Court Holds That Mature Sydney Redgum Tree May Be Removed to Make Way for New House

In a previous post, we discussed a recent judgment of the Land and Environment Court where the presence of three Sydney Turpentine trees on a proposed development site caused a development application to fail: see our article concerning the Court's decision in Arkbuilt Pty Ltd v Ku-ring-gai Council, (2014) NSWLEC 1161.  In the Arkbuilt case, Commissioner Dixon concluded that the applicant had failed to consider plausible design solutions that would have allowed the retention of the trees, and thus dismissed an appeal against the refusal of the application.

By contrast, in P S Graham & Associates v Hornsby Shire Council (2014) NSWLEC 1153, Commissioner Brown decided that a large, healthy Sydney Redgum tree could be removed to facilitate the construction of a new house. The two cases, with divergent results, provide interesting food for thought about how issues relating to the protection of significant trees may affect the outcome of planning appeals in the Court.

The development application at issue in P S Graham & Associates sought approval for the demolition of an existing house and the construction of a new two storey dwelling in the leafy Sydney suburb of Beecroft. The development site was a large, steeply sloping block of land encompassing nearly 4,000 square metres. The property is located in a heritage conservation area, and some of the street trees located in the vicinity of the site were also designated as heritage items of local significance under Hornsby Council's local environmental plan.

Commissioner Brown concluded that there were a number of circumstances that justified the removal of the tree. First, the Commissioner accepted the evidence of the applicant's ecologist that the tree was a common species which was widespread in the locality of the site, and that removal of the one tree would not adversely impact on biodiversity or wildlife corridors. Secondly, the Commissioner found that removal of the single tree would not have an unacceptable impact on the character of the heritage conservation area.  

Further, the Commissioner rejected suggestions by the Council's planning expert that removal of the tree could be avoided by situating the new house on the foot print of the existing dwelling.  The Commissioner accepted that placing the new dwelling in the same location would result in adverse overlooking and amenity impacts on the two adjoining properties. Additionally, the Commissioner determined that allowing the removal of the tree would enable the new house to achieve a consistent front setback with the adjoining properties, and would thus promote a consistent streetscape.

The lesson that can be drawn from this case is that approval can be obtained for the removal of a large, healthy native tree if the tree is not rare in the locality and if there are sufficiently strong planning considerations to justify the work - for example, where alternative design proposals that would allow retention of the tree would lead to undesirable amenity impacts on neighbouring properties.