DAY v CITY OF BURNSIDE [2009] SAERDC 89 (8 December 2009)

Last Updated: 10 December 2009

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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DAY v CITY OF BURNSIDE

[2009] SAERDC 89

Judgment of Commissioner Green

8 December 2009

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development Act 1993 - applicant appeal - refusal by the Council - double garage outbuilding and removal of a "significant tree" (Aleppo Pine) - Residential Zone and Residential Policy Area 3 Magill (Chapel) - consideration of tree contribution to the local area, notability of the tree and whether all reasonable alternative development options and design solutions considered to enable tree retention - tree found not to meet contribution or notability to local area criteria sufficiently; but not all reasonable alternative options/designs considered - appeal allowed - decision of the Council reversed - conditional Development Plan Consent granted.

Development Act 1993; Development Regulations 2008, referred to.

DAY v CITY OF BURNSIDE
[2009] SAERDC 89

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an applicant appeal against the decision of the Council to refuse Development Plan Consent to Development Application No. 180/1087/08, said to be an amendment to Development Application No. 180/0772/07 for the erection of a double garage domestic outbuilding and the removal of a “significant tree” as defined by the Development Regulations 2008, in this case an Aleppo Pine tree at the rear of 12 Carey Street, Magill, located within the Residential Zone (RZ hereafter) and the Residential Policy Area 3 – Magill (Chapel) (RPA3 hereafter).
2. The Council’s decision was made by staff under delegated authority and the application was refused on the basis of non-satisfaction with 10 guides within the Development Plan as follows:

The proposal does not satisfy Council Wide Principle of Development Control 43 in that land should not be developed where the development would be likely to result in a substantial tree-damaging activity occurring to a significant tree.
The proposal does not satisfy Council Wide Principle of Development Control 44(a) in that the proposal does not preserve the contribution the tree makes to the character or amenity of the local area.
The proposal does not satisfy Council Wide Principle 44(f) in that the proposal does not preserve the notable visual element the tree attributes to the local area.
The proposal does not satisfy Council Wide Principle of Development Control 48 in that the proposal is not designed in and undertaken to retain and protect significant trees.
The proposal does not satisfy Council Wide Principle of Development Control 49 in that the development should be undertaken with the minimum adverse affect on the health of a significant tree.
The proposal does not satisfy Council Wide Principle of Development Control 50(a)1(i) in that the tree is not diseased and life expectancy is short.
The proposal does not satisfy Council Wide Principle of Development Control 50(a)1(ii) in that the tree does not represent an unacceptable risk to public or private safety.
The proposal does not satisfy Council Wide Principle of Development Control 50(a)1(iii) in that the tree is not within the Bushfire Protection Area shown on BurBPA/1.
The proposal does not satisfy Council Wide Principle of Development Control 50(a)1(iv) in that the tree is not shown to be causing or threatening to cause, substantial damage to a substantial building or structure of value.
The proposal does not satisfy Council Wide Principle of Development Control 50(a)2 in that it has not been demonstrated that all reasonable alternative development options and design solutions have been considered to prevent substantial tree-damaging activity occurring.

3. The appellant only takes issue with the reasoning and assessment of the following:
   • the contribution to the local area of the tree (CW Principle 44(a));
   • notability of the tree to the local area (CW Principle 44(f)); and
   • whether all reasonable alternative development options and designs have been considered to enable the tree to be retained (CW Principle 50(a)(1) and (2)).
4. All other tree protection criteria are conceded or accepted or are of limited if any relevance and it appears agreed the other criteria are not a sufficient justification for the decision to refuse consent to the tree removal.
5. It is understood that there is no issue by the Council to the double garage per se, except with respect to its siting and the tree removal/retention question.
6. The matter was heard on the basis of a view of the subject tree, subject land, the locality area, streetscape and locality, in the presence of the parties and written submissions (statements, plans and other material, including Council copy documents), but with no cross-examination, oral evidence nor any closing or other submissions by the parties to the Court.

The Subject Land

7. The subject land is a conventional rectangular shaped allotment containing a single storey detached dwelling constructed in the 1960s, setback approximately 8 metres from Carey Street, with vehicular access only obtained from Carey Street via a 3.7 metre wide driveway on the southern side of the allotment and dwelling, with such driveway providing access to the rear yard.
8. The subject tree is located in the south-eastern corner of the rear yard, approximately 2.5-3 metres and 5.5 metres from the southern and eastern boundaries respectively. It is approximately 20 metres tall with a trunk circumference of 3.01 metres measured at the required 1 metre above ground level. It has a moderately broad canopy spreading in the order of 16-18 metres and in part overhanging the adjoining rear yards of 14 Carey Street and the rear yard of dwellings at 27B and 27C Chapel Street.

