1. The permit application has been made pursuant to the scheme's VicSmart provisions. The application and assessment process for a VicSmart application is set out at clause 71.06 of the scheme. It specifies the circumstances in which a permit application is a VicSmart application. It details the following under the heading of 'VicSmart process':

Despite any other provision of this scheme:

A VicSmart application is exempt from the requirements of the Act and scheme specified in this clause.

The responsible authority must assess a VicSmart application in accordance with the requirements of this clause.

If there is any inconsistency between the requirements of this clause and another provision of this scheme, this clause prevails.

1. Referral requirements, information requirements and exemptions from notice and review are provided. Notably, the matters to be considered are expressed as follows:
2. In deciding a VicSmart application, the responsible authority:

Must only consider:

The decision guidelines and requirements specified for the relevant class of application.

The following requirements that would otherwise be applicable to an application if it were not a VicSmart application:

• A public open space requirement in clause 53.01 or clause 43.06-8 or a schedule to those clauses.
• A minimum garden area requirement and a maximum building height requirement in a residential zone or a schedule to a residential zone.

Is exempt from considering the following matters:

• The requirements of section 60(1)(b), (c), (e) and (f) and (1A) (b) to (h) and (j) of the Act.
• The Municipal Planning Strategy and Planning Policy Framework unless the decision guidelines for the relevant class of application specify otherwise.
• The decision guidelines of the relevant zone, overlay or particular provision, other than those specified for VicSmart applications, unless the decision guidelines for the relevant class of application specify otherwise.
• The decision guidelines in clause 65.

1. In deciding an application for review in relation to a VicSmart application, the Tribunal is exempt from the matters specified in section 84B(2)(b) to (g) and (i) to (ja) of the Act.
2. Before deciding a VicSmart application, the responsible authority must consider the decision guidelines specified for the relevant class of application unless in the opinion of the responsible authority a decision guideline is not relevant to the evaluation of the application.
3. Clause 59.06 of the scheme sets out the VicSmart provisions related to applications to remove, destroy or lop one tree. Relevant decision guidelines include:
   • The statement of significance and the objectives contained in the schedule to the overlay and whether the proposal will adversely affect that significance or the objectives.
   • Whether the tree proposed to be removed, destroyed or lopped contributes to the significance of the area and whether the proposal will adversely affect that significance.
   • Whether the removal or lopping of the tree is needed because of the health of the tree.
   • Whether the removal of the tree will contribute to soil erosion, slippage or salinisation.
   • Whether the removal or lopping of the tree is needed to create a defendable space to reduce the risk of bushfire to life and property.
   • If the tree is a native tree, its role in conserving flora and fauna and whether the proposal will adversely affect the conservation of flora and fauna of the area.
   • Whether provision is made to plant a new tree elsewhere on the land.
   • The reasons for removing the tree including the health of the tree to be removed.
   • The cumulative impact of the number of trees that have been removed or been approved for removal in the past three years.
   • Any relevant decision guideline specified in the overlay or the schedule to the overlay.
4. VPO5 includes a statement of nature and significance of vegetation to be protected as follows:

Banyule's vegetation and treed streetscapes are one of the most valued characteristics that contribute to the City's neighbourhood character. Whilst the vegetation cover in much of Banyule's Garden Suburban and Garden Court neighbourhoods is noticeably less than other areas of the City, these neighbourhoods do include a significant number of large indigenous, native and exotic trees (Substantial Trees) that are prominent above and around existing dwellings. These Substantial Trees beautify and add natural interest to these residential areas.

Banyule's Garden Court and Garden Suburban neighbourhoods are located between important waterway corridors, natural features and sites of botanical significance. Indigenous, native and exotic Substantial Trees in these neighbourhoods therefore assist in wildlife movement across the City, provide important faunal habitat and assist in the protection of waterways.

Substantial Trees feature in the remnant overstorey of Garden Court and Garden Suburban neighbourhoods. These areas contain one or a number of indigenous species, remnant exotic trees, and areas of dense remnant overstorey all with a high degree of naturalness. This overstorey is tall vegetation that represents Banyule's natural heritage, and includes species that are rare, threatened or of local, regional or State significance.

The generally wider canopy spread and larger structure of Substantial Trees in Garden Court and Garden Suburban neighbourhoods help to build local identity and make a visual contribution to the urban character of a street, surrounding neighbourhood, and landscape including contributing to Banyule's ridgelines which are visible in backdrops and vistas. They also assist in stabilising the local environment through processes including; reducing the severity of temperature increases associated with the 'urban heat island' effect, sequestering harmful pollutants and managing storm water.

