Land and Environment Court New South Wales Medium Neutral Citation: Parker Logan Property Pty Ltd (ACN 121 055 178) v Woollahra Municipal Council [2020] NSWLEC 1215 Hearing dates: 2 April 2020 Date of orders: 15 May 2020 Decision date: 15 May 2020 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders: (1) The appeal is dismissed. (2) The exhibits are returned with the exception of exhibits A, B, 2 and 3. Catchwords: MODIFICATION APPLICATION – appeal against conditions – proposal to modify conditions to permit removal of a significant tree. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environment Plan 2014 Texts Cited: Land and Environment Court of the New South Wales, Covid-19 Pandemic Arrangements Policy (March, 2020) Woollahra Development Control Plan 2015 Category: Principal judgment Parties: Parker Logan Property Pty Ltd (ACN 121 055 178) (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) J Ede (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2019/112178 Publication restriction: Nil Judgment 1. COMMISSIONER: Parker Logan Property Pty Ltd (ACN 121 055 178) (the Applicant) has appealed the imposition of certain conditions of consent imposed by Woollahra Local Planning Panel, on behalf of Woollahra Municipal Council (the Respondent). The Applicant's modification application seeks to amend two conditions of consent imposed in relation to the grant of consent for DA 607/2015 for construction of a residential flat building at 9A Cooper Park Road, Bellevue Hill (the Subject Site). 2. The Parties have confirmed that, correctly construed: 1. the appeal comes to the Court pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act); 2. the Applicant's modification application, originally made under s 4.55(1A) of the EP&A Act, was, correctly, determined by the Respondent under s 4.56 of the EP&A Act, and the appeal should be considered on this basis. 1. The appeal against the Respondent's decision is heard under the provisions of s 34C of the Land and Environment Court Act 1979 (the LEC Act). 2. The Applicant's modification application had sought the removal of two significant trees on the Subject Site, identified as trees T1 (a Port Jackson Fig (Ficus rubiginosa)) and T4 (a Bangalay (Eucalyptus botryoides)). 3. The conditions of consent issued in respect of the Respondent's approval of the modification application, and which is the subject of this appeal, approves the removal of Tree 1, but requires the retention of Tree 4, through the imposition of an modified Condition A.6, as follows: "A.6 Tree Preservation & Approved Landscaping Works All landscape works shall be undertaken in accordance with the approved landscape plan, arborist report, tree management plan and transplant method statement as applicable. a) The following trees shall be retained: Ref No Species Location Dimension 4 Eucalyptus botryoides Bangalay Front - Centre 18 x 12 metres 13 Corymbia maculata Spotted Gum Front - Northern 14 x 10 metres corner 14 Lagerstroemia indica 5 x 4 metres Crepe Myrtle In relation to Tree No. 4: Stability measures, such as cabling and bracing, must be put in place immediately to ensure the long term structural stability of the tree and the safety of the site, consistent with the advice of a suitably qualified arborist. In the event that the health of the tree declines from the date of this consent, Council's arborist must be notified in writing. If Council's arborist confirms that the tree needs to be removed, the following tree must be planted: Species/Type Planting Location Container Size/ Size of Tree(at planting) 1 x Angophora Vicinity of the 800 litre 12 x 12 costata removed (metres) (Sydney Pink Gum) Tree 4 Any replacement or supplementary tree shall be grown in accordance with Tree stock for landscape use (AS 2303:2015). The replacement tree shall be planted in a deep soil landscaped area and maintained in a healthy and vigorous condition. If the replacement tree is found to be faulty, damaged, dying or dead before it attains a size whereby it is protected by Council's Tree Preservation Order, it must be replaced with another of the same species which complies with the criteria outlined above. b) The following trees may be removed: Ref No. Species Location Dimension (metres) 1 Ficus rubiginosa (Port Side – East 8 x 9 Jackson Fig) Boundary (Retaining wall) Note: Tree/s to be removed shall appear coloured red on the construction certificate plans." 1. The Applicant now appeals the imposition of this condition, and seeks that condition A.6 be modified through the deletion of references to Tree 4. 2. Two further conditions of consent applicable to the Proposed Development would also require modification, for purposes of consistency, should the Applicant's appeal be upheld. These are condition B.1, concerning tree protection zones, and condition E.8, concerning level changes in the vicinity of trees. 3. Both conditions B.1 and E.8 provide that certain actions be implemented by the Applicant in respect of Tree 4. Those actions would not be required should the retention of Tree 4 no longer form part of condition A.6. Statutory context Environmental Planning and Assessment Act 1979 1. The following provisions of the EP&A Act are of relevance in this appeal: 1. Section 4.56 the EP&A Act provides as follows: 4.56 Modification by consent authorities of consents granted by the Court (1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if – (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has notified the application in accordance with – (i) the regulations, if the regulations so require, and (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. (1A) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. (1B) (Repealed) (1C) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. (2) After determining an