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[2003] SAERDC 90
appellant. The Council's decision was set aside. Provisional Development Plan Consent was granted for removal of the Pinus halepensis and planting three replacement trees: a pink gum and two pincushion...
The Court allowed a developer's appeal from the Council's refusal to remove an Aleppo Pine beside two dwellings under construction. It treated the tree as significant, but found that significance alone did not require retention. Applying the Development Plan as a whole, the Court found the tree did not make the relevant kind of important contribution to local character, amenity or landscape, and that replacement landscaping was supported by the Plan. Consent required planting a pink gum and two pincushion hakeas and maintaining or replacing them as specified.
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2,141 words · generated 02/10/2026
McCormick Smith Property Group Pty Ltd owned land at 7 Finnis Terrace, Burnside, where it was constructing two semi-detached dwellings. An Aleppo Pine, Pinus halepensis, stood in the northwest corner of the land, about four metres from the intended rear wall of one dwelling. In February 2003, McCormick applied to remove it and establish replacement planting of a species and habit more suited to the circumstances (paragraph 1).
1 cited instrument linked from this judgment.
The City of Burnside treated the pine as a significant tree under section 4 of the Development Act 1993 and regulation 6A of the Development Regulations 1993. It refused consent on 1 March 2003. Its stated reasons were that the tree was a significant landmark, had amenity value that new planting could not adequately replace, contributed significantly to landscape quality as a notable visual element, and was healthy (paragraph 1).
The appeal was heard by Commissioner Mosel in the Environment, Resources and Development Court. The Court inspected the site and the tree from several vantage points and heard evidence from the parties and landscape and tree-management witnesses (paragraph 2). The physical evidence included a tree about 18 to 22 metres high, with a trunk circumference of about 2.1 metres measured one metre above ground, and an estimated age of about 30 years (paragraph 3).
The tree was not indigenous to the area. The evidence was that Aleppo Pines originated in the Mediterranean, thrive in hot, dry conditions, and can produce a high seed load that may threaten indigenous plant communities in certain circumstances (paragraph 4). There was also disagreement about the effect of nearby excavation on the tree's roots, stability and future health. The Court preferred Mr Draper's evidence that the excavation did not establish the safety and health concerns advanced by Mr Cameron (paragraphs 6, 25).
The Court ultimately allowed the appeal. It set aside the Council's decision and granted provisional development plan consent to remove the pine and plant three replacement trees: a pink gum and two pincushion hakeas. The trees had to be planted within one month of the pine's removal, maintained in good condition, and replaced if dead or diseased in the terms of condition 2 (paragraphs 29-30).
The Court's central interpretive point was that assessment could not be confined to the Development Plan's provisions headed “Significant Trees”. It said it was necessary to consider the wider set of relevant provisions, including those governing the Residential Zone, Policy Area 25, amenity, landscaping and species selection (paragraphs 10-19). This matters to the reasoning because the proposal concerned more than a tree's preservation in isolation: it would alter landscaping associated with dwellings already under construction (paragraphs 23-24).
The Court applied the approach in Summers v City of Unley. It described that decision as establishing that the significant-tree provisions should be read in light of Objective 20, which concerns trees providing important aesthetic and environmental benefits. The Court also adopted the proposition that Principle 49 should not be read as requiring retention of every significant tree regardless of its species, characteristics or contribution. In the Court's account of Summers, proper application of Principle 49 required consideration of the attributes listed in Principle 42 (paragraphs 20-21).
The Court then applied the Development Plan to this particular tree. It accepted that the tree was neither diseased nor of short life expectancy. It rejected the claim that it posed an unacceptable safety risk or threatened substantial damage to a building of value. Although it acknowledged damage to some roots from construction activity, it preferred evidence that appropriate treatment, together with the tree's strength and vigour, would address the identified concerns (paragraph 25).
That was not the end of the assessment. The Court separately considered whether the tree made an important contribution to local character or amenity, or formed a notable visual element of the local landscape, under Principle 42. It accepted that the tree was prominent from some viewpoints. But it considered its prominence arose from its height and slender form, and found it was not an attractive tree or an important aesthetic benefit. It contrasted it with the prominent eucalypts in the area. The tree's visibility did not, on the Court's assessment, make it the kind of notable landscape element envisaged by Principle 42(f) (paragraph 25).
