Silegna Pty Ltd v City of Burnside No ERD-03-295 [2004] SAERDC 8 (2 February 2004)

Last Updated: 8 February 2004

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Her Honour Judge Cole

Hearing

15/12/2003.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Application to remove trees - condition imposed requiring the retention of Tree 1 and Tree 5 - applicant lodged appeal against condition - trees dead - can a dead tree be a significant tree and therefore require approval under the Act for its removal - can dead trees constitute an attractive element in a landscape and contribute to local biodiversity - finding that a dead tree can be a significant tree - appeal upheld - trees not sufficiently visually important to warrant retention - provisional development plan consent is granted subject to new conditions.

• Development Act 1993 ;
• Development Regulations 1993 ;
• Native Vegetation Act 1991 ;
• Acts Interpretation Act 1915 ;
• Development (Significant Trees) Amendment Act 2000 , referred to.
• Burch v State of South Australia (1998) 71 SASR 12;
• Summers v City of Unley [2002] SAERDC 113;
• Botting v City of Burnside [2003] SAERDC 7, applied.

Representation

Appellant: SILEGNA PTY LTD
Counsel: MR M DOHERTY - Solicitors: LYNCH MEYER

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

ERD-03-295

Judgment No. [2004] SAERDC 8

2 February 2004

SILEGNA PTY LTD

v

CITY OF BURNSIDE

(ERDC 295 of 2003)

[2004] SAERDC 8

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. An application was made on behalf of Silegna Pty Ltd ("the appellant") to the City of Burnside ("the respondent") for development approval in respect of the proposed removal of seven trees from the land at 496 Portrush Road, St Georges. The respondent issued a decision notification form dated 29 July 2003 in relation to the application.

2. At the date of the application (16 April 2003) all seven of the trees were significant trees. Prior to the making of a decision in respect of the application, the criteria for a significant tree was changed. Five of the seven trees were no longer significant, from that date.

3. By the date of the Council's decision, both of the trees which remained significant trees subsequent to the amendment were dead, apparently having been poisoned. The circumstances of the poisoning of the trees are not known to the Council. It was clear from the evidence that the appellant wishes to divide the land for residential development. On the face of it, the death of the trees suits the appellant. However, it cannot be inferred that the appellant brought about the poisoning of the trees. Many explanations are possible. No adverse inference should colour the decision required in relation to the appellant's development application.

4. The Council made a decision in respect of the development application on 22 July 2003, and issued a planning decision notification dated 29 July 2003.

5. The planning decision notification records that the Council granted provisional development plan consent to the application and imposed these four conditions.

"CONDITIONS (DEVELOPMENT APPROVAL)

1. The existing trees on site indicated as being retained, as shown on the approved plans shall be retained and maintained in good condition at all times to the reasonable satisfaction of Council. Any dead or diseased plants or trees should be replaced to the reasonable satisfaction of the Council.

Specifically, the:

• Four (4) Eucalyptus cladocalyx (Sugar Gums), located in the south-western corner of the subject land adjacent Portrush Road.

In particular:

• An appropriate form of temporary fencing shall be erected around the base of the identified trees. The type of fencing, and its distance from the base of the trees, shall be determined by Council's Tree Management Officer prior to any work being commenced on site and such fencing shall remain in place for the full period of construction work;

• No equipment/debris/building rubble or material shall be discarded/stored within 4 metres of the base of the identified trees for the full period of the development.

• Soil levels/topography surrounding the identified trees shall not be altered in any way, and all reasonable attempts shall be made to avoid compaction of the soil within the root zone/drip line of the identified trees canopy, for the full period of construction work;

• For any work under/in close proximity to the canopy of the identified trees, all due care shall be taken to avoid damage to the canopy or to the branch structure for the full period of construction work; and

• No underground services including storm water pipes shall be located with (sic) 4 metres of the base of the identified trees.

2. The current and any subsequent owner of the land is responsible for the ongoing maintenance and pruning associated with the protection of the Significant Trees identified on the subject land, specifically the four (4) Eucalyptus cladocalyx (Sugar Gums), located in the south western corner of the subject land adjacent Portrush Road, to ensure that an unacceptable risk to public or private safety is minimised.