The significance of Substantial Trees and their incremental removal affects the City in a number of ways. Tree protection and management, together with new and replacement tree planting on properties in Garden Court and Garden Suburban neighbourhoods, can help to safeguard and offset any incremental loss and improve the range of benefits Substantial Trees provide.

1. The vegetation protection objectives to be achieved in clause 2.0 of VPO5 are:

To retain and protect existing trees, and to promote further planting of new trees as a significant component of local identity and neighbourhood character.

To protect vegetation of special significance, natural beauty, interest and importance.

To retain vegetation that represents the cultural and/or natural history of the City.

To retain and protect existing trees, and to promote further planting of new trees to enhance streetscapes, ridgelines and backdrops in residential areas.

To ensure that, where tree removal is permitted, appropriate replacement planting is provided and located appropriately on site.

To retain, protect and promote further planting of trees in residential areas to provide habitat links and movement corridors for fauna.

To retain trees which contain hollows as habitat for local fauna.

To retain trees that buffer waterways.

To maintain remnant and/or indigenous overstorey vegetation to provide biodiversity and a source of genetic material for the re-establishment of the natural heritage of the City.

To retain indigenous native vegetation which is rare, threatened or of local, regional or State significance.

To retain exotic trees and non-indigenous native trees, unless identified as an environmental weed.

To manage the long term viability of significant avenue plantings and heritage trees.

To retain, protect and promote further planting of trees for their contribution to stabilising local environmental processes including shading and cooling effects, sequestration of pollutants and management of storm water.

The need to retain vegetation that is significant due to its species age, health and/or growth characteristics.

The need to retain vegetation that contributes to neighbourhood character.

Where the vegetation is located, its relationship to existing vegetation and its role in providing habitat and corridors for fauna and its contribution to local environmental processes.

The compatibility of any buildings and works with existing vegetation proposed to be retained.

The effect of any proposed lopping on the significance or appearance of the tree.

Whether there is a valid reason for removing the vegetation and whether alternative options to removal have been fully explored.

Whether the removal of vegetation is required to deliver a development outcome that makes a substantial and positive contribution to the planning outcomes for the site and surrounding area. The application's response to relevant objectives, strategies and policy guidelines of the Preferred neighbourhood character policy at clause 15.01-5L-01 should be considered.

If retention cannot be achieved, or a tree is considered appropriate for removal, consider whether the site provides adequate space for offset planting of indigenous or native trees that can grow to a mature height similar to the mature height of the tree to be removed. If it is not appropriate to select an indigenous or native tree species, the selected species should be drought tolerant.

Whether the planting location of the replacement vegetation will enable the future growth of the canopy and root system of the tree to maturity, in accordance with the Banyule City Council Tree Planting Zone Guidelines.

Whether the replacement tree species and planting locations conflict with existing or proposed overhead wires, buildings, easements and existing trees.

