VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P487/2020
Permit Application no. WH/2019/1215	

APPLICANT	Jana Walter	
responsible authority	Whitehorse City Council	
SUBJECT LAND	24 Sandgate Road
BLACKBURN SOUTH  VIC  3130	
WHERE HELD	Melbourne	
BEFORE	Jane Tait, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	14 August 2020	
DATE OF ORDER	20 August 2020	
CITATION	Walter v Whitehorse CC [2020] VCAT 884	

Order
1	In application P487/2020 the decision of the responsible authority is set aside.
2	In planning permit application WH/2019/1215 a permit is granted and directed to be issued for the land at 24 Sandgate Road BLACKBURN SOUTH  VIC  3130  in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Removal of one tree under the Significant Landscape Overlay Schedule 9

Jane Tait
Member			

Appearances
For Ms Jana Walter 	In person	
For Whitehorse City Council 	Mr Ginkaras Simkas, town planner, Direct Planning	

Information
Description of proposal	To remove one tree on the land.  The tree is a Cape Chestnut (7 metres high and canopy width of 5 metres) that is growing in the frontage setback of the dwelling.  
The tree is set back 3 metres from the frontage and 3.9 metres from the dwelling.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Whitehorse Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone Schedule 3 (NRZ3)
Significant Landscape Overlay Schedule 9 (SLO9)	
Permit requirements	Clause 42.03-2 – To remove, destroy or lop a tree 	
Land description	The site is located on the north-east corner of Sandgate Road and Rodney Close, Blackburn South.  The site has a frontage of 16.3 metres to Sandgate Road, depth of 34 metres and site area of 540 square metres.
The site is occupied by a single storey rendered brick veneer dwelling that is set back approximately 9 metres from the frontage.  
There is an existing 1.5 metre high timber paling fence with posts along the frontage setback.  This fence increased to approximately 2 metres along the Rodney Close frontage.  There is an existing crossover and gate in the Rodney Close frontage.
Surrounding land uses are generally single and two storey detached dwellings, some with higher fencing.  Gardens are mixed and contain a mixture of exotic and native species.  Taller canopy trees are found in front and rear yards and the existing street trees also contribute to the bush suburban character of this neighbourhood.	
Tribunal inspection	An unaccompanied site inspection was conducted prior to the hearing.   	

