1. Proposed Section A (above) show the works along the south boundary.
2. The typical retaining wall design detail[8] ('Design Detail') recommended by the applicant's engineer is extracted below.
3. This Design Detail is reproduced in Section 5 (proposed Impact Assessment) of the updated Arboricultural Impact Assessment commissioned by the applicant.

1. During the hearing, I sought clarification from the applicant as to existing and proposed conditions along each boundary. These are summarised below.

1. The applicant confirmed that the retaining wall proposed for 'reinstatement' is the existing plinth at the base of the existing brush fence along the west boundary.

South (side) boundary in common with 54 Tramway Parade

1. At present there is a timber paling fence but no retaining wall along the south boundary in common with 54 Tramway Parade. Proximate to the tree, the paling fence is bowed outwards in part.
2. In the front yard of 54 Tramway Parade, portions of a besser block retaining wall for a garden bed parallel to the common boundary and front fence have been damaged proximate to the tree. Repair or reconstruction of these elements on this neighbouring land extend beyond the subject land and do not form part of the proposed works relied upon by the applicant for the purposes of this permit application.

1. The applicant's primary reason for the permission sought arises from the construction of new retaining walls beneath the affected length of fences along both the south and west boundaries in locations and to engineering specifications that are said to necessitate the tree's removal.
2. Supplementary reasons relate to the tree's health and overall condition.
3. I address each of these considerations in turn.

Design and location of proposed fence and retaining walls

1. It is common ground that the tree has caused damage to the applicant's south and west boundary fences proximate to the tree. Some damage to neighbouring fencing and retaining wall at 54 Tramway Parade is also attributed to the tree in addition to portions of a footpath near the tree.
2. Photographs indicate that the footpath has been reinstated with a slightly modified alignment to accommodate the tree's growth westwards.
3. In-principle, damage to surrounding structures is a relevant matter for consideration that may in some circumstances weigh in favour of tree removal.
4. However, in this case it is the selected design of the new structures along portions of the two boundaries that gives rise to this proposal for tree removal. The proposed structures would damage the tree and its root system to such an extent that it is unlikely to remain viable.
5. It is relevant to observe that the proposed design of structures differs considerably from those existing.
6. Along the west boundary, the sleeper retaining wall design is proposed to be partially embedded below the existing surface level and is to have a maximum overall height of up to 0.6m.
7. This is intended to replace the existing timber plinth connected to and at the base of the brush fence. The plans depict this existing timber plinth sitting above and with a dimensioned height of 0.3m to 0.4m above footpath level.
8. Concrete pile footings for vertical beams in three locations to a minimum depth of 800mm are also proposed at 4m spans. The engineering design (25 July 2025) showing the locations of these three footings for vertical support beams (in red) in the site plan extracted below. The dashed circle shows the extent of the 4m SRZ.

1. The central corner post and footing is sited directly at the base of the tree through its buttress.
2. Text describing the above design in the engineer's July 2025 advice states that, 'Front fence/retaining wall and boundary fence come together at the corner of the property. Concrete pile foundations will be required, as shown below in Red to support proposed structure and transfer vertical and horizontal loading. These footings will be located within Tree Sensitive root zone with the corner footing clashing with the tree trunk. Cantilevered structural approach could be an option for a straight run of fence, however Cantilevered design with the common junction in the corner is not possible'.
3. No explanation in the engineer's advice is given as to the necessity for the proposed locations of the corner post, associated footing and two companion posts and footings either side with 4m spans.
4. The two paged engineer's advice concludes 'We suggest removing the tree in order to allow for re-construction of front fence/retaining wall and boundary fence. Refer to page 2 for retaining wall detail.'
5. The retaining wall detail referred to above is the 'Design Detail' referenced in paragraph 35 of these reasons and reproduced in the applicant's arborist report. It shows spans between posts and footings at a maximum distance of 1.8m.[9]
6. The adopted 4m spans between posts and footing locations is self-evidently inconsistent with the typical 1.8m maximum spans identified in the Design Detail.
7. It is also noted that although the subject land appears to be slightly higher than footpath level on its west side, regrettably, the plans provide no existing levels along the base of the west boundary fence within the subject land.[10] Thus, the suggested engineered height and design of retaining walls in the proposed Design Detail is based upon yet to be documented site levels.
8. Along the south side boundary, the proposed retaining wall is to be located where presently there is none. Photographs of existing conditions, indicate that site levels either side of this boundary are very similar, which the applicant confirmed in oral submissions at the hearing. Absent any proposal for earthworks or other development that might otherwise alter existing site levels, it is unclear why an engineered concrete retaining wall structure is even necessary along this part of the south boundary.
9. It is also apparent that the woody buttress of the tree itself acts as a natural retaining element. That being the case, the proposed construction of retaining structures in the locations and of the design proposed is not persuasive in the circumstances.
10. Where any difference between site levels exist in more distant locations from the buttress that may justify some form of soil stabilisation, I am not persuaded that other suitable design alternatives do not exist as submitted by the applicant.
11. Nor am I persuaded by the applicant's submissions that the tree's removal is justified when assessed in the context of the Australian Standard Protection of Trees on Development Sites (in its now updated form AS 4970:2025).
12. The proposed design necessitates excavation in the tree's SRZ and is likely to be a major encroachment that irreparably harms the tree. However, AS 4970:2025 describes the process and measures to be undertaken by a suitably qualified arborist including identification of suitable design alternatives to demonstrate the tree will remain viable.[11] Regrettably, the applicant's arborist was not tasked with identifying any suitable design alternatives.
13. To the extent that the tree's future growth may impact upon new fencing, I also agree with the council's submissions, consistent with its arborist's advice, that any affected fence portions can be modified with a 'cut out' that is designed around the trunk and buttress with some allowance for future growth. I should add that I have observed many successful examples of such a design response in residential and non-residential settings.

