What chance do I have of convince council to allow me to remove a tree?

redg

Hi All,

I'm hoping some kind soul can give me some advice?

We have put in an application to demolish an existing 1960's house and build a new one in it's place. It's in the Boroondara council region and under a heritage overlay. There are no special tree controls, other than standard, for the overlay. There are 3 canopy trees on the block, and we have requested to remove all 3. One is dying and we can remove it. The second we could probably live with, even though it would take up pretty much the entire back yard and wreck the entire landscape plan (which includes 6 trees). The third is the problem, as it currently sits in the middle of our planned living room. The preliminary assessment has come back saying we can't get rid of the second or the third tree and the council Arborist has says we can redesign around it. The problem is that this isn't actually possible. The TPZ of the third tree would force us to build against the fence line, which would not be permitted due to the overshadowing it would create. So the only redesign is we lose 32-36m2 of house. (32 if you take 10x DBH, 36 if you take 12x DBH). If we lose this much then we lose 1-2 rooms and we simply won't build. Going two storeys might be possible, but health reasons make that impractical.

I'm hoping someone here had an idea about how much luck I will have trying to convince council to change their mind? Both trees are only visible from one neighbour's property and from the opposite side of the road. Once we rebuild, they visible only to the neighbour, as our house would be closer to the front of the property and higher. The tree is identified as Pyrys sp, Pear (Species uncertain). Exotic (Not native?), 9m high, 8m wide, TPZ 4.8, health fair, structure fair-poor. (From the Arborist we paid). The council has not seen our Arborist's report, as it was submitted late, but I get the impression that the assessment was simply a matter of the council deciding hey it's a tree it looks healthy therefore it stays. Do I have any chance of convincing them to change their mind? If I take it to VCAT, would I have any better luck?

Any comments/advice appreciated.

Darrell Mcleod

It is impossible to answer your questions fully or quickly without looking at your property, the tree and understanding the tree protection laws etc relating to it as it is if you can understand what I mean

I understand them but have not seen your tree or property

Getting council to change their mind – probably not, VCAT maybe – really it all depends on the ‘quality’ of the tree and delving into what the real controls imply or mean

Is your arborist experienced with you could call ‘heavy duty planning issues’?

I have done quite a lot this sort of work – it takes time to investigate, establish and then advise.

Sorry immediately I cannot be more helpful.

redg

Thanks Darrell,

My Arborist isn't currently responding to emails or calls, so I assume she is away on leave, like most of Australia is right now. I don't know her experience in these matters, as I just chose someone out of the yellow pages to prepare the necessary report.

George Valentine

Hi Darrell,

I feel for you mate, I can understand the frustration you "may", oh hell, is no maybe here, is a sure thing so, your frustration is perfectly understood...!

I'm not in the position to be a direct help to you but I may be, indirectly and what I mean is, I may give you some advice that can all of a certain change the direction of things.

I will start by calling your attention that, in the world of "greenies" you will find them in 3 typical places, working for councils, working privately, or hugging, hanging (well, I wish, I meant playing monkey games) from trees.

There is no better place of power and disturbance for these people them becoming arborists for the solo purpose to impose their believes and make trouble, on the other hand, council feel a lot more "protected" by having these type of mentality behind the arborist or inspector positions. If they can't find a job/position in the council or other government departments, they will work privately and get their "customers/victims" that way as 99% of people that needs an arborist, do so in identical situations as yours. The tree monkeys go, were these people working inside the system, tell them to, after all, they are there to know who wants trees cut...!

Now, and regardless of how much as I try to add a little of humour into the issue, make no mistake, I see these things very seriously, and someone has to bring these "rats" out of hiding...!

If I would be in need of an arborist to deal with any tree issues, picking one out of the yellow pages, more often than not, will take you to directly to these greenies in disguise, as you wont find them working on trees, I'm yet to find a woman arborist that actually knows and does tree work as part of the absolutely necessary knowledge and experience on tree issues, desk arborists only, to me, don't worth much, period...!

