Egan v Conservator of Flora and Fauna
[2016] ACAT 27
•12 April 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
EGAN v CONSERVATOR OF FLORA AND FAUNA
(Administrative Review) [2016] ACAT 27
AT 71 of 2015
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 in decline – 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; 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, 107B
Subordinate
legislation: Tree Protection (Approval Criteria) Determination 2006 (No 2) (DI 2006-60), Schedule 1, criterion 1, paragraphs 1 & 3
Australian Standard 4373
Tribunal: Senior Member A Davey
Date of Orders: 12 April 2016
Date of Reasons for Decision: 12 April 2016
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL AT 71 of 2015
BETWEEN: DEAN EGAN
Applicant
AND:CONSERVATOR OF FLORA AND FAUNA
Respondent
TRIBUNAL: Senior Member A Davey
DATE:12 April 2016
ORDER
The Tribunal orders that:
1. The decision under review is confirmed.
………………………………..
General President L Crebbin
for and on behalf of the Tribunal
REASONS FOR DECISION
The application
This is an application to the Tribunal for review of a reconsidered decision made by the Conservator of Flora and Fauna (the respondent) on 23 September 2015 to refuse approval for the removal of a regulated tree located on block 27 section 56 Farrer, 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.
The applicant is the lessee of block 27 section 56 Farrer. On 12 June 2015, the applicant applied to the respondent for approval to damage two different trees by removing them.[1] The first tree (and the subject of this review application to the Tribunal) is a large remnant Eucalyptus polyanthemos, commonly known as Red Box, located in the back yard of the property, near a metal fence separating the property from a neighbouring property. The reasons cited in the original application in relation to this tree (tree 1) were that the tree “is too close to bushland area and at present is a fire hazard.”[2] The same application also sought approval for removal of a second tree, a Salix babylonica, commonly known as Weeping Willow, on different grounds.
[1] T documents, 22-25
[2] T documents, 24
On 30 July 2015, tree assessment reports were prepared after inspection of the site. The relevant report and fire risk analysis[3] found tree 1 to be in good health and concluded that the tree did not meet any of the criteria set out in schedule 1 of the Tree Protection (Approval Criteria) Determination 2006 (No 2) (DI 2006-60) to support its removal. It was recommended that the application in relation to tree 1 be rejected.[4] The relevant report for tree 2 (the Weeping Willow) recommended that the application in relation to that tree be approved.[5]
[3] T documents, 26-29, 32 and 35
[4] T documents, 27-28
[5] T documents, 30-31
On 5 August 2015, a delegate of the respondent refused the application for the tree (tree 1) 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.[6]
[6] T documents, 38-40
On 21 August 2015, the applicant submitted an application for reconsideration of the decision in relation to the Eucalyptus polyanthemos (tree 1 of the original application, hereinafter referred to as ‘the tree’)[7] under section 106 of the Tree Protection Act, on grounds of decline, fire hazard, risk from dropping branches, and hazard to neighbour’s property. This application included a hand-written report from Steve Griffiths of Treeworks[8], and a letter from Mr Ramsay, the neighbour occupying the adjacent property closest to the tree.[9]
[7] T documents, 47-52
[8] T documents, 51
[9] T documents, 52
Mr Richard Hart conducted an inspection of the tree and prepared a report dated 14 September 2015 for the Tree Advisory Panel (TAP).[10] 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.
[10] T documents, 53-61
At a TAP meeting on 17 September 2015 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.
The respondent then made a reconsidered decision, dated 23 September 2015, to uphold the original refusal.[11]
[11] T documents, 68
On 11 October 2015, the applicant applied to the Tribunal under section 107B of the Tree Protection Act for review of the respondent’s reconsidered decision.
The hearing
Mr Dean Egan represented himself. He gave evidence, as did a neighbour, Mr Ross Ramsay, and a tree expert Mr Ben Mutandadzi. Mr Peter Woulfe, of counsel, represented the respondent, instructed by Mr James Kwan from the ACT Government Solicitor. Dr Peter Coyne gave evidence for the respondent.
