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Paes v City of Burnside [2004] SAERDC 79 (24 September 2004)

Last Updated: 29 September 2004

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

PAES v CITY OF BURNSIDE

Judgment of Her Honour Judge Cole

24 September 2004

LOCAL GOVERNMENT - TOWN PLANNING

Provisional development plan consent sought to remove a significant tree from residential property - refused by Council - decision appealed - evidence of tree's contribution to the amenity of the locality, possibility of damage being caused to the footings of the house - provisions of Development Plan in relation to significant trees considered and the effect of the removal of the tree - appeal upheld.

Development Act 1993, referred to.

PAES v CITY OF BURNSIDE
[2004] SAERDC 79

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 On 25 August 2003, Mr Paes (the appellant) applied to the City of Burnside (the Council) for development approval to remove a Norfolk Island Pine tree ("the tree") from the front garden of the property at 498 Glynburn Road, Burnside ("the land"). The Council refused the application on 15 December 2003 and the appellant appealed.

The Land and the Locality

2 The land is on Glynburn Road in Burnside, one block in from High Street. It has a 15.24m frontage, and is approximately 36.6m deep. St David’s Anglican Church is to the north of it, and the Burnside Primary School is to the rear of it.
3 There is a house on the land, with a carport and a garden.
4 The land is within the Residential Policy Area 19 – Burnside (North). The tree is approximately 23 metres high and is visible for a considerable distance north and south along Glynburn Road. It can be seen from several vantage points within Hazelwood Park.
5 Mr Hayter, who gave evidence in the Council’s case, is an expert in both architecture and landscape architecture. Mr Hayter accurately described the character of the locality of the land in his evidence:-

"In respect to the neighbourhood in which the subject tree lies, its character is derived from the presence of relatively large gardens and existing trees which predominated over the built form. The subject tree contributes to this existing neighbourhood character as part of the overall vegetation cover and as a significant visual landmark in the neighbourhood."
The tree and the house

6 The tree has a trunk circumference of 2.12 metres at 1 metre above ground level, which makes it a significant tree under the Development Act 1993 (see Development Regulations 1993, reg 6A). The tree is listed in Table Bur/3, the schedule of significant trees within the Council’s Development Plan, and it is there described as being 4 metres from both the front and right (presumably southern) boundary. Various witnesses estimated that distance as being 3.7 metres or 3.8 metres. The tree is roughly in the middle of the front garden of the house.
7 The tree is shown on Fig Bur/6, which plots significant trees on a street map.
8 The removal of a significant tree constitutes development under the Development Act 1993, and may not be undertaken without approval (see ss 4(1) and 32).
9 Mr Hilditch, who appeared for the Council, argued that the listing of the tree in Table Bur/3 has an effect beyond the designation of the tree as a significant tree. Mr Hilditch argued that the listing amounts to a statement that the tree, in the words of Principle 42 "makes an important contribution to the character and amenity of the local area." Table Bur/3 is referred to in Objective 20 and Principle 43 in the Council Wide provisions of the Development Plan.

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

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."

Principle 43 states:

"In addition to those significant trees defined by the Development Regulations 1993, those indigenous and exotic trees individually identified in Table Bur/3 and as shown on the Significant Trees Figures Bur(ST)/1 to 8 inclusive are also declared to be significant trees.

This designation extends to all parts of the root system, trunk, canopy and other parts of each tree, including those parts which have grown since the initial designation of the trees as significant:"

10 Neither Objective 20 nor Principle 43 imbues any meaning into the listing of a tree in Table Bur/3 beyond the designation of the tree as a significant tree. Nothing in the Development Plan indicates that the listing of a tree in Bur/3 was intended to pre-empt an assessment of the tree’s contribution to character and amenity, where that is a relevant consideration.