3. That trees numbered 1 and 5 be retained for ecno environmental/habitat purposes.

4. That 20 nesting boxes be provided in the remaining vegetation to replace the nesting hollows removed through the removal of the significant tree hollows and maintained to the satisfaction of Council at all times."

6. This appeal is an appeal against Condition 3.

7. The process followed is unsatisfactory. The Council has granted approval for the removal of all seven trees and then, in effect, revoked or overridden that approval in respect of two of the trees, by means of the imposition of Condition 3. That is not a proper use of a condition. The Council should have either:

1. refused the application, or

2. treated the application as being seven applications, and made a separate decision in respect of each of them.

8. It would have been sensible if, upon the change to the criteria for significant trees coming into effect, the appellant had been invited to substitute a fresh application or applications dealing only with the remaining significant trees which it wished to remove. Those trees are called Tree 1 and Tree 5 on the application plans.

Site

9. The land the subject of the application is a parcel of four allotments which wrap around the allotment at the corner of Portrush Road and Austin Crescent. The corner allotment is not part of the site for this application. Two of the allotments have a frontage to Portrush Road and two have a frontage to Austin Crescent. The parcel ("the site") is 4529m2 in area. A community hall sits on one of the Portrush Road allotments, and there are tennis courts and a storage shed on the Austin Crescent allotments. The site is presently unkempt in appearance.

10. Trees 1 and 5 are not the only trees on the site. The plan submitted with the development application shows four Sugar Gums located in the south-western corner of the southernmost Portrush Road allotment, called Tree 8, Tree 9, Tree 10 and Tree 12 on the plan, which are to be retained. Those four trees were alive at the date of the hearing. They are the subject of Conditions 1 and 2. Trees 1 and 5 are Eucalyptus camaldulensis or River Red Gums. Tree 1 is near the eastern boundary of the site, in the rear third of the easternmost allotment with a frontage to Austin Crescent, and has a trunk circumference of 2800mm. Tree 5 is slightly south of the centre point of the site and has a trunk circumference of 5000mm.

Development

11. The questions of substance in this matter are:-

1. Given that they are dead, is approval under the Development Act 1993 required for the removal of Trees 1 and Tree 5, or, to put it another way, can a dead tree be a significant tree?

2. If approval is required, does the application to remove Tree 1 and Tree 5 warrant approval on the planning merits?

Question 1 - Can a dead tree be a significant tree?

12. The Development Act 1993 provides, in s.4

"'significant tree' means -

(a) a tree within a class of trees declared to be significant trees by the regulations; or

(b) a tree declared to be a significant tree, or a tree within a group of trees declared to be significant trees, by a Development Plan;"

The word "tree" is not defined.

"Tree-damaging activity" is defined thus:-

(a) the killing or destruction of a tree; or

(b) the removal of a tree; or

(c) the severing of branches, limbs, stems or trunk of a tree; or

(d) the ringbarking, topping or lopping of a tree; or

(e) any other substantial damage to a tree,

and includes any other act or activity that causes any of the foregoing to occur but does not include maintenance pruning that is not likely to affect adversely the general health and appearance of a tree;"

13. On the date of the development application, (16 April 2003), the Development Regulations 1993 provided, in Regulation 6 and 6A:

"6. An act or activity in relation to land specified in Schedule 2 is declared to constitute development.

Significant trees

6A (1) Subject to this regulation, the following are declared to constitute classes of significant trees for the purposes of paragraph (a) of the definition of "significant tree' in section 4(1) of the Act:

(a) trees within the designated area that have a trunk with a circumference of 2.5 metres or more or, in the case of trees with multiple trunks, that have trunks with a total circumference of 2.5 metres or more and an average circumference of 750 millimetres or more, measured at a point 1.0 metres above natural ground level;

(b) until 30 June 2003 - within an area within the area of The Corporation of the City of Adelaide, the City of Burnside, the City of Mitcham, The Corporation of the City of Norwood Payneham and St. Peters, the City of Prospect or The Corporation of the City of Unley declared by the Minister on the application of the relevant council for the purposes of this paragraph - trees that have a trunk with a circumference of 1.5 metres or more or, in the case of trees with multiple trunks, that have trunks with a total circumference of 1.5 metres or more and an average circumference of 500 millimetres or more, measured at a point 1.0 metres above natural ground level;

(c) until 30 June 2003 - within an area within the area of The Corporation of the City of Adelaide, the City of Burnside or the City of Mitcham declared by the minister on the application of the relevant council for the purposes of this paragraph - trees that -

(i) are of a species indigenous to South Australia; and

(ii) are 4 or more metres in height, or such greater height as the council for the relevant area may, by resolution published in the Gazette, determine; and

(iii) satisfy other criteria (if any) as the council for the relevant area may, by resolution published in the Gazette, determine.

