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Prestige Wholesale P/L v City of Burnside [2005] SAERDC 12 (2 March 2005)

Last Updated: 2 March 2005

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.

PRESTIGE WHOLESALE P/L v CITY OF BURNSIDE

Judgment of Her Honour Judge Trenorden

2 March 2005

LOCAL GOVERNMENT - TOWN PLANNING

Application to remove significant tree - lemon scented gum - Business (Glen Osmond Road) Zone - refused by Council - history of development approvals for subject land considered - characteristics and nature of significant tree - whether important contribution to character or amenity of local area - meaning of "local area" - whether it forms a notable visual element in landscape - whether causing substantial damage to building - meaning of "structure of value" - whether risk to public or private safety - appeal upheld - consent subject to landscaping condition.
Development Act 1993, referred to.
Summers v City of Unley [2002] EDLR 445; St Ann's College Inc v Corporation of the City of Adelaide & Renton [1999] SASC 479; Telstra Corporation Ltd v Corporation of the City of Mitcham [2001] SASC 166; (2001) 79 SASR 509; Frankham v Adelaide City Council [2004] SASC 263, applied.
City of Noarlunga v Fraser (1986) 61 LGRA 324, considered.

PRESTIGE WHOLESALE P/L v CITY OF BURNSIDE
[2005] SAERDC 12

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 The appellant, Prestige Wholesale Pty Ltd, owns land at 269-271 Glen Osmond Road, Frewville from which it or a subsidiary company or companies sells and services new and used "prestige" motor vehicles. This appeal is against the decision of the respondent made under the Development Act 1993 to refuse provisional development plan consent to the removal of a significant tree on part of the land.
2 Relevant information concerning the proposed development is set out hereunder:

Subject Land: Allotment 100 in Deposited Plan 60225 (CT 5881/135)

Application No.: 180/00861/03/C1

Date Application Received: 22 August 2003

Proposed Development: Removal of significant tree: Corymbia citriodora (formerly known as Eucalyptus citriodora)

Date of Decision: 11 June 2004

Relevant Development Plan: Burnside (City) consolidated 26 June 2003

Relevant Zone: Business (Glen Osmond Road) Zone

Background

3 The case for the respondent put some emphasis on the history of developments approved on the subject land, with a view to placing the proposal presently before the Court in context. Parts of that history are relevant to an understanding of the background to the application.
4 In September 1998, the appellant was granted provisional development plan consent, subject to eight conditions, for development on the western part of the subject land (the western site) described as "service trade premises (motor vehicles), motor repairs and associated office and parking". The condition numbered 2 addressed the retention of the subject tree in the following terms:

"The existing Eucalyptus citradora (sic) located in the south-eastern corner of the site is to be retained, protected and maintained in good health to the best endeavours of the owner of the site."

[The subject tree has been identified as Corymbia citriodora, formerly known as Eucalyptus citriodora and commonly known as Lemon Scented Gum: see evidence of M G Annells, J A E Whitehill and D Nicolle.]

5 The approved plan shows the tree, located approximately 1m from the eastern boundary of the western site, as being retained. The evidence of Mr Roach, the appellant’s architect, revealed that the plan which was approved had been amended prior to approval to indicate the retention of the tree, upon the advice of the respondent’s officers. This was not the preferred course for the appellant, but it accepted the condition.
6 Some two months later, in November 1998, the respondent granted development approval to a variation to the approved building. The plan thereby approved noted the retention of the "existing large Eucalypt".
7 On 3 October 2000 provisional development plan consent subject to conditions was granted to the appellant for the change of use of an existing shop to service trade premises. The subject site (the eastern site) was that adjoining the western site and the approved plan showed the retention of the existing shop, the western wall of which was depicted as being approximately 2.5m from the trunk of the tree.
8 On 12 December 2000, provisional development plan consent, subject to conditions was granted for development being "service trade premises (motor vehicles showroom) and associated car parking". The plans reveal that a showroom was approved for the eastern site, in place of the proposal using the existing shops for which consent had been earlier granted. The tree continued to be shown on the plan which also depicted the western wall of the showroom as being constructed on the same alignment as the western wall of the existing shop shown in the earlier approval.
9 On 1 May 2001 the respondent granted provisional development plan consent subject to conditions, to "service trade premises (motor vehicle display area) and associated car parking". In place of the existing shops and showroom on the eastern site, to which consent had been previously granted, the plan now approved showed a brick paved vehicle display area on the eastern site, with the western boundary of that paved area extending as far as the eastern wall of the Alfa Romeo showroom and its prolongation towards the boundary of the subject land with Glen Osmond Road. Thus, the approved plan showed the paved vehicle display area extending to within approximately 1m of the base of the tree and therefore under the canopy of the tree.
10 By its decision on 2 April 2002 the respondent granted provisional development plan consent to development being "enclosure of vehicle showroom". The plan thereby approved continued to show the brick paved vehicle display area on the eastern site, to within approximately 1m of the trunk of the tree.
11 There is no evidence that in respect of any of the applications which gave rise to the abovementioned consents or approvals, with the exception of the first (September 1998), that any consideration was given to the impact of the proposed development upon the retained tree, the impact of the tree on the development or the consequences of development including the parking of motor vehicles under the canopy of the tree.

