SAT rules (again) on proposed removal of a mature tree

The State Administrative Tribunal (SAT) has, for the first time, ruled on a development application for the proposed standalone removal of a single mature tree, in the recent decision of Nee and Town of Bassendean [2026] WASAT 66 (Nee).

This follows the earlier decision of the SAT in Zorzi and Town of Cambridge [2025] WASAT 77 (Zorzi), where the SAT held (in an enforcement context) that the removal of a single mature tree could constitute development.

In Nee, the proponent wanted to remove a 26-metre-tall rose gum tree that was located to the rear of a residential lot.  There was already a dwelling on this lot and the proponent wanted to remove the tree in order to facilitate a proposed subdivision of that lot into two lots and the development of another dwelling to the rear.  The proponent had begun works to remove the tree, but stopped when the local government intervened.  The proponent then lodged a development application for the proposed removal of the tree, which was refused, leading to SAT review proceedings.

Following the decision in Zorzi, the SAT in Nee concluded that the proposed removal of the tree constituted development and therefore required a development approval under the relevant local planning scheme.  The dimensions of the tree were also such that the removal was treated as requiring development approval for the purposes of a local planning policy about trees.

The SAT in Nee was essentially required to determine whether or not development approval should be granted for the proposed removal of the tree, by reference to the standard relevant considerations in clause 67(2) in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).  By reference to these factors, the SAT determined that the correct and preferrable decision was to refuse the development application.  This was for reasons including that (according to the findings made by the SAT) the proposed removal of the tree would be detrimental to the existing character of the locality and would lead to a loss of environmental value.  The SAT also declined to make any finding to the effect that the retention of the tree would give rise to significant safety risks.

An important factor in the reasoning of the SAT in Nee was that the proponent had not yet made any development application for a second dwelling on the land and a subdivision application that had been made was still pending determination.  This meant that the SAT was unprepared to reach any conclusion to the effect that the removal of the tree would be necessary in order to facilitate reasonable subdivision or development on the land.

Interestingly, the SAT in its reasons in Nee went as far as to say that the subdivision or development potential of the land was not a relevant consideration in the determination of the development application.  It could be argued that this is legally incorrect, as the planning framework did not contain any prohibition on such factors being taken into account and the subdivision or development potential of land would surely be a sensible and reasonable thing to consider in the context of somebody proposing to remove a mature tree.  Whilst subdivision or development potential might arguably be a factor to take into account in exercising discretion (and not determinative), it is doubtful whether the correct legal position is that subdivision or development potential must be completely disregarded.

Nee arguably does not represent an ideal test case for when development applications for proposed tree removal should or should not be supported, based on how the proponent (who was self-represented) presented their case at the final hearing.  In particular, according to the reasons of the SAT, the proponent relied only upon a plumber’s quote, a neighbour’s letter and a preliminary arborist’s report as supporting evidence, but did not end up having any witnesses called at the final hearing, which meant that the SAT could not test the reliability of this evidence and effectively had to accept the contradicting evidence put forward by the local government.  The outcome in Nee could potentially have been different if the proponent was represented by an advocate and had the benefit of persuasive expert evidence.

Following the SAT decisions in Nee and Zozri, local governments are now likely to feel empowered to take firm approaches to regulating tree removal in development application contexts, because they will know that the SAT has effectively now endorsed such an approach through a couple of different recent decisions.  It is however important that any local government that has not already adopted an appropriate local planning policy on tree retention and removal do so as soon as possible, so that their ratepayers have certainty as to the expectations around when trees can and cannot be lawfully removed.

For landowners, the biggest lesson to take from the Nee decision is probably that a development application for the standalone removal of a mature tree is unlikely to be supported (absent some additional justification, such as an established safety issue), because a local government is unlikely to support the removal of a mature tree without there being some good reason for that to happen.  Any landowner who wishes to lawfully remove a mature tree should therefore seek to do this as part of a larger subdivision or development proposal (for example, for a proposed house extension), as such a proposed would be more difficult for a local government to refuse.

If you have any questions in relation to the Nee decision or in relation to the planning controls surrounding significant trees more generally, please contact Lavan’s Planning, Environment and Land Compensation Team.

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.