Stop Sydney's War On Trees - Submission

Changes to Tree Management on Private Land


We object to the proposed changes because:



  • Including the height of a tree and whether it is within a so-called 'strike-zone' of a dwelling or ancillary structure in the Tree Management Assessment Criteria is inconsistent with long established norms that 'danger' relates to the arboricultural condition of a tree and genuine risk, not someone's purported concern about a tree's proximity.


As such, tree removal could be based on a person simply wishing to remove a tree and therefore expressing 'concern', rather than removal being based on arboricultural assessment of a tree's Safe and Useful Life Expectancy (SULE), which is the international standard for tree assessment.


This proposed criteria is open for abuse. It is much publicised that the RFS 10/50 clearing code is being widely abused to clear trees for other purposes than genuine bushfire risk. The same will happen with this Assessment Criteria.



  • The inclusion of an objective into the Hills DCP 'Aims and Objectives' to "recognise the right of a property owner to be able to manage vegetation on their land, including the removal of trees that they consider a danger to their dwelling" will put the onus on Council staff to approve tree removal at the owner's request.


This is inconsistent with the Greater Sydney Commission Central City District Plan Planning Priority C16 Objective 30 "Urban Tree canopy cover is increased". The NSW Government has set a target to increase tree canopy cover across Greater Sydney to 40%. While it is claimed that Hills Shire has over 50% tree that is an meaningless statistic because over a third of the Shire is either National Park or bushland. It is in the urban areas where there is a rapidly declining tree canopy.


Property ownership does not give a person the right to do whatever they want on the land. Otherwise units could be built anywhere, loud music could be played at 3am and pubs and brothels built next to schools.



  • The proposed minimum height of 15m at which a tree can be considered a 'danger' has no relevance when "The removal of trees less than 15 metres high will still be considered on merit". With the proposed inclusion of the objective to recognise the right of an owner to remove trees that they consider a danger, an owner could insist on the removal of any trees of any height. 

  • The proposed removal of the requirement that only "Works undertaken under the dangerous tree exemption relate only to work required to make safe the tree or component of the tree that poses the risk" would allow removal of a tree that drops a branch. This creates ambiguity when there is no definition of what constitutes significant or substantial failure. No minimum size of branch has been provided. It would be nearly impossible to prove whether branch loss was the result of so-called storm damage.


It would be virtually impossible to prosecute anyone who removes a tree without a permit because the tree dropped a branch. If these changes are about safety then the current Guidelines should be retained whereby any storm damaged tree is pruned to ensure safety, not simply removed.



  • The inclusion of two Threatened Species in the list of exempt species that can be removed without any permit is unacceptable. Both the Eucalyptus nicholii (Willow leaf Peppermint) and Eucalyptus scoparia (Willow Gum) are identified as Threatened Species under the NSW Biodiversity Conservation Act 2016. They are also listed as Vulnerable species under the Commonwealth Environment Protection and Biodiversity Conservation Act (EPBC Act).


No justification whatsoever has been provided for their inclusion in the list of trees that can be removed without a permit. No justification is acceptable for inclusion of Threatened Species in the Hills Shire list of trees that can be removed without a permit.



  • People being 'inconvenienced" by a tree as has been suggested in the media is not a valid reason for tree removal. This concept is inconsistent with Court judgements.



  • No consideration has been given to the protection that trees provide to dwellings from storms. They can reduce hail damage, reduce wind velocity around a dwelling and reduce the likelihood of roofing materials such as tiles or corrugated iron sheeting been blown off.



  • The suggestion that allowing people to remove trees will encourage more trees to be planted is absurd.



  • The inclusion of "ancillary structures” as well as a dwelling house would enable people to remove trees that are not a threat to habitable dwellings. This does not improve safety measures it simply allows more trees to be removed. It is inconsistent with emergency services legislation such as bushfire hazard protection.






  • The Environmental Planning and Assessment Regulation 2000 Clause 21 requires Council to consider any submissions about the draft Development Control Plan (DCP) that have been duly made. 


We believe Council faces a profound problem of being perceived as having already determined the matter without having considered submissions duly made. Such circumstances give rise to the notion of pre-determination and the reasonable apprehension of bias regarding a future decision by Council to adopt the amended Hills DCP. The rule against bias at law is a part of the fundamental principle that justice should not only be done but be seen to be done.


The general approach to whether there is a reasonable apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the exercise of the power: McGovern v Ku-ring-gai Council [2008] NSWCA 209.


We believe that the press releases, comments, media articles and social media posts generated by Hills Shire Council  would be enough for a fair minded lay observer to form the view that the Council might not bring an impartial mind to considering the submissions made regarding the Hills DCP amendment when it is considered after public exhibition.