Lacey v City of Burnside - [2009] SASC 136

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge)
LACEY v CITY OF BURNSIDE
[2009] SASC 136
Judgment of The Honourable Justice Kourakis
20 May 2009
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL
ENVIRONMENT AND PLANNING - TREES AND VEGETATION
Appeal against the decision of a Commissioner of the Environment, Resources and Development Court refusing the appellant's appeal against the respondent's decision refusing his development application to remove a significant tree in his back yard - the Commissioner held that the tree posed an unacceptable risk to safety for the purposes of Principle of Development Control 48 of the City of Burnside Development Plan but that all reasonable remedial treatments and measures had not been demonstrated to be ineffective as required by that Principle - whether the Commissioner erred in accepting one expert witness's evidence in relation to the level of risk posed by the tree but another witness's evidence in relation to the effect of pruning the tree - whether the Commissioner erred in imposing an onus on the appellant - whether the Commissioner erred in failing to have regard to the limited life expectancy of the tree when he considered the reasonableness of remedial measures - whether the Commissioner failed to take into account the effect of pruning on the aesthetics of the tree - whether the Commissioner failed to give adequate reasons as to the type and extent of pruning required to reduce the risk - whether the Commissioner failed to give adequate reasons with respect to his finding as to why he preferred one expert witness over another.
Held: Appeal dismissed - it was open to the Commissioner to accept one expert witness on one aspect and another expert witness on another aspect - the Commissioner correctly recognised that Principle of Development Control 48 imposed a persuasive onus on applicants for approval - the Commissioner had regard both to the limited life expectancy of the tree and the effect of pruning on the aesthetics of the tree - the Commissioner provided adequate reasons and was not required to provide more particular details as to the pruning regime - the Commissioner was not required to provide reasons as to why he preferred one expert witness over another because he did not positively find that the pruning regime would be effective, he simply found that given the conflicting expert evidence, the applicant had not demonstrated that major pruning was an ineffective remedial measure.
Development Act 1993 (SA) s 4, 23(4a)(a); Development Regulations 2008 (SA) reg 6A, referred to.
Lacey v City of Burnside [2008] SAERDC 75; Tuna Boat Owners Association of SA Inc v Development Assessment Commission (2000) 77 SASR 369; City of Mitcham v Freckman (1999) 74 SASR 56; R v Olbrich (1999) 199 CLR 270, considered.

LACEY v CITY OF BURNSIDE
[2009] SASC 136

KOURAKIS J: This is an appeal from a decision of a Commissioner of the Environment, Resources and Development Court (the ERD Court), dismissing the appellant’s appeal against a decision of the City of Burnside (Burnside) refusing his application to remove a significant tree located in his back yard.
Background
In the yard of Mr Lacey’s home in Rose Park there is a very large and old Wallangarra White Gum tree. I will refer to it as the white gum. Its lower trunk is 2.1 metres and it towers 14 metres high. The crown of the white gum spreads over approximately 17 metres. Not surprisingly then it overhangs Mr Lacey’s verandah by about two to three metres and his tennis court by about six metres.
In 2003, while Mr Lacey was gardening, he was very nearly hit by a falling branch which was close to 15 metres long. Mr Lacey testified in the ERD Court that about 10, generally smaller, limbs have fallen since that time. He became so concerned by the danger he believes the white gum poses that he stopped using that part of his yard, including the tennis court, which lies around and beneath the white gum. In November 2006 he sought approval from Burnside to remove the white gum. Burnside refused his development application. Mr Lacey appealed to the ERD Court. A Commissioner of that Court dismissed his appeal.
On his appeal to this Court Mr Lacey accepts that the disposition of his appeal comes down to the proper application of Principle of Development Control 48 (PDC 48) of the City of Burnside Development Plan (the Development Plan) to the facts of this case.