The hearing on 17 March 2016 commenced with a site inspection. The Tribunal’s attention was drawn to the structure, form and canopy of the tree, its location in relation to the applicant’s and neighbour’s dwellings and to the metal fence separating the two properties, and the position of the tree in relation to the vegetation on the ridge of public open space generally south-west of the houses on Hawkesbury Crescent. The Tribunal was also shown examples of trees which had failed in various ways within the public land area. The hearing continued at the Tribunal’s premises later the same morning. At the conclusion of the hearing the Tribunal reserved the decision.
After hearing the evidence of Mr Egan and Mr Ramsay, the two tree experts were heard concurrently.
Applicable law
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
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 so, 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.
Agreed facts
The tree is a regulated tree under the Tree Protection Act and it is not disputed that its removal requires approval. It has been identified as a Eucalyptus polyanthemos, commonly known as Red Box, which is listed as a local ecologically beneficial species in schedule 3 of the determination for the purposes of paragraph 1 criterion 3 (c).
The applicant’s evidence and contentions
Mr Egan sought review of the decision on paragraph 1 criteria (a), (b) and (c), with respect to decline, public and private safety (in the form of fire hazard and risk from falling branches), and damage to structures. The Tribunal accepts that Mr Egan is apprehensive about safety.
Counsel for the respondent objected to a number of statements of opinion in the statements of Mr Egan and Mr Ramsay, on the basis they did not possess the expert qualifications to express such opinions. The Tribunal agreed to exclude some such statements, but, consistent with sections 8 and 26 of the ACT Civil and Administrative Tribunal Act 2008, generally preferred to admit such material and give it weight appropriate to the circumstances.
Mr Egan asserted that the tree satisfied all three of the criteria (a), (b) and (c), but did not explain specifically why that was the case, or in what specific ways the analysis conducted by the respondent concluding that the criteria were not met was inadequate or defective.
On questioning, Mr Egan agreed he had not obtained estimates of the cost or effectiveness of maintenance of the tree within Australian Standard 4373 ‘Pruning of amenity trees’ (the standard).
Mr Ross Ramsay, who lives in the neighbouring house closest to the tree, gave evidence that branches had fallen out of the tree in the past. He also suggested that since the tree was within a few metres of the boundary of his property it poses a threat to a substantial structure, namely water tanks on his property, and also a new metal fence on the boundary.
Mr Ramsay, who has experience as a volunteer fire fighter, and who was present during the 2003 bushfires and contributed to the protection of his own and neighbouring properties, asserted that the tree was a fire hazard, but did not explain how the fire hazard assessments that had been undertaken by the respondent were inappropriate, incorrect, or otherwise defective.
The evidence of the tree experts
The applicant relied on the statement of, and oral evidence from, Mr Ben Mutandadzi, that the tree had defects close to ground level and might fail. He considered that the hollows in the base of the tree could indicate instability. Mr Mutandadzi is a practising tree surgeon, with professional qualifications including a Master of Science. He tendered a short written statement in which he reports his observations of the tree.[12] His written statement expresses his opinions in general and qualified terms such as ‘may suggest’, ‘may be posing an unacceptable risk’, or ‘may damage’. His statement does not specifically address the criteria in the determination, and does not refer to any mitigation or remedial measures, but concludes that “I would consider it to be a dangerous tree and I would recommend that it be removed…”.12 In his verbal testimony, he expressed the view that the defects near the base of the tree indicated it could fail, even if the canopy was currently healthy. He also expressed the opinion that the tree could not be pruned in accordance with the standard, although he conceded he had not undertaken analysis to demonstrate this (he had not been asked by his client to undertake such analysis).
[12] Witness statement of B Mutandadzi, exhibit A3, page 1
The respondent relied on the statement of, and oral evidence from, Dr Peter Coyne, to the effect that the tree was structurally sound and in good health, that if properly maintained to normal standards it did not present an unacceptable risk to public or private safety, or fire risk, and that it did not threaten or cause substantial damage to services or structures. Dr Coyne is chair of the Tree Advisory Panel, has professional qualifications in forestry and extensive relevant professional experience. He tendered a detailed written statement[13] and gave evidence in which he concluded the application did not meet any of the criteria, including under paragraph 1(a), (b), or (c).
[13] Witness statement of P Coyne, exhibit R1, pages 1-18
Dr Coyne expressed the opinion that work under the standard to remove dead wood and lighten strategic branches would mitigate any significant safety or fire hazard. He also expressed the opinion that in the absence of relevant fuels distributed beneath or adjacent to the tree, and with quite wide separation from trees on the public land that during a fire incident might provide an ignition source from radiant heat, the fire hazard from the tree was low. Dr Coyne gave a convincing explanation of how he reached his conclusions, and under what conditions he might reach different ones.
