NEE and TOWN OF BASSENDEAN [2026] WASAT 66

[2026] WASAT 66 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : NEE and TOWN OF BASSENDEAN [2026] WASAT 66 MEMBER : MR R POVEY, MEMBER HEARD : 17 MARCH 2026 DELIVERED : 4 JUNE 2026 FILE NO/S : DR 157 of 2025 BETWEEN : KEVIN NEE Applicant AND TOWN OF BASSENDEAN Respondent Catchwords: Town planning - Development application - Proposed removal of a tree - Amenity - Safety - Subdivision potential - Development potential Legislation: Fire and Emergency Services Act 1998 (WA) Metropolitan Region Scheme Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 67(2), cl 67(2)(fa), cl 67(2)(g), cl 67(2)(m), cl 67(2)(n), cl 67(2)(o), cl 67(2)(p), cl 67(2)(r), cl 67(2)(y) Planning and Development Act 2005 (WA), s 4, s 214(2), s 252(1) -- 1 of 39 -- [2026] WASAT 66 Page 2 Residential Design Codes Volume 1 State Administrative Tribunal Act 2004 (WA), s 27(2) State Administrative Tribunal Rules 2004 (WA), r 10 Town of Bassendean Local Planning Scheme No 11, Sch 1, cl 6B Town of Bassendean Local Planning Strategy, Table 1 Town of Cambridge Local Planning Scheme No 1 Result: The application for review is dismissed The decision of the respondent is affirmed Category: B Representation: Counsel: Applicant : In Person Respondent : Mr A Snadden, (acting as Agent) Solicitors: Applicant : N/A Respondent : N/A Case(s) referred to in decision(s): Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 Zorzi and Town of Cambridge [2025] WASAT 77 -- 2 of 39 -- [2026] WASAT 66 Page 3 REASONS FOR DECISION OF THE TRIBUNAL: Introduction 1 Mr Kevin Nee seeks approval to remove a large, mature, Rose Gum (Eucalyptus grandis) (the tree or Rose Gum) from the backyard of his property at No 43 (Lot 11) Geraldine Street, Bassendean (subject site). 2 On 26 August 2025, the Town of Bassendean (Town or respondent) refused to grant such approval. 3 Mr Nee seeks review of that decision, pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act). The review is conducted by the Tribunal by way of a hearing de novo for the purpose of producing the correct and preferable decision based on the information and evidence before me at the time of the review. 4 For the reasons given below, I have determined that, in the exercise of discretion, the 'correct and preferable decision', under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), is to dismiss the application for review and affirm the decision of the Town. The subject site and the tree 5 The subject site, I find: (a) is zoned 'Urban' under the Metropolitan Region Scheme (MRS) and 'Residential' under the Town of Bassendean Local Planning Scheme No 11 (LPS 11) with a density code of R20; (b) has an area of 975m2 and is rectangular, being 23.7 metres wide (frontage) and 41.16 metres deep; (c) contains a one bedroom, one bathroom, single house which is an asbestos clad building, constructed circa 1935, and a small outbuilding, both centrally located on the subject site; (d) is not a heritage place or within a heritage area or on a State or Local heritage register, list or survey; (e) is not within a bushfire prone area declared under the Fire and Emergency Services Act 1998 (WA); and (f) contains the tree in the backyard. 6 The tree, I find: -- 3 of 39 -- [2026] WASAT 66 Page 4 (a) is a mature Rose Gum which is estimated to be up to 26 metres high, with a canopy spread of up to 18 metres and a trunk circumference of 97.7 centimetres, measured at breast height; (b) is located 2.4 metres from the eastern (rear) lot boundary and 4.8 metres from the northern (side) boundary; (c) has a structural root zone (SRZ) of up to 3.97 metres (radiating from the trunk) and a tree protection zone (TPZ) of up to 11.72 metres (radiating from the trunk); (d) is visible from Geraldine Street; (e) cannot be transplanted due to its size and species; (f) is not a declared weed species or listed as an unwanted species on the Town of Bassendean: Unwanted Species List (USL); and (g) is not listed on a Significant Tree Register established in accordance with cl 6B (Sch 1) of LPS 11. The locality 7 It is uncontroversial that the subject site is within a residential locality and that Geraldine Street has houses that face the street in a traditional way, typically with front and rear yards. 8 The tree, which sits in the backyard, but because of its height, is visible from Geraldine Street when in front of the subject site.1 Two other large trees are located on adjoining land to the south, at No 45 Geraldine Street (No 45), in close proximity to the southern boundary of the subject site. Both these trees are mature trees of significant height, one is also a Rose Gum, with an estimated height of 29 metres and the other a Spotted Gum, with an estimated height of 17 metres.2 Other trees are present in the locality, including at No 39 Geraldine Street and at No 52 and No 54 Eileen Street.3 Background 9 Prior to the commencement of this proceeding, on 3 April 2025, Mr Nee lodged an application for subdivision of the subject site with the Western Australian Planning Commission (WAPC) to create a survey 1 ts 10, 17 March 2026. 2 Supplementary Witness Statement of Mark Short, Exhibit 10, pages 14 - 15. 3 Witness Statement of Mark Short, Exhibit 9, page 3. Eileen Street is the next street east of Geraldine Street. -- 4 of 39 -- [2026] WASAT 66 Page 5 strata subdivision with two proposed lots, in a battleaxe configuration (proposed subdivision).4 10 Mr Nee, although self-represented in this proceeding, is not unfamiliar with subdivision and development processes, as he is 'the director of a subdivision-licenced surveying company'.5 Notwithstanding this, Mr Nee in his written and oral submissions refers to the proposed subdivision as 'approved'.6 This is wrong. There was no evidence placed before me of any approval granted by the WAPC for the proposed subdivision. The Town also confirmed that the proposed subdivision has not been determined by the WAPC.7 At the hearing, Mr Nee conceded the proposed subdivision has not, in fact, been approved, but is awaiting determination by the WAPC and it is not before the Tribunal.8 11 Mr Nee also expresses an intention to retain the existing dwelling and to develop a new dwelling at the rear of the subject site. He provides a plan with an indicative design for a new two storey dwelling (indicative floor plan).9 However, no development application has been lodged with the Town seeking approval for a new dwelling at the rear of the subject site. 12 On 14 April 2025, works commenced at the subject site to remove the tree resulting in approximately 25% of the tree's canopy being removed. Once Mr Nee was notified by the Town that it is not permitted to remove the tree, without first obtaining development approval, the works stopped immediately.10 13 On 12 May 2025, Mr Nee made application to the Town seeking approval to remove the tree. It was supported by a 'Preliminary Aboricultural Report' prepared by Mr Phillip Matthews of Arborology WA.11 14 The Town, as part of its assessment of the application, engaged Mr Mark Short, a consulting arborist of Westworks Consultancy, to 'verify information' provided in the Arborology report.12 Mr Short 4 Respondent's s 24 Bundle of Documents, Exhibit 3, pages 147 - 153. 5 Applicant's SIFC - Part 1, Exhibit 5.1, page 9. Pages unnumbered. 6 ts 14 and 48, 17 March 2026, and Applicant's SIFC - Part 2, Exhibit 5.2, page 2. Pages unnumbered. 7 ts 13, 17 March 2026 and Respondent's SIFC, Exhibit 2, para 2. 8 ts 15, 17 March 2026. 9 Applicant's Bundle of Documents, Exhibit 6, page 47. 10 Respondent's SIFC, Exhibit 2, para 18. 11 At the hearing this was accepted as a Supplementary Witness Statement of Phillip Matthews, Exhibit 8. 12 Exhibit 8, page 2. -- 5 of 39 -- [2026] WASAT 66 Page 6 completed his 'Tree Retention Survey' report on 14 July 2025 and provided it to the Town.13 15 Then, as mentioned, on 26 August 2025, the Town refused to grant approval to remove the tree. It did so for five reasons:14 1. The tree contributes positively to the character, amenity and sense of place of the locality. 2. The proposal is inconsistent with objective 3 (c) of the Town of Bassendean Local Planning Policy No. 13 - Tree Retention and Provision, as it does not prioritise protection of trees on private land. 3. The proposal is inconsistent with objective 3 (d) of the Town of Bassendean Local Planning Policy No. 13 - Tree Retention and Provision, as it does not promote tree preservation at the earliest possible stage in the planning and development process, nor balance the preservation of trees with desired built form outcomes. 4. The Town is not satisfied retaining the tree presents an unreasonable level of risk to people, property or infrastructure. 5. The Town is not satisfied the location of the tree within the site prohibits or unreasonably impacts the ability to develop the land in accordance with the Town of Bassendean Local Planning Scheme No. 11. 16 On 12 October 2025, Mr Nee lodged an Application for Review of the Town's decision with the Tribunal.15 Following mediation, the matter was programmed for final hearing (hearing). The hearing and evidence 17 The hearing was conducted on 17 March 2026. On the morning of the hearing, I had the benefit of a view of the subject site, including the tree and the immediate locality of Geraldine Street. I also observed, from the exterior, the existing single house on the subject site. 18 It is necessary to say something of some of the documentary evidence adduced by Mr Nee and the evidence of the two arboricultural 13 At the hearing Mr Short's 'Tree Retention Survey' report was accepted as his Supplementary Witness Statement, Exhibit 10. 