VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1236/2023
Permit Application no. PLN23/0324	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987 (Vic), removal of a tree within a Significant Landscape Overlay.	

APPLICANT	Ben Davis	
responsible authority	Yarra City Council	
SUBJECT LAND	26 Lucerne Crescent 
ALPHINGTON VIC 3078	
HEARING TYPE	Short Case Hearing	
DATE OF HEARING	19 January 2024	
DATE OF ORDER	22 March 2024	
CITATION	Davis v Yarra CC [2024] VCAT 261	

Order
Permit granted
1	In application P1236/2023 the decision of the responsible authority is set aside.
2	In planning permit application PLN23/0324 a permit is granted and directed to be issued for the land at 26 Lucerne Crescent, Alphington in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Removal of a tree within a Significant Landscape Overlay.

Claire Bennett
Member			

Appearances
For applicant	Gareth Gale, Town Planner of Gareth Gale Consulting.
They relied on the expert evidence of:
•	Rob Galbraith, Arborist of Galbraith & Associates.	
For responsible authority	James Livingston, Town Planner of JLP Melbourne.	

Information
Description of proposal	Removal of a tree in a Significant Landscape Overlay.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 (Vic) – to review the refusal to grant a permit. 	
Planning scheme	Yarra Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone - Schedule 2 (‘NRZ2’)
Development Contributions Plan Overlay - Schedule 1 (‘DCPO1’)
Significant Landscape Overlay - Schedule 1, Yarra (Birrarung) River Corridor Enviorns (‘SLO1’)	
Permit requirements	Pursuant to clause 42.03-2 a permit is required to remove a tree, and must be considered under clause 59.06 of the Scheme (VicSmart).	
Land description	The subject site is located on the southern side of Lucerne Crescent, opposite Como Street. The site is irregular in shape and has a frontage of approximately 27.4m, an eastern boundary of 46.15m long, and an overall site area of approximately 1,138sqm.
The front garden includes vegetation and shrubs, including the Lemon Scented Gum (proposed to be removed) which is located near the driveway and street frontage on the western side of the front garden. There are two other large trees in the front garden; a large mature Queensland Silky Oak to the east, and another eucalypt straddling the western boundary.	
Tribunal inspection	21 February 2024   	