The Court also considered the proposal's planning purpose. The Plan encouraged appropriate landscaping and included provisions supporting indigenous species where appropriate. The Court viewed removal and replacement as a variation to the landscaping arrangements for the development. It found that retaining the pine would conflict with several landscaping provisions, including Principle 31(b), which addressed trees in scale with buildings on the land. The small rear yard, approximately nine by eleven metres, was part of that assessment (paragraphs 24-25).
On the whole, the Court concluded that the tree's significant status did not decide the application. Its contribution under the relevant Plan provisions, the proposed replacement landscaping, the scale and context of the site, and the wider planning objectives supported consent (paragraphs 26-29).
Before this judgment, the Court treated Summers v City of Unley as authority for reading the significant-tree provisions together with all other relevant Development Plan provisions. It also treated City of Mitcham v Freckmann and others as relevant to how the assessment under section 33 of the Development Act was to be carried out (paragraph 10). The judgment does not set out a new statutory test independent of those sources. Instead, it applies the approach described in Summers to the Burnside Development Plan and the facts before Commissioner Mosel.
The judgment's specific contribution in this case was to apply that approach to a removal-and-replacement proposal associated with residential development. The Court considered the tree's contribution to local character, amenity and landscape, then considered whether the proposed replacement planting aligned with landscaping and policy-area objectives (paragraphs 23-26). Its reasoning demonstrates that a tree can be “significant” under the statutory definition without that label, on its own, compelling refusal of a removal proposal.
The result was a conditional consent for removal and specified replacement planting, rather than an unqualified approval. The conditions identified the replacement species, required planting within one month of removal, and required ongoing maintenance and replacement of dead or diseased trees (paragraph 29).
This judgment, as supplied, does not establish what later courts decided about its reasoning. It records the Court's own treatment of Summers and Freckmann, but contains no later judicial treatment of McCormick Smith. Any account of subsequent developments would require sources beyond this judgment.
At paragraph 11, the Court said: “Thus, it is necessary to cast the net wider when identifying the appropriate provisions of the Development Plans when assessing the proposal.” In plain English, a tree-removal application was not to be assessed only by consulting the Plan's tree-specific section. The decision-maker had to consider the other provisions relevant to the site and proposal as well.
At paragraph 21, the Court set out the approach it drew from Summers: the tree-specific provisions had to be understood against Objective 20, and Principle 49 was not intended to require retention of every tree regardless of its characteristics or benefits. The practical point was that the decision-maker had to examine what contribution the particular tree actually made, not stop at its formal status as significant.
At paragraph 25, the Court accepted that the pine was visually prominent from some viewpoints but concluded that its visual qualities were not of the kind contemplated by Principle 42(f). In plain English, being noticeable was not enough. The Court assessed the nature and value of the tree's contribution against the surrounding landscape and the character intended for Policy Area 25.
At paragraph 26, the Court concluded that the proposal found support in Plan provisions encouraging appropriate indigenous planting and enhancement of the area's desired character. This explains why the Court could allow removal despite provisions favouring tree conservation: the replacement proposal also had to be assessed against the Plan.
At paragraph 29, the conditions translated the approval into specific planting and maintenance requirements. The consent was for one pink gum and two pincushion hakeas, planted within one month after removal, with ongoing maintenance and replacement obligations.
The judgment is most relevant to planning assessments where an application concerns a tree treated as significant under the applicable statutory or planning framework, and the proposal is to remove it or undertake activity affecting it. Its reasoning is particularly pertinent where the decision-maker might otherwise focus only on tree-specific Development Plan provisions. The Court expressly required consideration of the wider Plan, including zone, policy area, amenity and landscaping provisions (paragraphs 10-19).
It is also relevant where the tree's status and its actual contribution to the locality are distinct questions. Here, the Court accepted that the tree was significant but still assessed whether it made an important contribution to character or amenity, or formed a notable visual element in the relevant sense (paragraphs 25-26). The judgment indicates that visual prominence alone may not resolve that inquiry; the nature of the contribution and the area's landscape context were material to the Court's reasoning.
The case also involved a replacement planting proposal linked to dwellings under construction. The Court considered whether removal and replacement could serve planning purposes reflected in provisions about appropriate landscaping, indigenous species and the character of the policy area (paragraphs 23-25). A fact pattern involving no replacement planting, different Development Plan wording, or a tree with materially different ecological, heritage, safety or amenity characteristics may require a different analysis. This judgment does not decide those hypothetical cases.
