1 consideration of submissions received following ... · 1 consideration of submissions received...

Council Meeting Agenda 25/07/16

1 Consideration of submissions received following exhibition of the proposed Tree Protection Local Law 2016

Abstract Council’s Tree Protection Local Law (the current Local Law) operates within the City of Boroondara and commenced operation on 26 November 2006. The current Local Law is due to expire on 25 November 2016. After this date, the current Local Law will cease to apply. If Council wishes to continue with a Local Law relating to tree protection after this date, it will need to resolve to make a new Local Law. On 10 December 2015, Council resolved to commence the statutory process to make a new Tree Protection Local Law (the proposed Local Law) to replace the current Local Law. The proposed Local Law was developed as a result of officers’ review of the current Local Law. That review commenced mid-2015. Compared to the current Local Law, the proposed Local Law includes a range of changes which include additional offences, improvement of enforcement capabilities, updating of definitions to accord with current Australian Standards and other clarifications. It is officers’ view that these changes in the proposed Local Law will improve on and strengthen tree protection in the municipality. The proposed Local Law completed public exhibition in mid-February 2016, with 65 submissions being received. Officers have now reviewed all submissions. Details of the submissions and officers’ responses to them are set out in this report and in the relevant attachments. The purpose of this item is for Council to consider submissions received and to allow the community to speak to their submission if they wish. As a result of the written submissions received, officers do not consider that significant changes to the proposed Local Law are warranted. However, at this stage, officers propose making minor changes to the proposed Local Law as a response to some matters raised in written submissions. These potential changes are set out in this report and it is intended that they will be incorporated into a final form of the proposed Local Law. Following consideration of submissions, the next step is for Council to consider whether or not to make the proposed Local Law. It is intended that this occur at a Council Meeting to be held on 22 August 2016.

Officers' recommendation That Council resolve to receive and note the submissions received to the proposed Tree Protection Local Law 2016. Document information

City of Boroondara Tree Protection Local Law of 104


Responsible director: John Luppino

City Planning ___________________________________________________________________ 1. Purpose

The purpose of this report is to inform Council of the outcome of the exhibition of the proposed Local Law and for Council to consider submissions received following the formal exhibition of the proposed Local Law, pursuant to the provisions of the Local Government Act 1989 (the Act). In summary, 65 submissions were received to the proposed Local Law. A summary of the submissions received is contained at Attachment 1. In order to respond to some matters raised in submissions, officers are proposing minor changes to the proposed Local Law. These potential changes have been reviewed by Council’s solicitors. It is the officers’ view that the changes would not require the proposed Local Law to be re-exhibited.

2. Policy implications and relevance to council plan

The review of the Local Law is consistent with the strategies within the Council Plan 2013 - 2017 to "promote sustainability through sound environmental practice”, “engage with our community in striving for protection and enhancement of the natural and bu

3. Background

At the Council meeting on 10 December 2015, Council resolved to: Commence the statutory process to make a new Tree Protection Local Law in accordance with Part 5 of the Local Government Act 1989. Endorse the draft proposed Tree Protection Local Law for the purposes of community consultation under Part 5 of the Local Government Act 1989. (A copy of the proposed Local Law, as exhibited, is contained at Attachment 2).

Recap of the rationale behind the proposed Local Law: The current Local Law is due to expire on 25 November 2016. If Council wishes to continue with a Tree Protection Local Law after this date, it will need to adopt a new Local Law prior to this date. The current Local Law cannot be extended beyond its expiry on 25 November 2016. If Council does not make a new Local Law before the expiry of the current Local Law, no Tree Protection Local Law will apply in the City of Boroondara. It is open to Council to resolve to adopt a different Local Law to that exhibited, without re-exhibition, if the amendments do not significantly change the form of the Local Law or extend its control.



Having reviewed the current Local Law in 2015, officers drafted the proposed Local Law. It is officers’ view that the proposed Local Law is an improvement to the current Local Law and aligns more closely with community expectations and standard arboricultural industry best practice. As set out in the report presented to Council on 10 December 2015, officers do not consider that significant changes to the overall operation or structure of the current Local Law are justified. It is the officers’ view that, overall, the current Local Law operates well and is effective at preventing indiscriminate tree removal across the municipality. This is discussed in further detail later in this report. Continuing a Local Law for tree protection will also be consistent with community expectations, which in officers’ experience are generally in support of protecting the municipality’s treed character. The key changes included in the proposed Local Law (when compared with the current Local Law) which will improve its operation and strengthen it are as follows:

Making it an offence to undertake works within 2 metres of a canopy tree

without a permit, where in the current Local Law this is not the case. Updating the reference to ‘Critical Root Zone’ in the current Local Law to

‘Tree Protection Zone’ in the proposed Local Law, consistent with current Australian Standards. This will afford greater protection to significant trees.

Making it an offence to remove a tree required to be planted as a condition of a permit. This will strengthen the regime for replacement planting.

Inclusion of an additional measurement for canopy trees at their base, which will assist Council in taking enforcement action.

Including a specific provision to enable Council to request additional information from an applicant.

Improving and clarifying definitions to reflect current Australian Standards, improve ease of taking enforcement action and better reflect activities that have the potential to impact upon trees.

Clarifying that it is an offence to damage or destroy a tree on a neighbouring property and that the responsibility lies with the person undertaking the works.

Formalising an appeal process.

Public notice/exhibition: Public notice of the proposed Local Law formally commenced on 17 December 2015 and concluded on Friday 12 February 2016. This time period provided the community and other interested parties 56 clear calendar days with which to make a submission to Council. This exceeds the minimum 28 days set by the Act.



Public notice was given in accordance with the Act, by publishing a notice in the Government Gazette on 17 December 2015, inviting submissions on the proposed Local Law. Additional public notice was given in the following manner:

Notice in the Progress Leader on 15 December 2015, which replicated the

notice published in the Government Gazette. Dedicated webpage on Council’s website, detailing the proposed Local

Law and making available all exhibited documents for download. Two information stories in the ‘Boroondara Noticeboard’ on Page 13 of the

Progress Leader published on 2 February 2016 and 9 February 2016. Ongoing information stories on the ‘Your Say’ (the online ‘Boroondara

Bulletin’) section of Council’s website; Information story published in the January 2016 edition of the ‘Boroondara

Bulletin’, which is provided to all households in the municipality. A3 sized posters in Council buildings and libraries. ‘On-hold’ phone messages on Council’s phone system. Direct email notification to residents on Council’s ‘Boroondara Community

Voice Panel’.

In accordance with the Act, hard copies of the proposed Local Law, Community Impact Statement and supporting documentation (which included a copy of the public notice, current Local Law, ‘tracked changes’ version showing the differences between the current and proposed Local Law and the officers report considered at the Council Meeting on 10 December 2015) were made available at Council’s customer service centres. The same material was also available electronically for download on Council’s website. Numbers of submissions received: A total of 65 written submissions were received. Three additional pieces of correspondence were received, however have not been considered as submissions because two were anonymous and one was an enquiry rather than a submission. The two anonymous submissions do not raise matters outside those raised in other submissions. A table summarising the issues raised in each written submission is included at Attachment 1. For ease of reading, the table at Attachment 1 breaks the matters into:

A summary of the general issues raised in the submission. These are

matters which are relevant to the proposed Local Law and tree protection in the municipality, but which are not directly relevant to the wording, form and structure of the proposed Local Law itself; and

A summary of the more specific matters and suggestions regarding the proposed Local Law.

Overall, 25 submissions specifically articulated support for the proposed Local Law, though officers note that many of these submissions still raised general issues regarding trees and made specific suggestions.



Nine submissions stated that they were against the Local Law, eight of which considered that the proposed Local Law was excessive or too restrictive and one which considered that the proposed Local Law would be insufficient to have any impact on protecting trees. The remaining 31 submissions did not specifically articulate support or opposition to the proposed Local Law but made general and/or specific comments over a range of issues. Summary of matters raised in submissions: In summary, the common matters raised in the submissions are as follows: New development (including new single dwellings) are causing tree and

vegetation removal and are reducing tree planting opportunities (mentioned in 22 submissions).

The penalties under the Local Law are insufficient (raised specifically by 20 submissions).

The Local Law is insufficient to prevent the loss of canopy tree cover throughout the municipality.

Trees have environmental benefits in the urban landscape, such as reducing the urban heat island effect, reducing the effects of global warming, providing habitat, reducing temperatures in and around buildings, absorbing pollution, reducing stormwater runoff and managing erosion. Trees should therefore be protected.

Trees have aesthetic benefits (such as neighbourhood character and streetscape benefits) and therefore should be protected.

Trees have health benefits (such as physical and mental health benefits) and therefore should be protected.

Council has not undertaken an assessment of whether the current Local Law has been effective and insufficient information has been publically provided to enable submitters to understand the current Local Law’s operation (raised in five submissions).

Tree protection should be prioritised when new development is constructed and when planning applications are assessed.

Residents who have canopy trees on their properties should receive a rebate (through reduced rates or some other means) to encourage tree retention.

Retaining and protecting trees should not come at the cost of safety and property.

The Local Law is inconsistent with private property rights and is an unfair burden on landowners who wish to develop their properties.

The Local Law should recognise that trees in the urban environment can present a nuisance, a safety hazard and cause property damage.

Council should encourage people to maintain and retain trees on their property, rather than seek to control tree removal and punish people.



4. Outline of key issues/options

Officers have considered all submissions and have responded to each issue raised. The table at Attachment 3 provides officers’ response to the specific matters and specific suggestions made in submissions relating directly to the Local Law. The table at Attachment 4 provides the officers’ responses to the general matters raised in submissions. In considering the submissions, officers have noted that many of the general matters raised fall outside the scope of this proposed Local Law, or are matters which cannot be dealt with through any Local Law. Officers also note that many general matters raised (such as the neighbourhood character and streetscape impacts of large new single dwellings) are being investigated separately by Council. The following section of this report discusses officers’ responses to the most common matters raised in submissions. Officers consider that detailed discussion of these matters is warranted given these matters have been of the most interest to the community in submissions as well as correspondence received over the life of the operation of the current Local Law. The operation of the current Local Law: Officers are of the view that the current Local law is achieving its aims. It is considered that the Local Law has met its objectives because it provides a framework for regulating tree removal and therefore contributes to the maintenance of the municipality’s treed character. Officers consider that the current Local Law has met expectations including discouraging indiscriminate tree removal and requiring replanting where possible. A Local Law is still considered the most appropriate legislative approach, given the uncertainty surrounding the introduction of additional planning controls and the more complex, lengthy and costly application process associated with such controls. The use of planning controls to regulate vegetation is discussed in further detail later in this report. The current Local Law is considered to have been effective for the following three key reasons: It has established a regulatory framework and a process for assessing and

determining applications. This has resulted consistent and equitable decisions, made in a timely manner. Without this regulatory framework, there would be no ability to control vegetation removal from private property in the municipality, and a significantly greater number of trees would have been removed from the municipality over the last 10 years.

Permits issued under the current Local Law allow for a regime of replacement tree planting to be applied and enforced. This would not be possible without the regulatory framework established by the current Local Law.



Some submissions have sought to criticise the process used to develop

the proposed Local Law or consider insufficient analysis of the current Local Law’s operation has been undertaken. However, the fact is that the application of the current Local Law ensures trees which are in good condition, suitable to their location and not causing unreasonable property damage or unreasonable nuisance are retained, subject to compliance with the criteria in the current Local Law and Council’s adopted assessment guidelines. Based on Council records and the information set out in in Table 1 below, a minimum of 10 per cent of individual trees per year have been refused since the beginning of 2007. Without the current Local Law, these trees would likely have been removed.

It is also instructive to consider the reasons permits are granted to remove trees, because this provides a useful insight into the impact of new development on tree removal in the municipality. When assessing an application to remove a tree under the current Local Law, officers give consideration to: The criteria set out in Clause 12(2) of the current Local Law; and The matters set out in the current guidelines. The current guidelines were adopted by Council in 2008. Their purpose is to guide officers’ discretion to ensure decisions are sensible, equitable and consistent. Assessment of trees under the current guidelines is currently split into three ‘assessment streams’ depending on the circumstances of each application. Essentially the approach is first and foremost whether it is possible to retain the tree in question. The three assessment streams are as follows: Stream A - applies only to applications to prune or remove significant trees. Stream B - applies if the tree ‘is a canopy tree located on a residential

allotment, and is in good condition, is suitable to the site, and is not causing unreasonable damage to property or persons’. Stream B contains the guidance in circumstances where a new dwelling, an extension to a dwelling or multi-dwelling development is proposed.

Stream C - applies in circumstances where a tree is not in good condition, or is not suitable to the site, or is causing unreasonable damage to persons or property. Stream C also applies to applications for the removal of trees on non-residential land.

Under Stream B, if an applicant proposes a new single dwelling or an extension, a permit will be granted if: The applicant can demonstrate to Council’s satisfaction that the proposed

works cannot be redesigned and that appropriate arboricultural techniques as detailed in the submission of an arborist report cannot be employed to retain the tree.



A permit will be refused if: The applicant cannot satisfy this requirement; or A tennis court, patio, deck, garage carport and/or swimming pool cannot

incorporate retention of the tree; or Multi-dwelling development is proposed. The following table summarises the reasons for decisions made under the current Local Law over the last four years: Table 1: Data relating to the removal of canopy trees in the last four years

2012 2013 2014 2015Total number of applications

1177 1303 1333 1139

Total number of applications assessed under Stream B or Stream C

1101 1273 1230 1097

Total applications assessed under Stream A, or applications withdrawn, or no permit required, or where a planning permit was required

76 30 103 42

Applications relating to proposed residential building works (Applications assessed under ‘Stream B’)

Total number of applications determined, due to proposed residential building works

55 42 54 56

Applications approved due to proposed residential building works

17 24 27 43

Applications refused due to proposed residential building works

18 14 15 8

Applications partly refused* due to proposed residential building works

20 4 12 4

Applications relating to tree condition (Applications assessed under ‘Stream C’)Total number of applications determined, due to tree condition (health, structure etc)

1046 1231 1176 1041

Applications approved due to tree condition

823 993 954 851

Applications refused due to tree condition

118 131 144 117

Applications partly refused* due to tree condition

63 62 76 42

* Note: For example, an application was made for more than one tree, and one or more trees (but not all trees) were refused for removal



Table 1 indicates that only four to five per cent of applications under the current Local Law are ultimately determined wholly on the basis that building works are proposed. Officers estimate that approximately half of these applications would relate to proposals to construct or extend single dwellings. While this figure seems low, in many cases, when an applicant applies to remove a tree to facilitate building works, a permit is actually granted because the tree is assessed as being in poor condition rather than because of the proposed building works. Consistently between 2012 and 2015, between 75 and 78 per cent of applications listed in Table 1 were approved because the poor condition of the tree meant that it met the criteria for removal under the current Local Law. Therefore these applications would have been approved regardless of the reason put forward by the applicant when making their application, including if the application was made to facilitate building works. Table 1 also shows that applications are being refused (or partially refused) when the reason for removal relates to proposed building works and tree condition. This indicates that the current Local Law is working by scrutinising and refusing applications. Between 2012 and 2015, between 11 and 13 per cent of applications were refused. This figure increases to between 16 and 20 per cent when partially refused applications are included. Overall, officers are of the view that, in general, the current Local Law is working effectively by ensuring that appropriate trees are retained, as the above data shows. It should be noted that the majority of submissions are either in favour of the proposed Local Law and/or raise concerns about tree loss in the municipality. It is therefore considered appropriate to continue with a Tree Protection Local Law in the City of Boroondara. Submissions regarding the basis for reviewing the current Local Law and drafting the proposed Local Law: Five submitters have questioned the basis of the proposed Local Law and consider that there has been insufficient review of how the current Local Law has operated since its inception in 2006. These submitters believe that the rigour of officers’ review of the current Local Law was inadequate and therefore consider that the proposed Local Law cannot meet its aims. Some submitters referred to the absence of a study of canopy tree cover in Boroondara and criticised officers for not employing the use of external experts. In response to these submissions, officers note that the review of the current Local Law was undertaken over several months with input from Council’s own experts (being Council’s arborists and planners as well as advice from Council’s solicitors). This review, which gave rise to the recommended amendments to the current Local Law, was informed by 10 years of operation of the Local Law and the experiences and feedback, including community feedback over this time, together with matters raised during the public exhibition process. Officers also note that the proposed Local Law has been benchmarked against similar Local Laws which exist in six other metropolitan Councils (being Yarra, Stonnington, Port Phillip, Frankston, Kingston and Bayside.