Reasons
What is this proceeding about?
1	Ms Jana Walter (‘the applicant’) applied for a planning permit to remove one tree at 24 Sandgate Road, Blackburn South.  Whitehorse City Council (the ‘Council’) refused to grant a permit and the applicant is seeking a review of this decision.   
2	Council refused the application on grounds the tree removal is inconsistent with the policy objectives under Clause 22.04 – Tree Conservation and the decision guidelines under Clause 42.03 (Significant Landscape Overlay).
What does the applicant say?
3	Ms Walter says the tree is required to be removed to accommodate a car space in the frontage setback. She said a permit was issued by Council in 2019 for the construction of the crossover which was as part to renovations of her dwelling that commenced in 2017.  She says the additions were specifically designed with no parking in the rear yard as it was to be landscaped (including a deck).  She says she was subsequently advised that the laws had changed and that she needed a permit to remove the tree.   She also noted that she made every effort to retain the tree but had to centrally locate the crossover due to the speed hump in the road. 
4	Ms Walter also has concerns about the safety of her children and further motor vehicle theft if cars cannot be parked on the site in the frontage.  She argues that consideration should be given to the findings in her arborist report which states the tree is an exotic species that has a limited life expectancy.  She also has concerns the tree may affect the structural stability of her dwelling as the arborist report noted there is potential for damage, if it were retained.  
5	She rejects Council’s suggestion to place car parking in the rear yard. She says this will be counter-productive as it will require the removal of 14 native Purple Hop bushes for the car space and the landing that provides access to the rear yard.   
6	Ms Walter submits she is prepared to replant with a more suitable indigenous species and plant a native garden along the boundary in the frontage.  This would include the removal of the existing trampoline in the frontage.  She said that she is willing to work with Council on the planting of an appropriate replacement tree species that are suggested in the draft conditions.  She says she made several attempts to negotiate with Council on an acceptable outcome for replanting, to no avail.
What does Council say?
7	Council’s written position is that the tree should be retained.  It says there should only be extenuating circumstances to remove a tree from a front setback when it is considered to contribute to the aesthetic and landscape quality of the streetscape.  The written submission notes the existing tree is in good health and has reasonable structure.  Council says the tree is located in a position that can be reasonably designed around given the site already has off-street parking in Rodney Close.
8	Council says the applicant’s reliance on their arborist report regarding structural damage is tenuous as no structural engineer’s report was submitted to support this proposition.  
9	Council says the applicant has not submitted a landscape plan that can demonstrate the benefits of removing the tree with a replacement canopy tree.  It says the policy is clear and that replacement planting is required in support of a proposal to remove a tree and this was not submitted with the application.
10	Council says that if I was of a mind to support the application, replacement with a tree that could grow to a mature height of 12 metres, as recommended in the NRZ3, is preferable in the frontage setback and rear yard.  However it acknowledges the SLO9 recommends tree replacement to be a similar height to the tree to be removed.
What are the key issues?
11	Having considered the submissions and inspected the subject land and locality, I find the following key issues in this matter are:
•	What is the policy context of this site?
•	Does the proposal satisfy the decision guidelines under Clause 42.03 (Significant Landscape Overlay)? 
12	I have decided to set aside the decision of Council and grant a permit for the tree removal subject to suitable replacement tree planting.  My reasons follow. 
What is the policy context of the site?
13	My decision has considered the purpose of the NRZ3, Clause 12.05-2S, the decision guidelines of Clause 59.06 (Vic Smart), objectives of Clause 42.03 and the Local Planning Policy Framework (LPPF).
14	I note the subject site is located in a NRZ3 – Traditional Bush Suburban Area that includes decision guidelines that emphasise the importance of vegetation in the street setback to contribute to the preferred neighbourhood character.  These guidelines also state development should provide for the retention and/or planting of trees.
15	This is reiterated in the LPPF that nominates this site is within a Limited Change Area at Clause 21.06-3 which also seeks to ensure development does not result in the loss of existing vegetation.
16	Clause 22.03 (RDP) and Clause 22.04 contains specific policies to retain existing vegetation as it significantly contributes to the preferred character of the municipality, including Bush Suburban areas such as this.
SLO9
17	Amendment C219 was gazetted on 30 July 2020 and replaces Amendment C191 that included the SLO9 in the planning scheme.  This overlay is the reason why a permit is required for tree removal.  There are no transitional provisions in this overlay.
18	When considering tree removal it is always good to go back to Statement of nature and key elements of landscape to see if they are relevant to the context of the site.  I found the description of the Bush Suburban Character in Clause 1.0 particularly relevant to this neighbourhood as it says:
The Bush Suburban Neighbourhood Character Area generally has a mix of formal and informal streetscapes with wide nature strips and streets are dominated by vegetation with buildings partially hidden behind tall trees and established planting. Gardens are less formal, consisting of many canopy trees and property boundary definition can be non-existent or fenced. Buildings appear detached along the street and generally comprise pitched rooftops, with simple forms and articulated facades.
19	I also note the following description in the overlay is the reason why residents, including Ms Walter and her family were attracted to Whitehorse in the first place:
The tree cover in Whitehorse simultaneously delivers multiple benefits to the community, including defining neighbourhood character, providing visual amenity, reducing the urban heat island effect in more urbanised areas, improving air quality and energy efficiency, providing habitat for fauna, and increasing the wellbeing of people and liveability of neighbourhoods.
20	The landscape objectives to be achieved include retain canopy tree cover and encourage the retention of established and mature trees.  I note this does not say specifically say to retain indigenous mature trees. 
