Staikopolous v City of West Torrens
[2016] SASC 183
•8 December 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division: Civil)
STAIKOPOLOUS v CITY OF WEST TORRENS
[2016] SASC 183
Judgment of The Honourable Justice Parker
8 December 2016
ENVIRONMENT AND PLANNING - TREES, VEGETATION AND HABITAT PROTECTION
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - GENERALLY - CONSIDERATION OF DEVELOPMENT STANDARDS - PARTICULAR DEVELOPMENT STANDARDS
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - SUPREME COURT - ERRORS OF RELEVANT AUTHORITY
Appeal against decision of a Commissioner of the Environment, Resources and Development Court (ERD Court) that dismissed an appeal against a decision of the Development Assessment Panel (DAP) of the City of West Torrens to refuse an application for development approval. The Commissioner held that the proposed land division did not have proper regard to the physical features and conditions on the land arising from the presence of a significant tree on adjacent land.
Appellant’s first ground of appeal is that the Commissioner failed to address the common law of nuisance and the remedies available in a court of competent jurisdiction where a tree on a neighbouring property poses undue risk to personal safety and property. The second ground of appeal is that the Commissioner failed to adopt the balanced approach required by the Act and Regulations and by the Development Plan when considering the effect of the significant tree on the development proposal. The third ground of appeal is that the finding by the Commissioner that the tree poses an unacceptable risk to personal safety should have led him to conclude that it should be removed or subjected to whole of tree pruning rather than his finding that the proposed development should be refused.
Held, per Parker J allowing the appeal:
1) The Commissioner erred by failing to recognise that if “whole of tree” pruning was required in order to mitigate the danger caused by the tree, a remedy in private nuisance was potentially available in the Magistrates Court to ensure that this occurred.
2) The Significant Tree provisions in the Development Plan for the City of West Torrens do not exhibit a bias to tree conservation or appropriate development. The balance between appropriate development and tree damaging activities is achieved by ensuring that approval is only given to tree damaging developments in the circumstances specifically permitted by the Principles of Development Control (PDC).
3) The Commissioner erred by not having regard to the terms of PDC 3(a)(ii) and PDC 3(e)(ii) and giving paramountcy to PDC 5.
Development Act 1993 s4, s5, s33; Development Regulations 2008 reg 6A; Magistrates Court Act 1991 s 10A, referred to.
Lemmon v Webb [1895] AC 1; Bellucco v Netting and Netting [2010] SADC 12; Staikopolous v City of West Torrens [2016] SAERDC 18, considered.
STAIKOPOLOUS v CITY OF WEST TORRENS
[2016] SASC 183Land and Valuation Division: Civil
Parker J: This is an appeal from a decision of a Commissioner of the Environment, Resources and Development Court. The Commissioner dismissed an appeal against a decision of the Development Assessment Panel (DAP) of the City of West Torrens to refuse an application for development approval. The basis of the refusal by the DAP was that the proposed development was contrary to certain provisions of the Development Plan for the City of West Torrens as it would result in the creation of an allotment that was not suitable for its intended use.
The Commissioner held that he would have upheld the appeal if the suitability of the land for its intended use was the only relevant consideration. However, he decided the appeal on grounds different to those relied upon by the DAP. The Commissioner held that the proposed land division did not have proper regard to the physical features and conditions on the land arising from the presence of a significant tree on adjacent land. The proposed allotment was inappropriate for its intended use without removal of the significant tree. The Commissioner indicated that but for the presence of the significant tree he would have set aside the DAP decision and approved the proposed community land division.
The Council was represented by counsel before the Commissioner and called three witnesses. However, the Council was not represented on the appeal and gave an undertaking to abide the decision of the Court. The appellant was represented by Mr Stuart Henry SC at the hearing of the appeal. The grounds of appeal are referred to in par 29 below.
Background
The appellant applied to the Council for development approval to create one additional allotment by way of a community plan of division in respect of land located at 1 Hinton Street, Underdale (the subject land). The subject land comprises a regularly shaped and largely level allotment of 989m2 with a frontage of 18.29m to Hinton Street and a depth of 54.1m. The subject land contains a single dwelling. The land immediately behind the dwelling comprises lawn and a utility area adjacent to a freestanding garage. A fence separates that area from the rear portion of the land. The Commissioner (who had the benefit of having conducted a view) described the rear portion of the land as being largely open and in unkempt condition. While the rear portion was accessible by a gate, it is clear that the present residents make little use of that part of the land.