The attachments to the officer report presented to the Council Meeting on 10 December 2015 set out the detailed justification for each amendment when compared to the current Local Law. Council’s arborists were involved in these changes and support them. Officers therefore do not consider that input from external experts is necessary. Furthermore, officers do not consider that the review of the Local Law lacked rigour. Officers do not consider the absence of a study of canopy tree cover in Boroondara means that the Local Law cannot be effectively reviewed or that the proposed Local Law should not be introduced. Officers are currently investigating methods to undertake studies of changes in canopy tree cover across Boroondara and further information will be provided to Council once these investigations are completed. However this does not and should not prevent Council from making a new Local Law. Loss of canopy tree cover and reduced opportunity to plant trees due to new development: Many submissions raise general issues regarding the loss of tree canopy over time and the reduced opportunity to plant trees, due to the scale of new development occurring in the municipality. While officers acknowledge that some new development (particularly new single dwellings) have limited tree planting opportunities, neither the current nor proposed Local Law is in itself able to regulate the scale, design or aesthetics of development. New developments are regulated through different pieces of legislation, being the Planning and Environment Act 1987, the Boroondara Planning Scheme (the planning scheme), the Building Act 1993 and the Building Regulations 2006 (the building regulations). The two key considerations constraining landscaping opportunity on a residential property are site coverage (i.e. the percentage of the property covered by a building) and hard surface coverage (i.e. the percentage of the property covered by a building and impervious surfaces such as driveways and paving). The Boroondara Planning Scheme and the building regulations set maximum site coverage and hard surface coverage. New single dwellings can be constructed to the maximum percentages set out in the building regulations without Council approval. While Council has more control over these matters through the planning system, it is often difficult to oppose planning applications if they comply with the relevant standards in the planning scheme.1 Consequently, instances where there has been a reduction of landscaping opportunity on new development sites is not due to a failing in the operation of the current Local Law itself, but rather an outcome of the operation of controls set by the Victorian Government.

1 Often referred to as ‘ResCode’



The Local Government Act 1989 expressly prohibits a Local Law from regulating a matter which is contained in a planning scheme. This means, for example, that a Local Law could not regulate maximum site coverage or hard surface coverage. The Act also states that a Local Law is inoperative if it is inconsistent with other legislation or regulations. This includes the building regulations. Similarly, this means that a Local Law could not regulate matters that are covered by the building regulations. However, there is the opportunity for assessment guidelines to provide guidance in determining whether excessive site coverage or hard surface coverage would have detrimental impacts on existing trees as part of the assessment of an application. Council and the community are aware that officers are currently investigating ways to address issues related to the impacts of new large single dwellings on the character of the municipality. This is a separate process to Council’s consideration of whether it should resolve to make a Tree Protection Local Law. In summary, officers consider that the current Local Law plays a key role in preventing indiscriminate tree removal across the municipality and ensuring the retention of trees where appropriate. This is consistent with the intended operation of both the current and proposed Local Law. The existence of the Local Law is also an important tool to encourage the retention of trees which might otherwise be proposed for removal as part of a planning application. The environmental and health benefits of trees in the urban landscape: A number of submissions state that the Local Law does not recognise the environmental and health benefits of trees. Many submissions have referred to trees’ benefits in reducing the effects of global warming, reducing the effects of the urban heat island effect and providing habitat. Officers acknowledge that trees in the urban landscape have a series of environmental and health benefits. Indeed, these benefits are well-documented and officers agree with the submissions in this regard. Officers are therefore recommending that the Local Law be amended so that it acknowledges these benefits. Officers consider, however, that an application under the proposed Local Law must still consider the individual circumstances of each tree and property. For example, a large tree would reduce temperatures surrounding it and would provide habitat in its local environment. However, if that tree was causing unreasonable property damage or presenting an unreasonable safety risk then the proposed Local Law would support its removal. Officers would not recommend an approach which expressly sought to preference a tree’s environmental benefits above matters relating to human health and safety. Making decisions under the current Local Law requires the relevant considerations to be weighed up, having regard to the criteria and the guidelines. This occurs having regard to the facts and circumstances of each application. The proposed Local Law does not propose to change this approach. Indeed, such an approach is consistent with the key principles of decision-making under administrative law.



Some submitters have suggested that Council should place less weight on tree condition when assessing applications and place greater weight on the aesthetic and environmental considerations. Again, officers consider that health and safety matters must take priority when a tree’s condition is assessed. Seeking to retain trees which present unreasonable risks to human health and/or safety or which are causing unreasonable damage or nuisance would potentially result in legal liability issues for Council in the event the tree failed and caused damage or loss. For these reasons, officers consider that it is very important that discretion is not limited in the way suggested by those submissions. Insufficient penalties: Nineteen submissions specifically stated that they considered the penalties under the Local Law to be insufficient. Officers note that the Local Government Act 1989 specifies that the maximum penalty a Local Law can fix is 20 penalty units. The Sentencing Act 1991 provides that a ‘penalty unit’ under a Local Law is $100.00. As these are both Victorian Government legislation, Council has no ability to increase the penalties for offences committed under the either the current or the proposed Local Law. However, Council continues to lobby the Victorian Government to amend the legislation to enable increased penalties. Relevance of the Local Law to private property rights: Eight submissions oppose the Local Law on the basis that it is excessive/too restrictive and is inconsistent with private property rights. Officers do not consider that the Local Law is inconsistent with private property rights or is excessive in nature. The matters sought to be regulated by the proposed Local Law fall within the ambit of matters that a Local Law can control. Council’s solicitors have previously confirmed that to be the case. Under Australia’s property law system, a landowner’s provide property rights are not unlimited. Almost always, private property rights are tempered by laws and regulations. Common examples include planning schemes and building regulations, which prohibit certain developments and land uses or require approval be sought. Local Laws are similar, in that they may control activities on private property (such as prohibiting incinerators or unsightly land) or establishing a framework for assessing applications for permits. Officers consider that the proposed Local Law is no different to other laws and regulations set out above. The current Local Law (which is similar to the proposed Local Law) has been operating since 2006. It has been officers’ experience that criticism of the current Local Law based on private property rights has been limited. It should be noted that the current Local Law has operated since 2006 and has not been the subject of Supreme Court challenge on the basis that it was inconsistent with the planning scheme or the building regulations.



Furthermore, officers note: Council’s solicitors have raised no concerns with the proposed Local Law

from a private property rights perspective. The Local Law has been assessed against the Victorian Charter for

Human Rights and Responsibilities and no issues have been identified. The proposed Local Law includes an ‘application for review’ (appeal)

provision, enabling a merits review of a refusal of an application by a person not involved in the original decision-making process.

The proposed Local Law and proposed guidelines seek to establish set criteria to ensure fair and consistent decision-making.

A person may seek a judicial review of a Local Law in the Supreme Court. For these reasons officers consider that the proposed Local Law will not result in any unreasonable interference with private property rights. Use of planning controls instead of a Local Law: Three submissions have suggested that Council consider using planning controls in the planning scheme to protect vegetation. One of the submissions notes that this would provide Council with the ability to take more effective enforcement action. The second submission considers that including significant and substantially sized trees in a vegetation control overlay in the planning scheme would reflect ‘best practice’ and afford additional protection to such trees. That submission referred to planning controls in place in the City of Banyule, which is located to the north of the City of Boroondara and includes suburbs such as Heidelberg, Eaglemont and Rosanna. The third submission suggested that trees of a certain age should be covered by a Heritage Overlay. In deciding whether to make a new Local Law, Council should consider whether there is an alternative legislative tool such as planning controls are available to control an issue a proposed Local Law seeks to control. Officers consider that a Local Law is currently the most appropriate tool for controlling tree removal for the majority of the municipality. Introducing planning controls over vegetation in the municipality would require Council to undertake the process of a planning scheme amendment. This process would require obtaining authorisation from the Minister for Planning and would likely require the assessment of the proposed amendment by an independent panel if submissions are received. The Minister for Planning would be responsible for making the final decision. In addition, prior to undertaking a planning scheme amendment, Council would be required to undertake substantial research to justify inclusion of vegetation controls in the planning scheme. This would require external consultants to prepare a study or survey of vegetation across the municipality and develop proposed planning controls. This would likely cost several hundred thousand dollars and take at least 12 months to complete. The planning scheme amendment process would also take up to 18 months to complete. Therefore, seeking to apply planning controls would take somewhere between 20 and 30 months, with no guarantee that the outcome sought by Council would be approved by the Minister for Planning.



Officers consider that it would be highly unlikely that an independent panel or the Minister for Planning would support applying vegetation controls through the planning scheme for large parts of the municipality. This is because it would be difficult to establish that vegetation in the municipality would warrant protection by the planning scheme. The overlays that Council would seek to apply are normally applied in environmental settings (such as river corridors and heavily treed suburbs/areas), not large urban areas. Further, officers consider that even if vegetation controls were applied through the planning scheme, Council would receive applications for Planning Permits also proposing developments such as multi-dwellings or apartment buildings. This would result in circumstances where Council and (VCAT on review) would be required to consider broader policy objectives (such as urban consolidation) when making a decision regarding the vegetation. This would potentially result in circumstances where VCAT considered that the benefits of a proposed development outweighed the benefits of retaining the vegetation. Indeed, it has been officers’ experience that VCAT have done so in circumstances where tree protection as part of a planning application was a relevant matter. Officers consider this to be a significant disadvantage of planning controls, when compared to the use of the proposed Local Law. It is also considered likely that a significant percentage of refusals of ‘stand alone’ tree removal applications would be appealed and therefore determined by VCAT. It should be noted that resources required to administer planning controls would be significantly greater and require many more officers to be employed to process application. It is the officers’ view that the resource implications for Council would be significant, for little benefit. Officers consider that application of planning controls will not address insufficient penalties for illegal tree removals. In fact, the financial penalty for removing a tree that is covered by a planning control is less than the financial penalty under a Local Law ($808 for an individual and $1616 for a business, compared with $2000 under the proposed Local Law). While maximum financial penalties resulting from a prosecution for a breach of a planning control are greater than those under a Local Law, prosecutions use significant resources and do not necessarily result in a significantly larger financial penalty. Officers’ experience to date is that prosecution under the planning scheme for vegetation-related offences generally achieves no greater financial penalty than prosecution under the Local Law. Overall, officers consider that the proposed Local Law is the most effective method for controlling tree removal. Potential amendments to the exhibited Local Law resulting from officers’ responses to submissions:



As a result of submissions, officers note that the following amendments to the proposed Local Law could be made to address some matters raised in submissions: Table 2: Potential changes to the proposed Local Law in response to some matters raised in submissions:

Potential Change Response

Amend the wording of Clause 8(1) to clarify that the Local Law applies to all trees on private land, not only to trees which extend across two properties. It is proposed that Clause 8(1) be amended to read as follows:

(1) This clause applies to:

(a) any Significant Tree; and (b) any Canopy Tree

where the tree, as described above, is situated on any Private Land, whether or not the tree extends beyond the boundary of that Private Land. For the avoidance of doubt, this clause does not apply to such part of a tree that is above or below land which is not Private Land.

Several submissions considered that the currently proposed wording of Clause 8(1) was unclear and should be clarified. Officers have reviewed Clause 8(1) because of this submission and agree that the proposed wording could be improved to provide further clarity. This amendment would not require the proposed Local Law to be re-exhibited because the amendment is a clarification.

Amend the wording of Clause 8(5) to clarify that enforcement action is not taken against property owners in circumstances where a tree extends onto an adjoining property and is interfered with on the adjoining property. It is proposed that Clause 8(5) be amended to read as follows: (5) If a tree, or part of a tree, is interfered with in any of the circumstances specified in clause 8(3), the owner of any Private Land on which the relevant part of the tree is on, over or under is guilty of an offence, whether or not the person who actually interfered with the tree is identified or prosecuted, unless the owner can prove that the interference was undertaken by another party without the owner’s knowledge. For the avoidance of doubt, where a Significant Tree or Canopy Tree extends over multiple parcels of Private Land, the owner of the land on, over or under which the part of the tree which has not been interfered with is located is not guilty of an a offence.

As it is currently drafted, the clause could be read to mean that both property owners of the adjoining parcels of land commit an offence if the tree is wrongfully interfered with, as it attributes liability to the owner of the land rather than the person who committed the action. Also, the words 'on, over or under' mean that in the circumstance of a tree extending over or under a boundary fence, both property owners are technically guilty of an offence where the relevant tree is interfered with.



Potential Change Response

Amend Part 8 (‘The Context of this Local Law’) to acknowledge the environmental benefits of trees, but adding the following sentence after the words ‘Council recognises the contribution that the municipal district’s tree canopy makes to the quality of its suburban environment’: Council also acknowledges that trees in the urban environment have a series of environmental benefits such as reducing the impact of the urban heat island effect, reducing the effects of climate change, reducing temperatures in and around buildings, reducing stormwater runoff, absorbing pollution, providing habitat and promoting biodiversity.

Officers acknowledge that trees in the urban environment have a series of environmental benefits such as reducing the impact of the urban heat island effect, reducing the effects of climate change, reducing temperatures in and around buildings, reducing stormwater runoff, absorbing pollution, providing habitat and promoting biodiversity. These benefits are well-documented. Many submitters have emphasised these benefits. Officers consider that it would be reasonable to amend the Local Law to acknowledge the benefit of trees on the environment.

Council’s solicitors have reviewed the proposed amendments. Council’s solicitors have also suggested that minor formatting amendments be included in the proposed Local Law. These formatting changes will be introduced into the final form of the proposed Local Law which it is intended will be presented to a Council Meeting on 22 August 2016.

5. Consultation/communication

As set out in this report, the proposed Local Law has undergone extensive public exhibition and 65 submissions have been received. It should be noted that benchmarking of the Local Law has also been undertaken with other Councils. Following Council’s consideration of submissions, officers intend to present a final report to a Council Meeting on 22 August 2016. At that Council Meeting, Council will resolve whether or not to make the proposed Local Law, as exhibited or with further amendments. If Council resolves to make a Tree Protection Local Law, the proposed Local Law will commence operation immediately following the expiry of the current Local Law on 25 November 2016.

6. Financial and resource implications

The costs to review the Local Law and make a new Local Law will be met within the current Statutory Planning Department budget and will include the cost of legal advice and the public and gazette notices.



The likely implications of the proposed Local Law on resources have been discussed, where relevant, in the body of this report or in the relevant attachments. Resource implications of the proposed Local Law were also discussed in the officers’ report presented to the Council Meeting on 10 December 2015.

7. Governance issues

The proposed Local Law is not considered to adversely or unreasonably impact upon any of the rights protected under the Victorian Charter of Human Rights and Responsibilities (the Charter). The Community Impact Statement prepared for the proposed Local Law specifically considered the proposed changes in the context of the Charter and the National Competition Principles. All matters raises in submissions have been responded to in the body of this report or in Attachments 3 and 4. The officers responsible for this report have no direct or indirect interests requiring disclosure.

8. Social and environmental issues

The continuation of the Local Law is considered to have a range of social and environmental benefits, as discussed in this report and relevant attachments. These include contributing to aesthetic values, neighbourhood character and the ecology.

Manager: Simon Mitchell, Statutory Planning Report officer: Andrew Kerr, Coordinator Statutory Planning


Attachment 1 - Table summarising matters raised in submissions

Submission number as per Council record

Summary of general issues raised in submission Summary of specific submissions or suggestions regarding Local Law

1. Amy Wills Retaining trees is important to provide for shade and cooling given extent of concrete and apartment buildings.

Strengthen the Local Law to protect trees on neighbouring properties from construction works.

2. Allan Kewming

Supportive of Local Law. The proposed Local Law should increase penalties.

3. Libby Taylor See next column. The proposed Local Law should increase penalties. 4. Elizabeth

Caspar Supports proposed changes to the Local Law. Current Local Law is uncertain and vague (officer

comment: the submission does not detail how so). Community education promoting tree retention is

required. Clarification about how Council assesses

applications is required.

The proposed Local Law should increase penalties.

5. Angela Walker

Retaining trees is important to provide for shade, cooling and wildlife habitat, therefore the Local Law must be extended and strengthened.

New development is larger than older development and leaves insufficient space for canopy trees.

Extend and strengthen protection of canopy trees. Permits should not be granted to remove trees to

allow for larger dwellings to be built. The proposed Local Law should increase penalties.

6. Barry Elliot Private property rights are fundamental to a modern democratic society and the Local Law is inconsistent with that principle.

The Local Law represents excessive bureaucratic interference.

The Local Law should not be introduced.