(1a) For the purposes of subregulation (1)(a), the designated area will be constituted by -

(a) the whole of Metropolitan Adelaide, other than -

(i) those parts of the area of the Adelaide Hills Council within the Extractive Industry Zone, the Public Purpose Zone or the Watershed (Primary Production) Zone in the Development Plan that relates to that area; and

(ii) those parts of the area of the City of Playford within the Watershed Zone or the Mount Lofty Ranges Rural Zone on the eastern side of the Hills Face Zone in the Development Plan that relates to that area; and

(b) any part of the area of the Adelaide Hills Council outside Metropolitan Adelaide that is within a Country Township Zone in the Development Plan that relates to that area.

(1b) For the purpose of subregulation (1)(a) and (b), the measurement of the circumference of the trunks of a tree with multiple trunks is to be undertaken on the basis of the actual circumference of each trunk and without taking into account any space between the trunks."

14. Mr Doherty, counsel for the appellant, argued that the word "tree" in the Development Act 1993 does not include a dead tree. He relied on these definitions from the Macquarie Dictionary, third edition at pages 2253 and 1641:

"tree - 1. perennial plant having a permanent, weedy, self-supporting main stem or trunk, usually growing to a considerable height, and usually developing branches at some distance from the ground. 2. any of various shrubs, bushes, and herbaceous plants, as the banana, resembling a tree in form or size ..."

"plant - 1. any living organism which is characterised by the capacity to synthesise food from inorganic substances ..."

15. Mr Doherty also drew my attention to s.3(1) of the Native Vegetation Act 1991 which says, among other things:-

"'native vegetation' means a plant or plants of a species indigenous to South Australia including a plant or plants growing in or under waters of the sea but does not include -

(a) a plant or part of a plant that is dead unless the plant, or part of the plant, is of a class declared by regulation to be included in this definition; or

(b) ..."

16. Mr Doherty argued that subclause (a) of that definition was necessary only because the ordinary meaning of the word "plant" implies a living organism, and, therefore, when words such as "plant" or "tree" are used without such a subclause, it can be inferred that it was intended by those words to embrace only living organisms. According to Mr Doherty, without subclause (a) of the definition, the Native Vegetation Regulations could not deal with a dead plant as "native vegetation". There is another way of looking at subclause (a), however. In its terms, it uses the word "plant" to include a dead plant, thus impliedly acknowledging that a "plant" may be dead, yet still be a "plant".

17. Like the dictionary definitions, the Native Vegetation Act 1991 provision, though interesting, is not decisive.

18. It is necessary to ascertain the meaning of words in legislation in context by reference to the purpose of the legislation (Acts Interpretation Act 1915, s.22).

19. Tree-damaging activity in relation to significant trees became "development" with the coming into operation of the Development (Significant Trees) Amendment Act 2000 (assented to and came into operation 20 April 2000).

20. Resort may be had to the second reading speech to assist in ascertaining the legislature's purpose in circumstances such as these (see Burch v State of South Australia (1998) 71 SASR 12).

21. Hansard, Wednesday 12 April 2000 at page 902 - 904 records the second reading speech, within which the Minister stated at page 903:

"The Government has supported the Committee's recommendation because we recognise that trees form an important part of our urban environment, that they are highly valued by the community and play a major role in maintaining the livability and landscape character of our suburbs. In addition, trees provide habitat for native fauna, are often an important part of local biodiversity and form part of the Adelaide Plain's remnant native vegetation or rare and endangered species. All of these factors contribute to the significance of trees within the urban environment."

