Removing a single tree = Development

Sometimes, the most important legal principles do not emerge from major cases in superior courts, but instead emerge from lower-profile cases that may fly under the radar at first instance.

It seems that such an outcome may have occurred in the recent State Administrative Tribunal (SAT) decision in Zorzi and Town of Cambridge [2025] WASAT 77, which was an application for review of an enforcement direction issued in the context of the proposed development of a single house.

Background

The controversy in this matter concerned whether or not a development approval for a proposed single house in City Beach authorised the removal of an existing tree at the rear of the property. The plans did not explicitly refer to the removal of the existing tree, but did show a proposed new tree in roughly the same location.

Determination

In the process of determining this issue, the SAT considered the related legal issue of whether the removal of the existing tree constituted development. If the removal of the existing tree constituted development, then it could only lawfully occur if it was either covered by a development approval or exempt from the need for development approval. Whilst there is a lot of historical case law dealing with the concept of development in a general sense, there is not a lot of useful case law as to how minor something has to be in order to not constitute development.

The SAT ultimately determined that the works associated with removing this particular tree constituted development, owing to factors including the size and the context of the tree. This is a significant finding for the purposes of Western Australian planning law. Whilst there have been some previous cases where it has been held that the clearing of a patch of trees in a rural context constitutes development, this would appear to be the first time that a court or tribunal in Western Australia has held that the removal of a single tree in an urban context constitutes development and therefore requires development approval.

In its reasons, the SAT suggested that not every example of removing a single tree will constitute development and that it is always context dependent. The SAT did not however specify any particular threshold as to what type of tree removal will constitute development. By reference to the SAT reasoning, it may be that the removal of more prominent trees that can be enjoyed by neighbours and the broader community may be more likely to constitute development. On the other hand, the removal of a smaller tree in the course of domestic gardening might fall below the threshold of constituting development.

Key takeaways

There are many lessons to be learned from this SAT decision.

• For landowners, the safest course going forward would be to consult with the relevant local government or to seek professional advice before removing any trees on their properties.
• For developers and planning consultants, the standard practice going forward should be to assume that any tree removal as part of a proposed development will need to be addressed by a development application and covered by a grant of development approval.
• For local governments, if they have not already done so, they should now be preparing and adopting local planning policies to deal with the subject matter of tree removal. Amongst other things, these local planning policies should set out particular types of tree removal that are exempt from the need to obtain development approval.

If you have any questions about this SAT decision or in relation to the lawfulness of removing particular trees, 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.