The Significant Tree

12 The development proposed is the removal of the tree from the subject land. Since April 2000 the removal of a tree within the class declared to be "significant" by the Development Act and Regulations has been classed as development and therefore requires approval under that Act.
13 There is no doubt that the subject tree - Corymbia citriodora – is significant as defined. The dimensions of the tree were variously estimated or measured as follows:

Witness	Draper	Whitehill	Nicolle	Heseltine
Trunk circumference at 1m above ground	> 2m	2.06m	2.09m	-
Height	24-25m	18m	17m	17m
Canopy spread	> 12m	11m	10m	> 10m
Age	Approx. 35-40 yrs	-	30-60 yrs	-

14 The canopy of the tree extends on the subject land across a driveway and an area used for the parking of used-vehicle stock, as well as across part of the footpath on the northern side of Glen Osmond Road.
15 The subject tree is not remnant vegetation. Corymbia citriodora is not native to South Australia; its natural habitat being central Queensland extending to the Atherton Tableland and south – perhaps into northern New South Wales. The species, which belongs to the same family as the Eucalyptus species, was extensively planted in Adelaide, especially in the 1960s and 70s, in public areas and in private gardens within residential properties.
16 There was general agreement amongst the experts that the species is deep rooted and has the potential to drop "branchlets" and minor branches from time to time with the occasional drop of moderate branches and branch failure in extreme storm or wind conditions. Expert witness Mr Dean Nicolle described branchlets as having the thickness of a finger, minor branches as up to 80-100mm in diameter, and moderate branches as having diameters of 100-150mm. Stress, particularly from lack of moisture, will also result in branch shedding.
17 The experts acknowledge that not all trees of the species Corymbia citriodora have the same characteristics with respect to the propensity for branchlet, branch and limb drop. The following exchange between the bench and the witness Dean Nicolle summarised the propensity of the subject tree (transcript pp192-194):

"Q. I understood you to say a lemon-scented gum is not one of the worst branch droppers in the general gum tree family. You can expect them to drop branches in stormy weather, as a general rule, and you might expect, from time to time, in non-stormy weather for them to drop the branchlets, the ones that are as thin as your finger.

A. The more minor-type branches, the minor material.

Q. But beyond that, as a general rule, you don’t expect lemon-scented gums to be dropping branches. That’s as I understood your evidence.

A. That’s pretty right, yes.

Q. So does it follow then that if a lemon-scented gum drops branches from time to time in calm, hot weather, that it’s stressed.

A. No.

Q. So it could come back to the last point, it could just be that it’s the nature of that particular tree.

A. That’s exactly right.

Q. In the case of this tree, the evidence is that it has dropped maybe moderate branches, on your definition, or maybe something approaching moderate branches but certainly bigger than the stuff you expect it to drop from time to time. Does it follow that this particular tree is one of those rare ones that will drop branches from time to time, regardless of the weather, regardless of stress.

A. No, I wouldn’t put it as an exceptional tree. I would put it in the middle of the range for lemon-scented gums. In some individuals, there is almost no history of any branch failure except for the very small diameter stuff. Other lemon-scented gums you see have relatively large scars all over the branches or all over the trunk, where they have dropped many branches in the past. So this one isn’t particularly exceptional and if it has dropped, you know, two or three or however many larger branches in the past, it is likely that that will continue to be ongoing throughout the life of the tree, although it’s more likely to occur in high wind conditions. The particularly large branch scar on the tree, I think it was 150mm in diameter – I am not sure there was any evidence of when that branch fell off but I would be very surprised if that branch came down in calm weather.

Q. You acknowledged that can happen in lemon-scented gums.

A. It can but a branch of that size is rare to come down in calm weather.

Q. In the end, we have got a tree that, because of general lemon-scented gum characteristics, but also because of the constitution peculiar to it, is likely to drop moderate to semi-moderate branches or moderate to slightly less than moderate branches from time to time, regardless of the weather.

A. Yes.

Q. But it’s not the extreme end of the scale and nor it is at the other end of the scale.

A. That’s right."

18 Apart from its propensity to drop material, the experts agreed that the tree generally is in good health, although not growing in ideal conditions.
19 It was not in dispute that the subject tree:

• has a 150mm scar exhibiting moderate sized branch failure some years ago;
• exhibits evidence of ongoing minor branch failure;
• shows past pruning of the canopy.

20 The pruning of the tree, alleged to have been carried out in 1999 on the evidence of Mr Annells which was not contradicted, appears to have been inappropriate and inadequate to minimise the potential for limb shear in severe wind conditions. In his opinion with which Messrs Whitehill and Nicolle agreed, this pruning has tended to promote terminal extension growth leading to a "lion-tailing" effect, with a large clump of foliage at the end of a lateral branch which keeps lengthening. The undisputed evidence is that this pruning practice results in long, end-weighted branches and therefore the potential for branch failure in severe wind conditions. It also restricts the ability to perform remedial pruning. The result of attempts to manage this consequence lead to either ineffective pruning, or extremely severe pruning resulting in an ugly tree.
21 It was acknowledged by all who were qualified to give expert opinions in relation to the tree, that some pruning is necessary and in addition, because the tree represents some risk to personal safety (and the experts disagreed on the level of risk) there is the need for an engineering solution to protect persons and property from material likely to fall from the tree in the future.
22 I have concluded from the evidence, that if alternative solutions are not available to minimise safety risks for members of the public and employees of the appellant and its businesses, then severe pruning of the tree would be the next best course, to reduce the weight at the end of the lateral branches and thus minimise the prospect of moderate to large branch drop in severe wind conditions and possibly at other times. I have come to this conclusion having regard to the nature of this particular tree.
23 I have also concluded that the tree itself is unlikely to fail. Despite its growing conditions, it is in very good health.

The Issues

24 The appropriate approach to the assessment of this development, that is the removal of a significant tree, is that set out in Summers v City of Unley [2002] EDLR 445.
25 The zone provisions are of no great assistance. They identify the zone as one which should accommodate "offices, commercial and residential development of a low traffic-generating nature with limited vehicle movements which do not disrupt the free flow of traffic on Glen Osmond Road or generate unduly large traffic volumes in residential streets" (Objective 1).
26 They also identify Glen Osmond Road as being an important thoroughfare for interstate traffic and residents of the Adelaide Hills, and as carrying high traffic volumes. The character and amenity of the streetscape therefore assumes some importance, as does the safe and convenient movement of vehicles.
27 The proposed development is neither of a complying nor non-complying kind in the zone.
28 The Council Wide provisions speak specifically of the conservation of significant trees which provide important aesthetic and environmental benefits (Objective 20).
29 The initial issues to be determined in this appeal are whether the tree:

• makes an important contribution to the character or amenity of the local area; or
• forms a notable visual element to the landscape of the local area.