Arm yourself with the best "true" arborist you can afford, by speaking to people that had some proper tree work done in your area or further away, there are many of these Arborists out there, if you look right, in here I know a couple so, they may be willing to give you a more direct help/assistance.

Good luck...!

Disclaimer: Any or all my comments are not of prejudiced and or offensive intent, I'm all for equal rights, my wife worked by my side, and still does when necessary, in any stages of my tree work, regardless...!

Cheers
George

Darrell Mcleod

Hi redg

When you engaged your arborist did you let her know that tree was where you wished to build your new home?

D

nyodine,

Sometimes these matters are only administered by councils and in reality state government may be in control - many do not understand this

recently as an example a council was requesting 80% native plants endemic to that area be used for a unit development I was doing the landscape design for but there were no landscape or vegetation overlays over that property

I went through the correct channels within state government planning armed myself with what I had to be armed with, challenged council and their position was quashed immediately - I mean right then on the phone with an email to me within half an hour as they were wrong

Sorry mate but some of your comments may be a little misleading

In other words -in law a council is only allowed to do what a council is allowed to do under the planning schemes etc that apply

This is an over simplification of course but this is exactly what needs to be discovered and of course it relates also to the quality of the tree its type etc etc

redg

Appreciate the response George. I will reserve my judgment on this lady until I've spoken to her. She had a copy of the plans and was well aware that one tree is currently sitting where my kitchen table is. She mentioned it was not possible to keep the tree in the context of the development. If she does turn out to be a greeny, I will look elsewhere.

I'm steeling myself for a long battle. I only wish I had not found this out on the 23rd of December so it didn't destroy my enjoyment of Christmas. Especially with no-one in council available to talk to. My (unhelpful) Architect on leave and the (hopefully helpful) Arborist on leave too.

George Valentine

Darrel,

Is not a great difference in between "over simplification" and "under simplification" in fact, there will be always exceptions to the rule, and that is just part of life but, what I was trying to say is that, being "well" prepared before confronting the council or any authorities for this matter, not only can give you an immediate outcome, but it will certainly void "stirring the bees" (and I could use here more colourful words...!) before you have time to put a proper protection vest.

There is nothing that annoys councils more than, having to back-up/change their initial decision as a result a well presented case...!

I don't know the details of your case, so I can not make any judgements but, I can see how you are feeling after you hit your head against a brick wall. The question I make is this, is this brick wall there to protect the environment or is there to protect the interests of some...???

I can not understand why, we have so many different ways, some even contradictory, to address the trees issues. Sure, Australia is a big place with a significant variation in environmental situations but, looking deeply into these tree issues, I get blown away by the ridiculous, unnecessary and totally irresponsible, approaches some councils have, on their own turf, as like, environmental and trees issues have a completely different definition and interpretation, depending on where you are, when in reality, and taking into consideration some aspects that slightly vary, between extreme locations, should never be deterrents, to apply common sense in the true meaning of the word.

When we have people in these councils with contradictory rules, attitudes and methodologies, over the same tree issue, I car hardly believe/accept that all have the environment in mind as a priority, would you...???

I'm sorry that I can't be of any help on your recent situation...!

Cheers
George

George Valentine

redg,

Absolutely, you should reserve your judgment based upon the way your issue is dealt with, and not on what I or anyone else may say, however, my intention was purely to advise you, of the risks of getting the wrong arborist in the first place, for the reasons I explained.

While getting bad news around this time of the year, is never pleasant, I doubt that you didn't know that, from the moment "a tree" and building plan of any nature get "crossed" on the same portion of dirt, that you wouldn't have a fight on your hands, particularly if where you want to built, is part of one of "those" councils...! This is a time of the year were one should void to try to get things done, is just ain't happen, sorry...!

So, the smell is going to be always there, it all depends of how deep you have to get into "it" to clean it up...! (sort of speak...!)

Cheers
George

Darrell Mcleod

George,

I edited my previous post for clarification so please read this again
The underlined bit is important – I did not hit my head up against a brick wall at all; rather I discovered in law what the council could request or not request – that is the issue and explained that to them and of course they had to change their tune

I reiterate - had to – that is it - kaput, finalised, finished and all over.