7. Stuart Kelly See next column. The definition of ‘damage’ is too restricted and should include circumstances where a tree has been pruned such that it becomes unviable.

Council Meeting Agenda 25/07/16______________________________________________________________________________________

______________________________________________________________________________________City of Boroondara Tree Protection Local Law of 104




Clause 8(1) (which sets out that the Local Law applies to canopy trees and significant trees) is not clear and reads as if it only applies where a tree is across two parcels of private land.

The requirement to obtain a permit to prune a significant tree with a branch diameter of 50 mm is too restrictive.

The exemption at 8(4)(a) (which provides an exemption if the action is required by legislation or other statutory authority) is open to abuse and could be used to justify removal of a tree where pruning could have been sufficient.

8. Craig Kilby The Local Law is too restrictive and seeks to protect trees (such as gums) which are a nuisance, a safety risk and cause property damage.

The Local Law is too restrictive because a permit will now be required to maintain trees (such as weight reduction pruning and dead wood removal).

The increase to a tree’s Tree Protection Zone to a maximum of 15 metres will prevent development across approximately one third of a normal suburban allotment.

If the Local Law is too restrictive it is less likely to be observed.


9. Greg Angelo Protection of canopy trees benefits the wider area while disproportionately negatively affecting the owner of the property on which the tree is located, through lower land value and lessened development opportunity.

Introduce a scheme within the Local Law (or generally through some other instrument) to compensate property owners with canopy trees on their property.






The Local Law does not provide a mechanism for compensation for property owners who have canopy trees on their property.

Council should focus on encouraging people to retain trees on their property, rather than punishing property owners who have a canopy tree on their property.

10. Lorraine Bates

The Local Law is long overdue. (Officer comment: overall, this submission is general in nature and does not include specific submissions or suggestions).

11. Jane Russell There should be significant canopy tree cover in the municipality to maintain the urban forest.

Trees are necessary to maintain liveability, reduce the urban heat island effect and contribute to biodiversity.

The Significant Tree Study should be reviewed and expanded.

Canopy trees should be planted when new dwellings are built and consideration should be given to encouraging green walls and green roofs.

More regularly monitor woody weeds and vegetation overhanding footpaths.

12. Sue O’Brien Supportive of proposed Local Law. Modern cities are moving towards maximising

greenery - Council should be doing so too.

Introduce a penalty for removing all vegetation from a development site.

13. Dorothy and Jack Roach

The main issue causing loss of tree canopy is the construction of new large single dwellings, often approved by private building surveyors who do not ensure that building regulations are adhered to.

Building regulations should be upgraded to ensure

(Officer comment: overall, this submission is general in nature and does not include specific submissions or suggestions).






protection of green suburbs. 14. Virginia

Brookes While the Local Law is supported, it does not

address the loss of established gardens which are not being replaced when new buildings are constructed - it is not only canopy trees which contribute to the greenery of the suburbs.

The proposed Local Law should increase penalties. While the Local Law is supported, a permit should

be required to remove shrubs and other planting.

15. N/A - received but determined to be not a submission

Submission is anonymous

16. Francis Foong

See next column. Remove requirement to obtain a permit to prune trees.

17. Boroondara Residents Action Group Incorporated

Supports proposed Local Law. Development of new large single dwellings is

reducing landscaping opportunity for new canopy trees.


18. Mary Drost Supports proposed Local Law. Development of new large single dwellings is

reducing landscaping opportunity for new canopy trees.


19. Phyllis Nelson In preparing the Local Law, Council has not considered the impact of street trees on easements/pipes, the detrimental impact of street tree leaves (due to safety, impact on drainage), the impact of street trees overhanging private property or the issue of trucks striking low branches of street trees.







20. Frank Wolfgang

Supports proposed Local Law. The proposed Local Law should increase penalties.

21. Chris Mortensen

See next column. Require the surrounding community to be notified before making a decision on an application to remove a significant tree.

Require purchasers of properties to be informed that a tree on the property is on the Significant Tree Register.

22. Robert Gayner

See next column. Allow for special consideration and flexibility in instances when a tree is causing a nuisance and where the owner of the tree and the affected neighbours agree the tree should be removed.

23. David Ford See next column. Remove revocation date. The definition of ‘canopy tree’ should be amended to

be a tree ‘with a total circumference of 110cm or more measured at a height 1.5 metres above the ground level’.

The definition of ‘structural root zone’ should be either increased to 3 metres or should be specified relative to the trunk diameter.

The proposed Local Law should increase penalties 24. Jillian and

David Smith Support subclause 12(2)(d) (which is a criterion

requiring consideration of the appropriateness of a tree’s location on the property having regard to the existing buildings and conditions on the property).

Subclause 12(2)(f) (which is a criterion requiring consideration of whether a tree is causing any unreasonable property damage) should be worded to reflect ‘likely’ or ‘possible’ property damage. A suggested rewording is replacement of this subclause with ‘whether the tree is likely to cause any unreasonable property damage’.






25. Peter Sheehan

Current tree protection controls in the municipality are not working and the proposed Local Law will make no difference - a ‘strategic rethink’ is necessary.

Council has not undertaken any assessment against whether the current Local Law has been effective.

The nature of the planning system means that there is usually a way to justify a tree’s removal.

The current Local Law does little to deter developers from removing trees illegally.

Developed a scheme which entitles property owners with canopy trees on their property to receive a rebate on their annual rates charges.


26. Lois Elmer Strong laws are needed to prevent the removal of all vegetation from property.

Trees are important as they provide habitat and remove pollutants from the atmosphere.

There should be a ban on the removal of all vegetation from property.

27. Sara Pearson The Local Law should not prioritise tree protection over people’s safety.

While people can admire the beauty of trees, the reality is that in the urban environment they can threaten human safety and property.


28. Joy Mettam No information has been provided as to how successful the current Local Law has been, whether decisions have been made consistently or whether there are sufficient resources to administer and enforce the Local Law.

There is no information about how many applications for tree removal have been due to proposed developments.

There are concerns around why the numbers of

Amend definition of canopy tree to capture smaller trees.

The Local Law’s objectives should acknowledge the benefit of trees on the environment.







trees per application has increased over time and why the proportion of permits granted has increased over time.

There are no formal mechanisms for monitoring the success of the Local Law or to ensure Council is appropriately resourced to implement it.

The Local Law does not identify any links between climate change and tree plantings.

What constitutes a canopy tree is ‘limited’ and there is no way to ensure that tree cover in the municipality is increased over time.

Builders, developments and architects should be encouraged to develop more innovative housing that better responds to climate change and existing vegetation.

There is no information about how successful conditions on permits requiring replacement tree planting nor how this is enforced.

After a replacement tree has been maintained for two years (and before it is large enough to be a canopy tree), there is nothing to stop that tree being removed.

The definition of a canopy tree does not protect smaller trees which will eventually become canopy trees.

If replacement tree planting occurs using similar trees, in the future there could be a limited number of different canopy trees throughout the municipality.

29. Margaret See next column. Clarify whether Clause 12(2)(i) (which requires






Poiesz consideration of the zoning of the land) will result in different level of protection for trees depending on which residential zone the property is located in.

30. Angus Barker See next column. Clause 8(5) (which sets out who is responsible if a tree is interfered with) is poorly worded and should be amended to ensure that enforcement action is not taken against property owners in circumstances where a tree extends onto an adjoining property and is interfered with on the adjoining property.

31. Margaret Poskitt

The criteria for determining what a ‘significant tree’ is should be expanded so that greater protection is afforded to more trees.

There is a general lack of awareness in the community regarding the benefits of trees.


32. Ian Nayda When a dwelling is demolished, all vegetation is cleared from the property and there is less landscaping opportunity around the new development.

There should be a law restricting the removal of all vegetation from redevelopment sites.

Require replacement tree planting to occur when trees are removed and a new dwelling is constructed.

33. Felicity Beaumont

In favour of protecting the tree canopy of the municipality.

Replacing old and diseased trees should be a priority.


34. Margaret Wilson

The Local Law is reasonable. (Officer comment: overall, this submission is general in nature and does not include specific submissions or suggestions).

35. Elpida Theodorakis

The Local Law is an invasion of private property rights and ratepayers should be given the

(Officer comment: overall, this submission is general in nature and does not include specific submissions or






responsibility to manage trees on their own property. suggestions). 36. David

Crawford The Local Law should be further strengthened and

enforced given the loss of trees due to the construction of new large single dwellings and given trees’ benefits for climate change, pollution and storm water runoff.


37. Noel Disken Trees should be protected because they provide shade, soften the harsh environment, bind the soil, prevent erosion, absorb pollution and provide habitat.

When a dwelling is demolished, all vegetation is cleared from the property and there is less landscaping opportunity around the new development - there should be a balance between people’s rights to build a large house and the importance of trees.

Introduce greater control over tree removal when properties are being cleared for development, such as retaining significant trees and trees around the perimeter of properties,

38. Janet King Support Clauses 12(2)(d), (e) and (g) (which are criterion which require consideration of the appropriateness of a tree’s location, health and safety matters and whether the tree is causing unreasonable nuisance).


39. Heather Williams

Retention of trees should be the starting point when redeveloping a property.

Too many trees are being removed due to the construction of new large single dwellings.


40. Helen Tsoutsouvas

Use increased rate revenue to hire additional resources (suggest 12 additional arborists) to enable inspection of all properties where planning and building permits have been made.

The proposed Local Law should increase penalties. Amend the definition of ‘canopy tree’ to reduce the

circumference from 110 cm to 80 cm.






Trees should also be afforded protection through a schedule to the Heritage Overlay.

Amend the definition of ‘significant tree’ to include all trees which are more than 50 years old.

Amend the definition of ‘structural root zone’ so that it is the same as ‘tree protection zone (i.e. a permit would be required for any works within the TPZ of any canopy tree)

Amend the Local Law to provide Council with the power to revoke planning or building permits for properties where trees have been removed without permits.

Amend the Local Law to provide Council with the power to delay construction or delay processing of planning permit applications for three years for properties where trees have been removed without permits.

Amend Clause 8(1) (which sets out that the Local Law applies to canopy trees and significant trees) so that it is consistent with the above suggestions.

41. Marilyn Poole Council should take a leadership role in encouraging increased tree canopy through the municipality to combat climate change, preserve neighbourhood character and provide psychological and physical benefits to the community.


42. John and Tricia Fleming

Support the ‘Backyard Biodiversity’ and ‘Living for the Future’ which are managed by Council.

Council should encourage adjoining Councils to also preserve our natural heritage.

Strengthen the Local Law by updating the Significant Tree Register and encourage care and maintenance regimes.

The Local Law should assist property owners to care for and maintain trees on their property.






43. Robin Crocker

Strongly support the Local Law but concerned about ongoing loss of canopy cover and the apparent ease with which property owners are able to obtain permission to remove trees.


44. Vikki Oates Concerned about the impact of development on retained trees, which often do not survive into the future.

Removal of native trees is destroying the habitat for native birds and fauna.

People who breach the Local Law should be publically named and shamed.

Ensure that trees are protected by prohibiting soil compaction around the root zone.


45. Canterbury Community Action Group Incorporated

Climate change is a major issue and increasing canopy - cover in Melbourne is an important strategy.

The municipality’s canopy cover should be increased because trees reduce the urban heat island effect and reduce temperatures.


The Significant Tree Study should be promoted. Council should lobby the Victorian Government to

reduce the maximum allowable building envelope for new single dwellings, to increase landscaping opportunity and reduce hard paving.

The conflict between trees and overhead power lines should be minimised by encouraging government, electricity supply authorities and landowners to relocate electrical cables

Require applicants to advise the surrounding neighbours that they intend to lodge an application to remove a tree.

Permits for tree removal under the Local Law should not be granted where there is a planning permit application (or where one is likely), to enable trees to be assessed as part of the planning permit application.

Require that the number of replacement trees to equal or exceed the number of trees permitted to be removed.

Ensure replacement trees are sustainable and are suitable to the property.






underground where technically and commercially viable.

46. Anne Kelly Illegal tree removal is common and landowners are unwilling to nominate trees on their property for the Significant Tree Study because it may devalue the property.

Make Council able to place trees on the Significant Tree Study without the permission of the landowner.

47. Chris Robinson

The construction of many new large single dwellings is reducing landscaping opportunity and is threatening the future of large trees.

Too much emphasis is placed on the landowner’s right to develop their property - more emphasis should be placed on community’s right to the amenity trees on private property provide.

Council appears to do nothing to monitor the health and wellbeing of trees on private property.

When assessing planning permit applications, Council should prioritise the protection of trees.


48. Ingrid Johnson

Saving trees should be a priority given the benefits of trees such as providing habitat, contributing to neighbourhood character and providing physical and mental health benefits.


49. Belinda Thoroughly supports Local Law Replacement trees should not be small and exotic,






Pearson The construction of many new large single dwellings is reducing landscaping opportunity and is threatening the future of large trees.

The overall canopy cover should be protected because trees reduce greenhouse gases, lower temperatures, reduce air-conditioning needs, help to mitigate the effect of storms and prevent soil erosion.

The priority of protecting, maintaining and replacing trees should be increased.

There does not appear to be a regime for requiring replacement tree planting.

but should be indigenous. Introduce greater control over tree removal when

properties are being cleared for development.

50. Lucy Honeycombe

Concerned about ongoing destruction of mature trees and shrubs throughout the municipality.

The construction of many new large single dwellings is reducing landscaping opportunity - the height and size of these new dwellings should be more restricted than it currently is.

Require more replacement tree planting when new large single dwellings are proposed.

51. N/A - determined to be not a submission

52. Susan Reddrop

People with canopy or significant trees on their properties should receive a rebate through their rates to encourage them to retain trees on their property.

The benefits of trees and the existence of the Significant Tree Study should be promoted.







Trees provide habitats. Street tree selection should not be driven by

aesthetics. 53. Peter and

Susanne Prior

Trees benefit the urban environment by cooling temperatures, providing habitat, reducing pollution and providing shade.

Trees are being removed because of new large single dwellings - greater setbacks and lower site coverage should be mandated.

Planning and building applications should be accompanied by a report detailing all trees on the property and should indicate which trees will need to be removed.

Developers should be required to submit ‘tree planting plans’ to replace trees and such plans should be enforced. Such plans should be approved by qualified Council officers and not outsourced.


54. Judy Spence The Local Law does not address the issue of ongoing depletion of tree canopy throughout the municipality.

The Local Law does not deter illegal tree removal. Properties are often ‘moonscaped’ and all

vegetation is removed. The proposed Local Law should increase penalties. The criteria for applications under the Local Law is

vague and will not allow for balanced and transparent decisions, particularly given the criteria state that the matters ‘must be taken into account as

Canopy and significant trees should be given the same level of protection.

Apply the definitions of ‘Tree Protection Zone’ and ‘Structural Root Zone’ to both significant and canopy trees, such that a permit is needed for ‘works’ within the TPZ of a canopy tree.

Correct the definitions of ‘Tree Protection Zone’ and ‘Structural Root Zone’ to accord with Australian Standards.

Apply the Local Law to canopy and significant trees on all land (including street trees), not just private






appropriate’. The Significant Tree Study should be reviewed and

updated as it is 15 years old.

land. Require applications under the Local Law to be

advertised (in the same way planning applications for multi-dwelling develops are) to enable surrounding residents to object.

Require a security bond to be taken for all works around trees.

Change the ‘penalties’ clauses to state a penalty of ‘up to 20 penalty units’ for each offence.

Applications for review (appeals) should be conducted by a qualified panel and attract a cost recovery fee, so that there is minimal cost on Council and a reduction in the number of applications for review.

55. Rosslyn Ives Vegetation should be retained because of lowered temperature (in the context of global warming), aesthetic appeal and habitat.

New development occurring in the municipality is resulting is lessened landscaping opportunity.

Maximum site coverage should be reduced to allow for more areas for vegetation and natural drainage.

There should be more community education programs about the benefits of trees.

Increase proactive enforcement of conditions requiring replacement tree planting.

Reduce the circumference in the definition of a canopy tree.

Add a category so that ‘significant shrubs’ are also protected, not just trees.

Require replacement planting to be undertaken within 3 months of the completion of any new building.

56. Sue King Trees and vegetation should be the priority, not new houses.

New large single dwellings are too big and are

Use the Local Law to introduce wildlife corridors. Permits for construction should not be granted

where a tree is more than 10 metres from the






removing landscaping opportunity. Council should be tracking loss of canopy tree

cover.

existing house or within 4 metres of a boundary fence.

57. Carolyn Ingvarson

The changes to the Local Law ‘do not go far enough’ when compared to the current Local Law.

