The Corporation of the City of Unley v Crichton

The Corporation of the City of Unley sought to appeal against the acquittal of a respondent who had been charged with an offence under section 44 of the Development Act 1993 (SA). The charges related to the pruning of two trees, T1 and T2, on the respondent’s property, which the council claimed constituted unapproved development. The appeal hinged on the interpretation of the term “crown of the tree” in the Development Regulations 2008 (SA), and whether the pruning of the trees constituted damaging activity. The central issue was whether the pruning of the trees, which involved removing branches containing mistletoe, constituted damaging activity that required approval under the Development Act.

The Court was required to determine whether the work done on T1 and T2 constituted damaging activity that required approval under the Development Act. This involved considering the evidence of various expert witnesses, including an arborist who had examined the site after the pruning work had been completed. The Court also needed to determine whether the Council had discharged the onus of proving that the work constituted damaging activity, and whether the expert opinion of the arborist was admissible.

The Court found that the pruning work done on T1 and T2 did not constitute damaging activity, as the arborist’s opinion on the extent of the crown that had been removed was not based on a sufficient basis or support from within his field of expertise. The Court accepted the evidence of another arborist, who had observed the trees before the pruning work was done, that no more than 20 per cent of the crowns of T1 and T2 had been removed. The Court also found that the Council had not discharged the onus of proving that the work constituted damaging activity, as the evidence did not establish that the work had damaged the trees to the extent that it required approval under the Development Act.

The Court dismissed the appeal, holding that the work done on T1 and T2 did not constitute tree-damaging activity. The Court found that the Judge was correct to adopt the ordinary meaning of “crown of the tree” where that phrase occurs in paragraph (a) of subregulation 6A(8) of the Development Regulations 2008 (SA), namely, the living branches and foliage of a tree. The Court also found that it was open to the Judge on the evidence to accept the evidence of Mr Cook, who had observed the trees before the pruning work was done, and that his findings that he removed no more than 20 per cent of the crowns of T1 and T2 should not be interfered with.