One of the planning officers carried on a bit and I explained to her she must learn to do her job properly and not do this to people in the future

In the case of redg’s tree it will be no different – either the tree will have to stay for reasons or it will be allowed to be removed

I think prior to getting to this point a building designer or architect must establish these sorts of tree issues

I regularly see cases where that has not been done properly and the shite really hits the fan sometimes and can cost 1000s and I am not saying that is what is going on here - I have not seen this tree and maybe it can go – who knows right now but consider these sorts of situations

Adelaide Court Judgement

The law is the law and in my view it does not matter ‘how good’ an arborist is

Question is – is she right?

The perception of councils at least here in Victoria being a law unto themselves in my view is mostly a fantasy and who cares if they must back up and change their original position – I do not – council officers must do their jobs properly – that is what they are paid for

The law is the law is controls, is planning schemes etc – that is it - understand them and you know what you can do and not do

George Valentine

Darrel,

Thank you for clarifying that for me as what I've read the first time around, I interpreted totally the opposite way, and you have notice that so thanks.

In fact, that does validate even more, what I said initially about the importance of doing your home work properly before approaching councils with these type of issues. There are a number of avenues public/private individuals have on their disposal to acquire the correct information, that can take a little time and expense but, well worth it in many cases...!

Yes, you're right, the law is the law, and the world would be a very bad place without laws, that is not my problem, my problem is, as I mention previously, the way people in authoritarian positions, particular councils, bend/manipulate those same laws to suit their own interests and ego's, enforcing then to the public, not what the law says but what they want it to say, their own interpretation and this where I get frustrated, as I also mention previously, of the many different ways I see that same laws applied and enforced upon all of us, depending of where you are, wasn't it suppose to be then same everywhere...???

Wasn't it suppose to be based on the best interest of the public safety and well-being, instead of persistently defending and carry on, on the exact same mistakes of those responsible then, from at least 50 to 100 years back in time, of the poor or lack of understanding on urbanization and environmental issues...??? why would be so "devastating" as some claim, to once and for all, recognise wrong trees were planted, trees were planted in wrong places, and large trees are not ideal to an urban environment, regardless who or when they were put there.

Worse again, when trees were planted in council land, or trees existed already in council land, never be built on, and all of a certain, the greed to money making, and or the pure necessity to expand, resulted in thousands of land blocks being sold for urban construction, where half of then never were suppose to be allowed, however, the money entering to the council pockets, has all of a certain, put people in positions where council trees, were not suppose to be there in the first place.

Now, off-course councils know that land sold and approved for building, have these nonsense trees creating all sorts of problems, that they have created for the new owners in the first place so, instead of facilitating those that are not prepare to built their houses under large trees (always the damn Gums) or live under them and living in fear, while the council experts, are living in their houses with no trees around or at least no large tree that could reach their homes, have you notice that...! smart dudes...!

This remind's me of a recent post here, where someone wanted to built a house extension but a very large branch from one of their large trees was just over to where they wanted to built so, they applied for a permit to remove the tree, but and according to what was said here, the council lady arborist, had no hesitation in declare the tree healthy and non hazardous but, at the location, when the land owner insinuated that they may have to built under the large branch, the lady arborist was also very quick replying that, that would be too dangerous, while looking up to the branch...! so...! what would it be...???

Well, I'm sorry for my long post, as normal, but I'm pleased that you had a successful result, contrary to what I though, previously...!

Well done.

Cheers
George

redg

The answer to that depends on the context. If the context is not redesigning the house, then the tree can not remain. I assume that is the context she was using for her report.

If the context is can the house be redesigned to keep the tree. The answer is then a matter of opinion. If we're made to use 12x DBH then the only way for the tree to remain is we lose a room. If we can use 10x DBH, AND we're permitted to build a veranda within this TPZ, then with much smaller rooms, the house can be redesigned. If the veranda is not permitted, then there is no acceptable redesign.

