By Anthony Whealy, Partner, James Oldknow, Senior Associate and Amelia Adams, Solicitor

A common barrier for landowners seeking to develop their land pursuant to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (‘Codes SEPP’), by means of obtaining a Complying Development Certificate (‘CDC’), is the presence of a large tree (or trees) in excess of 6m or 8m in height, depending on the type of development sought.

We recently assisted an Applicant to overcome this barrier and to obtain consent to remove a 16m tall and 10m wide Oak Tree via Land and Environment Court (‘Court’) appeal proceedings known as Scuccimarra v Canterbury-Bankstown Council [2023] NSWLEC 1025 (‘Scuccimarra’), a decision published on 19 January 2023. Removal of that Oak Tree had been holding up the Applicant’s intentions to deliver a multi-dwelling housing development via the CDC pathway, heightened by the local Council having refused an application to remove it. Each case will ultimately turn on its own specific facts and circumstances but the key take away from Scuccimarra is that the Court has made it abundantly clear that there are many valid merit reasons for large trees to be removed, including to promote orderly and economic use and development of land, which may be achieved via a range of permissible forms and pathways of development, such as the CDC and Codes SEPP pathway.

Of course, the path of least resistance for landowners to remove large trees holding up CDC development is to apply to the relevant local Council for a tree removal permit. If a permit is successfully obtained from the local Council, lawful removal of the tree(s) can occur and a CDC can subsequently and validly be issued (assuming that all of the other relevant preconditions in the Codes SEPP are satisfied). However, if a local Council refuses, or fails to determine, an application for a permit to remove the large tree(s) this leaves landowners with little (known) recourse. A practical ‘work around’ is for the landowner to abandon the CDC development pathway and revert to a Development Application pathway to seek consent for tree removal in addition to construction of the desired built form. However, landowners who adopt this ‘work around’ miss out on the benefit of the Codes SEPP to “provide a streamlined assessment process” (see: cl.1.3) and also the higher yields that may, and are often, available via the CDC pathway.

It follows that local Councils are equipped to block CDC development in circumstances where there are large trees on proposed development sites, notwithstanding there may be valid merit reasons for those trees to be removed, for example to promote orderly and economic use and development of land.

This is precisely what had occurred in Scuccimarra. The relevant background to those Court proceedings can be summarised as follows:

• The Applicant had acquired 2 adjacent lots for proposed development
• Both lots were zoned R3 Medium Density Residential
• Lot 1 had a site area of approx. 900m2
• Lot 2 had a site area of approx. 700m2
• Indicative plans and drawings had been prepared for a multi-dwelling housing development (consisting of 7-dwellings across both lots) pursuant to Part 3B – Low Rise Housing Diversity Code of the Codes SEPP
• Situated in the middle of the rear yard of Lot 1 was a 16m tall and 10m wide Oak Tree. Accordingly, the Oak Tree was larger than the size of a tree able to be removed without a permit pursuant to the Codes SEPP, which as noted above, only allows the removal of a tree or vegetation that has a height of less than 6m or 8m, depending on the type of development (see: Part 3 Housing Code, Division 5, cl.3.33(1)(c) with respect to the construction of attached/detached development and Part 3B Low Rise Housing Diversity Code, Division 6, cl.3B.61(1)(c) with respect to the construction of dual occupancies, manor houses, multi dwelling housing (terraces), attached development and detached development)
• An application for a permit to remove the Oak Tree had been submitted to the local Council but this had been refused

In response, we assisted the Applicant to:

• lodge a Land and Environment Court appeal against the local Council’s refusal to issue a permit for the removal of the Oak Tree pursuant to cl.12 of the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, now s.2.12 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (‘Codes SEPP Appeal’);
• prepare a ‘precautionary’ Development Application seeking consent for removal of the Oak Tree and to also lodge an appeal to the Court against the local Council’s refusal of that Development Application pursuant to s.8.7 of the Environmental Planning and Assessment Act 1979 (‘DA Appeal’); and
• have the Codes SEPP Appeal and DA Appeal run and be heard concurrently before the Court at a contested hearing.

Over the course of the Court proceedings, the Council argued that a large tree cannot be removed merely for the purposes of making convenient a Codes SEPP application and that its preference was for the Applicant to submit a development application to seek consent for removal of the Oak Tree in addition to the desired built form pursuant to its applicable LEP and DCP controls  (being the practical ‘work around’ discussed above). However, the Applicant was not enthusiastic about pursuing this work around and much preferred developing the lots via the CDC pathway (for a number of practical and commercial reasons), if it was available after lawful removal of the Oak Tree.

The Court was ultimately satisfied on the merits of the Applicant’s case, that:

1. The Oak Tree, in its form, state of health and location, was not a suitable existing tree and was not in good health (at [34]);
2. The removal of the Oak Tree would promote the orderly and economic use and development of the site (at [38]) (this being one of the objects of the Environmental Planning and Assessment Act 1979, see s.1.3(c)); and
3. The Applicant’s proposal to plant 2 replacement trees following removal of the single Oak Tree, which were to be maintained, together with a mechanism for informing Council of the growth of those replacement trees, to a height of 6m, without the ability to remove them prior to consent from Council being obtained, was satisfactory and enforceable by way of a condition (at [46], [63]-[68]).

On that basis, the Court concluded that both the Codes SEPP Appeal and DA Appeal each warranted the grant of a permit and consent, respectively, to remove the Oak Tree (at [75]). Ultimately, for procedural reasons, the Court was only required to uphold one of those two appeals because there is no need for 2 approvals to undertake the exact same works. The Court decided to uphold the DA Appeal and (technically) dismiss the Codes SEPP Appeal because “a development consent runs with the land and that enforcement of a development consent will be more straightforward and efficient for Council if any of the conditions were not to be complied with” (at [78]).

If you are faced with a similar tree issue and require further assistance in relation to this topic, we are ready and able to assist. As we say at the outset of this article, each case will ultimately turn on its own specific facts and circumstances (for example the type and condition of the tree in question and its resultant impacts on the reasonable development potential of a site) but the key take away here is that the Land and Environment Court has made it abundantly clear that there are many valid merit reasons for large trees to be removed, including to promote orderly and economic use and development of land, which may be achieved via a range of permissible forms and pathways of development, such as the CDC and Codes SEPP pathway. A balancing act of assessment considerations must be undertaken to determine whether a development should be allowed to proceed, rather than slavish adherence to a blanket prohibition against tree removal under any circumstances. Factors such as permissible land uses and zone objectives will also need to be afforded some weight in the decision-making process.