Ambrus v Conservator of Flora and Fauna
[2018] ACAT 81
•22 August 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
AMBRUS v CONSERVATOR OF FLORA AND FAUNA (Administrative Review) [2018] ACAT 81
AT 34/2018
Catchwords: ADMINISTRATIVE REVIEW – tree protection – reconsidered decision by Conservator of Flora and Fauna to refuse approval to remove a regulated tree – criteria for tree damaging activity – whether tree represents an acceptable risk to public or private safety – whether tree is shown to be causing or threatening to cause substantial damage to substantial building, structure or service – whether the location of the tree is inappropriate given its potential size and growth habit; consideration of each criterion – no criterion met
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 8, 26
Tree Protection Act 2005, ss 21, 25, 106, 107, 107BSubordinate
Legislation cited: Tree Protection (Approval Criteria) Determination 2006 (No 2) (DI 2006-60), Schedule 1, criterion 1, paragraphs 1 & 3
Cases cited: Kelly v Conservator of Flora and Fauna [2009] ACAT 24
Wickerson v Conservator of Flora and Fauna [2018] ACAT 43
Tribunal: Senior Member A Davey
Date of Orders: 22 August 2018
Date of Reasons for Decision: 22 August 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 34/2018
BETWEEN:
CAROLINE AMBRUS
Applicant
AND:
CONSERVATOR OF FLORA AND FAUNA
Respondent
TRIBUNAL: Senior Member A Davey
DATE:22 August 2018
ORDER
The Tribunal orders that:
1.The decision under review is confirmed.
………………………………..
Senior Member A Davey
REASONS FOR DECISION
1.This is an application to the Tribunal for review of a reconsidered decision made by the Conservator of Flora and Fauna (the respondent) on 10 April 2018 to refuse approval for the removal of a regulated tree located on block 31 section 722 Calwell ACT, under section 107 of the Tree Protection Act 2005 (Tree Protection Act). The respondent’s decision is referred to in these reasons as ‘the reconsidered decision’. The reconsidered decision upheld a previous decision under section 25 of the Tree Protection Act to refuse a tree damaging activity.
2.The applicant is the lessee of block 31 section 722 Calwell. On 8 March 2018, Gold Leaf Tree Services Pty Ltd, acting on behalf of the applicant, applied to the respondent for approval to damage a regulated tree by removing it.[1] The tree is a Fraxinus oxycarpa ‘Raywood’, otherwise known as a claret ash, located in the north-east corner of the applicant’s property, between the driveway and the side boundary, a short distance further off the street than the applicant’s letterbox. The reason cited in the original application was that the tree “is growing in an inappropriate location.”[2]
[1] T documents pages 45-50
[2] T documents page 48
3.On 9 March 2018, a tree assessment report was prepared after inspection of the site. The report[3] found the tree was healthy and did not meet any of the criteria set out in schedule 1 of the Tree Protection (Approval Criteria) Determination 2006 (No 2) to support its removal. It was recommended that the application be rejected.[4]
[3] T documents page 40-44
[4] T documents page 41
4.On 16 March 2018, a delegate of the respondent refused the application under section 25 of the Tree Protection Act, on the grounds that it was not established that any of the criteria for removal set out in schedule 1 of the Tree Protection (Approval Criteria) Determination 2006 (No 2) (DI 2006-60) were satisfied.[5]
[5] T documents page 39
5.On 21 March 2018, the applicant submitted an application for reconsideration of the decision[6] under section 106 of the Tree Protection Act, on grounds of damage to the driveway, hazard from debris dropped from the tree, limitation of solar access, and allergies.[7]
[6] T documents pages 35-37
[7] T documents page 36
6.Ms Christine Rampling of the Tree Advisory Panel (TAP) conducted an inspection of the tree and prepared a report dated 27 March 2018 for the panel.[8] This report concluded that the tree does not meet any of the criteria for approval to remove it, and recommended that the original decision be confirmed.
