Regulated/Significant Tree Planning Assessment

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  1. Development Plan Policy

    Background

     In 2000, the Minister for Transport and Urban Planning (as she was then called) formed the Urban Trees Reference Group to investigate appropriate policies and legal mechanisms which would allow State and Local Governments to manage and prevent indiscriminate and inappropriate urban tree damage and removal. 

     As a result of the recommendations of the Urban Trees Reference Group, the State Government introduced changes to the law (the Development Act 1993 and Development Regulations 1993) prescribing that “tree damaging activities” affecting certain forms of trees would become “development” and therefore would be controlled under the law.  In relation to a regulated or a significant tree, tree damaging activity includes:

    • the killing or destruction of a tree;
    • the removal of a tree;
    • the severing of branches, limbs, stems or trunk of a tree;
    • the ring barking, topping or lopping of a tree;
    • and other substantial damage to a tree (that includes any of the above to occur) but does not include maintenance pruning that is unlikely to adversely affect the general health and appearance of a tree, or that is excluded within the Regulations.

    Appropriate planning policies were required to be put in place at the same time as this new law to enable balanced decision making when development applications in relation to tree-damaging activities affecting protected trees, were to be considered by the Council.  The State Government introduced a number of Objectives and Principles of Development Control into the Council Wide/General Section of all Metropolitan Adelaide Development Plans (including the City of Burnside Development Plan) to provide guidance when assessing development applications involving tree damaging activities affecting significant trees, and later, regulated trees. 

     These Objectives and Principles of Development Control are contained within the Burnside (City) Development Plan.  These are the provisions of the Development Plan which must be considered by the Council when it undertakes its assessment of such development applications.

     

  2. Regulated and Significant Trees

    Statement in relation to regulated and significant trees

    Significant trees are a highly valued part of the environment of the City of Burnside and the wider Metropolitan Adelaide area, 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.

    The City of Burnside places high value on all trees within the Council area, which is reflected in its Urban Tree Strategy and its Urban Forest Mapping system.  This information sheet applies only to those trees which are legislatively regulated. 

    While indiscriminate and inappropriate significant tree removal should be prevented, the conservation of these trees should occur in balance with achieving appropriate development.

    This desire to achieve an appropriate balance between tree conservation and reasonable development outcomes is reflected and reinforced by Development Plan policy and the assessment approach to that policy that has been adopted by the Environment, Resources and Development Court in relation to its consideration of cases relating to regulated and significant trees.

    The approach the Council must undertake to its assessment in relation to a regulated tree (that is not a significant tree) and a significant tree are different.  This information sheet has been prepared to explain how the Council is required to approach its assessment of a development application in each case including when an expert or technical report may be required in support of an application.

    In relation to some regulated trees (that are not significant trees), the Development Act 1993 strictly prohibits the Council requesting an applicant to provide an expert or technical report, unless special circumstances apply (these special circumstances are set out in this information sheet).  That said, there may be some circumstances where the Council may wish to and can seek its own expert or technical report if it considers it necessary to do so, depending on the particular facts of an application.

    What is the difference between a regulated tree and a significant tree?

     On 17 November 2011, further changes were made to the law, which established a two tier system for the control of trees which are now broadly known as regulated trees.

    regulated tree is a tree, or a tree within a class of trees, declared to be a regulated tree by the Regulations.  Generally speaking, these are trees having a trunk circumference of two metres or more at a point 1 metre above natural ground level. In the case of trees with multiple trunks, the trunks must have a total circumference of 2 metres or more and an average circumference of 625 mm or more, measured at a point 1 metre above natural ground level (for the purposes of this information sheet, regulated trees will be referred to as regulated (non significant) trees).

    significant tree is a tree, or a tree within a class of trees, declared by the Regulations to be a regulated tree and will generally have a trunk with a circumference of three metres or more measured at a point 1 metre above natural ground level. In the case of trees with multiple trunks, the trunks must have a total circumference of 3 metres or more and an average circumference of 625 mm or more, measured at a point 1 metre above natural ground level. 