14 Respondent's s 24 Bundle of Documents, Exhibit 3, page 54. 15 Although the Application for Review was lodged out of time, on 24 October 2025, the Tribunal, pursuant to r 10 of the State Administrative Tribunal Rules 2004 (WA) extended the time for commencement of this proceeding to 12 October 2025. -- 6 of 39 -- [2026] WASAT 66 Page 7 experts, Mr Phillip Matthews, called by Mr Nee, and Mr Mark Short, called by the Town. Documentary evidence adduced by Mr Nee 19 There are two documents, upon which Mr Nee relies, which I need to determine the weight to be accorded to them in coming to my decision. 20 The first document is a 'plumber's quote' which provides a costing for a replacement sewer line connecting the existing house to the sewer main, as well as advice to Mr Nee as to what guarantee those works may provide to resist root ingress in the future should the tree be required to remain.16 21 The plumber who provides the quote does not give details of his experience and qualifications, does not explain his investigations or the methodology he used to form his opinions and he did not attend the hearing which, as a result, means this evidence could not be tested. Therefore, I accord this evidence little weight in coming to my decision. 22 The second document is a letter from Mr Nee's neighbour at No 41 Geraldine Street (No 41),17 who has occupied No 41 since late 2019. His letter indicates he has spent 'well in excess of $35,000' in repairs which he says are directly attributable to the tree, including $20,000 on pool repairs to 'cut the roots back, repair the concrete shell and make it safe'. He says his sewer system also became blocked with roots and he has had to have a section of piping replaced. Further damage includes replacing a section of new pool fence and roof damage to his shed, garage and house. He also identifies safety concerns from his experiences of large limbs dropping. He supports Mr Nee's application to remove the tree. 23 Although formal advertising of the proposed removal of the tree was not undertaken by the Town, advice of the letter was before the Town's Council when it made its refusal decision.18 The letter is, I accept, a consideration under cl 67(2)(y) of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions). 24 However, and in the context of this proceeding, the owner of No 41 did not submit a witness statement or attend the hearing to enable his 16 Applicant's Bundle of Documents, Exhibit 6, page 46. 17 Applicant's Bundle of Documents, Exhibit 6, pages 2 - 3. 18 Respondent's s 24 Bundle of Documents, Exhibit 3, page 59. -- 7 of 39 -- [2026] WASAT 66 Page 8 evidence to be tested through cross-examination. Further, no attachments are included with his letter to illustrate, or that may provide some foundation to, the identified concerns. 25 Considering these factors, I accord the neighbour's letter little weight in coming to my decision and I prefer the expert evidence of Mr Short, as I will soon explain.19 The evidence of Mr Phillip Matthews 26 Mr Nee relies on the expert evidence of Mr Phillip Matthews, an arboricultural consultant. Prior to the hearing, Mr Matthews filed a witness statement and he authored a report titled 'Preliminary Arboricultural Report',20 upon which Mr Nee also relies. However, at the commencement of the hearing Mr Nee advised me that Mr Matthews would not attend the hearing as he was not available. This was despite the importance of the attendance of witnesses for cross-examination at the hearing being explained to the parties at a directions hearing on 8 January 2026, when the hearing was programmed. Further, Mr Nee, with knowledge of Mr Matthew's unavailability, did not seek for the hearing to be adjourned and reprogrammed, either before, or at, the hearing.21 27 That the veracity of Mr Matthews' evidence could not be tested at the hearing is a factor which I must bear in mind when considering his evidence and the weight I accord to it. At the hearing, I advised Mr Nee of this consideration, however, he was content for the hearing to proceed.22 28 The Town's planning advocate, Mr Snadden, advised that Mr Matthews' non-attendance was 'a little bit disappointing' considering the issues before the Tribunal and the 'differing opinions between the arborists'.23 29 Given those differences, that Mr Matthews did not attend also denied the opportunity for the giving of concurrent expert evidence, which enables experts in the same field to give evidence together and to put relevant questions to each other. 19 Commencing at [33]. 20 Supplementary Witness Statement of Phillip Matthews, Exhibit 8. 21 ts 5 - 6, 17 March 2026. 22 ts 6 - 7, 17 March 2026. 23 ts 5, 17 March 2026. -- 8 of 39 -- [2026] WASAT 66 Page 9 30 Mr Matthews' witness statement includes a statement that he has read the Tribunal's 'Info Sheet 11 - Guide to giving expert evidence'24 (Info Sheet 11). Info Sheet 11 contains a requirement that an expert must 'acknowledge that he or she … agrees to be bound by the obligations to the Tribunal stated in the pamphlet and orders'. However, and importantly in my view, Mr Matthews written statement does not include any such agreement. 31 Further, and also importantly in my view, key conclusions in Mr Matthews' 'Preliminary Arboricultural Report' are not supported by reasoning. Two important related considerations in this case are the health and the safety of the tree. These aspects are informed, in large part, by the tree's form and vigour which Mr Matthews identifies as 'poor'25 and its structural condition, which he also rates as 'poor'.26 However, Mr Matthews provides no explanation as to how he arrives at these ratings from his visual inspection of the tree. This is, in my view, a very significant deficiency in his evidence. 32 Considering all the above, including that Mr Matthews did not attend the hearing and his evidence could not be tested, this does not, in my view, align with an expert's overriding duty to assist the Tribunal. Therefore, I do not accept he is a credible or reliable expert witness and, as a result, I accord his evidence little weight. The evidence of Mr Mark Short 33 Mr Short is an arboricultural expert with expertise in the field of arboriculture and horticulture spanning 25 years. He was called on behalf of the Town and filed a witness statement which was taken as his evidence-in-chief. Prior to the commencement of these proceedings Mr Short authored a report titled, 'Tree Retention Survey',27 upon which the Town also relies. At the hearing Mr Short was cross-examined. 34 Mr Short's written witness statement, although acknowledging that he has read the Tribunal's Info Sheet 11, also does not confirm his agreement to be bound by the expert's obligations to the Tribunal. However, at the commencement of his evidence at the hearing, under his 24 Witness Statement of Phillip Matthews, Exhibit 7, page 1. 25 Exhibit 8, page 7. 26 Ibid. 27 Supplementary Witness Statement of Mark Short, Exhibit 10. -- 9 of 39 -- [2026] WASAT 66 Page 10 affirmation to tell the whole truth, Mr Short confirmed to me that he agrees to be bound by those obligations.28 35 Considering Mr Short's written and oral evidence, it is, in my view, supported by explanation and reasoning, and includes his methodology of assessment which links to his opinions and conclusions. His evidence is also largely directed at the issue before me as to whether, or not, the tree should be removed. This contrasts with Mr Matthews' evidence which appears, in my view, to be more focused on the impact of the tree on the proposed subdivision. 36 I also observe that Mr Short's evidence was not disturbed through cross-examination, which included questioning as to his independence and the basis for his differing opinions to Mr Matthews. 37 Considering all these factors, I found Mr Short a credible and reliable expert witness and, for the above reasons, I prefer his expert evidence and I accord it significant weight in coming to my decision. Planning framework 38 The relevant planning framework which I have considered in determining this application includes: (a) PD Act; (b) MRS; (c) LPS 11 which incorporates the Deemed Provisions; (d) Town of Bassendean Local Planning Strategy, February 2023 (LP Strategy); (e) LPP 13; and (f) USL. Issues for determination 39 The parties agree the following issue, with four sub-issues, arises for determination by the Tribunal. 1. Should the application to remove the tree at the subject site be approved, having regard to: 28 ts 21, 17 March 2026. -- 10 of 39 -- [2026] WASAT 66 Page 11 (a) Whether removal of the tree constitutes 'works' under the Deemed Provisions and 'development' under the PD Act for which approval is required under LPS 11; (b) Whether removal of the tree satisfies relevant matters in cl 67(2) of the Deemed Provisions, specifically matters (fa), (g), (m), (n), (o), (p) and (r); (c) Whether removal of the tree satisfies relevant town planning considerations of LPP 13; and (d) Whether the subdivision or development potential of the subject site is a matter relevant to consideration of the application to remove the tree. 40 I will address sub-issues (a) to (d) in turn, before returning to consider and determine the matter overall. Sub-issue 1(a) - Whether removal of the tree constitutes 'works' under the Deemed Provisions and 'development' under the PD Act for which approval is required under LPS 11 41 Mr Nee accepts that the removal of the tree constitutes 'works' under the Deemed Provisions and 'development' under the PD Act for which development approval is 'ordinarily required' under LPS 11.29 42 However, notwithstanding this acceptance, Mr Nee submits that removal of the tree should be considered exempt from the need to obtain development approval.30 43 Therefore, I will set out the basis for my findings to sub-issue 1(a) and consider whether an exemption exists in the circumstances of this case. 44 The PD Act defines 'development' as follows:31 development means the development or use of any land, including - (a) any demolition, erection, construction, alteration of or addition to any building or structure on the land; (b) the carrying out on the land of any excavation or other works[.] 