The Provisions of the Development Plan

11 The single objective for the Residential Policy Area 19 – Burnside (North) is the "maintenance and enhancement of the low to medium density residential character" which exists in the Policy Area. Principle 1 for the Policy Area says, in part:-

"1. Development should:

(a) conserve and enhance the character of the Policy Area, described in Objective 1, and the significant trees therein;..."

12 The provisions in that section of the Council wide provisions of the Council’s Development Plan entitled "Trees and Other Vegetation" are relevant to the assessment of the application, particularly Objective 20 quoted above and Principle 48(a) which provides:-

"48 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 otherwise habitable building and is a bushfire hazard within the Bushfire Prone Area shown on Figure BurBPA/1; 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. ..."

13 There was no evidence of any reason to be concerned about the health of the tree, or any risk to personal safety. The argument centred upon Principle 48(a)(1)(iv). There are three questions to answer in order to ascertain whether the removal of the tree would be in accordance with Principal 48(a)(v)(iv):
• is the tree causing or threatening to cause damage which is substantial?
• is that damage being caused to (or about to be caused to) a substantial building or structure of value?
• have all other reasonable remedial treatments and measures been determined to be ineffective?

A Substantial Building or Structure of Value

14 The house on the land, and presumably the associated slate paving, was built between 1950 and 1960. The house is built of Gore bats. A Gore bat is a hollow rectangular concrete block, approximately 1m x 800mm x 250mm in dimension. The Gore bats are laid on a concrete strip footing. Borelog analysis by Koukourou and Partners show the land to be a class H highly reactive clay site. Dr Mitchell, an engineer who gave evidence in the Council’s case, and Mr Gunson, an engineer who gave evidence in the appellant’s case, agreed that the footing of the house is inadequate to accommodate movement typically experienced in soil of this kind.
15 It was implicitly accepted in the Council’s case that the dwelling on the land is a substantial building within the meaning of Principle 48(a)(1)(iv). It is also obviously a structure of value.

Causing or Threatening to Cause Substantial Damage

16 Mr Heath, a landscape architect and arborist, gave evidence in the appellant’s case. On the basis of his evidence, I find:

(1) The tree is between 35 and 50 years old.

(2) Norfolk Island Pines are efficient at extracting moisture from soil.

(3) The tree is not mature and exhibits a juvenile pyramidal profile. It will continue to grow, its height and canopy will increase and it will gradually transform into the rounded profile of a mature Norfolk Island Pine. Its roots will increase in length and spread and will extract an increasing quantity of water from the soil until maturity is reached.

(4) The tree could live for a further 100 years.

(5) The tree’s roots are adjacent to, under and around the house.

(6) As the tree grows, its roots will grow further under the house’s slab.

(7) It is likely that the tree has a root radius of 10.6m. The roots will not be spread an equal distance in all directions. The predicted root radius at maturity will be 3m greater than presently with roots at least 300mm deep and probably deeper.

(8) Typically, a tree’s root system will absorb water down to 1m below ground level. The extent of the extraction of water from the soil varies seasonally.

(9) The extraction of water from the soil by the tree has caused desiccation of the soil next to and under the house with consequent damage to the house by way of settlement and cracking.

(10) The increasing amount of water which will be extracted by the tree until it is mature is likely to cause increasing desiccation of the soil around the dwelling, causing further settlement and cracking.

