City of Burnside v Prestige Wholesale Pty Ltd - [2005] SASC 195

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
CITY OF BURNSIDE v PRESTIGE WHOLESALE PTY LTD
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Anderson)
1 June 2005
ENVIRONMENT AND PLANNING - SOIL CONSERVATION AND TREE PRESERVATION - TREE PRESERVATION ORDERS
Appeal against decision of Environment Resources and Development Court to allow removal of a tree deemed to be a significant tree under the Development Act 1993 – Tree shown to have propensity to drop branches – Unacceptable risk to public safety – No reasonable measures available to eliminate or reduce risk – Consideration of Burnside (City) Development Plan objectives and relevant Principles of Development Control – No error in approach of ERD Court disclosed – Decision turned on detailed issues of fact and matters of planning judgment – Appeal dismissed.
Development Act 1993 (SA); Development Regulations 1993 (SA); Burnside (City) Development Plan 2005 Objective 20, Principles 41, 42, 46, 47 and 48, referred to.
Transfield (Adelaide) Pty Ltd v Corporation of the City of Port Augusta (1982) 29 SASR 467; Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton (1993) 62 SASR 165, applied.

CITY OF BURNSIDE v PRESTIGE WHOLESALE PTY LTD
[2005] SASC 195
Full Court: Doyle CJ, Bleby and Anderson JJ

DOYLE CJ: I would dismiss the appeal. I agree with the reasons given by Bleby J.
BLEBY J:
Introduction
In 2000 the Development Act 1993 was amended to include “tree-damaging activity” to a “significant tree” in the definition of “development” for which approval was required under the Act. Tree-damaging activity was defined to include the removal of the tree. The specification of what is a “significant tree” for the purposes of the Act is to be found in the Regulations or in a Development Plan.
The respondent conducts the business of selling new and used cars, mainly prestige European cars, from premises situated at 269-271 Glen Osmond Road, Frewville. The premises are located on the north-eastern side of Glen Osmond Road, which is an arterial road leading from the City of Adelaide to the commencement of the South Eastern Freeway. The premises are located within the Business (Glen Osmond Road) Zone of the appellant council.
Located on the respondent’s land, and near its south-western boundary, is a significant tree, Corymbia Citriodora, commonly known as a lemon scented gum. The respondent applied to the appellant for consent to remove the tree because of its history of dropping limbs causing damage to vehicles displayed for sale under its canopy and because of the risk of further damage to property and possible personal injury caused by falling limbs if it remained.
The council refused the application. The respondent appealed to the Environment Resources and Development Court (“the ERD Court”) which allowed the appeal and granted approval for removal of the tree subject to certain conditions which are not presently relevant.
The reasons for refusal of the council were:
1.The tree is not diseased and its life expectancy is not short.
2.Insufficient remedial treatments and measures have been investigated.
Material facts
The forecourt of the showroom on the premises, including the land beneath the canopy of the tree, is used for the outdoor display of second-hand motor vehicles. There was evidence that on a number of occasions substantial limbs had fallen from the tree unexpectedly and without warning, damaging cars, and on one occasion narrowly missing an employee of the respondent. There was also evidence that honeydew and resins from the tree and bird droppings fell onto the cars below, and that unless they were washed frequently permanent damage could be caused to the duco.
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 north-eastern side of Glen Osmond Road. The tree is not remnant vegetation, as Corymbia Citriodora is not native to South Australia. It was estimated to be between 30 and 60 years old.
Over a number of years development applications have been made and approved and development has been carried out on the land subject to the tree remaining. Some of these developments occurred before the relevant amendment to the Development Act and some occurred after. As a result, the tree’s root system has been affected by building development and, apart from building development, all the ground surface under the canopy of the tree not covered by buildings, with the exception of a small garden area around the base of the tree, has been paved. There was evidence that these developments have deprived the tree of access through the root system to desirable levels of moisture, and that this, coupled with a particular method of pruning adopted in the past, may have contributed to the tree’s propensity to shed limbs and branches. However, the cause of the limb and branch breakages is not relevant for present purposes other than as evidence to demonstrate the likelihood of continued branch shedding for so long as the land is used for the purposes presently permitted under the Act.
Notwithstanding the deprivation of soil moisture and the less than ideal growing conditions, the tree was considered by all the experts to be in good health, and in no imminent danger of dying.