29 Applicant's SIFC - Part 2, Exhibit 5.2, page 1. Pages unnumbered. 30 Applicant's SIFC - Part 2, Exhibit 5.2, pages 1 - 2. Pages unnumbered. 31 PD Act, s 4. -- 11 of 39 -- [2026] WASAT 66 Page 12 45 'Works' is defined at cl 1 of the Deemed Provisions, as follows: works, in relation to land, means - (a) any demolition, erection, construction, alteration of or addition to any building or structure on the land; and (b) the carrying out on the land of any excavation or other works[.] 46 As the Tribunal32 found in Zorzi and Town of Cambridge [2025] WASAT 77 (Zorzi), at [232], applying the orthodox principles of planning law and taking into account the planning context of the site, the 'works' to remove, in that case, a Tuart tree, constituted 'development' for which approval was required under Town of Cambridge Local Planning Scheme No 1. 47 Considering the facts of the present case, the tree, while of a different species, it is of a significant scale and set in a suburban context, and the same definitions of 'development' and 'works' apply. 48 As in Zorzi,33 the works to remove the tree will result in a permanent alteration to the subject site to such an extent that it will have consequential town planning impacts on the relevant locality, including but not limited to visual amenity and, its removal, considering this context, cannot, in my view, be regarded as de minimis.34 Further, the works to remove the tree, in my view, falls comfortably within the scope of 'the carrying out on the land of any excavation or other works'. This much is not controversial between the parties. 49 I am also guided by LPP 13 which, at cl 5, identifies what the Town considers to be a 'regulated tree'. A regulated tree is defined and: means a living tree that: a) is over 8m in height; and/or b) has an average canopy diameter of at least 6m; and/or c) has a trunk circumference of at least 1.5m, measured 1.4m above the ground; and d) is of a species that is not included on State or local area weed registers. 32 SM Willey. 33 Zorzi at [233]. 34 See Zorzi at [59] - [61]. -- 12 of 39 -- [2026] WASAT 66 Page 13 50 Given my earlier findings as to the relevant characteristics of the tree,35 I am satisfied, and I find, the tree is a 'regulated tree' under LPP 13. 51 Further, LPP 13 defines 'Tree Damaging Activity' to mean, relevantly:36 … b) the removal of a tree[.] … 52 LPP 13, at cl 2, outlines that tree damaging activity constitutes 'works' under the PD Act and 'development' under the Deemed Provisions. 53 Therefore, unless the removal of the tree is found to be exempt from the need to obtain approval under LPS 11, development approval is required to remove the tree. 54 I will now turn to consider whether there may be an exemption from the need to obtain development approval in this case. Is removal of the tree exempt from requiring development approval? 55 LPP 13, at cl 6, contains a number of exemptions and provides, in part: Development approval is not required for tree damaging activities in the following circumstances: … b) The tree damaging activity is carried out in the course of works in accordance with the Planning and Development (Local Planning Schemes) Regulations 2015 Schedule 2 Part 7 Clause 61 (b) item 18: "works that are urgently necessary for any of the following - a. public safety; b. the safety or security of plant or equipment; c. the maintenance of essential services; or 35 At [6]. 36 At cl 5. -- 13 of 39 -- [2026] WASAT 66 Page 14 d. the protection of the environment." 56 Mr Nee submits that cl 6 (b) is engaged because the works are urgently necessary for public safety (at a.) or the maintenance of essential services (at c.). He submits this is because '[t]he expert plumbing evidence establishes ongoing and recurring sewer damage caused by the tree's root systems, enlivening these provisions'.37 57 As mentioned, the extent of the plumbing evidence is a quote to install a new sewer line connecting the sewer main to the existing house. It includes the following advice, upon which Mr Nee relies:38 Hi Kevin, thank you for the opportunity to quote on your works. I have allowed for the replacement of the 46m of drain to replace the damaged drain impacted by tree roots. Due to the scale of the tree in your back yard and the extent of its root system, I cannot guarantee the roots will not impact on the newly installed drain. Our obligations as a licenced plumber are to warrant our workmanship and cannot control the impact of external forces. I hope this answers your question, in relation to whether the replacement of the drain will ensure no future problems with tree roots. 58 The quote, as I have observed, provides no detail of the investigations undertaken to formulate the advice. However, and more importantly in my view, the plumber's quote does not assert the tree must be removed to enable replacement of, or maintenance to, the sewer line. Additionally, the advice does not describe any urgency for the works to be undertaken or identify any concern related to public safety. 59 Therefore, I am satisfied, and I find, there is no evidentiary basis to justify an exemption from the requirement to obtain development approval for the removal of the tree on the two grounds that Mr Nee identifies in cl 6 (b) of LPP 13. As there is no exemption, it follows that development approval under LPS 11 is required to remove the tree. I so find. Sub-issue 1(b) - Whether removal of the tree satisfies relevant matters in cl 67(2) of the Deemed Provisions, specifically matters (fa), (g), (m), (n), (o), (p) and (r) 60 The Deemed Provisions, at cl 67(2), sets out various matters that the local government is to have due regard to, 'to the extent that, in 37 Applicant's SIFC - Part 2, Exhibit 5.2, page 2. Pages unnumbered. 38 Applicant's Bundle of Documents, Exhibit 6, page 46. -- 14 of 39 -- [2026] WASAT 66 Page 15 the opinion of the local government those matters are relevant to the development the subject of the application'. 61 The following cl 67(2) matters are relevant in this case: (fa) any local planning strategy for this Scheme endorsed by the Commission; (g) any local planning policy for the Scheme area; … (m) the compatibility of the development with its setting, including - (i) the compatibility of the development with the desired future character of its setting; and (ii) the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development; (n) the amenity of the locality including the following - (i) environmental impacts of the development; (ii) the character of the locality; … (o) the likely effect of the development on the natural environment or water resources and any means that are proposed to protect or to mitigate impacts on the natural environment or the water resource; (p) whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved; … (r) the suitability of the land for the development taking into account the possible risk to human health or safety; … (y) any submissions received on the application[.] -- 15 of 39 -- [2026] WASAT 66 Page 16 62 Earlier, I considered the letter from the owner of No 41,39 a relevant matter at cl 67(2)(y), and it is unnecessary to repeat my observations about that letter here. 63 I will consider each of the other cl 67(2) matters in turn, with the exception of matter (g), which is directed at sub-issue 1(c) as it relates to LPP 13. 64 Further, I observe some considerations in cl 67(2), in my view, overlap with matters in cl 8 (c) of LPP 13 and the Town's contentions. When I address cl 8 (c) at sub-issue 1(c),40 to avoid repetition, I will identify the overlap and refer back to the relevant paragraphs below. Item (fa) - LP Strategy 65 The Town contends that removal of the tree is inconsistent with the LP Strategy which, the Town submits, promotes protection of existing trees. 66 Mr Nee makes no submission on the relevance of the LP Strategy. 67 The LP Strategy was endorsed by the WAPC on 13 June 2023 and informed the subsequent development of LPS 11.41 The LP Strategy identifies that, to maintain and improve the character values of the Town, local planning scheme provisions to encourage the retention of trees are proposed, in addition to LPP 13.42 68 Similarly, Table 1 of the LP Strategy identifies a planning direction for 'Conserving and enhancing the Town's urban tree canopy', with the action being to support the inclusion of local planning scheme provisions to protect trees.43 69 However, it appears that only one specific scheme provision has been incorporated into LPS 11, being the creation of a significant tree register. This requires a landowner to volunteer a tree on their land to be included on the register.44 39 See [22] - [25]. 40 Commencing at [128]. 41 LPS 11 was gazetted on 26 May 2024. 42 LP Strategy, page 7, Document 2.3, Exhibit 3. 