21	The overlay contains a series of decision guidelines that require consideration of a number of factors including whether the tree contributes to the neighbourhood character and whether there is a valid reason for removal of the tree.  I will discuss these decision guidelines further in my reasons.
22	Clause 22.04 – Tree Conservation contains similar objectives and decision guidelines designed to protect and retain existing trees that I have taken into account in my decision.
My Findings
Does the proposal satisfy the decision guidelines under Clause 42.03 (Significant Landscape Overlay)? 
What is the significance of the tree?
23	The decision guidelines require an assessment whether the tree makes a contribution to the character of the neighbourhood, its relationship to other trees and the cumulative contribution the tree makes with other vegetation.
24	I inspected the site and surrounding area prior to the hearing.  I observed the prominence of the tree in the frontage above the fence-line given its height and width of canopy.  I therefore consider it provides good visual amenity to not only the subject site but to the streetscape as well.
25	However, I note this area does not have the same level of indigenous planting as other areas of the municipality, but the mix of exotic and native trees on private properties and in the public realm contribute to the Bush Suburban character of the area.  This tree currently contributes to the landscape character of this area and therefore replacement planting to compensate for the loss of this tree is required as a condition in the permit.
What is the health of the tree?
26	There was a difference of opinion between the arborists regarding the health of the tree.  The applicant’s arborist says the tree is in fair health and is displaying signs of physiological decline.  Whereas Council’s arborist notes it is has reasonable structure, sound health and has a safe useful life expectancy of more than 10 years.  
27	Council’s arborist inspected the tree and reviewed the applicant’s arborist report who considers the tree is stressed.  Given the current conditions beneath the tree includes no paving or buildings (i.e. lawn) and my observation of the tree, I accept Council’s arborist assessment that the tree is in good health and has a SULE of over 10 years.
Will the tree cause damage to the dwelling?
28	I agree with Council that the applicant has not provided me with any structural engineer’s report or dilapidation survey to support the arborist’s assertion the tree is causing damage to the dwelling.  
29	My decision to approve the tree removal is not based on this concern as remedial measures could be taken to address this issue given the tree is set back over 1300mm from the dwelling.
Alternative Location of Car Parking 
30	Council argues there is no legitimate reason why the tree should be removed as there is an existing off street parking space available from Rodney Close.
31	I observed the existing crossover and gate in Rodney Close and viewed aerial photographs that show the rear yard is landscaped and used for recreational purposes only.  I also acknowledge that the southern end of the site has previously been used for a garage and shed.
32	I note that Clause 5.0 of the decision guidelines states:
Whether there is a valid reason for removing the tree and whether alternative options to removal have been fully explored.
33	Whilst understanding that there is alternative location for off-street parking, Council has already approved the construction of a crossover in the frontage of this dwelling.  I acknowledge that this is not part of the decision guidelines for the SLO9, but note the layout of Ms Walter’s rear yard and existing landscaping (Lilly Pilly hedge), restrict the ability for parking in the rear.   
Replacement Planting
34	Council argues that one of the reasons it refused this application was that a landscape plan was not submitted with the application that demonstrated suitable replacement planting.  It says that planting along the front east boundary (beneath the neighbouring tree) will not provide suitable compensatory planting.
35	I note the landscape objectives at Clause 2.0 are to provide for the planting of new and replacement canopy trees.  The decision guidelines of the SLO9 also state:
If retention cannot be achieved, or a tree is considered appropriate for removal, consider whether: 
•	a replacement tree has been provided; and 
•	the site provides adequate space for offset planting of trees that can grow to a mature height similar to the mature height of the tree to be removed.  
36	I am persuaded by the arguments presented by Ms Walter that she has made numerous attempts to negotiate with Council to plant a replacement tree on the site.  She said that she is willing to plant any of the suggested trees in the Draft Conditions to a comparable height of 7 metres.  This tree would be planted where the trampoline is currently located.  
37	Council also wanted the applicant to plant an additional tree in the rear yard.  However Ms Walter is not prepared to plant an additional tree there as she currently has a row of Lilly Pillys growing along the fence-line that will soon be above the fence and grow to a height of 5 metres.  She said that other tree planting is restricted due to the large tree to the south-east of her property.
38	I accept Ms Walter’s argument that an additional tree in the rear yard is not possible and the planting of a replacement tree of comparable height and maturity in the frontage setback is acceptable.  
39	I note the decision guidelines require consideration of:
Whether the planting location of the replacement tree(s) will enable the future growth of the canopy and root system of the tree to maturity. 
40	Whilst I acknowledge the car space in the frontage will occupy approximately 30% of the area, there is sufficient space for growth of the canopy and root system of a tree to the west of the crossover and gravel parking area.  This is approximately where the trampoline is currently located.  This would satisfy the requirement of Condition 1 (b) of the Draft Conditions that requires the planting the siting of the tree a minimum of 3 metres from buildings.
41	However I note that there are overhead power lines to the dwelling that must be taken into account.  Therefore the positioning of the tree must take into account this constraint in the preparation of the landscape plans.
42	I therefore find that the landscape character objectives of the SLO9 can be met for the removal of this tree provided suitable replacement canopy tree planting is included as a condition on the permit.  I will amend the condition to ensure the tree is not located beneath the overhead wires.  I am also going to delete reference to the statement ‘within 35sqm of open ground clear of all hard surfaces’ noted in Condition 1 (b).  I consider that as the applicant will be planting a semi-mature specimen (1.5m high at the time of planting), this tree will adapt to the conditions and there is suitable grassed area for roots to grow within the frontage.
Conclusion
43	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Jane Tait
Member			