We will be spending a heap of money building this house just to meet heritage guidelines (e.g. matching Welsh slate with the neighbouring house, 11 or 12ft ceilings to match height). The wife believes, and I agree, that there is no point in spending a heap of money on a severely compromised design.

It's my fault for sure, for not knowing the tree would be an issue beforehand. I expected difficulties from the heritage overlay with respect to look, garage location, but the tree looked pretty ugly, not overly big and not native, so figured it would not be an issue. The council's response to actual heritage issues had actually been pretty minor in comparison to the tree - remove some detail, match the slate, change the render colour.

Also bear in mind the block is only 480m2 and only 12m wide, so a tree smack bang in the middle of the back yard is pretty much impossible to build around.

Anyway, I think I'm just venting now.

Appreciate the response's people.

redg

OK, apologies for stupidity I read the FAQ

Here is the tree that would be in my living room



Here is tree on the rear fence line that looks like it will fall to me

Brent Ferris

As Darrell says, it is always a lot easier to get the councils/governing body to see things your way, if you have all the facts right and go by what the law says. After all, the laws were created to set standards that work to preserve trees whilst we build around them. Laws can be interpreted different ways, but the basic premise remains. And it is there to protect both sides. It may well be time to find another arborist based on what you want, rather than just someone to do a report.

As far as your professionals being on leave, it is a moot point -- I am sure the council people are also on leave. Set the irritating parts of the problem aside, enjoy the time off, and peruse the problem objectively - you may see a solution that was not obvious before.

As far as the tree in the middle of the house, could you consider a courtyard in the house's centre, with structural additions so if/when the tree dies the area could be reclaimed?

__________________
My business: Tree Pruning and Removals -- Strump Removals -- Advice -- Consulting -- Arborist Reports
If you want an honest opinion, call Brent Ferris...because, Trees want to Live Too !
We do great jobs, even in small yards.

Free Estimates Oakville to Oshawa - North to Bradford (Will travel further if cost of travelling covered)

Darrell Mcleod

Be good if you could get some better pics of your 'living room' tree - trunk and branch structure - take a few so we can see it clearly including close up leaf shot to identify correctly

can you see any decay, cracks etc?

redg

The house is currently rented out, so unfortunately I can't easily get in there to take pictures. To be honest, I never looked closely at it. Wish I had of now.

Brent Ferris

Can you not knock at the door, and ask to see the trees, that you hope to buy the lot and want to see what you are getting into? Most people respond well to humble requests.

__________________
My business: Tree Pruning and Removals -- Strump Removals -- Advice -- Consulting -- Arborist Reports
If you want an honest opinion, call Brent Ferris...because, Trees want to Live Too !
We do great jobs, even in small yards.

Free Estimates Oakville to Oshawa - North to Bradford (Will travel further if cost of travelling covered)

Eric Frei

Seems the tenancies law in Vic is tough ..... but as you do not need to go inside the dwelling access without the tenant present should be OK (hopefully no locked gates).

Source: http://www.consumer.vic.gov.au/CA256...ngComplete.pdf

__________________

Paul Toivonen

Well you could design and build your house around the trees.
Then, after they die from the root damage/compaction/soil contamination, have them removed.
Quite a normal process around here.
An enclosed courtyard with a tree in the middle of the house is called an "Atrium"

redg

Building around the tree is not feasible. The TPZ is 4.8m, the block is 12.5m wide at that point. The tree is 4.6m from the east fence, so no space there. It is 7.9m from the west fence. I can't build to the boundary at that point, so need 1.25m setback to meet building regulations (1m clear of gutters above windows) and allow for the fence angling inwards towards the house, so there is 1.85m left for a "room" at that point. Allow 0.5m for walls, and there's 1.35m internal space for the "room". Not sure what others think, but this is not worth using as part of the house. Once you get past this tree, there is another tree with a 5.3m TPZ 0.5m to the west, so it's not like I could have an undercover "walkway" to another room.