The development application proposes the division of the subject land into two community allotments and a common lot by way of a community plan of division. Community lot 1 would face Hinton Street and comprise the existing residence and the area immediately behind the house. It would have an area of 469m2. Community lot 2 would effectively comprise the portion of land at the rear of the current allotment. It would have an area of 312m2. There would also be a common lot 1 of 208m2 with a frontage to Hinton Street. The common lot would provide vehicle access and parking spaces for the two community lots.
The factual foundation for the decision by the Commissioner arose from the presence upon adjacent land of a significant tree. The significant tree is located in the rear yard of 2 Garden Terrace immediately to the north of the subject land. This tree is a lemon scented gum (Corymbia citriodora) and is located 3.59m from the boundary of the subject land. One expert estimated the age of the tree at about 54 years while another expert suggested that it was aged between 45 and 90 years. It is about 18 to 20 metres tall and has a canopy radius of approximately 11 metres. The canopy extends for a distance of about 6 to 7 metres into the rear of the subject land, significantly overhanging lot 2.
The arboricultural expert Dr Dean Nicolle called by the Council to give evidence before the Commissioner, stated that the trunk circumference of the tree 1m above the finished ground level is 3.19m.[1] He expects that at full maturity its canopy spread will be some 20m.
[1] Thus, it is a “regulated tree” and a “significant tree” within the meaning given by regulation 6A of the Development Regulations 2008.
The development regime
The effect of s 33(1) of the Development Act 1993 (“the Act”) is to require that an application for development approval must be assessed against the provisions of the appropriate Development Plan. In this case the application must be considered against the Development Plan for the City of West Torrens as consolidated on 31 October 2013. The Development Plan included the following provisions in relation to significant trees:
OBJECTIVES
1 The conservation of significant trees, in Metropolitan Adelaide, that provide important aesthetic and environmental benefit.
2 The conservation of significant trees in balance with achieving appropriate development.
PRINCIPLES OF DEVELOPMENT CONTROL
1 Development should preserve the following attributes where a significant tree demonstrates at least one of the following attributes:
(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 1972 as a rare or endangered native species
(c) represents an important habitat for native fauna
(d) is part of a wildlife corridor of a remnant area of native vegetation
(e) is important to the maintenance of biodiversity in the local environment
(f) forms a notable visual element to the landscape of the local area.
2 Development should be undertaken so that it has a minimum adverse effect on the health of a significant tree.
3 Significant trees should be preserved, and tree-damaging activity should not be undertaken, unless:
(a) in the case of tree removal, where at least one of the following apply:
(i) the tree is diseased and its life expectancy is short
(ii) the tree represents an unacceptable risk to public or private safety
(iii) the tree is within 20 metres of a residential, tourist accommodation or habitable building and is a bushfire hazard within a Bushfire Prone Area
(b) the tree is shown to be causing or threatening to cause substantial damage to a substantial building or structure of value
(c) all other reasonable remedial treatments and measures have been determined to be ineffective
(d) it is demonstrated that all reasonable alternative development options and design solutions have been considered to prevent substantial tree-damaging activity occurring
(e) in any other case, any of the following circumstances apply:
(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
(ii) the work is required due to unacceptable risk to public or private safety
(iii) the tree is shown to be causing or threatening to cause damage to a substantial building or structure of value
(iv) the aesthetic appearance and structural integrity of the tree is maintained
(v) it is demonstrated that all reasonable alternative development options and design solutions have been considered to prevent substantial tree-damaging activity occurring.
4 Development involving ground work activities such as excavation, filling, and sealing of surrounding surfaces (whether such work takes place on the site of a significant tree or otherwise) should only be undertaken where the aesthetic appearance, health and integrity of a significant tree, including its root system, will not be adversely affected.
5 Land should not be divided or developed where the division or development would be likely to result in a substantial tree-damaging activity occurring to a significant tree.
