Herzberg v City of Burnside No ERD-03-293 [2004] SAERDC 2 (9 January 2004)

Last Updated: 11 January 2004

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Mosel

Hearing

17/12/2003 to 18/12/2003.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development application for the removal of a significant tree - Residential Zone - Policy Area 10 - consent refused by the Council - evidence shows that the safety risks are not unacceptable and that the tree poses no threat to a structure of value - other factors to be taken into account when considering all relevant provisions of the Development Plan include the height, shape, health and overall prominence of the tree or whether it exhibits or is within special circumstances, character, amenity and aesthetic importance - the tree is a notable visual element in the streetscape (Principle 42(f)) and makes an important contribution to the aesthetics and character of the area - proposal found to be inconsistent with Objectives 16, 17 and 20 and Principle 42 - proposal runs counter to the Objectives for the Residential Zone and Policy Area 10 - decision of the Council confirmed - appeal dismissed.

• DEVELOPMENT ACT 199 ;
• ENVIRONMENT, DEVELOPMENT & RESOURCE COURT ACT 1993 , referred to.
• Botting v City of Burnside [2003] SAERDC 82 , considered.

Representation

Appellant: ZENON & SUSIE HERZBERG
Counsel: MR M BEAMOND - Solicitors: MELLOR OLSSON

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

ERD-03-293

Judgment No. [2004] SAERDC 2

9 January 2004

ZENON & SUSIE HERZBERG

v

CITY OF BURNSIDE

(ERDC No. 293 of 2003)

[2004] SAERDC 2

1. This is an appeal against the decision of the City of Burnside ("the Council") to refuse Provisional Development Plan Consent in respect of an application to remove a "significant tree" (s4 Development Act 1993, reg 6A Development Regulations 1993) on the property situated at 1 Moore Street, Toorak Gardens ("the subject land"). The application was made on 14 April 2003. The decision of the Council was made on 24 June 2003. The reasons for refusal, set out in the Council's decision notification are as follows:

" - the tree is neither diseased, nor is its life expectancy short;

- the tree does not represent an unacceptable risk to public or private safety;

- the tree has not shown to be causing or threatening to cause substantial damage to a substantial building or structure of value."

2. When the matter came on for hearing, Mr Beamond appeared for the appellants and Mr Hilditch for the Council. The Court received several exhibits and heard evidence from the following:

•	Mr P Deb (Qualified planner in the employ of the Council)
•	Mr G Vincent (Planning Consultant)
•	Mr J Whitehill (Consulting Arborist/Horticulturalist)
•	Ms H Hamnett (Landscape Architect)
•	Mr P Mitchell (Civil Engineer)
•	Mr M Lodge (Consulting Arborculturalist)
•	Mr I Barwick (Landscape Architect)

3. Ms S Herzberg, an appellant, also gave evidence. Her written statement was received as Exhibit A3. She and her husband own and reside on the subject land. Ms Herzberg is also a highly qualified and experienced planner. In part, Exhibit A3 is in the nature of an expert opinion. It is well established that for the Court to accept expert opinion the person providing the opinion must be appropriately qualified and experienced and must be independent and free of any circumstances which may give rise to an apprehension of bias. I have taken all of her evidence into account. However, because Ms Herzberg has a personal interest in these proceedings I can give little weight to those aspects of her evidence that are in the nature of expert opinion.

4. Although the application did not say so, Ms Herzberg said that the tree would be replaced with one she believes is more appropriate to the circumstances.

5. The subject land is situated on the corner of Moore Street and Hewitt Avenue. Upon the subject land is a large bungalow, a tennis court and swimming pool. The tree proposed for removal is a Lemon Scented Gum (Corymbia Citriodora). It is 18-20m high, 12-14m wide and is situated 3-4m from the Hewitt Avenue boundary and about 2m from the common boundary with No 120 Hewitt Avenue. The nearest part of the swimming pool is about 2m from the subject tree. Its limbs extend over the property boundaries.

6. The subject land has several trees upon it including a large Claret Ash (Fraxinus oxycarpa X Raywoodii) about 7m from the subject tree and a tall (25m high) Spotted Gum (Corymbi Maculata) between the subject tree and the Hewitt Avenue boundary. The Claret Ash is a significant tree. The Spotted Gum has not reached the dimensions necessary to be the subject of reg 6A of the Development Regulations 1993 nor of a kind of tree declared by the Council to be a significant tree.