Respondent’s contentions
The respondent contended that it had not been established that any of the criteria had been met, and that the Tree Protection Act did not authorise removal of a protected tree on the basis of assertion or speculation. None of the opinions of Dr Coyne had been successfully challenged. The legislation in this case requires the applicant to demonstrate that the criteria are met, and to provide the data, analysis and persuasive arguments to satisfy the relevant criteria. The respondent also contended that paragraph 3 (c) of the criteria, and the objects of the Tree Protection Act, require a high standard of analysis to justify the exercise of discretion for removal of remnant trees of species listed in schedule 3 of the criteria, as is the case here.
Consideration of issues
The Tribunal’s consideration of the evidence in relation to the relevant paragraph 1 criteria follows. Criteria (d), (e), (f) and (g) are not relevant and were not relied upon by the applicant. The remaining criteria are (a), (b), and (c).
Mr Mutandadzi claimed the hollows in the base of the tree indicated it might fail, whereas Dr Coyne pointed to hollows being common in mature eucalypts, and that the tree had a very healthy canopy and other features indicating it was in good health and very likely had many years of life ahead. In relation to criterion (a), the evidence of Dr Coyne, who was able to explain what he would need to see in order to reach a different conclusion, was much more persuasive than Mr Mutandadzi, whose conclusions were consistently general and speculative.
The applicant raised a number of public and private safety issues in relation to the tree under criterion (b). He was concerned about the danger of falling branches, especially onto people. He was also concerned about the fire hazard. Dr Coyne for the respondent expressed the opinion that all of the applicant’s safety concerns could be addressed by reasonable normal maintenance, and advanced a convincing case as to why apprehension about fire hazard was unfounded in the circumstances of this particular tree. Mr Mutandadzi expressed the opinion that this tree could not be pruned within the standard to mitigate the risk, but admitted he had not completed analysis to demonstrate this.
Dr Coyne also made a persuasive case that criterion (b) refers to ‘unacceptable risk’, as distinct from risk in general, and requires consideration of the relative acceptability of the many risks faced in the community, and the relative prevalence of incidents of different types. The Tribunal accepts that criterion (b) requires that the unacceptability of the risk be considered, and that apprehension on its own is not sufficient to satisfy the criterion. Dr Coyne provided persuasive evidence that, relative to other factors, the risk of death, injury or damage from maintained trees, in the absence of objective evidence indicating likely failure, was low.
Regarding damage to structures under criterion (c), it was clear from the evidence of Mr Ramsay that branches had fallen in the past, but it was also evident that little damage had resulted. The opinion of Dr Coyne was that any potential for such damage was low, and capable of being mitigated by normal maintenance. Mr Mutandadzi expressed the contrary view, but had not undertaken analysis to demonstrate it.
The applicant did not seek to argue there were exceptional circumstances for the purposes of paragraph 3 (a) of the criteria.
Conclusion
Criteria (d), (e), (f) and (g) are not relevant to this case and were not relied upon by the applicant.
The Tribunal is faced with differing opinions from the tree experts on the issues that arise under paragraph 1 criteria (a), (b) and (c). The Tribunal prefers the evidence of Dr Coyne over that of Mr Mutandadzi, and notes that none of the evidence of Dr Coyne was successfully challenged. The Tribunal therefore finds that it is not demonstrated that the tree meets any of criteria (a), (b) or (c).
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.
None of the conditions of paragraph 1 of criterion 1 are demonstrated.
The Tribunal has concluded that none of the conditions for removal have been satisfied and the Conservator’s decision should be confirmed.
………………………………..
General President L Crebbin
for and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER: | AT 71/2015 |
PARTIES, APPLICANT: | Dean Egan |
PARTIES, RESPONDENT: | Conservator of Flora and Fauna |
COUNSEL APPEARING, APPLICANT | Self-Represented |
COUNSEL APPEARING, RESPONDENT | Mr P Woulfe |
SOLICITORS FOR APPLICANT | Self-Represented |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
TRIBUNAL MEMBERS: | Mr A. Davey |
DATES OF HEARING: | 17 March 2016 |
5
0
2