    However, a tree may also be a significant tree if it is declared to be so by the Council’s Development Plan. A list of these trees can be found in Table Bur/4 of the Council’s Development Plan entitled Schedule of Significant Trees.   The Council’s Development Plan can declare a tree to be a significant tree irrespective of the circumference of its trunk

    Under the Act, a significant tree is also, by legal definition, a regulated tree.  However not all regulated trees are significant trees.  So, a tree will only be a significant tree, where it either:

    • has a trunk circumference exceeding 3m or more measured at a point 1 metre above natural ground level (and in the case of multiple trunks, as outlined above); and/or
    • is listed as a significant tree in the Council’s Development Plan.   

    However, there are some exemptions which apply in relation to certain trees which would otherwise be regulated or significant trees under the law.  These exemptions are set out in the Development Regulations 2008[1]. These include, for example, a tree which is located within 10 metres of an existing dwelling or an existing in-ground swimming pool (other than a Willow Myrtle, or any Eucalyptustree), a tree of a certain species specifically listed in the Regulations, a tree that is within 20 metres of a dwelling in a Bushfire Protection Area identified as Medium or High Bushfire Risk in the Council’s Development Plan, or a tree that is dead.

    To coincide with the commencement of the new law (which introduced the two tiered system for regulated and significant trees), a further State Government initiated Development Plan amendment came into operation on 17 November 2011. 

    As a result of this further Ministerial amendment, the Burnside (City) Development Plan, via objectives and principles of development control, identifies the preservation of significant trees as having a higher order of importance than regulated (non significant) trees. 

    It is only those trees which contribute in a measurable way to the character and visual amenity of a local area or have a biodiversity value that are required to undergo a more rigorous planning assessment.  It will therefore not always be necessary or appropriate for an applicant to be required to provide an expert report, at additional cost because in relation to some regulated (non significant) trees in particular, this may be an unduly onerous requirement.

     

  3. Legislative Framework

    The Act sets out the circumstances when the Council may request an applicant to provide further information in support of an application.  However, there are some limitations on the Council’s ability to request an applicant to provide further information in relation to development applications concerning regulated (non significant) trees[2]

    There are no such limitations on the Council’s ability to request an applicant to provide further information in support of an application that relates to development involving significant trees. However, the Act does prescribe that the Council may only require the applicant to provide additional information in relation to the application on one occasion, and within a certain period of time[3].

     

  4. Approach to assessment and whether an expert or technical report may be requested

    The approach to the assessment of regulated (non significant) trees and significant trees is different because the Objectives and Principles of Development Control in the Council’s Development Plan deal with the two types of trees differently.

     

  5. Regulated (non significant) trees

    In circumstances where an application for tree damaging activity in relation to a regulated (non significant) tree is made and the applicant has indicated that the circumference of the tree measures between 2.8 metres and 2.99 metres, when measured at a point 1 metre above natural ground level, the Council may seek a second opinion from one of Council’s arboriculture staff or other appropriately qualified person as to whether the tree may in fact be a significant tree.  This is because, the measurement of the circumference of a tree is not an exact science and there is room for error in the measurement of the trunk of a tree, particularly where the tree has multiple trunks. 

    Provided the Council is satisfied that the tree is a regulated (non significant) tree, the first task to be undertaken by the Council, is to determine whether or not the regulated (non significant) tree meets the objective tests in the Council Wide, Trees and Other Vegetation provisions of the Development Plan which provide:

    “Regulated Trees

    Objective 25:  The conservation of regulated trees that provide important aesthetic and/or environmental benefit.

    Objective 26:  Development in balance with preserving regulated trees that demonstrate one or more of the following attributes:

    (a)   significantly contributes to the character or visual amenity of the locality;

    (b)   indigenous to the locality;

    (c)   a rare or endangered species;

    (d)   an important habitat for native fauna.”