WHY THE LOSS OF THE TREE CAN BE APPROVED UNDER VPO5

1. I accept the council's submissions that the tree has a canopy height, spread and visibility that contributes to the visual amenity and interest of the wider area. It was also not disputed, and I accept that the tree is in good health and has a longer term useful life expectancy.
2. I also observe that while Mr Galbraith apprehends safety risks from limb shedding, that risk from limb fall and deadwood could be managed by various interventions such as to reduce the risk to an acceptable level (understanding that trees are a living entity and never entirely risk free).
3. I have considered whether weight reduction works or other management options could see the tree retained, acknowledging then that any proposed dwelling would need to be pushed back behind the tree towards the rear of the lot. I remain concerned however, that even re-siting a dwelling behind the tree may have unintended consequences to the root zone of the tree (such as through the construction of a driveway or the need to provide retaining walls due to the more steeply sloping nature of the rear of the lot).
4. I have had the benefit of viewing alternative house siting plans prepared by the applicant that were not available to council at the time it made its decision. These demonstrate that the siting of the tree central to the block and approximately 10 metres from the street frontage is a significant constraint on the siting of any dwelling on the land.
5. This proceeding rests on what contribution the tree makes to achieving the objectives of VPO5 and whether its loss and any proposed replacement planting can achieve an acceptable outcome having regard to those same objectives.
6. In considering the decision guidelines at Clause 59.06 I find:
   • The tree proposed to be removed does contribute to the significance of the area and its removal will temporarily affect that significance.
   • The removal of the tree is not needed because of the health of the tree.
   • The removal of the tree is not needed to create a defendable space to reduce the risk of bushfire to life and property.
   • The applicant agrees to making provision to plant new significant trees elsewhere on the land.
   • The need to avoid the tree and its root zone via re-siting the proposed dwelling will result in the dwelling being pushed to the extreme rear of the lot, allowing no room for the establishment of planting to the rear to provide a backdrop to the proposed dwelling.
   • The re-siting of the dwelling at the rear, on the most heavily sloped part of the land may also necessitate retaining walls and cut and fill to provide vehicle access to the rear which may have consequences on the retained tree's ongoing health.
7. I accept that the loss of the tree will change the existing landscape character. However, the removal of the tree provides an opportunity to replant suitable indigenous tree species. While retaining the tree achieves some of the possible policy outcomes, so too does its removal and replacement planting with five indigenous or native trees. The proposed replanting regime satisfies the objective of VPO5 by increasing the supply of canopy native planting in the immediate area. The regeneration and replanting of indigenous vegetation species will enhance the landscape character outcomes sought in the area.
8. I give great weight to the fact that while the loss of the tree represents the loss of a native Australian tree it enables the replacement planting of five canopy tree species of which a minimum of two will be indigenous to the immediate area. This decision has been finely balanced. The tree is significant and its loss will be immediately evident. Absent a substantial replanting regime, a refusal was likely.
9. I agree with Mr Galbraith that a minimum width of 10 metres across the site frontage should be set aside to accommodate large canopy planting (aside from that area required to provide vehicle access into the site). Based on the 10 metre landscape zone, this provides an adequate area of open space to provide for the planting of upper canopy trees which over time will contribute to amenity and character values as well as support local habitat values attributable to indigenous species.
10. For these reasons, I conclude that permitting the removal of the tree with the associated replanting of five native trees (two of which are indigenous to the immediate area) would result in a planning outcome that, on balance, achieves the objectives of VPO5. Accordingly, the removal of the tree can be permitted.

1. I have imposed a condition on the permit that the tree cannot be removed until such time that a building permit is issued for the development. I have also modified council's draft permit conditions to require the replanting of a minimum of five trees, two of which are to be indigenous to Banyule and three to be native or Victorian indigenous.

1. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

Remove a tree (Lemon-scented Gum) with a height exceeding 12 metres or with a diameter at breast height ('DBH') exceeding 400mm, excluding environmental weed species.

1. The tree must not be removed until such time that a valid building permit is issued for the development of a dwelling on the land.
2. Before the removal of the tree permitted by this permit commences, a landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be prepared by a suitably qualified person and detail:

(a) A minimum width of 10 metres across the site frontage to be set aside for landscaping purposes. This area may exclude that part of the site required to provide driveway access.

(b) The planting of a minimum of two Large trees within the 10 metre landscape front setback. These trees are to be Indigenous to Banyule and chosen from the list in condition 3.

(c) The planting of a minimum of three Medium trees elsewhere on the site. The trees are to be either Native or Victorian Trees and chosen from the list in condition 3.

1. Within six (6) months of the removal of the tree allowed by this permit, replacement planting must be undertaken within the property. The planting/s must be located at least 1/2 metres from property lines and power lines. These planting/s must be provided to the satisfaction of the Responsible Authority and thereafter maintained to the satisfaction of the Responsible Authority. The replacement trees must be selected from the list below: The replacement trees must be:

(a) Established in accordance with AS 2303-2015 Tree Stock for Landscape Use;

(b) Planted as an advanced specimen/s with a minimum pot-size of 20 centimetres;

(c) Sourced from a qualified tree grower or tree nursery.

(d) Selected from the following list:

Eucalyptus leucoxylon subsp.connata - Melbourne Yellow Gum

Eucalyptus leucoxylon subsp_. megalocarpa 'Rosea'_ - Yellow Gum

Eucalyptus mannifera subsp. mannifera - Red Spotted Gum

1. Except with the further written consent of the Responsible Authority, no vegetation (other than that indicated on the endorsed plan or exempt from planning permission under the provisions of the Banyule Planning Scheme) shall be damaged, removed, destroyed or lopped.

1. In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:

(a) The tree removal is not commenced within six months of the date of this permit;

(b) The tree removal and conditioned replanting is not completed within six months of the date of commencement.

In accordance with section 69 of the Planning and Environment Act 1987, the Responsible Authority may extend the periods referred to if a request is made in writing:

(c) Before the permit expires, or

(d) Within six months afterwards, or

(e) Within 12 months afterwards if the development started lawfully before the permit expired.

[1] The submissions and evidence of the parties, any supporting exhibits given provided to the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.