7. The setting within which the subject tree is placed is a consideration in the assessment of the proposal. Ms Hamnett's statement (Exhibit A2) is helpful in this respect. Relevant excerpts follow:

"The character of the streets surrounding [the subject land] ... is that of a mature, leafy and well-planted residential neighbourhood....

The street trees adjacent to the property are mature exotic natives, both deciduous and evergreen, growing to between 8 and 12m in height and are generally healthy, well grown and well spaced creating attractive avenues. The street trees include:

•	Brachychiton populneus (kurrajong)
•	Lophostemon conferta (Queensland box)

on Hewitt Avenue adjacent to the subject tree. These are evergreens and have a year round glossy, green and shady character and

•	Melia azaderach (white cedar)

on Moore Street. These trees are deciduous with attractive seasonal interest and especially ornamental during winter when fruiting."

A few larger trees are growing within the locality of the subject property, including, within a few hundred metres, a Lemon Scented Gum, a Norfolk Island pine, and, within the boundary of the hospital site, a number of exotic conifers"

"A view along any of the streets adjacent to the property is generally that of a mixed evergreen and deciduous tree canopy reaching to approximately 15m in height."

A Summary of the Evidence

8. The appellants have lived on the subject land since 1977. Ms Herzberg said that the subject tree was planted shortly after they moved in not knowing at that time its growth and other characteristics which now cause them concern and which has led to the application for its removal. Ms Herzberg identified the following concerns in respect of her property and one of her neighbours (120 Hewitt Avenue).

1 Moore Street

•	"the potential danger from dropping limbs, particularly to persons swimming in the pool;
•	the current winter overshadowing on the house and outdoor area;
•	potential problems of structural damage from the roots to the swimming pool."

120 Hewitt Street

•	"danger from tree limbs dropping on their main driveway and play area;
•	structural damage to their driveway;
•	danger from leaf litter on their main access path to the house."

9. I have taken into account the letter from the owners of 120 Hewitt Avenue (contained in Exhibit A3) which act to support Ms Herzberg's concerns. However, the Court did not have the benefit of their oral evidence.

10. These issues have been a concern to the appellants for some time. In September 2001 advice was sought from the Council in respect of pruning. Apparently Ms Herzberg was advised that heavy pruning would destabilise the tree. At that time the legislation in respect of significant trees was in a state of flux. The appellants chose not to pursue an application to prune in the hope, I think, that changes to the legislation to a more permissive regime would eventuate and relieve them of the need to make an application for either pruning or removal. Such was not the case.

11. Mr Lodge and Mr Whitehill were in agreement about the health of the tree. It is a healthy and robust specimen with a life expectancy in the order of 100-200 years. However, in respect of the principal issues of concern, Mr Lodge and Mr Whitehill disagree. Although both acknowledged the reputation of a Lemon Scented Gum to drop limbs, Mr Whitehill, I think, took a more cautious approach when considering the appropriate response. Because of the unpredictability of limb failure and the information received from Ms Herzberg about the history of fallen limbs, Mr Whitehill opined that the subject tree presented unacceptable risk to safety. Further, he opined that pruning would not be an effective management regime for the long term because of the on-going problems caused by epicormic regrowth.

12. Mr Lodge took a different view. His examination of the subject tree revealed no evidence of structural flaws which, he opined, are generally necessary for sudden limb failure. Instead of the removal of the tree, he opined that the risk of limb failure could be significantly reduced by the management of the canopy. If carried out in a particular way, canopy management reduces the density of foliage and limb weight and thus the forces exerted by wind. In the case of the subject tree he estimates the cost of canopy management to be in the order $1,000-$1,200; an expenditure that would be necessary about every five or possibly ten years.

13. As to the consequences of the removal of the subject tree on the Spotted Gum, both agreed that it would flourish. However, Mr Lodge opined that there remained a possibility that the removal of the subject tree may alter the force and effect of wind on the Spotted Gum. His experience indicated the limb failure is very often correlated with the removal of an adjacent tree.