Trees are continuing to be removed - it appears Council will always side with the architect/builder/owner.

Trees belong to the whole neighbourhood, not just the owner of the property on which it is located.

The community should work together to save more trees from removal.


58. Stephen Wellard

The Local Law is unfair and unnecessary - it is inconsistent with private property law rights and prevents owners from maximising the value of their properties.

Trees are not owned by Council or the community, they are owned by the property on which they are located.

Trees that encroach onto another property cause damage and prevent development of that property - in these circumstances landowners should have the right to remove the tree.

Retention of trees has implications for insurance in the event the tree causes damage or loss.

The Local Law should not be introduced. Include a definition of a canopy tree. The Local Law should require root barriers to be

placed along boundaries so that tree roots do not impact on an adjoining property, as conditions of planning permits or building approvals.

59. Maree Hollis The Local Law is inconsistent with private property rights and the rule of law.

There needs to be recognition that trees cause

The Local Law should not be introduced.






damage to buildings, roads, sewerage, paving and fences.

The Local Law should not authorise Council officers to enter private property.

60. Jana Bennett Significant and canopy trees should be protected - the municipality is known for its beautiful and leafy areas.


61. Olivia Doyle Council needs to ensure that the Local Law makes sense having regard to the danger that trees in urban environments present.


62. Ian Hundley The process to make the Local Law should have been informed by whether the current Local Law has been effective - Council has not undertaken an analysis of how effective the Local Law has been.

There was no involvement with the public in the preparation of the Local Law.

There was no involvement of technical experts in the preparation of the Local Law.

It does not appear that the value of urban canopy tree cover has been considered in the preparation of the Local Law.

It is not clear how many trees have been approved for removal to facilitate new development.

Concerns that the data presented in the Council Report of 10 December 2015 is not accurate in regards to tree removal, tree replanting and enforcement action.

Enforcement of the Local Law has not been

The definition of ‘canopy tree’ should be reduced to 80 cms.







sufficient or effective. New development reduces landscaping opportunity. The resources set aside to administer and enforce

the Local Law should be increased. Council should consider using the Planning and

Environment Act 1987 to protect canopy tree cover because greater penalties under that act are available.

63. Melinda Tam It is difficult to obtain native/indigenous trees which are 1.5 metres high at time of planting.

When requiring replacement trees, Council should either supply the replacement trees or supply information of where a 1.5 metre high indigenous tree can be purchased.


64. Julianne Bell, Protectors of Public Lands Victoria Incorporated

The current Local Law is not working and there has been a significant reduction in canopy tree cover since 2006.

Current planning scheme and building regulation standards relating to maximum excavation, side and rear setbacks, site coverage and hard surface coverage should be tightened.


65. Liz Burton See next column Amend the Local Law (and the adopted assessment guidelines) to remove consideration of health, safety, tree condition, property damage and zoning, and replace with condition of urban heat island effect, pollution reduction and increased storm water runoff.

Set a target for a maximum rate of canopy cover






loss across the municipality. Cease relying on replacement tree planting as

justification for tree removal. Introduce accountability for and monitoring of

replacement planting. The protection of tree canopy be identified as a

major objective in the proposed Local Law. The new criteria at Clauses 12(2)(c), 12(2)(d) and

12(2)(i) (which are criteria requiring consideration of the tree’s condition, the appropriateness of the tree’s location and the nature of the land’s zoning) will make it easier for permits to be granted to allow for trees to be removed.

The introduction of the word ‘unreasonable in the criteria at Clauses 12(2)(f) and 12(2)(g) (which are criteria requiring consideration of whether the tree is causing unreasonable damage or nuisance) does not promote tree retention because what constitutes what is ‘unreasonable’ depends on the facts and circumstances of each case and is too subjective.

Proposed Clause 18 (which sets out an applicant’s review/appeal rights) should not be included as it results in inefficiency and additional expense and assumes that the original decision was inaccurate. In the event Clause 18 is supported, the timeframe for lodging an appeal should be reduced to 14 days.

All significant trees should be included within a Vegetation Protection Overlay so that they are afforded additional protection by the planning






scheme. Council should undertake benchmarking against Banyule City Council.

66. N/A - received but determined to be not a submission

Submission is anonymous N/A

67. Ellie Bastow New larger single dwellings are reducing landscaping opportunity.

Trees should be encouraged as they provide biodiversity, habitat, lower temperatures and reduced pollution.

The current Local Law is not enforced enough. Replacement planting should be better enforced.

The Local Law should also cover shrubs. The proposed Local Law should increase penalties.

68. Abdy Sadri The Local Law is a good start and reasonable under the current circumstances.




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CITY OF BOROONDARA

TREE PROTECTION LOCAL LAW

Date Resolved By Council

Date Amended By Council

Commencement Date:

Revocation Date:

Responsible Directorate: City Planning



CITY OF BOROONDARA TREE PROTECTION LOCAL LAW

1[6596534: 15865974_1]

TABLE OF CONTENTS

PART A - INTRODUCTION ..................................................................................... 2

1 Title........................................................................................................................ 2

2 Purpose of this Local Law ................................................................................... 2

3 Authorising Provision .......................................................................................... 2

4 Commencement Date ........................................................................................... 2

5 Sunset (Revocation) of this Local Law ............................................................... 2

6 Application of this Local Law ............................................................................. 2

7 Definitions in this Local Law .............................................................................. 2

PART B – THE CONTEXT OF THIS LOCAL LAW ............................................. 4

PART C – TREE PROTECTION .............................................................................. 4

8 Protection of Trees ............................................................................................... 4

9 Power of Authorised Officer to Direct – Notice to Comply ............................. 5

10 Time to Comply .................................................................................................... 6

11 Permit .................................................................................................................... 6

PART D - ADMINISTRATION ................................................................................. 7

12 Issue of Permits .................................................................................................... 7

13 Payment of a Security Bond ................................................................................ 7

14 Cancellation of a Permit ...................................................................................... 7

15 Inspections ............................................................................................................ 8

16 Infringment Notices ............................................................................................. 8

17 Offences

18 Applications for Review




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TREE PROTECTION LOCAL LAW

PART A - INTRODUCTION

1 Title

This local law may be cited as the Tree Protection Local Law

2 Purpose of this Local Law

The objectives of this Local Law are to:

(a) Ensure that the established treed character of the MunicipalDistrict is maintained; and

(b) prohibit, regulate and control any activities which may endanger significant trees and canopy trees within the MunicipalDistrict.

3 Authorising Provision

This Local Law is authorised by section 111(1) of the Local Government Act 1989.

4 Commencement Date

This Local Law begins on.

5 Sunset (Revocation) of this Local Law

This Local Law ends on unless sooner revoked.

6 Application of this Local Law

This Local Law applies at all times throughout the Municipal District.

7 Definitions in this Local Law

Some of the terms used in this Local Law are defined.

They are identified by bold italics and have the following meanings:

“Act” means the Local Government Act 1989, or any later equivalent enactment.

“Authorised Officer” means a person appointed by Council under section 224 of the Act.

“Canopy Tree” means any tree:

a) with a total trunk circumference of 110cm or more measured at a point 1.5 metres along the trunk’s length from the closest point above ground level; or




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b) if multi-stemmed, with a total trunk circumference of all its trunks of 110cm or more measured at a point 1.5 metres along the trunks’ lengths from the closest point above ground level; or

c) with a trunk circumference of 150cm or more measured at ground level. (See Schedule 1, diagrams 1 and 2)

“Council” means the Boroondara City Council.

“Damage” means to interfere with or prune a tree such that the tree is no longer viable in terms of health, structure or stability.

“Land” includes-

(a) buildings and other structures permanently or temporarily fixed to land; and

(b) land covered with water; and

(c) the airspace above and the earth below the land.

“Municipal District” means the area from time to time comprising the Municipal District of the Council

“Notice to Comply” means a Notice in writing given by an Authorised Officer or the Council under this Local Law directing the person to whom it is addressed to take some action to comply with the Local Law

“Offence” means an offence against or breach of a provision of this Local Law or a breach of a notice or direction issued under it.

“Penalty” means the fine prescribed under this Local Law for an Offence.

"Permit" means a permit issued under this Local Law.

“Private land” means all land other than public land;

“Prune” means to remove any branches of a tree which are greater than 50 mm in diameter at the point of contact with the larger branches or the trunk.

“Public land” means all land owned, leased, managed or occupied by a public body, including Council.

“Significant Tree” means a tree listed in Council’s Significant Tree Study.

“Significant Tree Study” means the study prepared by John Patrick and Associates in May 2001 of trees and vegetation within the Municipal District that are considered to be of environmental, historic, horticultural, bio-diversity or other value and includes any subsequent trees added to the Significant Tree Study by way of Schedule to the Significant Tree Study.




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“Structural root zone” means the area surrounding a canopy tree’s trunk being a circular area below the tree extending at equal distances from the tree base in all directions, the radius of which is 2 metres. (See Schedule 1, diagram 4)

“Tree protection zone” means the area surrounding a significant tree’s trunk, being a circular area below the tree extending at equal distances from the tree base in all directions, the radius of which is 12 times the trunk diameter measured at 1.5 metres above ground level, to a maximum of 15 metres. (See Schedule 1, diagram 3)

“Works” includes building, trenching, digging, compaction, excavation, fill or storage of materials and equipment whether by mechanical or manual methods.

PART B – THE CONTEXT OF THIS LOCAL LAW

This Part is intended to help you understand the context in which the Local Law is made. It is not intended to affect the interpretation of any provisions in other Parts of the Local Law.

Council recognises the contribution that the Municipal District’s tree canopy makes to the quality of its suburban environment. Damage and or removal of significant trees or canopy trees results in a degradation of this established character. This Local Law is based on the following principles:

1. Significant trees must be retained and cared for and will be the major determining factor in any redevelopment of land in the vicinity of the tree.

2. Trees that contribute to the Municipal District’s overall tree canopy character should be retained where practicable. Works near significant trees or canopy trees should be minimised to prevent damage and disruption to tree roots or growing conditions.

3. Owners of land and or contractors will be responsible for the loss or damage of significant trees or canopy trees that are required to be retained.

This Local Law gives Council the necessary controls to effectively caretake trees listed in Council’s Significant Tree Study ensuring they are maintained in accordance with the urban character, local amenity and biodiversity of the Municipal District.

PART C – TREE PROTECTION

8 Protection of Trees


(a) any Significant Tree; and




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(b) any Canopy Tree

where the tree, as described above, is situated on any Private Land. For the avoidance of doubt, this clause only applies to a significant tree or a canopy tree where the trunk of a tree is located on private land and where part of the significant tree or canopy tree (whether above ground or below ground) extends onto another parcel of private land.

(2) The Significant Tree Study as amended by the addition of Schedules from time to time is incorporated into this Local Law, with any amendment made to a Schedule coming into effect when it is published in the Government Gazette.

(3) A person must not without a permit:

(a) remove, prune, damage, kill or destroy or direct, authorise or allow to be removed, pruned, damaged, killed or destroyed a significant tree.

(b) carry out, or direct, authorise or allow to be carried out, any works within the tree protection zone of a significant tree.

(c) Remove, damage, kill or destroy or direct, authorise or allow to be removed, damaged, killed or destroyed a canopy tree.

(d) carry out, or direct, authorise or allow to be carried out any workswithin the structural root zone of a canopy tree.

(e) Remove, damage, kill or destroy or direct, authorise or allow to be removed, damaged, killed or destroyed a tree required to be planted as a condition of a permit.

Maximum Penalty: twenty (20) Penalty Units

(4) Clause 8(3) does not apply to:

(a) a person whose actions are required by any other legislation or by any other statutory authority; or

(b) a person acting in accordance with an instruction or direction from an authorised officer.

(5) If a tree is interfered with in any of the circumstances specified in clause 8(3), the owner of any private land on which the tree is on, over or under is guilty of an offence, whether or not the person who actually interfered with the tree is identified or prosecuted, unless the owner can prove that the interference was undertaken by another party without the owner's knowledge.

9 Power of Authorised Officer to Direct – Notice to Comply

(1) An Authorised Officer may by Notice to Comply given to the owner of private land or any contractor or other person engaged in works on private land whoappears to be in breach of this Local Law direct that owner, contractor or




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other person to remedy any situation which constitutes a breach under this Local Law.

(2) An Authorised Officer may by Notice to Comply direct a person who appears to be in breach of this Local Law to plant by way of replacement one or more trees of a type and in a location specified by Council or the Authorised Officer.

10 Time to Comply

(1) A Notice to Comply must state the time and date by which the situation must be remedied.

(2) The time required by a Notice to Comply must be reasonable in the circumstances having regard to:

(a) The amount of work involved;

(b) The degree of difficulty of the work involved;

(c) The availability of necessary materials or other necessary items;

(d) Any other relevant factor.

(3) A Notice to Comply must also include:

(a) the name of the alleged offender (if known);

(b) the provision of the Local Law which appears to have been breached;

(c) the date on which it was given to the owner, contractor or other person; and

(d) the name of the Authorised Officer who has given it.

PART D - ADMINISTRATION

11 Applications for Permits

(1) An application for a permit must be made in writing using a form prescribed by Council from time to time and must be accompanied by the appropriate fee as determined by Council from time to time.

(2) Where an application for a permit is made by a person who is not the owner of the private land on which the tree described in Clause 8(1) is located, the application must be accompanied by a document evidencing the owner’s consent to the application for the permit being made.

(3) If required to do so by Council or an authorised officer, an applicant must provide additional information before the application for a permit is considered.

12 Permits




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(4) The Council or an Authorised Officer may, after considering the application for a permit:

(a) grant a permit, with or without conditions;

(b) refuse to grant a permit; or

(c) determine that a permit is not required.

(5) In determining whether to grant a permit under this Local Law, the Council or Authorised Officer must take the following into consideration, to the extent it considers appropriate:

(a) the effect of the proposed action on the aesthetics of the neighbourhood ;

(b) whether the tree is a significant tree;

(c) The condition of the tree (i.e. its health and structural integrity);

(d) The appropriateness of the tree for its location on the property having regard to the existing buildings and conditions on the property;

(e) whether the proposed action is to be undertaken for reasons of health or safety;

(f) whether the tree is causing any unreasonable property damage;

(g) whether the tree is causing any unreasonable public nuisance or creating any unreasonable nuisance to private property owners or occupiers;

(h) whether the tree is a recognised weed;

(i) The nature of the zoning of the land under the Boroondara Planning Scheme;

(j) any legislative requirements; and

(k) any other matter relevant to the circumstances associated with the application.

13 Payment of a Security Bond

(1) Where:

(a) the owner of private land proposes carrying out works; or

(b) the owner of private land engages a contractor for the purposes of carrying out works

within the tree protection zone of a significant tree or the structural root




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zone of a canopy tree, whether those works are proposed to be undertaken pursuant to a planning permit or otherwise, the Council or an Authorised Officer may, by notice given to the Owner, require payment of a security bond to the Council.

(2) The security bond shall be for an amount and in a form determined by the Council or the Authorised Officer.

(3) Twelve months after the completion of the works the Council may:

(a) retain all or any part of the security bond to cover costs of replacement of any significant tree or canopy tree damaged or killed as a result of the works; or

(b) refund the security bond.

14 Cancellation of a Permit

(1) The Council or an authorised officer may cancel a permit if it considers that:

(a) there has been a serious or ongoing breach of the conditions of the permit; or

(b) a Notice to Comply has been issued, but not complied with within seven (7) days after the time specified in the notice for compliance; or

(c) there was a significant error or misrepresentation in the application for the permit; or

(d) in the circumstances, the permit should be cancelled.

(2) Before it cancels a permit, the Council or an authorised officer must provide to the holder of the permit a reasonable opportunity to make comment on the proposed cancellation.

(3) If a holder of a permit is not the owner of the private land and the owner’s consent was required to be given to the application for the permit, the owner must be notified of any Notice to Comply and of the reason why it has been served.

15 Inspections

(1) An Authorised Officer may enter any private land for the purpose of inspecting any significant tree or canopy tree where the authorised officer has reasonable grounds for believing that a breach of this Local Law has been committed, is being committed or is likely to be committed.

(2) An Authorised Officer may enter any private land for the purpose of inspecting any significant tree or canopy tree where an application for a permit has been made in accordance with this Local Law.

16 Infringement Notices




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(1) Where an Authorised Officer reasonably believes that a person has committed an offence against this Local Law, the Authorised Officer may issue and serve on that person an infringement notice as an alternative to prosecution for the offence.

