditions as the Council thinks fit, and as a minimum, Council will require the following: · Planting of substitute trees, and · where any such trees are planted, this will be within the time specified by Council, and · Where the tree to be removed is significant in the locality, Council shall consider any submissions from adjacent residents. Submissions The applicants' position 41Mr Brennan, who is a barrister by profession, appeared as a litigant in person and made submissions on his and Ms Soden's behalf. In addition to his oral submissions, Mr Brennan prepared written submissions to assist the Court. 42As I understand it, Mr Brennan's position is that s 26(1)(e) of the EPA Act limits the TPO to the protection of any existing tree and therefore any provisions for requiring replacement vegetation are beyond the power of the EPA Act and the LLEP. 43The basis of his argument is that the scope of all valid delegated legislation in NSW is limited by s 32 of the Interpretation Act 1987. In particular he relies on s 32(2)(a). Section 32 states: 32 Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made (1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made. (2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made: (a) it shall be a valid provision to the extent to which it is not in excess of that power, and (b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected. (3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made. 44Mr Brennan contends that it follows that anything in the Model Provisions that is not allowed under the EPA Act can be ignored for legal purposes. He asserts that s 26 of the EPA Act enables an environmental planning instrument to include provisions for, amongst other things, tree protection or preservation (s 26(e)) and protection and conservation of native animals and plants (s 26(e1). In essence, anything beyond the scope of s 26(1)(e), in the provisions of the Leichhardt TPO, is in excess of the power of the EPA Act and is therefore not valid. 45For the benefit of the argument, s 26(1) states: 26 Contents of environmental planning instruments (1) Without affecting the generality of section 24 or any other provision of this Act, an environmental planning instrument may make provision for or with respect to any of the following: (a) protecting, improving or utilising, to the best advantage, the environment, (b) controlling (whether by the imposing of development standards or otherwise) development, (c) reserving land for use for the purposes of open space, a public place or public reserve within the meaning of the Local Government Act 1993 a national park or other land reserved or dedicated under the National Parks and Wildlife Act 1974, a public cemetery, a public hospital, a public railway, a public school or any other purpose that is prescribed as a public purpose for the purposes of this section, (d) providing, maintaining and retaining, and regulating any matter relating to, affordable housing, (e) protecting or preserving trees or vegetation, [emphasis added] (e1) protecting and conserving native animals and plants, including threatened species, populations and ecological communities, and their habitats, (f) controlling any act, matter or thing for or with respect to which provision may be made under paragraph (a) or (e), (g) controlling advertising, (h) such other matters as are authorised or required to be included in the environmental planning instrument by this or any other Act. 46Mr Brennan argues that the use of the words 'protecting' and 'preservation' in s 26(1)(e) limits the scope of the sub-clause to protection and preservation and does not extend authority to an order to plant new trees. In contrast however, he notes that s 26(1)(e1) uses the word 'conserving' which he maintains denotes reproduction and ongoing husbandry of the species and that this requirement only applies to native species and not exotic trees (such as the Jacaranda) which are only covered by the more limited s 26(1)(e). 47Further, Mr Brennan contends that the use of the word "conserve" in the stated aim of the Leichhardt Council TPO ["to conserve and enhance the tree cover....and general landscaping of Leichhardt"] is completely outside the delegated authority as this is used only in the context of s 26(1)(e1) which is limited to native species. 48In Mr Brennan's opinion, if council can impose a condition for a replacement tree why not a fishpond, or waterfall or anything else. In his view, the imposition of such a condition represents an unreasonable interference with the quiet enjoyment of his land and his right to garden where and when he chooses. He also considers it amounts to unacceptable control, by council, over private property. This, he says, was carefully contemplated when sub-sections 26(1)(e) and (e1) were drafted. 49Apart from questioning the jurisdictional basis of the imposition of a condition to replace the tree, Mr Brennan considers that on merit, the condition should not be imposed for the following reasons: · The front garden is small and any tree planting would be in front of a south-facing bedroom window. Apart from blocking sunlight, the tree may also pose security issues by providing a screen behind which anyone could hide. · The front garden contains pavers from a local primary school and have sentimental value; any planting would necessitate some disturbance to them. · The front garden also contains gas and other pipes and tree roots may interfere with them or impede any future maintenance. · A tree would be out of keeping with the frontages of the adjoining properties and the existing plants are sufficient. Council's position 50Ms McCulloch for council contends that the imposition of a condition requiring a replacement tree as a condition of consent for the removal of the Jacaranda is both lawful and desirable. 