43 LP Strategy, page 10, Document 2.3, Exhibit 3. 44 LPS 11, Schedule 1 - cl 6B, pages 32 - 33, Document 2.2, Exhibit 3. -- 16 of 39 -- [2026] WASAT 66 Page 17 70 The Town identifies that '[t]he tree is not listed on a Significant Tree Register established in accordance with clause 6B ([Sch] 1) of [LPS 11]'.45 71 Considering this, the removal of the tree is not, in my view, inconsistent with the LP Strategy because the LP Strategy, while promoting tree retention, indicates this is to be achieved through the introduction of scheme provisions. 72 As the specific LPS 11 provisions addressing tree retention are limited to a voluntary significant tree register and the tree is not listed on this register, it cannot, therefore, be established that removal of the tree is inconsistent with the LP Strategy. Item (m) - the compatibility of the development with its setting 73 The Town contends the tree contributes positively to the character of the locality and its removal would adversely impact the existing character.46 74 On the other hand, Mr Nee submits the locality contains multiple mature trees of similar appearance and '[r]emoval of a single non-heritage tree will not alter local character or sense of place'.47 Mr Nee adduces limited evidence to provide foundation to this submission. The evidence of Mr Matthews is confined to the trees on the subject site, the street tree on its verge and two trees at neighbouring No 45.48 Even if I limit my consideration to these trees, only the two trees at No 45 are of a similar scale and appearance as the tree. 75 Plainly, removal of one third of the large trees in this limited area will have a significant impact. The expert evidence of Mr Short is that the tree is clearly visible in its surroundings and visible from Geraldine Street and that it contributes to the amenity of the locality by way of habitat, food sources for birds and canopy coverage.49 That the tree is visible in the locality was observed at the view.50 76 Considering this evidence, which I accept, the tree is compatible with its current setting and its removal, in my view, will be detrimental 45 Respondent's SIFC, para 15, Exhibit 2. 46 Respondent's SIFC, para 24, Exhibit 2. 47 Applicant's SIFC - Part 2, Exhibit 5.2, page 2. Pages unnumbered. 48 Supplementary Witness Statement of Phillip Matthews, Exhibit 8, page 1. 49 Witness Statement of Mark Short, Exhibit 9, page 5. 50 ts 10, 17 March 2026. -- 17 of 39 -- [2026] WASAT 66 Page 18 to the existing character of the locality considering the visibility of the tree in its surrounds and from the street. Item (n) - the amenity of the locality 77 'Amenity' is defined in cl 1 of the Deemed Provisions and means: all those factors which combine to form the character of an area and include the present and likely future amenity[.] 78 The Town contends the tree positively contributes to the amenity of the locality and its removal would adversely impact the amenity. Considering the definition of amenity, this includes the present and likely future amenity. 79 Mr Nee submits that removal of the tree will improve the safety and long-term amenity outcomes at the subject site and for neighbouring properties due to dropping branches and root damage.51 I will address dropping branches later when considering cl 67(2)(r) which deals with safety.52 80 As to root damage, Mr Nee relies on the plumber's quote to which I earlier referred.53 However, I do not accept that the quote confirms that the root damage to the sewer line is caused by the tree, and even if it was, as I observed earlier,54 that replacement of the sewer line necessitates removal of the tree. 81 The evidence of Mr Short, which I accept, is that the plumber's quote does not identify any detail of investigations carried out to find the source of the root activity.55 Mr Short asserts that root activity could be from the tree or from a number of surrounding trees on adjacent properties. Further, he says that this type of damage is often a function of the age of the dwelling and can be addressed by root pruning and replacement of sections of sewer pipework and sleeving of that pipework.56 82 As to future considerations, Mr Short's expert evidence, which I accept, is that '[i]t is exceptionally rare that roots ae [sic – are?] the cause of pipe damage, roots are instead, opportunistic, taking advantage 51 Applicant's SIFC - Part 2, Exhibit 5.2, page 2. Pages unnumbered. 52 Commencing at [103]. 53 At [56] - [58]. 54 At [58]. 55 Witness Statement of Mark Short, Exhibit 9, page 8. 56 Witness Statement of Mark Short, Exhibit 9, page 9. -- 18 of 39 -- [2026] WASAT 66 Page 19 of existing damage or wear and tear. Once such issues are rectified and pipework is in good order, roots typically are not able to enter'.57 83 Therefore, I do not accept Mr Nee's submission that removal of the tree will bring about a positive amenity benefit to Mr Nee or surrounding neighbours simply to address concerns that the roots of the tree may have impacted, or may in future impact, sewer lines. 84 The tree, I accept, because of its height and visibility forms part of, and contributes positively to, the amenity of the locality. This much is consistent with the evidence of Mr Short who asserts 'it is clearly visible in its surroundings, even visible from the street, and it provides a contribution to the amenity of the area, by way of habitat, food sources for birds and canopy coverage'.58 85 Therefore, removal of the tree would, on the evidence before me, be detrimental to the local environment and to the character of the area, two relevant considerations of cl 67(2)(n) in this case. Item (o) - the likely effect on the natural environment 86 Mr Nee submits removal of the tree will not result in a net loss of environmental or canopy value because '[c]omparable mature trees of similar species … exist on adjoining land [and] within proximity in nearby reserve at the end of our street, ensuring continued canopy cover, habitat potential and streetscape contribution'. 59 87 I do not accept this submission because removal of the tree will, self-evidently, result in a net loss of canopy and also likely be detrimental to the natural environment, as I will come to explain. Further, there is not a shred of evidence, before me, about trees 'in a nearby reserve'. 88 The evidence of Mr Short is that the tree is not in poor health and that there are no signs of decline in the canopy.60 Mr Short asserts, '[i]n fact the canopy was observed to hold suitable volumes of leaf material, which displayed a good lustre, with a deep green colouration, as well as new tip growth and new response growth being formed at a number of points across the trunk, branches and branch unions'.61 Mr Short also 57 Witness Statement of Mark Short, Exhibit 9, page 9. 58 Witness Statement of Mark Short, Exhibit 9, page 5. 59 Applicant's SIFC - Part 2, Exhibit 5.2, page 2. Pages unnumbered. 60 Witness Statement of Mark Short, Exhibit 9, page 7. 61 Ibid. -- 19 of 39 -- [2026] WASAT 66 Page 20 attests that the tree contributes 'by way of habitat, food sources for birds and canopy coverage'.62 89 Therefore, considering this expert evidence, which I accept, of the current healthy condition of the tree, its removal will, it follows, result in a net loss of canopy and a loss of environmental value. Item (p) - whether any trees should be preserved 90 Senior Member Willey observes in Zorzi,63 that item (p) raises two distinct, but related, considerations. In this case, it is the second part of item (p) that is relevant because it involves consideration of 'whether any trees or other vegetation on the land should be preserved' and is 'protective in its focus'.64 91 The Town contends the tree is worthy of preservation by virtue of its amenity and environmental value. 92 Mr Nee's Statement of Issues Facts and Contentions (SIFC) does not squarely address this consideration. Instead, he refers to an alternative subdivision design, identified by the Town as part of its original decision, about which Mr Nee submits 'requires demolition of a structurally sound dwelling and a complete redesign of the subdivision'.65 93 However, Mr Nee accepts the subdivision is not before the Tribunal.66 Further, the question of the form of subdivision is not for me to speculate upon within the confined scope of this proceeding, as I will explain. 94 As things presently stand, Mr Nee's application for subdivision remains before the WAPC awaiting determination. Similarly, and although Mr Nee provides the indicative floor plan, on the evidence before me, he has not sought development approval for any new dwelling on the subject land. The question in this proceeding is necessarily confined to the removal of the tree, consistent with the scope of Mr Nee's development application to the Town. Even considering the indicative floor plan, there is simply no evidence before me to establish what 62 Witness Statement of Mark Short, Exhibit 9, page 5. 63 Zorzi at [199]. 64 Zorzi at [204]. 65 Applicant's SIFC - Part 2, Exhibit 5.2, page 2. Pages unnumbered. 