That principle provides that significant trees should be preserved, and that tree-damaging activity should not be undertaken unless, relevantly to this appeal, the significant tree represents an unacceptable risk to safety, and all other reasonable remedial measures are demonstrably ineffective. The Commissioner accepted that the first element of the proviso to PDC 48 was satisfied; there was an unacceptable risk. However, he concluded that the second element had not been satisfied. The Commissioner was not satisfied that the risk could not be brought back within acceptable limits by appropriate pruning. It is only the second element that is in dispute on this appeal. The resolution of that dispute will, in effect, determine whether the white gum is to be subjected to a regime of periodic amputations of those of its limbs which are prone to fall, or a final, life-ending decapitation.
The City of Burnside Development Plan
The Development Plan makes provision for significant trees because the definition of development in s 4 of the Development Act 1993 (SA) (the Act) includes any tree-damaging activity to a significant tree (other than maintenance pruning that is not likely to adversely affect the general health and appearance of the tree).
Objective 20 of the Development Plan provides:
The conservation of significant trees (including significant trees identified in Table Bur/4 and as shown on Figures Bur(ST)/1 to 8 inclusive) 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 more relevant of the Development Plan’s principles of development control are as follows:
PDC 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.
PDC 48Significant 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.
The white gum is a significant tree for the purposes of PDC 42 and 48 because it is declared by the Development Plan to be such a tree pursuant to the power in s 23(4a)(a)(i), (v) and (vi) of the Act. It is also a significant tree because it falls within the criteria prescribed by reg 6A of the Development Regulations 2008.[1]
[1] Replacing reg 6A of the Development Regulations 1993 (SA) (ceased).
The evidence
PDC 42 applies if, relevantly to this case, the significant tree makes an important contribution to the character or amenity of the local area. It is not necessary to canvas the evidence to that effect in much detail because the Commissioner’s finding that the white gum makes such a contribution is not challenged. It is sufficient to mention that the unchallenged evidence of a landscape architect was that the white gum appears as a notable visual element from surrounding avenues and terraces up to 100 to 150 metres away, “creating a prominent and evergreen vegetated form in the urban realm”. The landscape architect also concluded that the white gum added substantial visual amenity to the otherwise drab lane at the rear of Mr Lacey’s home.
The evidence concerning the extent of the risk posed by the white gum needs no more than a brief reference because the Commissioner’s finding that it posed an unacceptable risk is also not challenged.[2] The limb that nearly hit Mr Lacey in 2003 was about 250 mm in diameter. The evidence was that a branch of about 150 mm in diameter weighs about 90 kilograms. The branches that have fallen since have generally been between 50 to 100 mm, but one was nearly 200 mm.
[2] Lacey v City of Burnside [2008] SAERDC 75 at [25].
In the hearing before the Commissioner, Burnside relied on the reports and testimony of Dr Nicolle, who holds an Honours Degree in Science from the University of Adelaide, Department of Botany, and a Doctorate from the Flinders University of South Australia, School of Biological Science. In a report dated 29 July 2008, he opined that Wallangarra Gums are subject to occasional smaller diameter (less than 100 mm) sudden branch failure events, but that such branch failure is more likely to occur in very wet and windy weather conditions. Dr Nicolle agreed that there was evidence of past branch failure up to about 200 mm in diameter. Although he assessed the likelihood of continuing branch failure as low, he did not challenge the frequency of the failure reported by Mr Lacey. In Dr Nicolle’s opinion the smaller diameter branches that failed were likely to hit the ground with only minor force, if falling from the lower crown, or to be completely caught in the crown of the tree if falling from higher up.
In a report dated 20 August 2003 Mr Knight, a consulting arborist with an advanced diploma in aboriculture who was called by Mr Lacey, said that sudden limb failure is common in Wallangarra Gums. He testified that the rate of failure may accelerate as the white gum becomes older, and that the rate of limb drop reported by Mr Lacey was consistent with his experience. In a subsequent report dated 28 August 2008 Mr Knight explained that the limbs in the crown of the white gum are over-extended, end-weighted and have little taper. He attributed the frequency of limb failure in the past to those features. In Mr Knight’s opinion limb failure can occur during wind events, but more commonly occurs afterwards and without warning. In terms of his concern about the risk posed by the tree, Mr Knight was most concerned about those branches up to 250 mm in diameter.
