VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P957/2021
Permit Application no.WH/2021/426 	
CATCHWORDS	
VicSmart application; Whitehorse Planning Scheme; Significant Tree; VPO3, SLO9.	

APPLICANT	Todd Stahl	
responsible authority	Whitehorse City Council	
SUBJECT LAND	5 Evans Court, Vermont	
HEARING TYPE	Hearing 	
DATE OF HEARING	30 August 2021	
DATE OF ORDER	2 September 2021	
CITATION	Stahl v Whitehorse CC [2021] VCAT 1018   	

Order
1	In application P957/2021 the decision of the responsible authority is affirmed.
2	In planning permit application WH/2021/426 no permit is granted.

Michael Nelthorpe			
Member			

Appearances
For applicant	Mr Stahl in person.	
For responsible authority	Ms Anne Hollensen, Development Planner & Mr Shannon Brown, Consulting Arborist.	
Information
Description of proposal	Removal of a mature Red Oak tree to allow the construction of a single 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.
Vegetation Protection Overlay Schedule 3.
Significant Landscape Overlay Schedule 9.	
Permit requirements	Clause 42.04-2: to remove a tree specified in a Schedule; and
Clause 42.03-2:  to remove a tree specified in a Schedule.	
Relevant scheme policies and provisions	Clauses 11, 12, 15, 21.05, 21.06, 22.03, 22.04, 32.09, 42.02, 42.03, 59.06, 65 & 71.02.	
Land description	This vacant rectangular site is on the east side of Evans Court.  It has a 15.24 metre frontage, a 39.6 metre depth and an area of 606 square metres.  A mature Red Oak with a height of approximately 23 metres and a canopy spread of approximately 19.5 metres is situated on the northern boundary approximately 15 metres from the rear boundary.	

Reasons
What is this proceeding about?
1	Mr Stahl seeks permission to remove a mature Red Oak tree at 5 Evans Court, Vermont so that he can construct a dwelling on the land.  Whitehorse City Council refused to grant a permit on the following grounds:
1.	The removal of Tree 6 (Quercus rubra – Red Oak located near the north-west boundary) is inconsistent with the Objectives and Decision Guidelines of the Vegetation Protection Overlay Schedule 3 and the Significant Landscape Overlay Schedule 9, as this tree has a useful life expectancy of greater than 10 years, has good health and structure and can continue to contribute to the preferred landscape character of the area.
2.	The removal of Tree 6 is inconsistent with the Objectives and Decision Guidelines of the Vegetation Protection Overlay Schedule 3 and the Significant Landscape Overlay Schedule 9, as there are alternative options to develop the site whilst retaining and protecting the tree.
3.	The removal of Tree 6 is contrary to the requirements of Clause 22.04 Tree Conservation Policy.
4.	The proposal fails to adequately demonstrate that reasonable alternatives to removal have been explored.
2	Mr Stahl seeks a review of this decision.
3	After hearing submissions, I affirmed the Council’s decision.  I gave my reasons orally at the time.  I provide written reasons to assist the parties in future dealings with the site.
a valuable tree 
4	I accept the Council’s submission that this is a valuable tree.  It is identified in the Significant Tree Study, City of Whitehorse (Tree Dimensions, September 2006), which informs Schedule 3 to the Vegetation Protection Overlay.  Trees in this Study are regarded as ‘significant for either their contribution to the landscape or streetscape’. 
5	Vegetation Protection Overlay Schedule 3 is justified by several local policies in the Whitehorse Planning Scheme that emphasise the value of mature canopy trees to the community of Whitehorse.
6	Ms Hollensen’s photographs of the site and surround demonstrate that the tree is visible in views from up to 150 metres away from the site.  I have no doubt that it contributes to the neighbourhood’s landscape character.
7	I also accept the Council’s submission that other divisions of the Tribunal have not supported similar requests to remove significant trees.
a healthy tree with good structure and a useful life expectancy of 15-30 years
8	Mr Brown’s submissions and the comments of Mr Jones (for the Council) and Mr Machar (Mr Stahl’s Consulting Arborist) indicate that this is a healthy tree with a reasonably long useful life expectancy.
9	Mr Machar believes it has structural faults in its crown due to being lopped at some time in the past.  I do not support his conclusion.  Rather, Mr Brown satisfies me that epicormic growth at the crown has attached well to the host branches.  
Should the red oak be removed?
10	I do not support Mr Machar’s recommendation that the tree should be removed.  He says that:
The long term practical retention of Tree 6 (the Red Oak) is limited by the tree’s size and root growth characteristics creating potential conflicts with surrounding dwellings (onsite and adjoining)…The central position of Tree 6 onsite has reduced the opportunity for designs to incorporate the retention of the tree.
11	Mr Machar provides no evidence to support these conclusions.  His report does not include a non-invasive root investigation nor any evidence of conflict with the dwelling that previously occupied the site or the neighbouring dwelling.
12	Mr Brown observed the adjoining dwelling from within the site to ascertain if there was any obvious structural damage.  I accept his submission that there is no apparent damage, such as lifting or cracking of the wall nearest the tree.
13	I do not accept Mr Stahl’s submission that he has explored every avenue to design a house within the Council guidelines, including the 8-metre front setback.  During the hearing, he clearly expressed his intention to use a design from a volume builder to construct a four-bedroom/double garage home of brick veneer and on a concrete slab with 2.5-metre-deep piers.
14	I accept the Council’s submission that there are alternative design techniques.  These include designing a dwelling around the tree, avoiding unreasonable cut and fill in the Tree Protection Zone, using pier and beam foundations and using light-weight cladding.  I acknowledge that these techniques affect the siting, size and cladding of any future dwelling but they are necessary given the tree’s status.  This approach also requires a non-invasive root investigation and a professional assessment of the potential to reduce or lift the tree’s canopy.
15	I see no alternative for Mr Stahl than to take this approach.  The decision guidelines of the planning controls require consideration of alternative options to develop the site whilst retaining and protecting the tree.  The Council has advised that it will consider a variation to the 8-metre front setback as part of an appropriate design.  As well as this, I find that the Council should also consider any proposal to lift the canopy to accommodate any reasonable two-storey elements of a future design.
16	This approach will properly determine if reasonable alternatives to the removal of the Red Oak have been explored.
17	At the hearing, I advised Mr Stahl that the Council holds the best cards in this deck.  Mr Stahl must be very flexible in his thinking of future options for the site, and he should not undertake any works to the tree or the soil of the root zone without consulting with the Council.
Conclusion
18	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Michael Nelthorpe			
Member