Chapter B10: Tree Preservation and Vegetation Management

1 - Introduction

1.1 Scope of this Chapter

This chapter of the DCP applies to all land within the following zones under the Kempsey Local Environmental Plan 2013:

• Zone R1 - General Residential
• Zone R3 - Medium Density Residential
• Zone R5 - Large Lot Residential
• Zone RU5 - Rural Village
• Zone B1 - Neighbourhood Centre
• Zone B2 - Local Centre
• Zone B3 - Commercial Core
• Zone B6 - Enterprise Corridor
• Zone IN1 - General Industrial
• Zone IN2 - Light Industrial
• Zone SP2 - Infrastructure
• Zone E2 - Environmental Conservation
• Zone E3 - Environmental Management
• Zone E4 - Environmental Living

This chapter applies to trees and vegetation listed in Appendix A of this chapter.

This chapter applies to the actions of ring barking, cutting down, topping, pruning, removing, injuring or wilfully destroying any tree or vegetation.

1.2 Exclusions to the Scope of this Chapter

Trees, vegetation and actions listed in Appendix B are excluded from the scope of this chapter.

Council will ideally require written verification from an appropriately qualified person/s (such as an Arborist, Registered Builder or Emergency Services Organisation) to be satisfied as to whether the tree or vegetation to be removed constitutes an excluded item. Persons acting upon these exclusions/exemptions without prior consultation with Council and without adequate proof as to the condition of the vegetation removed may face subsequent legal action should it be determined that prior consent was required.

Trees and vegetation included in the following zones are excluded from the scope of this Chapter:

• Zone RE1 - Public Recreation
• Zone RE2 - Private Recreation

1.3 Relationship to Other Chapters of this DCP

This chapter overrides the provisions contained in any other chapter of this DCP.

2 - Chapter Objectives

The objectives of this chapter are:

1. To prevent unnecessary removal or damage to trees or other vegetation within the Kempsey Shire local government area, whilst maintaining reasonable opportunity for the removal of vegetation that is undesirable given its species, location or other attributes that would warrant its removal.
2. To preserve the amenity of Kempsey Shire, including biodiversity values, through the preservation of trees and other vegetation.
3. To specify, pursuant to Clause 5.9(2) of KLEP2013, when development consent will be required to ringbark, cut down, top, lop, remove, injure or willfully destroy certain species or kinds of trees and vegetation.
4. To ensure that proper consideration is given to trees and native vegetation in designing, planning and constructing development.
5. To minimise injury to or destruction of trees and native vegetation.
6. To retain healthy individual trees of local amenity and aesthetic value.
7. To facilitate the removal of undesirable exotics, noxious weeds, dangerous trees and any other inappropriate plantings, and to replace these with suitable local indigenous species which will positively contribute to visual and environmental amenity and ecological sustainability.
8. To retain viable representative samples of native vegetation, which have an intact structure and complete floristics, wherever practicable.
9. To facilitate limited tree removal associated with a Complying Development Certificate.

3 - Background

3.1 Relationship to other Documents, Policies, Guidelines and Authorities.

3.1.1 Native Vegetation Act 2003

The Native Vegetation Act 2003 will apply to tree removal and vegetation removal in Zones RU1, RU2, RU3, RU4, E2, E3, E4, RE1 and RE2.

3.1.2 National Parks and Wildlife Act 1974

The provisions of this chapter do not apply to trees of Aboriginal heritage, to which the National Parks and Wildlife Act 1974 applies.

3.1.3 State Environmental Planning Policies

State Environment Planning Policies prevail over this chapter in respect of land affected by:

• State Environmental Planning Policy No. 14 - Coastal Wetlands;
• State Environmental Planning Policy No. 26 - Littoral Rainforests;
• State Environmental Planning Policy No. 44 - Koala Habitat Protection; and
• State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

Development is not exempt or complying development in accordance with the SEPP (Exempt and Complying Development Codes) 2008 where the development involves the removal or pruning of a tree or other vegetation that would otherwise require a permit or development consent for removal or pruning, unless that removal or pruning is undertaken in accordance with a permit or development consent. Consequently, development consent must be obtained for any damage to vegetation that will occur in the undertaking of exempt or complying development, unless that damage would be otherwise permissible without consent pursuant to other provisions of this chapter, prior to undertaking the exempt development or the issue of a complying development certificate.

