In the first case to be determined regarding a proposal to remove a significant tree where both parties presented professional evidence from consulting arborists, Norman Waterhouse successfully defended a decision of the City of Norwood, Payneham and St Peters to refuse the proposed removal.
In the decision of TLT Constructions Pty Ltd v City of Norwood, Payneham and St Peters [2001] SAERDC 79 the Environment, Resources and Development Court considered a proposal to remove an English Elm which was 16 metres high, had a canopy spread of 12 metres and a trunk circumference of 3.25 metres. The tree had formed part of the garden of a former dwelling on the land that had been demolished in preparation for a multiple unit development.
The subject tree was somewhat unusual insofar as it had been pollarded over many years. While both arborists agreed that, given proper management, the tree would survive for at least another 50 years; the primary difference between them centred on the likelihood of an appropriate management regime being adopted that would ensure the ongoing health of the tree. The arborist who supported the removal of the tree was of the view that the re-pollarding of the tree every one or two years or the selective reduction of the canopy every 3 to 5 years was an unreasonable expectation of any subsequent owner. He accepted however that were the tree to be managed appropriately that it would not represent an unacceptable risk to property or personal safety.
Having regard to the evidence of the arborists, the Court found that even without appropriate maintenance it was likely that the tree would live for many years. While no positive obligation could be imposed to maintain the tree; it was accepted that when a proposal was put forward for residential development on the subject land, the Council would be in a position, in approving any such development, to impose conditions requiring ongoing maintenance and to ensure that the siting of any residential development did not pose a threat to the ongoing health of the tree. The Court found that any risk occasioned by the possibility of falling limbs was not one that was “unacceptable given the powers available to the Council under the Local Government Act and the interests of the owner to avoid civil liability.
In all of the circumstances it was found that there was no justification for the removal of the tree having regard to the relevant Development Plan provisions. This case highlights the importance of carefully examining and questioning any reports submitted by consulting arborists and ensuring that any ultimate decision in relation to a proposed tree damaging activity is made against the relevant provisions of the Development Plan.
The Full Court of the Supreme Court decision of Verdouw v City of Unley [2001] SASC 63 has significant implications for the processing of development applications for outbuildings. It involved a challenge to the Council’s processing of a development application as a Category 1 development for the erection of a carport attached to an existing dwelling. The appellant contended that the application should have been processed as a Category 3 development.
The carport in question was 13.5 metres long and 3.5 metres wide. It had a pitched gable roof which was 5.0 metres high at the highest point of the gable. The Council classified the proposal as a Category 1 development and granted consent. An order was sought from the Court that the proposed development should have been treated as a Category 3 development and that the consent should therefore be quashed.
The proposal was neither complying nor non-complying. It was common ground that the Council did not address the questions in Paragraph 2(1)(f) of Part 1 of Schedule 9 to the Regulations. That is, it did not use this Paragraph as a basis for itscategorisation of the development as a Category 1 development. However, the Court made some useful comments insofar as this Paragraph is concerned. It said:
"The carport is unusually large. This carport was so large and its obvious effect on the appellant’s use and enjoyment of her land was so significant that no reasonable planning authority could reasonably conclude that the development was of a minor nature only and unlikely to be the subject of reasonable objection.
The Court then proceeded to determine whether the addition of the carport could properly be considered as a Category 1 development on the basis that it fell within Paragraph 2(1)(b) of Part 1 of Schedule 9 to the Regulations insofar as it was:
"the alteration of, or addition to, a building so as to preserve the building as, or to convert it to, a building of a kind referred to in paragraph (a)."
Would the carport preserve the subject dwelling as a detached dwelling? What the Court proceeded to say would not necessarily apply to a freestanding carport or garage. The Court found that the addition of the carport to the dwelling did not “preserve it as a dwelling”. It said that the fact that a carport is not a necessary incident of a dwelling has the consequence that, if a dwelling is altered or added to so as to create a carport, the carport does not preserve the dwelling as a dwelling. Were the carport to be so associated with the dwelling so as to be under the one roof then the Court recognised that the question as to whether it preserves the dwelling as a dwelling may be one of fact and degree. That however was not the situation in this case.
The Environment, Resources and Development Court has recently handed down its first decision on an appeal pursuant to Section 30(2) of the Water Resources Act 1997.
The Court encountered a number of difficulties in determining the appeal against the Minister’s variation of a water allocation license in the McLaren Vale Prescribed Wells Area, based on the legislative regime and the Court’s powers. The Minister had determined to reduce the appellant’s water allocation and to refuse an application for allocation of an additional amount.
The Court found that the Minister’s variation of the appellants’ licence was consistent with the Water Allocation Plan in force in the area, but that the Minister’s approach to applications for additional allocations was inappropriate. The Minister had made a decision on the appellant’s application using a standard approach which had no basis in the Water Resources Act or the Water Allocation Plan. The Court did not have enough information before it to make a final decision, as this would have necessitated consideration of the appellants’ situation in the context of other applications for additional allocations. The Court upheld the appeal and remitted the matter to the Minister for further consideration in light of its findings.
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