(2) The penalty fixed for an infringement notice under this Local Law is:

(a) where an offence relates to a tree which in the opinion of the Authorised Officer is dead – 5 penalty units for each offence;

(b) for all other offences – 20 penalty units for each offence

17 Offences

(1) A person who:

(a) fails to comply with any provision of this Local Law;

(b) fails to comply with a condition of a permit;

(c) fails to comply with a Notice to Comply issued under this Local Law; or

(d) submits wrong, inaccurate or misleading information in an application for a permit made under this Local Law

is guilty of an offence.

(2) If no penalty is specifically provided for in a provision of this Local Law, a person found guilty of an offence under this Local Law is liable to a penalty not exceeding 20 penalty units.

(3) In addition to any penalty imposed pursuant to this Local Law, a penalty not exceeding 2 penalty units will apply for each day after conviction for an offence during which a contravention of this Local Law continues.

18 Applications for review

(1) Within 60 calendar days of receiving notice of a refusal to grant a permit under Clause 12(1)(b) of this Local Law, the applicant for the permit may apply to Council for a review of that decision.

(2) An application for review under Clause 18(1) of this Local Law must be made in writing and must:

a. state the grounds upon which the application for review is made; and

b. include further information which was not provided to or made available at the time the application for the permit under this Local Law was made.




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(3) If required to do so by Council, an applicant must provide additional information before Council determines an application for review.

(4) If an application to review a decision is made in accordance with this clause, the review shall be undertaken by Council's Chief Executive Officer or such person as the Chief Executive Officer appoints for such purpose.




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AA

B

B

SCHEDULE 1 – Diagrams

Diagram 1 – Diagram illustrating how to determine whether a single stemmed tree is a 'canopy tree':

For single stemmed trees, a tree is a canopy tree if:

The circumference at point ‘A’ (which is 1.5 metres above ground level, measured along the trunk’s length from the closest point above ground level) is 110 centimetres or more; or

The circumference at point ‘B’ (which is at ground level) is 150 centimetres or more.




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D

Diagram 2 – Diagram illustrating how to determine whether a multi stemmed tree is a 'canopy tree':

For multi-stemmed trees, a tree is a canopy tree if:

The combined circumference at points ‘A’, ‘B’ and ‘C’ (which is 1.5 metres above ground level, measured along the trunks’ length from the closest point above ground level) is 110 centimetres or more; or

The circumference at point ‘D’ (which is at ground level) is 150 centimetres or more.




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Diagram 3 - Diagram illustrating how to determine the Tree Protection Zone:

R

The Tree Protection Zone (TPZ) is based on ‘R’.

R = 12 times the trunk diameter at point ‘A’, to a maximum of 15 metres. The TPZ is a circular area below the tree extending at equal distances from the tree’s base in all directions.




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Diagram 4 - Diagram illustrating how to determine the Structural Root Zone:

The Structural Root Zone (SRZ) is based on ‘R’.

R = 2 metres. The SRZ is a circular area below the tree extending at equal distances from the tree’s base in all directions.

R



Attachment 3 - Officer responses to specific issues raised in submissions

Specific issue raised Officer response Strengthen the Local Law to protect trees on neighbouring properties from construction works.

The proposed Local Law strengthens the protection of significant and canopy trees on adjoining properties, when compared to the current Local Law.

Specifically, the proposed Local Law increases the protection of significant trees by replacing the outdated and smaller ‘critical root zone’ with the larger ‘tree protection zone’. This will afford additional protection of significant trees.

The proposed Local Law also introduces a new offence to undertake ‘works’ within 2 metres of a canopy tree, which will afford additional to protection to canopy trees including those on an adjoining property. It is considered that this reaches an appropriate balance and that no further change to the proposed Local Law is required as a result of these submissions.

Response: make no change to the proposed Local Law based on this submission

Extend and strengthen protection of canopy trees.

The proposed Local Law introduces a new offence to undertake ‘works’ within 2 metres of a canopy tree. It is considered that this extends and strengthens protection of canopy trees when compared to the current Local Law.


The definition of ‘damage’ is too restricted and should include circumstances where a tree has been pruned such that it becomes unviable.

The proposed definition of ‘damage’ already includes circumstances where a tree is pruned ‘such that the tree is no longer viable in terms of health, structure or stability’.Officers therefore do not consider further revision of this definition is warranted as this matter is already covered.



Specific issue raised Officer response Response: make no change to the proposed Local Law based on this submission

Clause 8(1) is not clear and reads as if it only applies where a tree is across two parcels of private land.

Officers have reviewed Clause 8(1) because of this submission and agree that the proposed wording could be improved to provide further clarity. The proposed Local Law has been altered to address this by amending Clause 8(1) to state:


(a) any Significant Tree; and (b) any Canopy Tree

Where the tree, as described above, is situated on any Private Land, whether or not the tree extends beyond the boundary of that Private Land. For the avoidance of doubt, this clause does not apply to such part of a tree that is above or below land which is not Private Land.

Response: update the Local Law to clarify the wording of Clause 8(1)


Remove requirement to obtain a permit to prune trees.

The current Local Law requires a permit to lop branches from a significant tree if they are more than 100 mm in diameter. The proposed Local Law seeks to require a permit to prune a significant tree if the branches exceed 50 mm in diameter.

This change (when compared to the current Local Law) is supported by Council’s arborists and will provide Council with an appropriate level of control over the pruning of significant trees. This proposed requirement is not considered to be excessively restrictive, given that this change would apply to a limited number of trees - 178 trees (or groups of trees) are significant trees, many of which are on public land and are therefore not covered by the Local Law.

Some submitters appeared to be under the misunderstanding that this requirement



Specific issue raised Officer response applied to all trees, not significant trees only. Officers reiterate that no permit is required to prune trees (other than a significant tree) provided that such pruning does not constitute killing, damaging or destroying a canopy tree.


The exemption at 8(4)(a) is open to abuse and could be used to justify removal of a tree where pruning could have been sufficient.

The exemption at Clause 8(4)(a) states that a requirement to obtain a permit does not apply to ‘a person whose actions are required by any other legislation or by any other statutory authority’.

This exemption exists in the current Local Law. It is officers’ experience that this exemption is rarely relied upon but is necessary because on occasion tree removal is required by other legislation (such as tree pruning or removal around electricity lines) or statutory authorities. Officers are not aware of any circumstances where this exemption has been ‘abused’ and so consider this concern to be unfounded.


More regularly monitor woody weeds and vegetation overhanging footpaths.

It is not the role of Council to monitor weeds on private property as such responsibility rests with the landowner. Furthermore, it is beyond the scope of the Local Law to address weeds on public land or vegetation overhanging footpaths.

Officers note that concern about weeds on public land should be directed to the relevant public land manager for their investigation and action. Council (and other public land managers) regularly actively remove weeds from public land.

Officers also note that provisions already exist within the Amenity Local Law for Council to take action in respect to vegetation overhanging footpaths. Those provisions will not change as a result of the introduction of the proposed Local Law.



Specific issue raised Officer response


Introduce a penalty for removing all vegetation from a development site.

Introduce greater control over tree removal when properties are being cleared for development.

Fifteen submissions have raised concerns about the clearing of properties for new development. Many of these submissions express concern not only about the removal of trees but also about the removal of gardens/shrubs and the opportunity for landscaping on redeveloped properties.

Officers do not consider that it would be appropriate to use the provisions of the Local Law to prevent removal of all vegetation from a development site, for three key reasons as follows:

Firstly, Officers hold the view that this change would have considerable practical difficulties to administer and enforce, such as determining what constituted a ‘development site’ and what sizes of shrubs it would become an offence to remove.

Secondly, this change would require the Local Law to require a permit to remove all vegetation (such as shrubs, ground covers and possibly lawn areas) from privately owned land. This would represent a significant increase in the level of control over private property and in many cases would prevent legitimate and reasonable development. This approach is not considered balanced. Officers are also of the view that this change would likely fall beyond the scope of the sorts of matters a Local Law could regulate.

Thirdly, such a change would require a very significant increase in resources to enforce and administer.

Officers also note that changing the proposed Local Law in the way suggested by these submitters would represent a significant change which in the Officers’ view,



Specific issue raised Officer response would require re-exhibition.


Require the surrounding community to be notified before making a decision on an application to remove a significant tree.

Require applications under the Local Law to be advertised (in the same way planning applications for multi-dwelling developments are) to enable surrounding residents to object.

Require applicants to advise the surrounding neighbours that they intend to lodge an application to remove a tree.

Implementing this suggested change would require Council to establish a process for giving notice of all applications made under the Local Law to surrounding properties. Officers consider that this would necessitate a considerable increase in resources to administer. Officers note that the current Local Law (which commenced operating in November 2006) does not contain such a provision.

Officers consider that amending the proposed Local Law to include provisions requiring applications to be advertised is not warranted for the following reasons:

Consideration of an application under the Local Law involves a largely technical assessment undertaken by qualified arborists. The assessment must consider the health, structure and form of a tree, the risk the tree presents to the surrounding area and whether a tree is causing unreasonable property damage or unreasonable nuisance, among other things. The assessment must also take into account the impacts on the streetscape and the treed character of the area. These are all assessments that qualified arborists are trained to make. Given that the starting point is a technical assessment of a tree’s condition, it is not likely that third-party views would change the outcome of such an assessment. While third-parties could legitimately hold views about a tree’s aesthetic benefits, this must be weighed up against other criteria.

There would be no third party appeal right by an objector to a separate statutory body (such as VCAT). This would likely create significant frustration for third parties.

It would significantly increase the time taken to process applications from between five and eight days, to at least 30 days. This would reduce the



Specific issue raised Officer response efficiently of the current fast turnaround times for determining applications under the current Local Law.

It would introduce a quasi-planning application process, which would be inconsistent with the rationale behind the introduction of the current Local Law in 2006, whereby Council sought a fast and simple process for assessing and determining applications.

Additional resources would be required to prepare and arrange the giving of notice, given Council receives anywhere between 1100 and 1300 applications per year.

Such a significant change to the Local Law would, in the Officers’ view require further public exhibition.


Require purchasers of properties to be informed that a tree on the property is on the Significant Tree Register.

Officers do not consider it is appropriate for the Local Law to require this to occur because disclosure of property details to prospective purchasers is set out in the Sale of Land Act 1962. It is the responsibility of potential purchasers to inform themselves of such matters prior to purchase.


Allow for special consideration and flexibility in instances when a tree is causing a nuisance and where the owner of the tree and the affected neighbours agree the tree should be removed.

Clause 12(2) of the Local Law will allow Council to specifically consider whether a tree is causing ‘unreasonable nuisance’ when determining whether to grant a permit. In such a circumstance an objective assessment of whether the alleged nuisance warrants removal of the tree needs to occur, independent of the views of the affected property owners.

Officers note that assessment guidelines could contain guidance for officers in



Specific issue raised Officer response assessing nuisances caused by trees.


Remove revocation date. All Local Laws made pursuant to the Local Government Act 1989 must have a revocation date. Therefore, this suggestion cannot be implemented. The proposed revocation date will be determined as part of Council formally resolving to make the proposed Local Law.


The definition of ‘canopy tree’ should be amended to be a tree ‘with a total circumference of 110cm or more measured at a height 1.5 metres above the ground level’.

This submission suggests simplifying the definition of canopy tree. While officers agree with the general principle of the submission, it is considered that the proposed definition is superior as it makes clear that a canopy tree is to be measured along the trunk, from the closest point above ground level. Officers consider that this provides additional guidance in circumstances where a tree is leaning or where the trunk is not straight.


The definition of ‘structural root zone’ should be either increased to 3 metres or should be specified relative to the trunk diameter.

Officers do not consider that any change to the proposed definition of ‘structural root zone’ is warranted as a result of this submission. The 2 metre distance was selected in consultation with Council’s arborists as a measurement to capture works which would be most likely result in destruction or damage of a canopy tree.

In drafting the proposed Local Law, officers had regard to the formula contained in Australian Standard AS 4790:2009 for determining a ‘structural root zone’. Officers considered using the mathematical formula in this Australian Standard, however



Specific issue raised Officer response ultimately considered that the formula would be too difficult for lay people to apply.

Officers consider that the definition of structural root zone in the proposed Local Law needs to achieve a balance between protecting canopy trees and practical application. The proposed 2 metre distance captures the area around a canopy tree that needs to be protected the most, while providing a practical distance which will be easy to understand and enforce.

Officers consider that the proposed structural root zone achieves the appropriate balance. Officers note that if works are undertaken outside the 2 metre distance but which still damage or destroy the tree, then this would be an offence under the proposed Local Law.


Subclause 12(2)(f) should be worded to reflect ‘likely’ or ‘possible’ property damage. A suggested rewording is replacement of this subclause with ‘whether the tree is likely to cause any unreasonable property damage’.

Officers do not consider that it is necessary to make this change to the proposed Local Law. In undertaking a technical assessment of a tree’s health and conditions, Council’s arborists assess the risks presented by the tree, in addition to any damage that the tree is causing. Speculation on ‘likely’ or ‘possible’ damage is considered to be too subjective.


Develop a scheme which entitles property owners with canopy trees on their property to receive a rebate on their annual rates charges.

Three submissions have suggested using the Local Law (or some other mechanism) to compensate landowners who keep canopy trees on their properties. It has been suggested that this occur as a rate rebate, or through some other mechanism.

Officers consider that this suggestion is beyond the scope of a Local Law to introduce and regulate such a scheme. While officers agree in principle that



Specific issue raised Officer response landowners should be encouraged to retain canopy trees on their property, officers have concerns about the resources that would be required to administer this scheme and how it would work on a practical level. Officers observe that such a scheme would require ongoing monitoring to ensure that the tree remained on the property and that the rebate was being lawfully claimed. This would require additional resources.

Officers note that it would not be possible to reliably determine how many landowners would choose to claim the rebate or how much it would cost Council. Officers would recommend exercising caution in adopting a scheme for which the likely financial cost cannot be reliably determined. Officers also have doubts about whether such a scheme falls within the remit of a Local Law, having regard to the provisions of the Local Government Act 1989.


Amend definition of canopy tree to capture smaller trees (some submissions have suggested 80 cms instead of 110 cms).

During the drafting of the Local Law, officers considered whether a change to the measurement of a canopy tree was warranted. Having considered all the submissions received, officers remain of the view that the proposed measurement (which is as per the current Local Law) is appropriate and achieves an appropriate balance. Having regard to benchmarking undertaken with six other metropolitan Councils with similar Local Laws, the fact that the current measurement is well understood over nine years of operation of the current Local Law and maintaining a fair balance between protecting the treed character of the municipality and allowing the removal of smaller trees without a permit, officers consider the current measurement reasonable.




Specific issue raised Officer response The Local Law’s objectives should acknowledge the benefit of trees on the environment.

Officers acknowledge that trees in the urban environment have a series of environmental benefits such as reducing the impact of the urban heat island effect, reducing the effects of climate change, reducing temperatures in and around buildings, reducing stormwater runoff, absorbing pollution, providing habitat and promoting biodiversity. These benefits are well-documented.

Many submitters have emphasised these benefits. Officers consider that it is reasonable to amend the Local Law to acknowledge the benefit of trees on the environment.

Response: amend Part B (‘The Context of this Local Law’) to acknowledge the benefit of trees on the environment

Clarify whether Clause 12(2)(i) will result in different level of protection for trees depending on which residential zone the property is located in.

The proposed Local Law includes Clause 12(2)(i), which proposes to enable consideration of ‘the nature of the zoning of the land under the Boroondara Planning Scheme’ when assessing applications under the Local Law.

This clause intended to provide a distinction between proposed tree removal in residential and commercial zones, in order to enable consideration of expected development outcomes on commercial land set out in the Boroondara Planning Scheme.

Response: make no change to the proposed Local Law based on this submission but note that this matter could be clarified though any update to the assessment guidelines

Clause 8(5) is poorly worded and should be amended to ensure that enforcement action is not taken against property owners in circumstances where a tree extends onto an adjoining property and is interfered with on

It is agreed that the wording could be further clarified. The suggested wording is as follows:

(5) If a tree, or part of a tree, is interfered with in any of the circumstances specified in clause 8(3), the owner of any Private Land on which the relevant part of the tree is



Specific issue raised Officer response the adjoining property. on, over or under is guilty of an offence, whether or not the person who actually

interfered with the tree is identified or prosecuted, unless the owner can prove that the interference was undertaken by another party without the owner’s knowledge. For the avoidance of doubt, where a Significant Tree or Canopy Tree extends over multiple parcels of Private Land, the owner of the land on, over or under which the part of the tree which has not been interfered with is located is not guilty of an a offence.