Although the Commissioner reproduced in his judgment what he described as “the most relevant provisions” in the Development Plan relating to significant trees, he omitted Significant Tree Objective (STO) 2 and also Principles of Development Control (PDC) 2, 3 and 4. I consider those omissions to be very significant. While the Commissioner also omitted par (b), par (d) and par (e) of PDC 1, I do not consider those provisions to be relevant having regard to the evidence before the Commissioner. The Commissioner added underlining to PDC 5. Clearly, that emphasis reflected the particular importance that the Commissioner attached to PDC 5.
Section 5(1) of the Act provides that if a term defined in Part 1 of the Act is used in a Development Plan then the term has, unless the contrary intention appears, the defined meaning. The provisions of the West Torrens Development Plan that appear at par 8 above include several references to “tree damaging activity”.
The term “tree damaging activity” is defined in s 4(1) of the Act as follows:
"tree-damaging activity" means—
(a) the killing or destruction of a tree; or
(b) the removal of a tree; or
(c) the severing of branches, limbs, stems or trunk of a tree; or
(d) the ringbarking, topping or lopping of a tree; or
(e) any other substantial damage to a tree,
and includes any other act or activity that causes any of the foregoing to occur but does not include maintenance pruning that is not likely to affect adversely the general health and appearance of a tree or that is excluded by regulation from the ambit of this definition;
The definition of “tree damaging activity” in s 4(1) provides for the definition to be modified by regulation. Regulation 6A(8) of the Development Regulations 2008 provides as follows:
(8) For the purposes of the definition of "tree damaging activity[2] in section 4(1) of the Act, pruning—
[2] Note: Act uses “tree-damaging activity” while Regulations use “tree damaging activity”.
(a) that does not remove more than 30% of the crown of the tree; and
(b) that is required to remove—
(i) dead or diseased wood; or
(ii) branches that pose a material risk to a building; or
(iii)branches to a tree that is located in an area frequently used by people and the branches pose a material risk to such people,
is excluded from the ambit of that definition.
Evidence
As I have already noted, the Council called an arboricultural expert, Dr Dean Nicolle, to give evidence about the tree. The applicant called Mr David Mably, an expert arborist. While three other expert witnesses appeared before the Commissioner, only the evidence given by Mr D Batge and Mr D Hutchison, town planners called by the Council and the appellant respectively, is relevant to this appeal.
Both Dr Nicolle and Mr Mably gave evidence about the structural root zone (SRZ) and the tree protection zone (TPZ) for the tree. The SRZ is the distance required to maintain the stability of the tree. The TPZ is the zone which must be managed during and following the development of the land so as to maintain the health of the tree.
Dr Nicolle calculated the SRZ at 3.5m from the centre of the tree. Effectively, that is an exclusion zone for all activities. An SRZ of 3.5m is contained wholly within the land on which the tree stands, ie it does not intrude into the subject land. Mr Mably calculated the SRZ as 4.25m from the centre of the tree.
Dr Nicolle calculated the TPZ as extending 8.9m from the centre of the tree while Mr Mably identified the TPZ as extending up to 11.755m from the centre of tree. As the centre of the tree is about 3.5m from the rear boundary of the subject land, on the calculations of Dr Nicolle the TPZ extends in an arc up to 5.4m into the subject land. On the calculations of Mr Mably the TPZ extends even further into the subject land.
Dr Nicolle described the lemon scented gum species as having potential for individual trees to be subject to sudden failure of small to medium sized branches. However, he considered that a whole of tree structural failure in a mature and healthy specimen to be very rare. For this reason he considered the risk associated with the tree to be “… currently low to moderate and acceptable …”. In the opinion of Dr Nicolle, the risk can only be maintained at an acceptable level if regularly used outdoor active living spaces were excluded from the potential impact area by what Dr Nicolle described as a high use setback (HUS) area. He calculated the HUS as extending to 9m from the centre of the tree. In the opinion of Dr Nicolle, if the private open space and associated residential structures encroach significantly into the HUS this would “increase the risk to safety associated with the tree to an unacceptable level over the long term”.