The Development Proposal

9. The development proposal is supposedly for an amendment to a previous application (for removal of the same significant Aleppo Pine tree), refused by the Council, by adding the development and construction of a double garage outbuilding with removal of the said tree. By amended plans tendered (and now marked Exhibit A1), the shed is of reduced size compared to that initially lodged, with dimensions of 6 metres by 6 metres and wall height of 2.4 metres with a ridgeline of some 3.1 metres and to be located in the south-eastern corner of the land but setback some 0.9 metres from both the southern and eastern boundaries. It is intended that the floor area of the shed would sit approximately at grade to the eastern rear but slightly elevated with filling, less than a metre, on its western side and with openings to the double garage to the west to facilitate direct vehicle entry from the driveway. The garage would encroach some 16% into the tree protection zone.
10. In effect, the proposal is a fresh development application, standing in its own right and with no relationship or linkage to the prior application. The proposal makes explicit that the development of a garage (with no other on the land) is the primary reason the tree is sought to be removed, apparently along with nuisance factors for both occupants of the subject land as well as adjoining occupiers, particularly those living in a dwelling in near proximity to the south-east of the tree at the rear of 27 Chapel Street, from the dropping of pine cones, nuts, sap, small branches and needles etc.

The Locality – The Local Area

11. The definition of the locality required for the purposes of interpreting and understanding certain Development Plan criteria, comprises that part of the area surrounding the subject land with a tangible influence on it and that the specific proposal affects, to a notable degree, and in this matter it is to be based on visual impacts and character perceptions.
12. Of more relevance in this matter, is the term “the local area”, usually equated to “the locality”, where the relevant determining criteria are based on visual impact, context and character, as it is in this case.
13. Ms Taylor (a qualified planner and friend giving evidence for the appellant) provided a stilted, generic, local area shown on Figure 1 in her statement now marked Exhibit A2, one that is not precisely determined, compared to the visual locality, analysis and zone of influence of both Messrs Grimm and Heseltine. Having regard particularly to the latter, I define the local area to generally include land:
    • some 100-120 metres to the east to the intersection of Chapel and Pepper Streets and Ellis with Pepper Street;
    • some 120-130 metres to the south to a little north of the intersection of Carey with Jackson Street;
    • some 180-190 metres to the west to adjacent the large church and opposite the local park properties on Chapel Street; and
    • some 100-120 metres to the north to a little beyond the intersection of Carey with Ellis Street.
14. The local area is entirely within the RZ and RPA3. As described by Ms Taylor:

3.4.1 The local area consists of low scale, low-to-medium density residential buildings that generally take the form of detached dwellings located close to frontages on narrow streets. Most, but not all, of the dwellings are single-storeyed with larger rear gardens than front gardens. The area contains a wide variety of ages of dwellings and hence a variety of different architectural styles. The older dwellings are usually placed on their allotments such that there is a driveway on one side and a narrow strip of land on the other. The more recent dwellings have been constructed with wide driveways leading to double garages constructed under the main roof, the garage doors often set just behind the facades of the dwellings.
3.4.2 Some of the streets feature the early infrastructure such as bluestone watertables and kerbs. The area contains a number of prominent older buildings such as the Chapel Street Uniting Church, the Magill Cemetery [on the periphery to the south with notable perimeter vegetation to the north and west] and a collection of small parks [that are both attractive, treed and provide amenity and play space for those in the local area].
3.4.3 Generally the land in the local area falls to the west ... [comprising the lower gentle slopes of the Mount Lofty Ranges.]

15. In the view of Mr Grimm (a qualified landscape architect at p 6 of his statement now marked Exhibit A4),

Overall the visual character of the locality and context is described as a dominant built form urban density with small copse of native vegetation within local reserves and scattered isolated trees to the rear of properties.

16. The residential and public realm amenity of the local area is assessed to be moderate, enhanced by certain trees, vistas, local reserves and the larger church and cemetery properties; and negatively affected by overhead electricity lines and other infrastructure, and the appearance of much of the built form.

