(a) Submissions which explain their position in respect of the costs application, including any basis on which they oppose the application; and

(b) A copy of any documents relied on in their submissions.

1. Unless varied by further order of the Tribunal, the hearing of any application for costs will be conducted entirely on the basis of documents, without the appearance of the parties or their representatives (i.e. 'on the papers') at 10.00am on 11 May 2026. No attendance is required. If you are the applicant in this proceeding, you may be required to pay a daily hearing fee before the hearing commences.
2. If a party objects to the application for costs being determined entirely on the basis of documents, without the appearance of the parties or their representatives (i.e. 'on the papers'), they must advise the Tribunal and the parties of this by 4.00pm on 8 May 2026 and give reasons for their objection.

1. Any request for further or alternative procedural orders from the Tribunal must be made in writing and a copy must be given to all parties.

Mr Dylan Thomas, Town Planner supported by Ms Kelly Caporaso, Town Planner and Mr Steve Carroll, Arborist

Application under section 77 of the Planning and Environment Act 1987 (Vic) - to review the refusal to grant a permit.

Neighbourhood Residential Zone Schedule 3 - 'Low Scale, Low Density Residential Areas' ('NRZ3')

Clause 52.37-2 - to remove, destroy or lop a boundary canopy tree in the Neighbourhood Residential Zone where the site is developed with an existing dwelling.

The subject land is on the north-west corner of Stevenson Street and Murphy Street in Kew. It is developed with an existing dwelling. A large canopy tree comprising a Field Elm (Ulmus minor) is located near the rear boundary. It has a height of 14 metres and a canopy width of 8 metres.

1. I delivered reasons for my decision orally at the conclusion of the hearing consistent with the Tribunal's practice in the Short Cases List. These reasons referenced the proposal, site context, policy and relevant planning controls and explained why I found to set aside the decision of the responsible authority.
2. This is an application brought by Christina Hazel ('applicant') to review the decision of Boroondara City Council ('Council') to refuse permission for removal of a canopy tree at 100 Stevenson Street, Kew ('site'). Council issued a Notice of Refusal to Grant a Permit for the following reasons:

The proposed removal of the canopy tree(s) fails to achieve the purpose and performs poorly against the decision guidelines of Clause 52.37 (Canopy Trees) of the Boroondara Planning Scheme, in that:

1. The proposal fails to the achieve the purpose of Clause 52.37.
2. The tree has good health, good structure and good stability and makes a positive contribution to a greener environment and reduces urban heat.
3. The species, type and growth characteristics of tree do not justify the removal of the tree.
4. The tree has good health and good stability, and its removal has not been adequately justified.