The Commissioner summarised the evidence of Dr Nicolle as follows:
In essence, Dr Nicolle’s view is that if the development proceeds with the tree being retained, as is desired from the perspective of its notable contribution to the urban landscape, it may prejudice the residential outcome or render it so compromised that the tree would ultimately need to be removed. Included in his reasoning is not only the ongoing personal risk but the costs and practicability of the pruning regime required to manage the hazards associated with the tree. To that end, Dr Nicolle confirmed he would support removal of the tree in the event of a dwelling being established in accord with the conceptual siting as provided for in the land division plan.
As I have already noted, Mr Mably identified a more extensive TPZ of up to 11.755m in comparison to the 8.9m referred to by Dr Nicolle. Mr Mably considered that a lesser setback of the proposed building (as depicted in the indicative plans) was reasonable subject to appropriate measures being taken to minimise the effect of construction upon the tree. That would include avoiding the trenching of services and the design of a non-invasive footing system. Mr Mably also recommended that the condition of the rear yard, being the area from the back door of the proposed dwelling to the fence, must be maintained “as natural as possible … with minimal gradient changes with natural mulch and appropriate endemic and exotic landscaping …”.
Mr Mably undertook an assessment based on the criteria published by Matheny and Clark.[3] He arrived at a hazard rating for the tree as 9 out of 12. He considered that to be an acceptable and manageable risk subject to ongoing management of the tree. This would require an assessment, and potentially maintenance pruning, at least every two years. In his opinion, pruning to the relevant Australian standard should resolve most of the issues relating to the tree with pruning of the appropriate branches forming a safer canopy. That would involve whole of tree pruning in accordance with the relevant Australian standard by removing dead wood, crown thinning and reduction of bias of over-extended branches by 15-20%, reduction or removal of poor weeping branches that are being supported by other branches, pruning or removing branches and retention of a smaller balanced canopy. Future failures of the tree could be prevented by carrying out any work recommended at the inspection performed every two years.
[3] Matheny, N Clark J (2003) Evaluation of Hazardous Trees in Urban Areas, 2nd Edition HortScience Inc, Pleasanton, CA94566.
Mr Mably also stated that in his experience there was little difficulty in obtaining permission from the owner of a tree on adjacent land to allow access for maintenance purposes when there was a need for that to occur and where the potential consequences and potential liability if it did not occur were understood. If the adjacent landowner did not allow access then the maintenance regime for the tree would be limited to “abatement pruning” to the boundary. While this would provide an adequate level of personal and property protection and manage the risks for future occupiers of lot 2, it would not “rectify the whole tree issue”. Limited pruning of that type would only be a short-term solution.
The expert planning consultant called by the Council, Mr D Batge, stated that the risks associated with such a large overhanging tree would “prejudice the allotment as a safe and pleasant place to live”. Additionally, the nuisance caused by “twig and leaf litter dropping on to the roof and the potential for limb and tree failure … is highly likely to create irresistible pressure for … eventual removal”.
The expert planner called by the appellant, Mr D Hutchison, agreed with Mr Mably that the risks associated with the tree are acceptable and manageable. The tree would not unreasonably impose on the enjoyment or functionality of lot 2.
Dr Nicolle and Mr Mably agreed that the land division will not affect the structural stability of the tree. The adoption of appropriate control over the building construction and site works and appropriate management of the ground level, surface and landscaping of the area within the TPZ would ensure no more than a minor or acceptable effect on the long-term health and vigour of the tree.
The Commissioner’s reasons
The Commissioner identified the principle issue as the management of the risk to personal safety and property damage in what was likely to be the rear yard of the future development in lot 2. More particularly, the Commissioner described the relevant question as being whether the tree management regime would be practicable and convenient over the long term and would the proposed residential allotment be so compromised by the tree that it would lead to the inevitable demise of the tree.