17 The engineers agreed that some of the damage to the house has been caused by the extraction of water from the soil by the tree. Mr Lodge, an arborist called by the Council, gave evidence on this point which was difficult to follow. In his statement, he said that the volume of water being absorbed by the tree’s roots in the area between the tree and the house was "unlikely to be significant". He seemed to think that the concrete path in front of the house had, to a large extent, formed a barrier to the roots and prevented them from affecting the house. I do not accept Mr Lodge’s evidence on these points.
18 Mr Gunson and Dr Mitchell agreed that it was difficult to attribute particular instances of damage in the house to the tree. They agreed that other trees around the house had contributed to the damage, and many continue to do so. Dr Mitchell ascribed the heaving of the soil at the rear of the house to the consequence of a partially disassembled downpipe at the south-eastern corner of the house. Mr Gunson had conducted a test on the house’s plumbing which enabled him to conclude that it was not leaking, and that there was no contribution to the damage from that quarter.
19 Dr Mitchell formulated an opinion as to the likely forces at work on the house in greater detail than Mr Gunson. In summary, Dr Mitchell believes that the combined effect of a Liquid Amber tree in the south-western corner neighbouring property to the north of the land (which is having an effect upon the north-west corner of the house) and the heaving on the eastern side of the house attributable to the disassembled downpipe has brought about a north/south convex distortion of the house. The tree’s desiccating effect on the soil around the front of the house has contributed to an east/west planar tilt of the house. Consistent with this analysis, Dr Mitchell identified 8 cracks to which the tree has contributed:

"1. Location B on the south wall of the kitchen - a crack as wide as 12mm;

2. Location H on the south wall of the lounge - a crack that has been repaired and now opened to 2mm width. The door to the hall jams;

3. Location I on the north wall of the hall - a crack 1mm wide;

4. Location K on the south wall of the hall - a crack that was repaired and now reopened to 3mm;

5. Location N on north wall of bedroom one - a formerly repaired crack has opened to 3mm;

6. Location Q on north wall of bedroom two - a 10mm wide crack, and a split in the door frame;

7. Location R at the corner of the passage/kitchen doorway - a 12mm wide corner crack; and

8. Opening of the parquetry in the kitchen and passage area."

He further said:

"AS2870 classifies cracks up to 15mm wide (as in the house at 498 Glynburn Road) as ‘damage category 3’. Damage category 3 is described as ‘cracks can be repaired and possibly a small amount of wall will need to be replaced. Doors and windows stick. Service pipes can fracture. Weather tightness often impaired’.

The damage present in the house is consistent with this description, indicating that crack repair methods are an appropriate method of rectification of this house."

20 It does not follow from the fact that the cracks are capable of being repaired - or, to put it another way, that they do not represent damage to the point where the wall might fail altogether - that they are not substantial damage within the meaning of Pinciple 48(a)(1)(iv). Cracks 1, 2, 6 and 7 and the damage to the floor described in 8 are substantial damage.
21 Dr Mitchell was more conservative than Mr Gunson in attributing the damage exhibited in the house to the tree. Even on Dr Mitchell’s evidence, however, I find that the tree has caused substantial damage to the house. As the tree grows, the extent of the damage will increase. More cracks will appear.
22 It is clear that the tree is not the only cause of the damage to the house. Dr Mitchell said that the damage he attributed to the tree was "a small proportion of the total house distortion". Whilst interesting as context, this observation does not assist with the assessment of the proposed removal of the tree against Pinciple 48(a)(1)(iv). The appellant clearly has a number of causes for the damage to his house to deal with. He is entitled to deal with them one by one should he choose to do so. Mr Hilditch argued that the Court should show "leadership" and guide the appellant in his overall approach to the management of his damaged house. This is not the role of the Court. The appellant has lodged an application for provisional development plan consent for the removal of a significant tree. He is entitled to have it assessed and decided in accordance with the relevant provisions of the Development Plan.