66 ts 15, 17 March 2026. -- 20 of 39 -- [2026] WASAT 66 Page 21 investigations, if any, its designer undertook to consider the preservation of the tree. 95 Turning to whether the tree should be preserved, the expert evidence of Mr Short, which I accept, is that the tree has a useful life expectancy exceeding 40 years, that it is maintaining a 'fair' level of health and that its 'structure is regarded as "Average", which is regarded as [being] normal and what is expected for the species'.67 He concludes '[t]here is no cause to remove [the tree], other than to provide additional space to construct a new dwelling'.68 96 Further, Mr Short opines that the indicative floor plan, which is for a two storey dwelling, 'shows a reasonably standard dwelling design that aims to maximise ground floor space, with a small first floor area'.69 I agree this is what the indicative floor plan shows. Mr Short says he 'has been involved in design work in similar situations that reduces the overall footprint on ground, maximised the [first] floor space and provides suitable space of [sic – for?] the tree'.70 97 Mr Short, in oral evidence, explains the process he would undertake to investigate a site with a tree to understand the ground and root conditions. He says, while it can vary depending on the size and scale of the development, 'So it would range from doing exploratory digging, exploratory vacuum excavation, …'.71 And, then working with an architect, or designer and an engineer, 'to then look at things like screw piles or concrete piles, suspended slabs,…'.72 He asserts, 'I've been involved in a number of projects where we've done exactly that, everything from residential houses through to larger commercial developments'.73 98 Mr Matthews does not include, or detail, any such investigations he undertook, before reaching his conclusion that the tree must be removed to enable subdivision or development of a new dwelling. This may be because he considers the tree has 'poor' form and vigour, is in 'poor' structural condition, is in the wrong spot and is hazardous, and the TPZ 'means that approximately half the block could not be developed'.74 67 Supplementary Witness Statement of Mark Short, Exhibit 10, pages 10 and 20. 68 Supplementary Witness Statement of Mark Short, Exhibit 10, page 22. 69 Witness Statement of Mark Short, Exhibit 9, page 8. 70 Ibid. 71 ts 25 - 26, 17 March 2026. 72 ts 26, 17 March 2026. 73 Ibid. 74 Supplementary Witness Statement of Phillip Matthews, Exhibit 8, pages 7 and 13. -- 21 of 39 -- [2026] WASAT 66 Page 22 99 As to the tree's TPZ, Mr Short's evidence, which I accept, is that this statement of Mr Matthews is incorrect. He explains this is because of his experience assisting many clients to construct dwellings within the TPZ of many trees with long term success, including a number located in the Town.75 100 Mr Short also considers the SRZ of the tree, which is up to 3.97 metres. He says this is an area where 'you really don't want anyone to dig in at all', but, he continues, 'you can absolutely work within it. It's just how you do it'.76 Further, Mr Short agrees that this aspect can be examined later during consideration of a development application or building permit for a new dwelling.77 101 Given Mr Short's expert evidence which, as I have explained, I prefer, I accept the Town's submission, that the removal of a tree based on a hypothetical development scenario is inappropriate and the design of a future dwelling should be addressed at the development application stage. This will enable factors related to the tree, identified in Mr Short's evidence, to be investigated and considered, together with, as the Town also submits, 'considerations of any variations or concessions relating to built form'.78 102 Therefore, unless safety considerations give rise to a need to remove the tree, it appears, at present, there is no other reason to justify its removal. I will consider safety next. Item (r) - the possible risk to human health or safety 103 Mr Nee submits the tree is hazardous.79 104 The arboricultural experts both use the Quantified Tree Risk Assessment (QTRA) system to assess the risk of the tree. Mr Short attests that the QTRA system 'applies established and accepted risk management principles to tree safety management' and 'quantifies the risk of significant harm from tree failure in a way that considers the benefits conferred by trees and the monetary cost of management'.80 This system allows a qualified assessor to analyse the risk of tree failure in three stages: 75 Witness Statement of Mark Short, Exhibit 9, page 7. 76 ts 43, 17 March 2026. 77 Ibid. 78 ts 52, 17 March 2026. 79 ts 47, 17 March 2026. 80 Witness Statement of Mark Short, Exhibit 9, page 7. -- 22 of 39 -- [2026] WASAT 66 Page 23 (a) Land use or Target - considering the use of the land on which the tree stands. (b) Consequence of Impact - taking into account the size of the tree or limb (or size of part failure). (c) Probability of Failure (PoF) - using the 'Visual Tree Assessment' (VTA) method to evaluate the structural integrity of the tree through observation of its biomechanical and physiological features. 105 Mr Short explains that ranges for target, size of part failure and PoF are entered into the QTRA calculator which generates a colour coded 'Risk of Harm' (RoH).81 106 Mr Short's expert evidence, which I accept, is that the QTRA system 'moves the judgement of tree safety away from the labelling of trees as either 'safe' or 'unsafe', to a quantifiable probability, with predetermined limits of tolerable or acceptable risk'.82 107 Mr Matthews opines that Eucalyptus grandis is 'the worst tree for limb failure, in Perth'.83 Using the QTRA system, he argues, when looking to the future, with the rear of the subject site being developed, the tree would:84 (a) display a 'Tolerable [RoH] (by agreement)' score of 1 in 4,000 chance of tree failure causing harm to a person; and (b) display an 'Unacceptable [RoH]' score of a 1 in 30 chance of tree failure causing damage to property. 108 Mr Matthews' 'Preliminary Arboricultural Report' identifies the tree 'has a Priority for Removal, - because it is in the wrong spot, the tree is hazardous'.85 Further, to subdivide the rear section of the subject site, the 'tree will need to be removed because it has an 11.3 [metre] TPZ, meaning approximately half of the block could not be developed'.86 81 Supplementary Witness Statement of Mark Short, Exhibit 10, page 7. 82 Ibid. 83 Supplementary Witness Statement of Phillip Matthews, Exhibit 8, page 13. 84 Supplementary Witness Statement of Phillip Matthews, Exhibit 8, page 11. 85 Supplementary Witness Statement of Phillip Matthews, Exhibit 8, page 13. Original emphasis. 86 Ibid. Original emphasis. -- 23 of 39 -- [2026] WASAT 66 Page 24 109 In this regard, Mr Matthews evidence, I observe, appears to contradict his own methodology described in 'The Planning Stages and the Tree Management Process' detailed later in his written evidence.87 110 Mr Matthews describes nine development stages, starting with 'Planning' and concluding with 'Post Construction Period and Final Certification'.88 Mr Matthews 'Preliminary Arboricultural Report' appears to align with 'Stage 2 - Preliminary Tree Survey Arboricultural Report (Pre-DA)' and 'should take place at the beginning of the project' to 'guide development layout' and 'displays the TPZ's to guide the development layout'.89 111 The difficulty is that Mr Matthews' evidence carries on and, in doing so, in my view, strays well into the design aspects of Stage 3. As a consequence, his evidence, in essence, reads as an ex post facto justification of Mr Nee's proposed subdivision, rather than as an input to be used to inform further investigations and a design outcome that responds to the features of the subject site. This is reinforced by 'The Site Plan' in the 'Preliminary Arboricultural Report' which depicts a rear lot subdivision as though it already exists.90 112 Mr Nee also submits that '[t]here was no practical opportunity to consider retention of [the tree] at the earliest stages of planning due to the tree's size, maturity and extensive root system'.91 However, the evidence before me does not support that Mr Nee, in fact, did consider retention of the tree prior to making his subdivision application or his actions to commence removal of the tree. 113 Mr Short's evidence, on the other hand, is that the QTRA system should not be used to 'determine a level of risk for something which is not present, in this case a future dwelling…'.92 Mr Short asserts that, should the property be subdivided in future, this portion of the risk assessment would need to be informed by future users.93 114 Mr Short also considers that, at present, the rear area of the subject site is fenced.94 As observed at the view, the fencing precludes direct access to the back yard of the subject site from the existing dwelling, but 87 Supplementary Witness Statement of Phillip Matthews, Appendix 2, Exhibit 8, pages 32 - 33. 88 Ibid. 89 Supplementary Witness Statement of Phillip Matthews, Appendix 2, Exhibit 8, page 32. 90 Supplementary Witness Statement of Phillip Matthews, Exhibit 8, page 4. 91 Applicant's SIFC - Part 1, Exhibit 5.1, page 5. Pages unnumbered. 92 Witness Statement of Mark Short, Exhibit 9, page 5. 93 Ibid. 94 ts 35 - 37, 17 March 2026. -- 24 of 39 -- [2026] WASAT 66 Page 25 not from the street. Mr Short's QTRA assessment categorises the RoH for the tree as 'broadly acceptable'.95 Risks in this category are described as being 'as low as reasonably practicable'.96 115 Mr Short, under questioning to consider a QTRA assessment which excludes the fence in the rear yard, asserts the RoH remains 'broadly acceptable' or even increasing the 'target' value by another factor of 10 the RoH is 'tolerable'.97 116 Further, Mr Short's written evidence reviews Mr Matthews' QTRA assessment. He accepts a 'target' value of T3 is reasonable if a dwelling was present directly beneath the tree.98 He also considers the 'size of part failure' and says a value 'no more than a 3' could be ascribed, but that when considering the PoF, '[i]t is more reasonable to consider that there would be higher frequency of branches in the 25 mm size range failing, which is a size of part 4'.99 117 This leads Mr Short to conclude the level of risk, even if the subject site was developed with an additional dwelling, would be 1 in 500,000 for people and because a 25 mm branch would cause little or no damage, the same RoH would exist for a building,100 which would place it in the 'tolerable' range. 