A developer who cut down 106 trees without a city permit was acting in "good faith" and deserves the benefit of the doubt, says Mountain councillor Terry Whitehead.

At Whitehead's urging, Hamilton city councillors changed their minds Friday about denying a prominent developer permission to fell 106 trees it's already illegally cut. They just deferred the issue.

It wasn't like 'oops, I took down a tree.' - Matthew Green, Ward 3 councillor

While councillors have deferred taking a stand on the illegal clearing, bylaw officials are proceeding with a charge against Valery (Chedoke Browlands) Development for violating the city's tree cutting bylaw. It's not clear what impact the council vote will have on the case.

Council was poised Friday to deny a last-ditch attempt from Valery (Chedoke Browlands) Development to get permission to cut the trees at 820, 828 and 870 Scenic Dr. and 801 Sanatorium Rd. Instead, the matter will go to a different bureaucratic process.

Valery cut the trees in late March while waiting to hear back from the city on whether it had permission. A few days later, the city denied the request, only to learn Valery had already cut them.

On Aug. 15, the developer asked councillors to reconsider and retroactively give him permission. But city council's planning committee turned down that request earlier this week. On Friday, as council was about to rubber-stamp that decision, some councillors changed their minds.

Terry Whitehead, Ward 8 councillor, moved referring it to the development application process — when Valery will unveil what it plans for the land, and the public will get to respond.

This map shows areas for future development, including the woodlot. (Urban Solutions)

The developer acted "in good faith," Whitehead said. It already had to cut 33 dead ash trees and decided to manage the whole section.

Whitehead said cutting the trees was either "altruistic" or about expanding the footprint for development, and "I'd rather give them the benefit of the doubt."

It doesn't justify what happened. I want to make that clear. - Terry Whitehead, Ward 8 councillor

"It doesn't justify what happened," Whitehead said. "I want to make that clear."

But "there's a difference between a developer going in with the sole intent to expand their footprint. This one is somewhat different because the genesis was 33 dead trees."

Whitehead said he's only spoken to Valery briefly since the planning meeting, when the developer thanked him for his comments. He said he's not trying to appease Valery.

"This is actually more about what the community and I want," he said. "Not what the developer wants."

This map shows where the developer cut trees. (City of Hamilton)

The developer is scheduled to appear in court Sept. 11.

'It wasn't like 'oops, I took down a tree''

Councillors voted 11-3 for the referral, several saying they're OK with it as long as the case is still proceeding in court.

Matthew Green, Ward 3 councillor, voted against it.

"It wasn't like 'oops, I took down a tree,'" he said. "Sometimes that happens in residential situations. They took down 106."

In court, the developer faces a maximum fine of $500,000 or more, the equivalent of $5,000 per tree. The judge can also add a special fine of more than $100,000 to make sure the fine is more than an incidental hardship.

Valery, a frequent donor to municipal election campaigns, hasn't submitted a development application yet. As for when that will happen, the developer's lawyer has yet to respond to requests for comment.

samantha.craggs@cbc.ca | @SamCraggsCBC