Other Reasonable Remedial Treatments and Measures

23 There was general agreement by the engineers and Mr Heath that neither a root barrier nor a regulated watering regime would be effective in diminishing the damage being caused to the house by the tree.
24 Dr Mitchell thought that the flexibility of the house could be improved by the cutting of expansion joints at strategic places in the walls and the filling of the joints with a mastic seal. Dr Mitchell has experience of this method in brick and concrete block buildings. Not surprisingly, given that the Gore bat method of construction seems to have been a short-lived, local method enduring from about 1954 to 1960, he had no experience of articulating a Gore bat building. In his opinion, however, the theory of articulation in this manner was applicable to Gore bats and it should succeed in increasing the flexibility of the structure and ameliorating the danger of future cracking. It would not overcome the difficulty of the wall moving away from the steel-framed ceiling but this could be concealed behind a cornice attached to either the wall or the ceiling but not both. A remedy for the damage to the floor, and a method for preventing such damage as the tree grows was not put forward.
25 In all the circumstances, I determine that it is not reasonable to expect the appellant to attempt the articulation suggested as it would not address all of the damage caused by the tree to date and likely to be caused by it in the future. On the basis of the evidence of Dr Mitchell and Mr Gunson, I determine that all reasonable remedial treatments and measures are likely to be ineffective in preventing further substantial damage to the house being caused by the tree. It may be that the Council, when it decided this application, had insufficient evidence before it to make such a determination. However, this appeal is a hearing de novo and the Court stands in the shoes of the primary decision maker, so the position of the Council is of historical interest only.

Effect of the Removal of the Tree

26 Dr Mitchell and Mr Gunson agreed that the removal of the tree would pose a new threat to the house. The elimination of the tree, which has been taking water from around the house for some 50 years, will alter the moisture content of the soil. The cycle of seasonal variations in moisture will be different. Other trees may invade the underground space previously dominated by the tree. On the evidence, the situation could take up to 15 years to settle. Dr Mitchell doubted that a regulated watering regime could compensate for the absence of the tree. The consequent settlement of the front of the house will not be likely to accord precisely with its original position, and further cracking will result. The question was posed as to whether the removal of the tree will therefore achieve anything.
27 In every case in which a tree is causing substantial damage to a building of volume, the removal of the tree will have the effect described by Dr Mitchell. Yet Principle 48 does not call for that effect to be factored into the assessment of whether the tree should be removed. Implicitly, Principle 48 indicates that a tree which is the cause or potential cause of damage may be removed, leaving the landowner to manage the consequences. I do not consider that Principle 48 calls for a balancing exercise of the damage caused or to be caused by the tree against the damage which is likely to be caused by its removal. Were that balancing exercise required, I assess that it would be preferable in terms of reducing the potential for damage to the house for the tree to be removed than for it to stay. Removal may lead to a 10 to 15 year settling period which can be managed, albeit imperfectly. If the tree remains, its desiccating effect on the soil could potentially endure for 100 years.

Heritage Listing

28 Subsequent to the application, the house was placed upon the local heritage list by means of a PAR which has been brought into interim operation. This is not a relevant matter in the assessment of the application for the removal of the tree.
29 There was a hint of speculation during the hearing concerning the motivation of the appellant in applying to remove the tree. The appellant’s motivation and his aspirations for his property are unknown, and I have made no assumptions about them in deciding this appeal.

Conclusion

30 There is a clear intention evinced in the relevant provisions of the Development Plan that significant trees are to be retained unless limited criteria are fulfilled. Principle 42 indicates that a higher value is to be attributed to some significant trees relative to others. It seems to me that, considering all of the provisions of the "Trees and Other Vegetation" section of the Council Wide section of the Development Plan, the value of the tree to the locality is a relevant consideration when the removal of a tree is being considered.
31 I agree with Mr Hayter that the tree contributes to the character of the area and, by reason of its height, is a local landmark. It is, however, exotic, and the predominant character of the locality relates to the mature indigenous trees which are present. The tree is not at the high end of the scale of value, but it makes a positive contribution. Given the damage it is causing to the house, its removal is warranted.
32 Having regard to the zoning of the land, the provisions of the Development Plan relating to trees and all of the evidence, the removal of the tree is sufficiently in compliance with the Development Plan. The Council’s decision is reversed and provisional development plan consent is granted to application DA180/0867/03/C1.