118 Mr Short's VTA of the tree concludes there are no signs that indicate a high propensity for limb drop and he says the structure of the tree is 'average', being 'normal' for this species, and that this means there is no unacceptable level of risk to surrounding targets at this time.101 119 In his VTA, Mr Short also observes the first order branch unions have open angles of attachment, with no signs of included bark. He says there are signs of annualised response growth which continuously improves structural integrity. He asserts there are no signs of fracturing to the branches,102 and no signs of decay or fungal activity.103 120 As to the tree's health, Mr Short asserts it is 'fair'104 with no signs of decline in the canopy or nutrient deficiency. He says the canopy holds 95 Witness Statement of Mark Short, Exhibit 9, page 7. 96 Supplementary Witness Statement of Mark Short, Exhibit 10, pages 7 and 10. 97 ts 37, 17 March 2026. 98 Witness Statement of Mark Short, Exhibit 9, page 5. 99 Witness Statement of Mark Short, Exhibit 9, pages 5 - 6. 100 Witness Statement of Mark Short, Exhibit 9, page 6. 101 Witness Statement of Mark Short, Exhibit 9, page 7. 102 Supplementary Witness Statement of Mark Short, Exhibit 10, page 20. 103 Witness Statement of Mark Short, Exhibit 9, page 7. 104 Supplementary Witness Statement of Mark Short, Exhibit 10, page 10. -- 25 of 39 -- [2026] WASAT 66 Page 26 suitable volumes of leaf material which, he says, displays good lustre and a deep green colouration and new tip growth.105 In oral evidence, he confirms the tree is healthy.106 121 Considering this evidence, the tree, at the time of Mr Short's VTA, has a normal structure and health and, considering the results of Mr Short's QTRA assessment, which I prefer, the RoH of the tree at the subject site, in its current state, is broadly acceptable. Removal of the tree does not satisfy relevant matters in cl 67(2) of the Deemed Provisions 122 Considering the above, I am satisfied, and I find, that removal of the tree would not satisfy the following relevant matters in cl 67(2) of the Deemed Provisions, being items (m), (n), (o), (p) and (r) for five reasons. 123 First, the tree, due to its scale and size, positively contributes to the amenity and character of the locality, including to the streetscape of Geraldine Street. 124 Second, the tree, considering its position and context in the backyard at the subject site, is compatible in its locality, including considerations of future character. 125 Third, removal of the tree would have a detrimental effect on the natural environment considering its size and scale, contribution to local tree canopy and as habitat for birds. 126 Fourth, the tree presents a 'broadly acceptable' RoH under the QTRA advisory risk thresholds at this time, being the lowest QTRA advisory risk level. 127 Fifth, the tree has a life expectancy in excess of 40 years and is normal in its health and structure and there is no reason it should not be preserved on the subject site at this time. Sub-issue 1(c) - Whether removal of the tree satisfies relevant town planning considerations of LPP 13 128 LPP 13 is a relevant consideration under cl 67(2)(g) of the Deemed Provisions and is applicable in this case because, I find: 105 Witness Statement of Mark Short, Exhibit 9, page 7. 106 ts 24, 17 March 2026. -- 26 of 39 -- [2026] WASAT 66 Page 27 (a) the tree is a 'Regulated Tree' as defined at cl 5; (b) the proposed removal of the tree is included in the definition of 'Tree Damaging Activity' at cl 5(b); and (c) the policy applies to land 'zoned' under LPS 11, which includes the subject site, and its scope includes 'Tree damaging activity to a regulated tree' (cl 4(d)). 129 LPP 13, at cl 3, has six objectives of which five are relevant in this case:107 … (b) Provide a clear definition of a 'regulated tree' and clarify when development approval is required for a 'tree damaging activity'; (c) Prioritise retention, protection and provision of trees on private land and adjacent reserves in the planning process; (d) Promote tree preservation and provision at the earliest possible stage in the planning and development process, balancing the preservation of trees with desired built form and land use outcomes; (e) Preserve and enhance neighbourhood amenity, character and sense of place; (f) Mitigate the urban heat island effect, reduce air pollution, improve groundwater quality and contribute to biodiversity and other environmental benefit. LPP 13 - Policy requirements 130 Clause 8 outlines 'Policy Requirements' and cl 8.1 contains provisions relating to the 'Retention of Regulated Trees'. Subclauses (a), (c) and (g) are relevant and I will consider each in turn. Clause 8.1 - subclause (a) 131 Subclause (a) is as follows: (a) Unless removal is approved as part of a subdivision or development approval, or is exempt under the provisions of this Policy, a regulated tree must be retained in perpetuity and protected. 107 Objective (a) relates to varying the Residential Design Codes Volume 1 to provide amended 'deemed-to-comply' provisions relating to tree provision, which not relevant in this case. -- 27 of 39 -- [2026] WASAT 66 Page 28 132 Removal of the tree, in this case, is not part of a subdivision or development approval. While Mr Nee, has submitted an application seeking subdivision approval from the WAPC, the application has not been determined. By this Application for Review, Mr Nee is separately seeking development approval to remove the tree. 133 Earlier, I addressed the exemptions provided by cl 6 of LPP 13 and concluded, in the circumstances of this case, there is no exemption from the requirement to obtain development approval to remove the tree.108 134 Therefore, subclause (a) is applicable. Unless any of the remaining parts of cl 8 are satisfied, or there is a cogent reason to depart from the policy, the tree is to be retained and protected. Clause 8.1 - subclause (c) 135 Subclause (c) provides, relevantly, as follows: (c) Where tree damaging activity is proposed to a regulated tree the following will be given due regard: a. Health, maturity, species, and location of the tree; b. Ecological, biodiversity and environmental values of the tree; c. Contribution of the tree to the streetscape; … e. The location of the tree within the development site and capacity for a modified building design or subdivision to maximise tree retention; f. Any existing development on the site; … i. Possible safety risks due to tree limb failure and infrastructure and/or structural damage associated with the [sic] retaining the tree; j. Tree Protection Zone(s) (as per AS4970); … 108 See [55] - [59]. -- 28 of 39 -- [2026] WASAT 66 Page 29 l. Recommendations of an Arborist Report; and m. The objectives of this Policy. 136 Mr Nee submits that when properly applied LPP 13 supports the removal of the tree. He relies on the evidence of Mr Matthews and he submits '[t]he tree has low landscape viability and poor structural health' and that the 'Eucalyptus grandis is a high-risk species for sudden branch drop'.109 137 Further, he submits the Tree Retention Value classifies the tree as a priority for removal and that the TPZ 'sterilises the full rear lot making it undevelopable'.110 138 However, item 'e' of subclause (c), in my view, does not arise directly as a town planning consideration in this case because the matter before me is confined to an application to remove the tree. Whether the subdivision or the development potential of the subject land is relevant will be addressed at sub-issue 1(d).111 139 The Town contends the tree does not satisfy relevant town planning considerations at cl 8.1, subclause (c), for six reasons:112 a. [t]he tree is in fair health and is typical of a healthy specimen of the species with a useful life expectancy in excess of 40 years. Removal of the tree due to poor health is not warranted; b. the tree displays fair structure considered 'normal' of the species, with no signs of previous or emerging failures; c. the tree has ecological, biodiversity and environmental value and provides roosting and foraging benefits to numerous bird species; d. the tree makes a positive contribution to the streetscape and neighbourhood amenity; e. the tree does not present an intolerable risk of harm when assessed using the Ellison, M, (2022) Qualified Tree Risk Assessment (QTAR) [sic] system; f. the tree does not present an unreasonable risk to existing infrastructure/structures onsite, nor an unreasonable maintenance burden by virtue of tree root encroachment to plumbing. The 109 Applicant's SIFC - Part 2, Exhibit 5.2, page 3. Pages unnumbered. 110 Ibid. 111 Commencing at [156]. 