Council refusal upheld: no permit to remove two healthy canopy trees for a larger shed (VCAT, 2026)

What happened

The owners of a residential property in Frankston wanted to remove two mature Syzygium australe (lilly pilly) trees from their land. The trees were about 11.5 metres tall and between 7 and 9 metres wide, and were visible from the street. The removal was tied to a plan to build a replacement outbuilding, a shed. The Tribunal noted the shed itself did not need a planning permit under the planning controls that applied, but removing the trees did, because of Clause 52.37-2 of the Frankston Planning Scheme, the provision that covers canopy trees. The land is in the General Residential Zone Schedule 1 (Clause 32.08) and is also covered by Design and Development Overlay Schedule 6 (Clause 43.02).

Frankston City Council refused the permit application. The owners applied to the Tribunal for a review of that refusal under section 77 of the Planning and Environment Act 1987 (Vic). A review is a fresh look at the decision by the Tribunal rather than an appeal about legal error.

The owners relied on an arborist report prepared by Treeman. An arborist is a tree specialist. That report said the trees were in good health but that their structure was fair to poor, and it gave them a low retention value, meaning it recommended they did not need to be kept. The council had its own arborist, who had first looked at a tree from a distance but later reviewed the Treeman report and photographs before giving further advice to council officers.

The matter was heard by videoconference on 8 October 2026 and the Member gave the decision and reasons orally at the end of the hearing. The council then asked for written reasons under section 117(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), and the written reasons and orders followed on 12 October 2026.

What each side wanted

The owners asked the Tribunal to overturn the council's refusal and allow the two trees to be removed. They said the trees had poor to fair structure, pointed to constraints on the site including the location of an easement and the existing encroachment of the tree zone, and said they needed a larger shed to store work tools. The council asked the Tribunal to affirm its refusal, arguing through its own arborist that the trees were healthy, that they were simply showing the normal growth habits and structural characteristics of their species, and that the Treeman report did not properly set out the structural defects or explore ways of keeping the trees. The Tribunal recorded that the need for a larger shed was not in question and that the owners' reasons for wanting it were genuine.

What the tribunal decided

The Tribunal affirmed the council's decision and refused the permit. The orders record: "In application P594/2026 the decision of the responsible authority is affirmed" and "In planning permit application 381/2026/P no permit is granted." The orders were made under section 85 of the Planning and Environment Act 1987 (Vic).

No money was ordered to be paid by either side. The decision and reasons were given orally at the hearing on 8 October 2026, and the written orders were made on 12 October 2026.

The Member also set out, for the benefit of any future application, what further material would be needed, including plans drawn to scale and properly dimensioned, an arborist report that explains ongoing tree management and alternative construction methods, and an explanation of why the existing encroachment is said to damage the existing shed beyond slab damage.

Why the tribunal decided it that way

The central question was whether removing the two canopy trees was acceptable under Clause 52.37 of the Frankston Planning Scheme, taking in its purpose and its decision guidelines about keeping canopy, neighbourhood character and urban tree canopy. The Member accepted the trees were mature, visible from the public realm and contributed meaningfully to streetscape character and local canopy cover, and that they were in good health with poor to fair structure. She was not persuaded that the structural concerns could not be managed through pruning and ongoing maintenance.

The Member found the Treeman report relied unreasonably and too heavily on the impact of development opportunities when working out retention value. She agreed with the council's arborist that the report did not properly account for the species, which was displaying its typical growth habits and structural characteristics, and did not set out specific details of how the trees might fail. She also pointed to the report's own definition of low retention value at page 23, which describes a tree offering minimal benefit to the surrounding landscape or in poor or declining health. These trees, on the material from both arborists and the council, were in good health and gave significant presence and cooling benefit, so they did not fit that definition. The report did not consider management options that could allow the trees to stay, such as pruning or lopping, relocating the shed, or alternative construction methods. The Member accepted there were site constraints including an easement, but found they were not insurmountable with a different design, location or shed size, or a combination of those.

The Member found the removal was primarily driven by the wish to have a larger outbuilding, and that the material did not adequately show the trees could not be kept through alternative siting, design changes or construction approaches. She also weighed the cumulative loss of canopy, taking into account tree removal on the site that had occurred or already been approved, including a Moreton Bay Fig, and found the combined loss would be substantial and unacceptable. The proposed replacement planting, while sound in number and species, would not offset the loss in the short to medium term of five to ten years, and raised questions about long-term viability given soil volume and establishment conditions.

On that basis the Member found the development had not been sited or designed to minimise the impact on the two canopy trees, and that the proposal did not satisfy the purposes or decision guidelines of Clause 52.37. Insufficient justification had been given for removing healthy, established canopy trees, and the loss of canopy cover would be contrary to planning policy objectives.

What this means if you are in a similar position

If you are in a similar position, this decision shows how a tribunal weighs a canopy tree control in a planning scheme. A permit to remove a protected tree is not decided only on the tree's structure. Health, visible contribution to the street, the species' normal growth habits, what has already been removed from the site, and whether the building work could be done a different way all come into the assessment.

It also shows how an expert report is read. Here the tribunal compared the report against its own definitions, looked for specific detail about how the trees might fail, and noticed that the report had not considered pruning, maintenance or a different shed position. A report that treats what the owner wants to build as the starting point, rather than one factor among many, carries less weight. The decision shows that replacement planting is taken into account, but that the time new trees take to grow and questions about soil volume affect how much it counts.

In disputes with a council about a permit, people usually start by putting their position in writing to the council, setting out what they want and why, and asking it to reconsider or explain its decision, before lodging any application with the tribunal.

How to apply: our step-by-step guide to a VCAT application. More decisions: VCAT cases and other civil disputes.

Source: O'Brien v Frankston CC [2026] VCAT 842 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.