T Christou Nominees P/L v City of Burnsidenam No ERD-01-981 [2002] SAERDC 13 (1 February 2002)

Last Updated: 24 June 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of His Honour Judge Bowering, Commissioner Hodgson andCommissioner Hutchings

Hearing

03/12/2001 to 04/12/2001, 13/12/2001.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development Act 1993 - application to remove significant tree - refused by Council - appeal - proposal in conflict with Significant Tree provisions of Development Plan - appeal dismissed and decision of Council confirmed.

• Development Act 1993 , referred to.

Representation

Appellant: T CHRISTOU NOMINEES PTY LTD
Counsel: MR J BOTTEN - Solicitors: JAMIE BOTTEN & ASSOCIATES

Respondent: CITY OF BURNSIDE
Counsel: MR J MCELHINNEY - Solicitors: HUNT & HUNT

ERD-01-981

Judgment No. [2002] SAERDC 13

1 February 2002

T CHRISTOU NOMINEES PTY LTD

v

CITY OF BURNSIDE

(ERDC No 981 of 2001)

[2002] SAERDC 13

THE COURT DELIVERED THE FOLLOWING JUDGEMENT:

1. This matter concerns the removal of a tree at Beulah Park.

2. On 16th May, 2001, TLK Developments sought consent from the City of Burnside for "removal of tree on new allotment" at lot 8, King Close, Beulah Park. On 15th June, 2001, consent was refused, and TLK Developments appealed to this Court. At the conference between the parties, at which no compromise was concluded, the appellant's name was amended to T. Christou Nominees Pty Ltd.

3. The matter came to this hearing, at which time the appellant was represented by Mr Jamie Botten of counsel and the City of Burnside by Mr John McElhinney, also of counsel. Evidence was given by Mr Kym Knight, a consultant arborist, Mr John Jenkins, designer, Mr Alan Taylor, architect, Mr Stuart Burton, arborist and tree surgeon and Mr Peter Jensen, town planner.

4. The subject land is an allotment on the south-east corner of the T-junction formed by Oban Street and Portrush Road - the latter being designated a Secondary Arterial Road on the Burnside (City) Structure Plan (Map Bur/1). The allotment's frontage is to a cul de sac known as King Close, and is thus part of a residential land division formed around this cul de sac. Lot 8 contains 451 square metres and is almost square in shape. To its south is a large old two-storey dwelling.

5. The base of the tree, removal of which is sought, lies approximately on the east-west mid line of the subject land about six metres from the King Close frontage and about 16 metres from the Portrush Road boundary. According to Exhibit A3 (subdivision plan detail, 8th October, 1999), the extremeties of the tree's canopy overhang King Close and the northernmost parts of the land parcel containing the neighbouring two-storey dwelling. Elsewhere, these extremeties coincide with the northern boundary and are about four to five metres inside the western boundary. These extremeties were observed by the Court when inspecting the subject land and its locality in the company of the parties.

6. The tree is a Eucalyptus Camaldulensis (River Red Gum). Both Mr Burton and Mr Knight estimated it to be about 22 metres tall, with a trunk circumference of about 3.4 metres. Mr Burton describes the "canopy spread" as being 15 metres while Mr Knight describes the "canopy diameter" as being 20.5 metres. Mr Knight's measurement aligns with the on-site observations referral to above.

7. Both arborists noted some signs of ill health, much branch dieback, thinning foliage and a bark wound. Site works and insects could have caused these problems. Neither arborist thought the tree to be beyond redemption as long as suitable treatment was undertaken.

Planning Issues

8. This matter brings into play two basic planning aims; on the one hand, the orderly development of a metropolitan urban area and on the other, the conservation of the resources of nature. Which should prevail when these aims conflict must be resolved by resort to the Development Plan.

9. The subject land falls within the Living Area on the Burnside (City) Structure Plan, and within this locality, is zoned as Residential R450. Beulah Park is not a new residential area, having been built up for many decades. However, the land division, of which the subject land forms part, remained part of the grounds of the old two-storey dwelling adjoining the subject land and thus largely undeveloped. The relevant provisions of the Development Plan express a clear intention that the land be developed for residential purposes.

10. Under the heading "Significant Trees", general Objective 32 for the Burnside (City) Plan states:-

"The conservation of significant trees in Metropolitan Adelaide which provide important aesthetic and environmental benefit."

11. The discussion following this Objective is as follows:-

"Trees are a highly valued part of the Metropolitan Adelaide environment and are important for a number of reasons including high aesthetic value, conservation of bio-diversity, provision of habitat for fauna, and conservation of original and remnant vegetation.

While indiscriminate and inappropriate significant tree removal should be generally prevented, the conservation of significant trees should occur in balance with achieving appropriate development."