It is necessary to deal with the evidence of Mr Knight and Dr Nicolle about the effect of pruning the tree on limb failure, and on its other consequences, in greater detail. In his report of 28 August 2008, Mr Knight accepted that targeted reduction pruning could achieve the desired effect of lowering limb failure rates in the short term. Mr Knight’s evidence was that good pruning in 2001 and 2002 would have reduced the rate at which limbs dropped. Mr Knight was of the opinion that the limited pruning of the dead branches and very small unhealthy branches, which had been suggested by Dr Nicolle, would not reduce the risk of injury at all.
In his opinion the risk of limb failure would be reduced by shortening the lateral limbs of the crown of the white gum by about 15 to 20 per cent, and that that pruning would need to be repeated every two to five years depending on the growth rate of the tree. At another point in his evidence Mr Knight suggested that pruning may be necessary every 12 to 18 months. Mr Knight testified that the cost of pruning to reduce limb failure would be $1,500.
However, in his opinion such pruning would have undesirable consequences. Mr Knight explained that effective pruning of a tree requires the identification of a suitable reduction point on the branch that is pruned, but in his opinion only half of the white gum’s branches had suitable reduction points. Generally the reduction point should be located at a point at which a branch bifurcates. If a branch is simply lopped at a point about 15 to 20 per cent short of its full length, where there is no reduction point, epicormic growth is promoted. Epicormic growth is vigorous new growth at the end of the branch. Epicormic growth adds disproportionate weight to the end of the branch, which may increase the risk of limb failure. Additionally, epicormic growth is not as securely bound to the tree as original growth. For that reason those of the white gum’s limbs without a suitable reduction point would have to be cut back by more than 15 to 20 per cent, and possibly all the way back to the trunk. In Mr Knight’s opinion that would adversely affect the aesthetic appeal of the white gum and hasten its decline. Mr Knight testified that:
… the visual appearance of the tree would deteriorate over time as the tree continues to lose branches, its shape changes over time and that is a normal process of the decline of a tree.
and:
So in this case when I have been through that process it is clear that to prune the tree for reduced risk is possible but that there are many branches in the tree where effective pruning is going to be difficult and therefore we are either faced with the choice of having to remove those branches because we can’t effectively risk reduce, or leaving them in the tree, in which case we haven’t effectively reduced the risk.
Mr Knight did not produce a pruning or cutting plan. Other than the general assertion that the aesthetic appeal of the white gum would be reduced, there was no attempt to identify the branches that would be disproportionably cut back, or to otherwise describe the ultimate size, shape and appearance of the white gum after it had been pruned. No attempt was made to illustrate diagrammatically or pictorially the effect of the pruning necessary to reduce risk on the white gum’s appearance, either from within Mr Lacey’s yard or from the various vantage points.
Mr Knight’s opinion was that pruning the white gum would also affect its vitality, leading to a rapid decline and death. Mr Knight thought the white gum had only average vitality in his report of 28 August 2008. Mr Knight estimated the life expectancy of the white gum to be between 10 and 20 years, on the assumption that it was pruned every 12 to 18 months.