[8] T documents pages 25-29
7.At a TAP meeting on 27 March 2018 the panel considered the application for reconsideration of the decision and recommended refusal of the application on the basis that in the opinion of the panel none of the criteria for approval had been satisfied.[9]
[9] T documents pages 30-31
8.The respondent then made a reconsidered decision, dated 10 April 2018, to uphold the original refusal.[10]
[10] T documents pages 21-22
9.On 17 April 2018, the applicant applied to the Tribunal under section 107B of the Tree Protection Act for review of the respondent’s reconsidered decision.[11]
The hearing
[11] T documents page 1-3
10.Mrs Caroline Ambrus represented herself. She gave evidence, as did Mr Craig Leith who lives at the same address. Dr D Jarvis, of counsel, represented the respondent, instructed by Ms Emma Buckland from the ACT Government Solicitor. Ms Christine Rampling gave evidence for the respondent.
11.The hearing on 26 July 2018 commenced with a site inspection. The Tribunal’s attention was drawn to the state of the driveway, the position of the tree in relation to the street and structures, and to the ivy growing on the tree. Beneath a steel service cover more or less central in the driveway, there was evidence of roots and subsidence. Elsewhere in the driveway, there was extensive lifting and cracking of the concrete, as well as extensive subsidence. Other (brick) paving adjacent to the concrete driveway was not so impacted. The hearing continued at the Tribunal’s premises later the same morning. At the conclusion of the hearing the Tribunal reserved the decision.
Applicable law
12.Section 21 of the Tree Protection Act provides for the Minister to determine the criteria to be applied when considering an application for approval for a tree-damaging activity. On 4 April 2006 the Minister for the Environment made the Tree Protection (Approval Criteria) Determination (No.2) (the determination) for the purpose of section 21. The relevant criteria for consideration in this case are in paragraphs 1-3 of criterion 1 of schedule 1:
(1)The Conservator of Flora and Fauna (the Conservator) may give an approval to damage a regulated tree under section 25 when:
(a) the tree is in decline and its life expectancy is short; or
(b) the tree represents an unacceptable risk to public or private safety; or
(c) the tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service; or
(d) the location of the tree is inappropriate given its potential size and growth habit (excluding remnant eucalypts); or
(e) the tree is substantially affecting solar access to the lessees lease, or neighbouring lease, during winter between the hours of 9am to 3pm and pruning is not sufficient to remedy this (excluding remnant eucalypts); or
(f) the tree is causing an allergic reaction to an occupant of the lease, or neighbouring lease, and the claim can be supported by certification from a relevant medical specialist; or
(g) where the tree is part of a close planting of a number of trees, the removal of the tree will allow the other trees to develop; and
all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective.
(2)The Conservator may also give an approval under section 25 of the Tree Protection Act 2005 to remove a tree if the tree is located on a block of less than or equal to 1200m2 and is a species listed in Schedule 2.
(3)When deciding whether the criteria in paragraph 1 are met, the Conservator may consider:
(a) any exceptional circumstances that have been raised by the applicant, taking into account advice from the Tree Advisory Panel;
(b) the importance of the tree in the surrounding landscape; and
(c) if the tree is a species listed on schedule 3, whether the tree has ecological importance to the local environment.
Issues
13.The issues for determination are:
(a)whether any of the criteria in paragraph 1 of criterion 1, schedule 1, of the determination are satisfied (taking into account paragraph 3, as applicable); and
(b)if any one or more of the criteria at (a) are satisfied, whether the second condition of paragraph 1 (relating to whether all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective) has also been satisfied.
The applicant’s evidence and contentions
14.The applicant stated in the hearing that the signature on the original application to undertake a tree damaging activity (purporting to be that of the occupier or lessee) was not hers. She nevertheless confirmed to the Tribunal that she supported the application having being made on her behalf. In her submission[12] and in the hearing, she disputed whether the tree fell under the definition of a regulated tree under the Tree Protection Act. She had asked how it had been measured, and felt she had not received an answer. She did not, however, present evidence to call into question the classification of the tree as meeting the definition of a regulated tree under the Tree Protection Act. The applicant also disputed whether the tree was even located within her lease, but again did not herself present specific evidence on this.