14. I have carefully considered the submissions of Mr Beamond in respect of Mr Whitehill's evidence about the effectiveness of pruning as a method of risk management. Mr Whitehill had all reasonable opportunity to address the various methods and implications to the health of the subject tree during the course of his oral evidence. My questions to him (transcript pages 36 and 37) opened the way for him to consider alternatives just as Mr Lodge did. He did not pursue a discussion of the options that a person of his experience might choose to do. Nor did Mr Beamond recall Mr Whitehill after leave to do so was granted. In the end, the appellants case suffered no prejudice in the way evidence was adduced from Mr Lodge in respect of pruning.

15. Mr Mitchell was called in support of the case for the Council. He is a Civil Engineer with many years of experience in and has completed a doctoral thesis about the geo-technical engineering of footings in expansive soils and the interaction between tree roots and structures. He concluded that the structural integrity of the swimming pool has not been affected by the presence of the tree, that there are no early signs of any such problems and "there's a very high probability, very high chance for the current situation to remain because the tree now has been there for some time, its gone through its maturing process without causing effect at all..." (transcript page 88).

16. Mr Mitchell acknowledged the distortion in the driveway on 120 Hewitt Avenue. He said that the cracks are typical of the driveway of that type in Burnside whether trees are present or not and are a consequence of normal shrinkage and swelling movements in soil.

17. Mr Mitchell's evidence was not seriously challenged.

18. Ms Hamnett and Mr Barwick appeared in support of the case for the appellants and the Council respectively. Each addressed the contribution the subject tree makes to the character and amenity of the local area. Ms Hamnett concluded that the removal of the tree "will not greatly impact on the existing character of the locality and will improve the amenity of the immediate environment by allowing more effective use of natural energy and extending the period of use of the garden" (Exhibit A3). In reaching this conclusion she took into account several factors including the nature and type of planting that characterise the local area and the position of the tree in relation to the dwelling. Ms Hamnett also placed considerable weight on the presence of the Spotted Gum. I gained the impression that she felt that this tree would conceal the effect of the loss of the subject tree. Although Ms Hamnett could envisage circumstances that could eliminate some of the negative aspects of the subject tree, in the end, she felt that it did not enhance the amenity of the local area to the extent that justifies its retention.

19. Mr Barwick on the other hand considered the tree to be notable because of its canopy shape and colour, its health and vigour and the fact that it projects above the tops of other trees, rooflines and two storey buildings. For much the same reasoning he concluded that the subject tree made an important contribution to the amenity of the local area. Among the factors he considered relevant in his assessment was the impact on the skyline and the significant amount of foliage loss that would occur as a consequence of the removal of the subject tree.

20. Mr Vincent is a qualified planner formerly employed by the Council and now a consulting planner. Apparently he was engaged by the Council after it had made its decision to refuse the proposal to review the assessment of the proposal. He came to the Court in support of the appellants' case. His report was received as Exhibit A4. It is a brief account of the factors he took into account when he concluded the tree should be removed. Of note in his report are the following opinions:

"Although the evidence is not considered sufficient to justify the removal of the subject tree with regards to the unacceptable risk to public or private safety, nor on the grounds that the tree is causing damage to a substantial structure or structure of value, it is considered having regard to the ERD Court judgments that although the tree may be notable in the immediate locality, it does not make an important contribution to the character and amenity of the area so as to require its retention when considered against all the relevant provisions of the Development Plan."

Assessment of relevant provisions of the Development Plan

21. The consolidated version of the Development Plan for the City of Burnside dated 20 February 2003 is relevant in these proceedings. The subject land is depicted on Maps Bur/3 and Bur/11. It is within the Residential Zone and Residential Policy Area 10 - Toorak Gardens (North).

22. It is well established that an assessment, in planning terms, of a proposal to remove a significant tree is to be undertaken with reference to all provisions of the relevant Development Plan. The provisions must, of course, be relevant to the circumstances. In these proceedings they include those provisions which identify the desired character for the Zone and Policy Area in which the subject land is situated and the more general provisions which speak both directly to significant trees and to the amenity and character of the streetscape setting within which a significant tree is proposed for removal.

23. First the provisions for the Residential Zone and Policy Area 10. The Residential Zone extends over most of the area of the Council. Objective 2 speaks of protecting and enhancing the amenity of residential areas "with particular reference to the objectives for the relevant policy area." The text following the Objective characterises the Zone in several ways including:

"(f) well vegetated public (street and reserve) and private areas, including significant trees of indigenous and introduced species."