Dr Nicolle, in his report dated 29 July 2008, recorded that the white gum exhibited excellent to above average vigour. He thought that its life expectancy was between 10 and 20 years and that it could possibly live for a further 50 years. Dr Nicolle put the age of the white gum at between 20 and 40 years. Mr Knight thought it to be between 30 to 35 years. Another arborist whose report was tendered, but who did not give evidence, estimated the age of the white gum at more than 30 years, the general life expectancy for Wallangarra Gums at about 80 years, and the life expectancy of the white gum at something just less than 30 years. Mr Knight gave evidence that in his experience Wallangarra Gums are often removed before the age of 50 because of pest or disease attack. However, he did not dispute the general life expectancy evidence given by Dr Nicolle. It is plain enough that many factors may influence individual householders to remove a tree well before it reaches the end of its life naturally. Mr Knight’s experience of premature removal of Wallangarra Gums is, for that reason, of limited value.
Dr Nicolle recommended that only maintenance pruning of the tree should be undertaken. By that he meant the removal of dead and failed branches. He did not recommend any more severe pruning because it would produce vigorous epicormic regrowth, which would affect the structure and aesthetic appeal of the tree. In his view, however, severe pruning would not detrimentally affect the health, vigour and life expectancy of the tree, but instead was likely to increase those qualities. He explained that severe pruning was not desirable because epicormic regrowth is weakly attached at its point of origin. Dr Nicolle agreed that harsher pruning would further reduce the risk of limb failure, but did not consider it economically justified because of his view that the risk, such as it was, was not unacceptable. Dr Nicolle estimated that the maintenance pruning he had recommended, namely the removal of failed branches, dead material and very small sized (less than 50 mm in diameter) unhealthy and spindly branches, would remove only some 10 per cent of the white gum’s vegetation.
Dr Nicolle was asked whether there was any point between that 10 per cent and the removal of 15 to 20 per cent, suggested by Mr Knight, that would further reduce the risk without adversely affecting the structure and amenity value of the tree. He responded that he had not considered that question in detail because he was not recommending more than maintenance pruning. However, he agreed that the more extensive the pruning, “the more you immediately reduce the risk associated with the tree”. He opposed pruning every 12 to 18 months because it unnecessarily reduced the foliage available for photosynthesis. Risk management pruning every five or ten years was sufficient in his opinion.
Dr Nicolle agreed that prior to the death of any tree there is a period of senescence and decline and that the likelihood of limb drop increased in that period. Dr Nicolle testified that pruning could be undertaken without affecting, in any substantial way, the white gum’s aesthetic appearance. Dr Nicolle explained that he had not recommended heavier pruning because in his view the existing rate of limb drop was acceptable. Dr Nicolle did agree that limb drops of limbs less than 100 mm in diameter, particularly the smaller branches in that range, would not be reduced by risk management pruning.
Reasoning of the Commissioner
On the issue of the degree of risk posed by the white gum, the Commissioner found as follows:
I have concluded that the rate at which limbs of notable size have dropped in an area of Mr Lacey’s backyard he would expect, in the normal course, to be used by his family and friends for recreational and leisure is not acceptable, is in excess of the risks that are implicit in owning such a tree and is approaching if not reached the point where removal is justified having regard to the provisions of the Plan.[3]
[3] Lacey v City of Burnside [2008] SAERDC 75 at [25].
The reasoning of the Commissioner on the issue of measures that might be taken to reduce the risk is as follows:
On advice from Mr Knight in 2003 following the near miss, Mr Lacey has chosen not to embark on a pruning program. Mr Knight’s advice then and now is that the tree is not a suitable candidate. In his view, the extent of pruning necessary to reduce the risk of limb failure when undertaken in accordance with AS4373-2007 would adversely affect its visual amenity and hasten its decline. In stark contrast, Dr Nicolle said that maintenance pruning is desirable but not essential. If undertaken, maintenance pruning would not have impacts on the health of the tree and may improve its aesthetic appeal.
It appears to me that the qualification to Principle 48(a)(1)(ii) has not been adequately satisfied. Having carefully reviewed the evidence of Mr Knight and Dr Nicolle I do not think that it has been established to a sufficient level of certainty that maintenance pruning or more significant pruning undertaken by an appropriately qualified and experienced person would lead to so rapid a decline of the tree that “biting the bullet now” by removing it is the justified course of action. On the question of longevity after pruning, Mr Knight conceded that the life expectancy of the tree would be in the order of 10 years.