I suppose I could not build with a slab, and have some root friendly footings, but then I have a large'ish tree blocking all northern light to the living areas, shading the solar hot water system and panels, dropping leaves, acting as a launching platform for possums to jump on the roof, acting as a fire hazard .... And all for a ... pear tree, and one that will be replaced my 4 other trees. They're not overly attractive, native, rare, protected or even visible to anyone but myself. Go to an orchard and there are thousands of them. Only reason it's an issue, is that is meets some arbitrary definition of a "canopy" tree.

Anyway, I finally contacted my arborist and she is on maternity leave for the rest of the year. Going well already hey! Still trying to get time with her colleague. The architect is organising a meeting with the council to see if we can negotiate.

Paul Toivonen

You need to go see them with your proposal and plans.
There really should not be any problems, unless the trees are listed.

Eric Frei

Neither have we, so why with-hold when you are looking for help?

__________________

TrevMcRev

regd,

I have found boroondara pretty reasonable to deal with over the years. If you are dealing with Carl he is a good arborist & pretty fair in the decisions i've been a part of.

The (assumed) extract from the arborist report doesn't paint an overwhelmingly great picture, one that i don't think should be a constraint to an otherwise well thought out building plan (assumed) that they are otherwise satisfied with. I don't see mention of the trees age...although it is "only" a Pear, it may make a difference if it were a heritage tree in an area with a heritage overlay.

Otherwise, i think once they get the information, provided it is credible, you stand a reasonable chance of getting a favourable outcome.

Darrell Mcleod

Totally agree

It is naive to suggest just because a development is proposed a tree will get the choppo

I have tried to point out through this thread we must understand the planning rules, the tree in context etc etc

Trev is correct; Carl from Boroondarra is a nice guy but can only work within the rules

An arborist experienced in these sorts of issues should have been consulted prior to plans being drawn up and my view is an architect or building designer should know that

Who knows without understanding all of the details what will happen with this but can I say?

That is what a consulting arborist; perhaps architect or building designer experienced in these sorts of issue gets paid for in part

Another part may be – how good is the tree, could it be replaced, if good could it even be transplanted etc etc etc

redg

I accept the criticism about an Arborist should have been consulted before the design was started. I didn't know better and the Architect believed there would be no issue with the tree. To be honest I never looked closely at it. We brought the place 4 1/2 years ago and maybe it grew a lot since then, but I don't remember it being as "big" as it is now. In hindsight a lot of things were done wrong and in the wrong order, and had we known what we know now, we would not have spent all the money that we have. The problem is the money is spent and shrinking the design (any further than it already is) is not an option. Believe me, I've tried - double storey not an option due to health and heritage constraints, underground not an option due to same reasons and cost, designing around the tree we lose one room and what we have left doesn't fit in the space. If the tree remains we can't proceed, we sell up, and take a big financial hit. Moving on ...

Here are the relevant pieces from the report:

"3 trees have been provisionally assessed “Retain or Remove”. These include the large, mature Pyrus sp., and maturing Jacaranda mimosifolia and Schinus areira. Whilst offering some amenity to the site, these trees are not of such a high aesthetic, environmental or heritage significance as to necessitate retention within the site."

...

"Of the three site trees assessed as ‘Retain or remove’, Tree 3, Pyrus sp. cannot be retained in the context of the proposed development. Tree 4, Jacaranda mimosifolia and Tree 5, Schinus areira could both be retained, however the existing Preliminary Landscape Plan shows both of these trees as being removed and replaced by a Lagerstroemia indica × L. fauriei Natchez’. Removal of Tree 5 would be subject to a permit for removal under the City of Boroondara Tree Protection Local Law."

...

"Tree 3– Pyrus sp, Pear (Species uncertain)
Origin: Exotic Type: Deciduous Broadleaf Age: Mature
DBH: 24.5, 32cm Height: 9m Width: 8m TPZ: 4.8
Crown class: Symmetrical
Health: Fair
Structure: Fair-Poor
SULE: 10-20 years
Amenity value: Medium
Comments: Codominant from 1.2m with multiple attachments on western scaffold. Epicormic shoots at base and up trunk. Branches pruned on southern side. Possum guards in place."