    If the Council forms the view that the regulated (non significant) tree does not provide an important aesthetic and/or environmental benefit (Objective 25), and that it doesn’t satisfy any of the criteria in Objective 26(a)-(d), then a further assessment of the application will not be warranted, because the tree in question is not considered to be worthy of preservation, nor does it warrant a further more rigorous assessment under the Act, and the application may then be determined by the Council accordingly.  In this case, the application would then be assessed and determined without the provision of an expert or technical report being submitted in support of the application. 

    In relation to Objective 26, the regulated (non significant) tree need only meet one, not all of the four listed criteria.

    In determining whether or not the regulated (non significant) tree does provide an important aesthetic and/or environmental benefit (Objective 25), and whether it does satisfy any of the four criteria in Objective 26(a)-(d), the Council may consider the following matters to be relevant:

     

  6. Does the tree provide an important aesthetic and environmental benefit (Objective 25) and does the tree significantly contribute to the character or visual amenity of the locality (Objective 26(a))?

    In order to answer these questions, the Council’s assessing officer will need to first undertake an inspection of the tree and the local area/locality.  The assessing officer should then turn their mind to the following matters:

    • (i)is the tree visually prominent from a number of vantage points in the local area?
    • (ii)is the contribution which the tree makes confined to a relatively small localised area, i.e. in the order of say 50 metres, or is the contribution made to a much wider area (in excess of say 200 metres or more)?
    • (iii)what is the form, structure, foliage type and general appearance of the tree in its current setting?
    • (iv)is the tree one of many in the locality such that if it were to be removed it would not leave a noticeable “hole” in the landscape?
  7. Does the tree provide an important environmental benefit (Objective 25) and does the tree provide an important habitat for native fauna (Objective 26(d):

    Often, a mature species of any tree will provide some form of habitat for fauna.  However, it is only those regulated (non significant) trees which provide a habitat for fauna that may be considered beyond that likely to be expected in any mature tree of the species in question and that the habitat provided is so unique or special that it may be considered important.

    Of additional relevance here to the Council, may be the type of fauna using the tree as habitat.  If the fauna itself is uncommon, rare or endangered, this may give rise to the habitat being elevated to the level of importance contemplated in PDC 26(d).

     

  8. Is the tree indigenous to the locality (Objective 26(b) or is the tree a rare or endangered species (Objective 26(c):

    It has previously been accepted by the Court that the term “indigenous to the locality” means that the species or subspecies was present in the local area prior to European settlement.   It has also been previously accepted by the Court that it is not necessary for DNA testing to be undertaken to establish this fact.  The Council may need to defer to the opinion of Council’s arboriculture staff or some other appropriately qualified person in relation to such matters.

     

  9. What expert or technical report may be necessary or requested?

    If the Council determines that the regulated (non significant tree) does provide an important aesthetic and/or environmental benefit (Objective 25), and that it does satisfy any of the four criteria in Objective 26(a)-(d), then in that situation special circumstances may then apply, and the applicant may be requested to provide an expert or technical report in support of the application, which is discussed further below.  

    Principles of Development Control (PDC) 79, 80 and 81 of the Council Wide, Trees and Other Vegetation provisions in the Council’s Development Plan provide:

    “79   Development should have minimum adverse effects on regulated trees.

     80   A regulated tree should not be removed or damaged other than where it can be demonstrated that one or more of the following apply:

    (a)   the tree is diseased and its life expectancy is short;

    (b)   the tree represents a material risk to public or private safety;

    (c)   the tree is causing damage to a building;

    (d)   development that is reasonable and expected would not otherwise be possible;

    (e)   the work is required for the removal of dead wood, treatment of disease, or is in the general interests of the health of the tree.

     81     Tree damaging activity other than removal should seek to maintain the health, aesthetic appearance and structural integrity of the tree.”