112 Respondent's SIFC, Exhibit 2.4, para 25. -- 29 of 39 -- [2026] WASAT 66 Page 30 respondent contends that such issues are common and reflective of the dwelling's age. 140 These reasons, I observe, largely overlap with the matters in cl 67(2), the focus of sub-issue 1(b) considered earlier. It is, therefore, unnecessary to repeat what has been said. However, I will address each of the reasons a. to f., by reference to the overlapping cl 67(2) matters and explain why I agree with each reason advanced by the Town, as follows: a. Addressed at [118] - [120] when considering cl 67(2)(r) which considers safety, and at [95] when considering cl 67(2)(p), which considers whether any trees on the subject site should be preserved, and I found that the tree is in normal health and I accepted, on the evidence of Mr Short, that it has a life expectancy of over 40 years. Therefore, I agree with the Town's reason that removal due to 'poor health is not warranted' as the tree is healthy; b. Addressed at [118] - [120] when considering cl 67(2)(r), which considers safety, and I found that the tree has a normal structure, with no evidence of previous or likely emerging failures and, therefore, I agree with this reason; c. Addressed at [84] when considering cl 67(2)(n), which considers amenity of the locality - including environmental impacts, and I found that the tree has environmental value, including providing habitat for birds and canopy cover and, therefore, I agree with this reason; d. Addressed at [73] - [76] when considering cl 67(2)(m), which considers compatibility, and at [84] - [85] when considering cl 67(2)(n), which considers amenity - including the character of the locality, and I found that, due to its scale, the tree is visible in the locality, including from the street, and contributes positively to the streetscape and amenity of the locality and, therefore, I agree with this reason; e. Addressed at [114] - [121] when considering cl 67(2)(r) which relates to safety, and I found that, using the QTRA assessment performed by Mr Short, which as I explained I prefer, the RoH should the tree remain at the subject site is 'broadly acceptable' at the current time and, therefore, I accept that the tree 'does not present an intolerable risk of harm'; and -- 30 of 39 -- [2026] WASAT 66 Page 31 f. Addressed when considering whether removal of the tree can be considered exempt from the requirement to obtain development approval, at [55] - [59], and cl 67(2)(n), relating to amenity, at [80], where I found that the tree does not preclude the replacement or maintenance of sewer services. It is also uncontroversial that the tree, given its location, does not present a risk to existing structures at the subject site. The building condition report for the existing dwelling provided by Mr Nee identifies, as to the roof, that '[g]utters and valleys need regular cleaning to prevent build-up of leaf matter and debris'.113 This, in my view, is a normal maintenance consideration and does not warrant removal of the tree. 141 As to item 'm' of subclause (c), which considers the objectives of LPP 13,114 considering the above evidence, which I have accepted, it cannot be said that removal of the tree is consistent with the relevant policy objectives, in particular objectives (c) and (d) which address tree retention and preservation respectively. 142 Considering each of these factors against the evidence, I am satisfied, and I find, that removal of the tree does not accord with the relevant town planning considerations in subclause (c) of LPP 13. Clause 8.1 - subclause (g) 143 Subclause (g) is as follows: (g) Tree damaging activity to a regulated tree may be considered if the following relevant information and/or technical reports are provided to demonstrate: a. The regulated tree is unhealthy, based on the recommendations of an Arborist report; b. The regulated tree causes safety risks to people, infrastructure or buildings based on recommendations on an Arborist report and/or Structural Engineering Report; or c. The redesign of the development to accommodate the regulated tree is unfeasible. 113 Applicant's Bundle of Documents, Exhibit 6, page 74. 114 Outlined earlier at [129]. -- 31 of 39 -- [2026] WASAT 66 Page 32 144 As to these matters, I considered items 'a' and 'b' earlier and concluded at [121] that: a. the tree is not unhealthy; and b. the expert evidence of Mr Short, which I have accepted, who using the QTRA system, demonstrates the RoH associated with the tree is broadly acceptable at the current time. 145 As to item 'c' the application before me is confined to the removal of the tree, therefore design considerations relating to the tree that may arise through a development application for a new building, would necessarily be for the relevant decision-maker to consider and determine when such an application is made. Is there a cogent reason to depart from LPP 13? 146 As the removal of the tree does not meet the requirements of LPP 13, it is necessary to consider whether there is a cogent reason to depart from the policy. I accept it is unlawful for LPP 13 to be inflexibly applied. However, 'where a decision-maker adopts a policy, it is entitled to apply that policy provided applicants are given an opportunity to show there are exceptional circumstances why it should not be applied in their case'.115 147 Mr Nee submits the Tribunal's reasoning in Zorzi is 'persuasive authority' as to the approach to be taken to 'tree-related planning controls'.116 Further, he submits that a rigid application of tree retention controls, in this case, produces an unreasonable planning outcome when weighed against the expert evidence of risk, infrastructure damage and development constraint.117 148 Mr Nee accepts that the factual circumstances in Zorzi differ from this case. However, he submits that Zorzi 'confirmed the following principles that are directly relevant to this application':118 a. planning controls must be construed and applied in a practical and purposive manner, not to produce unreasonable or unintended outcomes; 115 Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 at [28]. 116 Applicant's SIFC - Part 2, Exhibit 5.2, page 5. Pages unnumbered. 117 Ibid. 118 Ibid. Bold emphasis omitted. -- 32 of 39 -- [2026] WASAT 66 Page 33 b. tree retention controls do not operate in isolation and must be balanced against broader planning objectives, including orderly and proper development and reasonable use of land; and c. the Tribunal will closely examine whether a decision has the practical effect of sterilising land or imposing disproportionate burdens on a landowner, particularly where alternative outcomes can achieve planning objectives. 149 Mr Nee does not identify any particular passages in Zorzi that he relies upon to support his submission. When provided with a copy of the Zorzi decision at the hearing and asked to clarify the parts of that decision he relies upon, Mr Nee responded that he could not because this submission was prepared with support of 'a planning consultant' who 'documented this for me'.119 Despite his apparent reliance on Zorzi, that Mr Nee was unable to identify the basis for his submission is, in my view, hardly a satisfactory approach to the conduct of a case, even taking a generous view as Mr Nee is self-represented. 150 In any event, having considered Zorzi, the circumstances are plainly distinguishable from the present. The focus of Zorzi was not the application of planning controls associated with the question of removal of a tree, but a challenge to a written direction issued by a local government to the landowner under s 214(2) of the PD Act. The written direction sought to stop removal of a tree in circumstances where the landowner was acting on a development approval granted for a new single dwelling which, the Tribunal found, also encompassed approval to remove that tree.120 151 In considering Mr Nee's submission as to 'the purposive application of planning controls', observations of Senior Member Willey relate 'to the need to construe a development approval in a manner that would promote its legislative purpose', being the central consideration in Zorzi.121 This is not, in my view, relevant in the circumstances of this case, which does not deal with the need to construe a development approval. Further, Zorzi, at [59], identifies that 'written laws are required to be constructed in a purposive manner' and this observation is made in the context of considering the meaning and application of the term 'development'. However, in the circumstances of this case, I have applied 119 ts 17, 17 March 2026. 120 Zorzi at [1] - [6]. 121 Zorzi at [157]. -- 33 of 39 -- [2026] WASAT 66 Page 34 'development' consistent with the observations made in Zorzi.122 Therefore, this first aspect of Mr Nee's submission fails, in my view, to establish a cogent reason to depart from LPP 13. 152 In Zorzi, Senior Member Willey, in his conclusion, also observes:123 Looking beyond the horizon of this proceeding, consideration of applications for development approval for, or that necessitate, the removal of a significant tree, will no doubt require a myriad of factors to be weighed and balanced, including, whether the tree in question can realistically be preserved, while taking account of the entitlement of landowners to the reasonable use and enjoyment of what is, after all, their property. 153 While there are a range of planning factors I have already considered, including the relevant matters in cl 67(2) of the Deemed Provisions and relevant provisions of LPP 13, the entitlement of Mr Nee to subdivide or develop his land, in a way that does not preserve the tree, is not for me to determine within the confines of this proceeding. To be clear, the proposed subdivision, which remains before the WAPC for determination, and is not before the Tribunal, cannot, in my view, form a cogent reason to depart from LPP 13 in those circumstances. Removal of the tree does not satisfy LPP 13 154 Considering the scope of the matter before me, I am satisfied, and I find, for the reasons I have outlined above, removal of the tree does not satisfy the relevant objectives and provisions of LPP 13. 