The tree has high aesthetic and amenity value and characteristics the Plan seeks to preserve. Nevertheless the evidence shows that it has a pattern of limb failure that is likely to be repeated over time. The tree is located in an area of the subject land that could reasonably be expected to be used by Mr Lacey and his family quite intensively. That area has been, by necessity, quarantined by him. In the absence of any other consideration the point has been reached where the removal of the tree might be justified. However, the provisions of Principle 48(1)(a)(ii) only come into effect after determining that all reasonable remedial work is shown or is considered to be ineffective. I acknowledge the possibility that the tree might be adversely affected by pruning but I am not persuaded by the appellant’s case. Burdensome as it may be Mr Lacey should undertake a regular pruning regime and monitor the results and record them accurately. If that course of action fails to achieve a reduction in the various aspects of limb failure that bear upon personal safety it is open to him to reapply to the Council for the removal of the tree.[4]
[4] Lacey v City of Burnside [2008] SAERDC 75 at [28]-[30].
First appeal ground: Assessment of expert evidence

The appellant’s first submission is that the Commissioner erred in accepting Mr Knight’s evidence about the level of risk but Dr Nicolle’s evidence about the effect of pruning the white gum. It is said that in so doing the Commissioner erred as a matter of law. In my opinion, the assessment of the evidence of the two expert witnesses raised questions of fact alone, and the Commissioner made no error in the way he dealt with their evidence.
There was no underlying dispute between Mr Knight and Dr Nicolle about the frequency and extent of limb failure. Such disagreement as there was about the severity of the weather conditions which would lead to limb failure was peripheral. Both experts accepted the rate and nature of limb failure that had occurred in the past, and that it would continue into the future if no prophylactic measures were taken. It is on that common factual basis that the Commissioner found that the white gum posed an unacceptable risk to the safety of Mr Lacey, his family and his friends. That conclusion, although involving an element of judgment, is one of fact that it was ultimately for the Commissioner to make. It was understandable that Mr Knight and Dr Nicolle’s opinions about the acceptability of the risk were received into evidence, but, given the nature of the evaluative judgment involved, their opinions were never likely to be determinative. Acceptable levels of risk are decisions that ultimately must be made by the tribunal charged to evaluate the competing considerations that are involved in making a judgment of that sort. Although botanists and arborists can give evidence about the expected frequency and nature of limb failure, they are not experts on public safety standards. For example, it would have been open to the Commissioner to decide that the risk was acceptable, even if both Mr Knight and Dr Nicolle thought that it was unacceptable (and the converse is equally true). Nothing much flows from the fact that Mr Knight happened to share the Commissioner’s view on the evaluative judgment he ultimately made, and that Dr Nicolle did not.
It was because Dr Nicolle assessed the risk differently that he did not recommend anything more than the maintenance pruning he described. However, Mr Knight and Dr Nicolle both agreed that more severe pruning would reduce the frequency and nature of limb failure. There was an abundance of evidence on which the Commissioner could find, as a matter of fact, that pruning, in excess of maintenance pruning, would reduce the risk to an acceptable level.
Equally it was open to the Commissioner to find that the risk management pruning described by Mr Knight could be undertaken without adversely affecting the aesthetics of the tree. Mr Knight said that it would affect the aesthetics of the tree. Dr Nicolle said that it could be undertaken without affecting the aesthetics of the tree. It was open to the Commissioner to prefer Dr Nicolle’s evidence on that question, even though the Commissioner had reached a different conclusion about the acceptability of the risk of the present state of the tree than that of Dr Nicolle. The Commissioner was not bound to reject all of the evidence of Dr Nicolle because he had concluded that, contrary to the opinion of Dr Nicolle, the risk was unacceptable.