We have a meeting next week with Carl and the Town Planner.

Darrell Mcleod

Go here

Property Reports - Search by Address

put in the address

Will tell you what planning overlays you are dealing with

Ring Boroondarah – ask them if this is all that applies – if not FIND OUT exactly what else although what you find from the web should be it

You know then exactly what you are dealing with

Arguably your architect or arborist could have found this out prior to anything being done

Probably you could call this ‘planning for development’

In my experience this happens all the time

Maybe; maybe not depending on the above etc etc

Send me a pm if you want to

Brent Ferris

I don't know what it is like in your part of the world Darrell, but here I generally find the arborist is about the last person to be consulted, more as an afterthought or on request by the government body,
They should be one of the first, because -- at least where trees are concerned -- we could save the owner a lot of heartache, or at least bump up their awareness before they get into great plans.

I presume redg installing an elevator for a 2 storey house (or 2 storey plus basement) is prohibitively expensive.

__________________
My business: Tree Pruning and Removals -- Strump Removals -- Advice -- Consulting -- Arborist Reports
If you want an honest opinion, call Brent Ferris...because, Trees want to Live Too !
We do great jobs, even in small yards.

Free Estimates Oakville to Oshawa - North to Bradford (Will travel further if cost of travelling covered)

redg

Double storey is not a practical option for reasons other than health. There is a heritage overlay on the property which places restrictions on a second storey. They are not allowed to be visible when viewed from the footpath on the other side of the road. This means it can't start until 18-20m from the front of the block. Couple that with a shallow block and the location of the tree and we're limited to a depth of 7.5m. Side setback restrictions limit it to 8m wide. Take away external walls and you're down to 7mx7.5m. You need a stairwell somewhere and a toilet at a minimum, also a bathroom if there is going to be bedrooms. Take internal walls in to consideration and the need to match the stairwell with a convenient location on the ground floor and you're left with an impossible layout challenge. On top of this windows facing neighbours house, or with a view of the backyard, have to have ugly frosting to 1.7m from the ground for the off chance I'm actually interested in perving at them. Then we have the neighbours lodging formal objections because no-one wants a two storey house built next to them. Another issue is it makes sense to have the second storey walls directly over the ground walls, so then your bottom floor shrinks. Not a strict requirement, but it saves money and looks better than having a 1m pitched roof and then the second storey walls. So basically were we all healthy enough to navigate stairs there'd be no advantage gained from going to two storeys.

Believe me I've spent countless sleepless nights trying to come up with a design that we can live with. All I get is constant yawning at work

Brent Ferris

So a double storey is an option if you burrow into the ground with a high basement?

__________________
My business: Tree Pruning and Removals -- Strump Removals -- Advice -- Consulting -- Arborist Reports
If you want an honest opinion, call Brent Ferris...because, Trees want to Live Too !
We do great jobs, even in small yards.

Free Estimates Oakville to Oshawa - North to Bradford (Will travel further if cost of travelling covered)

redg

Have thought about that too. Keep the top storey at normal ground level, and then you need at least 10m for the driveway ramp. This pushes the house back 6m which means we lose space there. Other issue is the heritage overlay discourages this.

If you build the top storey up a bit, so half the bottom underground, then the wall height measured from natural ground level is higher, and you need a greater side setback. Again the council comes in and says that's against the heritage guidelines. Nice idea though, as I had thought of underground, but not of partially underground.

My problem is anything you'd think of doing to work around the tree goes against the heritage guidelines. The house next door is state heritage listed, which means I can not build anything that would lessen the signficance/impact that house has on the streetscape. Double storey, fences on his boundary, underground all make our house stand out more. Basically the council want new houses in heritage areas to be anonymous ... Yet they still want the tree? Go figure on that one? Would have thought, no tree less reason to look at the house.

redg

Well I'm a happy man. We had the meeting with council arborist and town planner, showed him the options I'd explored and he agreed that the Pear tree could not remain. The peppercorn on the fence has to stay, but at least I don't have to redesign around the tree - just put up with excessive shading. Good result.

Thanks everyone.