Trees

Effective 12 August 2015, the 10/50 Clearing Entitlement Scheme has been significantly amended. The entitlement area for the Mosman Local Government Area has been reduced from the original 56% of residential lots affected to 6% of residential lots now affected.

It is the property owner‘s responsibility to ensure all works under this scheme comply with the recent changes. Some of the notable changes (but not limited to) include:

• Exclusion of all parcels of land (lots) that are wholly or partly within 100 metres of the NSW coastline map and mapped estuaries, as provided by Land and Property Information from the operation of the 10/50 scheme
• Clarification that landowners will not be exempt from civil liability as a result of negligence or damage occurring during landslip and soil erosion as a result of their clearing
• Category 2 vegetation as listed on Bushfire Prone Maps is excluded from the operation of the scheme
• Non-combustible exempt developments such as decks, suspended slabs and pools which have been constructed according to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 are excluded from the definition of ‘external wall’
• That section 100R of the Rural Fires Act 1997 is to be amended to include a provision requiring landowners to obtain the written consent of all neighbours for which they are using the distance from those neighbour’s building to clear vegetation on their own property

Given the significant reduction of the areas covered under the scheme, Council urges any property owner wishing to use this scheme to remove trees to check if their property is still covered.

The following information is provided to assist the community:

• Residents should visit the NSW Rural Fire Service website to self assess whether their property is within a clearing entitlement area and works are in accordance with the RFS code of practice.
• Regarding trees on public land – Land owner’s consent is required, there is no obligation for council to allow removal or pruning of trees or vegetation. Residents are not permitted to remove vegetation or trees on Council land.
• Any works required to be carried out on public owned trees, where access is required from public land, prior written approval from Council must be obtained through a Tree Permit Application. Application for Tree Permit for Public Land
• Pruning of public trees from private property – Council strongly recommends that a tree permit assessment is obtained from Council to ensure works conform to the RFS code of practice and Australian Standards. This will also ensure that trees maintain their structural integrity and limit future management issues. Any works carried out not in accordance with AS 4373 are in breach of the RFS Code of Practice as well as Council’s tree preservation. All breaches will be investigated by Council and may result in prosecution and penalties imposed under relevant legislation. Application for Tree Permit Private Property
• Property owners are under no obligation to remove or prune trees on their private land.
• Residents concerned about the negative effects of the legislation should make a submission to NSW Rural Fire Service at NSW Rural Fire Service (RFS) attention the RFS Commissioner.

If a resident has a genuine fire concern the process is to send correspondence in writing to Council or RFS. The RFS will inspect the fire complaint and provide feedback to both the resident and Council.

Enquiries regarding this scheme should be directed to the Rural Fire Service on (02) 8741 5555.

Created by Mosman Council’s tree experts, Trees Mosman offers a simplified way to submit a tree permit application, request a street tree planting, report suspicious tree work and determine tree protection zones when planning construction or development works.

Loaded with high quality images and detailed descriptions of exempt species, a frequently asked questions page and links for tree-related information and issues it provides an easy and efficient way to manage trees.

Trees Mosman can be downloaded free from the iPhone App Store and Google Play.

Applying to Carry Out Tree Work

Application forms for tree work, on either private or public land must be completed and paid for online. Application forms can be accessed via the link below .

• Application for Tree Permit Private Property
• Application for Tree Permit for Public Land

It is the applicants’ responsibility to provide sufficient information to support the reasons for the requested tree work, particularly for tree removals. Failure to do so may result in consent for the requested works being denied.

Only the owner of a tree or their authorised agents can apply to remove a tree. Applications for trees that are growing on common land (e.g. Strata Plan) must be accompanied by either a letter from the managing agents or minutes of the relevant Strata Plan meeting indicating the majority of owners support the application.

Pruning Overhanging Branches from a Neighbour‘s Tree

Council does not have the power to compel a property owner to prune or remove a tree (unless under exceptional circumstances) which is, or is perceived to be, impacting on another property (excluding Council land).

Any person who is affected by overhang from a tree growing from within an adjoining property, including Council land, may apply to prune the overhanging branches. All pruning, if approved by Council, must be undertaken to Australian Standards (AS4373-2007).