Response: update the Local Law to clarify the wording of Clause 8(5)Require replacement tree planting to occur when trees are removed and a new dwelling is constructed.

Under the current Local Law and guidelines, permits normally require replacement tree planting when a permit authorises the removal of a tree. It is not proposed to change this approach.

Response: make no change to the Local Law based on this submissionAmend the definition of ‘significant tree’ to include all trees which are more than 50 years old.

Officers consider that potential significant trees should be assessed on their own merits rather than on age alone. Officers consider that changing the proposed Local Law to reflect this submission would diminish the current distinction between significant and canopy trees. For a tree to be listed as ‘significant’, it must meet criteria consistent with the National Trust Register of Significant Trees. The criteria consider matters such as a tree’s age, size, rarity, horticultural value, historical value, contribution to the landscape, whether the tree is remnant vegetation or whether the tree is an outstanding example of the species.

Officers also consider that the suggested change would have practical constraints because reliably determining the exact age of a tree is difficult.

It is likely that a 50 year old tree would meet the definition of a ‘canopy tree’ (due to its likely circumference) and so would require a permit to be removed and would be protected by the proposed Local Law.

Response: make no change to the proposed Local Law based on this



Specific issue raised Officer response submission

Amend the definition of ‘structural root zone’ so that it is the same as ‘tree protection zone (i.e. a permit would be required for any works within the TPZ of any canopy tree).

Apply the definitions of ‘Tree Protection Zone’ and ‘Structural Root Zone’ to both significant and canopy trees, such that a permit is needed for ‘works’ within the TPZ of a canopy tree.

The proposed Local Law includes separate definitions for ‘structural root zone’ and ‘tree protection zone’. It is proposed that ‘works’ within a ‘structural root zone’ (being 2 metres) of a canopy tree will require a permit and that ‘works’ within the ‘tree protection zone’ of a significant tree (up to 15 metres) will require a permit.

The implication of making this change would be that any ‘works’ within a TPZ would require a permit. This would include large areas of many properties across the municipality and would therefore require a significant increase in resources to administer and enforce. Officers do not consider that this change would be of significant benefit, given that it will be an offence to ‘damage’ or ‘destroy’ a canopy tree. Officers also note that works within a TPZ of a tree do not necessarily damage or destroy trees.


Use increased rate revenue to hire additional resources (suggest 12 additional arborists) to enable inspection of all properties where planning and building permits have been made.

Through the planning application process, Council’s arborists undertake site inspections where tree removal is proposed or where a proposal may impact the viability of a tree (including a tree on an adjoining property). Council arborists also inspect site inspections where applications for a permit under the Local Law have been made or where complaints alleging non-compliance have been made. This occurs within current resources and also includes Council planning officers, Planning Investigations Officers and Local Laws officers in instances where alleged illegal tree removal is occurring out of normal business hours.

Officers also proactively advise landowners who have applied for a Building Permit to demolish a dwelling of the requirements of the Local Law and their obligations under it.



Specific issue raised Officer response Officers do not consider that it is practically or lawfully possible for the Local Law to be amended to require inspection of all properties where planning and building applications have been made, given that other legislation sets out inspection requirements. In any event, and as discussed above, officers undertake proactive inspections and enforcement.

The appropriate level of resources required to administer and enforce the Local Law is a matter for Council to determine, based upon the likely resource impost the final form of the proposed Local Law takes. At this time, officers believe sufficient resources are available to enable Council to administer the Local Law. This can be reviewed when required.


Amend the Local Law to provide Council with the power to revoke planning or building permits for properties where trees have been removed without permits.

It is not within the power of a Local Law to revoke lawfully issued planning or building permits, therefore this change cannot be implemented.


Amend the Local Law to provide Council with the power to delay construction or delay processing of planning permit applications for three years for properties where trees have been removed without permits.

It is not within the power of a Local Law to delay construction of a development (where all other relevant permits have been lawfully obtained) or delay processing of a planning application, therefore this change cannot be implemented.


Trees should also be afforded protection through a schedule to the Heritage Overlay

The Planning and Environment Act 1987 enables Council (as planning authority) to undertake an amendment to the Boroondara Planning Scheme to apply ‘tree controls’ to vegetation through the Heritage Overlay and its schedule. This is a



Specific issue raised Officer response different statutory tool to a Local Law. Officers do not consider that such a planning scheme amendment would be successful because it would need to establish that all trees that would be covered by such a Heritage Overlay (or existing Heritage Overlays) are of heritage significance. While officers acknowledge that in some instances trees are of heritage value or contribute to the character of a Heritage Overlay precinct, use of the Heritage Overlay in the manner suggested would not be appropriate.

The advantages and disadvantages of using the Boroondara Planning Scheme to protect vegetation across the municipality have been discussed in detail in the report.


Strengthen the Local Law by updating the Significant Tree Register and encourage care and maintenance regimes.

The Significant Tree Study should be reviewed and updated as it is 15 years old

Officers note that the Significant Tree Register was updated in 2015 to include an additional 53 trees (or groups of trees). Officers acknowledge that the original Significant Tree Study requires updating in the future. Officers note that Council actively encourages trees to be cared for and maintained.


Assist property owners to care for and maintain trees on their property.

Officers note that Council encourages property owners to care for and maintain their trees and often provides advice to residents in this regard. It is not proposed to change this current approach.


Ensure that trees are protected by The proposed definition of ‘works’ includes soil compaction, and so significant trees



Specific issue raised Officer response prohibiting soil compaction around the root zone.

will be afforded protection in their ‘tree protection zones’ and canopy trees afforded protection in their ‘structural root zones’. The proposed Local Law therefore already addresses this submission.


Permits for tree removal under the Local Law should not be granted where there is a planning permit application (or where one is likely), to enable trees to be assessed as part of the planning permit application.

The Local Law and the Boroondara Planning Scheme are legislative instruments which operate under different statutory provisions. Therefore, there are different considerations for each and it is necessary that planning applications and Local Law applications are assessed and determined separately.

The current (and proposed) Local Law does not operate in circumstances where planning approval is specifically required for tree removal. However, where this is not the case (such as the assessment of a multi-dwelling development), then the Local Law and planning scheme operate separately. The shortcoming of the approach suggested by the submitter is that vegetation removal would need to be balanced with all other relevant considerations in the planning scheme. An example of this might be the need to balance vegetation removal with urban consolidation. A further shortcoming would be that Council’s decisions would be subject to review at VCAT.

However, officers note that trees are normally assessed as part of a planning application and permit applicants are advised if there is likely to be an inconsistency between the Local Law and the Boroondara Planning Scheme. It is officers’ experience that this current approach works appropriately and therefore no change is warranted.


Require that the number of replacement The number of replacement trees required as a condition of a permit turns on the



Specific issue raised Officer response trees equals or exceeds the number of trees permitted to be removed.

circumstances of each application. Officers consider it reasonable to leave this matter to officers’ discretion when assessing each application. In limited instances, it may not be practical to require replacement planting, such as if there are already other canopy trees on the property or if there is insufficient space for a replacement canopy tree. Officers note that any update to the assessment guidelines could include as a general principle that the number of replacement trees equals the number of trees permitted to be removed.


Ensure replacement trees are sustainable and are suitable to the property.

Replacement trees should not be small and exotic, but should be indigenous.

Conditions of permits issued under the current Local Law normally do not specify a particular species (or group of species) of tree unless there are circumstances where a particular species of tree is appropriate. The Local Law enables officers to use their discretion to require such trees if the circumstances warrant it, such as if replacement planting should be indigenous or capable of reaching a certain height at maturity. Officers consider it reasonable to leave this matter to officers’ discretion when assessing each application. Officers do not consider that replacement planting should be limited to indigenous trees, particularly given some parts of the municipality are notable for their mature exotic gardens.


Make Council able to place trees on the Significant Tree Study without the permission of the landowner.

Council is able to place trees on the Significant Tree Register without the permission of the landowner(s), however Council would consult with the affected landowner(s) prior to making a decision.




Specific issue raised Officer response Require more replacement tree planting when new large single dwellings are proposed.

The number of replacement trees required as a condition of a permit turns on the circumstances of each application. Officers consider it reasonable to leave this matter to officers’ discretion when assessing each application.


Canopy and significant trees should be given the same level of protection.

This change would mean that a permit would be required to ‘prune’ a canopy tree and to undertake ‘works’ within the TPZ of a canopy tree. This would require a significant increase in resources to administer and enforce the Local Law. The additional protection of significant trees (through the requirement to obtain a permit for pruning and works in the TPZ) is commensurate with their greater importance, as identified by the criteria used to determine whether trees achieve this distinction. Officers consider that the balance reached in the Local Law is appropriate.


Correct the definitions of ‘Tree Protection Zone’ and ‘Structural Root Zone’ to accord with Australian Standards.

The definition of ‘tree protection zone’ is based on that of Australian Standard AS 4970 (Protection of Trees on Development Sites). When drafting the Local Law, officers had considered using the definition of ‘structural root zone’ from this Australian Standard, however calculating this is based on a complicated formula which the community would likely not easily understand (the rationale for the definition of a structural root zone has been discussed above).


Apply the Local Law to canopy and significant trees on all land (including street trees), not just private land.

The Local Law is only intended to cover private land. Extending the Local Law to also apply to public land would considerably extend its scope, which would require additional resources to administer. This would also mean that Council (and other



Specific issue raised Officer response public land managers such as VicRoads, VicTrack and Parks Victoria) would need to apply for permits. This is considered to be an unnecessary burden. Officers do not consider this would be beneficial given Council’s Parks and Gardens Department actively manages trees on Council land.

Council (and other public land managers) invest significant resources in maintaining vegetation on public land. Officers consider extending the Local Law to public land would not be of any significant benefit.


Require a security bond to be taken for all works around trees.

The current Local Law allows for a security bond to be taken when required by Council. This means that if deemed necessary, officers can require money to be paid to Council as a ‘guarantee’ against damage to the tree. Officers consider it appropriate to retain this provision in the proposed Local Law.

If security bonds were taken for every application, this would require significant additional resources. Officers consider this to be unnecessary and recommend that the current discretion be maintained.


Change the ‘penalties’ clauses to state a penalty of ‘up to 20 penalty units’ for each offence.

Council agrees with the sentiment that the current penalties are insufficient. However, only the State Government can amend the relevant legislation to increase the value of penalty units. Council continues to lobby the State Government to increase penalties.





Applications for review (appeals) should be conducted by a qualified panel and attract a cost recovery fee, so that there is minimal cost on Council and a reduction in the number of applications for review.

The additional provision allowing an appeal against a decision will formalise existing procedures. Appeals are currently assessed and determined using existing resources. Officers do not consider that it is necessary to amend the Local Law to specifically introduce a fee for appeals, because it is open to Council to resolve to introduce a fee at any time without having to amend the Local Law.

Appeals are currently assessed by a Statutory Planning Coordinator, with the Manager Statutory Planning responsible for decisions made. Advice is sought from independent experts in some instances. Officers do not consider that it is necessary to amend the Local Law to require appeals to be assessed by a qualified panel.


Add a category so that ‘significant shrubs’ are also protected, not just trees.

The Local Law should also cover shrubs.

Officers consider that use of the Local Law to protect shrubs in addition to canopy trees and significant trees would extend beyond the Local Law’s purpose, objectives and current balance. It is considered that covering shrubs under the Local Law would represent an excessive level of control over private property rights and would require a considerable increase in resources to enforce and administer.

Officers also consider that this would represent a significant shift in the current balance in the proposed Local Law.


Require replacement planting to be undertaken within 3 months of the completion of any new building.

It is not necessary to amend the Local Law to enable Council to include permit conditions to this effect. Any update to the assessment guidelines include a new requirement that replacement trees must be planted within three months of the completion of buildings works on the property.





Increase proactive enforcement of conditions requiring replacement tree planting.

Council already undertakes proactive enforcement of conditions of permits issued under the Local Law. No amendment to the Local Law is required to enable this to continue to occur.


Introduce wildlife corridors. Council recognises the importance of biodiversity in the municipality and has developed the Urban Biodiversity Strategy for Boroondara 2013 - 2023 and theassociated Implementation Plan 2013 - 2017. These documents have established wildlife corridors in the municipality.

While officers do not consider that the Local Law should be amended specifically to introduce wildlife corridors, any update to the assessment guidelines could direct officers to consider whether a tree proposed to be removed is located within or close to a biodiversity corridor and the value it adds to the corridor, when assessing an application.


Permits for construction should not be granted where a tree is more than 10 metres from the existing house or within 4 metres of a boundary fence.

Officers do not consider that it would be reasonable to amend the Local Law to introduce exemptions as suggested by the submitter. Each application to remove a tree must be assessed on its own merits depending on the circumstances of that case.

Officers note that a Local Law cannot prohibit the issue of a Planning Permit or a



Specific issue raised Officer response Building Permit or regulate matters covered by the planning scheme or building regulations.


Include a definition of a canopy tree. The Local Law defines a canopy tree.


Require root barriers to be placed along boundaries so that tree roots do not impact on an adjoining property, as conditions of planning permits or building approvals.

It is beyond the scope of the Local Law to require root barriers to be placed along boundaries because the Local Law does not control the planting of trees.


When requiring replacement trees, Council should either supply the replacement trees or supply information of where a 1.5 metre high indigenous tree can be purchased.

Landowners acting on a permit issued under the Local Law should bear the burden of the cost of complying with the conditions of the permit, given they are the proponents of the proposed tree removal. Officers are able to assist with contacts for various suppliers of advanced indigenous trees.


Amend the Local Law (and the adopted assessment guidelines) to remove consideration of health, safety, tree condition, property damage and zoning, and replace with condition of urban heat island effect, pollution reduction and increased

Officers do not support this submission. Changing the proposed Local Law to implement what this submission seeks to achieve would remove the ability to undertake an assessment of a tree’s condition, the risks presented by a tree, property damage being caused by the tree and the zoning of the land. This represents a significant change in the currently balanced drafting of the criteria in Clause 12(2) and would undermine the ability to undertake a balanced assessment



Specific issue raised Officer response storm water runoff.

The new criteria at Clauses 12(2)(c), 12(2)(d) and 12(2)(i) will make it easier for permits to be granted to allow for trees to be removed.

of an application. Adopting this submission would also remove the ability for officers to consider a tree’s condition and risk. Officers consider that this would be an irresponsible approach which would leave Council open to liability. Officers caution against adopting an approach which prioritises the environmental benefits of trees above the risks presented by a tree.

As discussed in this attachment and in the body of the report, officers consider that it is appropriate to amend the proposed Local Law so that it recognises the environmental benefits of trees. Officers do not consider that it is necessary for the proposed Local Law to contain a specific criteria directing consideration of these matters because the operation of the proposed Local Law (and assessment guidelines) will result in a healthy tree which is suitable to its site being retained. Environmental considerations, while important, should not outweigh health, safety, risk, nuisance and damage considerations.


Set a target for a maximum rate of canopy cover loss across the municipality.

Officers do not consider that it would be appropriate to set a maximum rate of canopy loss within the Local Law itself. This is because each application under the proposed Local Law must be assessed on its own merits based on the facts and circumstances. Officers consider that introducing such a measure would undermine the ability for officers to make a balanced assessment of each application. Officers are currently investigating ways in which changes in canopy tree cover over time can be reliably and scientifically determined.


Cease relying on replacement tree planting as justification for tree removal.

It is not intended that the proposed Local Law provide that tree removal be justified by replacement planting. Indeed, the proposed criteria at Clause 12(2) do not



Specific issue raised Officer response provide for such justification. Under the current Local Law, if a permit is granted, conditions will require replacement tree planting. It is not proposed to change this approach.


Introduce accountability for and monitoring of replacement planting.

This is not necessary. Council will be responsible for monitoring compliance with the proposed Local Law and conditions of permits issued pursuant to the proposed Local Law. Officers already undertake proactive enforcement of the current Local Law.


The protection of tree canopy be identified as a major objective in the proposed Local Law.

Officers consider that the purposes of the proposed Local Law already articulate this objective.


The introduction of the word ‘unreasonable’ in the criteria at Clauses 12(2)(f) and 12(2)(g) does not promote tree retention because what constitutes what is ‘unreasonable’ depends on the facts and circumstances of each case and is too subjective.

The two clauses referred to by the submitter refer to property damage and nuisance. The inclusion of the word ‘unreasonable’ has been deliberately included to require the nature and the extent of the alleged nuisance or damage to be considered. Inclusion of the word ‘unreasonable’ in such circumstances is consistent with the standard approach for the drafting of similar statutory provisions. This approach also reflects the approach in the current guidelines. Any updates to the assessment guidelines could include specific matters which officers must consider, to ensure consistent and fair decision-making.