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2	The land is on Glynburn Road in Burnside, one block in from High Street. It has a 15.24m frontage, and is approximately 36.6m deep. St David’s Anglican Church is to the north of it, and the Burnside Primary School is to the rear of it.
3	There is a house on the land, with a carport and a garden.
4	The land is within the Residential Policy Area 19 – Burnside (North). The tree is approximately 23 metres high and is visible for a considerable distance north and south along Glynburn Road. It can be seen from several vantage points within Hazelwood Park.
5	Mr Hayter, who gave evidence in the Council’s case, is an expert in both architecture and landscape architecture. Mr Hayter accurately described the character of the locality of the land in his evidence:-

6	The tree has a trunk circumference of 2.12 metres at 1 metre above ground level, which makes it a significant tree under the Development Act 1993 (see Development Regulations 1993, reg 6A). The tree is listed in Table Bur/3, the schedule of significant trees within the Council’s Development Plan, and it is there described as being 4 metres from both the front and right (presumably southern) boundary. Various witnesses estimated that distance as being 3.7 metres or 3.8 metres. The tree is roughly in the middle of the front garden of the house.
7	The tree is shown on Fig Bur/6, which plots significant trees on a street map.
8	The removal of a significant tree constitutes development under the Development Act 1993, and may not be undertaken without approval (see ss 4(1) and 32).
9	Mr Hilditch, who appeared for the Council, argued that the listing of the tree in Table Bur/3 has an effect beyond the designation of the tree as a significant tree. Mr Hilditch argued that the listing amounts to a statement that the tree, in the words of Principle 42 "makes an important contribution to the character and amenity of the local area." Table Bur/3 is referred to in Objective 20 and Principle 43 in the Council Wide provisions of the Development Plan.

13	There was no evidence of any reason to be concerned about the health of the tree, or any risk to personal safety. The argument centred upon Principle 48(a)(1)(iv). There are three questions to answer in order to ascertain whether the removal of the tree would be in accordance with Principal 48(a)(v)(iv):
•	is the tree causing or threatening to cause damage which is substantial?
•	is that damage being caused to (or about to be caused to) a substantial building or structure of value?
•	have all other reasonable remedial treatments and measures been determined to be ineffective?

17	The engineers agreed that some of the damage to the house has been caused by the extraction of water from the soil by the tree. Mr Lodge, an arborist called by the Council, gave evidence on this point which was difficult to follow. In his statement, he said that the volume of water being absorbed by the tree’s roots in the area between the tree and the house was "unlikely to be significant". He seemed to think that the concrete path in front of the house had, to a large extent, formed a barrier to the roots and prevented them from affecting the house. I do not accept Mr Lodge’s evidence on these points.
18	Mr Gunson and Dr Mitchell agreed that it was difficult to attribute particular instances of damage in the house to the tree. They agreed that other trees around the house had contributed to the damage, and many continue to do so. Dr Mitchell ascribed the heaving of the soil at the rear of the house to the consequence of a partially disassembled downpipe at the south-eastern corner of the house. Mr Gunson had conducted a test on the house’s plumbing which enabled him to conclude that it was not leaking, and that there was no contribution to the damage from that quarter.
19	Dr Mitchell formulated an opinion as to the likely forces at work on the house in greater detail than Mr Gunson. In summary, Dr Mitchell believes that the combined effect of a Liquid Amber tree in the south-western corner neighbouring property to the north of the land (which is having an effect upon the north-west corner of the house) and the heaving on the eastern side of the house attributable to the disassembled downpipe has brought about a north/south convex distortion of the house. The tree’s desiccating effect on the soil around the front of the house has contributed to an east/west planar tilt of the house. Consistent with this analysis, Dr Mitchell identified 8 cracks to which the tree has contributed:

20	It does not follow from the fact that the cracks are capable of being repaired - or, to put it another way, that they do not represent damage to the point where the wall might fail altogether - that they are not substantial damage within the meaning of Pinciple 48(a)(1)(iv). Cracks 1, 2, 6 and 7 and the damage to the floor described in 8 are substantial damage.
21	Dr Mitchell was more conservative than Mr Gunson in attributing the damage exhibited in the house to the tree. Even on Dr Mitchell’s evidence, however, I find that the tree has caused substantial damage to the house. As the tree grows, the extent of the damage will increase. More cracks will appear.
22	It is clear that the tree is not the only cause of the damage to the house. Dr Mitchell said that the damage he attributed to the tree was "a small proportion of the total house distortion". Whilst interesting as context, this observation does not assist with the assessment of the proposed removal of the tree against Pinciple 48(a)(1)(iv). The appellant clearly has a number of causes for the damage to his house to deal with. He is entitled to deal with them one by one should he choose to do so. Mr Hilditch argued that the Court should show "leadership" and guide the appellant in his overall approach to the management of his damaged house. This is not the role of the Court. The appellant has lodged an application for provisional development plan consent for the removal of a significant tree. He is entitled to have it assessed and decided in accordance with the relevant provisions of the Development Plan.

23	There was general agreement by the engineers and Mr Heath that neither a root barrier nor a regulated watering regime would be effective in diminishing the damage being caused to the house by the tree.
24	Dr Mitchell thought that the flexibility of the house could be improved by the cutting of expansion joints at strategic places in the walls and the filling of the joints with a mastic seal. Dr Mitchell has experience of this method in brick and concrete block buildings. Not surprisingly, given that the Gore bat method of construction seems to have been a short-lived, local method enduring from about 1954 to 1960, he had no experience of articulating a Gore bat building. In his opinion, however, the theory of articulation in this manner was applicable to Gore bats and it should succeed in increasing the flexibility of the structure and ameliorating the danger of future cracking. It would not overcome the difficulty of the wall moving away from the steel-framed ceiling but this could be concealed behind a cornice attached to either the wall or the ceiling but not both. A remedy for the damage to the floor, and a method for preventing such damage as the tree grows was not put forward.
25	In all the circumstances, I determine that it is not reasonable to expect the appellant to attempt the articulation suggested as it would not address all of the damage caused by the tree to date and likely to be caused by it in the future. On the basis of the evidence of Dr Mitchell and Mr Gunson, I determine that all reasonable remedial treatments and measures are likely to be ineffective in preventing further substantial damage to the house being caused by the tree. It may be that the Council, when it decided this application, had insufficient evidence before it to make such a determination. However, this appeal is a hearing de novo and the Court stands in the shoes of the primary decision maker, so the position of the Council is of historical interest only.

28	Subsequent to the application, the house was placed upon the local heritage list by means of a PAR which has been brought into interim operation. This is not a relevant matter in the assessment of the application for the removal of the tree.
29	There was a hint of speculation during the hearing concerning the motivation of the appellant in applying to remove the tree. The appellant’s motivation and his aspirations for his property are unknown, and I have made no assumptions about them in deciding this appeal.

30	There is a clear intention evinced in the relevant provisions of the Development Plan that significant trees are to be retained unless limited criteria are fulfilled. Principle 42 indicates that a higher value is to be attributed to some significant trees relative to others. It seems to me that, considering all of the provisions of the "Trees and Other Vegetation" section of the Council Wide section of the Development Plan, the value of the tree to the locality is a relevant consideration when the removal of a tree is being considered.
31	I agree with Mr Hayter that the tree contributes to the character of the area and, by reason of its height, is a local landmark. It is, however, exotic, and the predominant character of the locality relates to the mature indigenous trees which are present. The tree is not at the high end of the scale of value, but it makes a positive contribution. Given the damage it is causing to the house, its removal is warranted.
32	Having regard to the zoning of the land, the provisions of the Development Plan relating to trees and all of the evidence, the removal of the tree is sufficiently in compliance with the Development Plan. The Council’s decision is reversed and provisional development plan consent is granted to application DA180/0867/03/C1.