The Court's factual assessment depended on the evidence before it, including the competing opinions about root damage and risk, the tree's physical form, the size of the rear yard, the surrounding eucalypts and the Court's site inspection (paragraphs 2-9, 25). Those details make the outcome fact-sensitive rather than a general permission to remove trees of the same species.
The supplied judgment does not discuss any later court's treatment of McCormick Smith. It was delivered on 12 September 2003, and the text ends with the Court's order. No later judicial decisions are identified in the supplied material as applying, distinguishing, following or questioning this judgment.
The relationships that can be stated from this judgment are instead its treatment of earlier authorities. It considered Summers v City of Unley and adopted the approach it attributed to that decision (paragraphs 20-21). The supplied text gives inconsistent year references for Summers: the body refers to “[2002] SAERDC 113”, while the catchwords cite “[2003] SAERDC 113”. That discrepancy is present in the source and cannot be resolved from this judgment alone.
The Court also considered City of Mitcham v Freckmann and others in explaining the approach to assessment under the Development Act and the need to consider the Plan's provisions properly (paragraph 10). The judgment refers to other decisions within a passage quoted from Summers, but that quoted discussion should not be mistaken for a separate analysis of those cases by Commissioner Mosel.
The judgment resolves the appeal on the evidence and Development Plan before it, but the supplied text leaves broader matters open. It does not define in abstract terms how much contribution is needed for a tree to “make an important contribution” to local character or amenity under Principle 42(a). Nor does it provide a universal test for when a visible tree becomes a “notable visual element” under Principle 42(f). Its application depended on the tree's form, the surrounding eucalypts, the different viewpoints and the intended character of Policy Area 25 (paragraph 25).
The judgment does not determine how the same principles would apply to a tree with stronger evidence of habitat value, biodiversity importance, indigenous status, or a role in a wildlife corridor. The parties did not raise an issue under Principle 42(b), (c), (d) or (e), so the Court did not need to decide those matters (paragraph 25).
Nor does it lay down a general rule about the weight to give to evidence of root damage, future instability or possible branch failure. The Court resolved the disagreement by preferring Mr Draper's evidence over Mr Cameron's on the record before it, describing the latter's concerns as speculative and less soundly based (paragraph 25). Different expert evidence or site conditions could present different questions.
Finally, the judgment does not establish how later Development Plan wording, subsequent legislation or later judicial decisions might affect the analysis. Its reasoning is tied to the Development Plan dated 23 January 2003 and the provisions reproduced in the judgment (paragraphs 10-19). This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Judgment No. [2003] SAERDC 90
The appellant, McCormick Smith Property Group Ptd Ltd ("McCormick"), owns and is currently constructing two semi-detached dwellings at 7 Finnis Terrace, Burnside ("the land"). In February 2003 McCormick applied to the City of Burnside ("the Council") for consent to remove a large tree (Pinus halepensis or Aleppo Pine) which is located about 4.0m away from the intended location of the rear wall of one of the dwellings and establish in its place a tree or trees (of an unspecified number) of a species and habit more suited to the circumstances. The Council determined that the Aleppo Pine is a significant tree within the meaning of s4 of the Development Act 1993 and Regulation 6A of the Development Regulations 1993. Accordingly the proposal constituted "tree damaging activity" (s4 Development Act 1993). On 1 March 2003 the Council refused consent for the following reasons:
"1. The tree is of value as a significant landmark.
2. The tree is of significant amenity value which could not be adequately replaced by new plantings.
3. The tree contributes significantly to the landscape quality and forms a notable visual element.
McCormick appealed the decision. When the matter came to hearing Mr Levinson and Mr Hilditch both of counsel appeared for McCormick and the Council respectively. The Court viewed the land and the Aleppo Pine and other trees from several vantage points in the neighbourhood and heard evidence from Mr D McCormick, Mr A Cameron (Landscape Architect), Mr I Barwick (Landscape Architect) and Mr J Draper (a Tree Management Officer in the employment of the Council).
The land is located on the western side of Finniss Terrace. The subject tree is situated in the northwest corner of the land. It has a trunk circumference of about 2.1m when measured 1.0m above ground level, is somewhere between 18-22m high and has a canopy spread of 3.5-7.0m in its top half. The evidence of Mr Cameron and Mr Draper suggests that the tree is about 30 years old.