1. I have been provided with a detailed description of the site and its environs, the proposal and the relevant provisions of the Boroondara Planning Scheme ('planning scheme'). It is not necessary for me to repeat that material other than to record that:
   • The site is on the north-west corner of Stevenson Street and Murphy Street in Kew.
   • The site has an area of 724 square metres with a frontage width to Stevenson Street of 14.02 metres and a side frontage to Murphy Street of 39.62 metres and is developed with an existing two-storey dwelling. There is a drainage and sewerage easement along the northern boundary of 1.83 metres in width.
   • The proposal is to remove an existing large canopy tree identified in the application as Tree 2 which is a Field Elm (Ulmus minor) located approximately 3 metres from the rear (northern) boundary of the site. Tree 2 has an estimated height of 14 metres and an estimated canopy width of 8 metres.
   • Under the planning scheme, the site is in the Neighbourhood Residential Zone Schedule 3 - 'Low Scale, Low Density Residential Areas ('NRZ3'). There are no overlays affecting the site.
   • Clause 52.37 relating to 'Canopy Trees' is relevant to the proposal to remove a canopy tree on the site. Under Clause 52.37-1, Tree 2 qualifies as a canopy tree due to its height, canopy width and trunk circumference exceeding 0.5 metres measured 1.4 metres above ground level.
   • Clause 52.37-2 exempts the need for a permit to remove a canopy tree if the site is developed with an existing dwelling. An exception to this relates to canopy trees that are within 4.5 metres of a rear boundary. Because Tree 2 is within this distance to the rear boundary of the site, a permit requirement is triggered for its removal under the clause.
   • A permit application under Clause 52.37 is classified as a VicSmart application. Under VicSmart, a permit application required under Clause 52.37:
     • is considered under the purposes and decision guidelines of Clause 52.37;
     • is exempt from notification and objector review rights;
     • is exempt from considering decision guidelines in Clause 65;
     • is exempt from considering some of the relevant requirements under sections 60 and 84B of the Planning and Environment Act 1987(Vic);
     • is exempt from considering the Municipal Planning Strategy ('MPS') and Planning Policy Framework ('PPF') of the planning scheme; and
     • is exempt from considering the decision guidelines of the relevant zone.
   • The purposes of Clause 52.37, as relevant to the proposal, include:
     • Protecting and enhancing canopy tree cover to support greener and cooler residential areas.
     • Maximising the retention of existing canopy tree cover where no development is proposed.
     • Encouraging canopy tree cover that is site and climate responsive and supports the local environment.
2. I have had the benefit of submissions from Mr Thomas for Council with the support of Ms Caporaso and Mr Carroll also from Council and Ms Hazel as the applicant and have considered them.
3. With this matter, I must decide whether the removal of Tree 2 will produce an acceptable and not a perfect outcome having regard to the provisions of Clause 52.37 of the planning scheme. Net community benefit is central in reaching a conclusion. Clause 71.02 - 'Integrated Decision Making' of the planning scheme requires the decision-maker to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.
4. With the proposed removal of Tree 2, I must decide whether a permit should be granted and, if so, what conditions should be applied.
5. Having considered all submissions presented with regards to the applicable provisions of the planning scheme, I find the proposal represents an acceptable outcome.
6. Clause 52.37-7 includes relevant decision guidelines relating to:
   • The contribution of existing and new canopy trees to a greener environment and reduction of urban heat.
   • The existing development of the site and adjacent land.
   • The species, type and growth characteristics of existing and new canopy trees.
   • The impacts from structures and other physical constraints.
   • The health and stability of the canopy tree proposed to be removed.
   • The risk of causing damage.
   • Other canopy trees to be retained on the site.
   • The cumulative effect of reducing canopy trees on the site including removals within the past 12 months.
   • The suitability of new canopy trees including proposed deep soil areas or planter soil volume or depth.
7. The applicant says Tree 2 is in a narrow area close to the rear boundary of the site. The applicant says the trunk of Tree 2 is positioned against an existing double carport retaining wall and within 900mm of another large shed. It is within 300mm of a salt-water pool pump and the applicant says the permeable area for the tree protection zone of Tree 2 is impacted on two sides.
8. The applicant refers to an Arboricultural Assessment prepared by Future Tree Health dated July 2025 and updated in January 2026 which concludes that Tree 2 is in poor health, exhibiting extensive dieback, with approximately 60% canopy loss, branch tip dieback, and visible epicormic regrowth indicative of stress. The structural framework of the canopy has begun to collapse, with dead limbs and receding fine branching evident and defoliation patterns and long-term symptoms consistent with chronic infestation by Elm leaf beetle (Xanthogaleruca luteola).
9. The applicant says the existing Tree 2 can be replaced with one canopy tree already planted and an additional one new canopy tree of an acceptable and appropriate species and in a more appropriate location within the site to offset its loss. The applicant has also suggested an additional 12 other smaller trees can be planted on the site.
10. Council says that at the time the permit application was determined on 8 December 2025, Tree 2 was identified as a mature specimen with good health, structure and form with a life expectancy of more than 25 years. At the time, Council assessed that Tree 2 had a high streetscape, aesthetic and environmental value and medium habitat benefit with minor deadwood and no obvious major structural defects observed from a ground-based assessment. It also considered Tree 2 had a low-risk rating.
11. However, Council says that from its inspection in December 2025 the extent of canopy loss appeared to be around 5% which was inconsistent with that reported in the Arboricultural Assessment. Council also says that from further inspections in March 2026, Tree 2 had further declined with drill holes observed and the tree in poor health. Council says that bark and soil samples have been collected for analysis of suspected poisoning.
12. The applicant refutes any claims of poisoning and has lodged an application for costs pursuant to section 109(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
13. The applicant says the sudden decline of Tree 2 is due to the infestation of Elm leaf beetle over summer. I note Council says it is not concerned about the presence of Elm leaf beetle because they are common throughout the municipality.
14. Council says it does not support the removal of Tree 2 because another canopy tree (Tree 1) has already been approved under local laws for removal which will leave only two other canopy trees on the site if Tree 2 is also removed. It says the removal of two canopy trees represents a reduction of the canopy tree cover on the site which contributes positively to the greener and cooler residential area.
15. The loss of Tree 2 is not supported because Council says the applicant has not proposed any new canopy trees to offset the loss of Tree 2 and its removal would result in less than 6 canopy trees on the site which is what is required under Table 1 of Clause 52.37-3.
16. I note the applicant is not proposing to undertake development of the site. One canopy tree has already been approved to be removed, and the proposal involves removal of a second canopy tree leaving two retained on the site.
17. Under Clause 52.37-1, a:
    • new canopy tree means a canopy tree proposed to be planted. It must be a species and type that will, at maturity, have:

• an expected height of at least 6 metres above ground level; and > > - an expected canopy diameter of at least 4 metres.