On the question of the effect of harder pruning on the vitality of the white gum, Mr Knight and Dr Nicolle also differed. Again, there was no reason why the Commissioner could not prefer Dr Nicolle’s evidence on that factual issue to Mr Knight’s. In any event, although they differed as to the effect on the vitality of the tree, Mr Knight’s evidence about the white gum’s future life expectancy did not differ greatly from Dr Nicolle’s. Mr Knight thought that, assuming a hard pruning regime, the tree could be expected to live for a further 10 to 20 years. That was within the range suggested by Dr Nicolle, although he thought that there was some prospect it might live for greater than 20 years. On the issue of life expectancy too, it was open to the Commissioner to prefer Dr Nicolle’s evidence.
In any event, in my opinion the Commissioner did not positively find that the white gum could be pruned in a way that would bring the risk of limb failure within acceptable limits, without affecting its aesthetics or vitality. On a proper reading of his reasons he found only that it had not been demonstrated that a reasonable pruning regime would not achieve that result in a way that was aesthetically acceptable. The Commissioner was not bound to accept and act on the evidence of Mr Knight having regard to the opposing opinions of Dr Nicolle.
Onus on the application
It is on that reading of the Commissioner’s reasons that the appellant makes his second attack on the judgment below.
The appellant submits that the Commissioner impermissibly imposed an onus on the appellant and held against him because he had not discharged it. The appellant contends that there is no onus on an applicant for development consent to establish that the development consent should be granted. The appellant relies on the decision of this Court in Tuna Boat Owners Association of S.A. Inc v Development Assessment Commission[5] and City of Mitcham v Freckman.[6]
[5] (2000) 77 SASR 369 at 373, [27].
[6] (1999) 74 SASR 56 at 61, [16].
The general proposition that an applicant for development consent does not carry an onus to establish that approval should be granted cannot be taken too far. The proposition is sound where the objectives and principles of the plan against which an application must be assessed do not in themselves create a presumption or bias, for or against, approval. Administrative tribunals are commonly given discretions which, if their jurisdiction is properly invoked, they must exercise. Where jurisdiction is conferred in that way it is not open to a tribunal to throw up its hands and say that it is all too hard and that it does not know which way it should exercise its discretion. It cannot for that reason dismiss an application made to it. In that limited sense an applicant might be said not to carry an onus.
However, if the objectives and principles of a development plan provide that approval should not as a general rule be given to specified development unless there is a special reason to do so, then, plainly enough, an applicant for an approval must demonstrate that there is a special reason in his or her case. In effect, the applicant carries a persuasive onus. So much I think is made clear by the following passage in Tuna Boat Owners Association:
I disagree. It is true that generally there is no onus on an applicant for development consent to establish that the development consent should be granted. The relevant authority must simply assess the proposed development against the relevant Development Plan. But in this case, the Development Plan contains an objective and principle that invokes the concept of ESD [environmentally sustainable developments]. That in turn, in a case like the present, invites the use of the precautionary principle, simply because all of the consequences of the proposed development are not known and fully understood.
In such a case, assessing the proposal against the Development Plan requires a consideration of whether it is a development which is ecologically sustainable. As the longer term consequences of the proposed development are not known, it is appropriate to require measures that will avert adverse environmental impacts that might emerge.
That was the ERD Court's approach. It was open to it to so proceed. The Court did not wrongly impose an onus on the Association in relation to the assessment of the proposal against the DP. The approach of the Court simply reflected what was inherent in one of the matters that the Court had to consider, the issue of ESD.[7]
[7] (2000) 77 SASR 369 at 373-4, [27]-[29].
