Botting v City of Burnside No ERD-02-570, ERD-02-571 [2003] SAERDC 7 (15 January 2003)

Last Updated: 19 January 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Her Honour Judge Cole

Hearing

19/12/2002.

Catchwords and Materials Considered

LOCAL GOVERNMENT

Applications to remove two significant trees - both trees damaged by a tornado - consent refused by Council - long term maintenance work required - future risk which could, with management, be minimised but not eliminated - removal of both trees warranted pursuant to Principle 14(a)(1)(iv) of the Council Wide provisions of the Development Plan and also on amenity grounds - appeal upheld.

• Development Act 1993 ;
• Lilburn v City of Burnside [2002] SAERDC 127 ;
• Summers v City of Unley [2002] SAERDC 113 , referred to.

Representation

Appellant: JOHN & MARION BOTTING
Counsel: MR S HENRY - Solicitors: MANOS & ASSOCIATES

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

ERD-02-570, ERD-02-571

Judgment No. [2003] SAERDC 7

15 January 2003

JOHN & MARION BOTTING

V

CITY OF BURNSIDE

(ERDC 570 & 571 of 2002)

[2003] SAERDC 7

THE COURT DELIVERED THE FOLLOWING JUDGMENT

1. On 7 June 2002, the appellants lodged with the City of Burnside ("the Council"), two development applications. Both development applications sought approval for the removal of a significant tree - one in the rear yard ("the rear yard tree"), and one in the front yard ("the front yard tree") - of 21 Taylor Terrace, Rosslyn Park ("the land"). On 2 July 2002, the Council resolved to refuse to grant provisional development plan consent to both applications, and decision notification forms dated 8 July 2002 were subsequently provided to the appellants. The appellants lodged notices of appeal to this Court on 22 August 2002.

2. The removal of a significant tree is tree-damaging activity as that term is defined in Section 4(1) of the Development Act 1993 ("the Act"), and therefore comes within subsection (fa) of the definition of development in the Act.

History

3. Improvements on the land comprise a large detached dwelling and a swimming pool with surrounding fence, which were constructed in 2001, together with paving and landscaping. The land is in a very attractive area characterised by leafy streetscapes incorporating a mix of trees, many of which are gums, and many of which are mature.

4. Both of the trees the subject of these appeals are River Red gums. The expert witnesses variously estimated the age of both trees to be between 50 and 100 years old, and more than 100 years old. All agreed that the trees had a considerable remaining life span of at least 60, and possibly more than 100 years. Mr Botting gave evidence that he had caused certain works to be undertaken in relation to the trees, during 2001, in order to improve the condition of both of the trees. A considerable amount of fill, which had been placed around the base of the trunk of the rear yard tree by a previous owner of the land, was removed. In consultation with Mr Draper, Council's tree management officer, both trees were expertly trimmed and thinned, and all dead wood removed. It is clear that the appellants were planning to retain and maintain the trees.

5. On Saturday 18 May 2002, a tornado struck the land and adjacent areas. Large limbs of both River Red gums were brought down. A large limb of the front yard tree was blown into the front of the house, smashing a hole in the roof and smashing both front bay windows. A number of roof tiles were blown off. Mr Botting had been working under the front yard tree, but was able to take shelter in the garage just before the limb fell from the tree, and he escaped injury. The fallen limb from the rear yard tree destroyed about 10 metres of the rear fence of the land.

6. The injury to both trees from the tornado was apparent on the view. Photographs of the trees prior to the tornado were provided in Mr Lodge's statement, enabling a comparison to be made with their condition before and after the tornado. The injury to the front yard tree was particularly severe - almost the entire canopy of the tree has gone, leaving a bare skeleton upon which epicormic growth is beginning to appear. The front yard tree now has a stark and jarring appearance. It detracts from the amenity of the street and the land. The south-eastern half of the canopy of the rear yard tree was removed by the storm, so that the tree now has an unbalanced appearance when viewed from the rear yard of the land. This is not apparent when the tree is viewed from either Taylor Terrace, or the street to the rear of the property, because only the very top of the remaining canopy can be seen from either location. The remaining part of the canopy of the rear yard tree overhangs the neighbour's brick outbuilding.