In assessing the answer to that question the Commissioner made the following findings of fact:
·a future dwelling on the subject property can be placed such that the dwelling is not under the existing tree canopy. Hence, as whole-of-tree failure is unlikely, the risk of property damage is low and/or can be suitably managed;
·it is highly likely that the significant majority of a future dwelling’s outdoor living space would fall within the HUS as defined by Dr Nicolle;
·‘line of abatement’ pruning is a short term solution only as agreed by both arborists. Indeed, it can potentially worsen the risk exposure of persons in the yard of the community lot 2 if a whole-of-tree approach is not available – ie if no access is made available through 2 Garden Terrace. This raises concern, as expressed by Dr Nicolle, as to the height from which upper canopy branches may fall unimpeded, or supported by removed over-extended lower limbs;
·furthermore, over time, line of abatement pruning is likely to have a detrimental impact on the balance of the tree canopy, and also disfigure the tree’s appearance and damage its notable contribution to the urban landscape; and
·should the land division not be approved, the tree is likely to remain and continue to make an important contribution to the urban landscape. The tree does not pose the level of hazard to existing properties within the canopy overhang as it would community lot 2.
The Commissioner concluded that the rear yard or private outdoor living space of the future dwelling was likely to be located almost entirely under the canopy of the tree. The tree had a propensity for sudden limb drop which caused a risk to personal safety and property. In the opinion of the Commissioner, the canopy of the tree excessively affected the future dwelling site and associated outdoor living space. He was not satisfied that the rear yard of lot 2 could be adequately protected due to the overall height and canopy spread of the tree and the difficulties and uncertainties involved in managing a tree located outside the subject land. For that reason the implementation of hazard reduction pruning and the ongoing management of the tree in the long term was far from assured. If that were to occur without a whole of tree approach it was likely to increase the risk to personal safety arising from limb failure. It also compromised the appearance and form of the tree. Thus, the tree posed an unacceptable hazard to personal safety.
For these reasons the Commissioner concluded that the proposed division of the land did not have proper regard to the physical features and conditions on the land arising from the presence of the significant tree on neighbouring land. Thus, the proposed allotment was inappropriate for its intended use without removal of the significant tree. But for the presence of the significant tree he would have set aside the decision of the Council and given approval to the proposed community land division. The Commissioner dismissed the appeal against the Council’s decision, albeit for different reasons.
The appellant’s submissions
The grounds of appeal and also the submissions by Mr Henry SC contended that there were several fundamental errors in the Commissioner’s reasoning. They were, first, the Commissioner had failed to address the common law of nuisance and the remedies available in a court of competent jurisdiction where a tree on a neighbouring property poses undue risk to personal safety and property. Secondly, the Commissioner had failed to adopt the balanced approach required by the Act and Regulations and by the Development Plan when considering the effect of the significant tree on the development proposal. Thirdly, the finding by the Commissioner that the tree poses an unacceptable risk to personal safety should have led him to conclude that it should be removed or subjected to whole of tree pruning rather than his finding that the proposed development should be refused. Mr Henry also submitted that the Commissioner had also erred by failing to decide specifically whether pruning of the tree to the relevant Australian Standard would satisfactorily ameliorate the risk posed to occupants of lot 2.
Consideration
Private nuisance
The Commissioner did not have any regard to the remedies available in an action for private nuisance to deal with problems caused by trees on neighbouring land.
The presence of a tree with branches overhanging a neighbour’s property that causes substantial interference with the use or enjoyment of their land, has long been recognised as giving rise to an action in private nuisance. The neighbour may seek a mandatory injunction from a court of competent jurisdiction against the owner of the land on which the tree is located. Depending upon the facts and circumstances, an injunction might compel the removal of the tree or pruning so as to remove the risk that falling limbs may cause personal injury or damage to property.
I accept the correctness of the submission by Mr Henry that there is no rule that a mandatory injunction may only compel pruning back to the boundary of the property. The latter principle applies only to the self-help remedy allowed by the common law whereby overhanging branches may be trimmed without entering the neighbour’s property.[4] Thus, if the evidence in a given case establishes that pruning will not suffice to abate the nuisance, removal of the tree may be ordered.
[4] See generally Lemmon v Webb [1895] AC 1.
A dispute about removal or pruning of a dangerous tree is a “neighbourhood dispute” and thus a “minor civil claim” for the purposes of the Magistrates Court Act 1991. Mr Henry referred to the decision of the District Court in Bellucco v Netting and Netting on appeal from the Magistrates Court as an example of the approach adopted with respect to neighbourhood disputes arising from the nuisance caused by a tree.[5]
[5] [2010] SADC 12.