[12] Applicant statement of facts and contentions, Exhibit A1, 61 paragraphs, with appendices & addendum
15.In the written material supplied by the applicant to the Tribunal, she had also outlined questions relating to ownership of trees under a leasehold system of land tenure, and to issues of quiet enjoyment by a lessee.[13] Despite being invited on several occasions during the hearing, she did not elaborate on these issues, did not explain their relevance, and did not press these matters. Since the relevance of these aspects was not established, the Tribunal has confined its consideration to the criteria for tree removal under the Tree Protection Act.
[13] Addendum, 2pp, 12 paragraphs, appended to the applicant statement of facts and contentions, Exhibit A1; the addendum also cited an authority, a copy of which was included
16.The applicant sought review of the decision on paragraph 1 criteria (b), (c), and (d), with respect to public and private safety (in the form of the slipping hazard from falling leaves and other plant debris, particularly but not only during wet conditions), damage to structures (in the form of damage to the driveway, which then also presents a hazard), and inappropriate location (the tree roots being said to be too close to essential services of sewerage and water). The original application for reconsideration of the refusal had also been based on the criteria of solar access and allergies (criteria (e) and (f)), but at the hearing the applicant did not present evidence or press those aspects.
17.Under criterion (b) (the tree represents an unacceptable risk to public or private safety), much of her argument was based on the damaged current condition of the driveway. The driveway clearly needs to be reconstructed, but she did little to address the risk from leaf fall and other debris on a stable remediated surface, and why the risk would not be mitigated with normal maintenance. She argued that maintenance in her circumstances was difficult. She held that the slope of the driveway, and the nature of street, when combined with the debris on the driveway, represented an unacceptable hazard.
18.In relation to criterion (c) (the tree is shown to be causing substantial damage to a substantial building, structure or service), she argued that the driveway was a substantial structure, as well as her garage and residence. She went on to argue that the recommended clearance between this species of tree and structures, as given in the various guidelines she had appended to her submission, should apply to the driveway and to the services of water and sewerage, as well as to buildings in the normal sense. The matter of whether the cause of the damage to the driveway, or any other structure, can confidently be attributed to this particular tree was not addressed.
19.Under criterion (d) (The location of the tree is inappropriate given its potential size and growth habits...), the applicant may have misread the tree assessment report[14], claiming[15] that the report agreed with her contention that the tree is inappropriately located.[16] She argued the location is inappropriate by reference to the ACT Design standards for urban infrastructure[17], and a number of similar advisory documents from other jurisdictions, though she did not explore whether and to what extent these guidelines apply in a residential context and in the circumstances of the subject tree. She drew the conclusion that, simply because there is less than recommended clearance between the tree and major structures such as her garage and her neighbour’s house, the tree is inappropriately located.
[14] T documents page 41
[15] Applicant statement of facts and contentions, paragraph 27
[16] The ‘reported’ column of the assessment table relates to whether the criterion had been put forward in the removal request under assessment
[17] Applicant statement of facts and contentions, appendix 1
20.The applicant called Mr Craig Leith as a witness. Mr Leith is a resident of the applicant’s premises, and had provided a witness statement of three pages, including photographs of the condition of the driveway.[18] Mr Leith is a qualified carpenter, currently working as a machine operator. He explained his view that the existence of leaf and other fallen matter from the tree on the driveway constituted a hazard for safe access, and particularly egress down a steep slope onto a busy street, either in a four-wheel-drive vehicle or on a motorbike. He also reported the advice he had received from a plumber that the extensive undermining of the concrete in the driveway was a consequence of root damage.
[18] Witness statement of Mr Craig Leith, exhibit A2, 3pp
21.On questioning, the applicant confirmed that she had not sought expert advice because she did not see the need.
22.It was clear that both the applicant and Mr Leith thought that tree roots were the cause of the subsidence in the driveway, as well as of the lifting of the concrete.