SEPP (Exempt and Complying Development Codes) 2008 includes provisions that allow the removal of a tree associated with CDC where, it is not a heritage item or on a significant tree register, and has a height of less than 6m and located within 3m of the proposed development (within the subject lot).

3.1.4 Tree Preservation Order 2002

The tree management provisions contained within this chapter replace Council’s Tree Preservation Order 2002 (TPO). Consequently, where a permit was previously issued under the TPO, a development consent will now be issued under clause 5.9 of KLEP2013.

3.2 Council Approval for the Removal of Trees and Other Vegetation

Clause 5.9 of KLEP2013 requires development consent for:

1. Ring barking, cutting down, topping, pruning, removing, injuring or willfully destroying any trees and other vegetation listed in Table B10.1 in Appendix A.
2. But approval is not required in accordance with clause 5.9 of KLEP2013 for the removal of trees or other vegetation referred to in Appendix B.

All applications for tree removal will need to be submitted to Council using Council’s Development Application Form (note - the former Tree Preservation Order Permit application process is superseded by the adoption of Kempsey Local Environmental Plan 2013).

Any development application made under clause 5.9 of KLEP 2013 is to be accompanied by the landowner’s written consent.

The application is to be assessed against section 79C of the Environmental Planning and Assessment Act 1979.

Council may decide to approve an application in its entirety, allow for selective pruning or to refuse the application.

All approvals for the removal of prescribed trees and vegetation will be issued as a Development Consent Notice. That is, permits to remove trees and vegetation will no longer be issued.

3.3 Classes of Tree/Vegetation Actions and Application Fees

Table B10.1 of Appendix A of this Chapter splits the prescribed trees and vegetation into two classes: Class A and Class B.

As stated in the previous section, permits have been superseded. Consequently, a development application will be required for the removal and other relevant actions to any trees/vegetation identified as Class A or Class B.

Fees based on Council’s Schedule of Fees and Charges 2013-2014 will be applied to development applications for the tree and vegetation actions in accordance with the following table (at the time of adoption of this DCP).

Note: *The sections and amounts may be amended in subsequent versions of Council’s Schedule of Fees and Charges.

3.4 Public Notification

Council must publicly exhibit any applications for removal of trees or other vegetation, identified as “Class A” in Table B10.1 of Appendix A of this chapter, for a minimum of (14) days prior to determination.

Trees and vegetation identified as “Class B” in Table B10.1 of Appendix A do not need to be placed on public notification.

3.5 Penalty

Any person who contravenes this chapter, or causes this chapter to be contravened would be guilty of an offence under the Environmental Planning and Assessment Act 1979 and may be liable to prosecution and may incur a maximum penalty of $1.1 million through the Land and Environment Court.

4 - Guidelines for Preparing an Arborist Report for Tree Removal

4.1 Introduction

An Arborist report, prepared by an appropriately qualified consultant, is a useful tool in assessing applications for tree removal.

An appropriately qualified consultant would be a consulting arborist, otherwise referred to as an independent arboricultural consultant or an interdependent consulting arborist. Such consultants:

• derive their income primarily from reporting on urban trees, and have no commercial interest in pruning or removing trees;
• hold the Australian Qualifications Framework Diploma in Horticulture (Arboriculture) or other qualification to the satisfaction of Council;
• have specialised training in tree diagnostics; and
• have specialised training in the preparation of written technical reports on trees.

On the other hand, a tree worker (otherwise known as a tree surgeon, lopper, arborist, tree doctor, tree feller etc) is someone whose primary income is derived from pruning and removing trees. Tree workers are not considered to be appropriately qualified for the preparation of Arborists reports, as they have not had the necessary training for tree diagnostics and report preparation.

