The Victorian Civil and Administrative Tribunal (VCAT) saga rolls on. Our neighbours are worried about the impact on their trees of Council excavations in the new easement on our property. After reviewing the situation, our Town Planner adviser had mixed news for us. Easements and their impact on Planning Permit appeals were outside his comfort zone. However, his advice on what to do next was invaluable. Get some facts about the situation and go to a lawyer.
Chose a legal team.
We have retained the services of a legal team from Best Hooper Lawyers to represent us at the VCAT appeal in August.
Yes, it’s come to this – lawyers at 10 paces.
If easement issues worry an experienced Town Planner, we need enough legal firepower to put our case in the best possible light. We might naively think that VCAT would agree with our position, but we can’t risk a legal technicality stopping the Planning Permit in its tracks.
Getting facts about tree roots.
As Joe Friday would say, “Just the facts ma’am.” Our Town Planner’s suggestion cut right to the heart of the matter. Dig down to locate any roots coming from the trees next door. Instead of everyone arguing about possible damage, find out exactly what roots are under the surface.
The Council was receptive to the idea while chatting during an onsite meeting. They immediately saw the benefit of upgrading their drainage excavation plan to avoid damaging the identified roots. The Engineering team decided to do an exploratory excavation on our side of the fence.
Where are these trees?
We took advantage of Ben’s DJI Mavic drone to get a bird’s eye view of the trees along along our eastern fence line.
The video starts at the back fence with our neighbour’s trees on the left of screen. You can see the canopy covers quite a bit of their back garden. Moving along the fence line shows the smaller trees on our side that will be removed when the Council installs the new drain. In our landscaping plan, indigenous canopy trees replace these exotics.
What did they find?
Over a week, a team hand-dug a trench next to the fence and made it long enough to detect roots coming from next-door’s trees. They wanted to get the facts without hurting the trees.
Looking to the south, we can see a few roots coming through. This isn’t a surprise as the tree actually sits right on the border between the two properties. Fortunately, there aren’t that many roots on our side of the fence.
Looking in the other direction shows even less roots. The tree near this part of the fence is further away and it appears the root system doesn’t extend too much in our direction. This is very good news as the second tree is larger, older and more important to our neighbours then the first one.
What happens next?
Council asked an independent arborist to inspect the root locations and review their plans to minimise the impact of drainage works on the trees. We are waiting to get this important report.
Assuming the arborist’s report is supportive of Council’s plans, the next step is sharing the results with our neighbours. The aim is to assure them their concerns are being addressed with an excavation plan specifically tailored to protect their trees. Once Council makes their presentation, we’ll ask our neighbours what they are going to do about their VCAT appeal.
We are hoping for the best outcome which is acceptance of Council’s plan and the appeal is withdrawn. That should clear the way for approval of our Planning Permit.
Worst case is rejection of the Council’s proposal. If that happens, we continue on with the legal proceedings. It’s a lot of money that we can’t really afford to spend on lawyers but equally, we can’t afford to lose the VCAT appeal.
Stay tuned for the next instalment!