That tree is in the way of my building project! The Hidden Cost of Removing Trees in Victoria

Introduction

If you’re thinking about removing vegetation from a property as part of a development or construction project – or ‘just because’ – beware of the laws that apply to vegetation removal in Victoria. Unlawful removal can lead to prosecution and significant fines.  

To give effect to the protective purposes of the Planning and Environment Act 1987 (Vic), all local councils in Victoria have provisions in their Planning Schemes which require planning permits to be sought and issued for the removal, destruction or lopping of certain vegetation.

Canopy Trees

While many of these provisions target native vegetation, others protect significant trees more broadly regardless of species.  New protections were introduced by Amendment VC 289, which inserted Clause 52.37 (Canopy Trees) into every Victorian planning scheme with effect from 15 September 2025. The clause applies in most residential zones (though not the Low Density Residential Zone) and captures any tree taller than 5 metres with a trunk circumference greater than 0.5 metres and a canopy diameter of at least 4 metres.

Crucially, the clause operates regardless of whether the land is affected by a vegetation overlay, meaning that many properties which were previously unencumbered are now subject to a permit requirement for the removal of qualifying trees. Limited exemptions apply (for example, dead trees, declared noxious weeds, emergency works, and minor maintenance pruning), and Clause 52.37 sits alongside, rather than replacing, any existing overlay controls.  

What this means...

What this means is that you are not free to simply remove vegetation, even from your own property, where that vegetation is the subject of a protection under your local Planning Scheme. You should always check with your local Council or an arborist before removing native vegetation or large trees. Council inspectors are more active than you may think. Authorised officers have a statutory power to enter land to investigate suspected contraventions of a planning scheme, subject to obtaining the occupier's consent, giving two clear days' notice, or obtaining a warrant from the Magistrates' Court.

In Victoria, while Councils have several enforcement options available to them, the destruction of vegetation contrary to your local Planning Scheme is an offence under the Act which should be taken seriously and can lead to fines of up to $250,920.

How Councils may respond

In deciding how to proceed in response to an offence, Councils are guided by factors such as the seriousness of the offence; the deterrence value of the action; the offender’s willingness to cooperate or conversely the extent and nature of any obstruction; and the nature and speed of corrective action that is required. This means that there is a wide range of outcomes which could result, including replanting or remediation orders.

If the matter proceeds to a prosecution, all the Council is required to prove to establish a defendant’s liability for the offence is that vegetation protected by the relevant Planning Scheme has been destroyed on the defendant’s property.

How landowners may get caught out

A point that frequently surprises landowners is that they may face liability even where the vegetation was removed by another person. That means an owner can be prosecuted for unauthorised removal carried out by a tenant, a contractor, a neighbour, or an arborist acting without proper instructions, and even where the owner was entirely unaware of what was happening on the property at the time. For this reason, owners with tenanted properties, or who engage third parties to undertake works near protected trees, should ensure that clear written instructions are given and that any contractor engaged has confirmed the relevant permits are in place before works commence.

While a defence based on an honest and reasonable mistake may be available in limited circumstances, it is important to understand that the mistake must be one of fact, not law (for example, that the tree was already dead).

Ignorance of the law is not a defence!

Ignorance of the law is not a defence. Nor is it a defence that you did not personally carry out the removal, or that it occurred without your knowledge. Those matters typically go only to the size of any penalty imposed.

How Sharrock Pitman Legal can help

If you have poisoned or removed native vegetation or large trees in the past twelve months, or if you find yourself on the receiving-end of any communication from your local Council relating to the destruction of vegetation, consider your position and the associated risks of exposure to a penalty carefully before deciding how to proceed. Seeking legal advice at the early.

If you find yourself in this predicament or you looking to minimise the risk of a a dispute arising, please do not hesitate to contact our Disputes & Litigation team.

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‍The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. For advice tailored to your specific circumstances, please consult one of our qualified lawyers.

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