The Development Plan
Objective 20 of the Burnside (City) Development Plan provides as one of the objectives of the Plan:
The conservation of significant trees … in Metropolitan Adelaide which provide important aesthetic and environmental benefits.
Trees are a highly valued part of the environment of Metropolitan Adelaide and are important for a number of reasons, including those relating to their high aesthetic value, the conservation of bio-diversity, the provision of habitat for fauna, and the conservation of original and remnant vegetation.
While indiscriminate and inappropriate significant tree removal should generally be prevented, the conservation of significant trees should occur in balance with achieving appropriate development.
The relevant Principles of Development Control in relation to significant trees are as follows:
41.Land should not be developed where the development would be likely to result in a substantial tree-damaging activity occurring to a significant tree.
42.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.
There follow other provisions in principles 43, 44 and 45 relating to the designation of significant trees and the undertaking of development in respect of or in close proximity to significant trees. These are followed by the following further principles:
46.Development should be designed and undertaken to retain and protect significant trees.
47.Development should be undertaken with the minimum adverse affect on the health of a significant tree.
48.Significant trees should be preserved and tree-damaging activity should not be undertaken unless:
(a)     in the case of tree removal;
(1)(i)     the tree is diseased and its life expectancy is short; or
(ii)the tree represents an unacceptable risk to public or private safety; or
(iii)the tree is within 20 metres of a residential, tourist accommodation or otherwise habitable building and is a bushfire hazard within the Bushfire Prone Area shown on 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)     (not relevant)
Reasons of the ERD Court
It was not in dispute that the only relevant issues arising under principle 42 were those referred to in paras.(a) and (f). The Judge observed that if those issues were determined in the negative, it was not necessary to go further. She held that the next step was to consider the relevant matters arising under principle 48, in this case the matters referred to in paras.(a)(1)(ii) and (iv), and whether all other reasonable remedial treatments and measures have been determined to be ineffective.
After reviewing the evidence the Judge found that the tree did make an important contribution to the character of the local area and that it formed a notable visual element of the landscape of the local area. Principle 42 was therefore engaged. The Judge therefore moved to consider the relevant issues arising under principle 48.
The appellant argued that this constituted an error on the part of the Judge. It was said that she isolated the only relevant issues for determination as being those arising out of principle 48, without taking into account or recognising the importance of other provisions of the Development Plan relating to significant trees, particularly those contained in principle 42. There was no dispute as to the findings the Judge had made in relation to principle 42. I merely note that argument for present purposes and will return to it.
The Judge then reviewed relevant engineering evidence and was unable to conclude that the tree had been shown to be causing or threatening to cause substantial damage to the building on the land. She then considered the risk to public safety, and held on the evidence that there was an unacceptable risk of reasonably large branches, sufficient to cause injury, falling from the tree, and that that risk existed both in severe wind conditions and at other times. She considered the evidence concerning the possible erection of a sail or sails beneath the canopy of the tree or parts of it, but did not consider that that was 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”[1].
[1] Reasons, para.[59]
The Judge then considered the possibility of rearranging the layout of the site, including removal of display vehicles from the area covered by the canopy of the tree. She rejected that proposal as not being reasonable and not being effective across all affected areas because the under-canopy area would remain a thoroughfare for people, the area had been previously approved on an earlier development application for the display of motor vehicles for sale, and the measure would not provide protection for members of the public on the footpath.
Finally, the Judge considered that the only other relevant option was to subject the tree to heavy pruning. In the light of evidence from arborists the Judge concluded that that would not be a reasonable measure.
Accordingly, the Judge concluded that there was “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”[2]. The Judge’s final conclusion was expressed as follows[3]:
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.
[2] Reasons, para.[64]
[3] Reasons, para.[66]
Determination of the appeal
It is not relevant to determine, in this case, whether the Judge was correct in holding that, if the issues arising under principle 42 were determined in the negative, it would not be necessary to go further. The fact of the matter is that the Judge did go further and considered the relevant issues arising under principle 48. One can argue about aspects of the manner in which the Judge expressed her views as to the meaning and application of those principles, but these arguments amount to no more than matters of emphasis and degree. There was a recognition that the tree made an important contribution to the character of the local area, that it formed a notable visual element to the landscape of the local area and that the tree was in good health.