application for modification of a consent under this section, the consent authority must send a notice of its determination to each person who made a submission in respect of the application for modification. (3) The regulations may make provision for or with respect to the following - (a) the period after which a consent authority, that has not determined an application under this section, is taken to have determined the application by refusing consent, (b) the effect of any such deemed determination on the power of a consent authority to determine any such application, (c) the effect of a subsequent determination on the power of a consent authority on any appeal sought under this Act. (4) (Repealed) 1. s 4.15(1) of requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: 4.15 Evaluation … (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph). that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. Woollahra Local Environment Plan 2014 1. Development on the Subject Site is subject to the provisions of Woollahra Local Environment Plan 2014 (WLEP), and the following provisions of WLEP are of relevance in this appeal: 1. clause 1.2(2), which provides the aims of the plan, and which includes the following two specific aims: 1.2 Aims of Plan (g) to protect amenity and the natural environment; and … (l) to ensure development achieves the desired future character of the area. 1. clause 2.1, which establishes land use zones within the area covered by the plan as provided in cl 2.2 of WLEP. The Subject Site is zoned R3 Medium Density Residential, and under the provisions of cl 2.3 of WLEP, the objectives of this zone are to: provide for the housing needs of the community within a medium density residential environment. provide a variety of housing types within a medium density residential environment. enable other land uses that provide facilities or services to meet the day to day needs of residents. ensure that development is of a height and scale that achieves the desired future character of the neighbourhood. Woollahra Development Control Plan 2015 1. Development on the Subject Site is subject to the provisions of Woollahra Development Control Plan 2015 (WDCP). 2. Chapter B.1 contains precinct controls for 10 residential precincts, including, within section B.1.7, controls relating the Bellevue Hill South Precinct within which the Subject Site is located. 3. Part E.3 of WDCP concerns tree management and includes the following objectives: "E3.1.3 Objectives … O3 To promote, maintain and conserve the leafy character of the Woollahra Municipality. O4 To conserve significant tree of historic, cultural, commemorative, scientific, visual or aesthetic importance." 1. Chapter G4 of WDCP provides site specific controls in relation to the Subject Site at 9A Copper Park Road, Bellevue Hill, and includes the following objective which was drawn to the attention of the Court by the Respondent: "To guide the design and location of development to address the amenity of adjoining properties." Contentions 1. At the commencement of the appeal the Respondent advised that eleven submissions had been received in response to notification of to the Applicant's modification application. Copies of these submissions were provided by the Respondent within its bundle of documents filed with the Court in relation to the appeal. 2. The Respondent also confirmed that it had considered these submissions and said that the submissions had supported the retention of Tree 4 and the retention of the condition now sought to be modified by the Applicant. 3. As a consequence of the current public health concerns within Australia concerning Covid-19, and consistent with the Court's COVID-19 Pandemic Arrangements Policy, which commenced on 23 March 2020, the Parties had agreed that: 1. a site view would not be undertaken prior to the commencement of the hearing; and 2. video and photographic evidence would be collected by them to assist the Court in its deliberations. These materials were duly filed with the Court and tendered as evidence at the hearing, without objection. This material has assisted the Court to understand the context of the matters addressed at the hearing, and, in particular, to understand the location and conditions in which Tree 4 is situated on the Subject Site. 1. In its written submissions, the Applicant had: 1. noted that the modified condition A.6 had required that stability measures, such as cabling and bracing, must be put in place immediately to ensure the long term structural stability of the tree and the safety of the site, consistent with the advice of a suitably qualified arborist; and 2. confirmed that the Applicant had provided stability measures for Tree 4 in the form of a ballasting system, which had, to its satisfaction, fulfilled the requirements of condition A.6 in relation to the provisions of stability measures. 1. The matters for resolution in this appeal are of relatively narrow compass, and concern the following: 1. the Applicant seeks modification of the conditions of consent applicable to DA607/2015/1, in order that the removal of Tree 4 can procced, and it submits that: 1. Tree 4 is located at the edge of the Subject Site on its western edge, in an area that is currently only accessible by ladder or scaffolding, and that are in place for the purpose of construction activities; 2. significant excavation has already occurred in the vicinity of Tree 4; 3. at the end of the construction period the area in which Tree 4 is located will have no direct access other than by a "large ladder"; and 4. the removal of Tree 4 should it be required at or after the conclusion of construction works will be far more difficult to achieve because of the limited opportunity to access the ledge on which it is located and to facilitate the placement of tools and machinery that might be required for removal of Tree 4 should that become necessary. 