Lurie and Anor and Town of Vincent
[2006] WASAT 41
•20 FEBRUARY 2006
LURIE & ANOR and TOWN OF VINCENT [2006] WASAT 41
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 41 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:559/2005 | DETERMINED ON THE PAPERS | |
| Coram: | MR J JORDAN (MEMBER) | 20/02/06 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | The application is allowed | ||
| B | |||
| PDF Version |
| Parties: | MI LURIE NJ AITKEN TOWN OF VINCENT |
Catchwords: | Camphor laurel tree – Trees of Significance Inventory – Approval to prune the tree – Condition requiring annual inspection following pruning – Survey strata subdivision approval – Tree management plan a condition of subdivision – Tree management plan included in design guidelines – Condition deleted from pruning approval |
Legislation: | Strata Titles Act 1985 (WA) Town of Vincent Town Planning Scheme No 4, cl 21 Town Planning and Development Act 1928 (WA) |
Case References: | Nil Nil |
Orders | The application for review is approved and condition (i)(c) (as amended) is deleted from the planning approval dated 9 August 2005 granted for the pruning of the camphor laurel tree at no's 128 – 130 Joel Terrace, Mt Lawley. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : LURIE & ANOR and TOWN OF VINCENT [2006] WASAT 41 MEMBER : MR J JORDAN (MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 20 FEBRUARY 2006 FILE NO/S : DR 559 of 2005 BETWEEN : MI LURIE
- NJ AITKEN
Applicants
AND
TOWN OF VINCENT
Respondent
Catchwords:
Camphor laurel tree – Trees of Significance Inventory – Approval to prune the tree – Condition requiring annual inspection following pruning – Survey strata subdivision approval – Tree management plan a condition of subdivision – Tree management plan included in design guidelines – Condition deleted from pruning approval
Legislation:
Strata Titles Act 1985 (WA)
(Page 2)
Town of Vincent Town Planning Scheme No 4, cl 21
Town Planning and Development Act 1928 (WA)
Result:
The application is allowed
Category: B
Representation:
Counsel:
Applicants : Mr Simon Bain
Respondent : Selfrepresented
Solicitors:
Applicants : As Agent
Respondent : Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 Mr MI Lurie and Mr NJ Aitken applied to the Town of Vincent (the Town) for approval to prune a camphor laurel tree on their lots at 128 - 130 Joel Terrace, Mt Lawley. The camphor laurel tree (the tree) is listed on the Town's Trees of Significance Inventory.
2 As acondition of approval, the Town required that the tree be inspected annually by an arboriculturalist and all necessary remedial works be carried out.
3 Mr Lurie and Mr Aitken said that the condition is concerned with the ongoing conservation of the tree and not specifically related to the pruning which has now been completed. They also said that once the land is sold, it would be difficult to comply with the condition because there would be new owners.
4 The Tribunal noted that an annual inspection of the tree is required by both the design guidelines adopted for the development of the land and as a condition of the survey-strata subdivision granted for the land.
5 The Tribunal is satisfied that there are in place sufficient controls to ensure the ongoing supervision of the health of the tree and so has deleted the condition.
Introduction
6 Mr MI Lurie and Mr NJ Aitken (the applicants) own Lot 27 and Lot 28 Joel Terrace, Mt Lawley (subject land). The subject land is adjacent to the foreshore reserve of the Swan River and the lots have a shared access leg which curves up the slope to Joel Terrace. Situated at the western boundary of the subject land, adjacent to the rear boundaries of two residential lots fronting Joel Terrace, is a large camphor laurel tree (the tree).
7 The Town of Vincent (respondent) has a "Trees of Significance Inventory" and the tree is listed on the inventory. Clause 21 of the respondent's Town Planning Scheme No 4 (TPS 4) states:
"The removal, destruction of and/or interference with any tree(s) listed on the Town of Vincent Trees of Significance Inventory contravenes this Scheme unless planning approval has first been obtained from the Council."
(Page 4)
8 In October 2004, the applicants lodged with the respondent an application to prune the tree. In August 2005 the respondent granted approval for the pruning of the tree subject to a number of conditions, which included:
"(i)(c) The Camphor Laurel tree to be inspected annually by arboriculturalist, Charles Aldous-Ball, or a qualified accredited arboriculturalist commissioned by the Town, and all necessary remedial works to be carried out."
9 Following a directions hearing in the State Administrative Tribunal (Tribunal), the respondent further considered the matter and at its meeting 25 October 2005, resolved to amend the condition to read:
"(i)(c) The Camphor Laurel tree to be inspected annually by arboriculturalist, Charles Aldous-Ball, or a qualified accredited arboriculturalist commissioned by the Town and all necessary remedial works to be carried out. The first annual inspection is to commence 12 months from the commencement of earthworks or development within proposed Lots 3 or 4."