The Judge’s decision turned mainly on findings of fact. First, there were findings as to the nature and degree of risk attributable to the tree, and the consequences of that risk eventuating. Secondly, there were findings as to the availability and effectiveness of alternatives, namely reorganising the use of the site so that staff, customers and vehicles were kept out of harm’s way, installing sails that would catch falling limbs, and finally, the alternative of pruning the tree. The relevance of those measures turned on the extent to which they would reduce or eliminate the risk as found by the Judge, as well, in the case of sails and pruning, as their aesthetic effects.
Those findings of fact in turn led to a planning judgment which involved the consideration of those alternatives, bearing in mind the finding of fact as to the risk, in the light of the relevant principles in the Development Plan. Those principles were not ignored. There was also a question as to whether those were reasonable alternative measures under the Development Plan.
A respectable argument can be advanced on either side, and was advanced, on the issues of fact and on the matters of planning judgment. To acknowledge that is merely to demonstrate that the case was not an open and shut one. The fact remains that the decision turned on detailed factual findings and a planning judgment to be made in the light of the specific and particular circumstances of the case. If the Court were to interfere, it would simply be revisiting the factual issues and the planning judgment to be made, and would be doing so at a level of fairly fine detail.
The Full Court has made it clear that it is reluctant to interfere with findings of fact or matters of planning judgment at the level of detail that the present case involves.
In Transfield (Adelaide) Pty Ltd v Corporation of the City of Port Augusta[4] the Full Court expressed its view on the role of this Court on appeals against determinations of the then Planning Appeal Board under the Planning and Development Act 1966. The observations of Wells J[5], with whom King CJ and Mohr J agreed, are just as relevant to appeals under the Development Act 1993:
There has, over the last year or so, been a growing tendency for appellants to institute appeals that are found, whatever the formal grounds may have been, to rest, to all intents and purposes, upon attempts simply to have this Court disagree with the Planning Appeal Board’s conclusions upon essentially planning issues.
From the very beginnings of [the Land and Valuation Division], the Court has been insistent that it is only in exceptional cases that it will interfere with conclusions of that kind. There have been far too many grounds of appeal claiming that the Board gave too much or too little weight to this feature or that feature of the “relevant matters” referred to by sub-s.(6) of s 27 of the Act. In general, the Land and Valuation Division does not sit to hear purely planning issues re-argued, unless the Board have plainly made an identifiable and egregious blunder, or have misdirected themselves in law, or the circumstances are, in some respect, quite exceptional. Appeals to this Court are not rehearings.
[4] (1982) 29 SASR 467
[5] At 480
In Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton[6] Debelle J, with whom Cox and Duggan JJ agreed, said[7]:
As has been frequently stated, this Court will interfere with the Tribunal’s conclusions upon essentially planning issues in exceptional cases only. The Court does not sit to hear purely planning issues to be argued unless the Tribunal has plainly made an identifiable and egregious blunder, has made a demonstrable error of fact or principle, or the circumstances are in some other respect quite exceptional. This Court is reluctant to substitute its planning opinion for that of he Tribunal and will be minded to do so only where the appellant is able to demonstrate some fundamental departure from proper planning principles. I refer to what has been said by this Court in Transfield (Adelaide) Pty Ltd v Port Augusta City Corporation (1982) 29 SASR 467 at 480; Walkerville Town Corporation v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 (at 188); Penley v Murray Bridge District Council (1992) 163 LSJS 128. (Original emphasis)
[6] (1993) 62 SASR 165
[7] Ibid at 173
To say more would be merely to repeat what this Court has said on a number of occasions. It is inappropriate for this Court to interfere by revisiting factual issues and planning judgments made at such a level of fine detail.
I would dismiss the appeal.
ANDERSON J: I agree with the reasons of Bleby J and I would also dismiss the appeal.
However, I would particularly endorse the comments of his Honour which relate to the fact that there are valid arguments for reaching either result in this case.
In the end I agree, with some reluctance, that a “significant tree” has to be removed. This is all the more so, in my view, as the learned Judge formed the opinion that the tree made an important contribution to the character of the local area, and that it was a tree which was in good health.
The learned Judge made detailed findings of fact as to the likely risks to both the public and to private property if the tree remained. It was her Honour’s planning judgment, based on her findings of fact, that led to the conclusion that the tree had to be removed. No error can be pointed to in this regard.
The Full Court has made it clear many times, as Bleby J says, what principles should be applied by this court if there is to be interference with the planning judgment of the expert tribunal. The decisions are set out in his Honour’s reasons.
Because of those principles I would not be prepared to interfere with the planning judgment of the ERD Court.