1. The applicant says that a permit under SLO6 is not required for the removal, destruction or lopping of the subject tree for the following reasons.

Structure of the relevant exemption and its construction

1. Clause 3 in SLO6 says that a permit is required to remove, destroy or lop an exotic tree that is greater than five metres in height. Thus, absent the relevant exemption, the subject tree would require a permit for its removal, destruction or lopping.
2. Reference to 'vegetation' in the relevant exemption includes the subject tree because that is a form of vegetation.
3. The proper construction of the phrase '[I]f the vegetation is within 2 metres of the outer edge of the roof of a building or overhangs this area' includes:
   • trees whose trunk is within two metres horizontally of the outer edge of a roof; or
   • trees whose branches overhang the area within two metres horizontally of the outer edge of a roof.
4. The applicant contends the proper construction must mean that the two metres is measured 'horizontally' for the relevant exemption to be practicable and workable. Council does not dispute that the measurement is to be horizontal. For the purposes of this proceeding, I do not need to make any findings in respect of that matter.
5. The applicant says the construction of the relevant exemption is as follows. A permit is required to remove, destroy or lop the subject tree. The relevant exemption must read contextually that is, with reference to the requirement for a permit. Thus, in circumstances where the conditions for the relevant exemption are met, the need for a permit is displaced such that no permit is required to remove, destroy or lop the subject tree.
6. The applicant says the phrase 'this area' in the relevant exemption can only mean the area described in the immediately preceding text that is, the area 'within 2 metres of the outer edge of the roof of a building'. The applicant says it is a shorthand way of describing the area rather than repeating it.

1. The applicant refers to other planning schemes to highlight examples where the planning authority has chosen different language to convey the confined nature of the exemption. These are set out below.
2. Clause 3 of schedule 1 to clause 42.03 ('SLO1') in the Nillumbik Planning Scheme provides inter alia:

A permit is required to remove, destroy or lop any substantial tree. This does not apply to:

• The pruning of a tree for regeneration or ornamental shaping;
• The removal of dead trees or dead limbs; or
• The partial removal of limbs and branches directly overhanging buildings.

1. Clause 3, schedule 2 to clause 42.01 ('ESO') in the Boroondara Planning Scheme provides inter alia:

A permit is not required to remove, destroy or lop any of the following vegetation:

• ...
• Pruning (including vegetation overhanging a dwelling or within 2 metres of a dwelling).
• Pruning a tree to assist its regeneration.

1. Clause 3, schedule 1 to clause 42.03 (SLO1) to the Bayside Planning Scheme that states:

A permit is required to remove, destroy or lop a tree. This does not apply to:

• Vegetation that is less than 2 metres high or has a single trunk circumference of less than 0.5metre at a height of 1 metre above ground level.
• The pruning of vegetation to remove that part of any branch which overhangs an existing dwelling or is within 2 metres of an existing dwelling.
• A tree which is dead or dying to the satisfaction of the responsible authority.

1. Lastly, cl 3 of sch 1 to cl 42.02 (VPO) to the Bayside Planning Scheme states:

A permit is required to remove, destroy or lop any vegetation native to Australia. This does not apply to:

• ...
• The pruning of vegetation to remove that part of any branch which overhangs an existing dwelling or is within 2 metres of an existing dwelling.

1. The applicant says the principles of construction for delegated legislation such as a planning scheme are the same as those relevant to legislation. The applicant relies on the decision of the High Court of Australia ('HCA') in DZY (a pseudonym) v Trustees of the Christian Brothers[4] for the principles of statutory construction. At paragraph 23 the HCA said:[5]

The principles of statutory construction are well established. The language which has actually been used in the text, in light of its context and purpose, is the surest guide to legislative intention. One reason that the context and purpose of a provision are important to its proper construction is that an object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. Or, as was explained in Project Blue Sky Inc v Australian Broadcasting Authority, statutory construction requires deciding what the legal meaning of the relevant provision is "by reference to the language of the instrument viewed as a whole". Further, the purpose of the legislation is not to be derived from any a priori assumption about the desired reach or operation of the relevant provisions.

(footnotes omitted)

1. Having regard to the above, the applicant says the language of the relevant exemption does not include any limitation within it, as contended by council and its purpose is to set out exemptions from the need for a planning permit. The language of the relevant exemption does not support any limitation as submitted by council.

1. The starting point for my consideration of this application is the text of the relevant exemption, in light of its context and purpose within the scheme.
2. The text of cl 3 in SLO6 is clear and that is, a permit is required to undertake three activities namely, to remove, to destroy or to lop, specified vegetation.
3. The specified vegetation for which a permit is required to undertake the three activities is:
   • Bellarine Yellow Gum;
   • Moonah;
   • any exotic tree greater than five metres in height; and
   • native vegetation greater than 3 metres in height.
4. Clause 3 in SLO6 also provides exemptions from the need to obtain a permit for the three activities, in prescribed circumstances which is apparent from the phrase: '[T]his does not apply:'
5. These prescribed circumstances are:
   • If the vegetation is dead.
   • If the vegetation is within 2 metres of the outer edge of the roof of a building or overhangs this area.
   • If the vegetation is listed as an environmental weed in the incorporated document Weeds of the Surf Coast Shire (2013).
   • To the reasonable trimming of vegetation for the purpose of maintaining its on-going health and proportion within the garden landscape.
6. I agree with the parties that the word 'vegetation' in cl 3 of SLO6 includes trees for two reasons. Firstly, the ordinary meaning of the noun 'vegetation' is 'plants collectively'[6] noting vegetation is not defined in the relevant scheme.[7] Secondly, the scheme does define 'native vegetation' as '[P]lants that are indigenous to Victoria, including trees, shrubs, herbs, and grasses'.[8] It would be a curious situation for the drafters of the scheme to include trees as comprising 'native vegetation' but not vegetation.
7. Having regard to the above, that is, vegetation includes trees, as relevant to the facts of this proceeding, then cl 3 in SLO6 would read:

A permit is required to remove, destroy or lop the subject tree, but a permit is not required if the subject tree is within two metres of the outer edge of the roof of a building or overhangs this area.

1. On the facts in this proceeding, the parties agree that the subject tree is not within two metres of the outer edge of the roof of a building because its trunk is located seven metres from that area. I agree with the position of the parties that it is the trunk of the tree that is to be located within two metres of the outer edge of the roof of a building because if it was any part of the vegetation the second part of the relevant exemption would be superfluous.
2. Thus, the consideration of the relevant exemption in this proceeding is more focused to: a permit is required to remove, destroy or lop the subject tree, but a permit is not required if the subject tree overhangs the area within two metres of the outer edge of the roof of a building.
3. The relevant exemption does not seek to qualify or limit the extent of the activities that can occur without a permit. Without such qualification or limitation, the meaning of the relevant exemption is that all three activities that is, the removal, the destruction or the lopping can occur without a permit under SLO6.
4. Had the drafters of the exemption intended to limit, qualify or restrict the operation of the exemption from the need for a permit for the three activities, the drafters of the scheme would have made that clear. They have not done so.
5. Thus, when considering the text of the relevant exemption, I find that a permit is not required for the removal, destruction or lopping of the subject tree because it overhangs the area that is within two metres of the outer edge of the roof of a building.
6. I now turn to the context in which the relevant exemption is found in the scheme. As set out earlier, the relevant exemption is one of four prescribed circumstances. Helpfully, the drafters of the scheme have provided an exemption that is limited in its application. The fourth exemption provides that a permit is not required for '[T]he reasonable trimming of vegetation for the purpose of maintaining its on-going health and proportion within the garden landscape.' However, a permit is required to remove or destroy vegetation if the reason for its removal or destruction relates to the ongoing health of the vegetation.
7. The limitation of the activities in one exemption but not in the others supports my finding that a permit is not required for either the removal, destruction or lopping of the subject tree.
8. Lastly, I turn to the purpose of the exemption from the need to obtain a permit for either the removal, destruction or lopping of the subject tree. The purpose of exemption provisions is to prescribe or set out circumstances where a permit is not required. That is, the provisions are designed to remove the need for or remove the obligation to obtain a permit under the scheme.
9. The language used in the drafting of a provision that removes the need for, or the obligation to obtain a permit, is fundamental. From a statutory interpretation lens, it is very difficult to imply words into delegated legislation. There may be some rare circumstances where there is clear necessity to imply words into the delegated legislation. However, the text of the relevant exemption is not a rare circumstance. Moreover, as set out in the applicant's submissions there are examples from other schemes that have clearly articulated a limit or qualification to the operation of the exemption provision.
10. The purpose of the relevant exemption supports my finding that a permit is not required for the removal, destruction or lopping of the subject tree.
11. Council also says that the applicant's interpretation of the relevant exemption would mean that the 'presence of a dead branch in a tree would enable the whole tree to be removed without a permit'. I disagree with council regarding the applicant's interpretation rather, the exemption being referred to by council must be read in light of the fourth exemption. Read together they clearly mean that vegetation can be trimmed for the purpose of maintaining its ongoing health that is, by removing the diseased or dead branch. And, the only circumstance where vegetation can be removed, destroyed or lopped rather than trimmed is if the vegetation is dead. That would require an objective assessment of the vegetation to ascertain if it was dead.
12. At the hearing, I put to council a situation where the trunk of a tree was partly within and partly beyond two metres of the outer edge of the roof of a building. Using council's interpretation then only that part of the trunk within the two metres could be removed without a permit, whilst the remainder of the trunk (and any branches) would require a permit. That would be an absurd outcome.

1. Having regard to the above, I must now turn my mind to whether I should make the declaration. I agree with the applicant that there is a real dispute between the parties that attaches to facts that exist and requires resolution by VCAT. It follows that I will make a declaration in this proceeding.
2. I have considered the form of the declaration and consider it important to include the specific facts that arise. Accordingly, the declaration will include reference to the fact the subject tree overhangs the area within two metres of the outer edge of the roof of the building being the existing dwelling.

[1] See Figure 1 at page 2 of the applicant's submission dated 27 January 2026.

[3] (Red Dot) [2007] VCAT 1698 at [6].

[4] [2025] HCA 16.

[5] Joint judgement of Gageler CJ, Gordon J, Edelman J and Gleeson J.

[6] See Macquarie Dictionary, online at 2 February 2026.