1. the Respondent opposes the application for modification of condition A.6 stating that, notwithstanding the construction works that have already been undertaken within the vicinity of Tree 4, the tree remains healthy and viable, and has good prospects for continuing good health over the longer term. The Respondent also says that the retention of Tree 4 is, inter alia, consistent with: 1. the aims of WLEP under its cl 1.2(2), which include objectives to: 1.2 Aims of Plan … (g) to protect amenity and the natural environment; and … (l) to ensure development achieves the desired future character of the area. 1. the desired future character of the Bellevue Hill South Precinct, which includes a desire, in relation to streetscape character and key elements of the precinct, that: "Development respects and enhances the existing elements of the neighbourhood character that contribute to the precinct including; … f) the highly visible tree canopy providing a dense green backdrop to views from Sydney Harbour and surrounding lands. …" 1. objectives O3 and O4 of Part E3.1 of WDCP (see above at [12]), concerning tree management; 1. Consequently, the principal question for resolution in the appeal is whether the Applicant's proposed modification of the conditions of consent applicable to DA607/2015/1 should be approved such that the retention of Tree 4 is no longer required. 2. During the hearing the Court was assisted in its consideration of this question by a joint report of the following arboricultural experts: 1. Mr Ross Jackson, for the Applicant; and 2. Ms Catriona Mackenzie, for the Respondent. 1. The Parties agreed that the Court should rely on the written testimony of the arboricultural experts as provided within their joint report, and that cross examination of the experts would not be required. Should the Applicant's modification application be approved? 1. In their joint report, the arboricultural experts agreed that Tree 4: 1. is a mature Bangalay (Eucalyptus botryoides), a species which is locally indigenous to the eastern suburbs of Sydney and the coastal areas of the Sydney Basin Bioregion; 2. is of normal form, and growth habit for a specimen of its maturity; 3. appears to be less vigorous than it was prior to excavation works being carried out; 4. does not exhibit obvious signs of poor or unstable condition of its parts; and 5. is significant in the landscape by virtue of its size and maturity. 1. The experts also agreed that: 1. the soil type and depth of the Subject Site in the vicinity of Tree 4 is consistent with the natural, low nutrient, typically shallow, sandstone based soils along coastal NSW where this species, that is a Bangalay, predominantly occurs; 2. any replacement tree for Tree 4, should it be removed,: 1. will need to be suited to the soil limitations of the Subject Site; and 2. should have a maximum container or bag size which has been established prior to purchase of the replacement tree, and this selection should be based on the Applicant undertaking a soil depth investigation to establish a suitable soil area to accommodate at least the full depth of the replacement tree container and three times the container's width. 1. Ms Mackenzie said that: 1. the tree is showing signs of stress due to the loss of non-woody, fine roots from within its tree protection zone (TPZ); 2. the tree is exhibiting reduced vigour (consistent with the agreed evidence of the experts (see above at [23(3)])), which she said was a consequence of water stress that had arisen from the tree's current situation, and the effects of drought which was affecting the area at that time; 3. she would expect that as a result of recent rains the tree would show signs of recovery over ensuing months; 4. that there was, and continued to be, no supporting evidence put forward by the Applicant to confirm that the tree was unstable following the excavation of soil and rock around the tree; 5. the tree had been the subject of several recent violent storm events, and had not failed during those events; 6. the tree may be a suitable candidate for a tree restraint system (TRS), which would not prevent tree failure if it did occur, but would prevent the tree from complete fall and impact within its fall zone; 7. it was not appropriate, in her opinion, to remove the tree, which she described as established and having high amenity; and 8. it was her opinion that an 800 litre replacement tree is not suitable for a site with shallow soils. 1. In his written evidence Mr Jackson said that: 1. he agreed with Ms Mackenzie that no supporting evidence had been provided by the Applicant to confirm that Tree 4 was unstable; 2. he had undertaken an assessment of Tree 4 on 2 March 2020, in which he had detailed the extent of root disturbance during excavation and as a result of which he had calculated that the approximately 43% of the TPZ of Tree 4 had been removed as a result of excavation works; 3. he agreed with Ms Mackenzie that recent storms had not resulted in the failure of Tree 4, which he said was a consequence, in part, of the bags of rock ballast that had been placed on the "tension sider" of the tree; 4. he was aware of the potential issues in regard to compression of root systems, associated with having bags of rock ballast located within the TPZ of Tree 4, although, in his opinion, a dense layer of mulch placed under the ballast was mitigating the risk of root compression; 5. it was his opinion that Tree 4 has short term longevity, with a likely loss of stability, as a consequence of excavation work undertaken by the Applicant in the vicinity of the tree; 6. he agreed that no formal tree risk assessment had been undertaken for Tree 4; and 7. he agreed with the opinions of two other experts who had provided advice to the Applicant, a Mr Richards and a Mr Grey, that Tree 4 should be removed. 