In NSW arborists and tree workers are not regulated, licensed or certified by any authority.

When seeking to have an Arborist Report prepared, it is recommended that:

• a consulting arborist prepare the report;
• the consulting arborist has sufficient qualifications and experience for the task; and
• the consulting arborist has sufficient professional indemnity insurance.

4.2 Contents of an Arborist Consultant’s Report

The following matters should be addressed in an arborist consultant’s report submitted to Council. Council may reject a report that does not adequately address these matters:

1. The full name, business address, telephone number(s), evidence of technical qualification(s) and the experience of the arborist carrying out the tree inspection, diagnosis and reporting.
2. The full address of the site containing the trees.
3. The full name of the person or company for whom the report is prepared.
4. The methods and techniques used in the site and tree inspection.
5. A suitably scaled plan of the site showing:
   1. the location of all trees on the site and any trees on adjoining land which overhang or under grow;
   2. the subject land;
   3. the lot boundaries; and
   4. the location of above and below ground services/utilities in proximity to the trees shown.
6. A table showing for each tree surveyed:
   1. the common and full scientific name;
   2. the age class;
   3. the estimated height;
   4. the trunk diameter at 1.0 metres;
   5. the canopy spread to the four cardinal points;
   6. a summary of the trees’ health and structural condition; and
   7. an estimation of the trees useful life expectancy (refer to literature on SULE assessments)
7. A summary and/or discussion of other relevant tree and site information such as soil and drainage characteristics, wildlife habitation, root structure and distribution, pests and diseases, and tree hazard assessment details.
8. Tree hazard assessments should be conducted and recorded in accordance with industry best practice.
9. Supporting evidence such as annotated photographs and laboratory results, if relevant, to the proposed works or to assist in describing tree or site conditions.
10. A discussion of all options available, including why they are recommended or not recommended, e.g. can a built structure be relocated, repaired and tree(s) retained?
11. A review of the implications of the proposed development on the health and structural condition of trees to be retained.
12. A description of the recommended protection measures to be put in place to ensure the protection of trees to be retained, and a description of any proposed method of tree removal.
13. A list of recommendations and the reasons for their adoption.
14. The sources of technical information referred to in the report. References not used in the report should not be included.
15. Present information as objectively as possible without attempting to support a specific development outcome.
16. Provide the scientific and common names of all tree species proposed for planting, including recommendations on the size and quality characteristics of trees to be planted.
17. Any other relevant matters.

5 - Development Requirements

5.1 Tree and Vegetation Removal and Other Actions

Desired Outcomes

DO1 - Approvals to remove trees are only given where the negative amenity and environmental impacts of retaining the tree outweigh the positive impacts of removing the tree.

DO2 - Proper consideration is given to trees and native vegetation in designing, planning and constructing development.

DO3 - Injury to or destruction of trees and native vegetation is minimised.

DO4 - Healthy individual trees of local amenity and aesthetic value are retained, where practicable.

DO5 - Undesirable exotics, noxious weeds, dangerous trees and any other inappropriate plantings are removed.

DO6 - Replacement plantings of local indigenous species are provided, where requested by Council.

DO7 - Viable representative samples of native vegetation, which have an intact structure and complete floristics, are retained, wherever practicable.

Development Requirements

1. Adequate justification is required for the removal of the tree/vegetation. For example:
   1. Whether the tree is dying or dead;
   2. Whether the tree is structurally unsound;
   3. Whether the tree is diseased;
   4. Whether remedial pruning would improve any of the above conditions to a satisfactory state;
   5. Whether the tree is likely to substantially interfere with private property and/or public infrastructure and/or services;
   6. Whether the tree is likely to substantially interfere with the efficiency of a solar heating appliance; and
   7. Whether the tree is a substantial threat to property or life.
      
      Note - it may be necessary to submit an Arborist consultant’s report to assist in the assessment of the application. Seek advice as to whether an Aborist Consultant’s report is required from Council prior to lodging an application.
      