51Ms McCulloch argues that the primary power resides in s 24 of the EPA Act. This states: 24 Making of environmental planning instruments (1) Without affecting the generality of any other provisions of this Act, and environmental planning instruments may be made in accordance with this Part [being Part 3] for the purposes of achieving any of the objects of this Act. (2) Environmental planning instruments may be made: (a) by the Governor under Division 2 (called a State Environmental Planning policy or SEPP), or (b) by the Minister (or delegate) under Division 4 (called a local environmental plan or LEP). 52In regards to the relevant objects of the EPA Act in s 5(a) to encourage: (i) the proper management, development and conservation of natural and artificial resources,....for the purpose of promoting the social and economic welfare of the community and a better environment. (vi) the protection of the environment, including the protection and conservation of natives animals and plants..... 53While s 26 of the EPA Act enables an environmental planning instrument (EPI) to make specific provision for protecting or preserving trees or vegetation, it does so without affecting the general provisions of s 24. 54LLEP 2000 is lawfully made under s 24(2)(b) and it adopts cl 8 of the Model Provisions giving effect to s 26(1)(e). Ms McCulloch contends that the power to impose conditions is wide and unfettered and clearly consistent with the relevant objects of the EPA Act and the LEP. Consideration Jurisdictional basis 55In this matter I cannot accept Mr Brennan's argument that the scope of s 26(1)(e) is so narrow that effectively any control by a council over non-native vegetation is limited to preserving and protecting existing trees. Section 26(1) describes in very broad, general and non-limiting terms, the range of matters that may be provided for in any EPI - as would the 'contents' page of any document. 56I agree with Ms McCulloch that s 24 is the source of power enabling the making of an EPI, in this case LLEP. The over-riding purpose of any EPI so created is to achieve the objects of the EPA Act. To this end I note s 33 of the Interpretation Act 1987. 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 57The objects of the EPA Act are, as to be expected, written in broad terms. While the object in s 5(a)(iv) specifically mentions native plants and animals, it does so in an inclusive and not exclusive manner. More broadly still, the object in s 5(a)(i) considers the proper management, development and conservation of all resources for the overall benefit of the community and the environment. It would seem that, even on this higher plane, a condition requiring the replacement of one tree with another promotes the objects of the Act. 58Still at the broad level, s 4 of the EPA Act defines relevant terms. In particular: "development" means: (a) the use of land, and (b) the subdivision of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building, or work, and (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument. 59Section 26(1)(b) enables an EPI to make provision for controlling development. 60Therefore, it is not beyond the power of a lawfully made LEP to adopt specific measures for the management of trees on land to which the LEP applies. I agree with Ms McCulloch, clause 9 of LLEP 2000 unambiguously adopts Clause 8 of the Model Provisions. 61The relevant subclauses of cl 8 of the Model Provisions are provided in [35] of this judgment. While the broad heading is "Preservation of trees", the detail is contained within the sub-clauses. Clause 8(1) of the Model provisions enables a council to make a 'tree preservation order' "for the purpose of securing amenity or of preserving existing amenity". In cl 8(3) that order may relate to any tree/s on land described within the LGA. 62The Leichhardt TPO applies to all land within the LGA including private land with the broad aim to 'conserve and enhance the ecological, climatic, amenity, aesthetic, economic and cultural values of the area'. Jacarandas are not an exempt species. 63More importantly, cl 8(2) of the Model provisions enables various actions in regards to trees 'with the consent of council and any such consent may be given subject to such conditions as the council thinks fit'. 64Therefore cl 8 of the Model provisions enables a council, as a consent authority, to make a TPO in whatever terms and with whatever conditions that council thinks fit in order to preserve or secure the particular amenity of its own local government area. 65The Leichhardt TPO clearly articulates the particular values Leichhardt Council considers to be relevant to the municipality. The document explains the rationale behind the TPO and clearly describes exempt and complying work and whether or not an application to council is required. 