155 Further, on the evidence before me, there is no cogent reason to depart from LPP 13. The subdivision application, awaiting determination by the WAPC, does not constitute a cogent reason to depart from LPP 13 because, as Mr Nee accepts,124 it remains with the WAPC for determination and it is not before the Tribunal. 122 See [43] - [48]. 123 Zorzi at [254]. 124 ts 15, 17 March 2026. -- 34 of 39 -- [2026] WASAT 66 Page 35 Sub-issue 1(d) - Whether the subdivision or development potential of the subject site is a matter relevant to consideration of the application to remove the tree 156 The Town contends that the future subdivision or development of a rear portion of the subject site does not form part of the application under review and, therefore, falls outside of the matters to be considered.125 157 Mr Nee, on the other hand, submits the subdivision and development potential of the subject site 'is not only relevant but central' to this case.126 158 However, as I earlier observed, the application for review is confined in its scope to the removal of the tree. I must bear this in mind when considering and determining this sub-issue. 159 Although Mr Nee has lodged a subdivision application with the WAPC, it has not been determined and it remains for the WAPC to determine whether the subdivision, in the form Mr Nee proposes, should be approved. In those circumstances, and in the context of this sub-issue, it is not for me to speculate on the subdivision potential of the subject site, or what form a subdivision may take, or even whether the tree should be removed as part of the proposed subdivision. 160 I also accept the Town plays an advisory role in the WAPC's subdivision assessment process, in that a subdivision application is referred for the Town's advice. However, the Town is not the decision-maker in respect to subdivision. That responsibility rests with, and, for the proposed subdivision, remains with, the WAPC. 161 Understandably, the tree is likely to arise as one consideration for the WAPC. However, it is for the WAPC to consider and determine the subdivision application taking into account all the relevant planning factors at the time of making its decision. 162 To be clear, my decision in this proceeding should not be taken to, in some way, fetter the discretion of the WAPC to determine Mr Nee's subdivision application on its merits. 163 Turning to development potential, the Town accepts that under the R20 coding, the subject site has potential to accommodate an additional dwelling. However, no development application seeking approval for an 125 Respondent's SIFC, Exhibit 2, para 26. 126 Applicant's SIFC - Part 2, Exhibit 5.2, page 3. Pages unnumbered. -- 35 of 39 -- [2026] WASAT 66 Page 36 additional dwelling has been submitted to the Town. While I accept this may be a future consideration, the evidence before me of Mr Short, which I have accepted, is that the development potential may not be adversely impacted by the presence of the tree given its location on the subject site.127 Without more, I am not persuaded that the tree adversely impacts the development potential of the subject site. 164 Saying this, I observe that LPP 13 encourages tree preservation to be considered 'at the earliest possible stage of the planning and development process, balancing the preservation of trees with desired built form and land use outcomes'.128 If a development application is lodged with the Town, the sentiments expressed by Senior Member Willey in Zorzi may well enliven:129 However, if there is now a desire or expectation for landowners to maintain significant trees in the development control process, then appropriate and reasonable design concessions may need to be agreed so as to incentivise their preservation. If positive strides in the battle to maintain and improve tree canopy on private land in residential areas are to be taken, local governments, and the broader community, should brace for that reality. Subdivision or development potential is not a relevant consideration 165 Considering the evidence before me, I am satisfied, and I find, that the subdivision or development potential of the subject site is not a relevant matter for consideration in this case for three reasons. 166 First, the Application for Review is confined to the question of the removal of the tree. 167 Second, the proposed subdivision is currently before the WAPC for determination and it remains for the WAPC to determine whether or not to approve it, and if it is approved, to impose relevant conditions. 168 Third, there has been limited investigation of the preservation of the tree to determine whether it impacts the development potential of the subject site and there has been no development application for an additional dwelling considered or determined by the Town. In these circumstances, it is not for me to speculate upon whether or not the development potential of the subject site is impacted by the tree. 127 See [96] - [97]. 128 Respondent's s 24 Bundle of Documents, page 66. 129 Zorzi at [255]. -- 36 of 39 -- [2026] WASAT 66 Page 37 Should the application to remove the tree at the subject site be approved? 169 I return now to consider and determine the ultimate issue before me. 170 Having considered, at sub-issue 1(a), whether removal of the tree constitutes 'works' under the Deemed Provisions and 'development' under the PD Act, I concluded that it does. Further, I found removal of the tree is not exempt from the requirement to obtain development approval. Therefore, in the context of this proceeding, approval under LPS 11 is required for the tree to be lawfully removed. 171 At sub-issue 1(b), I considered whether removal of the tree satisfies relevant matters in cl 67(2) of the Deemed Provisions. While removal of the tree does not offend cl 67(2)(fa), I have found it does not satisfy cl 67(2)(g), (m), (n), (o) and (p). Further, considering the risk to human health and safety, the consideration at cl 67(2)(r), I concluded, on the evidence before me, which includes assessments using the QTRA system, that from a safety perspective, the tree, at this time, is broadly acceptable. 172 Therefore, considering these findings and weighing these factors, removal of the tree does not, on balance, satisfy the relevant matters in cl 67(2) of the Deemed Provisions. 173 At sub-issue 1(c), I considered LPP 13 and determined that the removal of the tree does not satisfy the provisions of this policy. While I accept that it would be unlawful for the policy to be inflexibly applied,130 there is no cogent reason, in the circumstances of this case, that provides a proper basis to depart from the policy. 174 Finally, and although Mr Nee has made application for subdivision, this application has not been determined by the WAPC and is not the subject of this proceeding. Similarly, there has been no development application for any additional dwelling at the subject site and limited investigation to determine if the tree, given its location can be preserved, as part of the design and development of a new building. As I have found, in these circumstances it is not appropriate for me to speculate upon the impact of the tree on the subdivision or development potential of the subject site. 175 Considering and weighing my findings to sub-issues 1(a), 1(b), 1(c) and 1(d) and notwithstanding the discretion afforded me to approve removal of the tree, I am satisfied, and I find, that 'the correct and 130 See Re Romato; Ex parte Mitchell James Holdings Pty Ltd at [26] - [28]. -- 37 of 39 -- [2026] WASAT 66 Page 38 preferable decision at the time of the decision upon the review',131 for the reasons I have outlined, is to dismiss the application for review and affirm the decision of the Town. Conclusion 176 Mr Nee seeks approval to remove the tree from the backyard of the subject site. The tree, a healthy, mature, Rose Gum with an anticipated future lifespan of in excess of 40 years, is of such a scale that it contributes positively to the amenity and environment of the locality and the streetscape in Geraldine Street. 177 Considering the four sub-issues before me, I have determined that: (a) development approval is required to lawfully remove the tree; (b) removal of the tree, at this time, would, on balance, be contrary to relevant matters listed in cl 67(2) of the Deemed Provisions; (c) removal of the tree, at this time, is contrary to LPP 13 and there is no cogent reason to depart from the policy; and (d) future subdivision or development potential does not arise as a relevant consideration in the circumstances of this case. 178 Weighing these findings, and notwithstanding the discretion afforded me to approve removal of the tree, I have determined, the 'correct and preferable'132 decision, for the reasons I have given, is to dismiss the application for review and affirm the decision of the Town. 179 For these reasons, the Tribunal makes the following orders: Orders The Tribunal orders: 1. The application for review is dismissed. 2. The decision of the respondent is affirmed. 131 Under s 27(2) of the SAT Act. 132 Under s 27(2) of the SAT Act. -- 38 of 39 -- [2026] WASAT 66 Page 39 I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. MR R Povey, MEMBER 4 JUNE 2026 -- 39 of 39 --