Reasons
What is this proceeding about?
1	Ben Davis (‘applicant’) seeks to review the decision of Yarra City Council (‘council’) to refuse to grant a permit for the removal of a tree on land at 26 Lucerne Crescent, Alphington (‘subject land’). 
2	The application concerns the removal of a large Lemon Scented Gum in the front garden of the subject land. 
3	The subject site is affected by the Significant Landscape Overlay - Schedule 1, Yarra (Birrarung) River Corridor Enviorns (‘SLO1’). Pursuant to clause 42.03-2 a permit is required to remove a tree and must be considered under clause 59.06 of the Scheme (VicSmart).
4	The landscape character of Lucerne Crescent generally consists of:
•	front gardens, with generous front and side setbacks, large back yards, and a large amount of vegetation;
•	street tree planting of predominantly White Cedar trees;
•	other large trees in front gardens and on nature strips in Lucerne Crescent, with approximately 10 properties to the east and 2 properties to the west containing other large eucalypt trees.
5	The parties agree that:
•	there is no dispute as to what the permit triggers are and the relevant policy provisions;
•	the surrounding area is one where canopy trees and vegetation form an integral part of its character and appeal; and 
•	the Lemon Scented Gum tree is currently vigorous and in good health, with no dead extremities and little dead wood in general.
6	The dispute lies in the structural condition of the tree and whether the risk presented by the tree is acceptable.
7	Comments made by Councils’ arborists state that the structural condition is similar to, and is not significantly different from, other mature examples of the species planted in residential gardens, streets and reserves across Melbourne, which are managed at a low risk to people. Further, council submit that the risk presented by the tree is acceptable and that any concerns can be resolved through an appropriate pruning regime.
8	Th applicant submits that the tree is not structurally sound with many of the branches being too long and heavy relative to their lack of thickness, poor taper and excessive end loading. The applicant submits that the tree presents a significant hazard not just to the occupants of 26 Lucerne Crescent but also to persons walking along the footpath on the southern side of Lucerne Crescent; to the electrical cables on the southern side of Lucence Crescent; and the applicant’s house and property. Further the applicant submits that the risk of limb shedding cannot be feasibly managed through pruning or cable bracing.
9	The applicant relied on the expert evidence of Mr Galbraith. Mr Galbraith’s written evidence, dated 22 December 2023, stated that:
The Lemon Scented Gum 
The species is native to eastern Queensland. This tree is likely to be approximately 50 years of age, measuring approximately 29m in height by 11m radial spread south towards the dwelling, 12m north over the road and overhead street electrical conductors, 15m to the west and 9m to the east where its growth has been limited by competition from another tree. The trunk diameter at 1.4m above ground is 88cm. The tree is vigorous and in good health, with no dead extremities and little dead wood in general. Structurally it is not good with many of the branches being too long and heavy relative to their lack of thickness, poor taper and excessive end loading.
…
Branch Shed Tendency 
The tree currently appears healthy and vigorous as is to be expected of a tree of this species, age and environment in which it is located. The incidence in terms of numbers of branches and sizes of branches shedding will increase over time. There is very little one can do to prevent the incidence of branch shed without resorting to the debilitating and ugly practice of lopping. There is a high likelihood of further major limb failure on this tree, as branches and stems are becoming too long and heavy relative to their thickness, taper, accumulating defects from old occluded stubs, excessive loading and poor loading distribution. Due to the light demanding nature of the species, the foliage and gumnuts are clumped at the ends of branches. Stems and branches have extended beyond adequate self-support limits to escape shading. In Melbourne, well outside the natural habitat of Queensland, the species has few parasites and grows rapidly, developing lush clumps of foliage. During inclement weather, but even on still days, the branches and stems are prone to fracture, particularly when laden with gumnuts, as a result of no longer being able to support themselves.
In combination with the limb shed propensity, the wood is dense. Thus branches of as little as 60mm thickness, and substantially less for young children, can inflict nasty injuries to people unfortunate enough to be in the path of the trajectory. The trajectory of falling branches can be well beyond the dripline, depending on the severity of the wind and the size of the branch. There is thus a wide radial zone of risk posed by this tree. 
I know as a contractor of many years experience that undertaking effective hazard reduction pruning of these trees can be impossible without resorting to the unsightly and damaging practice of lopping. This is a poor option. Apart from rendering the tree ugly, once lopped, the sprout regrowth will have to be re-lopped every few years. One cannot prune it in height and spread effectively or according to the guidelines of the relevant Australian Pruning Standard approach, as the existing internal side branches being left will still be at high risk of fracturing during inclement weather as they still project to the edges of the existing canopy. 
The tree`s propensity to shed is high. 
Safety Management 
Having been an arboricultural contractor of many years experience, I know that undertaking effective hazard reduction pruning of these trees can be impossible without resorting to the unsightly and damaging practice of lopping. As discussed before, the foliage congregates at the ends of branches, hence there are often no internal branches to be able to prune back to. One is only left with the option of lopping for significantly reducing the fracture propensity of branches. The problem of increased incidence and size of branch shed will continue to worsen as the branches accumulate mass, spread further, sag further and accumulate defects such as internal decay. 
Lopping is disfiguring, can create problems with poorly attached sprout re-growth and can lead to die-back of the branches being lopped. There is no other option for effectively managing the tree safely, other than removing it. If individual branches thought to be at higher risk of shedding than others are removed, other branches are put at higher risk of fracture. This is due to sudden extra exposure and the fact that extra foliage is produced to keep the root/shoot ratio constant, weighing them down. 
Apart from the risk to the applicant`s family doing work or playing in the garden or moving in and out of the dwelling each day, there is also substantial property risk. This is as a result of branches falling on the dwelling, as well as cars parked in the driveway, and damage to the service wire leading to the neighbouring property to the south.
10	The applicant attests to the recent history of limb shedding described in Mr Galbraith’s evidence. The applicants document “Reasons for tree removal” describes the regular dropping of limbs and includes photographs of the fallen limbs. 
11	Mr Galbraith also provided a further memorandum dated 8 January 2024, where he observed a further limb has recently broken from the tree and, at the time of the hearing, remained suspended in the canopy immediately above the grassed areas the applicant’s family frequently uses for play. Mr Galbraith gave evidence that this indicates a continued, and regular, loss of limbs.
12	The decision guidelines under the SLO1 with regard to tree removal are as follows:
For applications to remove, destroy or lop vegetation
•	The reasons for removing vegetation and whether there are alternative options.
•	The effect of the removal of vegetation on the natural landscape character, habitat protection, wildlife movement and long-term viability of remnant and revegetated areas.
•	Whether sufficient vegetation and canopy trees of appropriate species are to be planted to replace the removal of the existing vegetation and mature canopy trees.