23.Counsel for the respondent pointed out that a number of the opinions expressed by the applicant and Mr Leith were not based on them possessing expert qualifications. Consistent with sections 8 and 26 of the ACT Civil and Administrative Tribunal Act2008, the Tribunal nevertheless chose to consider such material and give it weight appropriate to the circumstances.
The respondent’s evidence and contentions
24.The respondent relied on evidence from Ms Christine Rampling, to the effect that the tree did not present an unacceptable risk to public or private safety, that it had not been shown to threaten or cause substantial damage to services or structures, and was appropriately located.
25.Ms Rampling is a member of the Tree Advisory Panel, has professional qualifications in arboriculture and horticulture, and relevant professional experience. While she was appearing in her role as a member of the TAP, her current employment is with one of the arboricultural businesses in Canberra. She relied on the report she had written for the TAP[19] and gave evidence in which she concluded the application did not meet any of the criteria, including under paragraph 1(b), (c) or (d).
[19] T documents, 25-29
26.While the witness for the respondent undoubtedly has appropriate and relevant professional expert qualifications, the fact she appeared in her role as a member of the TAP and thus as a participant in the decision under review means she was not an independent witness. Again, the Tribunal has to consider how much weight to give to the evidence.
27.Ms Rampling expressed the opinion, after examination of samples under hand lens, that the roots exposed in the service pit within the driveway were almost certainly ivy, and not from the tree proposed to be removed.
28.Ms Rampling also commented that subsidence of the type exhibited in the driveway was common in Canberra, especially where such infrastructure was laid with inadequate ground preparation, and was caused by soil processes mostly unrelated to roots. Heavy vehicular loading also contributed. She said that the evidence in the service pit was that the ground beneath the concrete (which was apparently not reinforced concrete) appeared to be clay, and not a more suitable substrate such as compacted aggregate. She emphasised that the subsidence was the main damage evident in the driveway, and that cracking and lifting by roots was less significant. She specifically rejected the notion that the subsidence was likely to have been caused by prior root damage. In her opinion, even if the tree and the ivy were not present at all, it was likely that much of the subsidence damage would still be evident.
29.Ms Rampling conceded that both the ivy, and the claret ash, were capable of lifting the concrete. She went on to say that the normal remedial treatment in a situation such as this would be reconstruction of the driveway, including compaction and appropriate reinforcement. Prior to this, the ivy should be poisoned and removed, and some root pruning of the claret ash would also likely be needed, but she rejected the suggestion this might compromise the stability of the tree. In her opinion, such remedial treatment was very likely to be effective.
Respondent’s contentions
30.The respondent addressed the issue of whether the tree was a regulated tree by pointing out that the definition applied if any one of the several criteria was met. In the original tree assessment report[20], the tree had been assessed as meeting all three of the criteria relating to overall height, canopy diameter and trunk circumference, even if the values were not far above the threshold. In evidence, Ms Rampling said she had also measured the canopy spread of the tree, and confirmed it met that criterion as a regulated tree.
[20] T documents page 40
31.The respondent addressed the issue of whether the tree was located within the lease by asking Ms Rampling to locate its base on an aerial photograph. In the original version of this document, the base of the tree had been shown as located on unleased land. Ms Rampling marked her opinion as to the correct position of the base of the tree as being within the north-east corner of the lease, adjacent to the driveway[21]. The respondent also pointed out that the applicant has been proceeding on the basis the tree is located on her property.
[21] Exhibit R1, being a copy of the T documents, page 24, on which the witness marked her opinion of the correct location of the base of the tree
32.The respondent contended that it had not been established that any of the criteria had been met. The legislation requires the applicant to demonstrate that the criteria are met, and to provide the data, analysis and persuasive arguments to satisfy the relevant criteria.