24. The desired character for Policy Area 10 is expressed, in general terms, in its sole objective:

"Objective 1: Maintenance and enhancement of the low scale, low density residential character that is derived particularly from primarily large to medium, single-storeyed detached dwellings (principally bungalows, constructed prior to or during the interwar period), in spacious, well-landscaped gardens, on large, wide, allotments, interspersed with scattered dwellings of other types and more recent origin."

25. The relevant aspect of the text following the objective is expressed thus:

"The most important elements of this character are large Californian-style bungalows and other fine examples of interwar domestic architecture (including matching outbuildings), with substantial building set-backs and garden areas."

26. The subject tree is not included in the list of identified significant trees in Table Bur/3. There are no such significant trees in the near vicinity of the subject land (Maps Bur(ST)/2 and 3).

27. Next, the provisions directed specifically to significant trees. Objective 20 and Principles 42 and 49(a) appear under the heading "Trees and other vegetation." The relevant aspects of these provisions are expressed as follows:

"Objective 20: The conservation of significant trees (including significant trees identified in Table Bur/3 and associated Figures Bur(ST)/1 to 8 inclusive) in Metropolitan Adelaide which provide important aesthetic and environmental benefits."

"Principle 42: Where a significant tree:

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

....

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

development should preserve these attributes"

"Principle 49: Significant trees should be preserved and tree-damaging activity should not be undertaken unless:

(a) in the case of tree removal;

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

.....

(iv) the tree is shown to be causing, or threatening to cause, substantial damage to a substantial building of value."

28. The text following Objective 20 is also relevant.

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

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

29. Under the same heading are more general provisions dealing with "indigenous vegetation". I have taken the term "indigenous", where it appears without qualification, in its widest sense - that is, in respect of a tree originating in or characterizing Australia. I have done so for two principal reasons. First, it is the meaning given to the term by most people who have little knowledge of botany. Second, the Development Plan for the City of Burnside has provisions which appear to distinguish between indigenous trees generally and trees that are indigenous to the local area or remnant indigenous vegetation (see for example Council Wide Principles 28(a) and 42(d)).

30. The provisions are expressed thus:

"Objective 19: The retention and protection of remnant indigenous vegetation."

"Principle 38: Development should conserve and enhance vegetation:

(a) which is remnant vegetation of a species or plant community that is indigenous to the local area;

....

(c) of significant amenity value of a kind which would not be adequately replaced by new plantings;

(d) which contributes significantly to landscape or streetscape quality, or the objectives of the relevant zone and policy area."

"Principle 39: Development should promote the long-term conservation of vegetation by:

(c) taking other effective and reasonable precautions to protect both vegetation and the integrity of structures and essential services."

31. Other more general provisions are contained in Council Wide Objectives 16 and 17. They are expressed as follows:

"Objective 16: Protection and enhancement of visual amenity by ensuring a high standard of design in respect of the appearance of development, and by the conservation and establishment of vegetation, including trees.

Objective 17: Conservation of streetscapes and landscapes of aesthetic merit, and sites and localities of natural beauty."

32. Insofar as these objectives pertain to the role and importance of trees and vegetation in the protection and enhancement of amenity, they are supported by several principles which provide guidance about the type and purpose of landscaping associated with other "development". (For example Principles 29 and 31). I have taken those principles into account.

33. I have carefully considered the evidence of Mr Lodge, Mr Whitehill, Mr Mitchell and Ms Herzberg in respect of the provisions of Principle 49(a). I do not doubt for a moment that limbs have fallen from the tree onto the subject site and 120 Hewitt Avenue. However, the weight of evidence indicates quite clearly that risks posed by the tree are not unacceptable (Principle 49(a)(1)(ii)). Furthermore, the opinions of Mr Lodge and Mr Whitehill when carefully examined and weighed indicate to me that appropriate (and relatively affordable) pruning would offer the level of protection to public and private safety anticipated by the terms of the aforementioned principle.

34. Mr Mitchell's evidence was not seriously challenged. Nothing said by him leads me to believe that the subject tree is or threatens to cause damage to a structure of value (Principle 49(a)(1)(iv)).