22. The purpose, then, of the significant tree legislation, was to create a system where a tree which, because of its large size, was highly likely to contribute to one or more of the following aspects of the urban environment, could not lawfully be damaged or removed without development approval:

• landscape character

• amenity

• habitat for native fauna

• local biodiversity

• remnant native vegetation

• rare or endangered species

23. There was considerable discussion, in evidence, about whether dead trees could constitute an attractive element in a landscape. Both Mr Hayter, an architect and landscape architect who gave evidence in the Council's case, and Mr Cameron, a landscape architect who gave evidence in the appellant's case, expressed the opinion that they could. I agree. Dead trees may be a prominent element in a landscape and may dominate the landscape character. They may also enhance visual amenity, even in an urban setting. There is no doubt, on the evidence, that in certain circumstances, dead trees may be an important habitat for native fauna. As such, they would contribute to local biodiversity. A dead tree may be remnant native vegetation. In short, the retention of a dead tree may serve any one of the purposes for which the significant tree legislation was passed.

24. There is nothing in the definition of "tree-damaging activity" which indicates that a dead tree was not intended to be encompassed. Indeed, it is difficult to see why "destruction" was included in subclause (a), with "killing", if dead trees were not in contemplation.

25. I determine that a dead tree can be a significant tree within the meaning of the Development Act 1993.

26. Approval is required under the Development Act for the removal of Tree 1 and Tree 5.

Question 2 - Does the application to remove Trees 1 and 5 warrant approval on the planning merits?

27. The site is within Residential Policy Area 28 - St Georges of the Residential Zone of the Burnside (City) Development Plan.

28. The development applied for is neither complying nor non-complying.

29. Mr Hutchison, a town planner, gave evidence in the appellant's case. He identified a four-sided locality embracing all of the allotments immediately abutting the site, the eastern half of Portrush Road between Austin Crescent and Angelsey Avenue, Austin Crescent and several allotments to the south of it, and two more allotments along each of Angelsey Avenue and Austin Crescent, east of the site. The Court viewed the site with the parties. Photographs from various vantage points were tendered. The visual effect of the trees, particularly Tree 5, extends further along Portrush Road than Mr Hutchison's locality. Otherwise, I accept his locality.

30. The provisions of the Development Plan relevant to the proposal were discussed at length in evidence. I have had regard to all of them. The Burnside (City) Development Plan strongly supports the retention of significant trees, particularly remnant and indigenous trees (Objective 19). In particular, Principle 49 of the Council Wide provisions in the Burnside (City) Development Plan states:-

"49. 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 Map Bur/1 (Overlay 4); or

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

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

(2) it is demonstrated that all reasonable alternative development options and design solutions have been considered to prevent substantial tree-damaging activity occurring.

(b) in any other case:

(i) the work is required for the removal of dead wood, treatment of disease, or is in the general interests of the health of the tree; or

(ii) the work is required due to unacceptable risk to public or private safety; or

(iii) the tree is within 20 metres of a residential, tourist accommodation or other habitable building and is a bushfire hazard within the Bushfire Prone Area shown on Map Bur/1 (Overlay 4); or

(iv) the tree is shown to be causing, or threatening to cause, substantial damage to a substantial building; or

(v) the aesthetic appearance and structural integrity of the tree is maintained; or

(vi) it is demonstrated that all reasonable alternative development options and design solutions have been considered to prevent substantial tree-damaging activities occurring."

31. Principle 42 provides:

"42. Where a significant tree:

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, 1972, as 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 of the landscape of the local area;

development should preserve those attributes."

32. These principles are to be read with Objective 19, and Objective 20, which say:

"Indigenous Vegetation

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

Significant Trees

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.

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 biodiversity, 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."

Habitat

33. None of the experts were able to say that Tree 1 or Tree 5 presently function as an important habitat for native fauna. I appreciate that single trees are not likely to perform this function in a significant way alone, but may be valuable as part of a group. In this case, though, it was not demonstrated that either Tree 1 or Tree 5 were performing the function at all. Their potential to do so in the future is uncertain. I do not consider on the evidence that their potential as habitat is such that retention should be required on that basis.