30 It was not in dispute that these are the only relevant issues arising out of Council Wide Principle of Development Control 42. If these issues are determined in the negative, it is not necessary to go further.
31 The issues which arise out of a consideration of Principle of Development Control 48, to be determined in this matter if the tree is found to have either of the above characteristics, are whether the tree:

• represents an unacceptable risk to public or private safety; or
• 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.

The Evidence of the Landscape Architects

32 Both parties called landscape architects for the benefit of the Court. In addition, other witnesses gave the Court the benefit of their opinions on these issues. In some cases it was their subjective opinion which was of no greater weight and benefit to the Court than that of any other passer-by.
33 The evidence of the landscape architects can be summarised as follows:

Mr Hayter:

• The tree is out of scale with the building on the subject land.
• While the tree is prominent in the locality, it does not make a major contribution to the character or amenity of the local area.
• While the tree is a strong visual element in the landscape it is not a notable visual element.

Mr Heseltine:

• The tree is part of the streetscape of Glen Osmond Road.
• It contributes to a sense of connectivity with the hills or hills face.
• It provides an important aesthetic benefit.
• It makes an important contribution to the character of the local area.
• It forms a notable visual element of the landscape.
• The tree most notably contributes to the amenity of the area of the corner of Conyngham Street and Glen Osmond Road.

34 I intend now to consider their respective evidence in some greater detail.
35 First, it is to be noted that neither of the witnesses distinguished between "local area" as used in Principle 42 and "locality". Expert planner Mr Rumsby, when asked by the bench, responded that he had interpreted "local area" in the Plan as having the same meaning as "locality". The Development Plan uses both terms in its provisions, but the term "local area" is used only in Council Wide Principles of Development Control 31, 38 and 42 and Table Bur/2. Principle 31 addresses selection of plant species for landscaping, Principle 38 addresses conservation and enhancement of existing indigenous vegetation and Principle 42 addresses the preservation of significant trees with specified attributes. Table Bur/2 is the schedule of local heritage places and the term "local area" appears only in a direct quote from the relevant section of the Development Act.
36 The source of the term "local area" in Principle 42 appears to be the Development Act. Paragraphs (a) to (f) of Principle 42 are virtually a copy of placita (i) to (vi) of Section 23(4a)(a) of the Development Act. The phrase "indigenous to the local area" that appears in s23(4a)(a)(ii) is repeated in Principles 31 and 38 with respect to vegetation species (31 and 38) and fauna (38). The amendments to the Development Act with respect to significant trees came into operation on 20 April 2000, which was the same time as the Draft Ministerial Plan Amendment Report. The current provisions of the Development Plan with respect to significant trees include the provisions of the Plan Amendment Report gazetted on 21 December 2000. It appears that the same terminology was used in both s23(4a) and in Principle 42.
37 The Supreme Court has cautioned against interpreting the provisions of the Development Plan as if it is a statute: (St Ann’s College Inc v Corporation of the City of Adelaide & Renton [1999] SASC 479; Telstra Corporation Ltd v Corporation of the City of Mitcham [2001] SASC 166; (2001) 79 SASR 509; Frankham v Adelaide City Council [2004] SASC 263).
38 I have concluded that "local area" is likely to mean the same as "locality", which is interpreted in a planning sense generally to mean the extent of the area likely to be impacted upon by the proposed development. It may vary, even with respect to development proposed from time to time on the same land, according to the nature of the development and particularly its impacts external to the land. "Local area" is used only in the context of indigenous vegetation and fauna, remnant vegetation and landscape. The words might be coterminous with "locality". This has been assumed in every judgment involving an application to remove a significant tree, and I have concluded that this is most likely.
39 Landscape architect Mr Hayter described a locality in his evidence. He asserted that the subject tree "does not make an important contribution to the character or amenity of the local area", but without defining "local area", and then went on to say "the subject tree is only visible within its immediate locality", seemingly using the terms "local area" and "locality" in contradistinction. Later, Mr Hayter stated "the subject tree is a prominent visual element within the landscape of the local area". His evidence evinces some confusion, on his part, about whether there is a distinction in meaning between the two terms.
40 Landscape architect Mr Heseltine did not use the term "locality", but had prepared a Location Plan, identifying the "approximate extent of zone of visual influence" of the tree. He had conducted a "‘serial vision’ analysis to identify whether the tree plays an important role within the contextual landscape". He placed significance on his view that the tree, being a Eucalyptus species, establishes a connectivity with the hills or hills face, being "an important visual link" with the hills and part of and reinforcing the green corridor effect along Glen Osmond Road. I do not discount his opinion because the subject tree is not a species of Eucalypt; it is closely related to the Eucalyptus species and was formerly considered to be of the Eucalyptus genus.
41 It is clear that Mr Heseltine has experience in undertaking visual assessment exercises to capture the "sense of place" in order to determine whether development or additions to a landscape are an appropriate response to the inherent characteristics of the existing landscape, or the sense of place.
42 In essence, Mr Heseltine has used the serial vision analysis to describe the existing sense of place and connectivity along Glen Osmond Road, of which the tree is a part, and concluded from that description that the tree forms a notable visual element of the landscape. In cross examination Mr Heseltine conceded that he had not undertaken a comparative analysis of the landscape with the subject tree absent from the picture, but of course that was the context within which he had undertaken the analysis – to determine whether the proposed development, namely the removal of the tree, would be in keeping with the existing sense of place on this part of Glen Osmond Road and so contribute importantly to the character of the local area.
43 It is difficult to elicit the meaning of the words "form a notable visual element to [sic] the landscape of the local area". On one view, every significant tree, as defined, would fit this category, because it will generally constitute an obvious visual element in the landscape by its size alone. However, as the Court said in Summers v City of Unley [2002] EDLR 445 at 456 (paragraph 43):

"They may be a notable element, too, from one or more parts of the local area, in that by their height, they are noticeable and therefore, noteworthy or notable. However, if the trees do not make an important contribution to the character, which logically includes a consideration of the interplay between the elements of an area, including landscape, physical and social, should they be retained, simply because they are a notable element, visually, in the local area? I think not. An item can be a notable element in the landscape in both negative and positive senses. It would be inconsistent with Objective 54 to retain a significant tree on the sole ground that it forms a notable element in the landscape because it presents a negative aesthetic element or otherwise stands out as a jarring element in the generally uniform landscape character of the local area."