There is a further matter that should be noted about the proposition that an applicant for development does not carry an onus. There is a distinction between the exercise of a discretion itself, which may be conferred without any inherent bias, and the determination of the facts on which the discretion will be exercised. If a party urges a tribunal to exercise a discretion on the basis that a particular circumstance is a relevant matter, the existence of that circumstance must be proved by the party who seeks to rely on it. That party necessarily carries the onus to prove, as a fact, the existence of that circumstance. Perhaps the most convenient way to illustrate the point I am seeking to make is by reference to the decision of the High Court in R v Olbrich,[8] a sentencing case. In Olbrich the High Court held that in the exercise of the sentencing discretion, the convicted person who wishes to rely on a fact in mitigation must prove that fact on the balance of probabilities. On the other hand, the prosecution must prove the existence of any circumstance of aggravation on which it relies beyond reasonable doubt. The differential onus which applies to the proof of the facts on which the sentencing discretion must be exercised does not, of course, have any application to the discretionary balancing of the applicable sentencing considerations. The sentencing discretion is often conferred in general terms, although on occasions the legislature may provide that a particular type of penalty should not be imposed unless good, or special, reasons exist. A party who seeks what might be referred to as an exceptional penalty of that kind has both an onus to prove the facts on which he or she relies and an onus to persuade the sentencing court to exercise the discretion in his or her favour.
[8] (1999) 199 CLR 270.
In this case the appellant contends that the presumption in the plan against allowing development which damages significant trees should not be applied; the appellant claims to fall within the proviso because the white gum poses an unacceptable risk and because the remedial measures would be unreasonable and ineffective. Whether or not the proviso applies to the white gum raises factual matters, which the appellant must prove, if he is to escape the application of the conservation principle enshrined in PDC 42 and 48 and Objective 20.
The very text and structure of PDC 48 show that unless those facts are demonstrated the general principle must be applied. The proviso in PDC 48 is conjunctive. That is, the general principle will apply unless both unacceptable risk and the ineffectiveness of reasonable measures are demonstrated. Moreover, the question of the degree to which reasonable measures can be effected is inextricably linked with the question of the level of acceptable risk. There is no reason therefore to differentiate in the onus between the first and second elements of the proviso.
In my view, therefore, the Commissioner was right to approach the question on the basis that he was simply not satisfied that the second element of the proviso had been established. He was entitled to take the view that in the absence of any more precise evidence about the effect of pruning on the white gum the appellant had failed to show that the pruning would so adversely affect its vitality that more severe pruning was unreasonable. In the absence of more specific evidence, and having regard to the opinion of Dr Nicolle, it was open to the Commissioner to remain unconvinced that pruning would not be effective.
Reasonable measures
In my view the concept of reasonable measures in the proviso to PDC 48 is related to the question of the cost and the practicality of the measures. The appellant did not put forward a case that the pruning involved prohibitive cost or was impractical.
However, the appellant contends that the concept of reasonableness extends to a consideration of the fact that the pruning regime would only allow the contribution to the visual amenity made by the white gum to continue for a limited period of time. This is the third basis on which the decision below is challenged. He argues that a period of 10 years is relatively short, and that the short time for which the white gum would continue to contribute to the amenity of the locality is relevant to the issue of the reasonableness of the suggested pruning regime.
In my view, the limited life expectancy of the white gum is not relevant to the issue of the “reasonableness” of measures within the meaning of that term in PCD 48. Rather, the limited life expectancy of a significant tree is a relevant consideration in the exercise of the discretion allowed by the Development Plan to approve the removal of a significant tree, even where it is demonstrated that reasonable measures could bring the risk it poses back within acceptable limits. In balancing the private interests of the appellant against the public benefit of maintaining the white gum, approval to remove it might still have been given, after taking into account PDC 42 and PDC 48, if its life expectancy was too short to justify the impingement of the appellant’s enjoyment of his back yard. I do not suggest that that was the case here. I am merely illustrating how, and at what point in the assessment process, limited life expectancy may operate as a relevant consideration.
