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To Tree Or Not To Tree - Is That The Question?
When you sit down and chat with Property Developers, it's almost inevitable that the conversation will turn to trees. It seems almost anyone who's developed a few properties has a tree story to tell.

You soon start to understand why the first thing most Developers want to do is clear a site of every single tree, bush and plant, leaving nothing but bare earth.

But is this always the best approach? And is it even allowed?
Let's start at the beginning - tree location. Where the tree is located will actually determine what you can do, even if the tree is not protected. Trees that affect your development site can be in three different locations:

  • your property
  • your neighbour's property
  • the nature strip

The main reason location is so important is because location determines ownership, which in turn may limit your rights in terms of trimming or removing the tree.
If a tree is on your property, then it's your responsibility to maintain and manage it. But before you go rushing out with your chainsaw, it's not that simple. If you want to remove a tree, or potentially even trim it, you have to first find out if the tree is protected - more on that later.

Similarly, if the tree is on your neighbour's property, then it's their responsibility, and all you're allowed to do is trim the portions that actually hang over your side of the fence. You can't trim the tree on their side of the fence. Depending on how close the tree is to the fence, be aware that if you trim a lot of the tree on your side it may become top heavy and potentially unstable or structurally weakened. So make sure you're not endangering the tree.

And if it's on the nature strip, then it is completely Council owned and protected. So, don't touch it! (more on this later though…)

Is It Protected?

Every Council around Australia has its own set of rules when it comes to protecting trees, including the terminology they use. So I'm going to give you a generic overview of the types of protection to look for in your local Council's rules. It's up to you to put on your detective hat and find the local variation!

Zoning

If you're working on the fringes of a city, you'll come across emerging community or future urban zoning. There are plenty of other names for it, but essentially it's an area that is currently not populated, but it's anticipated that the city will grow in that direction soon. Given that these areas generally have lots of trees, the last thing Council wants is for a developer to turn up and cut them all down - they want a green buffer zone around the existing city. This type of zoning usually requires you to produce a report on all of the existing trees on the property, indicating size, age, significance and more.
Overlays

An overlay sits over the top of an area and any property that falls within the overlay has to comply with its requirements. Some of the toughest overlays in the area of trees have names like significant landscape overlay or environmental significance overlay. These are likely to be stringent about retaining trees on your site, so should be studied carefully to see what impact they have on your development.

Other types of overlays that frequently refer to vegetation and what can or can't be done with it include:

  • wetlands overlay
  • waterways / waterways corridor overlay
  • bushfire protection overlay 
  • heritage overlay (general area or property specific)
As a minimum you will usually need to produce a report for Council about the vegetation on your property, and in some cases the overlay may make it extremely difficult for you to do anything at all in terms of trimming or removing trees.

Sometimes Councils may want to maintain pockets of vegetation to allow fauna to move between bushland areas. These are aspirational overlays, and Council won't allow you to build there, even if there are no trees right now, as they want to establish the connecting bushland areas and need that land to do it. Be very careful of that type of aspirational overlay.

Vegetation Protection Order

Generally a vegetation protection order has come about because somebody within the community has nominated that tree to be of significance in some way, and a Council inspection has confirmed that. Your chances of removing it are almost zero. Councils sometimes also have a non-public record of trees they wish to protect. So although public searches might leave you thinking you're not going to have any issues, it's always best to contact Council and ask, just in case any trees on your property are on their non-public list. They will usually get back to you with an answer within a week, but if a site inspection is required, this can blow out to three or four weeks..

Most of the time protection is only for native trees, and Council won't try to protect non-natives. However they have been known to protect very large trees, as they may feel it's going to assist the flora and fauna of the area, even if it's not native.

The other area that's protected is the root ball or zone. Generally, the root zone extends as far out from the trunk as the canopy of the tree. So although you may be able to trim a tree in such a way as to allow a driveway underneath it, for example, Council may argue that a concrete driveway will reduce the amount of rainwater reaching the roots, or traffic may compact soil and damage roots, and force you to take preventative measures.

If the answer from Council is there's no protection, you can generally trim or remove the tree, although check to make sure they don't have any general rules around tree maintenance and removal. If it's a yes, then a permit will be involved.

Development Condition

When you lodge a development application, Council generally reviews all the vegetation on site to determine if there's something that's not currently protected which they might want to protect for the future. So if there's a tree slap bang in the middle of where you want to build, it's a good idea to deal with it prior to lodging your application, in case that triggers a review.

Different Types of Permits

If the tree is on your property, you will most likely need a one-off/short term permit. It allows you to remove loose or unhealthy branches from the tree. Alternatively, if a tree constantly drops branches, you may be able to get a permit for long term work, which allows you to trim the tree on a regular basis.

When the tree is in your yard and protected by an overlay, you will need an arborist who can assess the tree's health, whether it's native to the area, size, age and significance. Arborists can be developer friendly or hostile, so shop around. They need to be qualified and generally also need to be certified with the local Council or relevant state body.

For trees on Council property, you can apply to Council to have the tree trimmed or removed. Council will usually do the work, and most likely charge you for it, although there are sometimes exceptions, such as for brittle or straggly branches, and branches that interfere with power lines. But trimming a Council tree to install a driveway will generally incur a charge, and if a tree is removed, they will also often charge you to reinstall a tree in another location.

What's the Process For Removing a Tree?

First up, ask yourself whether you really have to remove the tree. While it might be simpler to have a clear site, people love trees, and if it's possible to retain a couple on site where they won't interfere with your development, it can actually be a bonus when the time comes to sell.

Next, do your research, and not just online - contact the Council as well, in case the tree is on any non-public protection lists.
If the tree really has to go, and you have the ability to remove it right now, then do it right NOW. Plenty of the tree stories I mentioned earlier are around the frustration of thinking the Developer was okay to remove trees, only to have the Council review the trees on site at the time of the development application and suddenly protect some of them.

And remember, if you remove a tree without permission, you will undoubtedly get fined, and some fines are quite substantial, let alone adding in any legal or restitution costs. Councils are getting more sophisticated when it comes to monitoring trees - many have maps of sensitive areas with every existing tree noted, along with satellite imagery allowing them to estimate when a tree was removed.

So don't be a developer with a tree story! Do your due diligence, follow the rules and Council will ‘leaf’ you alone.
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