The Relevant Development Plan Provisions

17. I have considered the provisions referred to by the witnesses in their statements and in the copy documents, and find the following provisions in the relevant Development Plan, Burnside (City) consolidated version 13 December 2007, to be those particularly relevant to the key issues in focus:

COUNCIL WIDE (CW hereafter)
Objectives: 15-17, 20, 21 and 28; and
Principles of Development Control: 3, 26, 31-33, 43, 44, 46, 48-50, 64, 65, 68, 120, 137, 138, 143 and 144.

RESIDENTIAL ZONE (RZ hereafter)
Objectives: 2 and 5; and
Principle of Development Control: 2.

RESIDENTIAL POLICY AREA 3 – MAGILL (CHAPEL) (RPA3 hereafter)
Objective: 1; and
Principles of Development Control: 6 and 7.

18. The development proposal was processed as a Category 1 development having regard to the regulations and no statutory referrals were required.

Approach

19. Section 33(a) of the Act requires the relevant authority (the Council) and on appeal this Court, to assess a development application against the provisions of the appropriate Development Plan and s 35(2) specifies that where a development is assessed as being seriously at variance with the Development Plan, it must not be granted consent. The whole of the Development Plan must be assessed, including on appeal. The relevant guidelines in the Plan provide the firm basis for decision-making together with a consideration of any other relevant matters.
20. In terms of s 35(5) and the provisions of the relevant Development Plan, this proposal is for consideration on its merits against the Development Plan provisions and involves weighing up the pros and cons and considering whether it is sufficiently conducive to the overall intent, purpose and desired character and amenity of the RZ and RPA3, tested in the specific site and locality context. The Development Plan is also to be utilised as a flexible, advisory planning policy document, not as a mandatory legal statute and as a practical guide for practical application, superimposed upon an existing state of development on the site and in the relevant locality. Ultimately, a planning judgment is to be made on a fact and degree basis as to whether the specific proposal as a whole sufficiently meets the Development Plan and having regard to all relevant matters, warrants consent.

Planning Assessment

21. The evidence of various experts has been considered particularly that of Ms Taylor (Exhibit A2), the only qualified town planner called, the report of Mr D Nicolle (a qualified arborist - report marked Exhibit R3), the reports in the copy documents (marked Exhibit R1), by Mr M Palamountain, a certified arborist, as well as Mr N Lutt, an arborist to the Council; and the written evidence from Mr B Grimm (statement now marked Exhibit A4) and Mr S Heseltine (statement now marked Exhibit R2), both qualified and experienced landscape architects. All of the evidence, reports and background material has been carefully considered but with caution as to weight in the light of no oral examination or cross-examination.
22. The planning assessment focuses on the significant tree removal and the key criteria and issues arising there from. In undertaking this assessment and considering the matter, I have had regard to all of the relevant guidelines in the relevant Development Plan, particularly those of CW scope under the heading, Trees and Other Vegetation and Significant Trees, and specifically the following:

COUNCIL WIDE
...

Significant Trees
Objective 20: The conservation of significant trees (including significant trees identified in Table Bur/4 and as shown on 1Figures Bur(ST)/1 to 8 inclusive) in Metropolitan Adelaide which provide important aesthetic and environmental benefits.
...
While indiscriminate and inappropriate significant tree removal should generally be prevented, the conservation of significant trees should occur in balance with achieving appropriate development.
Objective 21: Development sited and undertaken to retain and protect a significant tree or group of significant trees.
...
PRINCIPLES OF DEVELOPMENT CONTROL
...
43 Land should not be developed where the development would be likely to result in a substantial tree-damaging activity occurring to a significant tree.
44 Where a significant tree:
(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.
...
46 Where development is to take place in respect of, or in close proximity to, a significant tree(s) that tree(s) should be protected by appropriate measures during the course of development. In particular, the area in which the tree’s branches and roots are located should be protected by the erection of a secure fence prior to commencement of any work on site to prevent any disturbance to such area, for example by compaction, excavation, filling or contact causing damage to branches.
...
48 Development should be designed and undertaken to retain and protect significant trees.
49 Development should be undertaken with the minimum adverse affect on the health of a significant tree.
50 Significant trees should be preserved and tree-damaging activity should not be undertaken unless:
(a) in the case of tree removal;
(1) (i) the tree is diseased and its life expectancy is short; or
(ii) the tree represents an unacceptable risk to public or private safety; or
(iii) the tree is within 20 metres of a residential, tourist accommodation or otherwise habitable building and is a bushfire hazard within the Bushfire Protection Area shown on Figure BurBPA/1; or
(iv) the tree is shown to be causing or threatening to cause, substantial damage to a substantial building or structure of value; and
all other reasonable remedial treatments and measures have been determined to be ineffective.
(2) it is demonstrated that all reasonable alternative development options and design solutions have been considered to prevent substantial tree- damaging activity occurring.
(b) in any other case;
(i) the work is required for the removal of dead wood, treatment of disease, or is in the general interests of the health of the tree; or
(ii) the work is required due to unacceptable risk to public or private safety; or
(iii) the tree is within 20 metres of a residential, tourist accommodation or habitable building and is a bushfire hazard within the Bushfire Prone Area shown on Figure BurBPA/1; or
(iv) the tree is shown to be causing, or threatening to cause damage to a substantial building or structure of value; or
(v) the aesthetic appearance and structural integrity of the tree is maintained; or
(vi) it is demonstrated that all reasonable alternative development options and design solutions have been considered to prevent substantial tree- damaging activities occurring.