According to Mr Draper and Mr Barwick an Aleppo Pine belongs to a species of tree that have their origins in the Mediterranean region of Europe. Since their introduction into South Australia they have been found to thrive in hot dry conditions. Mr Draper and Mr Cameron were on common ground on the reproductive capabilities of the Aleppo Pine. They belong to a species which produce a high seed load and, in certain circumstances, pose a threat of infestation to indigenous plant communities in the Adelaide Hills region.
Mr Draper's evidence indicates that the subject tree has the following general characteristics:
• The slight lean in the lower section of the trunk has been corrected in its higher region as a consequence of better light conditions;
• The absence of branches in the lower levels gives the tree a (not uncommon) top heavy appearance; and
• The main canopy structure is typical and is not unsound or defective.
The subject tree is about 4.0m clear of deep excavations (trenches) that will soon form the footings for the semi-detached dwellings. This excavation, together with soil clearance and benching between the trenches and the subject tree, has resulted in substantial disturbance to and severance of some of its primary and secondary root system. As to the consequences of this work and the health of the subject tree, Mr Draper and Mr Cameron differed. Mr Draper opined that, provided no further excavation occurred and particular measures taken to protect and irrigate a 4.0m zone around it, the overall health of the tree would not be affected. Mr Cameron disagreed. He opined that substantial damage has occurred - to the extent that its health would decline - and it is now unstable.
The land is situated within an area developed with well maintained post World War II houses and more modern structures. In the immediate vicinity of the land, gardens contain a mixture of eucalypts and exotic trees. When the area is observed in its totality the overall impression is one which is reasonably heavily vegetated with large tall trees comprising mainly, but not exclusively, eucalypts.
From some vantage points the subject tree is a prominent visual feature. From others it is subsumed into a backdrop of the more dominant eucalypts.
The proposal plans for the development under construction, indicates the retention of the subject tree within the rear yard of the northern most dwelling. The provisional development plan consent issued by the Council does not contain the usual conditions which are generally designed to protect such trees from damage during construction. Nor does it contain a condition requiring the production of a detailed landscaping plan. This is unusual particularly in light of the generalised landscape "offerings" on the proposal plan Drawing No: C020619SV1A. However, Condition 2 of the provisional development plan consent makes provision for the new landscaping in the following terms:
"One advanced growth tree of greater than 2m height at planting and with a mature height of no greater than 6-8m shall be planted in the front yard of each dwelling no closer than 1m to the retaining wall adjacent to each driveway and approximately 1.5m from the front boundary. These trees shall be retained and maintained in good conditions at all times, to the reasonable satisfaction of Council. Any dead or diseased plants or trees should be replaced to the reasonable satisfaction of Council."
The Relevant Provisions of the Development Plan
The Development Plan (City of Burnside) relevant in these proceedings is the version dated 23 January 2003 ("the Plan"). There are several provisions in the plan that are directed specifically toward significant trees (Council Wide Objectives 20 and 21 and Principles 41-51 inclusive). However, the decision of Her Honour Judge Trenorden in Summers v City of Unley [2002] SAERDC 113 is the authority for the proposition that all of the relevant provisions of the Development Plan are to be taken into account and, of course, properly applied (City of Mitcham vs Freckmann and others [1999] SASC 234; (1999) 74 SASR 56) when deciding to grant or refuse consent to an application to move a significant tree. In this respect, Her Honour said at paragraph 21:
"In my view it would be in error to look solely at those provisions of the Development Plan under the heading of "Significant Trees", in assessing a development which comprises solely the removal of one or more significant trees. It would be contrary to the provisions of the Development Plan itself, and to the way in which the Supreme Court has indicated in Freckmann that the assessment required in Section 33 of the Development Act, is to be carried out. In addition, it must be remembered, consistently with the approach taken in South Australian Planning Commission v Dorrestijn and CR Dorresstijn Nominees Pty Ltd (1984) 36 SASR 355, Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 182 and City of Unley v Hall & Ors [2002] SASC 337 that the development plan cannot of itself, prevent development. The development plan is an important guide; indeed, a relevant authority may not grant consent to a development that it has assessed as being seriously at variance with the relevant provisions of the development plan (Development Act, Section 35), but the language is advisory. The relevant authority must make a planning decision, based on the provisions of the development plan."
Thus, it is necessary to cast the net wider when identifying the appropriate provisions of the Development Plans when assessing the proposal.
