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Bayswater council overruled in attempt to trade trees for cash

The panel approved the proposal in March, including the condition the developer pay the city the $22,320 compensation it wanted for the loss of its trees, whose value was determined by Helliwell Assessment – the same mechanism the City of Stirling uses in its policy.

The trees were valued at $1400-$6500 individually by the mechanism, which factors in size, age, importance, canopy cover, form and suitability to the setting. The money was to go towards improving the city’s street tree-planting program.

But the developer contested the condition. They argued their legal advice was this was not a “proper planning purpose”, that the trees were in poor condition, and that the trees would get in the way of the visibility of the development’s signage, driveway and entry and exit sightlines.

The City of Bayswater officers disagreed with the developers’ description of the trees, saying they were in good condition. They argued the condition had satisfied the objectives of the town planning scheme and therefore had a “proper planning purpose”.

“The applicants’ design has a negative impact upon land which is not in their ownership or management, with the overall outcome for their own gain,” the officers’ report said.

“It is only reasonable that the city receive remuneration for the loss of its assets.”

And as the canopy thins, the plot thickens.

Questions have arisen over whether the panel has the jurisdiction to approve the removal of these seven trees, which are public property.

At the September meeting that first considered the dispute, former panel member Chris Cornish requested legal advice from the Department of Planning on this point.

The panel deferred its decision ostensibly to obtain this advice and the department told WAtoday legal advice was received in mid-October enabling the JDAP to make its decision.

Despite this, neither the panel’s published reasons for its decision nor the planning department’s response to WAtoday were able to clarify the matter of jurisdiction.

The decision published does not give explicit permission to remove a particular list of trees.

It only removes the compensation, and places a new condition specifying that the developer must retain six of the other trees elsewhere along the verge, as well as plant three new ones.

It refers to the removal of an unspecified other number of trees as a given, saying the visual impact will be minimal. It names the melia and river red gum as the “only potentially significant trees” but that they cannot be retained, and that the loss can be mitigated through new plantings.

It is not yet clear whether the developer will have to make a separate application to the council to remove the trees or whether the matter of compensation could arise again there. The council is seeking further legal advice on this and also on the broader matter of jurisdiction, which could affect many metropolitan JDAP decisions going forward.

Bayswater Mayor Dan Bull said the developer being required to provide new trees and landscaping was not a like-for-like replacement and did not constitute a compensation for the trees as valued.

“If the developer needed to rip up a footpath I am certain JDAP would require the developer to reinstate that footpath to the same specifications and no less,” he said.

“But here, the nature of the replacement trees is smaller and not established – effectively a lower specification.

“This body has decided the fate of a publicly owned asset and the ratepayers have missed out on fair compensation.”

Mr Bull said the policy had previously been applied by Bayswater council officers approving other developments under delegated authority and the developers in these cases had simply coughed up as required without taking issue.

“This is a growing approach to the way in which local governments view trees,” he said.

“JDAP is not responding here to the broader community’s concerns about protecting tree canopy as a publicly owned asset.”

The department said the JDAP’s decision was consistent with the council’s aim to improve tree retention and manage local tree canopy.

Other councils with tree retention policies include the cities of Bunbury, Gosnells, Bassendean, Stirling and Kwinana. The Town of Victoria Park is in consultation phase and links to all those policies can be found on its information page.

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