Consideration of issues
33.While it might have helped if there was an explanation provided as to how various methods of measurement can be used to assess tree dimensions under the vagaries of field conditions, including when there is heavy ivy growing up the trunk of a tree, the Tribunal is satisfied that the underlying tree in this case fits the definition of a regulated tree. Likewise, the Tribunal is also satisfied that most or all of the base of the tree is located within the applicant’s lease.
34.The Tribunal’s consideration of the evidence in relation to the relevant paragraph 1 criteria follows. Criteria (a), (e), (f) and (g) are either not relevant or in the end were not relied upon by the applicant, even if they had been raised earlier. The remaining criteria are (b), (c), and (d), with the applicant asserting that the tree satisfied all three.
35.Under criterion (b) (the tree represents an unacceptable risk to public or private safety), the applicant outlined an argument that there was risk resulting from the leaf fall and other debris on the driveway. The Tribunal acknowledges that in her age and financial circumstances it might well be a challenge to undertake normal maintenance, or other remedial measures, but the fact of her initiating the tree removal request through a home help agency illustrates that various forms of assistance are available. Ms Rampling expressed the opinion that all of the applicant’s safety concerns could be addressed by reasonable normal maintenance. The respondent also submitted that this is consistent with the conclusions in Kelly.[22]
[22] Kelly v Conservator of Flora and Fauna [2009] ACAT 24
36.Regarding damage to structures under criterion (c) (the tree is shown to be causing substantial damage to a substantial building, structure or service), it was clear from the evidence of Ms Rampling, and in the absence of other expert evidence to the contrary, that there is reasonable doubt that the most serious of the damage evident on site was caused by roots. Even if roots have contributed, there is doubt that the roots involved were from the tree proposed to be removed. Notwithstanding the opinion of the applicant and her witness that the subsidence was caused by tree roots, and that the roots involved were those of the claret ash and not the ivy, these causal relationships remain undemonstrated, and unsupported by appropriately qualified expert testimony.
37.Under criterion (d) (The location of the tree is inappropriate given its potential size and growth habits...), the applicant relied on a literal application of various published guidelines, without addressing their context and relevance. The respondent contended that this specimen is already at or approaching the potential for the species, is appropriately located with adequate clearance past its trunk for access and egress at ground level, and does not in any significant way impede visibility for vehicles entering the street.
38.Persuasive evidence to demonstrate that mitigation measures (after reconstructing the driveway) would be ineffective or unreasonable was not presented. The tribunal accepts that normal maintenance, or remedial measures, might in many circumstances be inconvenient or expensive, but the approved removal criteria require explicit demonstration that reasonable remedial treatments and risk mitigation measures have been determined to be ineffective.
39.The applicant argued there were exceptional circumstances for the purposes of paragraph 3 (a) of the criteria. She asserted that the relatively steep incline of her driveway, combined with the sinuous and busy nature of the street, constituted exceptional circumstances. The respondent submitted that all of the attributes regarding driveway slope, vehicular access or egress, and traffic, were common in Canberra. The Tribunal was not persuaded that there are exceptional circumstances as in Wickerson[23].
Conclusion
[23] Wickerson v Conservator of Flora and Fauna [2018] ACAT 43
40.Criteria (a), (e), (f) and (g) are not relevant to this case and were not relied upon by the applicant.
41.The Tribunal finds that it is not demonstrated that the tree meets any of the criteria (b), (c) or (d).
42.Even if one or more of the criteria had been met, the Tribunal is also satisfied that it has not been demonstrated that “all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective”, as is required by the second part of paragraph 1 of the criteria.
43.None of the conditions of paragraph 1 of criterion 1 are demonstrated.
44.The Tribunal has concluded that none of the conditions for removal have been satisfied and the Conservator’s decision should be confirmed.
………………………………..
Senior Member A Davey
HEARING DETAILS
FILE NUMBER:
AT 34/2018
PARTIES, APPLICANT:
Caroline Ambrus
PARTIES, RESPONDENT:
Conservator of Flora and Fauna
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
Dr D Jarvis
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
TRIBUNAL MEMBERS:
Senior Member A Davey
DATES OF HEARING:
26 July 2018
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