I will commence with the provisions for the zone and the policy area within which the land is situated. The land is depicted on Map Bur/7 in the Plan and is within the Residential Zone. It is also within the eastern margin of Residential Policy Area 25 - Beaumont Common. Zone Objective 2 seeks the "protection and enhancement of the amenity of residential areas, with particular reference to the objectives for the relevant policy area". Objective 5 speaks of the "enhancement of the attractive qualities of streetscapes and particularly areas of cohesive character or visual sensitivity, through good design".
The text following these objectives identify several characteristics of the zone including:
"(f) well-vegetated public (street and reserve) and private areas, including significant trees of indigenous and introduced species."
Zone Principle 2 establishes the guidelines for the appearance of buildings and the character of the neighbourhood. Principle 2 (a), (b) and (d) are those most relevant in these proceedings:
(a) preserve existing mature vegetation and other attractive site features;
(b) permit the establishment and long-term health, growth and stability of substantial landscaping having regard to the dimensions of the site and the scale of existing or proposed buildings;
(d) be consistent with and contribute to achievement of the objectives for the relevant policy areas having regard to:
Objective 1 for the Residential Policy Area 25 - Beaumont Common seeks the "maintenance and enhancement of low scale, low density residential character that is derived particularly from:
"(c) The existence of Beaumont Common and stands of indigenous trees throughout much of the eastern part of the Policy Area".
Under the heading "Local Compatibility", the relevant provisions of the Principle 1 for this Policy Area are expressed as follows:
(a) Conserve and enhance the character of the Policy Area, described in Objective 1, and significant trees therein;
Other general provisions also apply. Under the heading "Amenity Council Wide Objectives 16 and 17 and Principles 29 (a), (b), (c), (g) and (j) and 31 (a), (b) and (c) expressed thus:
"Objective 16: Protection and enhancement of visual amenity by ensuring a high standard of design in respect of the appearance of development, and by the conservation and establishment of vegetation, including trees."
"Objective 17: Conservation of streetscapes and landscapes of aesthetic merit, and sites and localities of natural beauty."
"Principle 29: Development should incorporate appropriate landscaping which is designed to:
(a) assist in visual enhancement of the development and its locality;
(b) promote optimal micro-climate conditions in and around buildings (for example, by use of deciduous plants to allow penetration of heat from the sun in winter, and provide shade in summer);
(c) shade, define and create windbreaks for pedestrian paths and open spaces;
(g) be durable and minimise the need for maintenance;
(j) maintain the integrity of buildings, structures or infrastructures."
"Principle 31: The selection of plant species should, where appropriate, include:
(a) species indigenous to the local area, or others which will reinforce a sense of place and contribute to the objectives for the relevant zone and policy area;
(b) trees in scale within buildings on the land; and
(c) taller tree species in localities where such trees are absent or scarce;
The relevant provisions of the Plan that are directed specifically toward a proposal to remove a significant tree are contained in Council Wide Objective 20 (and accompanying text) Objective 21, Principles 41, 42, 47, 48, 49(a) and 50. These provisions are in the following terms.
"Objective 20: The conservation of significant trees (including significant trees identified in Table Bur/3 and associated Figures Bur(ST)/1 to 8 inclusive in Metropolitan Adelaide which provide important aesthetic and environmental benefits.
Trees are a highly valued part of the environment of Metropolitan Adelaide and are important for a number of reasons, including those relating to their high aesthetic value, the conservation of bio-diversity, the provision of habitat for fauna, and the conservation of original and remnant vegetation.
While indiscriminate and inappropriate significant tree removal should generally be prevented, the conservation of significant trees should occur in balance with achieving appropriate development."
"Objective 21: Development sited and undertaken to retain and protect a significant tree or group of significant trees."
"Principle 41: Land should not be developed where the development would be likely to result in a substantial tree-damaging activity occurring to a significant tree."
(a) makes an important contribution to the character or amenity of the local area; or
(b) is indigenous to the local area and its species is listed under the National Parks and Wildlife Act, 1972, as rare or endangered native species; or
(c) represents an important habitat for native fauna; or
(d) is part of a wildlife corridor of a remnant area of native vegetation; or
(e) is important to the maintenance of biodiversity in the local environment; or
(f) forms a notable visual element of the landscape of the local area;
"Principle 47: Development and other work such as excavation, filling, and sealing of surrounding surfaces for the parking of vehicles should not be undertaken closer to a significant tree than a distance equal to six times the diameter of the tree tuck measured 1m about natural ground level."