If access is required into the adjoining property to undertake the work correctly the property owner must provide the applicant with approval to access the property for works to be carried out. If the pruning does not require access to the tree owner’s property the owner of the tree is not required to give their approval for works to be carried out. In such cases, if Council consent is granted for the works, the consent does not give authorisation to the applicant, or engaged contractor, to enter the tree owner’s property.

In some circumstances Council may insist that the applicant consult with, or inform, the tree owner of the intention to prune their tree prior to Council consent being granted.

Pruning or Removing of Trees Contained Within a Neighbouring Property

If a person wishes to prune a tree contained entirely within a property which they do not own, they will be required to have that property owners written consent for works to be carried out before it can be assessed by Council.

Disputes between neighbours regarding trees are civil matters. Council has no role to play in solving such disputes. If a tree dispute cannot be resolved amicably residents may wish to contact the Community Justice Centre on 1800 990 777 or visit their website at www.cjc.justice.nsw.gov.au.

Trees Protected Within a Development

Council will not accept a tree permit application to remove a tree which is protected under a Development Consent. In such cases a Modification Application must be submitted to amend the Development Consent.

If pruning of a tree is required on a development site a tree permit application must be submitted outlining the pruning work required.

Trees Located on Council Land

All vegetation on Public Land is protected under the Local Government Act and State Environmental Planning Policy (Biodiversity and Conservation) 2021. Council permission is required to undertake any work on Public Land. Any person or organisation can apply to undertake work on Council trees and the application will be assessed as outlined below.

Assessment of a Tree Permit Application

Council’s Tree Management Officer will assess the application and provide the determination to the applicant. This process usually takes up to 10 working days. The assessment and determination is based on a visual inspection of the subject tree and consideration of the documentation provided with the application. Council does not provide a tree consultation service and the assessment is not a tree hazard assessment.

What will Council consider when assessing a tree permit application?

The assessment and determination of the application will address, but not be restricted to, the following;

• The health and or condition of the tree or trees; including useful life expectancy and previous pruning record;
• Amenity value of the tree including visual amenity, ecological value, heritage significance, and the tree‘s value as habitat;
• Severity and relevance of problem reported;
• The number of healthy trees that a parcel of land can support;
• The impact that the proposed work, whether pruning or removal, will have of the tree or the landscape as a whole.

There are a number of other factors that do not usually warrant pruning or removing trees. These include:

• A tree is shedding leaves, fruit, bark, cones or twigs, particularly where fouling gutters and pools.
• A tree is causing minor shading.
• Unsupported fears about healthy trees/ branches failing
• A tree is causing minor structural damage, such as to footpaths or driveways.
• A tree is causing blockage to pipes, unless the damage is serious and recurring.

Generally Council will not permit the removal of trees to improve views.

What happens following assessment of a tree permit application?

Once an application has been assessed, the determination will be provided to the applicant. Any work is to be undertaken in accordance with the determination detailed on the assessment. Council will not contribute to the cost of any approved tree works.

For approved tree work on public land the applicant must engage one of Council’s approved contractors to undertake the works. The work and payment are to be organised directly with the contractors.

It should be noted that tree work can be a dangerous task requiring extensive training and specialised equipment. Indiscriminate lopping or pruning can also reduce the long-term safety and health of a tree. For these reasons it is recommended that a professional tree worker or arborist, who is adequately qualified and insured, be engaged to undertake the work.

Unless otherwise indicated on the assessment all pruning must conform to Australian Standards (AS4373-2007 Pruning of Amenity Trees).

Appealing a Tree Permit Assessment

If you are not satisfied with the assessment you may formally appeal the assessment by filling out an Application to Appeal Tree Permit Assessment, accompanied by an independent arborist’s report. The matter will be reported to Council for a final determination. A fee is required as per Council’s pricing policy.

Planting Replacement Trees

It is Council policy that a replacement tree be planted to replace any tree removed. Exceptions to this may be made at the discretion of Council’s Tree Management Officer and will be noted on the assessment. Specifications for the replacement will be shown on the assessment form.