Nonetheless, because it is understandable why the appellant has framed this point as he has, and because it does not prejudice the respondent to do so, for the purposes of the appeal I am prepared to proceed on the basis that the white gum’s life expectancy was relevant to the question of reasonableness in the proviso to PDC 48. The appellant claims that the Commissioner failed to have regard to that consideration at all. In my view the Commissioner plainly did have regard to it. That is the question to which he referred when he spoke of “biting the bullet”. The Commissioner was entitled to take the view that extending the visual amenity of the tree for a further 10 years justified its continued presence in Mr Lacey’s yard and the hard pruning that would reduce the risk. I am not satisfied, particularly having regard to the expert nature of the tribunal from which this appeal is brought, that there has been any error of fact in this regard.
It must be remembered that insofar as the appellant’s case was that pruning would substantially affect the aesthetics and vitality of the tree, it was a case based on events that may or may not happen in the future. In my opinion the Commissioner was entitled to take the view that the inherent uncertainty in attempting to make findings about future facts required him to approach this matter with some care. Plainly, if the future pruning of the tree and the effect of that pruning on the vitality of the tree led to a position where the continued maintenance of the white gum could not be justified, a further application could be made.
It is also said that the Commissioner failed to take into account the effect on the aesthetic appearance of the tree. In his judgment the Commissioner referred extensively to the debate about the effectiveness of more significant pruning. The effect on the aesthetics of the tree was canvassed extensively in the evidence and in submissions. I am satisfied that the Commissioner must have had regard to it, even though it is not expressly mentioned in his concluding paragraph.
Inadequate reasons
It was submitted that the Commissioner should have been more particular about the type and extent of pruning that he thought would reduce the risk, and that he should have made particular findings as to the effect on the aesthetics of the tree. That submission, it seems to me, is unrealistic given the way in which the case was run. Mr Lacey did not, as part of his case, provide any particular pruning plan. Nor did he attempt to illustrate the effect on the aesthetics of the tree. The parties ran the case on the basis of an assertion by Mr Knight and a counter-assertion by Dr Nicolle. Given the way in which the parties conducted the case it is unrealistic to demand any greater particularity in the reasons for decision of the Commissioner.
Finally, it is submitted that the Commissioner’s finding as to why he preferred one view over the other was not clear. However, as I have explained, the Commissioner did not positively find that the pruning regime would be effective. He was simply not persuaded by Mr Knight’s evidence. In my view, in the circumstances of this case, very little would have been gained by referring to the demeanour of the two experts or saying anything more about the strengths and weaknesses of their opinions. This was a relatively straightforward case where the Commissioner sensibly took the view that, given the conflicting expert evidence, major pruning could not be dismissed as a remedial measure without first giving it, and the tree, a chance.
Conclusion
For those reasons I dismiss the appeal.
I mention by way of postscript that the appellant complained that the result of the decision is particularly harsh for Mr Lacey. He must now seek planning approval to prune the tree beyond bare maintenance. The appellant is concerned that that approval may not be granted on the basis of Burnside’s preference of Dr Nicolle’s view about the acceptability of the risk. However, if there is no new or different evidence it could be expected that Burnside would accord the Commissioner’s decision that the risk was unacceptable great deference. Ultimately, however, Mr Lacey will have a right of appeal against Burnside’s decision if it takes that view. I am prepared to assume that the issue of the acceptability of the risk has not been finally determined by the decision below. Nonetheless, another Commissioner who hears any subsequent appeal from Burnside’s refusal, if it were to take that view, will be aware of the desirability of certainty in planning decisions, and is unlikely to come to a different conclusion to the Commissioner unless he or she considers it to be plainly wrong or the evidence very different. It certainly does not appear to me to be plainly wrong. Moreover, Mr Lacey can make an alternative application either to remove or severely prune the white gum. If the pruning regime he applies for can be shown to unacceptably affect the vitality or aesthetics of the white gum, approval to remove it might still be given. Indeed, Mr Lacey’s present concerns would have been largely avoided if an application in the alternative, for hard pruning or removal, had been made in the first place.
I will hear the parties as to costs.