Grafton v Conservator of Flora & Fauna (Administrative Review) - [2021] ACAT 124

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GRAFTON v CONSERVATOR OF FLORA & FAUNA (Administrative Review) [2021] ACAT 124

AT 64/2021
Catchwords: ADMINISTRATIVE REVIEW – tree protection – reconsidered decision by Conservator of Flora and Fauna to refuse approval to remove regulated tree – criteria for tree damaging activity – whether tree represents an unacceptable risk to public or private safety – whether tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure – whether all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective – Conservator’s decision confirmed
Legislation cited: Nature Conservation Act 2014
Tree Protection Act 2005 ss 3, 8, 10, 12, 15, 19, 21, 22, 25, 68, 69, 106, 107, 107B

Subordinate
Legislation cited: Tree Protection (Approval Criteria) Determination 2006 (No 2), sch 1 ss 1, 6

Cases cited:Bozin v Conservator of Flora and Fauna[2010] ACAT 91
Egan v Conservator of Flora and Fauna[2016] ACAT 27
Maleganeas and Conservator of Flora & Fauna [2007] ACTAAT 24

Tribunal:Senior Member E Ferguson

Date of Orders:  17 December 2021
Date of Reasons for Decision:      17 December 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 64/2021
BETWEEN:
RUPERT QUENTIN GRAFTON
Applicant

AND:
CONSERVATOR OF FLORA AND FAUNA
Respondent

TRIBUNAL:Senior Member E Ferguson

DATE:17 December 2021

ORDER

The Tribunal orders that:

The Conservator’s decision is confirmed.
………………………………..

Senior Member E Ferguson

REASONS FOR DECISION

Introduction

The applicant, Professor Grafton, has a large mature Eucalyptus blakelyi (Blakely’s red gum) growing in his backyard in Weetangara. Earlier this year the tree dropped a major branch destroying part of the fence he shares with his neighbours, Mr and Mrs Pearcy who live next door. Professor Grafton was concerned that the tree might drop more limbs resulting in further property damage or personal injury. He sought to remove the tree to avert that risk. As the tree is a regulated tree under the Tree Protection Act 2005 (the Act) he applied to the Conservator of Flora and Fauna (the Conservator) for approval to remove it.
The Conservator may give approval to damage a regulated tree if at least one of the criteria listed in the Tree Protection (Approval Criteria) Determination 2006 (No 2) schedule 1, section 1 (the Approval Criteria) is satisfied and all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective to address the issue.
The Conservator refused to approve removal of the tree.[1] However it should be noted that on 4 March 2021 the Conservator approved major pruning and canopy reduction for the tree as proposed by ACT Tree Felling[2], in response to an application lodged by Mr Pearcy. The canopy of the tree extends over both Professor Grafton’s property and that of his neighbours Mr and Mrs Pearcy (the properties).
[1] Made pursuant to Tree Protection Act 2005 section 25
[2] T-documents page 137
Professor Grafton sought a reconsideration by the Conservator of its original decision[3] on the grounds that the tree met the following Approval Criteria for removal:
(a)Schedule 1, section (1)(a): The tree is in decline and its life expectancy is short.
(b)Schedule 1, section (1)(b): The tree represents an unacceptable risk to public or private safety.
(c)Schedule 1, section (1)(c): The tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure, or service.
[3] Pursuant to Tree Protection Act 2005 section 107B
Upon reconsideration the Conservator confirmed its original decision because it was not satisfied that any of the Approval Criteria relied upon by Professor Grafton were established. The Conservator’s assessment of the criteria was informed by the report of the Tree Protection Panel (TAP) (the TAP Reconsideration Report) which endorsed the risk assessment conducted by Dr Coyne, a qualified arborist and member of the panel.[4]
[4] T-documents pages 206-209, Tree Advisory Panel Report – Reconsideration
Professor Grafton applied to the ACAT to review the Conservators reconsidered decision.[5]

The hearing

[5] Pursuant to the Tree Protection Act 2005 section 107B

I heard the application on 14 October 2021 and reserved my decision.
Professor Grafton represented himself. The Conservator was represented by Ms Sonja Gasser and Ms Georgia Junakovic of the ACT Government Solicitor. Also present was Mr Mark Diehm from the Tree Protection Unit, a delegate of the Conservator.
The following witnesses gave evidence under oath and were cross-examined:
(a)Professor Grafton.
(b)Dr Coyne, arborist and member of the Tree Advisory Panel, who was called by the respondent.
(c)Professor Kompas, an expert in probability and risk assessment, who was called by the applicant.