23. With regard to the evidence/reports, the opinions specifically pertaining to town planning expertise or arboricultural expertise are not expressly in dispute – the former with respect to land use, built form and various development/siting options; the latter in terms of the status, health, life expectancy, soundness and safety of the tree.
24. The evidence of the landscaped architects (and Ms Taylor, and to a limited extent that of the arborists), go particularly to the issues of the contribution of the tree to the character/amenity of the local area and notability of the tree as a visual element in the landscape of the local area and they are the core issues in this matter, together with a practical/functional consideration of alternative development options and designs.
25. In undertaking this assessment I have of course carefully considered the site, the locality and the local area contexts.
26. As a preliminary observation, it is worth noting that whilst the tree is not indigenous to the area afforded additional recognition in terms of the Development Plan (for example CW Principles 40-42 and 44(b)), on the other hand the fact that it is an Aleppo Pine, in some areas considered and specified to be a less than desirable species and even a proclaimed pest plant I understand, though not in the circumstances of this matter, and its species, is a neutral aspect and not a negative (or a positive) with respect to the decision on whether the tree should be removed or retained.

Issue: Contribution to character and amenity of the local area
(CW Principle 44(a))

27. The character of the local area includes small copse of native vegetation within reserves and scattered isolated trees (mostly) to the rear of properties and with only a few groupings. The amenity levels in the local area are moderate.
28. The subject tree is assessed not to make a high or an important contribution as:
    • it is a relatively isolated tree (with only a few other smaller trees nearby), located in a rear yard and not in a prominent position;
    • it presents visually (outside the subject land) as a relatively small – modest solid back-drop patch of greyish-green/dark green depending on the time of day and season, not with dominant or attractive structural elements; and
    • it is a relatively small element of the character and visual amenity, making a relatively minor, localised contribution only, though from a few vantage points it is more prominent and it is also silhouetted.
29. I generally agree with the assessments of Mr Grimm and Ms Taylor on this aspect – in the words of the former it provides “subdued background relief to the foreground”.
30. Having regard to the evidence of those experts and my own viewing and assessment, I disagree with Mr Heseltine namely that the tree is a prominent visual feature, except in very localised positions, or that it has a dark imposing form, dramatically silhouetted and distinguished feature of the skyline, catching the eye of a traveller moving through the area or that it is an impressive focal point.
31. I am also unable to place any significant weight on the following part of his assessment:

The presence of Pine trees scattered throughout the neighbourhood reinforces the place that these species have had in the planting palette of the area over time. The subject tree actually captures and defines the cultural significance of the Pines in general as part of the diverse mix of native and exotic tree specimens in the locality.

32. I also disagree that it provides “important variety”, or is a “notable addition” to the landscape of the local area.
33. It is acknowledged that it makes some contribution to both character and visual amenity of a localised area and is of some other amenity value for occupants in terms of shade and a certain visual appeal (though I note the negative amenity affects espoused by Ms Taylor in 5.3.6 of her statement), but in my assessment that is not enough to satisfy Principle 44(a).