•	Whether mature, dead and dying native vegetation should be maintained as habitat for native fauna or removed to avoid a risk or safety hazard.
13	Each of the above is considered in turn.
14	The first decision guideline is to consider, as appropriate, the reasons for removing vegetation and whether there are alternative options.
15	In relation to the reasons for removing the vegetation, the applicant submits that the danger that is presented by this tree outweighs its loss to the natural landscape character.
16	Mr Galbraith gave evidence that, based on his inspection of the tree and his experience managing trees of this nature, that the tree’s propensity to shed limbs is high. Further, he gave evidence that, given his understanding of how the occupants use the site, the large size of the tree, its limb shed habit and the difficulty in managing the tree in the built up area, there are no responsible management options other than to remove and replace it.
17	Council questioned Mr Galbraith’s assessment, submitting that he has not carried out a risk assessment based on any documented process. 
18	Mr Galbraith undertook his own expert risk assessment. I find that Mr Galbraith is qualified to give the expert opinions (including his risk assessment) contained in his reports. In keeping with a past Tribunal finding in a similar case about tree removal in an SLO, I do not consider it necessary for Mr Galbraith’s risk assessment to follow a particular methodology or formula, in order for it to provide an expert risk assessment for the assistance of the Tribunal.
19	Councils’ arborist also completed a risk assessment on the subject tree, using the International Society of Arboriculture (‘ISA’) Tree Risk Assessment Methodology. That assessment indicates that the risk of failure is low. 
20	Mr Galbraith gave evidence that he would give the councils ISA tree risk assessment limited weight and questioned the accuracy of the input data used for the assessment. For example, Mr Galbraith questioned whether the assessment accurately represented the likelihood of impact to garden occupants on private property and pedestrians on public land. He gave evidence that the location of this tree means that you need to drive or walk under the tree to access the house and to use the footpath on the southern side of Lucerne Crescent. He also noted the risk to the applicant`s family doing work or playing in the front yard. Further, he gave evidence that getting that assessment, of likelihood of impact to garden occupants and pedestrians, wrong, can be catastrophic. 
21	I am persuaded by the expert evidence of Mr Galbraith and, for the reasons given above, give the councils ISA tree risk assessment limited weight. 
22	In relation to whether there are alternative options for removing the tree, Mr Galbraith gave evidence that there were no feasible alternative options for this tree. His evidence was that, given the large size of the tree, its domination of the front yard, driveway, street footpath and overhead electrical conductors, its limb shed habit and the difficulty in managing the tree in the built up area in which it is situated, there are no responsible management options other than to remove and replace it.
23	In relation to hazard reduction pruning, Mr Galbraith stated that undertaking effective hazard reduction pruning of this tree would be impossible without resorting to the unsightly and damaging practice of lopping. Mr Galbraith said that loping was a poor option for this tree because, lopping is disfiguring, can create problems with poorly attached sprout re-growth and can lead to die-back of the branches being lopped. He said that, if individual branches thought to be at higher risk of shedding than others are removed, other branches are put at higher risk of fracture. He said this is due to sudden extra exposure and the fact that extra foliage is produced to keep the root/shoot ratio constant, weighing them down. 
24	The Tribunal also questioned Mr Galbraith as to whether bracing could be an option for this tree. In response to this question Mr Galbraith gave evidence that bracing was not a feasible management option for this tree as all the branches are already close to the self support limit and can’t support another branch. As such, he said the braces would need to be connected to the main trunk, which would put the trunk at risk of failing. 
25	I accept Mr Galbraith’s evidence that there are no feasible alternative options for managing the risk of this tree.
26	The second decision guideline is to consider, as appropriate, the effect of the removal of vegetation on the natural landscape character, habitat protection, wildlife movement and long-term viability of remnant and revegetated areas.
27	The parties agree that the removal of the tree will result in the loss of natural landscape character. 
28	However, in support of the tree’s removal, the applicant submits: 
•	the species is not remnant nor original to the Yarra River environs;
•	the tree has limited, if any, visibility from the public reserves that flank the Yarra River – primarily due to the presence of the private Latrobe Golf Club that occupies the land between the subject land and the river. As such, the visibility of the Lemon Scented Gum is limited to publicly accessible streets and private properties, reducing the impact to the broader Yarra River corridor; and
•	although the tree is of significant scale, it is not isolated and the level of canopy cover in close proximity is extensive – including both public and private realm vegetation. 
29	I weigh the consideration of loss of natural landscape character against the risk posed by potential limb fall further in my reasons below. 
30	The third decision guideline is to consider, as appropriate, whether sufficient vegetation and canopy trees of appropriate species are to be planted to replace the removal of the existing vegetation and mature canopy trees.
31	The parties agree that the proposed replacement planting is appropriate and would be an acceptable response to ensure sufficient vegetation and canopy tree cover is maintained.
32	The fourth decision guideline is to consider, as appropriate, whether mature, dead and dying native vegetation should be maintained as habitat for native fauna or removed to avoid a risk or safety hazard. The parties agree that this consideration is not relevant.
33	Overall, I am not persuaded that council has appropriately considered the recent history of limbs falling from the tree, the likelihood of more limbs falling in the future, and therefore the risk this tree presents to people in its vicinity, including:
•	the owners and visitors of the subject land as they access their house and work or play in the front garden;
•	people walking along the footpath on the southern side of Lucerne Crescent; and
•	people parking in front of the subject land on the southern side of Lucerne Crescent.
34	The expert evidence provided by Mr Galbraith persuades me that the risk associated with the tree is significant enough to necessitate substantial management efforts. Furthermore, Mr Galbraith’s evidence indicates that the degree of pruning needed to reasonably mitigate the risk would drastically reduce the tree’s canopy, disfiguring its appearance and diminishing its value to the landscape. Additionally, I am persuaded by Mr Galbraith that even such extensive pruning would not permanently eliminate the risk, only making the tree safe for a few years, before needing to be lopped again. Further, there’s the potential for new growth after the lopping and that extra foliage can weigh branches down and further impact the structural integrity of the tree. 
35	The risk posed by the tree needs to be balanced against other relevant considerations in the Yarra Planning Scheme. I acknowledge that the SLO1 and Clause 59.06-2 of the Yarra Planning Scheme encourage the retention of this tree, given its significant size and its role in the natural landscape character. However, the risk posed by potential limb fall from this tree outweighs the considerations that support its retention. In this case, the tree’s location in the front garden – in a location where occupants and visitors need to walk under the tree to access the house and to use the footpath on the southern side of Lucerne Crescent – poses an unacceptable level of risk to occupants and visitors to the property, pedestrians using the nearby footpath, and to vehicles parked adjacent to the property.
36	For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