    PDC 80 states that a regulated (non significant) tree should not be removed or damaged other than where it can be demonstrated that one or more of the provisions that follow, apply.  An applicant must demonstrate and subsequently justify the proposed necessary removal and/or damage to the regulated (non significant tree) to the Council’s satisfaction.

    With the exception of PDC 80(d)[4], in all other cases, an expert or technical opinion may be requested from the applicant to support the reason given for the desired damage or removal of the tree in question. For example, that the tree is diseased (an arborist), that the tree is causing damage to a building (an engineer), that it is within the general interests of the health of the tree (an arborist).

    Upon receipt of that expert or technical report, in the event the Council considers it is necessary to obtain a second opinion in relation to the content of the report, it may seek advice from its own expert or technical officer, either employed as Council staff or if no such staff member is available, it may seek a second opinion from another suitably qualified expert.

  10. Significant trees

    As a result of the changes to the law in 2011 (which established a two tier system for the control of trees), and the consequential State Government amendment to the Council’s Development Plan, the objectives and principles of development control in the Burnside (City) Development Plan, identify the preservation of significant trees as having a higher order of importance than regulated (non significant) trees.

    The Court has identified the approach the Council is required to take in determining an application that relates to a significant tree. In the absence of any specific zone provisions which might lend weight to an assessment, the Council wide provisions of the Council’s Development Plan that relate to significant trees will be given paramount consideration.  In particular, Objective 27 and Principle of Development Control 83 are to be given paramount consideration, which provide:

    “Significant Trees

    Objective 27:  The conservation of significant trees (including significant trees identified in Table Bur/4 and as shown on Figures Bur(ST)/1 to 8 inclusive) in Metropolitan Adelaide which provide important aesthetic and environmental benefits.

    83   Where 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 as a 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 to the landscape of the local area;

    development should preserve these attributes”.

    Having considered these provisions, the Court has determined:

    • that the intended consequence of PDC 83 cannot be that every tree, regardless of its “species, characteristics [and] benefit provided/contribution to amenity” be retained;
    • this is so because PDC 83 must be read in the context of Objective 27.  When read in that context, the Court has concluded that only certain significant trees should not be removed (or damaged as the case may be);
    • the significant trees that are to be retained are, by reference to Objective 27 and its explanatory text, those which confer on the local area important aesthetic or environmental benefits; and
    • in turn, whether a tree makes an important aesthetic or environmental benefit is an issue resolved by reference to PDC 83. 

    The Council is bound to follow the ruling of the Court in relation to such matters.  If it does not follow the approach which the Court has recommended be followed, it risks making decisions in relation to development applications that will be overturned by the Court, if challenged.  So, it is important that the Council “gets it right” in the first instance and follows the approach which the Court has adopted in relation to such matters.

    Upon receipt of a development application for tree-damaging activity in relation to a significant tree, the Council must first determine whether or not the tree provides an important aesthetic or environmental benefit in accordance with Objective 27 having regard to the matters listed in PDC 83.   If the Council is unable to make a determination itself in relation to any of the matters listed in PDC 83, it mayrequest an applicant to provide an expert or technical report, in support of the application, addressing Objective 27 and the matters listed in PDC 83 for the Council’s consideration, review and subsequent assessment. 

    In relation to PDC 83 (a) and (f), an expert report should be submitted by an expert with qualifications in landscape architecture.  In relation to PDC 83(b), (c), (d) or (e), an expert report should be submitted by a suitably qualified arborist, and/or a biodiversity expert, depending on the particular facts of the application.

    In the event the Council determines that the tree does not satisfy either the test in Objective 27 and PDC 83, it is still necessary for the Council to determine whether there are other provisions of the Council’s Development Plan (and particularly within the Zone and Policy Area, if applicable, which would be given primacy being the more specific provisions of the Plan having direct application to the land) that would direct the preservation of the significant tree. 