Urban Forest Management Register

The Urban Forest Management Register is a list of trees both public and private that are considered significant. They include trees such as the Balmoral Figs, Mosman Park Figs, Holt Avenue Plane trees, Memory Park trees and the large Angophora at 1 David Street. The Urban Forest Management Register does not necessarily give one tree more value over another but rather recognises trees which are considered to have a greater level of importance, in specific categories, or generally within Mosman’s environment and as such are valued highly by the community. The UFMR allows Council to prioritise resources in the management of the urban forest.

At the Council meeting on 15 August 2006 Council formalised it’s position to discourage the planting of Leightons Green Cypress, Cupressocyparis leylandii. At times these trees have been planted to the detriment of neighbours’ views and solar access. The Leightons Green Cypress is a particular problem as it is readily available in advanced sizes, it is fast growing and has a dense habit.

Since formalising its position in regard to Cypress Leighton Green, Council has:

• Continued to eliminate the species from landscape plans through the development application process.
• Made the tree exempt from Council’s tree permit application process.
• Forwarded information to property owners outlining the detrimental effects Cypress Leightons Green can have on neighbours.
• Advertised Council’s position regarding the species in the Council Column in the Mosman Daily.

Council requests property owners consider their neighbours’ solar access and views in planting trees on private property and keep hedges of Cypress Leighton’s Green pruned to a suitable height.

• Urban Forest Management Policy (237.8KB)

Unauthorised Tree Work

Any person who carries out tree work without Council‘s consent may be liable to substantial fines and/or conviction in a court of law. A person may also be liable for a penalty for engaging or allowing another person to remove or prune a tree without Council‘s consent.

Reporting unauthorised tree work

If unauthorised tree work is suspected the details of the incident should be noted and reported immediately to Council on 9978 4000.

Put simply this Act provides property owners a legal avenue to have tree issues they believe are unreasonably affecting them or their property considered by the Land and Environment Court. Information on the Land and Environment Court website states:

The purposes of the Act are to enable the Court to make orders to remedy, restrain or prevent damage to property or to prevent injury to any person when a tree that is situated on adjoining land might cause that damage or injury. The Act also permits the Court to order compensation for or rectification of damage caused by a tree.

The Act does not allow the Court to make orders solely for other purposes (such as lopping or removing trees which block views).

However, the Attorney General has recently undertaken a review and made a number of recommendations which will modify the act. Information on the NSW Government Lawlink website states that under the new laws to commence on August 2, 2010, the Act will:

• empower the Land and Environment Court to hear disputes about high hedges that severely block sunlight to a window of a dwelling on adjoining land, or views from such a dwelling;
• support the enforcement of court orders by allowing councils to recover the cost of trimming or removing any trees plus a prescribed administration fee;
• give the subsequent owner of the property the right to enforce certain orders made under the Act;
• give the court authority to hear disputes over trees that have caused damage but have since been removed;
• allow the court to make orders in relation to problem trees and damaged dividing fences;
• enable the court to hear tree disputes on land zoned ‘rural-residential’ but only where a tree is causing damage or risking injury;
• include vines as a prescribed plant under the Act.

Before The Court will hear a case it must first be satisfied that the applicant has made a reasonable effort to resolve the matter with the owner of the land on which the hedge is situated. Where resolutions prove difficult, residents can now apply to have the court intervene without the requirement for a lawyer. The Court will have the power to intervene in cases where a hedge has severely impacted a neighbour’s views or access to sunlight.

The legislation will empower the Court to determine the appropriate height at which a hedge should be maintained through making a balanced judgment regarding the right to privacy versus the broader benefits of maintaining healthy urban vegetation.

Should the land owner upon which the hedge is located choose to ignore the Court’s order, councils will be given the power of enforcement and be able to charge the cost of enforcement and a prescribed administration fee to the resident.

Both the Land and Environment Court and the Communities and Justice provide information on the Trees (Disputes between Neighbours) Act 2006 and are useful resources for anyone with an interest in the purpose and application of the new legislation.

Cases which have been determined by the Court in the past have been based on expert advice and resident submissions and all involve site inspections. The Court also uses Acting Commissioners with arboricultural or related expertise. A review of cases displayed on the Land and Environment Court website shows the Court is taking a balanced and considered approach to matters which it addresses.