The Relevant Provisions of the Development Plan

7. The land is in the R550 Zone of the City of Burnside. The sole Objective for the Zone is:-

"Objective 1: A zone accommodating residential buildings providing a range of dwelling types, compatible with existing dwellings in terms of scale and streetscape impact."

8. The Principles for the Zone deal mainly with site areas and site arrangements for dwellings and with character and amenity. Tree damaging activity is not listed as either complying or non-complying in the Zone.

9. Those provisions of the Development Plan which deal with the pleasantness of residential areas, the preservation of character and the preservation and enhancement of amenity, both in the Metropolitan Adelaide section of the Plan (see Objective 9 and Principle 9) and in the Council Wide section for Burnside (see Objective 5), are relevant to these applications. The Metropolitan Adelaide section of the Plan, in Objective 36, seeks:-

"Objective 36: The retention of native vegetation for amenity purposes, for livestock shade and shelter and for the movement of native wildlife."

10. These are the relevant provisions of the Council Wide section of the Development Plan concerning significant trees:-

"Objective 23: Conservation and establishment of vegetation, including trees."

"Objective 32: The conservation of significant trees in Metropolitan Adelaide which provide important aesthetic and environmental benefit."

"Principle 139: Where a significant tree:

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

(b) is indigenous to the local area and its species is listed under the National Parks and Wildlife Act as a rare or endangered native species; or

(c) represents an important habitat for native fauna; or

(d) is part of a wildlife corridor of a remnant area of native vegetation; or

(e) is important to the maintenance of biodiversity in the local environment; or

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

development should preserve these attributes.

Principle 140: Development should be undertaken with the minimum adverse affect on the health of a significant tree.

Principle 141: Significant trees should be preserved and tree-damaging activity should not be undertaken unless:

(a) in the case of tree removal;

(1) (i) the tree is diseased and its life expectancy is short; or

(ii) the tree represents an unacceptable risk to public or private safety; or

(iii) the tree is within 20 metres of a residential, tourist accommodation or habitable building and is a bushfire hazard within a Bushfire Prone Area; or

(iv) the tree is shown to be causing or threatening to cause substantial damage to a substantial building or structure of value; and

all other reasonable remedial treatments and measures have been determined to be ineffective.

..."

11. The land the subject of the decision of this Court in Lilburn v City of Burnside [2002] SAERDC 127 was also in the R550 Zone in the City of Burnside, and the same provisions were considered in that matter. Similar provisions were also considered by this Court in Summers v City of Unley [2002] SAERDC 113. It was decided in Lilburn and accepted in Summers that a Principle such as Principle 141 (Council Wide for Burnside) must be read together with other relevant Objectives and Principles. Principle 141, as with other provisions of the Development Plan, is not to be read as if it were a section in an Act of Parliament. The Development Plan is an expression of policy, and must be read accordingly. It is not the case that a significant tree can only be removed in the event that one of the pre-conditions of Principle 141(a) are demonstrated. Questions of aesthetic and environmental benefit provided by the tree also fall to be considered under Objective 32. The text of the Plan which follows Objective 32 supports this approach:-

"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. Those provisions of the Development Plan dealing with the pleasantness of residential areas, and issues of character and amenity are also relevant to the assessment.