Risk

34. Mr Cameron gave evidence regarding his opinion that Tree 1 and Tree 5 should be removed on account of the risk that they pose to life and property. His approach to this issue was flawed. He did not assess that risk, in his statement, on the basis of the improvements on the site and the use of the site as it is at present. Rather, his assessment was predicated upon a subdivision of the land for residential purposes and the development of the land with dwellings. No such subdivision or development has been approved. The risk assessment should not assume that it will be. Mr Cameron believed that the risk posed by the dead trees was unpredictable. I accept that this is so. However, Mr Lodge's time frames for the shedding of branches of increasing size and the ultimate failure of the trunk is useful, though I accept that each prediction has a tolerance of some years. Mr Lodge (an arborist who gave evidence in the Council's case) said that the River Red Gums might lose minor scaffold branches from 6 years after the death of the trees and primary scaffold branches from 15 years after the death of the tree. Main trunk failure would be most unlikely to occur until more than 25 years after the death of the tree.

35. Live trees pose risks of much the same nature as dead trees. The difference is in the probability of the risk being realised, which will be affected substantially by circumstance. A large, live River Red Gum which overhangs several dwellings in an area prone to high wind will pose a greater risk than a dead River Red Gum in a large patch of scrub. In the present case, I am satisfied that, given the present condition and use of the site, the dead trees do not pose an unacceptable risk to public or private safety at present. In 15 or 20 years time, they may pose such a risk (though it is possible that they may not). It is in the nature of both the built and natural environment that change occurs, and risk varies accordingly.

36. Removal of the trees is not justified at present by reference to the likelihood of risk arising in 15 to 20 years.

Landscape Value

37. Opinions differed, in evidence, as to whether Tree 1 and Tree 5 enhance the visual amenity of the locality. This is a difficult question, and I have carefully considered the evidence in relation to it together with my impression from the view. Tree 5 is quite prominent within the locality, but it is viewed mostly with other large trees. The aesthetic benefit it provides to the locality is not of such an order that its retention should be required under Objective 20. Its prominence declines sharply beyond the locality. Tree 1 is less prominent within the locality, and its removal will affect views less than the removal of Tree 5. On balance, I find that the contribution that will be made to the visual amenity of the locality by Tree 1 and Tree 5 is not such as to warrant the retention of the trees.

38. I note that Principle 49(a)(1)(i) contemplates that a short life expectancy may justify the removal of a tree. By extrapolation, death must also.

39. The assessment of these considerations would have been different had the trees been alive; particularly Tree 5, which is a grand specimen. I have taken into account the very strong likelihood that Tree 5 is remnant indigenous vegetation.

Summary and Conclusion

• Dead trees are capable of being "significant trees" pursuant to the Development Act 1993.

• Neither Tree 1 nor Tree 5 functions as a habitat for native fauna.

• Presently, the risk to life and property posed by Tree 1 and Tree 5 is not such as to necessitate their removal under Principle 49.

• Neither Tree 5 nor Tree 1 presently provide an important aesthetic benefit such as to warrant their retention under Objective 20.

• Neither Tree 5 nor Tree 1 forms a notable visual element of the landscape of the local area in the sense meant by Principle 42.

41. Following the approach taken by this Court in Summers v City of Unley [2002] SAERDC 113 and Botting v City of Burnside [2003] SAERDC 7, the relevant Objectives and Principles of the Development Plan in relation to significant trees are to be read together, as statements of planning policy, and not as if they were sections of an Act of Parliament. The application of those Objectives and Principles in the present case leads me to the conclusion that the contribution of Tree 1 and Tree 5 as visual elements in the landscape of the locality is not sufficiently notable or important to warrant their retention.

42. The decision of the Council is quashed. The following order will be substituted:-

Development Application No. 180/00383/03/C1 is approved, subject to these conditions:-

1. The trees shown on the plan marked TAS 127-03-01 February 2003 and labelled Tree 8, Tree 9, Tree 10 and Tree 12 must be retained in situ and must be kept in good condition at all times.

2. In the event that any of Tree 8, Tree 9, Tree 10 or Tree 12 become diseased or die, the owner of the land in which they are situated must replace that diseased or dead tree with a tree of the same species. Should any replacement tree become diseased or die, it must be replaced with a tree of the same species such that 4 Sugar Gums are maintained in good condition at all times in the location of Trees 8, 9, 10 and 12.

3. In the event of any development work taking place on site, measures to protect Trees 8, 9, 10 and 12 must be taken to the reasonable satisfaction of the Council.

4. A total of twenty nesting boxes must be placed in the trees on the site and maintained at all times.