44 Unfortunately, Mr Hayter’s written statement was akin to many of those of the planning witnesses who come before the Court. He chose to recite what he considered to be relevant provisions of the Development Plan and then commented upon whether the proposed removal of the tree met these provisions, concluding that (as if his role was that of decision maker):

"The removal of the subject tree is supported by many of the provisions of the Burnside (City) Development Plan".

45 Mr Hayter commented in some detail on Principle of Development Control 38, which is not relevant to the matter before the Court. By its terms, Principle of Development Control 38 does not speak to the proposed development (the removal of the subject significant tree), as no vegetation is likely to be affected by the removal of the tree.
46 His statement was helpful in identifying the areas of visibility of the subject tree, but generally it lacked analysis.
47 I prefer the evidence of Mr Heseltine who had attempted to analyse the place of the subject tree within the landscape. He was incorrect in some of the detail, including his claim that the tree "frames the CBD skyline and in particular the Santos building" and therefore in his conclusion that the tree heralds "impending arrival and entry into the city". I find that this was too bold a claim. I accept his description of Glen Osmond Road as presenting generally, a tree-lined vista, although it is clear upon closer inspection, that there are gaps in the continuity of the trees in the streetscape. Nonetheless, I accept Mr Heseltine’s conclusion that the tree forms a notable visual element of the landscape, even though there is clearly a limited area in which the tree can be seen.
48 I have concluded that the subject tree at least:

• makes an important contribution to the character of the local area; and
• forms a notable visual element of the landscape of the local area.

The Engineering Evidence

49 The distance between the tree and the building on the subject land is approximately 3.5m. There was evidence that some lateral roots of the tree, on the northern side, were cut during the construction of the building.
50 The soil on the subject land is highly reactive, as agreed by the engineers, who also agreed that there are presently no signs of damage to the building on the land that are attributable to the presence of the tree.
51 As I have indicated above, approval for the buildings on the land was sought and obtained in stages. Construction was also carried out in stages. In effect, the basement and ground floor of the building originally constructed on the western site, were extended to the east, the extension commencing at a distance of 3m to 4m from the subject tree. As the preferred method of extension had the consequence of reducing the structural integrity of the existing concrete wall (of the western building), another method was followed. The concrete walls and floors of the western and eastern stages were dowelled together with butted straight joints. The consequence of the method used is that potentially there is weakness in the joint of the basement wall junction in the proximity of the subject tree, according to architect Mr Rod Roach.
52 Mr Paul Gunson, the appellant’s expert engineer, was of the opinion that in the future, as a result of the drying of the soil due to the presence of the roots of the tree, there is a potential for settlement of the foundation soils which could lead to damage to the building in this way: the construction joint might form a hinge which as a result of the reinforcing bars at the bottom failing, would open up from the bottom and eventually cause the superstructure at the top to be pushed together with resultant damage to it. There was no evidence as to whether the joint was designed to withstand the effects of drying of the soil at a depth of greater than 4m; that depth being what was required by the relevant standard at the time. There was evidence that it was well known at the time that the soil-drying effects of trees in highly reactive soils can extend to a depth far greater than 4m. In the absence of evidence on the point, it is only reasonable to assume that the design was in accordance with the required standard at the time, taking into account the presence of the tree.
53 Thus, I accept that there is a possibility (but not a probability) of the reinforcing bars in the construction joint failing, with consequences for the building, if the tree remains. I cannot conclude that the subject tree has been shown to be causing or threatening to cause, substantial damage to the building. This has not been made out.
54 There are methods available to insert moisture into the soil below the footings with a view to maintaining an equilibrium such that the joint would not be affected. However, there does not appear to be much science as to when and how much water should be inserted to achieve this consequence and in any event it would be inappropriate to proceed until the evidence was there that it was necessary; that is, when there were signs that the joint had failed. It would then require both the monitoring of moisture levels in the soil at the requisite depth and the application of water through tubes to maintain an equilibrium of moisture in the soil. It would be an onerous process, without a guarantee of success. I have concluded that this would not be a reasonable measure to minimise the threat of damage to the superstructure if the joint failed due to the drying out of the soil.
55 On the other hand, if the tree is removed, there might also be consequences for the building in the vicinity of the tree. With less moisture being removed from the soil by the presence of the subject tree, there could be resultant swelling of the soil, causing the building to heave, it having been designed, it is assumed, in the context of the tree being present. However, I cannot be concerned about these consequences. Given the appellant is seeking consent to remove the tree, the consequences for its buildings in the event of consent being granted, are a matter for the appellant company, and the Development Plan does not require me to consider same.

