Macintosh v City of Unley [2005] SAERDC 49 (10 June 2005)

Last Updated: 15 June 2005

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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MACINTOSH v CITY OF UNLEY

Judgment of Commissioner Brine

10 June 2005

LOCAL GOVERNMENT - TOWN PLANNING

Application for removal of significant tree - refused by Council - Residential A560 Zone - tree does not make an important contribution to the character or amenity of the local area, nor does it form a notable visual element to the landscape of the local area - appeal upheld - provisional development plan consent granted for tree removal.
Development Act 1993; Development Regulations 1993, referred to.
Agostino v Adelaide City Council [2004] SAERDC 77; Summers v City of Unley [2002] SAERDC 113, considered.

MACINTOSH v CITY OF UNLEY
[2005] SAERDC 49

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1	This is an appeal against a decision of the City of Unley ("the Council") to refuse an application to remove what was classified as a "significant tree". Notification of the decision was given on 17 January 2005 and a compulsory conference followed. The matter remained unresolved.
2	The application dealt with by the Council followed a previous application for subdivision of the block (Certificate of Title Volume 5927 Folio 403), in which the tree sits. On 18 June 2004 planning approval was given to divide the block into two lots, the larger of which contained the tree which is the subject of this appeal.
3	It was noted at the time of subdivision approval that:

1. The removal of the significant Pittosporum undulatum tree does not form part of this land division approval and will need to be the subject of a separate application.
2. For the purposes of future applications on the subject site, a Tree Protection Zone (TPZ) of 9 m shall be established for both the Pittosporum undulatum and Lily Pily (sic).

4	The subdivision has not been registered in the Lands Titles Office.

Hearing

5	The three expert witnesses who appeared in Court were:

• Mr Ian Barwick (Consultant Landscape Architect)
• Mr Simon Gibbons (Enspec Pty Ltd, Environment and Risk).
• Mr Dean Nicolle (Currency Creek Arboretum – Eucalypt Research)

6	Mr Andrew Nichols (Arboricultural Support Officer, City of Unley) appeared by subpoena.
7	Mr J McElhinney appeared for the Appellants, Mr and Mrs MacIntosh and Ms J Grant appeared for the Respondent, the City of Unley.

Description of the Site

8

As a result of the planning decision a rectangular block 45.72 metres deep and 24.62 metres wide was created with the Pittosporum undulatum somewhere near the centre of the block with a front corner given over to an easement for Brownhill Creek.

9

The block is situated at 12 Malcolm Street, Millswood. It is in an area of high amenity. The adjacent houses are substantial, single storey dwellings. The street trees and surrounding private areas of planting are well developed. The tree in question is currently visible from a short stretch of Malcolm Street. It is only just visible from Avenue Street. It is screened from the adjacent block by planting along the creek, in particular, by a stand of mature poplar trees.

Applicable parts of the Development Plan

10	The site is situated in the City of Unley Residential A560 Zone. The Desired Character states in part:

The zone will be conserved as a high amenity lower density living area. It is intended to continue as an established residential area containing mainly single-storey detached dwellings on individual allotments.
.....
This attractive living environment where buildings are enclosed by the surrounding landscape should be maintained and enhanced.

11	The applicable parts of the Unley (City) Development Plan Consolidated 23 September 2004 relating to significant trees are as follows:

Council Wide

Objective 56: The preservation of significant trees in The City of Unley which provide important aesthetic and environmental benefit.

Together with the accompanying note:

Trees are a highly valued part of the Metropolitan Adelaide and Unley environment and are important for a number of reasons including high aesthetic value, preservation of bio-diversity, provision of habitat for fauna, and preservation of original and remnant vegetation.
While indiscriminate and inappropriate significant tree removal should be generally prevented, the preservation of significant trees should occur in balance with achieving appropriate development.

Principle 175: Substantial vegetation should be preserved, wherever possible, and replanting should take place, wherever practicable.

• Principles 177, 178, 179, 180 and 181 which deal with establishing the significance of a tree and the circumstances which might allow its removal; and
• Principles 180, 182 and 184 which specify the measures that should be adopted to modify development to preserve a significant tree.