WHAT IS THE TREE'S HEALTH AND LANDSCAPE CONTRIBUTION?

1. No expert evidence was called on arboricultural matters. I have previously set out the material that has been filed by the parties which I have considered together with their oral and written submissions.
2. I record that none of the arboricultural related material for the applicant or council conclude that the tree is at imminent risk of failure or hazardous such as to warrant its removal.
3. I find that:
   • The tree, because of its highly visible location, height and canopy spread makes a significant contribution to the visual amenity and aesthetic character of this locality; and
   • I am not persuaded that removal of the tree is needed due to its health having regard to the decision guidelines at clause 59.06-1 or because of the tree's structure, form and overall condition.

WHAT WOULD BE THE IMPACT OF THE TREE'S REMOVAL?

1. Absent any information from a suitably qualified person on the vegetation's faunal values, I am unable to make any conclusive findings about the tree's contribution to and any impacts upon faunal habitat and corridors.
2. The tree's removal would however incrementally contribute to a diminution of the area's visual amenity and aesthetic character.
3. Removal of the tree would conflict with the vegetation protection objectives and the statement of significance for VPO3.

1. The reasons advanced for the tree's removal are not persuasive, despite some damage to nearby fencing.
2. The proposed design of replacement fencing and new retaining walls include posts and concrete pile footings that are located entirely within the tree's 4m SRZ.
3. The proposed design and locations selected for these posts, footings and retaining walls will likely cause considerable damage to the tree's buttress and SRZ. The destructive nature of these works give rise to the need for the tree's removal.
4. While there is a very sound basis to repair and modify portions of existing boundary fencing proximate to the tree, the stated reasons for the tree's removal are based upon the particular design features of new structures along two boundaries within the tree's SRZ.
5. The selected design of the proposed structures differs markedly from existing structures. The basis of the chosen design lacks sound justification when assessed against relevant planning scheme provisions.
6. Various elements of the proposed fence and retaining wall design also fail to respond to and are not capable of being favourably reconciled with the physical context.
7. The tree makes a valued contribution to the identified visual amenity and aesthetic significance of this location. The tree's removal would lead to a diminution of these identified values contrary to the stated vegetation protection objectives of VPO3.
8. On balance, removal of the tree for the reasons given is not justified. In the circumstances it is concluded that the tree's retention outweighs the benefits of its removal. The suggested provision of replacement planting does not lead me to an alternative conclusion.
9. I will affirm the council's decision.
10. No permit is granted.

[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.

[2] Arboricultural impact assessment report V1.0 (dated 28 November 2024) filed by applicant.

[3] Of most relevance, none of the buildings and works associated with the tree's removal (retaining walls along south and west boundaries) are the subject of a permit application made before the approval of Amendment VC289.

[4] Including parts of Cheltenham and Sandringham.

[5] Applicant's written submissions, page 3.

[8] Source: Retaining wall advice and design (dated 25 July 2025) by Creative engineering.

[9] This detailed design drawing also identifies the use of 'KDTP H4 horizontal sleepers'. In conventional construction parlance, the abbreviation KDTP is a reference to Kiln Dried Timber Pine. This timber sleeper material differs from the engineer's report of 14 April 2025 which describes the use of 'a reinforced concrete sleeper retaining wall to manage site level differentials and soil pressures'.

[10] One spot level is provided on the plans TP-01 near the south boundary and located approximately 2.7m from the footpath. In this location, a height difference from the low side of the footpath suggests a level variation of approximately 0.3m. This information offers some insight as to surrounding topography but is of little utility in determining the relative ground level differences either side of the proposed west boundary retaining wall intended to replace the existing fence plinth.

[11] See in particular sections 2 and 3, especially sections 2.1.2 and 3.3.6 of AS 4970:2025. Other common 'soft landscaping' techniques as discussed during the hearing could be explored including the judicious placement of plants, rocks or timber edging above ground anchored with pegs at suitable spacings designed to avoid rather than result in root damage.