Appendix A – Permit Conditions

Permit Application No	WH/2019/1215	
Land	24 Sandgate Road
BLACKBURN SOUTH  VIC  3130	

What the permit allowS	
In accordance with the endorsed plans:
•	Removal of a one tree under the Significant Landscape Overlay Schedule 9	

Conditions
1	No trees or vegetation shall be removed until a replacement tree-planting plan has been submitted in a digital format to and endorsed by the Responsible Authority.  This plan when endorsed shall form part of this permit.  This plan shall show:
(a)	Location and species of all trees on site and clearly identifying the Michelia doltsopa – Port Wine Magnolia (Tree 1) as the only tree for removal; and
(b)	One replacement tree selected from the following species below to be located on the site in a location to the satisfaction of the Responsible Authority a minimum of 3 metres from buildings.
i	Acacia melanoxylon - Blackwood
ii	Allocasuarina littoralis - Black She-oak
iii	Acacia implexa - Lightwood, Hickory Wattle
iv	Acacia mearnsii - Black Wattle
v	Acacia pycnantha - Golden Wattle
vi	Eucalyptus goniocalyx - Long-leafed Box, Bundy
vii	Eucalyptus macrorhyncha - Red Stringybark
viii	Eucalyptus melliodora - Yellow Box
ix	Eucalyptus radiata - Narrow-leaved Peppermint
x	Eucalyptus baxteri - Brown Stringybark
xi	Eucalyptus obliqua - Messmate
xii	Eucalyptus cephalocarpa - Silver Leafed Stringybark, Mealy Stringybark
xiii	Eucalyptus globoidea - White Stringybark
xiv	Eucalyptus polyanthemos - Red Box
xv	Eucalyptus yarraensis - Yarra Gum
xvi	Acacia dealbata - Silver Wattle
xvii	Other species to the satisfaction of the Responsible Authority
(c)	The selected trees are to be planted at a minimum height of 1.5 metres.
(d)	The tree must not be located beneath the overhead wires.
2	Only the Michelia doltsopa – Port Wine Magnolia (Tree 1) marked "Tree to be removed" on the endorsed plan shall be allowed to be removed or destroyed.
3	The replacement planting must be of good quality, correctly maintained and planted within loose native soil mix and mulch in a location that supports its long-term retention and growth.
4	The new planting is required to be completed within 12 months of tree removal approved under this permit.
5	No other trees on site that are protected by the Planning Scheme may be destroyed, felled, lopped or uprooted without the written consent of the Responsible Authority (other than in accordance with a Notice given pursuant to the Local Government Act). All existing trees to be retained and trees required by this permit to be planted shall be maintained to the satisfaction of the Responsible Authority.
6	This permit will expire if the tree removal is not completed within twelve (12) months of the date of this permit.  The Responsible Authority may extend the periods referred to if a request is made in writing in accordance with Section 69 of the Planning and Environment Act 1987.

– End of conditions –