The Trees

13. Mr Lodge, an arboriculturalist, and Mr Whitehill, an arboricultural and horticultural consultant, both gave evidence in the appellants' case in relation to the condition and management of the significant trees. Mr Draper, Council's tree management officer, gave evidence on the same topic in the Council's case. All of these witnesses are experts in relation to those topics. There was substantial agreement among these witnesses concerning the extent of the damage inflicted upon the trees by the tornado. The witnesses agreed that a consequence of the damage upon both trees would be the occurrence of epicormal growth; that is, shoots arising from latent buds, particularly near the detachment points of the limbs lost in the tornado. The witnesses also agreed that epicormal regrowth has poor attachment to the tree trunk compared to original limbs, and therefore has much higher potential for sudden detachment - in other words, the limbs are more likely to fall. This tendency will increase as the new growth increases in length, density and weight. Mr Draper believed that the potential, in relation to both trees, for the epicormal growth to detach, could be "dramatically reduced" if the regrowth were inspected, thinned and possibly reduced in weight in the first 3 to 5 years, with a further inspection and canopy prune in the following 7 to 10 years. He also recommended some immediate work on both trees. Mr Lodge believed that more intensive management would be required, and that even with such intervention, the risk of falling limbs could not be eliminated. Mr Lodge favoured removal of the trees. The thrust of Mr Whitehill's evidence was similar. Mr Whitehill's opinion was that the storm damage to both trees was so severe that it could not be managed by pruning, and that both trees pose an unacceptable risk to life and property.

14. Two landscape architects gave evidence - Mrs Hamnett in the appellants' case, and Mr Barwick in the respondent's case. Mr Barwick pointed out that the trees are, at present, in near to their worst condition as a consequence of the tornado, and their appearance would improve with time. Mr Barwick has a very strong personal view about the intrinsic value of River Red gums as trees native to the Adelaide Plains. It is reasonable to summarise his view by saying that he believed that the trees should be retained at all costs. He freely conceded that his view was not based on the Development Plan. He pointed to the benefits which the retention of the trees would bring; "height, grandeur and softening shadows", "shade in front of the house and driveway", "perching, roosting and/or nesting sites for...birds". He agreed that some initial work and some on-going maintenance would be necessary in relation to both trees. He also said that both trees needed an irrigation system. Mrs Hamnett pointed out that all of the benefits mentioned by Mr Barwick could be obtained from replacement trees. In her statement she said, in relation to the front yard tree:-

"Although the canopy of the tree will regenerate, both the immediate treatment that has been necessary and the ongoing management required to ensure its continuing health and safety...will result in a continued loss of visual amenity as the tree will permanently display a lopped appearance. The essential majestic, open character and natural canopy formation typical of a river red gum will not be able to be re-established.

While it would normally not be recommended to remove an existing river red gum, the damage that has occurred to the tree has diminished its contribution to the character and visual amenity of the area. It would therefore be preferable to remove the damaged tree and replace it with a new, well-formed semi-mature tree of an appropriate species and in a position that will make a positive and lasting contribution to the streetscape and character of the local area, and in keeping with the existing streetscape."

15. In relation to the rear yard tree, Mrs Hamnett noted that the pruning required for maintenance and to reduce the risk of limb loss would reduce its contribution to the streetscape. This contribution has already been reduced by the effect of the tornado. Mrs Hamnett's opinion was that a greater contribution to the amenity of the area could be made, in time, by a suitable replacement tree.

Conclusion

16. The circumstances of this matter are unusual. An extreme and rare weather event has caused very substantial damage to two significant trees. I find that the rear yard tree is presently threatening to cause substantial damage to the boundary fence and to the neighbour's brick outbuilding, which it overhangs. The front yard tree will, as the epicormal growth increases in length, density and weight, threaten both the house on the land, the boundary fence and a structure on the neighbour's property. I find that this risk could, with management, be minimised but not eliminated. There is no mechanism by which the present and all future owners of the land could be made to undertake a management regime in relation to the trees. Removal of both trees is warranted pursuant to Principle 141(a)(1)(iv) of the Council Wide provisions of the Development Plan for Burnside. Even had this not been the case, however, removal would have been warranted on amenity grounds, in accordance with the evidence of Mrs Hamnett.

17. The appeal is allowed. There will be an order granting provisional development plan consent to both applications.