STANDISH v ADELAIDE CITY COUNCIL [2009] SAERDC 69 (15 September 2009)

Last Updated: 17 September 2009

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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STANDISH v ADELAIDE CITY COUNCIL

[2009] SAERDC 69

Judgment of Commissioner Green

15 September 2009

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development Act 1993 - applicant appeal - removal of a significant tree (Corymbia citriodora), relevant circumference of 2.2 metres - RA11 Residential (Whitmore West) Zone - consent refused by the Council - tree a notable visual element and contributes to visual amenity and character of the area - damage to adjacent dwelling and warehouse; causes of damage; remedial treatments, effectiveness and reasonableness considered - tree roots and soil dessecation a significant cause of damage to buildings of value (settlement, cracking and wall tilt of a dwelling and commercial building) - several remedial treatments considered but of limited or dubious effectiveness - reasonableness includes consideration of cost and practicality - tree removal sufficiently met exception to preservation Principle 298 - appeal allowed, decision of the Council reversed - conditional Development Plan Consent and Development Approval granted.

Development Act 1993, referred to.

Lacey v City of Burnside [2009] SASC 136, considered.

STANDISH v ADELAIDE CITY COUNCIL
[2009] SAERDC 69

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. The SA Housing Trust (then owner) amending its initial proposal, applied to the Adelaide City Council for the removal of a 16 metre high Lemon Scented Gum tree (Corymbia citriodora), with relevant circumference girth of 2.2 metres – a significant tree, located at the rear of old residential premises (built circa 1880) at 2 Vinrace Street, Adelaide within the RA11 Residential (Whitmore West) Zone. The appellant bought the property a few months later and being aggrieved by the Council’s decision to refuse the application for removal, took over the matter and appealed to this Court.
2. Having regard to the Council’s refusal grounds and the cases of each party, the inherent issue to be determined in this matter is whether the exception provided for in Council Wide Principle 298 as to whether other remedial measures and treatments are available that could be effective (in managing the damage to the buildings, in part caused by the tree roots), and are acceptable and reasonable having regard to the provisions of Principle 298, particularly (a)(1)(iii).
3. The above issue is premised on the basis that:
   • the tree forms a notable visual element to the landscape of the local area and that it makes an important contribution to the character or visual amenity of the local area (Council Wide Principle 296(f) and (a) respectively);
     
   • the tree is not significantly diseased or has short a life expectancy, nor giving rise to an unacceptable risk to public or private safety; and
     
   • the tree is not known to cause health problems.
     
4. Little or no evidence was given on these aspects and I concur with these assumptions or givens (or in some cases assessments, such as they were).
5. The weight of expert evidence (Mr Combe an engineer, and Mr Knight an arborist, for the appellant, also with reports in Exhibit R1 from others) was that the tree roots (moisture seeking and soil drying) are a significant, perhaps up to 50%, and, I assess, on the balance of probabilities, the likely major cause of building damage to the adjacent dwelling on land to the south and to the adjacent warehouse commercial building on land to the north (263 Gilbert Street) – together with a number of other interrelated factors such as reactive clay soils, drought conditions, drainage problems/leaks (in lane pavements and building down pipes); and footing design and quality (of the day relative to their construction period). The damage comprises:
   • the dwelling at 2 Vinrace Street (one half of a pair of semi-detached dwellings) has Category 3/4 level cracks – particularly to rear and eastern walls; and an eastern wall has an outwards lean/tilt of about 40mm; and
     
   • the commercial building at 263 Gilbert Street has cracking to rear and eastern walls, settlement of footings and overall an uneven pattern of settlement, with eastern wall tilting. Its owner raised significant concerns with the appellant (vide Exhibit A1, letter).
     
6. The subject land comprises a relatively small (240 square metres) long and narrow (9.4 metres wide x 25.4 metres long) allotment fronting Vinrace Street to the south but with its long side to the east fronting Vinrace Lane and its rear northern side fronting a private lane. Covering perhaps three-quarters of the site is an old heritage character cottage (though not officially heritage listed), with the said Lemon Scented Gum tree located in the rear north-western corner of the rear yard, very near to the private lane (perhaps some 0.3 metres) and located perhaps some 6 to 8 metres from the public lane to the east. The tree is said to have a height in the order of 16.2 metres and a crown spread between 6.8-8.7 metres in all directions and it is estimated to be in the order of 30-60 years old with a tree protection zone defined by Dr Nicolle of 6.2 metres and by Mr Knight of 7.5 metres.
7. There are a number of photographs in the Copy Documents and in each of the appeal statements showing the tree relative to the small rear yard and adjacent lanes.
8. Mr Knight was of the opinion that the tree was of below average health (suffering from chlorosis), and not deep rooted, whilst Dr Nicolle (a well known expert with respect to Eucalypts), was of the view that it was in good (average) health and its species is of a deep-rooted nature.
9. The locality nor the local area as the terms are used in the Development Plan were not defined by any expert giving evidence in this matter as it was not important or critical to any of the issues in dispute. From the view I assess that it generally extends for a distance of perhaps 50-80 metres in most directions and the tree is visible from parts of Gilbert Street to the north, as well as the narrower more localised residential streets, as well as from portions of rear yards of adjacent properties. The tree is moderately evident due to the relative heights of adjacent residential and/or commercial buildings. The locality comprises a mix of such residential and commercial buildings.

