Council’s refusal upheld: no permit to remove a 16-metre tree blamed for pipe damage (VCAT, 2026)

What happened

The owner of a single-storey brick house on the north side of Barrina Street, Blackburn South, applied to Whitehorse City Council for a planning permit to remove one tree from the front setback: a Liquidambar styraciflua (sweet gum) 16 metres high, with a 12-metre canopy and a trunk circumference of 1.69 metres. The tree grows 5 metres from the frontage and 2 metres from the western boundary. The site is 724 square metres with a 19-metre frontage, in a General Residential Zone. The surrounding area is described as streets of dwellings with visible front gardens containing mature canopy trees, shrubs and lawn.

The council refused the permit. Its grounds were that removal did not respond to the purpose and decision guidelines of Clause 52.37 of the Whitehorse Planning Scheme (the clause that protects canopy trees), that the tree was in good health and structure, that it contributed significantly to the existing and preferred neighbourhood character, and that alternatives to removal had not been fully explored. The owner applied to VCAT under section 77 of the Planning and Environment Act 1987 (Vic) to review that refusal. The hearing was held by video conference on 15 September 2026, with the owner, a family member and an interpreter attending for the owner and a town planner for the council. The Tribunal inspected the site and surrounding area on its own after the hearing.

Both sides relied on arborists (tree experts). The owner's arborist said the tree's overall health was good and its structure average, and carried out a Non-Destructive Root Investigation. That report said roots were in direct contact beneath the stormwater pipe and were contributing to upward pressure on it, that root barriers were not practical at that spot, and that retention was not a practical or economically sustainable option for the property. The owner said his stormwater pipes had been replaced two to three years earlier, that roots were again on the verge of destroying them, that bathroom drainage was slowing, and that he could not afford major engineering works to re-route or lower the drainage.

The council's arborist agreed the tree's health and structure were sound and said it had a high life expectancy. A Quantified Tree Risk Assessment found a broadly acceptable risk of harm over the next 12 months, which the owner's arborist also accepted. The council's arborist hand-dug in the frontage and found one 100mm root running across the pipe and a lifted pipe joint, but no woody roots beneath the lifted point. He considered roots usually enter pipes where there is already a break, that the ageing terracotta pipes in the frontage might need repair, and that removing the tree would not fix the structural fault that let roots in. He suggested relining the pipes, replacing the terracotta with PVC and rubber joints, and pruning the one root outside the Structural Root Zone (measured at 2.76 metres), which he thought could be done without noticeable effect on the tree.

The council also told the Tribunal that the Significant Landscape Overlay Schedule 9 that had applied to the land expired on 16 June 2026, and that Amendment VC315 was gazetted on 24 September 2026. The Tribunal noted the amendment left the relevant purposes and decision guidelines unchanged and that transitional provisions meant Clause 52.37 as it stood before the amendment continued to apply to an application lodged earlier.

What each side wanted

The owner asked the Tribunal to set aside the refusal and grant a permit to remove the tree, arguing the tree was causing ongoing damage to his house infrastructure, was increasingly difficult to manage, and had become an unsustainable physical and financial burden, so removal was the only practical long-term solution. He also argued that because the Significant Landscape Overlay no longer applied to his land, the only assessment left was under Clause 52.37, there were no longer strict landscape controls, and the balance should favour resolving the property damage and safety risks. He offered to plant a replacement tree so there would be no long-term loss of canopy cover, but opposed the council's suggested planting conditions and said he did not want any replacement tree in the front setback. The council asked the Tribunal to affirm its refusal, saying the tree was worthy of retention, that its removal would adversely affect the character and canopy cover of the area, that the root investigation did not verify that the tree was continuing to cause damage, and that practical alternatives to removal existed.

What the tribunal decided

The Tribunal affirmed the decision of the responsible authority. In proceeding P526/2026 the orders were that the decision of the responsible authority is affirmed, and that in planning permit application WH/2026/381 no permit is granted. No money was claimed or ordered.

Because the Tribunal decided the tree should stay, it made no findings about the council's proposed replacement-planting conditions, which would have required one tree capable of reaching at least 8 metres in the front setback and one capable of reaching at least 12 metres in the rear private open space.

Why the tribunal decided it that way

The Tribunal had to decide whether removal was an acceptable outcome against the purpose and decision guidelines of Clause 52.37, the provisions for a VicSmart application (a streamlined permit pathway) in Clause 59.06, and local policy. Clause 71.02-3 of the planning scheme also required the decision-maker to weigh competing policies in favour of net community benefit and sustainable development. Clause 52.37 exists to protect and enhance canopy tree cover for greener, cooler residential areas and to maximise retention of existing canopy where no development is proposed. Its decision guidelines include the tree's contribution to reducing urban heat, its species and growth habits, its health and stability, and whether it is causing or risks causing damage to a building, works or infrastructure.

On the overlay point, the Tribunal accepted that Schedule 9 had expired but said a permit was still required under Clauses 52.37-2 and 59.06, and that this was not a weakening of the controls. Clause 52.37 still aims to maximise retention where there is no development, and Clause 59.06 still requires an applicant to give reasons for removal, including the tree's health and the effect on the landscape significance of the area. The Tribunal said the overriding theme of those clauses is the importance of retaining established canopy trees, and agreed with the council that they set a high bar for removing a significant tree.

On landscape significance, the Tribunal relied on its inspection and found the tree made a significant contribution to neighbourhood and landscape character because of its 16-metre height and 12-metre spread in the front garden, and because it was highly visible from many vantage points and was one of the largest trees in the street. Removing a tree that prominent would adversely affect the character and landscape significance of the area. On health, the Tribunal accepted both arborists' agreement that the tree was healthy and stable and posed no immediate risk of failure, and that the risk assessment outcome was acceptable.

The real dispute was the damage to the pipes. The Tribunal accepted both investigations showed roots close to the pipes, but said the expert advice diverged on the solution. It was not persuaded by the owner's arborist's recommendation, noting that recommendation rested largely on the history the owner had given about money already spent on replacement piping. The Tribunal found the council arborist's practical options could be implemented instead of removal, and that while those options cost money, the problem arose from roots entering ageing terracotta pipes, which is part of the ongoing maintenance of an ageing dwelling. The conclusion was that the tree could be retained with practical solutions, so the refusal was affirmed and no permit was granted.

What this means if you are in a similar position

If you are in a similar position, this decision shows how a tribunal approaches a permit to remove a protected canopy tree. Agreement between both sides' arborists that a tree is healthy and stable tends to count against removal, and prominence in the street can be treated as a significant contribution to neighbourhood character even where an extra landscape overlay has expired. The planning rules can still require a permit after an overlay ends, and a decision-maker may say the remaining clauses set a high bar.

The decision also shows how evidence about damage is tested. Reports that rest mainly on the owner's account of past expense carried less weight than physical investigation of where roots sit and what caused the pipe to fail in the first place. Where a tribunal accepts that a defect in old pipework is the underlying cause, it may treat relining, replacing pipes or careful root pruning as reasonable alternatives, and treat the cost as ordinary maintenance of an older house rather than a reason to remove a tree.

In disputes of this kind, most people start by putting the issue to the council in writing, setting out the problem, the expert evidence and the outcome they are asking for, before any application for review is made.

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

Source: Zhu v Whitehorse CC [2026] VCAT 811 (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.