The community of Mosman values its trees and Urban Forest assets. Council protects and manages trees on public and private property in Mosman through its Urban Forest Policy and Local Environmental Plan. While Council is happy to provide information to residents on tree management in Mosman it will not become involved in disputes between neighbours. Council will provide assessments on trees where a permit application has been submitted for pruning or removal. Assessments do not provide comment on whether a tree is a hazard to persons or property.

Upon formal request from the Courts, Council will supply relevant documents to assist the Courts in their determination. 

State Environmental Planning Policy (Biodiversity and Conservation) 2021, through the use of Preservation of trees or vegetation in Mosman‘s Development Control Plans, is used by Council manage the pruning and removal of trees on both Council and private land.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies to the following:

1. All trees which:
   1. are 5m or more in height; or
   2. have a circumference of 450mm or more measured 300mm above ground level; or
   3. are listed on Council’s Urban Forest Management Register; or
   4. are 2m or more in height, only if located in a heritage conservation area, or if are a heritage item or form part of a heritage item.
2. Tree ferns (Cyathea australis & Cyathea cooperi) which are 2m or more in height.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 does not apply to the following:

1. The following trees:
   • Camphor Laurel, Cinnamomum camphora (with height < 10m)
   • Citrus Trees, Citrus spp.
   • Cocos Palm, Syagros romanzoffiana
   • Coral Tree, Erythrina x sykesii
   • Cotoneaster, Contoneaster spp.
   • Cypress, Cupressus Spp.
   • Giant Bird of Paradise, Strelitzia nicolai
   • Hackberry, Celtis australis
   • Hibiscus, Hibiscus spp.
   • Leyland Cypress (Leighton Green) and its cultivators, xCupressocyparis Leylandii
   • Mulberry, Morus spp.
   • Norfolk Island Hibiscus, Lagunaria patersonii
   • Oleander, Nerium spp. and thevetia spp.
   • Paw Paw, Carica papaya
   • Privet, Ligustrum spp.
   • Prunus, Prunus spp.
   • Rubber Tree, Ficus elastica
   • Umbrella Tree, Schefflera actinophylla
   • Wild Olive, Olea europaea subsp. cuspidata
   • Willow, Salix spp.
2. Plants or weeds that are declared to be a biosecurity risk by Council or the Department of Primary Industries, including those legislated as notifiable or a prohibited matter under the Biosecurity Act 2015.
3. Tree and vegetation that may be cleared under the 10/50 Vegetation Clearing Scheme, pursuant to the Rural Fires Act 1997.
4. Pruning of trees to provide adequate clearances for power lines carried out by Ausgrid contractors under relevant legislation.
5. Dead wood in trees on private land.
6. The maintenance of trees and/or vegetation on roads and public land, if such action is considered appropriate by Council and is undertaken by Council or persons approved and authorised by it to perform any of the actions listed in State Environmental Planning Policy (Biodiversity and Conservation) 2021.

Trees within developed urban areas are internationally recognised as important community assets worthy of retention and protection. They contribute significantly to the well-being of residents, visitors, and the environment by providing much needed shade, improved air quality and natural habitat among other benefits. It is considered that trees are an important character of Mosman and the community value the amenity trees provide. 

Due to the considerable number of trees in Mosman, most residents live near a street or park tree and unfortunately associated conflicts can arise. The following information is provided to clarify Council’s position and provide advice on the course of action residents should take when there is a concern that private assets has been impacted by a tree growing on public land. 

Private In-ground Services 

Who is responsible for private in-ground assets?

Property owners are responsible for the maintenance and upkeep of their own assets, including underground services such as sewer and stormwater pipes servicing their property from the premises to the connection to Sydney Water’s sewer main or stormwater outlet in the kerb as well as other services such as electrical and telecommunication cables. Whilst they may run through public land, Council does not take responsibility for these private assets. 

Like all assets, underground pipes have a finite life expectancy and require maintenance. Failing to maintain pipes in good order is the primary cause of root ingress into pipes. It is widely acknowledged and accepted that old sewer lines will eventually deteriorate with age and fail, particularly around perishing joint seals leading to sewer or stormwater leakage. They can also fail due to poor installation, natural ground movement or soil drift over time. Consequently, these pipes will inevitably require maintenance or replacement at some time to resolve these issues and the onus remains with the owner of a sewer or stormwater line to be responsible for this upkeep and maintenance when required. 