Relevant Development Plan Provisions

10. I have noted the provisions referred to by the parties and the witnesses, and I find the following to be the provisions in the appropriate/relevant Development Plan (consolidated version for Adelaide (City) dated 30 March 2006), as relevant to the issues raised and to be considered:

COUNCIL WIDE (CW hereafter)
Objectives: 3, 110; and
Principles of Development Control: 9(c), 29(d), 31, 296, 298 and 299.

RA11 RESIDENTIAL (WHITMORE WEST) ZONE (RA11 hereafter)
Desired Character Para 3;
Objective: 1; and
Principles of development control: 1 and 18.

11. As noted above, the dwelling on the land is not listed as a Local (or State) Heritage Place and nor is the significant tree in question specifically referenced or itemised in the way a number of others are.
12. The most pertinent of these provisions are Objective 110 and Principles 296, 298(a)(1) and 299 as follows:

Objective 110: The conservation of significant trees which provide important aesthetic and environmental benefit to Metropolitan Adelaide.
...

296 Where a significant tree or group of trees:
(a) 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 as a 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 to the landscape of the local area;
development should preserve these attributes.
Note: Trees or groups of trees are declared as significant in the provisions for the relevant Zone or Policy Area. A tree not listed or identified in the provisions for the relevant Zone or Policy Area may also be significant if it falls within the class of trees declared to be significant by the Development Regulations, 1993.
...

298. 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 shown to be causing or threatening to cause substantial damage to a substantial building or structure of value; or
(iv) the tree is known to cause health problems; and all other reasonable remedial treatments and measures have been determined to be ineffective; or
...

299. Where a significant tree is proposed for removal, such tree should be replaced on the same site within three months of Development Approval, subject to the season, by:

(a) a mature tree of appropriate species and sufficient size when fully grown; or
(b) landscaping of equivalent landscape value in accordance with a comprehensive landscaping plan for the site and the desired character for the locality.

13. The provisions for RA11 are of peripheral relevance only with the sole objective seeking “development that strengthens, achieves and is consistent with the desired character for the Zone”, and the only reference in the Desired Character to tree preservation or landscaping is “amenity will be progressively enhanced by street trees, landscaping and ...”. Other potentially relevant clauses are of no relevance as this application is not associated with any building development where alternative designs might need to be assessed to determine whether a tree should be retained or removed.
14. I note that as a result of processing the Category 2 application some 39 representations were received by the Council, including a petition from some 308 persons. Those representations are taken into account as contextual material.

Issue – Other (Reasonable) Remedial Treatments and Measures

15. The following remedial treatments have been suggested by one or more of the experts, or the Council or others providing reports in the processing of the application, regarding firstly, the damage to the dwelling on the subject land at 2 Vinrace Street:
    • underpinning building work as per the evidence of Mr Combe in Exhibit A2 at pp 5 and 6 which would require:
      

- progressively installing an under-footing below the eastern boundary wall and under the masonry internal wall at the rear;

- installing drilled underpins below the under-footing for a depth of 4500mm depth in both these walls with under-footings;

- installing lesser under-footings to the timber-framed side and rear wall and underpin these to a depth of 2500mm;

- the above work will require removal of timber floors and selective part removal of the existing ceiling and roof sheeting; and

- at an estimated cost of the above works at $70,000 plus GST;

• installing of root barriers, at some 6.2 metres from the tree base to the south (which is approximately 1 metre from the rear of the dwelling) and extending easterly into and cross the public lane with Mr Combe (Exhibit A2) estimating to a depth of at least 2.0, if not 2.5 metres;
  
• soil rehydration/irrigation as outlined by Mr Combe as follows:
  

- relies on a line of drippers to be placed around the dwelling (and in this case below the floor) to impact on the footings;

- the drippers to allow the soil surrounding the footings to rehydrate when operated for a period of 3-4 hours each week over summer and for a reduced period in the spring and autumn;

- as the external eastern face is bounded by the road and with a very plastic soil, a horizontal line of drippers at 600mm depth would only be effective to a depth of 800mm;

- a line of dripper spears would be required and located about 300mm centres and to a depth of 2500mm; and

- soil moisture meters would be required to avoid over-saturating the soil.

He estimated that the time taken to re-level and achieve a stable moisture environment could be in the order of 2 years and the house would require watering each summer for the rest of its life and this may be problematic given current water restrictions. The risk of a water leak, if unobserved, which could cause the soil to heave and cause further damage to the walling of the house, was noted.

• Vinrace Lane (a public road in a north/south direction adjoining to the east) reconstruction of the road and drainage – Council have budgeted in the 09/10 financial year to undertake such work, but without the level of detail, particularly with respect to drainage works, known or specified (Exhibit R4).
  

