Preservation of Sydney Turpentine Trees Trumps Proposal for Unit Block Development in Lindfield

The Land and Environment Court has rejected a development application that called for the removal of three Sydney Turpentine trees to make way for a mixed use apartment and commercial development project near the Lindfield Train Station. The decision Arkbuilt Pty Ltd v Ku-ring-gai Council,was handed down by Commissioner Dixon on 14 August 2014 and can be found on the Court's Website at the following link: 

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=173416.

The development application sought approval for the construction of 62 apartments over three levels of undergound car parking, a small neighbourhood shop and a larger gourmet grocery on a consolidated site consisting of 5 properties over 6000 square metres of land. There was considerable pre-existing development on the site - including a service station, residential units and a residential dwelling, and adjacent land uses include medium to high-density residential apartment blocks and a small-scale shopping complex.

As the Court found that the development proposal otherwise satisfied the objectives for the land use zones where the site if located, the sole obstacle to the project was the presence of 3 mature Sydney Turpentine trees on the land.  Aerial photography dating from the 1940s indicated that the trees are at least 70 years old. The applicant contended that the removal of the trees was necessary for the development because they obstructed access to the proposed basement car park entry. The applicant further argued that removal of the trees would not be problematic because the trees were allegedly in a state of decline due to "root rot". There was evidence that there had been a decline in the health of the canopies of the trees.  It is of interest that the Council's expert witness, who holds qualifications in arboriculture and horticulture, concluded that the most likely reason for the decline in the health of the trees was poisoning and not root rot (as evidenced by the presence of a drill hole in one of the trees and "frilling cuts" on another of the trees.

Ultimately, the appeal failed before the Court because the proposal fell afoul of a clause in the Council's local environmental plan relating to biodiversity protection. This provision of the LEP specified that development consent could not be granted unless the consent authority was satisfied that the proposal was designed to avoid potentially adverse environmental impacts and would not be inconsistent with the objective of maintaining and improving the diversity and condition of native vegetation.  

Two strands of evidence were fatal to the applicant's case in this appeal: The evidence of the Council's ecologist that the removal of the Sydney Turpentine trees would have an adverse impact on the long-term survival of the endangered Sydney Turpentine Ironbank Forest in the Ku-ring-gai Council local government area, and, perhaps equally critically, the Commissioner's conclusion that the applicant had not exhausted all possible design alternatives that would avoid the need for the removal of the trees.

The primary lessons that can be drawn from this case are that development applications that propose the removal of mature and ecologically significant trees are potentially fraught with difficulty (even in circumstances where such trees are growing on land that is already highly urbanised and intensively developed). Furthermore, proposals that are not thoughtfully designed to avoid adverse impacts to sensitive environmental resources are apt to be looked upon with disfavour by the Court.