The Risk to Public or Private Safety

56 It is clear that the presence of the tree gives rise to a risk to the safety of those employees of the appellant who may be required to move about under the canopy of the tree, and the members of the public who either may be visiting the appellant’s premises or walking past the premises, on the public footpath adjoining the subject site.
57 That there is a risk is evident from the evidence of the arborists, having regard to the nature of this particular tree. Whether the risk is unacceptable depends in this case not on tree failure, but of the likelihood of reasonably large branches sufficient to cause injury, falling from the tree. I am satisfied that a risk of this nature exists both in severe wind conditions and at other times, because of the species of tree and this tree’s known propensity to drop up to and including moderate-sized branches from time to time.
58 Consideration was given to the erection of a sail or sails extending from the building beneath the canopy of the tree, the purpose being to catch or deflect any branchlets, branches or limbs that might fall from the tree in the future, thus avoiding the risk of injury to persons or damage to motor vehicles. This was a suggestion made by the respondent’s officers. The architect’s evidence was that the addition of sail structures and their supports "would dramatically and negatively affect the architectural integrity of the building". His evidence continued thus:

"The very nature of a tension shade structure is organic and would be out of character with the simple rectangular lines of the existing building."

59 To be sufficiently adequate, the sail structure would have to extend under most of the canopy of the tree and be supported by steel posts or columns in addition to any support or anchor point provided by the building with the sail sufficiently tensioned to take the weight of branches of the tree. Accordingly, there would need to be more than one sail structure. I do not accept that the provision of sails is a reasonable measure to prevent risk to private or public safety, particularly because of the consequential visual impact of them, under the canopy, at the front of the building.
60 It was submitted by Mr Hilditch for the respondent, that there are other reasonable measures that could be taken to effectively minimise the risk to public or private safety. He submitted that the appellant could rearrange the layout of its site, including not using any part of the canopy area for the display of motor vehicles, so as to close off the under-canopy area to the public. I agree that some measures could be taken in this regard. However, the flaw in this approach is threefold:

• part of the under-canopy area is a thoroughfare between the building and the tree trunk, from one part of the site to the other;
• part is approved for the display of motor vehicles for sale; and
• this measure would not provide protection for those members of the public who may be walking along the public footpath when the tree sheds a branch.

61 In the circumstances, the measure would not be reasonable and could not be effective across all affected areas.
62 In addition, at all times, the respondent, as the relevant authority considering the applications made under the Development Act which resulted in consents, was aware or should have been aware, by the notation on the plans, of the location of the subject tree. It perhaps does not sit well for the relevant authority to now say in effect "you cannot now use all of that area in accordance with your consent".
63 The only other option to protect against unacceptable risk would see the tree so heavily pruned that it would become ugly (at least in the short term – although there was no evidence on the length of the "recovery" period) and consequently have a detrimental impact on the existing amenity of the subject land and at least part of the locality. There was general agreement on the part of the relevant witnesses that if this was the only measure available, it would be better to remove the tree. I find that the requisite heavy pruning of the tree would not be a reasonable measure.
64 I find that there is no reasonable measure that could be taken that would be effective to make acceptable the risk to the public, and the employees of the appellant.

The Meaning of "Structure" in Principle of Development Control 48

65 It was suggested that the term "structure" includes motor vehicle. Mr Henry submitted that the Court should look at the intent of Principle of Development Control 48, which he said, included excepting significant trees from preservation when substantial damage was being threatened to any valuable object by the tree, and reasonable measures and remedial treatments to prevent such damage have been determined to be ineffective. Perhaps the Principle was intended to exempt from preservation and so not bar the destruction of, those trees that presented an unacceptable risk to the safety of persons, buildings or any other valuable object. That may have been the intent. I consider that the answer is not to be determined by reference to City of Noarlunga v Fraser (1986) 61 LGRA 324, which turned on whether the construction of a yacht on Mr Fraser’s land was the construction of a structure and thus development governed by the Planning Act 1982. In any event, given my findings, I do not need to determine the meaning of "structure" as used in Principle of Development Control 48.

Conclusion

66 The subject tree is a prominent visual element in the streetscape and forms a notable visual element in the landscape of the local area. It makes an important contribution to the character of the local area. The tree is in very good health. It is therefore, with reluctance, that I am prepared to uphold the appeal and reverse the decision of the respondent, and so allow the removal of the tree. However, that must follow from my findings upon the evidence that the tree represents an unacceptable risk to public and private safety, and there are no reasonable measures that would be effective to reduce the risk to one that is acceptable.
67 In the event that I reached this conclusion, the parties joined in asking that I impose a condition on the consent that the tree be replaced by the landscaping proposed in the Roach plan produced at p4 of Exhibit R1.
68 I am prepared to make orders accordingly. I will hear the parties as to the precise terms thereof.

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1	The appellant, Prestige Wholesale Pty Ltd, owns land at 269-271 Glen Osmond Road, Frewville from which it or a subsidiary company or companies sells and services new and used "prestige" motor vehicles. This appeal is against the decision of the respondent made under the Development Act 1993 to refuse provisional development plan consent to the removal of a significant tree on part of the land.
2	Relevant information concerning the proposed development is set out hereunder:

3	The case for the respondent put some emphasis on the history of developments approved on the subject land, with a view to placing the proposal presently before the Court in context. Parts of that history are relevant to an understanding of the background to the application.
4	In September 1998, the appellant was granted provisional development plan consent, subject to eight conditions, for development on the western part of the subject land (the western site) described as "service trade premises (motor vehicles), motor repairs and associated office and parking". The condition numbered 2 addressed the retention of the subject tree in the following terms:

5	The approved plan shows the tree, located approximately 1m from the eastern boundary of the western site, as being retained. The evidence of Mr Roach, the appellant’s architect, revealed that the plan which was approved had been amended prior to approval to indicate the retention of the tree, upon the advice of the respondent’s officers. This was not the preferred course for the appellant, but it accepted the condition.
6	Some two months later, in November 1998, the respondent granted development approval to a variation to the approved building. The plan thereby approved noted the retention of the "existing large Eucalypt".
7	On 3 October 2000 provisional development plan consent subject to conditions was granted to the appellant for the change of use of an existing shop to service trade premises. The subject site (the eastern site) was that adjoining the western site and the approved plan showed the retention of the existing shop, the western wall of which was depicted as being approximately 2.5m from the trunk of the tree.
8	On 12 December 2000, provisional development plan consent, subject to conditions was granted for development being "service trade premises (motor vehicles showroom) and associated car parking". The plans reveal that a showroom was approved for the eastern site, in place of the proposal using the existing shops for which consent had been earlier granted. The tree continued to be shown on the plan which also depicted the western wall of the showroom as being constructed on the same alignment as the western wall of the existing shop shown in the earlier approval.
9	On 1 May 2001 the respondent granted provisional development plan consent subject to conditions, to "service trade premises (motor vehicle display area) and associated car parking". In place of the existing shops and showroom on the eastern site, to which consent had been previously granted, the plan now approved showed a brick paved vehicle display area on the eastern site, with the western boundary of that paved area extending as far as the eastern wall of the Alfa Romeo showroom and its prolongation towards the boundary of the subject land with Glen Osmond Road. Thus, the approved plan showed the paved vehicle display area extending to within approximately 1m of the base of the tree and therefore under the canopy of the tree.
10	By its decision on 2 April 2002 the respondent granted provisional development plan consent to development being "enclosure of vehicle showroom". The plan thereby approved continued to show the brick paved vehicle display area on the eastern site, to within approximately 1m of the trunk of the tree.
11	There is no evidence that in respect of any of the applications which gave rise to the abovementioned consents or approvals, with the exception of the first (September 1998), that any consideration was given to the impact of the proposed development upon the retained tree, the impact of the tree on the development or the consequences of development including the parking of motor vehicles under the canopy of the tree.

12	The development proposed is the removal of the tree from the subject land. Since April 2000 the removal of a tree within the class declared to be "significant" by the Development Act and Regulations has been classed as development and therefore requires approval under that Act.
13	There is no doubt that the subject tree - Corymbia citriodora – is significant as defined. The dimensions of the tree were variously estimated or measured as follows:

14	The canopy of the tree extends on the subject land across a driveway and an area used for the parking of used-vehicle stock, as well as across part of the footpath on the northern side of Glen Osmond Road.
15	The subject tree is not remnant vegetation. Corymbia citriodora is not native to South Australia; its natural habitat being central Queensland extending to the Atherton Tableland and south – perhaps into northern New South Wales. The species, which belongs to the same family as the Eucalyptus species, was extensively planted in Adelaide, especially in the 1960s and 70s, in public areas and in private gardens within residential properties.
16	There was general agreement amongst the experts that the species is deep rooted and has the potential to drop "branchlets" and minor branches from time to time with the occasional drop of moderate branches and branch failure in extreme storm or wind conditions. Expert witness Mr Dean Nicolle described branchlets as having the thickness of a finger, minor branches as up to 80-100mm in diameter, and moderate branches as having diameters of 100-150mm. Stress, particularly from lack of moisture, will also result in branch shedding.
17	The experts acknowledge that not all trees of the species Corymbia citriodora have the same characteristics with respect to the propensity for branchlet, branch and limb drop. The following exchange between the bench and the witness Dean Nicolle summarised the propensity of the subject tree (transcript pp192-194):

18	Apart from its propensity to drop material, the experts agreed that the tree generally is in good health, although not growing in ideal conditions.
19	It was not in dispute that the subject tree:

20	The pruning of the tree, alleged to have been carried out in 1999 on the evidence of Mr Annells which was not contradicted, appears to have been inappropriate and inadequate to minimise the potential for limb shear in severe wind conditions. In his opinion with which Messrs Whitehill and Nicolle agreed, this pruning has tended to promote terminal extension growth leading to a "lion-tailing" effect, with a large clump of foliage at the end of a lateral branch which keeps lengthening. The undisputed evidence is that this pruning practice results in long, end-weighted branches and therefore the potential for branch failure in severe wind conditions. It also restricts the ability to perform remedial pruning. The result of attempts to manage this consequence lead to either ineffective pruning, or extremely severe pruning resulting in an ugly tree.
21	It was acknowledged by all who were qualified to give expert opinions in relation to the tree, that some pruning is necessary and in addition, because the tree represents some risk to personal safety (and the experts disagreed on the level of risk) there is the need for an engineering solution to protect persons and property from material likely to fall from the tree in the future.
22	I have concluded from the evidence, that if alternative solutions are not available to minimise safety risks for members of the public and employees of the appellant and its businesses, then severe pruning of the tree would be the next best course, to reduce the weight at the end of the lateral branches and thus minimise the prospect of moderate to large branch drop in severe wind conditions and possibly at other times. I have come to this conclusion having regard to the nature of this particular tree.
23	I have also concluded that the tree itself is unlikely to fail. Despite its growing conditions, it is in very good health.

24	The appropriate approach to the assessment of this development, that is the removal of a significant tree, is that set out in Summers v City of Unley [2002] EDLR 445.
25	The zone provisions are of no great assistance. They identify the zone as one which should accommodate "offices, commercial and residential development of a low traffic-generating nature with limited vehicle movements which do not disrupt the free flow of traffic on Glen Osmond Road or generate unduly large traffic volumes in residential streets" (Objective 1).
26	They also identify Glen Osmond Road as being an important thoroughfare for interstate traffic and residents of the Adelaide Hills, and as carrying high traffic volumes. The character and amenity of the streetscape therefore assumes some importance, as does the safe and convenient movement of vehicles.
27	The proposed development is neither of a complying nor non-complying kind in the zone.
28	The Council Wide provisions speak specifically of the conservation of significant trees which provide important aesthetic and environmental benefits (Objective 20).
29	The initial issues to be determined in this appeal are whether the tree:

30	It was not in dispute that these are the only relevant issues arising out of Council Wide Principle of Development Control 42. If these issues are determined in the negative, it is not necessary to go further.
31	The issues which arise out of a consideration of Principle of Development Control 48, to be determined in this matter if the tree is found to have either of the above characteristics, are whether the tree:

32	Both parties called landscape architects for the benefit of the Court. In addition, other witnesses gave the Court the benefit of their opinions on these issues. In some cases it was their subjective opinion which was of no greater weight and benefit to the Court than that of any other passer-by.
33	The evidence of the landscape architects can be summarised as follows:

34	I intend now to consider their respective evidence in some greater detail.
35	First, it is to be noted that neither of the witnesses distinguished between "local area" as used in Principle 42 and "locality". Expert planner Mr Rumsby, when asked by the bench, responded that he had interpreted "local area" in the Plan as having the same meaning as "locality". The Development Plan uses both terms in its provisions, but the term "local area" is used only in Council Wide Principles of Development Control 31, 38 and 42 and Table Bur/2. Principle 31 addresses selection of plant species for landscaping, Principle 38 addresses conservation and enhancement of existing indigenous vegetation and Principle 42 addresses the preservation of significant trees with specified attributes. Table Bur/2 is the schedule of local heritage places and the term "local area" appears only in a direct quote from the relevant section of the Development Act.
36	The source of the term "local area" in Principle 42 appears to be the Development Act. Paragraphs (a) to (f) of Principle 42 are virtually a copy of placita (i) to (vi) of Section 23(4a)(a) of the Development Act. The phrase "indigenous to the local area" that appears in s23(4a)(a)(ii) is repeated in Principles 31 and 38 with respect to vegetation species (31 and 38) and fauna (38). The amendments to the Development Act with respect to significant trees came into operation on 20 April 2000, which was the same time as the Draft Ministerial Plan Amendment Report. The current provisions of the Development Plan with respect to significant trees include the provisions of the Plan Amendment Report gazetted on 21 December 2000. It appears that the same terminology was used in both s23(4a) and in Principle 42.
37	The Supreme Court has cautioned against interpreting the provisions of the Development Plan as if it is a statute: (St Ann’s College Inc v Corporation of the City of Adelaide & Renton [1999] SASC 479; Telstra Corporation Ltd v Corporation of the City of Mitcham [2001] SASC 166; (2001) 79 SASR 509; Frankham v Adelaide City Council [2004] SASC 263).
38	I have concluded that "local area" is likely to mean the same as "locality", which is interpreted in a planning sense generally to mean the extent of the area likely to be impacted upon by the proposed development. It may vary, even with respect to development proposed from time to time on the same land, according to the nature of the development and particularly its impacts external to the land. "Local area" is used only in the context of indigenous vegetation and fauna, remnant vegetation and landscape. The words might be coterminous with "locality". This has been assumed in every judgment involving an application to remove a significant tree, and I have concluded that this is most likely.
39	Landscape architect Mr Hayter described a locality in his evidence. He asserted that the subject tree "does not make an important contribution to the character or amenity of the local area", but without defining "local area", and then went on to say "the subject tree is only visible within its immediate locality", seemingly using the terms "local area" and "locality" in contradistinction. Later, Mr Hayter stated "the subject tree is a prominent visual element within the landscape of the local area". His evidence evinces some confusion, on his part, about whether there is a distinction in meaning between the two terms.
40	Landscape architect Mr Heseltine did not use the term "locality", but had prepared a Location Plan, identifying the "approximate extent of zone of visual influence" of the tree. He had conducted a "‘serial vision’ analysis to identify whether the tree plays an important role within the contextual landscape". He placed significance on his view that the tree, being a Eucalyptus species, establishes a connectivity with the hills or hills face, being "an important visual link" with the hills and part of and reinforcing the green corridor effect along Glen Osmond Road. I do not discount his opinion because the subject tree is not a species of Eucalypt; it is closely related to the Eucalyptus species and was formerly considered to be of the Eucalyptus genus.
41	It is clear that Mr Heseltine has experience in undertaking visual assessment exercises to capture the "sense of place" in order to determine whether development or additions to a landscape are an appropriate response to the inherent characteristics of the existing landscape, or the sense of place.
42	In essence, Mr Heseltine has used the serial vision analysis to describe the existing sense of place and connectivity along Glen Osmond Road, of which the tree is a part, and concluded from that description that the tree forms a notable visual element of the landscape. In cross examination Mr Heseltine conceded that he had not undertaken a comparative analysis of the landscape with the subject tree absent from the picture, but of course that was the context within which he had undertaken the analysis – to determine whether the proposed development, namely the removal of the tree, would be in keeping with the existing sense of place on this part of Glen Osmond Road and so contribute importantly to the character of the local area.
43	It is difficult to elicit the meaning of the words "form a notable visual element to [sic] the landscape of the local area". On one view, every significant tree, as defined, would fit this category, because it will generally constitute an obvious visual element in the landscape by its size alone. However, as the Court said in Summers v City of Unley [2002] EDLR 445 at 456 (paragraph 43):

45	Mr Hayter commented in some detail on Principle of Development Control 38, which is not relevant to the matter before the Court. By its terms, Principle of Development Control 38 does not speak to the proposed development (the removal of the subject significant tree), as no vegetation is likely to be affected by the removal of the tree.
46	His statement was helpful in identifying the areas of visibility of the subject tree, but generally it lacked analysis.
47	I prefer the evidence of Mr Heseltine who had attempted to analyse the place of the subject tree within the landscape. He was incorrect in some of the detail, including his claim that the tree "frames the CBD skyline and in particular the Santos building" and therefore in his conclusion that the tree heralds "impending arrival and entry into the city". I find that this was too bold a claim. I accept his description of Glen Osmond Road as presenting generally, a tree-lined vista, although it is clear upon closer inspection, that there are gaps in the continuity of the trees in the streetscape. Nonetheless, I accept Mr Heseltine’s conclusion that the tree forms a notable visual element of the landscape, even though there is clearly a limited area in which the tree can be seen.
48	I have concluded that the subject tree at least:

49	The distance between the tree and the building on the subject land is approximately 3.5m. There was evidence that some lateral roots of the tree, on the northern side, were cut during the construction of the building.
50	The soil on the subject land is highly reactive, as agreed by the engineers, who also agreed that there are presently no signs of damage to the building on the land that are attributable to the presence of the tree.
51	As I have indicated above, approval for the buildings on the land was sought and obtained in stages. Construction was also carried out in stages. In effect, the basement and ground floor of the building originally constructed on the western site, were extended to the east, the extension commencing at a distance of 3m to 4m from the subject tree. As the preferred method of extension had the consequence of reducing the structural integrity of the existing concrete wall (of the western building), another method was followed. The concrete walls and floors of the western and eastern stages were dowelled together with butted straight joints. The consequence of the method used is that potentially there is weakness in the joint of the basement wall junction in the proximity of the subject tree, according to architect Mr Rod Roach.
52	Mr Paul Gunson, the appellant’s expert engineer, was of the opinion that in the future, as a result of the drying of the soil due to the presence of the roots of the tree, there is a potential for settlement of the foundation soils which could lead to damage to the building in this way: the construction joint might form a hinge which as a result of the reinforcing bars at the bottom failing, would open up from the bottom and eventually cause the superstructure at the top to be pushed together with resultant damage to it. There was no evidence as to whether the joint was designed to withstand the effects of drying of the soil at a depth of greater than 4m; that depth being what was required by the relevant standard at the time. There was evidence that it was well known at the time that the soil-drying effects of trees in highly reactive soils can extend to a depth far greater than 4m. In the absence of evidence on the point, it is only reasonable to assume that the design was in accordance with the required standard at the time, taking into account the presence of the tree.
53	Thus, I accept that there is a possibility (but not a probability) of the reinforcing bars in the construction joint failing, with consequences for the building, if the tree remains. I cannot conclude that the subject tree has been shown to be causing or threatening to cause, substantial damage to the building. This has not been made out.
54	There are methods available to insert moisture into the soil below the footings with a view to maintaining an equilibrium such that the joint would not be affected. However, there does not appear to be much science as to when and how much water should be inserted to achieve this consequence and in any event it would be inappropriate to proceed until the evidence was there that it was necessary; that is, when there were signs that the joint had failed. It would then require both the monitoring of moisture levels in the soil at the requisite depth and the application of water through tubes to maintain an equilibrium of moisture in the soil. It would be an onerous process, without a guarantee of success. I have concluded that this would not be a reasonable measure to minimise the threat of damage to the superstructure if the joint failed due to the drying out of the soil.
55	On the other hand, if the tree is removed, there might also be consequences for the building in the vicinity of the tree. With less moisture being removed from the soil by the presence of the subject tree, there could be resultant swelling of the soil, causing the building to heave, it having been designed, it is assumed, in the context of the tree being present. However, I cannot be concerned about these consequences. Given the appellant is seeking consent to remove the tree, the consequences for its buildings in the event of consent being granted, are a matter for the appellant company, and the Development Plan does not require me to consider same.

56	It is clear that the presence of the tree gives rise to a risk to the safety of those employees of the appellant who may be required to move about under the canopy of the tree, and the members of the public who either may be visiting the appellant’s premises or walking past the premises, on the public footpath adjoining the subject site.
57	That there is a risk is evident from the evidence of the arborists, having regard to the nature of this particular tree. Whether the risk is unacceptable depends in this case not on tree failure, but of the likelihood of reasonably large branches sufficient to cause injury, falling from the tree. I am satisfied that a risk of this nature exists both in severe wind conditions and at other times, because of the species of tree and this tree’s known propensity to drop up to and including moderate-sized branches from time to time.
58	Consideration was given to the erection of a sail or sails extending from the building beneath the canopy of the tree, the purpose being to catch or deflect any branchlets, branches or limbs that might fall from the tree in the future, thus avoiding the risk of injury to persons or damage to motor vehicles. This was a suggestion made by the respondent’s officers. The architect’s evidence was that the addition of sail structures and their supports "would dramatically and negatively affect the architectural integrity of the building". His evidence continued thus:

61	In the circumstances, the measure would not be reasonable and could not be effective across all affected areas.
62	In addition, at all times, the respondent, as the relevant authority considering the applications made under the Development Act which resulted in consents, was aware or should have been aware, by the notation on the plans, of the location of the subject tree. It perhaps does not sit well for the relevant authority to now say in effect "you cannot now use all of that area in accordance with your consent".
63	The only other option to protect against unacceptable risk would see the tree so heavily pruned that it would become ugly (at least in the short term – although there was no evidence on the length of the "recovery" period) and consequently have a detrimental impact on the existing amenity of the subject land and at least part of the locality. There was general agreement on the part of the relevant witnesses that if this was the only measure available, it would be better to remove the tree. I find that the requisite heavy pruning of the tree would not be a reasonable measure.
64	I find that there is no reasonable measure that could be taken that would be effective to make acceptable the risk to the public, and the employees of the appellant.

66	The subject tree is a prominent visual element in the streetscape and forms a notable visual element in the landscape of the local area. It makes an important contribution to the character of the local area. The tree is in very good health. It is therefore, with reluctance, that I am prepared to uphold the appeal and reverse the decision of the respondent, and so allow the removal of the tree. However, that must follow from my findings upon the evidence that the tree represents an unacceptable risk to public and private safety, and there are no reasonable measures that would be effective to reduce the risk to one that is acceptable.
67	In the event that I reached this conclusion, the parties joined in asking that I impose a condition on the consent that the tree be replaced by the landscaping proposed in the Roach plan produced at p4 of Exhibit R1.
68	I am prepared to make orders accordingly. I will hear the parties as to the precise terms thereof.