Examination of the tree’s qualities in relation to the principles

12	I turn now to examining the evidence presented to the Court by the expert witnesses in relation to the subject tree. First to note that there was varying evidence as to the tree’s size. Estimates of the tree’s height varied between 8 and 12 metres and the width of the crown between 6 and 9 metres. Although this degree of variation is disconcerting, it is relatively unimportant for making an examination of the significance of the tree in terms of the Plan.
13	Perhaps, more importantly, there was greater agreement between the expert witnesses on the girth of the bifurcated trunks. At a level assumed to be 1 metre above ground level their diameters were assessed as 1.3 or 1.33 metres and 0.94, 0.95 or 0.98 metres giving a combined girth (if measured in this way) of between 2.24 and 2.31 metres. Evidence was also given that if one measured the two limbs together at a height to a ground level slightly away from the bole of the tree then the circumference was 1.92 metres. This measurement was demonstrated on site but was not seen by all expert witnesses.
14	I note that in the Development Regulations 1993, Regulation 6A classes as significant:

... trees with multiple trunks, that have trunks with a total circumference of 2.0 metres or more and an average circumference of 625 millimetres or more, measured at a point 1.0 metres above natural ground level.

15	In these terms, and placing greater weight on the experts’ prepared statements, I conclude that the tree can be classed as significant.
16	Principle 179 states that development should preserve the attributes of a significant tree or significant tree grouping under three circumstances. If it:

(a) makes an important contribution to the character or amenity of the local area; or
(b) forms a notable visual element to the landscape of the local area; or
(c) contributes to habitat value of an area individually, or provides links to other vegetation which forms a wildlife corridor.

17	No expert opinion was put forward that the tree was "important" or "notable" as described in these clauses. It can also be observed that while the tree is presently visible from Malcolm Street it would not be likely to be seen if a house was built in front of it.
18	In relation to tree removal, Principle 181 states that significant trees should be preserved unless:

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

19	All three of the witnesses agreed the tree’s life expectancy was 20 or 25 years and that the tree was in good health.

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

20	Mr Barwick deferred to Mr Turner in this respect; who saw it as "not unacceptable". Mr Nicolle believed it to be "negligible".

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

21	No structures are near enough to the tree to be damaged by it.

(iv) it is demonstrated that reasonable alternative development options and design solutions in accord with Council-wide, Zone and Area provisions have been considered to minimise inappropriate tree-damaging activity occurring.

22	No detailed evidence was presented to the Court as to what the effect of preserving the tree would have on the prospect of building a house on the site.

Examination of the evidence given

23

It seems clear that while the tree is a healthy specimen with a life of 20 years plus ahead of it, it does not make an important contribution to the character or amenity of the local area, nor does it form a notable visual element to the landscape of the local area. Under these circumstances, I agree with Mr McEhinney’s argument that for these reasons alone one can conclude that the tree need not be preserved. Then, it is not necessary to consider if reasonable alternative development options should be considered to minimise inappropriate tree-damaging activity occurring.

24

No evidence was given in relation to Principle 175 that "substantial vegetation should be preserved, wherever possible, and replanting should take place, wherever practicable".

Argument and Conclusions

25	I note that the subdivision approved by the Council made residential development on this site more difficult due to the easement for Brownhill Creek restricting access to the site and the placement of the subject tree. Although I would not go quite as far as stating that in this case "the fate of the tree was sealed at the time of subdivision" (see Agostino v Adelaide City Council [2004] SAERDC 77).
26	I also note that the site is situated in the City of Unley Residential A560 Zone which is earmarked for residential development. Were the tree deemed to be significant because of its size and its qualities, the primary use for the zone would need to be taken into account and a balance struck between the claims of retaining the tree and carrying out residential development on the site: see the judgment of His Honour Judge Bowering in Agostino v Adelaide City Council [2004] SAERDC 77: "... the conservation of significant trees should occur in balance with achieving appropriate development" and the view of Her Honour Judge Trenorden in Summers v City of Unley [2002] SAERDC 113 that "it would be in error to look solely at those provisions of the Development Plan under the heading of ‘Significant Trees’".
27	This is not the case here. While the tree is of a sufficient size to be deemed significant, its necessary qualities as set out in the Unley (City) Development Plan, consolidated 23 September 2004 are insufficient to merit its retention.
28	I regard Principle 175 as being less stringent than the clauses relating to retention of significant trees. Consequently, the need to facilitate residential development assumes greater importance and the tree need not be retained.
29	The appeal is upheld.
30	I am sympathetic to Mr Barwick’s suggestion that should the tree be removed a mature replacement tree be planted on site. Principle 175 makes provision for such a replacement.
31	Provisional Development Plan Consent is granted for the removal of a significant tree at 9-11 Avenue Street, Millswood (will be known as 12 Malcolm Street, Millswood) (Development Application No 090/1010/2004/C2) subject to the following condition:

1. A mature tree of greater than 2.5 metres in height at the time of planting and of the same species shall be planted in a position nearer the western boundary of the subject land at the same time as the significant tree is removed and the new tree shall be maintained to the reasonable satisfaction of the Council.

32	An order is made accordingly.