      Note - the following arguments will not normally be sufficient justification:
      • Falling leaves, flowers, fruit or twigs; and
      • View creation or preservation.
2. Where potential risk can be mitigated by the relocation of items (eg: seating, play equipment, parking areas), or restrictions on use, then these mitigation measures are to be pursued in preference to removal of the tree.
3. Any consent issued under this chapter is only valid for a period of twelve (12) months from the date of the application.
4. Any actions on trees and other vegetation must be carried out in accordance with:
   1. the Australian Standards 4373-1996: Pruning of Amenity Trees; and
   2. the Electricity Supply Act 1995.
5. Where a permit has been issued and is subject to conditions, the person to whom the permit has been issued is responsible to ensure that all conditions are met.
6. Replacement planting of trees endemic to the area will be required at Council’s discretion.
7. The minimum number of trees and/or the minimum amount of vegetation is to be removed from the site.
8. Vegetation in the vicinity of the trees/vegetation on which actions are proposed to be undertaken are to be protected in accordance with any reasonable and relevant requirements of Australian Standard AS 4970-2009: Protection of Trees on Development Sites.
9. The removal of vegetation is not to have a negative impact on any threatened species of flora and fauna.
   
   Note - A report, prepared by a suitably qualified ecological consultant, may be required to support the application and assist assessment against this Development Requirement.
10. The relevant development requirements of Chapter B11 - Koala Habitat Management, are appropriately addressed, where relevant.
11. Vegetation forming part of an Endangered Ecological Community (EEC) is to be preserved, wherever possible and practicable.
    1. EEC vegetation is to be removed only in the most limited of circumstances where no other alternative exists to mitigate an immediate hazard to human life.

5.2 Additional Requirements Specific to Trees and Vegetation on Council Controlled Land

Desired Outcomes

DO1 - The relevant Desired Outcomes of Section 5.1 are achieved.

Development Requirements

1. The relevant Development Requirements of Section 5.1 are satisfied.
2. Trees on Council controlled land are only pruned or removed where:
   1. Written consent is provided by Council; and
   2. They are dead, dying, diseased or dangerous, or
   3. They are causing damage to infrastructure on public land, or
   4. They are impacting on pedestrian or traffic conditions; or
   5. They are interfering with services on private property; or
   6. They impact on the outlook from historic sites or significant public viewing areas; or
   7. The growth habit or mature size of the tree is undesirable in a particular situation, as determined by the General Manager or his delegates; or
   8. The trees require removal to fulfil the requirements of s100C of the Rural Fires Act, as determined by the General Manager or his delegates.
3. Where a tree removal on Council land is approved, the removal is to be supervised by the Director of Infrastructure Services or their delegate.
4. A tree removed on Council land is to be replaced by an approved species in a suitable location as determined by the Director of Infrastructure Services or his delegate.
5. Pruning or removal of trees with the intent of enhancing the views to or from private property is not to be undertaken.
6. Adhoc planting of trees or other vegetation within the road reserve (including public footpaths) is not to occur. Any planting that occurs in this manner will be removed and the road reserve restored at no cost to the Council.
7. Council may consider permitting planting on public land by an Incorporated Community Group where accompanied by a detailed report.
8. Council has no statuary obligation or onus to treat termites, however where a tree on public land is affected by termites, Council may grant permission for adjoining landowners to enter upon public land to treat termites where treatment does not include the destroying, pruning or removal of trees on public land.

Appendices

Appendix A: Prescribed Trees and Other Vegetation for the purpose of clause 5.9 of Kempsey Local Environmental Plan 2013

Appendix B: Exclusions to the Prescribed Trees and Other Vegetation List

The following trees and other vegetation are excluded from the scope of this chapter. In this regard, the following tree/vegetation removal and actions may be undertaken without the need for a development consent.

