Removal of mature trees on properties may be impacted by WA State Administrative Tribunal ruling

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2 days ago

A "landmark" court decision could make it harder for West Australian property owners to remove mature trees on their land, and see them risk hefty fines, a legal expert and environmental advocates say.
The decision, handed down in the State Administrative Tribunal (SAT) this week, relates to the right of a property owner in the western Perth suburb of City Beach to remove a mature tuart tree from her backyard as part of a new home build.
The local council, the Town of Cambridge, issued an approval for the development to go ahead late last year, but then a few months later adopted a policy of protecting large trees in order to maintain the area's green canopy.
Following community protest, the council then told the resident that she could not cut the tree down, which she challenged in the SAT.
The tribunal this week ruled in the landowner's favour.
But it also determined that removal of a single tree on private property may be classed as "development", something planning law expert Alex McGlue said was not previously part of the state's planning rules and that could have ramifications for homeowners.
"Historically, the concept of development was more associated with physical work, such as constructing a building, or using premises for a particular business purpose," he said.
"What the SAT has reasoned is that the works associated with removing this tree would have had a significant visual impact and an impact on the amenity of the surrounds, and therefore constituted development."
Mr McGlue, a partner in the WA legal firm Lavan Planning, Environment and Land Compensation team, said this meant homeowners would need to approach their local government before they removed large trees from their land, or risk prosecution.
"Breaching a planning requirement it is a criminal offence," he said.
He said in the wake of this decision, local governments would need to formally organise their rules for landowners.
"I would recommend that every local government in the state be immediately adopting local planning policies too, because local planning policies can set out exemptions from what requires development approval," he said.
Mr McGlue said councils could, for example, provide automatic exemptions for approval of the removal of trees under a certain height.
The property owner at the centre of the SAT decision, Lisa Zorzi, said she bought the land to build a home for her family.
She wanted to remove the tree because she felt it was not able to be maintained, and was worried it posed safety risks to her and her neighbours.
She also had trouble getting insurance given the breadth of the canopy.
Ms Zorzi is worried the legal implications that may flow from her taking her case to the SAT, despite it ruling in her favour, could impact other property owners negatively.
"They're going to have to put up with that for the rest of their life, or the time they own that property, which is really scary for someone who's invested a lot of their livelihood into [a] property in WA."
The WA Local Government Association welcomed the SAT's decision, saying it supported its view that the removal of a single tree should require approval.
"WALGA has for many years been calling for stronger protections of trees on private land," WALGA president Karen Chappel said in a statement.
WALGA's policy, so far adopted by six councils across Perth including the Town of Cambridge, sets out rules for which trees should be preserved.
These include:
The West Australian Tree Canopy Advocates (WATCA) group also lauded the SAT's ruling as a "landmark" precedent.
WATCA chair Sarah Allchurch said it gave local planning policies "real teeth".
"It means no one can bust out the chainsaws and clear-fell trees over 8 metres, because the trees are deemed to be a community asset, even on private land," Ms Allchurch said.