"Principle 48: Development should be undertaken with the minimum adverse effect on the health of a significant tree."
"Principle 49: Significant trees should be preserved and tree-damaging activity should not be undertaken unless:
(i) the tree is diseased and its life expectancy is short; or
(ii) the tree represents an unacceptable risk to public or private safety; or
(iii) the tree is within 20 metres of a residential, tourist accommodation, or otherwise habitable building and is a bushfire hazard within the Bushfire Prone Area shown on Map Bur/1(Overlay 4); or
(iv) the tree is shown to be causing, or threatening to cause, substantial damage to a substantial building of value; and
all other reasonable remedial treatments and measures have been determined to be ineffective."
"Principle 50: Development involving ground work activities such as excavation, filling and sealing of surrounding surfaces (whether such work takes place on site of a significant tree or otherwise) should only be undertaken where the aesthetic appearance, health and integrity of a significant tree, including its root system, will not be adversely affected."
Also of some relevance in these proceedings are the provision of Council Wide Principles 38(d), 39(c) and 40 which appear under the heading 'Indigenous Vegetation'. In particular the following provisions are of some assistance:
"Principle 38: Development should conserve and enhance vegetation:
(d) which contributes significantly to landscape or streetscape quality, or the objectives of the relevant zone and the policy area;
"Principle 39: Development should promote the long-term conservation of vegetation by:
(c) taking other effective and reasonable precautions to protect both vegetation and the integrity of structures and essential services."
"Principle 40: Where indigenous trees are to be removed, they should be replaced in a suitable location on the site with trees indigenous to the area."
The approach taken by Her Honour Judge Trenorden in Summers v City of Unley [2002] SAERDC 113 when applying the aforementioned provisions in the assessment of a proposal to remove a significant tree is relevant in these proceedings. In saying this I acknowledge that in Summers the dispute involved a different Development Plan from that which applies in the matter now before the Court. However, the provisions that are directed toward significant trees were introduced in 2001 on a metropolitan wide basis and are, for all intents and purposes, identical in all relevant Development Plans. In some instances, including the Plan relevant in these proceeding, the provisions for significant trees have been enhanced at the Council Wide level (eg: Principle 43) and within zones (eg: Residential Zone Policy Area 25 - Beaumont Common Objective 1). In my view, these variations do not in any way challenge the application of the findings in Summers in this appeal.
Having applied, where appropriate, the numbering system in the Plan relevant in these proceedings to the equivalent provisions in Summers, those principles of most importance which fell from the decision are as follows:
(1) At the most general level, the Development Plan encourages the retention of mature vegetation as one means of protecting the environment and preserving or enhancing amenity (see for example Council Wide Objectives 14, 16 and 17). However, these provisions should not imply that existing vegetation be not removed at all. At paragraph 22, Her Honour said:
"The Development Plan was created with certain objects in view, including the facilitation of sustainable development and the protection of the environment, and the encouragement of the management of the environment in an ecologically sustainable manner (see: Development Act Section 3). The Development Plan also encourages the conservation and management of resources, which, in relation to vegetation would include encouragement of the retention and planting of those species of vegetation which are particularly adapted to the dry conditions prevalent in the Adelaide Region."
(2) Council Wide Objective 20 and its explanatory text qualifies the application of the principles specifically directed at significant trees inasmuch as they should apply to trees that "provide important aesthetic and environmental benefits". Therefore, Principles 41, 42, 47, 48, 49 & 50 in these proceedings should be applied within the meaning and intent of Objective 20.
(3) The terms of Principle 49 do not imply, as Her Honour said at paragraph 32, that:
".... every tree, regardless of species, characteristics, benefit provided, contribution to amenity, should be retained, unless it is diseased and will die, presents a safety risk to persons, buildings or valued structures and remedial treatments and measures will not be effective. That cannot be the intended consequence of the Development Plan provisions; one can readily imagine examples to show how ridiculous such a result would be, and it would fly in the face of the objects of Development Plans."
(4) For Principle 49 to be properly applied, the tree in question is to possess one of the several attributes listed in Principle 42. It follows that, in assessing the subject tree in respect of Principle 42, the intent and purpose of Objective 20 should be an important consideration.