10 The applicants then applied to have condition (i)(c) deleted from the conditional approval.
Related matters
11 The reference to Lot 3 or Lot 4 in condition (i)(c) relates to an approval issued in August 2005 by the Western Australian Planning Commission for the subdivision of the subject land into four survey-strata lots. The tree will be located on proposed Lot 4.
12 The survey-strata subdivision approval included the following conditions:
"10. A Management Statement being prepared and submitted for the WAPC's consideration and written confirmation in accordance with section 5C of the Strata Title Act1985 (as amended) (sic), to include the following additions to the by-laws contained in Schedules 1 and 2 of that Act:
(i) (…)
(ii) (…)
- (iii) To ensure the retention, protection and on-going preservation of the Camphor Laurel tree listed on the Town's Trees of Significance Inventory, the owner/s and/or occupier/s of proposed lot 4 shall implement the following measures to retain, protect and maintain the on-going health of the significant tree:
(a) The submission of a tree management plan which accounts for the works to be carried out during development works and the on-going maintenance shall be prepared by a private qualified arboriculturalist or a qualified arboriculturalist commissioned by the Town, prior to the issue of a building licence. This tree management plan shall be submitted to and approved by the Town and all associated works shall be undertaken and maintained thereafter in accordance with the plan to the specifications of the Town;
(b) The private qualified arboriculturalist, or a qualified arboriculturalist commissioned by the Town to be on-site during all limb removals process for the Camphor Laurel tree; and
(c) The Camphor Laurel tree to be inspected annual (sic) by a private qualified arboriculturalist, or a qualified arboriculturalist commissioned by the Town and all necessary remedial works to be carried out.
- 11. Measures being taken to the satisfaction of the Western Australian Planning Commission to ensure the identification and protection of the Camphor Laurel tree located on proposed lot 4 prior to the commencement of site works."
(Page 6)
13 On 27 September 2005, the respondent adopted "Design Guidelines for Nos. 128 – 130 (Lots 27 and 28) Joel Terrace, Mt Lawley" (Design Guidelines). Guideline 4(viii) reads:
"The Camphor Laurel Tree on Lot 4 is included on the Town of Vincent Trees of Significance Inventory. The Management Plan for preservation of the tree, is required to be complied with and implemented by the owner of Lot 4.
The Management Plan for preservation of the tree is to be included in the Strata Management Plan for the subject lots."
14 Appendix A of the Design Guidelines is a "Tree Management Plan – Camphor Laurel Tree". Part 1 details pruning requirements and part 2 is headed "Controlling Future Development Around the Camphor Laurel Tree as Listed Trees of Significance Inventory". Part 2 sets out steps to be taken in respect of the tree prior to and during clearance works and during construction. Steps to be taken upon completion of the works are also set out and these include an annual inspection and any required remedial works.
Comment
15 Mr Simon Bain, a planning consultant who made a submission on behalf of the applicants, advised that the pruning of the tree has been completed and this was supervised as required by the approval. Mr Bain argued that the condition should be deleted because there is no nexus between the requirement for annual inspection of the tree and the pruning proposal.
16 From the submissions made on this matter, the Tribunal has concluded that condition (i)(c) can be deleted from the approval. An annual inspection of the tree does not reasonably relate to the approval that was issued, that is, for a single act of pruning the tree. The particular act of pruning in this instance was approved by the respondent and the pruning has been carried out under supervision to satisfy that approval. The approval is now spent. No further pruning can occur.
17 The pruning of the tree was a single act particular to the applicants. Any future proposal to prune the tree would require a fresh application and approval by the respondent. Disposal of the subject land by the applicants would give rise to a situation where they are no longer in a position to inspect the tree without the permission of a third party and in
(Page 7)
- any event, the tree would be subject to inspection by that future owner under the management plans to be put in place.
18 The condition as amended ties the inspection to the commencement of works on the site and it is considered by the Tribunal to be the works and ongoing use of the land that will impact on the health of the tree. As pointed out by Mr Bain in his submission, the subdivision approval required the preparation of a management plan for the tree which will attach to the land under the Strata Titles Act1985 (WA). Design guidelines prepared for the development of the subject land identified the tree and included as an appendix, a tree management plan.
19 The approvals that have been issued for the subdivision and development of the subject land ensure that the Significant Trees Inventory listed tree is the subject of an ongoing management plan. Future acts of pruning required can be the subject of a separate application and supervision by the Town. The Tribunal is of the view that each individual act of pruning does not give rise to a separate act of annual inspection to duplicate that already in place under the subdivision and development approvals.
20 The Tribunal has therefore decided to approve the application.
Order
21 The application for review is approved and condition (i)(c) (as amended) is deleted from the planning approval dated 9 August 2005 granted for the pruning of the camphor laurel tree at no's 128 – 130 Joel Terrace, Mt Lawley.
I certify that this and the preceding [21] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
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