35. In all, the subject tree does not come within the ambit of Principle 49(a)(1). However, such a conclusion does not necessarily mean that the tree be preserved (Botting v City of Burnside [2003] SAERDC 82). Several issues revolving around aesthetic and environmental benefit and the conservation and enhancement of amenity, streetscape and vegetation fall for consideration. In these proceedings the factors that are important when undertaking an assessment in respect of these issues include the position of the subject tree on the land and in respect of public spaces, its height, shape and health, its visual prominence and general degree of exposure and whether it has attributes or is within circumstances that might be considered particularly special.

36. It is not the case that the subject tree or its circumstances are special. It seems to me that trees so regarded by the local planning authority have been recognized and listed in Table Bur/3. The subject tree is not included in the table. However, the subject tree is a large specimen in both height and spread. By virtue of these attributes and its close proximity to Hewitt Avenue, it is a prominent feature in the streetscape. In reaching this conclusion I have taken into account the height of the street trees that appear to be controlled by regular pruning to clear power lines.

37. I have taken into account the presence of the Spotted Gum and Ms Hamnett's opinion to the effect that the visual prominence results in the combined effect of both trees. To a certain extent Ms Hamnett is correct. However, Mr Barwick's estimation of the proportional loss of total foliage that will be noted above the roof line of adjacent and surrounding houses is an important consideration. Equally important is the fact that the Spotted Gum does not fall within the ambit of reg 6A Development Regulations 1993. I acknowledge Mr Beamond's suggestion I consider ways in which the Spotted Gum may be conditioned to remain consistent with the oral evidence of Ms Herzberg. I do not think that it is the appropriate course to take. To do so would simply acknowledge the visual prominence of the subject tree. Furthermore since it is not a significant tree such a condition would prevent the right of the current or future owner to remove it without making application to the local planning authority.

38. In all I have reached the conclusion that the tree is notable in the circumstances and makes an important aesthetic contribution to the character and amenity of the locality within which the subject land is located. Although a locality was not specifically identified by the witnesses, it would comprise an area of about 200m radius from the subject land but exclude the land north of the Burnside Hospital buildings. In reaching the conclusion about the aesthetic importance of the subject tree, I have placed considerable weight on its visual prominence occasioned by the combined effect of its height and foliage mass with its proximity to Hewitt Avenue, its exposure when viewed from several dwellings fronting Watson Avenue and the stark contrast in height and mass that is evident when compared with the form and habit of the trees within Hewitt Avenue.

39. The removal of the subject tree would conflict with Objectives 16, 17 and 20 and Principle 42 to an unacceptable extent. The act of removal also runs counter to that aspect of the desired character of Policy Area 10 that envisages "well-landscaped gardens" and the well-vegetated public (street and reserve) and private area character sought for the Residential Zone generally. Having reached these conclusions, I have not ignored the microclimatic effects on Ms Herzberg. I do not consider this aspect of her case sufficiently made out. There are a number of factors already impeding the entry of sunlight into the northern extension of her home including a wide pergola, dense Claret Ash, the Spotted Gum and other street trees. Nor have I ignored some witnesses' opinion that a Lemon Scented Gum is unsuited to domestic circumstances. The claim that a tree is "unsuited" to a particular circumstance is now commonplace in this Court and is a concept that is beginning to take on a life of its own. Accordingly, such views need to be put in the proper context. Ms Herzberg's home is on a large allotment. The tree is well clear of the house. There is no evidence of damage to a structure of value. The position of the tree does not impinge on the essential or functional needs of the house. Moreover, the weight of evidence leads me to conclude the risk to private and public safety is not unacceptable and that potential problems can be avoided by proper maintenance. Although the presence of the tree may cause inconvenience at times, in the circumstances, the tree could not be regarded as unsuitable.

40. I have also taken into account the type of landscaping envisaged in Principles 38 and 40. The policies within those principles speak of the conservation of indigenous vegetation as well as remnant species that are indigenous to the local area. It also allows for the replacement of indigenous trees with trees indigenous to the local area - an outcome sought by the appellant. However, to me, the overriding consideration in the circumstances is whether Principles 38(c) and (d) would be met by the action of removal and replacement. In my view that would not be the case.

41. For these reasons I have concluded that the Council's decision to refuse Provisional Development Plan Consent to remove the subject tree was correct. It follows that the appeal is dismissed.

42. There will be an order accordingly.