(5) In respect of the Principle 42(f), Her Honour's reasoning at paragraph 43 suggests that, in making assessments on whether a tree might be a "notable visual element of the landscape of the local area" it is proper to consider the nature of its contribution (Objective 20) and the interplay between various (landscape, physical, social) elements of an area.
Her Honour also made other significant observations. At paragraphs 39 and 40 Her Honour said:
"As I have earlier indicated, the provisions of the Development Plan with respect to significant trees must be read together with other relevant provisions. However, before I consider the significant tree provisions in context, it is worthy of note that these provisions do not seek to preserve significant trees at the cost of development. The Development Plan acknowledges that trade-offs will have to be made. That is clear in all principles under the Significant Tree heading. Of course "development" has specific meanings according to the Development Act, but it would be nonsense if an appropriate building could proceed at the expense of a significant tree, in accordance with the Development Plan, while the removal of a significant tree in order, for example to preserve and promote the growth of, or to plant and nurture another tree, perhaps more suitable in the conditions, could not be countenanced, simply because the latter is not "development".
Thus is made clear one of the difficulties of bringing "tree damaging activity" within the concept of "development". It perhaps has become easier to remove a tree to facilitate a building in the interests of urban consolidation, that it is to remove a tree in the interests of planting or facilitating the growth of an alternative species, better suited to the climatic conditions of Adelaide and potentially making a greater contribution to the amenity of the local area without drawing on our precious water resources for its good health and survival."
These are relevant observations in respect of the proceedings before the Court. The proposal does not bring forth questions about the balance that might be struck between development and a significant tree. In one sense that question has already been answered in the proposal and the decision in respect of the dwellings. Instead the proposal is for the removal of a significant tree and its replacement with a tree or trees of a species which according to Mr McCormick will be more appropriate to the local environment and in any case at the discretion of the Council. Therefore, a relevant consideration in the matter is the extent to which the Plan has within it a planning purpose that would support a 'removal and replacement' proposal.
The effect of the proposal is to vary the approved landscaping scheme for the development now in its very early stages of construction (Folios 4 and 7, Exhibit R1). When the proposal is considered in this way Her Honour's observations are most relevant when placed in the context of the specific provisions in the Plan which are directed to the establishment of appropriate landscaping in a development (Council Wide Principles 29 and 31). Her Honour's observations also find expression in Principle 40. On the face of it, Principle 40 opens the way for indigenous trees to be removed provided they are replaced in a "suitable location on the site with trees indigenous to the area". In my view it would be a nonsense to provide for the replacement of a tree only in circumstances where the tree to be removed is indigenous. To do so would be in conflict with the conservation and management provisions of Council Wide Objectives 16 and 17 and those provisions of the Plan (Principle 31(a)) which encourage the establishment of indigenous landscaping as one means of retaining and enhancing the desired character of Policy Area 25 - Beaumont Common (Objective 1, Part (c) of the desired character statement).
Having considered all of the relevant circumstances, the evidence agreed by the parties as admissible, the relevant provisions of the Plan and their appropriate application (Summers) and from that which I saw on the view, I have reached the following conclusions:
• In respect of Principle 49(a)(1)(i), I accept the evidence of Mr Cameron and Mr Draper that the subject tree is neither diseased nor is its life expectancy short. On the question of whether the subject tree poses an unacceptable risk to public and private safety (Principle 49(a)(1)(ii)) or threatens to cause substantial damage to a building of value (Principle 49(a)(1)(iv)), I reject evidence of Mr Cameron. He opined that recent excavation in the near vicinity of the tree had seriously damaged its root system to such an extent that its stability was threatened and its future health compromised. These circumstances, he said, could lead to safety problems arising through branch failure or the collapse of the tree. I have no doubt that Mr Cameron is sincere in his views. However, I think that his views are speculative and not as soundly based as those of Mr Draper. The latter opined that the excavations were not of a magnitude that would harm the tree in the way anticipated by Mr Cameron. They are, in his view, a reasonable consequence of the Council's decision to approve the dwellings. He opined that appropriate remedial maintenance or treatment (Principle 49) together with overall strength, youth and vigour of the tree would be sufficient to avoid the matters of concern to Mr Cameron.