I accept the correctness of the submission by Mr Henry that the Commissioner erred by failing to recognise that if “whole of tree” pruning was required in order to mitigate the danger caused by the tree, a remedy in private nuisance was potentially available in the Magistrates Court to ensure that this occurred.
The Commissioner did not decide whether pruning of the tree to the relevant Australian Standard would satisfactorily ameliorate the risk posed to occupants of lot 2. If the Commissioner had accepted the evidence of Dr Nicolle that pruning could not produce an acceptable outcome so that removal of the tree would be necessary, the owner of lot 2 would be able to seek that remedy in the Magistrates Court.
Thus, regardless of whether whole of tree pruning in accordance with the relevant Australian standard would suffice (Mr Mably’s view) or removal of the tree would ultimately be required (Dr Nicolle’s opinion), such a remedy could be pursued in a private nuisance action in the Magistrates Court. If the Commissioner had taken account of the potential availability of that remedy, it would have been immaterial to the outcome whether he preferred the evidence of Mr Mably or that of Dr Nicolle.
While the rear portion of the subject land is currently little used, and perhaps for that reason the occupant may not be concerned by the overhanging tree, a future occupant might choose to use that area extensively. The dangers presented by the risk of limb drop may significantly interfere with the use and enjoyment of the subject land. Accordingly, the Commissioner erred in finding that “the tree does not pose the level of hazard to existing properties within the canopy overhang as it would to proposed community lot 2”. Even if the proposed development did not occur, an action in nuisance might potentially be instituted against the owner of the land upon which the tree stands.
The Development Plan
Significant Tree Objective (STO) 1 declares that conservation of significant trees that provide important aesthetic and environmental benefits is an objective of the Development Plan. The intended operation of that objective is explained and qualified by the requirement in STO 2 that a balance be struck when deciding development applications between the objective of conserving significant trees and the objective of achieving appropriate development.
The Principles of Development Control (PDC) applicable to Significant Trees are intended to achieve the balance required by STO 2 through the creation of several specific instances where tree damaging activity may be permitted. In other words the PDC stipulate how the balancing exercise required by STO 2 is to be conducted.
Mr Henry submitted that the balancing exercise required by STO 2 does not require equal weight to be placed upon tree conservation and appropriate development. He supported that submission by reference to PDC 3(e)(v). This exception allows tree damaging activity if it is demonstrated that all reasonable alternative development options and design solutions have been considered.
According to Mr Henry’s submission, this requires the developer to adopt reasonable development options and design solutions which can prevent, avoid or minimise tree damaging activity. If nothing further can be done beyond the adoption of reasonable development options and design solutions, the objective of conserving the significant tree must give way to the achievement of appropriate development.
Mr Henry noted that the council had not suggested that there were any alternative development options or design solutions that would avoid or reduce the adverse effect upon the tree. Instead, the Council had refused the development application because it considered that the proposed development was not appropriate for reasons not related to the tree. While these reasons were rejected by the Commissioner, preservation of the tree became the fallback position of the Council.
Mr Henry suggested that the reasoning of the Commissioner appeared to be, at least in part, that approval of the proposed development would lead to the inevitable loss of the tree[6], that the proposed development is inappropriate without removal of the tree[7] and therefore by inference the development was seriously at odds with the significant tree policy expressed in the Development Plan.
[6] Staikopoulos v City of West Torrens [2016] SAERDC 18 at [58].
[7] Ibid at [63].
In the context of that submission it is significant that the Commissioner omitted STO 2 and also PDC 2 and 3 from what he described as “the most relevant provisions” in the Development Plan. He also underlined STO 5 by way of emphasis.
Mr Henry further submitted that the analysis apparently adopted by the Commissioner failed to recognise properly what he described as “the policy bias in favour of appropriate development” inherent in PDC 3(e)(v) where there are no suggested alternative development options or design solutions available to mitigate the adverse effect upon a significant tree. In that context Mr Henry also suggested that the balancing exercise required by STO 2 does not place equal weight on tree conservation and appropriate development.
In my view the Significant Tree provisions in the Development Plan do not exhibit a bias one way or the other. Developments that will give rise to tree damaging activities are permitted in the circumstances specified in the Principles of Development Control and not otherwise. The balance between appropriate development and tree damaging activities is achieved by ensuring that approval is only given to tree damaging developments in the circumstances specifically permitted by the Principles of Development Control.