66The removal of the applicants' Jacaranda is 'Consent Work- Application Required'. Clause 6.2 of the TPO clearly states that should consent be granted to a request to remove a tree, 'this may be given subject to such conditions as the Council thinks fit, and as a minimum Council will require: planting of substitute trees. The substitute tree/s are to be planted within a time specified by Council. 67While noting Mr Brennan's submissions in regards to the jurisdictional validity of the condition, I cannot agree with his line of reasoning. 68Mr Brennan submits that the imposition of the proposed condition is unreasonable and would amount to council having ongoing control over his land should the tree attain a height in excess of 4m [the height at which the TPO has effect]. As I understand it, his position is that any public benefit of improved amenity should not be a burden on his land but should be provide by council on public land. 69It would appear to me that the broad and specific powers enabled by the EPA Act, LLEP and the Leichhardt TPO allow Leichhardt Council to impose a condition requiring anyone who receives permission to remove a tree to plant a replacement tree on his or her land. To this end, there is a valid jurisdictional basis for the imposition of the proposed condition requiring the applicants to plant one of three nominated species in the front garden of their property within 28 days of the removal of the Jacaranda. 70I also consider that the condition reasonably and fairly relates to the proposal and is not so unreasonable that no reasonable authority could have imposed it (Botany Bay City Council v Saab Corporation Pty Limited [2011] NSWCA 308). Merits and further tests 71The making of an application under the TPO is, in effect, the making of a 'development application' for consent to carry out 'development' (as defined by s4 of the EPA Act). Section 79C(1) of the EPA Act lists the relevant matters a consent authority, in this case the Court, must take into consideration in determining the development application. Section 80(1) enables a consent authority to determine a development application by either: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. 72Under s 79C(1)(a)(i) the relevant environmental planning instrument is LLEP 2000. As discussed, this adopts cl. 8 of the Model Provisions, which in turn enables the making of the Leichhardt TPO, which allows for the removal of a tree with consent and contains the provision for the planting of a replacement tree. No other subclauses of s 79C(1)(a) are relevant. 73The applicants submit that the planting of a replacement tree in their front garden will be detrimental to their enjoyment of that space, be a possible security risk, are out of character with adjoining properties, and may cause disruption to underground services. That is, they argue that the impact is likely to be negative and the site is unsuitable (s 79C(1)(b) and (c)). 74Mr Paroissien stated that the roots of a small tree are unlikely to cause any problems to underground pipes. There is no evidence that the roots of the existing and quite substantial Murraya have caused any problems to those pipes. The nominated species are small deciduous trees that will provide summer shade and winter sun and are of an open form as opposed to the existing Murraya. The nominated trees are all capable of being crown lifted to enable access. While a paver may have to be relocated to enable the planting of the tree, the arrangement of the individual pavers is such that they are placed more as stepping stones and do not form a fully paved surface. The disruption should be minor. As stated above, the front garden of the adjoining property to the south contains a Japanese Maple and therefore, the requirement to plant a small deciduous tree in the front garden is not out of character with adjoining properties. 75Therefore, I find that there will be no unreasonably adverse impacts of planting a small replacement tree and the site is suitable. 76In considering the public interest (s 79C(1)(e)), while a condition requiring the replanting of one small tree may seem trivial in the broader scheme of things, it is nonetheless important in achieving the overall aim of the Leichhardt TPO, and in turn, the relevant objectives of the LLEP and, indeed, the objects of the EPA Act. The imposition of reasonable conditions is a common and legitimate way of managing the orderly development of land within the legislative framework established within the State of NSW. 77In my view, the imposition of the condition is reasonable in the circumstances and the merits of planting a small replacement tree outweigh the applicants' arguments against doing so. Orders 78After considering the evidence, submissions and the legislative framework, the Orders of the Court are: (1)Appeal 10388 of 2013 is upheld in part. (2)The application to remove a Jacaranda mimosifolia from the rear garden of Lo1 1, DP 500703, being 31 Piper Street, Annandale is approved subject to the condition in (3) (3)A replacement tree of one of the following species shall be planted in the front yard of the premises within 28 days of the removal of the Jacaranda from the premises: Acer buergeranum (Trident Maple) Lagerstroemia indica (Crepe Myrtle) Acer palmatum (Japanese Maple) (4) All exhibits are returned except 1 and 4. __________________________ Judy Fakes Commissioner of the Court 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: 18 September 2013