Issue: Notability of tree to landscape of the local area
(CW Principle 44(f))

34. I agree with Mr Heseltine that the tree is a notable focal point from the Carey-Chapel Street intersection (refer Grimm photo Exhibit A4, figure 12) and is highly visible from parts of Carey Street, however that is in quite close proximity to it and from most other parts of the local area and locality, it is much less obvious and not noteworthy. It has localised notability, on the evidence of Mr Grimm only within about 60 metres of the tree.
35. Ms Taylor’s opinion was that the tree is not a notable visual element to the landscape and for the following general reasons:
    • it is an isolated tree, not part of a visually more obtrusive cluster of large trees, it appears on the skyline as a mound of grey-green and the canopy and shape are not as noticeable as the other large trees in the local area;
    • the tree is not a landscape feature that one takes particular notice of and as an isolated tree in a rear yard it is not part of an intentional landscape planting;
    • it is not part of an historic planting, has no particular cultural or historic associations of significance and it can only be seen from a limited area within the local area;
    • whilst the tree is visible from various points it cannot be said to be a landscape feature that draws the eye; and
    • if the tree were removed its loss would not be particularly evident in the landscape character and it would not leave a noticeable “hole”.
36. Mr Heseltine saw the tree as a “notable addition to the attractive and varied treescape” and as the feature tree within a collection; that its removal would significantly diminish the massing effect created by the group; and that it has an extensive zone of visual influence – the footprint that is distinguishable, affectively visible. I do not agree with that opinion or assessment and prefer that of Mr Grimm and Ms Taylor.
37. This question is no doubt one of degree and not without some subjectivity, however I consider, based on the evidence, and from my experience and appreciation, that the tree is only of low to moderate notability, enjoyed by a few residents or visitors in the public realm and only in a very localised area.
38. Whilst the tests in CW Principle 44 and particularly (a) and (f) have been assessed and found not to be met, enabling some support for approval to tree removal in this case, if I am wrong on that, and having regard to all relevant guides in the Plan, I proceed also to consider and assess the issue of reasonable alternative options/designs to enable retention of the tree. If they were patently/obviously available, that may be afforded some weight in the final decision.

Issue: Reasonable alternative development options/design solutions
(CW Principle 50(a))

39. The only evidence before the Court about this issue was from Ms Taylor as a town planner. She has presented and considered a number of options for an alternative double garage siting and driveway design.
40. Before I comment and assess the issue, I must state that I do not agree with a number of the assumptions made by her, particularly:
    • that, whilst desired by the appellant, the development has to comprise a double garage with two vehicles parked side by side rather than stacked one behind the other (there is no right or reasonable expectation for that and I consider it to be something of a “luxury” if feasible and achievable under all relevant Development Plan guidelines and site circumstances);
    • that the development should be set off the southern boundary to accede to the wishes of the adjoining neighbour (and inevitably, limiting manoeuvring options and necessitating the development being moved closer to the tree trunk/root zone);
    • that the development should be positioned to maintain outlook or views from the rear or front of the dwelling or the existing extent of light or private open space for its occupants – those are owners’ choices and trade-offs as part of a variety of considerations; and
    • the possible negative effects on the tree of close proximity of the development or of soil compaction from the driveway on the roots and health of the tree, or on the building in the future years in terms of possible damage to that structure and its foundations.
41. I briefly consider and comment on the five alternative options put forward (noting that so-called “option five” is the development as amended before the Court in Exhibit A1), that is options 1, 2, 3, 4a and 4b (all set out in sketch plan form within Exhibit A3).
42. The phrase “all other reasonable remedial treatments and measures [or alternative development options] have been determined to be ineffective” (to prevent tree removable or substantial tree damaging activity), should be assessed, in my view, having regard to the relevant Development Plan guidelines and the reasonable expectations of development in a particular area and on a particular site. In some cases it cannot be exhaustive because development applications may be necessary and discretion is to be exercised in decision making by the relevant planning authority.

Option 1 (Relocate a double garage toward front of the property, in front of existing dwelling alignment)

Comment:

• the concept proposal does not meet RZ Principle 119 as it would be well forward of the dwelling and not either in line with nor 0.05 metres set back behind the dwelling façade;
• requires likely removal of two non-indigenous native trees/large shrubs and widening of the vehicle cross-over from single to double width, both not conducive to maintenance of streetscape character and amenity; and
• I agree with Ms Taylor that it is not a reasonable or acceptable alternative development option.

Option 2 (Relocate a double garage to the rear north-east, not south-east as proposed, corner of the property, set back approximately 1 metre from the northern and eastern boundaries with side-on access from the south and reversing toward the tree trunk and back along the driveway to the front)

Comment:

• vehicle manoeuvring (reversing particularly) around and adjacent the tree trunk would be difficult and cause some inconvenience;
• a non-indigenous native tree of some size would need to be removed, negatively affecting rear amenity of the subject land and adjoining parcels;
• if vehicle entry was to be rotated to the west with adjustment to driveway alignments that could somewhat relieve the intrusion of paving and affect on soil compaction in the root zone;
• a siting on the northern boundary, but further away from the eastern boundary (3 to 4 metre setback) may ease manoeuvring difficulties and allow retention of the other tree; and
• a variation of option 2 as discussed above (moving toward option 3 refer below) could become reasonable-practical and with acceptable external impacts to amenity and character.