• Thus the subject tree, in a limited sense, has the protection offered by Principle 49. However, that is not the end of the matter. The terms of Principle 42 are to be considered and applied as in Summers. As a consequence of the submissions from the parties, no issue arises from the provisions of Principle 42(b), (c), (d) and (e). Thus the question is whether, within the context, purpose and intent of Objective 20, the subject tree makes an important contribution to the character and amenity or whether it forms a notable visual element of the landscape of the local area. From that which I observed on the view there is little doubt that the subject tree is a prominent visual element in the landscape immediately adjacent to the land and from certain, but not all, points of the area surrounding the land. Its prominence is derived from its height and its slender and somewhat uncharacteristic form when set against the background of eucalypts and several other exotic species that exist in the area. It is not an attractive tree. Its physical form (largely a consequence of poor light conditions experienced in its early growth stage) by no means provides an aesthetic element in the landscape nor does it provide an aesthetic benefit as provided for in Objective 20. Granted its (deep green) colour adds a different dimension to the sometimes bland appearance that can occur in landscapes strongly influenced by eucalypts. However, in no sense could the appearance of the subject tree be regarded in the same light as the grand eucalypts that are common in the area and in the near vicinity of the subject land. For these reasons I do not consider the subject tree makes an important contribution to the character or amenity of the locality. For the same reasons, while the subject tree is visually notable, its visual qualities are not of a type envisaged in Principle 42(f) when that principle is properly applied and considered against the existing landscape character and the character envisaged in Objective 1 for Policy Area 25 - Beaumont Common.
• The proposal before the Court is in the nature of a variation to the landscaping arrangements made in respect of a residential development now under construction. The continued presence of the subject tree (albeit proposed in the development application), on the evidence of Mr Cameron and Mr Draper, is in conflict with the many of the provisions of Principles 29 and 31. I think that Mr Barwick's evidence overall would support such a proposition. It is true to say that further appropriate landscaping could occur in the event that the tree remains. However, over the long term, the disproportionate scale of the subject tree in relation to the dwellings will further compound with a vastly increased height (5 metres or so) and trunk diameter. The conflict with Principle 31(b) is bought into stark relief when considered in the context of the size of the rear yard within which it is situated (approximately 9m x 11m).
The subject tree is a significant tree within the meaning of Regulation 6A of the Development Regulations 1993. It is not a tree which possesses any of the characteristics identified in Principle 49. However, this finding does not necessarily speak against the removal of the tree for it is not one which, on my assessment, imparts important aesthetic benefits to the area either in its contribution to the character of the area or its notability as a visual element in the landscape. The proposal as a whole finds support in those provisions of the Plan which encourages the establishment of indigenous trees appropriate to the development now under construction and those provisions which seek to enhance the desired character of the area within which the land is located.
Having considered all that has been put before me and properly applied all relevant provisions of the plan within the appropriate planning context, I have concluded that the appeal should be allowed and provisional development plan consent be granted for the removal of the Pinus halepensis and the planting of trees and other landscaping appropriate to the circumstances and in accordance with Principles 29 and 31.
By Memorandum dated 29 August, 2003, I advised the parties of my conclusion and invited them to confer on conditions of consent that should apply. As a consequence the parties forwarded to the Court an agreed list of conditions and landscaping plan (Exhibit A4)
The order of the Court is that the decision of the Council on Development Application No 180/831/02/c1 is set aside and Provisional Development Plan Consent is granted for the removal of the Pinus halepensis and the planting of three replacement trees subject to the following conditions:
1. The three replacement trees depicted on the proposed landscaping plan drawn by A Cameron Drawing No SK2 Revision A (Exhibit A4) and described as "replacement for Aleppo Pine to be removed" shall comprise a pink gum and two pincushion hakeas and such trees shall be planted within one month of removal of the subject tree.
2. The replacement trees established pursuant to this approval shall be maintained in good condition to the reasonable satisfaction of Council at all times with any diseased or dead trees being replaced forthwith with the same or similar species approved in writing by Council.
Mccormick Smith Property Group Pty Ltd
City of Burnside No ERD-03-138 [2003] SAERDC 90
(1999) 74 SASR 56
(1984) 36 SASR 355
(1985) 38 SASR 182
The Council's decision was set aside. Provisional Development Plan Consent was granted for removal of the Pinus halepensis and planting three replacement trees: a pink gum and two pincushion hakeas, to be planted within one month of removal. The trees were to be maintained in good condition, with dead or diseased trees replaced forthwith with the same or similar species approved in writing by Council (paragraph 29).