Claire Bennett
Member			

Appendix A – Permit Conditions

Permit Application No	PLN23/0324	
Land	26 Lucerne Crescent 
ALPHINGTON VIC 3078	

What the permit allowS	
In accordance with the endorsed plans:
•	Removal of a tree within a Significant Landscape Overlay.	

Conditions
1	Prior to the commencement of tree removal on site, a plan to the satisfaction of the responsible authority detailing the species of replacement canopy tree(s) planting (including location, size at planting, size at maturity and botanical name) to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. The replacement tree must be one large-sized indigenous or Australian native tree (such as Yellow Box (Eucalyptus melliodora) or Yellow Gum (Eucalyptus leucoxylon)) or no less than two medium-sized indigenous or Australian native trees (such as Flowering Gum (Corymbia ficifolia ‘Summer Beauty’)) to the satisfaction of the responsible authority.
2	The replacement canopy tree(s) shown on the endorsed plans is to remain on the land and maintained to the satisfaction of the responsible authority.
3	The tree removal as shown on the endorsed plans and documents must not be altered without the written consent of the responsible authority.
4	Once the tree removal has started it must be continued and completed to the satisfaction of the responsible authority.
5	Except with the prior written consent of the Responsible Authority, tree removal and replacement planting works must not be carried out: 
(a)	Monday-Friday (excluding public holidays) before 7 am or after 6 pm,; 
(b)	Saturdays and public holidays (other than ANZAC Day, Christmas Day and Good Friday) before 9 am or after 3 pm; or
(c)	Sundays, ANZAC Day, Christmas Day and Good Friday at any time. 
6	This permit will expire if: 
(a)	the tree removal is not commenced within two years of the date of this permit; or 
(b)	the tree removal is not completed within four years of the date of this permit. 
The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within six months afterwards for commencement or within twelve months afterwards for completion. 

– End of conditions –