Option 3 (Relocate a double garage to the rear north side boundary adjacent to the rear of the dwelling verandah)

Comment:

• this option, like option 2 presented would require removal of a smaller non-indigenous tree, negatively affecting amenity to a degree;
• manoeuvring is somewhat tight but can be eased with the garage resited a few metres to the rear (east); and
• the variation of options 2 and 3 and/or combined, could see the garage resited on or 1 metre off the northern boundary, 3 metres back from the verandah (5 metres from the rear of the dwelling) and enable adequate manoeuvring. A small tree is still likely to require removal and paved vehicle manoeuvring may still impact negatively on the trees’ root zone.

Options 4a/4b (These options have the double garage generally in the location and orientation as proposed, but moved to the west (toward the road) from an 11 metre separation from the back dwelling verandah (proposed) to a 5.5 metres separation and with option 4a the building located on the southern boundary and option 4b the building set back 1 metre off the boundary similar to the amended development proposal)

Comment:

• option 4a (on the southern boundary) makes for easier turning to/from the garage and both spaces within it, than option 4b due to the verandah corner post, and in either case the further back–closest to the tree and its root zone, the easier the manoeuvring, though the greater possible impacts on and from the tree, its canopy and root zone; and
• I consider that option 4a (on the southern boundary) and in the order of 5 metres back from the verandah and some 2 metres short of the tree trunk, might enable acceptable manoeuvring and some separation from the tree and its root zone (and subject to arborist confirmation and advice) achieve an acceptable, reasonable alternative design option.

43. I conclude under consideration of this sub-issue that:
    • there is no right to a double side-by-side garage (as opposed to a covered parking solution with inline parking and carport/garaging along the southern side of the dwelling and along the driveway), or certain environmental conditions (really choices or trade-offs for the occupants);
      
    • an alternative development option with carport/garage along the driveway adjoining the side of the dwelling with vehicles in a stacked position, would be reasonable and readily achievable; and
    • that further variations of options 2 and 3 and option 4a could achieve an acceptable design and development outcome and see the tree in question retained and with perhaps minimal, acceptable impact on its root zone and future health.
44. I find that CW Principle 50(a) numbers (1) and (2) are not made out on my consideration of the evidence and on my assessment.

Conclusions

45. Despite the above conclusion with respect to alternative design solutions and options, given my findings regarding insufficiency of the contribution and notability of the tree to the local area, I place less weight on the failure to demonstrate full achievement of CW Principle 50(a). If it were the case that there were very obvious, easily achievable, reasonable alternative design options available, that enabled the tree to be retained, then that may be sufficient to warrant retention of the tree, despite satisfying CW Principle 44(a) and (f), in the light of general visual amenity and character preservation and enhancement guidelines (such as CW Objective 16 and RZ Principle 2). That is not my assessment.
46. I have had the benefit of a thorough view of the subject land, the tree in question, the local area, streetscape and locality; I have considered the evidence and reports including the opposing opinions of Mr Grimm and Mr Heseltine; and I have assessed the proposal against the relevant Development Plan guidelines. I find there to be sufficient compliance with the Development Plan as a whole to warrant approval of the application for the removal of the Aleppo Pine tree at 12 Carey Street, Magill, and the development of a double garage outbuilding for vehicle garaging and auxiliary purposes, sited in the SE corner position set back 1 metre from both the eastern and southern boundaries. Conditions of consent are relatively standard and straightforward and should be non-contentious.

Decision

47. The appeal is allowed, the decision of the Council regarding Development Application No. 180/1087/08, is reversed. Conditional Development Plan Consent is granted subject to the following conditions:
    1. The external surface of the double garage is to be pre-coloured colorbond.
       

2 The colour of the colorbond shall be as submitted, that is beige for the walls-roof and mostly merino for the trim.

3. Two indigenous trees (as replacements to the tree approved to be removed) are to be planted in the rear yard of the subject land with species, location and implementation timing to the reasonable satisfaction of the Council.
   

4 The stormwater collection and disposal system (whether including rainwater tanks or piping direct to the stormwater table), shall be to the satisfaction of the Council and with details provided prior to or as part of the Building Rules Consent application.

48. There will be an order to that effect.