It is intended that what is ‘unreasonable’ to turn on the facts and circumstances of each case. This approach is consistent with the principles of the exercise of



Specific issue raised Officer response discretion in administrative law.

For these reasons, officers do not consider that the proposed wording is too subjective.


Proposed Clause 18 (which contains an applicant’s review/appeal right against a decision) should not be included as it results in inefficiency and additional expense and assumes that the original decision was inaccurate. In the event Clause 18 is supported, the timeframe for lodging an appeal should be reduced to 14 days.

The inclusion of this clause will not result in inefficiency or notable additional expense for Council, because it simply formalises current practices and processes.

The timeframe of 60 days is to enable an applicant sufficient time to submit their application for review with supporting documentation. Officers consider that 14 days would be an unreasonably short timeframe and would not actually change the merits assessment of the application for review.


All significant trees should be included within a Vegetation Protection Overlay so that they are afforded additional protection by the planning scheme. Council should undertake benchmarking against Banyule City Council.

Officers consider that a Local Law is currently the most appropriate tool for maintaining tree canopy in the municipality. Introducing planning controls over vegetation in the municipality would require Council to undertake the process of a planning scheme amendment. As Council is aware, this would require obtaining authorisation from the Minister for Planning and would likely require the assessment of the proposed amendment by an independent panel if submissions are received. The Minister for Planning would be responsible for making the final decision.

In addition, prior to undertaking a planning scheme amendment, Council would be required to undertake substantial research to justify inclusion of vegetation controls in the planning scheme. This would require external consultants to prepare a study or survey of vegetation across the municipality and develop proposed planning



Specific issue raised Officer response controls. This would likely cost several hundred thousand dollars and take at least 12 months to complete. The planning scheme amendment process would also take up to 18 months to complete. Therefore, seeking to apply planning controls would take approximately 30 months, with no guarantee that the outcome sought by Council would be approved by the Minister for Planning.

Officers consider that it would be highly unlikely that an independent panel or the Minister for Planning would support applying vegetation controls through the planning scheme for large parts of the municipality. This is because it would be difficult to establish that vegetation in the municipality would warrant protection by the planning scheme. The overlays that Council would seek to apply are normally applied in environmental settings (such as river corridors and heavily treed suburbs/areas), not large urban areas.

Further, officers consider that even if vegetation controls were applied through the planning scheme, Council would receive applications for Planning Permits also proposing developments such as multi-dwellings or apartment buildings. This would result in circumstances where Council and (VCAT on review) would be required to consider broader policy objectives (such as urban consolidation) when making a decision regarding the vegetation. This would potentially result in circumstances where VCAT considered that the benefits of a proposed development outweighed the benefits of retaining the vegetation. Indeed, it has been officers’ experience that VCAT have done so in circumstances where tree protection as part of a planning application was a relevant matter. Officers consider this to be a significant disadvantage of planning controls, when compared to the use of the proposed Local Law.

In addition, decisions made under vegetation controls in the planning scheme would be subject of appeal rights to VCAT. It is likely that a significant percentage of refusals would be appealed and therefore determined by VCAT.



Specific issue raised Officer response Response: make no change to the proposed Local Law based on this submission



Attachment 4 - Officer responses to general issues raised in submissions

General issue raised Officer response Penalty insufficient. Council has no ability to increase penalties under the Local Law. The penalties in the

proposed Local Law are the maximum penalties available. Only the State Government can address this matter. This issue is discussed in further detail in the body of the report.


Retaining trees is important to provide for shade and cooling given extent of concrete and apartment buildings.

Retaining trees is important to provide for shade, cooling and wildlife habitat, therefore trees must be extended and strengthened.

Trees are necessary to maintain liveability, reduce the urban heat island effect and contribute to biodiversity.

The Local Law does not identify any links between climate change and tree plantings.

Trees are important as they provide habitat and remove pollutants from the atmosphere.

Trees should be protected because they provide shade, soften the harsh

Officers agree with the tenet of these themes raised in submissions. Officers propose to amend the proposed Local Law to recognise the environmental benefits of trees in the urban landscape. Officers consider that the proposed criteria in Clause 12(2) require consideration of the most appropriate matters and will ensure retention of trees that are in good condition and suitable to their site.

The proposed Local Law is one of several tools available to Council to encourage increased canopy tree cover.




General issue raised Officer response environment, bind the soil, prevent erosion, absorb pollution and provide habitat.

Council should take a leadership role in encouraging increased tree canopy through the municipality to combat climate change, preserve neighbourhood character and provide psychological and physical benefits to the community.


Climate change is a major issue and increasing canopy cover in Melbourne is an important strategy. Community education promoting tree retention is required.

There should be more community education programs about the benefits of trees.

Officers agree with the tenet of this submission. Council provides advice to residents about the benefits of trees, including providing information about suitable trees to plant on properties and about promoting biodiversity, through Council’s ‘Backyard Biodiversity’ program. It is not necessary to amend the proposed Local Law to reflect these programs.


Clarification about how Council assesses applications is required.

Assessment of applications under the current Local Law are undertaken having regard to the criteria in Clause 12(2) and the current guidelines. It is not proposed to change this approach. Under the proposed Local Law and consistent with the



General issue raised Officer response principles of decision-making under administrative law, each application will be assessed on its own merits. The proposed method for assessing applications will be consistent and transparent.


Permits should not be granted to remove trees to allow for larger dwellings to be built.

Trees and vegetation should be the priority, not new houses.

This issue of new development (particularly new single dwellings) and reduced landscaping opportunity is discussed in detail in the body of the report. It is officers’ response that the proposed Local Law establishes a balanced approach between ensuring tree retention and allowing homeowners to build a new dwelling or extend an existing dwelling, provided the new dwelling or addition is reasonable. Officers are of the view that the proposed Local Law in itself is unable to regulate the size, footprint or style of new dwellings. However, there is the opportunity for assessment guidelines to provide guidance in determining whether excessive site coverage or hard surface coverage would have detrimental impacts on existing trees.


Private property rights are fundamental to a modern democratic society and the Local Law is inconsistent with that principle.

The Local Law represents excessive bureaucratic interference.

The Local Law is an invasion of private property rights and ratepayers should be given the responsibility to manage trees on their own property.

These matters are discussed in the body of the report. In summary, it is considered that the proposed Local Law seeks an appropriate level of control in respect to the public interest.




General issue raised Officer response The Local Law is too restrictive and seeks to protect trees (such as gums) which are a nuisance, a safety risk and cause property damage.

The proposed criteria at Clause 12(2) will allow officers to consider matters of nuisance, safety risk and property damage when making a balanced assessment. The proposed Local Law already enables these matters to be considered and so no amendment based on this submission is considered to be required.

Matters such as consideration of the species of tree, the history and reasons of limb failures and the risk presented by the tree could be addressed in any updates to the assessment guidelines.


The Local Law is too restrictive because a permit will now be required to maintain trees (such as weight reduction pruning and dead wood removal).

The proposed Local Law does not require a permit to maintain trees. The need to obtain a permit for pruning is only proposed to apply to significant trees (currently 127 trees on private land).


The increase to a tree’s Tree Protection Zone to a maximum of 15 metres will prevent development across approximately one third of a normal suburban allotment.

The proposed Local Law does not require a permit to undertake works within the Tree Protection Zone (TPZ) of a canopy tree. This requirement only applies to significant trees.


If the Local Law is too restrictive it is less likely to be observed.

Many of the provisions of the proposed Local Law appear in the current Local Law, which the community, builders and planners regularly practicing in the municipality understand. It is the responsibility of landowners and their contractors to ensure that they comply with the proposed Local Law.



General issue raised Officer response Response: make no change to the proposed Local Law based on this submission

Protection of canopy trees benefits the wider area while disproportionately negatively affecting the owner of the property on which the tree is located, through lower land value and lessened development opportunity.

Officers are unaware of any evidence which suggests that the presence of trees on a property lowers land value. While requiring the retention of a tree would potentially impact on development opportunity, managing trees is a constraint which must be considered by the property owner in the same manner as easements or existing developments on adjoining properties.


The Local Law does not provide a mechanism for compensation for property owners who have canopy trees on their property.

Laws and regulations (such as planning schemes or building regulations) temper private property rights. In such instances, compensation for property owners is not available. Officers do not consider that these principles are any different in the context of the proposed Local Law.


Council should focus on encouraging people to retain trees on their property, rather than punishing property owners who have a canopy tree on their property.

Council undertakes a range of programs to educate the community about the benefits of trees and encourages property owners to retain and plant trees on their property. An example of such a program includes the ‘Backyard Biodiversity’ project. Council’s website also contains information about Melbourne-based groups and organisations that officer educational and volunteer programs about vegetation, climate change and local flora and fauna biodiversity.


The Local Law is long overdue. This submission is noted.



General issue raised Officer response


There should be significant canopy tree cover in the municipality to maintain the urban forest.

Maintaining the treed canopy of the municipality is an objective of the proposed Local Law. Notwithstanding this, each application must be assessed on its own merits. Officers consider that the current Local Law has been effective because it establishes a framework for controlling vegetation and requires the retention of trees in good condition and which are suitable to their location and not causing unreasonable damage or nuisance.


The Significant Tree Study should be reviewed and expanded.

For a tree to be listed as ‘significant’, it must meet criteria consistent with the National Trust Register of Significant Trees. The criteria consider matters such as a tree’s age, size, rarity, horticultural value, historical value, contribution to the landscape, whether the tree is remnant vegetation or whether the tree is an outstanding example of the species. These assessments must be undertaken by qualified arborists. In most cases, a tree would need to meet several criteria before it was considered to be ‘significant’.

Council has recently added 53 trees on private property to the Significant Tree Study. In 2014 and 2015, independent arborcultural consultants assessed 309 indigenous and native trees across the municipality on both public and private land. This resulted in 190 trees (or groups of trees) recommended to be given the status of a ‘significant’ tree. The 53 trees on private property subsequently received additional protection as significant trees under the current Local Law. Under the proposed Local Law, significant trees will continue to receive this additional protection but with more stringent permit requirements for pruning and for works in their TPZs.



General issue raised Officer response Officers agree that the original Significant Tree Study undertaken in 2001 (and updated in 2003) should be reviewed and expanded where additional significant trees are identified. Undertaking a review of the Significant Tree Study would require additional resources. Officers are currently considering timeframes and funding options for undertaking a review of the Significant Tree Study.


Canopy trees should be planted when new dwellings are built and consideration should be given to encouraging green walls and green roofs.

Under the current Local Law, replacement planting can be required as a condition of a permit issued. It is not proposed to change this approach through the proposed Local Law.

In circumstances where a new single dwelling is built and where no trees were required to be removed, Council would be unable to use the proposed Local Law to require trees to be planted, because the proposed Local Law controls removal of trees. As stated in the body of the report, Council is currently investigating ways to address the issue of new large single dwellings.

The planning scheme encourages new development to include sustainability features such as green walls and green roofs. Officers continue to encourage permit applicants to include sustainability features in proposed developments. Council has previously supported planning applications which have included green walls and green roofs. These matters are addressed through the planning scheme, not under the proposed Local Law.


Modern cities are moving towards maximising greenery - Council should be

The current (and proposed) Local Law is one of many tools used by Council to manage vegetation in the municipality. Retention of vegetation and encouraging the



General issue raised Officer response doing so too. planting of vegetation is also addressed though the planning scheme. Where a

Planning Permit is issued, conditions usually require planting shown on an approved landscape plan to be implemented. Conditions may also require the retention and protection of canopy and significant trees on the development site and adjoining properties. These tools promote maximising greenery and vegetation.

In addition, Council is also responsible for managing vegetation on most parkland and street trees in road reserves. Council spends considerable resources in doing so. It is important to understand that maximising greenery is not limited to the application of the proposed Local Law.


The main issue causing loss of tree canopy is the construction of new large single dwellings, often approved by private building surveyors who do not ensure that building regulations are adhered to.

Development of new large single dwellings is reducing landscaping opportunity for new canopy trees.

New development is larger than older development and leaves insufficient space for canopy trees. The Local Law should be further strengthened and enforced given the loss of trees due to the construction of new large single dwellings and given trees’ benefits for

This issue is discussed in the body of the report. It is noted that the proposed Local Law cannot in itself regulate buildings that are controlled through the planning scheme and the building regulations. Council is currently investigating the issue of large dwellings separately.




General issue raised Officer response climate change, pollution and storm water runoff.Building regulations should be upgraded to ensure protection of green suburbs.

This issue is discussed in the body of the report.

As noted above, the proposed Local Law is unable to regulate matters that are regulated in the planning scheme and/or the building regulations.


While the Local Law is supported, it does not address the loss of established gardens which are not being replaced when new buildings are constructed - it is not only canopy trees which contribute to the greenery of the suburbs.

Strong laws are needed to prevent the removal of all vegetation from property.

Concerned about ongoing destruction of mature trees and shrubs throughout the municipality.

Fifteen submissions have raised concerns about the clearing of properties for new development. Many of these submissions express concern not only about the removal of trees but also about the removal of gardens/shrubs and the opportunity for landscaping on redeveloped properties.

Officers do not consider that it would be appropriate to use the provisions of the Local Law to prevent removal of all vegetation from a development site, for three key reasons as follows:

Firstly, this change would require the Local Law to be amended to make it an offence to remove all vegetation (such as shrubs, ground covers and possibly lawn areas) from a development site. This would represent a significant increase in the level of control over private property and in many cases would prevent legitimate and reasonable development. This approach is not considered balanced. Officers are also of the view that this change would likely fall beyond the scope of the sorts of matters a Local Law could regulate.

Secondly, such a change would require a significant increase in resources to enforce and administer.

Thirdly, Officers hold the view that this change would have considerable



General issue raised Officer response practical difficulties to administer and enforce, such as determining what constituted a ‘development site’ and what sizes of shrubs it would become an offence to remove.

Officers also note that changing the proposed Local Law in the way suggested by these submitters would represent a significant change which officers consider would require re-exhibition.


In preparing the Local Law, Council has not considered the impact of street trees on easements/pipes, the detrimental impact of street tree leaves (due to safety, impact on drainage), the impact of street trees overhanging private property or the issue of trucks striking low branches of street trees.

The proposed Local Law will not apply to street trees, which are located on public land and which are managed by Council. Therefore, officers did not consider these matters when reviewing the current Local Law and when drafting the proposed Local Law. The matters referred to by the submitter are appropriately dealt with by Council’s Parks and Gardens Department in their responsibility for managing street trees.


Support subclause 12(2)(d). Clause 12(2)(d) is a new clause in the proposed Local Law, which does not appear in the current Local Law. It states that ‘the appropriateness of the tree for its location on the property having regard to existing buildings and conditions on the property’ is a matter which must be considered.

The submitter’s support for this clause is noted.

This issue is discussed in the body of the report.




General issue raised Officer response submission

Current tree protection controls in the municipality are not working and the proposed Local Law will make no difference - a ‘strategic rethink’ is necessary.

The Local Law does not address the issue of ongoing depletion of tree canopy throughout the municipality.

The current Local Law is not working and there has been a significant reduction in canopy tree cover since 2006.

It does not appear that the value of urban canopy tree cover has been considered in the preparation of the Local Law.

Strongly support the Local Law but concerned about ongoing loss of canopy cover and the apparent ease with which property owners are able to obtain permission to remove trees.

The municipality’s canopy cover should be increased because trees reduce the urban heat island effect and reduce temperatures.

Applications to remove trees must be assessed on their own merits. Discussion about the effectiveness of the current Local Law is contained in the body of the report.

Officers do not consider that it would be appropriate to set a maximum rate of canopy loss within the Local Law itself, because this would be very difficult to enforce and monitor. Furthermore, each application under the proposed Local Law must be assessed on its own merits based on the facts and circumstances. Officers consider that introducing such a measure would undermine the ability for officers to make a balanced assessment of each application. Officers are currently investigating ways in which changes in canopy tree cover over time can be reliably and scientifically determined.

Officers consider that the most effective way to minimise loss of tree canopy in the municipality is to apply and enforce the proposed Local Law, continue to retain and protect trees through planning applications and continue to manage trees on public land (such as street trees and trees in parkland).


Council has not undertaken any assessment against whether the current

This issue is discussed in the body of the report. In summary, officers consider that the current Local Law has been effective as it establishes a framework for tree



General issue raised Officer response Local Law has been effective.