Why do tree roots enter in-ground services?

Tree roots are opportunistic and grow towards wherever conditions are favourable. They do not actively search for water. Tree roots will only enter pipes that have a fault and are leaking oxygenated and nutrient rich water through those faults into the surrounding soil. Tree roots will follow a pattern of growth where, when they come in to contact with moist nutrient rich soil they will grow towards an increasing concentration of water and nutrients and rapidly divide to take advantage of those resources. Root masses that are often found inside blocked pipes usually comprise of small fibrous feeder roots. These roots are unable to exert an axial growth pressure high enough to force entry into an intact or gap free pipe. 

How can I manage my in-ground services so that I can prevent this happening in the future?

The most efficient way to prevent root blockage to your pipe assets is to replace old pipes with new PVC or UPVC pipes and use pressure seals. Alternatively pipe re-lining may be considered to prevent expensive excavation work where the pipe has not suffered a significant collapse or break. Other methods include the type and compaction of the backfill around these services which help prevent root growth in these areas. Using chemical or mechanical forms of plumbing equipment may also assist to control root development in the pipes, but this may only be a short-term solution and might not prevent root ingress in the future.

This information brochure from Sydney Water provides good advice should you encounter problems with your sewer lines:

• Looking after your sewer pipes

Further information relating to tree roots can be found in the following published articles by Sydney Arborist, Mark Hartley and Techinical Paper by Biologist Dr Peter Yau:

• Tree root damage to pipes
• Myths about tree roots
• Tree root damamges to infrastructure

Suspected Impact on Built Structures 

In the event of suspected impact from trees or tree roots on private assets such as masonry/brick boundary or retaining walls, residents should contact Council to arrange an inspection by Council’s Environment and Open Space staff.  

Where it is evident that a public tree is having some impact on a private asset on private land, Council will arrange trenching works on Council land adjacent to the asset to investigate root growth. If present Council will consider root pruning and root barrier installation works where required to mitigate any further impacts. If there is a footpath adjacent to the wall that is not showing signs consistent with root lifting or the apparent impacts are within the property boundary, the property owner should trench inside the boundary wall or locality of the impact to expose and provide evidence of the presence of tree roots. 

The failure or movement of a boundary/retaining wall can occur because of several reasons or contributing factors including but not limited to:  

• poor or defective construction,  
• lack of or inadequate footing 
• general age and deterioration 
• lateral pressure from retained earth and vegetation growing behind the wall 
• inadequate drainage and hydrostatic pressure 
• natural ground movement and reactive soils 
• presence of irrigation systems 

It should be noted that Councils are not automatically liable for damage caused by street trees, particularly where it had no reasonable prior knowledge of potential damage occurring or for damage arising from natural events outside its control. Tree roots will usually follow a path of least resistance and any wall built to standard with a solid foundation would generally withstand pressure from tree root growth. The key is early detection and notification so that where tree roots from a public/street tree are shown to be a contributing factor, appropriate mitigation measures can be undertaken to prevent further damage from developing. 

The pruning of trees to provide adequate clearances for power lines is carried out by Ausgrid contractors. For further information or enquiries please contact 1300 738 733.

All initial enquiries and requests for tree permits should be directed to Council‘s Corporate Support Team on 9978 4000 between the hours of 8.30am and 5.00pm Monday to Friday.

For further information on the preservation of trees, nominations for the Urban Forest Management Register or other tree management issues contact Council‘s Tree Management Officer on 9978 4000.

Enquiries about Council’s bushland should be directed to the Bushland Officer.

• Active Tree Services, Miro Dragicevich – 0427 584 471 or mirod@active.com.au
• Eco Veg Land Management, Owen – 9679 0025 or 0488 060 011 or owen@cjmurphy.com.au
• Forest Tree Services, Nathan – 9451 9057 or service@foresttrees.com.au
• Plateau Tree Service, Theo – 9939 5350 or info@plateautrees.com.au
• Summit Open Space Services, Mitch – 0448 360 224 or mhunter@summitservices.com.au

Please contact the companies directly to organise quotations for approved works.