Background
The applicants owned a North Epping residential property for which the Council had approved a new dwelling. The original consent required retention of a more than 70-year-old English oak, Tree 2, and approved driveway works within the property boundary while retaining the existing vehicular crossing.
They later sought to modify the consent under s 4.55(2) of the Environmental Planning and Assessment Act 1979 (NSW). The proposed modification would remove Tree 2, widen the driveway and replace the vehicular crossing. The Council refused the application. After a failed conciliation conference, the Court heard the Class 1 appeal.
The Court’s Holding
Commissioner Targett dismissed the appeal and refused the amended modification application. Although both parties accepted that condition 11 of the original consent could not be strictly complied with as drafted, that did not justify the proposed removal of Tree 2 and construction of a new driveway.
The Court found Tree 2 had high retention value: it was mature, more than 15 metres tall, in good health, and made a positive contribution to the landscape. It rejected the applicants’ arborist’s “high” risk assessment because it depended on unproven scenarios—vehicle collision with the trunk or structural-root pruning—and the arborists agreed that careful construction could avoid damaging structural roots.
The Court accepted that the tree marginally encroached, by less than 10%, into the pedestrian sight triangle and that the existing crossing was narrower than the Australian Standard’s 3-metre width. But AS2890.1:2004 was a guideline, not a mandatory rule. The existing access had operated for decades without evidence of safety incidents, and the encroachment did not make removal necessary. A further modification application could instead seek permeable paving and departures from strict driveway-standard compliance while retaining the tree.
Key Takeaways
- A condition that cannot be strictly complied with does not itself establish that a proposed modification is justified.
- High-value mature trees will not be removed on speculative safety or structural-risk evidence.
- Australian driveway standards may be applied flexibly where strict compliance would unnecessarily require removal of a retained tree.
Why It Matters
The decision illustrates the Land and Environment Court’s merits-review role in modification appeals: it must reconsider the proposal against the relevant planning controls and evidence, rather than simply resolve drafting difficulties in an existing consent.
For applicants, the case highlights the importance of proposing a modification that directly addresses the identified conflict. Where access can safely continue with sensitive construction, a narrower condition amendment may be preferable to seeking removal of a significant tree.