1. At the conclusion of the hearing, the Parties agreed to provide written closing submissions which were filed at Court and which have assisted the Court in its consideration of the expert evidence and the resolution of the principal question requiring resolution in this appeal (see above at [20]). 2. Based on the evidence of the experts, and having considered the submissions of the Parties, I have concluded that: 1. as agreed by the arboricultural experts, Tree 4 is significant in the landscape by virtue of its size and maturity; 2. Tree 4 does provide amenity, and so is of aesthetic importance, to the surrounding area. In particular it provides amenity to immediate neighbours of the Subject Site, as evidenced by the submissions of neighbours drawn to the Court's attention by the Respondent in its written closing submissions; 3. retention of Tree 4, if possible, would be consistent with: 1. the desired future character of the Bellevue Hill South Precinct (see above at [19(2)(b)]) and, in particular, the maintenance, where possible, of existing elements of the neighbourhood character that contribute to the precinct including the highly visible tree canopy providing a dense green backdrop to views from Sydney Harbour and surrounding lands; 2. objectives O3 and O4 of Part E3 of WDCP (see above at [13]) concerning tree management and which seek to promote, maintain and conserve the leafy character of the Woollahra Municipality, and to conserve significant trees of historic, cultural, commemorative, scientific, visual or aesthetic importance; and 3. the objectives of WLEP in relation to protecting amenity and the natural environment; and ensuring that development achieves the desired future character of the area (see above at [10(1)]). 1. as also agreed by the experts, Tree 4 does not exhibit obvious signs of poor or unstable condition of its parts; 2. as recognised by Ms Mackenzie, and as confirmed by Mr Jackson, in the written evidence in their joint report: 1. there was, and continues to be, no supporting evidence put forward by the Applicant to confirm that Tree 4 was, or is, unstable following the recent excavation works on the Subject Site; and 2. Tree 4 has been the subject of several recent violent storm events, and has not failed, albeit, as identified by Mr Jackson, this may have been assisted by the rock ballast placed at the base of Tree 4 by the Applicant to assist with its stability. 1. notwithstanding the opinions of Mr Jackson to the contrary, and for reasons provided within the agreed evidence of the experts above at [(1)], [(4)] and [(5)], I prefer the evidence of Ms Mackenzie that it is not appropriate to remove Tree 4, which she described as an established tree with high amenity. 1. Further, I note the submission of the Respondent, with which I agree, that the Court can be satisfied that in the event that the health of Tree 4 declines, the provisions of condition A.6, as imposed by Woollahra Council in its approval of the Applicant's modification application, are such that the Applicant can approach Council with sufficient evidence to demonstrate that the removal of Tree 4 might then be justified. 2. Finally, I note: 1. the shared concern of both arboricultural experts that the use of rock ballast as a means of assisting the stability of Tree 4 could give rise to undesirable impacts on the root system of Tree 4 through compression of root systems; 2. that Mr Jackson has said that these impacts might be mitigated by a layer of mulch placed under the rock ballast. However, I share Ms Mackenzie's concern that, in time, the use of heavy bags of rock ballast would, nevertheless, give rise to the compaction of underlying soil which would, in turn, discourage new root growth; 3. as observed by Ms Mackenzie: 1. while condition A.6 states that Tree 4 should have stability measures installed immediately, the systems identified in condition A.6 to achieve this outcome refer to cabling and bracing mechanisms, and do not make reference to the laying down of rock ballast; 2. Tree 4 may be a suitable candidate for a TRS of the type identified by her at paragraph 40 of the joint report she had prepared with Mr Jackson; 3. the identification and installation of a suitable TRS by a specialist with expertise in these systems would, in addition to assisting the stability of Tree 4, also assist in mitigating any potential future risk associated with a failure Tree 4, and any associated impacts to property and persons within the Subject Site. The Applicant had identified that this is an objective it has sought to achieve, albeit through a different technique, that being the proposed removal of Tree 4; 4. any replacement tree for Tree 4 would need to be suited to the soil limitations of the Subject Site, and should have a maximum container or bag size which has been established prior to purchase of the replacement tree; and 5. any selection of a replacement tree should be based on the Applicant undertaking a soil depth investigation to establish a suitable soil area to accommodate at least the full depth of the replacement tree container and three times that container's width. Conclusion 1. For reasons provided above at [28], I find that the Applicant's modification application, which seeks that condition A.6 be amended through the deletion of references to Tree 4, and that, for consistency, conditions B.1 and E.8 also be revised, should not be approved. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned with the exception of exhibits A, B, 2 and 3. …………………………….. M Chilcott 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: 15 May 2020