1. Trees or other vegetation that the Council is satisfied is dead or dying and is not required as the habitat of native fauna.
2. Trees or other vegetation that Council is satisfied is a risk to human life or property.
3. Any tree within 10m of an existing habitable dwelling (including manufactured home), except for trees comprising a threatened species, population, ecological communities or their habitats. Potential Endangered Ecological Communities have been mapped and are available from Council.
4. Any tree harbouring Queensland Fruit Fly or grown for edible fruit.
5. Trees and other vegetation identified as noxious weeds under the Noxious Weeds Act 1993, or listed as environmental weeds by the North Coast Weeds Advisory Committee and/or the Department of Agriculture.
6. Trees for which an order or certificate has been granted under the Rural Fires Act, 1997.
7. Trees and vegetation required to be removed to create a bushfire APZ around existing dwellings located on bushfire prone land.
8. Trees required to be removed, pruned, lopped or topped in accordance with the Electricity Supply Act 1995.
9. Trees within an approved plantation meeting the criteria of the Timber Plantations (Harvest Guarantee) Act 1995.
10. Plantations established by State Forests on purchased lands, or on private lands under the joint venture or Farm Forestry Schemes.
11. Trees or other vegetation within a State forest, or land reserved from sale as a timber or forest reserve under the Forestry Act 1916.
12. Trees required to be removed by Council as part of the management and maintenance of any public reserve and/or road.
13. Any trees in which consent to remove has been granted in accordance with a valid development consent and/or construction certificate in accordance with the Environmental Planning and Assessment Act 1979 or an approval issued in accordance with the Local Government Act 1993 or the Roads Act 1993.
14. The clearing of Native Vegetation that is authorized by a development consent or property vegetation plan under the Native Vegetation Act 2003.
15. Any tree or vegetation less than 3m in height.
16. Any tree that has a trunk diameter of less than 150mm at 1.0m above ground level.
17. The clearing of native vegetation:
    1. That is authorised by a development consent issued under the Environmental Planning and Assessment Act 1979 or property vegetation plan under the Native Vegetation Act 2003; or
    2. That is otherwise permitted under Division 2 or 3 of Part 3 of that Act, unless land is in Zone R5 large Lot Residential, E2 Environmental Conservation, E3 Environmental Management or E4 Environmental Living.
18. The clearing of vegetation on State protected land (within the meaning of clause 4 of Schedule 3 to the Native Vegetation Act 2003) that is authorised by a development consent under the provisions of the Native Vegetation Conservation Act 1997 as continued in force by that clause.
19. Action required or authorised to be done by or under the Electricity Supply Act 1995, the Roads Act 1993 or the Surveying and Spatial Information Act 2002.
20. Removal of a maximum of 10% of the canopy of a tree where the work is necessary for the health of the tree and is designed and carried out in accordance with AS 4373-2007: Pruning of Amenity Trees.
21. Removal of dead branches including palm fronts and the selective removal of branches up to and including a diameter of 50mm may be undertaken without a permit or development consent where the removal:
    1. Does not alter the canopy of the tree, and
    2. Does not destroy the aesthetic appearance of the tree canopy; and
    3. Does not alter the growth structure of the tree, and
    4. Is carried out in accordance with Australian Standard AS4373-2007: Pruning Amenity Trees.
22. The pruning of large garden shrubs in excess of 3 metres in height for the purpose of ornamental shaping is permitted without a permit or development consent.
23. Removal or wilful destruction of non-native or non-indigenous native tree from public bushland reserves, where undertaken by Council, or contractors working on behalf of Council.
24. Any trees located in:
    1. Zone RE1 - Public Recreation; and
    2. Zone RE2 - Private Recreation.
25. Any trees/vegetation required to be removed in accordance with a current Order of the Court issued in accordance with the Trees (Disputes Between Neighbours) Act 2006.
26. Any trees or vegetation listed in the following table:

Note 1 - Any Vegetation removal not requiring consent under this DCP may require approval from the Department of Environment and Heritage under the Threatened Species Conservation Act 1995, the Catchment Management Authority under the Native Vegetation Act 2003 or the Department of Primary Industries under the Fisheries Management Act 1994.