NORMANS ALERT: Significant changes to Significant and Regulated Tree protections

Significant reforms to the regime for the protection of regulated and significant trees under the Planning, Development and Infrastructure Act 2016 (Act) and the Planning, Development and Infrastructure (General) Regulations 2017 (General Regulations) came into effect on 16 May 2024.

The changes appear to be in response to recommendations of the Expert Panel for the Planning System Implementation Review (Expert Panel) first provided to the Minister in January 2023. At that time, the Expert Panel provided seven major recommendations to improve urban tree canopy retention within Greater Adelaide, including substantial reductions in the qualifying circumferences for designation of regulated and significant trees, as well as a narrowing of the prescribed exemption criteria.

The State Government had previously indicated its in principle support for such recommendations in its response to the Expert Panel recommendations released in March 2024.

These recommendations have been largely put into effect with the gazettal of Planning, Development and Infrastructure (General) (Regulated and Significant Trees) Amendment Regulations 2024 (Tree Regulations).

The Tree Regulations are of immediate effect, albeit, with a transitional period for existing authorisations and applications under assessment.

The gazettal is available to read here (at page 919).

Summary of major changes

Among the changes brought about by the Tree Regulations include:

Qualifying circumferences

The Tree Regulations (r 3(1) to (3)) drastically reduce the qualifying circumferences for classes of regulated and significant trees under the General Regulations (r 3F(1) and (2)).

1. The qualifying circumference for regulated trees has been reduced:

• from 2 m down to 1 m in the case of trees with only one trunk; and

• in the case of trees with multiple trunks, from 2 m in total with an average of 625 mm for each trunk, down to a total circumference of 1 m with an average of 310 mm or more for each trunk

2. The qualifying circumference for significant trees has been reduced:

• from 3 m down to 2 m in the case of trees with only one trunk; and

• in the case of trees with multiple trunks, from 3 m in total with an average of 625 mm for each trunk, down to a total circumference of 2 m (the average circumference of each trunk remaining as 625 mm or more).

Setbacks from dwellings

Regulation 3(4) of the Tree Regulations substantially reduces the exemption for otherwise qualifying regulated trees located within close proximity of a dwelling or in-ground swimming pool (under r 3F(4)(a) of the General Regulations) from within 10 m to within 3 m of the dwelling or pool.

Regulation 3(5) of the Tree Regulations further modifies r 3F(4)(a) of the General Regulations by including two additional excluded genera that will remain regulated irrespective of proximity to a dwelling or in-ground pool, being:

• any tree of the genus Angophora; and

• any tree of the genus Corymbia.

The effect now is that a qualifying tree of any species of Eucalypt (being any members of Angophora, Corymbia or Eucalyptus) will remain regulated, regardless of whether or not they are within 3 m of a dwelling or pool.

Exempt species

Regulation 3(6) of the Tree Regulations further removes the existing list of exempt tree species, being those generally excluded from the definition of regulated tree (r 3F(4)(b)) of the General Regulations), to be substituted for a list of species published by Ministerial Notice on the SA Planning Portal on 16 May 2024.

The new Notice is available here.

The species listed in the Notice are the same as those previously contained in r 3F(4)(b) with the addition of:

• Melaleuca styphelioides (Prickly-leaved Paperbark); and

• Lagunaria patersonia (Norfolk Island Hibiscus).

The additionally listed species were previously capable of being regulated or significant trees but any tree-damaging activity undertaken in relation to these species was excluded from the definition of ‘development’ by virtue of Schedule 4 item 18(1)(a).

Consequential amendments have also been made to the conditions for replacement trees under regulation 59 of the General Regulations.

Pruning exemptions – time limitations

Regulation 3(8) of the Tree Regulations introduces a time limitation on the pruning exemptions contained in regulation 3F(6) of the General Regulations, such that pruning of a kind referred to in the preceding sub-regulations can only be undertaken at intervals being at least 5 years after the previous pruning.

The effect is that if a person wants to undertake the pruning exempted by regulations 3F(6)(a) and (b) at more regular intervals, this will no longer fall within the exemption from a tree damaging activity and would require development authorisation.

Designation of Significant Trees under the Planning & Design Code (Section 68 of the Act)

Regulation 4 of the Tree Regulations introduces a new regulation 18A to the General Regulations that sets a prescribed criterion for listing of significant trees under the Planning & Design Code (where previously there were none), in accordance with section 68(1) of the Act.

That criterion is now that:

the significant tree or stand of trees (as the case requires) makes a significant contribution to the urban tree canopy of the local area.

Transitional provisions

Schedule 1 to the Tree Regulations relevantly specifies that the Tree Regulations do not apply in relation to any activity that is –

(a) undertaken for the purposes of a development that is the subject of—

(i) an application for development authorisation under the Planning, Development and Infrastructure Act 2016 lodged before the commencement of this clause; or

(ii) a development authorisation under the Planning, Development and Infrastructure Act 2016 granted before the commencement of this clause,

if the activity is undertaken after development authorisation is granted and before the day falling 12 months after the commencement of this clause.

The above changes represent a dramatic shift in the existing regime for protection of regulated and significant trees, although these changes have been forecast since March.

We encourage councils, planners and compliance officers to seek advice in relation to the effect of these amendments, the transitional provisions, and the broader consequences and will be delivering a training on these amendments on Friday 14 June 2024, which you can sign up to here.

For more specific information on any of the material contained in this article please contact Gavin Leydon on +61 8 8210 1225 or gleydon@normans.com.au, Nicholas Munday on +61 8 8217 1381 or nmunday@normans.com.au, or Stephan Koefer on +61 8 8217 1368 or skoefer@normans.com.au.