16. Secondly, suggested remedial treatments were put forward for the rear warehouse/commercial building to the north and north of the private lane (263 Gilbert Street) including:
    • underpinning building work as outlined by Mr Combe in Exhibit A2, comprising:
      

- 3 drilled underpins to the rear wall and a further 3 underpins to the sidewall of the building;

- all underpins to be drilled below the existing footings to a depth of 4500mm and topped with a pier cap; and

- estimated costs of these works along with the reinstatement of the lane way is some $30,000 plus GST; and

• installation of root barriers (at least 4 metres northward from the tree base and located parallel with the private lane and on its northern side in private property with agreement/approval from those parties with an ideal location being in the order of 6.2 or 7.5 metres from the tree base in parallel to the boundary, requiring cutting of a concrete car park slab and to a depth of at least 2 metres.
  

17. Dr Nicolle advises that maintenance pruning of the tree is not necessary, nor would it be effective in terms of minimising or reducing building damage. As noted from the evidence, many of these treatments are expensive with, in some cases, limited prospects of success, particularly on a long-term, ongoing basis.

Issue-Effectiveness of Treatment Measures

18. How will the identified alternative (or conjunctive) measures achieve the desired effect/outcome of minimising/stabilising damage to the buildings and of course at the same time, maintaining tree health and longevity. In general, I found the evidence of Mr Combe, based on his experience, to be the most comprehensive, reasoned and to be relied upon.
19. The Vinrace Lane upgrade (surface and drain leaks) should, and the Court is led to believe, will occur in the current financial year. The specification is not known nor whether there is sufficient money allowed to fully reinstall and seal the drain in question. All experts seemed to agree that this work (a part causal factor) should be undertaken in any event to assist and to start to stabilise the environment of both buildings. It will not, on the evidence, affect the tree in the long term and would have only limited short-term effects or stress on tree health. It would also not be a complete-adequate solution.
20. On the evidence and for 2 Vinrace Street, root barriers and soil rehydration/irrigation are not recommended as being likely to be effective and underpinning building work is a very expensive “maybe”. For 263 Gilbert Street, underpinning building work is also a maybe, together with doubts on the effectiveness of a root barrier to the north of the tree along/adjacent the private laneway, as well as taking into account the difficulty/complexity of this solution.
21. Underpinning works are estimated by Mr Combe to be in the order of $100,000 (to maintain the footings of both the dwelling and warehouse). The question of reasonableness is discussed later.
22. Root barriers are considered by most of the experts to be unlikely to be effective, certainly for greater than the short-term. It may even encourage more moisture seeking root growth (Knight).
23. It is said that the underpinning work may be effective, but not in isolation of other treatments and it is very expensive. The root barriers as mentioned are doubtful with respect to the medium to long-term effectiveness (Combe and Knight). The soil rehydration/irrigation treatment is problematic and also not recommended.

Issue - Future Prospects

24. The prospects in the short-term of underpinning work (both the dwelling and warehouse building), stabilising movement and halting further cracking/tilting movement, appear good and achievable, however the costs ($100,000 collectively) are quite significant relative to the value of the buildings and the practicality and complexity of the work, fraught with difficulties and inconvenience (relevant considerations based on the judgment of Kourakis J in Lacey v City of Burnside [2009] SASC 136, at para 39). I assess the work not to be reasonable considering the general modest worth of the buildings in question and the contribution of the tree.
25. In the medium to longer term, the prospects of root barriers, rehydration, and drain relaying/sealing – individually, are all not high or good for continued effectiveness for differing reasons. Collectively they are more likely to be, but, I assess at significant cost, difficulty, inconvenience and are not reasonable.

Conclusions

26. Integrating and considering all relevant aspects together (cause, damage, other remedial treatments, effectiveness and reasonableness), as well as weighing up the visual and other significance of the tree itself, I conclude that the exceptions to the preservation and retention of the significant tree, set out in CW Principle 298, with respect to the particular Lemon Scented Gum tree, are sufficiently made out and met. Whilst it is always a shame to see any mature, attractive tree removed, in the circumstances of this matter and with weight given to the evidence and reports of the engineers, particularly Mr Combe, and that of Mr Knight and Dr Nicolle, and others, the exceptions parameter is sufficiently met and on balance, removal of the tree and approval to the Development Application are assessed and found to be warranted. The proposal sufficiently meets the Development Plan guidelines.
27. In this case the needs and benefits flowing to two private building owners and occupiers and subsequent ones, are afforded weighting over visual amenity loss in both the public and private realms within the locality as defined.
28. Having regard to CW Principle 299 that encourages replacement vegetation where a significant tree is contemplated for removal, or is to be removed, a condition embracing that concept is appropriate.

Decision

29. The appeal is allowed and the decision of the Council with respect to DA 0179/2007 reversed. Development Plan Consent and Development Approval are granted to the application subject to the following condition:
    1. Upon removal of the tree in question, it is to be replaced on the same site in the first available planting season after the date of this approval by a semi-mature tree at the time of planting, of appropriate species and size when fully grown or other landscaping of equivalent landscape value, to the reasonable satisfaction of the Council, and it is to be maintained thereafter or replaced promptly with other similar planting should it become diseased or die.
       
30. There will be an order to that effect.