There is no information before the Court concerning possible alternative development options or design solutions. I suspect that because the application for development approval simply proposes the subdivision of the existing allotment into a hammerhead layout while preserving the existing house, there may be no other realistic options. Nevertheless, because of the lack of information, and as this appeal can be decided on other grounds, it is not appropriate for me to decide whether PDC 3(e)(v) would permit the approval of the development despite adverse consequences for the tree.
Unacceptable risk
The Commissioner found that the rear yard or private outdoor living space of a future dwelling on lot 2 would lie almost wholly under the canopy of the significant tree[8], a tree prone to sudden limb drop.[9] This presented a risk to personal safety and property if the development was to proceed. The Commissioner was not satisfied that the rear yard of lot 2 could be adequately protected from that danger given the height and canopy spread and the difficulty in managing a tree located on a neighbour’s property. It was uncertain as to whether the risk could be managed in the long term by hazard reduction pruning and ongoing management of the tree. The risk to personal safety arising from limb failure would be increased if a whole of tree approach was not to be adopted. If such an approach was not adopted tree form and appearance would also be compromised. The Commissioner concluded that the tree posed an unacceptable hazard to personal safety.[10]
[8] Ibid at [62 – 63].
[9] Ibid [61].
[10] Ibid [62].
For that reason the proposed allotment did not have proper regard to the physical features and conditions on the land arising from the presence of the significant tree. The development was therefore inappropriate without removal of the significant tree.[11]
[11] Ibid [63].
The Commissioner also held that the tree does not present the same level of hazard to existing properties as it would to lot 2. As I have already noted, the current occupant of the subject land has chosen to make little use of the rear portion of the allotment. However, it cannot be assumed that this state of affairs will necessarily continue. Even if the proposed development did not proceed, either the present occupant or a future occupant could choose to use intensively the rear portion of their land. Depending upon the evidence then available about the risk posed by the tree, they may be entitled to pursue a private nuisance action in the Magistrates Court seeking a mandatory injunction requiring their neighbour to abate the danger caused by falling limbs. That might require whole of tree pruning or, potentially, removal of the tree.
Both PDC 3(a)(ii) and PDC 3(e)(ii) specifically allow tree damaging activity to occur where a tree represents an unacceptable risk to public or private safety. It might be contended that those two provisions are subordinate to PDC 5 which provides that land should not be divided or developed where that would be likely to result in a substantial tree damaging activity occurring to a significant tree. In other words, it might be thought that PDC 5 requires the proposed development to be refused regardless of the fact that PDC 3(a)(ii) and PDC 3(e)(ii) would authorise tree damaging activity for safety reasons.
I do not regard such an interpretation as being correct. The Principles of Development Control must be given a meaning that is consistent with both Objectives 1 and 2. As I have already said, the Principles give effect to the balancing exercise required by the Objectives by specifying the limited exceptions to the general policy position that significant trees must be conserved and protected. For that reason PDC 3(a)(ii) and PDC 3(e)(ii) are not subordinate to PDC 5 but operate as specific and limited exceptions to the general policy of significant tree conservation.
The Commissioner erred by not having regard to the terms of PDC 3(a)(ii) and PDC 3(e)(ii) and giving paramountcy to PDC 5. While PDC 5 prohibited division or development of land where that would be likely to result in substantial tree damaging activity, that prohibition cannot be read in isolation from PDC 3(a)(ii) and PDC 3(e)(ii). The latter provisions of the Development Plan permit tree damaging activity where the work is required due to unacceptable risk to public or private safety. The Commissioner also erred by not taking into account that the common law provided a remedy to deal with the safety issue presented by the overhanging limbs.
Conclusion
Because of those errors I will uphold the appeal against the Commissioner’s decision to dismiss the appeal against the Council’s refusal of the development application.
Mr Henry submitted that the Court should make the decision that should have been made by the Commissioner rather than remit the matter for further hearing. While I am concerned to avoid further costs and delay, I will hear from the parties as to whether conditions need to be imposed on the development approval and whether that question should be resolved by this Court or remitted.
I will also hear the parties as to costs.
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