The process to make the Local Law should have been informed by whether the current Local Law has been effective - Council has not undertaken an analysis of how effective the Local Law has been.

No information has been provided as to how successful the current Local Law has been, whether decisions have been made consistently or whether there are sufficient resources to administer and enforce the Local Law.

removal (and replacement planting through conditions of permits) and ensures the retention of trees that may have otherwise been removed.


The nature of the planning system means that there is usually a way to justify a tree’s removal.

Trees are assessed differently in the planning scheme, compared to the proposed Local Law. Each application to assess a tree under the proposed Local Law will be assessed on its merits, against the criteria in Clause 12(2) and any assessment guidelines.


The current Local Law does little to deter developers from removing trees illegally.

The proposed Local Law establishes offences. Therefore, Council will be able to take enforcement action for non-compliance. Officers acknowledge that the current financial penalties are insufficient. The issue of insufficient penalties is discussed in the body of the report.




General issue raised Officer response The Local Law should not prioritise tree protection over people’s safety.

While people can admire the beauty of trees, the reality is that in the urban environment they can threaten human safety and property.

Application of the proposed Local Law would not result in prioritising tree protection over people’s safety. All assessments of trees will be undertaken by qualified arborists, including a risk assessment. Application of the proposed Local Law will result in a permit being granted in circumstances where a tree is presenting unreasonable or excessive risks or which is causing unreasonable damage or nuisance.


It is not clear how many trees have been approved for removal to facilitate new development.

There is no information about how many applications for tree removal have been due to proposed developments.

This information is provided in the body of the report. Officers note that approximately four to five per cent of applications are ultimately assessed on the basis that building works are proposed, including the construction or extension of single dwellings. Between 2012 and 2015, between approximately 77 per cent of applications were approved because of the poor condition of the tree.


There are concerns around why the numbers of trees per application has increased over time and why the proportion of permits granted has increased over time.

Council has no control over the number of applications received under the Local Law.


There are no formal mechanisms for monitoring the success of the Local Law or to ensure Council is appropriately resourced to implement it.

The resources set aside to administer and

The operation of the current Local Law has been reviewed in detail by officers, as set out in the body of the report and the report presented to Council on 10 December 2015. Success of the current Local Law should not simply be measured in terms of the number of permits approved compared to the number refused. The current Local Law also acts as a deterrent for tree removal and requires replacement tree planting as conditions of permits issued.



General issue raised Officer response enforce the Local Law should be increased

Officers regularly review resourcing requirements and change resource allocation where necessary. There is no current proposal to increase staffing resources related to the current Local Law or to increase resources as a result of the proposed Local Law. Council increased resources for the enforcement and administration of the current Local Law in early 2015. Officers will continue to monitor whether current resourcing is sufficient, into the future.


What constitutes a canopy tree is ‘limited’ and there is no way to ensure that tree cover in the municipality is increased over time.

Council officers are of the view that the definition of a canopy tree in the Local Law is appropriate, having regard to benchmarking undertaken, the familiarity with the measure after 10 years of operation of the Local Law and the striking of an appropriate balance between property rights and public control.

Officers consider that the most effective way to minimise loss of tree canopy in the municipality is to apply and enforce the proposed Local Law, require replacement tree planting as permit conditions, continue to retain and protect trees through planning applications and continue to manage trees on public land (such as street trees and trees in parkland).


Builders, developments and architects should be encouraged to develop more innovative housing that better responds to climate change and existing vegetation.

This matter is outside the scope of the proposed Local Law. However as noted above, the planning scheme encourages new development to include sustainability measures. Such measures are supported and encouraged by officers. New single dwellings can be constructed or extended without planning approval in most circumstances, requiring only compliance with the building regulations. It is not possible for the proposed Local Law to change the requirements of the planning



General issue raised Officer response scheme or the building regulations for the reasons explained in the body of the report.


There is no information about how successful conditions on permits requiring replacement tree planting nor how this is enforced.

After a replacement tree has been maintained for two years (and before it is large enough to be a canopy tree), there is nothing to stop that tree being removed

Council is responsible for enforcing compliance with permit conditions requiring replacement planting. Audits of replacement planting undertaken in 2015 indicated that replacement planting had been undertaken in most circumstances. Enforcement action was taken in circumstances where the replacement planting had not occurred.

It should be noted that the proposed Local Law seeks to make it an offence to remove trees required to be planted as a condition of a permit. This will improve the operation of the replacement planting regime when compared to the current Local Law.


The definition of a canopy tree does not protect smaller trees which will eventually become canopy trees.

During the drafting of the Local Law, officers considered whether a change to the measurement of a canopy tree was warranted. Having considered all the submissions received, officers remain of the view that the proposed measurement (which is as per the current Local Law) is appropriate and achieves the correct balance. Having regard to benchmarking undertaken with six other metropolitan Councils with similar Local Laws, the fact that the current measurement is well understood over nine years of operation of the current Local Law and maintaining a fair balance between protecting the treed character of the municipality and allowing the removal of smaller trees without a permit, officers consider the current measurement is reasonable.





If replacement tree planting occurs using similar trees, in the future there could be a limited number of different canopy trees throughout the municipality.

In officers’ experience, a variety of trees are chosen for replacement planting. Officers consider that this concern is unfounded.


The criteria for determining what a ‘significant tree’ is should be expanded so that greater protection is afforded to more trees.

As discussed above, best practice suggests using the set criteria under the National Trust Register of Significant Trees. These criteria are considered to be the most appropriate for assessing whether a tree should be listed as ‘significant’.


There is a general lack of awareness in the community regarding the benefits of trees.

Council provides advice to residents about the benefits of trees, including providing information about suitable trees to plant on properties and about promoting biodiversity, through Council’s ‘Backyard Biodiversity’ program. It is not necessary to amend the proposed Local Law to reflect these programs.


In favour of protecting the tree canopy of the municipality.

This submission is noted.


Replacing old and diseased trees should be a priority.

Council is unable to compel landowners to remove old and diseased trees from their property, even if a permit has been issued under the current (or proposed) Local Law. Notwithstanding this, a tree’s age and condition are relevant factors to consider



General issue raised Officer response when undertaking an assessment of a tree’s condition.


The Local Law is reasonable. This submission is noted.


When a dwelling is demolished, all vegetation is cleared from the property and there is less landscaping opportunity around the new development - there should be a balance between people’s rights to build a large house and the importance of trees.

Officers agree that the proposed Local Law and any assessment guidelines need to achieve a balance between these factors. This matter is discussed in the body of the report.


Support Clauses 12(2)(d), (e) and (g). These clauses relate to considering the appropriateness of a tree’s location, health and safety and whether the tree is causing unreasonable property damage.

The submitter’s support for these clauses is noted.


Support the ‘Backyard Biodiversity’ and ‘Living for the Future’ which are managed by Council.

The submitter’s support for these Council programs is noted.


Council should encourage adjoining The submitter’s suggestion is noted, however this is a matter which falls outside the



General issue raised Officer response Councils to also preserve our natural heritage.

scope of the proposed Local Law (which will only apply within Boroondara).


Concerned about the impact of development on retained trees, which often do not survive into the future.

Compared to the current Local Law, the proposed Local Law seeks to make it an offence to undertake works within 2 metres of a canopy tree and to undertake works within the TPZ of a significant tree. This will afford additional protection to both canopy and significant trees as a result of development.

Where trees have been required to be protected as conditions of a Planning Permit, it is officers’ experience that trees are generally satisfactorily protected. In circumstances where trees have not been protected in accordance with a Planning Permit, Council has taken enforcement action.


Removal of native trees is destroying the habitat for native birds and fauna.

Under the criteria in the proposed Local Law, there is no distinction between native trees and exotic trees. The current (and any future) assessment guidelines could require officers to take into account the location of a tree relevant to any biodiversity corridor set out in the Urban Biodiversity Strategy 2013-2023 or later equivalent document. This will ensure that the impact of the removal of a tree from a habitat perspective is considered, where it is most relevant.



Council has, in the past, publicised successful court prosecutions to act as a deterrent.




Council should lobby the Victorian Government to reduce the maximum allowable building envelope for new single dwellings, to increase landscaping opportunity and reduce hard paving.

This is discussed in the body of the report.


The conflict between trees and overhead power lines should be minimised by encouraging government, electricity supply authorities and landowners to relocate electrical cables underground where technically and commercially viable.

This is a matter which falls outside the scope of both the current and proposed Local Law. Clearance of vegetation in proximity to power lines is controlled by specific Victorian Government legislation. Removal and pruning of trees under this legislation cannot be regulated by a Local Law.

Placement of electrical cables underground is a matter for the relevant electricity supply authorities, however Council encourages electricity to be placed underground where viable.


Illegal tree removal is common and landowners are unwilling to nominate trees on their property for the Significant Tree Study because it may devalue the property.

Council is well aware of the issues with illegal tree removal in the municipality. The issue of insufficient financial penalties is discussed in the body of the report.

Officers are unaware of any evidence that people are unwilling to nominate trees for the Significant Tree Study on the basis that it would devalue their property.

Any person can nominate a tree for the Significant Tree Study.




General issue raised Officer response Too much emphasis is placed on the landowner’s right to develop their property - more emphasis should be placed on community’s right to the amenity trees on private property provide.

The issues surrounding achieving an appropriate balance between tree retention and facilitating development are discussed in the body of the report.


Council appears to do nothing to monitor the health and wellbeing of trees on private property.

Monitoring the health and wellbeing of trees on private land is not Council’s responsibility, rather, it is the responsibility of the landowner.


When assessing planning permit applications, Council should prioritise the protection of trees.

Tree retention and protection of trees on development sites is a matter that is considered by Council when assessing planning applications. This is not a matter related to the review of the current Local Law or the proposed Local Law.



Officers propose to amend the proposed Local Law to recognise the environmental benefits of trees in the urban landscape. Notwithstanding this, the environmental benefits of trees should not outweigh health, safety, risk, nuisance and damage considerations. In regards to private property rights, the proposed Local Law seeks a balanced approach to considerations of applications lodged to facilitate development of new single dwellings or extensions.


Thoroughly supports Local Law. This submission is noted.




The priority of protecting, maintaining and replacing trees should be increased.

As discussed in the body of the report, the proposed Local Law (when compared to the current Local Law) contains additional offences which will provide more protection to both canopy and significant trees, as well as trees required to be planted as a condition of a permit.


There does not appear to be a regime for requiring replacement tree planting.

Under the current Local Law, conditions are usually imposed on permits requiring replacement planting. It is not proposed to change this approach under the proposed Local Law.


Street tree selection should not be driven by aesthetics.

The proposed Local Law will apply to private land, not street trees. The selection of street tree species in undertaken by Council’s Parks and Gardens Department.


Planning and building applications should be accompanied by a report detailing all trees on the property and should indicate which trees will need to be removed.

Developers should be required to submit ‘tree planting plans’ to replace trees and

This matter is outside the scope of the proposed Local Law. It is noted that planning applications for multi-dwelling developments in residential zones are submitted with arborist reports, which are assessed by Council’s planning officers and arborist. Applications for building permits are not required to be accompanied by such information because a building permit will be issued if a proposed dwelling meets the building regulations.



General issue raised Officer response such plans should be enforced. Such plans should be approved by qualified Council officers and not outsourced.

As a condition of Planning Permits for multi-dwelling development in residential zones, landscape plans must be submitted and approved by Council before development commences. Such landscape plans normally require canopy trees to be planted throughout the development site. Planting depicted on approved landscape plans must be implemented and Council is able to take enforcement action in circumstances where planting has not been undertaken.


The criteria for applications under the Local Law is vague and will not allow for balanced and transparent decisions, particularly given the criteria state that the matters ‘must be taken into account as appropriate’.

The criteria at Clause 12(2) of the proposed Local Law are intended to be specific and to allow for consistent and transparent decision-making. The matters set out in the criteria (including the words ‘to the extent it considers appropriate’ are generally consistent with the wording of other similar Local Laws in the six benchmarked metropolitan Councils. Council’s lawyers have not raised any concerns with the proposed wording. Officers therefore consider that the concern set out in this submission is unwarranted. It should be noted that assessment guidelines could add guidance to what may be relevant for consideration under each criterion.


Council should be tracking loss of canopy tree cover.

Officers do not consider the absence of a study of canopy tree cover in Boroondara means that the Local Law cannot be effectively reviewed or that the proposed Local Law should not be introduced. Officers are currently investigating methods to undertake studies of changes in canopy tree cover across Boroondara.




General issue raised Officer response The changes to the Local Law ‘do not go far enough’ when compared to the current Local Law.

When compared with the current Local Law, the proposed Local Law includes additional offences which will strength the protection of both canopy and significant trees, as set out in the body of the report. Officers are of the view that the changes are appropriate.


Trees are continuing to be removed - it appears Council will always side with the architect/builder/owner.

Officers do not ‘side’ with architects, builders and owners. Assessments are undertaken independently and on the merits of the application. For example, decision making under the current Local Law and current assessment guidelines is transparent and based on set criteria to ensure consistency. It is not proposed to change this approach.


Trees belong to the whole neighbourhood, not just the owner of the property on which it is located.

As a matter of law, trees belong to the owner of the property on which they are located. However, under the criteria in Clause 12(2) of the proposed Local Law, the effect of a proposed tree removal on the aesthetics of the neighbourhood must be considered. This would include an assessment of the contribution of the tree’s canopy on the streetscape and the treed character of the surrounding area. This must be undertaken as part of the weighing up relevant factors in reaching a decision.


The community should work together to save more trees from removal.






There needs to be recognition that trees cause damage to buildings, roads, sewerage, paving and fences.

Trees that encroach onto another property cause damage and prevent development of that property - in these circumstances landowners should have the right to remove the tree.

The criterion at Clause 12(2)(f) will enable the impacts of any property damage being allegedly caused by a tree to be considered.

While a tree on one property may extend onto another property (and thus impacting on the ability for that part of the property to be developed), it is the intention of the proposed Local Law to regulate works which may impact upon the tree. This is considered to be consistent with community expectations regarding tree protection in the municipality. Landowners will have the ability under the proposed Local Law to make an application to undertake works within the TPZ of a significant tree on an adjoining property or works within 2 metres of a canopy tree on an adjoining property. Each application will be assessed on its merits.


Retention of trees has implications for insurance in the event the tree causes damage or loss.

This is a matter between the landowner and their insurer. It is beyond the scope of the proposed Local Law.


The Local Law should not authorise Council officers to enter private property.

Under the proposed Local Law, officers would only enter private property when:

An application has been made which relates to that property (in which case the landowner would be required to declare that they give permission for a Council officer to enter their property when they make their application); or

An offence under the proposed Local Law has occurred or is likely to occur. In those circumstances, an officer ‘authorised’ under the Act is able to enter the property regardless of whether provisions in a Local Law enable that to occur.



General issue raised Officer response

This is considered appropriate to enable the effective administration of the proposed Local Law.


Council needs to ensure that the Local Law makes sense having regard to the danger that trees in urban environments present.

The criterion at Clause 12(2)(e) will enable health and safety reasons to be considered when making a decision.


There was no involvement with the public in the preparation of the Local Law.

Officers’ review of the current Local Law informed the preparation of the proposed Local Law. This review included consideration of the common issues raised in correspondence received from the community and officers’ own detailed knowledge of the Local Law. The community have had the opportunity to comment on the proposed Local Law as part of the exhibition process.


There was no involvement of technical experts in the preparation of the Local Law.

Technical experts within Council (being Council arborists and town planners) were involved in the preparation of the proposed Local Law. The proposed Local Law has also been reviewed by Council’s lawyers.


Concerns that the data presented in the Council Report of 10 December 2015 is not

The data contained in the report to Council of 10 December 2015 was provided to enable Council and community to understand the operation of the current Local Law.



General issue raised Officer response accurate in regards to tree removal, tree replanting and enforcement action.

The data is taken from Council’s database and is considered to be accurate.


Enforcement of the Local Law has not been sufficient or effective.

It is not agreed that enforcement of the current Local Law has not been sufficient or effective. Decisions regarding enforcement action are required to be made based on the individual circumstances involved, including the ability to gather evidence, as well as any mitigating circumstances.

Compared with the current Local Law, the proposed Local Law includes additional provisions to enable enforcement action to be taken with more certainty. This will improve the operation of the current Local Law.


Council should consider using the Planning and Environment Act 1987 to protect canopy tree cover because greater penalties under that act are available.

This matter is discussed in the body of the report. It is the officers experience that the penalties imposed under the Planning and Environment Act are generally no greater than under the Local Law.


The Local Law is a good start and reasonable under the current circumstances.





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