12. We note the phrases "... conservation of significant trees should occur in balance with achieving appropriate development". Thus the question becomes one of whether this tree be retained while still "achieving appropriate (residential) development".

13. The tree is a Significant Tree so, as far as site planning is concerned, general Principles of Development Control 139, 140 and 141 set the design parameters. In particular Principle 139 states:-

"Where a significant tree:

(a) makes an important contribution to the character or amenity of the local area; or

...

(f) forms a notable visual element to the landscape of the local area;

development should preserve these attributes", and

Principle 140 states:-

"Development should be undertaken with the minimum adverse affect on the health of a significant tree", and

Principle 141 acts as a checklist against which tree damaging activity should be assessed including matters of safety, maintenance of the health of the tree and appearance and the "structural integrity" of the tree.

14. To assist the Court in answering the foregoing question, indicative plans were prepared by Messrs Jenkins, Jensen and Taylor. Mr Jenkins' plan was based on a three bedroom, two-storey dwelling, with two undercover car parks. It would be relatively large, would have a standard floor plan and would sit squarely within the bounds of the subject land. It would entail removal of the tree. He viewed this as the most appropriate configuration on this site from a real estate point of view.

15. Mr Jensen, in his written statement, also envisaged a three bedroom dwelling, although one that may be of a "one-off" rather than "a standard house design" and that "may have less floor space than a typical dwelling in the locality, taking into account the fact that the tree would be retained and that the dwelling footprint may be smaller than typical". In his oral evidence he also opined that "a smaller house would be more appropriate for example, a two-storey dwelling, single garage with a kitchen/family/meals area".

16. Mr Jensen assumed a radius of six metres from the base of the tree should be kept clear of any structure.

17. Mr Taylor prepared a building envelope to contain a relatively large, two-storey, three bedroom dwelling with garaging for two cars. However, his structure free radius was 4.5 metres (all three designers assumed that the Commissioner of Highways would not require any of the subject land for the widening of Portrush Road, a matter which the Court has independently had confirmed).

18. Thus two experienced designers are of the view a dwelling can be built given certain assumptions: that footings can be constructed which will not fatally damage the tree's root system; that a minimum radius from the tree's trunk clear of structures is required and that the risk from falling limbs is acceptable given that the location of the suggested dwelling could be such that a falling limb is most unlikely to inflict significant damage upon the dwelling.

19. Both arborists concluded that suitable footings could be constructed but were at odds as to the radius from the tree trunks at which they should occur. On page 4 of Exhibit R1 (Copy Documents), Mr Marcus Rolfe, the reporting staff town planner, stated that "Council's Tree Management Officer has indicated that no development should occur within a six metre radius of the tree to ensure its continued good health". In oral evidence, Mr Knight said:-

"... I would think that 6 metres is not really enough because we have not only the effect on the root system of any construction at that distance but we also have a building which is then underneath the canopy of a large tree that has shown a predisposition of limb failure. Now, that in my opinion is the wrong thing to do."

20. As that the canopy extends beyond the boundary of the subject land, he is advising against any development whatsoever.

21. On the other hand, Mr Burton, in oral evidence, favoured six metres in the circumstances of this matter.

22. With respect to the risk of limbs falling on any dwelling or yard areas, Mr Knight was of the view that the risk of juxtaposing dwellings and Eucalyptus was so high that such juxtapositions "should be avoided" and that "the situation at lot 8 King Close (is) a classic case in point". Mr Burton, again and on the other hand, was more sanguine, opining that with careful pruning and ongoing management, the risk is acceptable. Mr Jensen, although not expert in arboriculture has nevertheless, as a planning expert, arboriculture experience in the planning and design of new residential estates where this juxtaposition is a common and accepted feature. He is also of the view the risk is acceptable, given sensible site planning.

Conclusion

23. As previously stated, the question whether there is a conflict between the reasonable use of this allotment for the construction of a dwelling and the retention of a significant tree in accord with the provisions of the Development Plan. In our view, there is no conflict - a balance can be achieved. However this balance can only be achieved within constructional parameters. The evidence satisfies us that a dwelling can be built, but not of the type envisaged by Mr Jenkins. Whilst it may not be a three bedroom dwelling of "standard" design, it could clearly be of a design which would align with the "variety and choice" aims of general Objective 7 under the Residential Development heading in the Metropolitan Adelaide part of the Plan. In other words, an "appropriate development" can be achieved. It is not for us to say how the tree should be pruned (if at all), how it should be husbanded, how footings should be constructed, or how a house and garden should be sited and laid out. Suffice to say that, having given careful consideration to the relevant provisions of the Development Plan, the evidence and what we observed on the subject land and in its locality, we conclude that the removal of the tree is not consistent with the relevant provisions of the Development Plan should not proceed.

24. It is the decision of the Court that the decision of the City of Burnside is confirmed and the appeal dismissed.