18. The decision guidelines under Clause 52.37 require consideration of the purposes of the clause which are to protect and enhance canopy tree cover to support greener and cooler residential areas and maximise the retention of existing canopy tree cover where no development is proposed. They also require consideration of the health and stability of the canopy tree and the cumulative loss of canopy trees.
19. Tree 2 is a large tree that in a healthy state would contribute significantly to a greener and cooler neighbourhood. However, I note from the submissions of the parties that Tree 2 is not healthy. The tree is infected with Elm leaf beetle. Poor health of the tree is evident by the extent of canopy dieback and the concerns of Council that the tree has been tampered with.
20. I accept the applicant's position and consider that as Tree 2 is showing signs of canopy loss and based on the arborist's report, I find the removal of Tree 2 an acceptable outcome. The tree is also inappropriately planted close to buildings and according to the applicant is damaging infrastructure.
21. Regarding planting new canopy trees, I note the canopy tree requirements under Clause 52.37-3 are not mandatory and for the site, requires the planting of 6 new canopy trees.
22. I am not sure that 6 new canopy trees can be planted on the site given the spatial constraints associated with the existing dwelling and outbuildings.
23. The applicant has suggested planting of one new canopy tree which, in addition to the retention of two existing canopy trees within the front and rear of the site and one canopy tree already planted, I consider is an acceptable outcome. I will include a condition for this outcome.
24. For the reasons given above, the decision of Council is set aside. A permit is granted subject to conditions.
25. The applicant has made an application for costs which was lodged with the Tribunal dated 30 March 2026. The total amount of costs sought is $10,154.10 and includes:
    • An Arborist report - $1,760.
    • Permit application fee - $288.
    • Tribunal fee - $1,106.10.
    • Personal time cost for meeting Council on-site - $2,000.
    • Stress and embarrassment including defamation associated with cause of tree decline - $5,000.

1. Council has not made any written submissions in response. Accordingly, I have made orders providing both parties an opportunity to make submissions and for the matter of costs to be further considered.

Remove, destroy or lop a canopy tree in the Neighbourhood Residential Zone.

1. Before permitted works and tree removal commence, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. The plans must be drawn to scale with dimensions. When the plans are endorsed, they will then form part of the permit. The plans must show:

(a) An updated Existing and Tree Removal Plan which (an annotated aerial image can be used):

1. Titles the plan as 'Existing and Tree Removal Plan';
2. Accurately depicts the entirety of the subject land, including title boundaries and the footprints of any existing buildings;
3. Accurately plots the location of all the tree(s) on the land;
4. Identifies the canopy tree(s) to be removed, destroyed or lopped;
5. Allocates each tree with a unique Tree number;
6. Specifies the species name of each tree to be removed, destroyed or lopped along with their height and canopy diameter;
7. Shows the retention of Cedrus deodara (Himalayan cedar) in the front setback and an existing canopy tree in the rear.

(b) An updated Tree Retention and Planting Plan to the satisfaction of the responsible authority, which (an annotated aerial image can be used):

1. Titles the plan as 'Tree Retention and Planting Plan';
2. Accurately depicts the entirety of the subject land, including title boundaries and the footprints of any existing buildings;
3. Shows the planting of 2 canopy tree(s) including one already planted with minimum mature dimensions of 6 metres height and 4 metres canopy spread within the property and to meet the soil requirements of Clause 52.37-3;
4. Shows replacement tree(s) to be at least 1 metre from existing structures, paving, decking, property boundaries, services, easements, existing trees, or shrubs, unless otherwise agreed to in writing by the responsible authority;
5. Shows replacement tree(s) to be a minimum height of 1.5 metres when planted;
6. Shows the planting of a further 12 smaller trees;
7. Specifies replacement tree(s) species selected from Council's Tree Species list or a comparable species to the satisfaction of the responsible authority. Choosing suitable tree species | City of Boroondara;
8. Shows the retention of Cedrus deodara (Himalayan cedar) in the front setback and another canopy tree in the rear setback.

1. The location and type of the permitted works, and vegetation to be removed, retained or replaced as shown on the endorsed plans, must not be modified for any reason without the prior written consent of the responsible authority.
2. This permit only allows for the removal of:

1. The tree removal must be undertaken by a qualified arborist in accordance with relevant Australian and Industry Standards, and to the satisfaction of the responsible authority.
2. This permit must be provided to the property owner and any contractor working on the property, ensuring they are aware of the approvals and conditions of this permit.
3. The replacement tree(s) as shown on the endorsed plans must be planted within 18 months of the issue date of this permit and must be maintained thereafter to the satisfaction of the responsible authority, unless with the prior written consent of the responsible authority.
4. The replacement tree(s) must be planted at least 1 metre from existing structures, paving, decking, property boundaries, services, easements, existing trees, or shrubs, unless otherwise agreed to in writing by the responsible authority.
5. The replacement tree(s) must be a minimum height of 1.5 metres when planted.
6. Photographic evidence must be supplied to Council confirming that the required tree(s) have been planted on the site. The details listed below must be sent to boroondara@boroondara.vic.gov.au. Replacement tree details must include:

(a) Planning permit number and property address.

(b) A clear photo of the planted tree(s).

(c) Details of the tree species (e.g. photo of plant tag or copy of invoice).

(d) Confirmation that the planting is in accordance with the endorsed plans.

(e) Photographic evidence must be provided within 18 months of the issue date of this permit, unless with the prior written consent of the responsible authority.

1. This permit will expire if the works are not completed within one (1) year of the issue date of this permit.

The responsible authority may extend the times referred to if a request is made in writing before the permit expires or:

(i) within six (6) months afterwards if the works have not commenced; or

(ii) within twelve (12) months afterwards if the works have not been completed.

Council and the Victorian Civil and Administrative Tribunal are unable to approve requests outside of the relevant time frame.

[1] The submissions of the parties, any supporting exhibits given at 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.