    If the significant tree does display any one of the six attributes listed in PDC 83, and meets the objective test in Objective 27, the significant tree is one which is ,subject to the matters that follow, worthy of preservation. 

    If the Council forms the view that the tree meets PDC 83(f), in that the tree forms a notable visual element to the landscape of the local area, it should also be satisfied that the tree satisfies Objective 27 in that the tree must also provide an important aesthetic or environmental benefit.  The Court has stated that a tree can be a notable element in the landscape in both a negative and positive sense, and so it is only those trees which are both notable and that provide an important aesthetic or environmental benefit that are considered worthy of preservation. 

    The applicant should then go on to satisfy the Council as to why the principles of development control in PDC 89 are also satisfied having regard to the particular facts of the application.  

    PDC 89 provides:

     “89          Significant trees should be preserved and tree-damaging activity should not be undertaken unless:

    (a)   in the case of tree removal;

    (1)   (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 Protection Area shown on Figure BurBPA/1; or

    (iv)  the tree is shown to be causing or threatening to cause, substantial damage to a substantial building or structure of value; and

    all other reasonable remedial treatments and measures have been determined to be ineffective.

    (2)   it is demonstrated that all reasonable alternative development options and design solutions have been considered to prevent substantial tree-damaging activity occurring.

    (b)   in any other case;

    (i)    the work is required for the removal of dead wood, treatment of disease, or is in the general interests of the health of the tree; or

    (ii)   the work is required due to unacceptable risk to public or private safety; or

    (iii)  the tree is within 20 metres of a residential, tourist accommodation or habitable building and is a bushfire hazard within the Bushfire Prone Area shown on Figure BurBPA/1; or

    (iv)  the tree is shown to be causing, or threatening to cause damage to a substantial building or structure of value; or

    (v)   the aesthetic appearance and structural integrity of the tree is maintained; or

    (vi)  it is demonstrated that all reasonable alternative development options and design solutions have been considered to prevent substantial tree-damaging activities occurring.”

    Depending on the nature of the tree damaging activity proposed, if the application involves the removal of the significant tree, the applicant should satisfy the Council that one or more of the circumstances listed in PDC 89(a) apply in relation to the tree. 

    In the case of any other type of tree damaging activity that does not involve the removal of the significant tree, the applicant should satisfy the Council that one or more of the circumstances listed in PDC 89(b) apply in relation to the tree. 

    Again, in any of these situations, the Council may request the applicant to produce an expert or technical report to support their application. To illustrate, where an applicant asserts that the health of the tree is in question or that the tree poses a risk to person(s) or property due to potential limb failure or similar, an expert report ought generally be provided by a suitably qualified arborist.  Where an applicant asserts that the tree is causing substantial damage to a substantial building or structure, an expert report ought generally be provided by a suitably qualified civil/structural engineer, etc. 

    In the case of an application to remove a significant tree, the applicant should also demonstrate how all other reasonable remedial treatments and measures have been determined to be ineffective. 

    In any other case of tree damaging activity in relation to a significant tree, the applicant should demonstrate that all reasonable alternative development options and design solutions have been considered to prevent substantial tree-damaging activities occurring.

     

     

  11. Suitably Qualified Expert

The minimum qualifications of a person providing an expert or technical report that relates to arboriculture matters, is Certificate V in Horticulture (Arboriculture), or a comparable or higher qualification.


[1] See Regulation 6A(5) and Schedule 3, clause 17 of the Development Regulations 2008

[2] See Section 39 (3a) and (3b) of the Development Act 1993

[3] Pursuant to Section 39(2b) of the Act and Regulation 18A(3), the Council must make this request for additional information within 15 business days from the date of the receipt of the application

[4] A town planner would be qualified to make an assessment in relation to PDC 80 (d) in relation to whether the development is reasonable or expected given the provisions of the Development Plan, but the Council may need an expert or technical report to rule out whether any given development would not otherwise be possible if the tree remained on the land