Summary of decision

After considering the parties submissions and evidence, including the advice of the TAP, I decided to uphold the Conservator’s reconsidered decision because Professor Grafton had not established by evidence or argument that any of the Approval Criteria were met. The reasons for my decision are set out in full below.
In this decision a reference to the ‘tribunal’ or ‘ACAT’ refers to the ACT Civil and Administrative Tribunal generally and a reference to the ‘Tribunal’ or in the first person refers to the member who heard the matter.

How does the tribunal conduct a review?

In conducting a review the tribunal exercises the functions the Conservator had under the Act to reconsider its original decision.[6] It must make an order to either confirm, vary or set aside the Conservator’s decision.[7] In making my decision on whether to approve removal of the tree I must have regard to the same matters the Conservator was required to consider under section 25(3) of the Act. When made, such an order is taken to be the decision of the original decision maker.[8]
[6] Tree Protection Act 2005 section 68(2)
[7] Tree Protection Act 2005 section 68(3)
[8] Tree Protection Act 2005 section 69(2)(a)
In Bozin v Conservator of Flora and Fauna[9] the tribunal set out the task of the Tribunal in hearings as follows:
The Tribunal’s task, standing in the shoes of the Conservator, is to undertake a fresh consideration of the application to remove the subject tree, having regard to the evidence currently available and to the criteria for removal in the Criteria Determination.
[9] [2010] ACAT 91 at [27]
In Egan v Conservator of Flora and Fauna[10] the tribunal adopted the respondent’s contentions that:
[10] [2016] ACAT 27 at [25]
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.

Legislative scheme

Tribunal’s jurisdiction

Section 107B of the Act provides for review by the Tribunal of a decision of the Conservator under section 107 following reconsideration of a decision originally made pursuant to section 25 of the Act.
Applicable law
The objects of the Act are set down in section 3 which provides:
(1) The objects of this Act are—
(a)to protect individual trees in the urban area that have exceptional qualities because of their natural and cultural heritage values or their contribution to the urban landscape; and
(b)to protect urban forest values that may be at risk because of unnecessary loss or degradation; and
(c)to protect urban forest values that contribute to the heritage significance of an area; and
(d)to ensure that trees of value are protected during periods of construction activity; and
(e)to promote the incorporation of the value of trees and their protection requirements into the design and planning of development; and
(f) to promote a broad appreciation of the role of trees in the urban environment and the benefits of good tree management and sound arboricultural practices.
Section 8 defines a ‘protected tree’ to include a ‘regulated tree’ and section 10 defines a ‘regulated tree’ as:
(1) A regulated tree is a living tree (other than a registered tree or a palm tree) that is on leased land within a tree management precinct and—
(a)is 12m or more high; or
(b)has a trunk with a circumference of 1.5m or more, 1m above natural ground level; or
(c)has 2 or more trunks and the total circumference of all the trunks, 1m above natural ground level, is 1.5m or more; or
(d)has a canopy 12m or more wide.
Section 15 of the Act provides that it is an offence to damage a protected tree unless, pursuant to section 19 of the Act, approval has been granted by the Conservator under section 25 of the Act.
Section 25(3) of the Act sets out the matters to which the Conservator, and therefore, this Tribunal, must have regard to when making a decision on an application to damage a protected tree, namely:
(a)     the approval criteria; and
(b)     the advice (if any) of the advisory panel; and
(c)     the advice (if any) of an entity to which the application was referred under section 24A; and
(d)     anything else the conservator considers relevant.
Section 21 of the Act provides for the Minister to determine the criteria to be applied when considering an application for approval for a tree-damaging activity.
The relevant criteria for consideration in this case are:
(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
…
all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective.[11]
[11] Tree Protection (Approval Criteria) Determination 2006 (No 2) schedule 1, section 1
Criteria 1(1)(d) and (e) do not apply to a remnant eucalypt and thus are not applicable to the tree.
Criteria 1(1)(f) and (g) were not raised.
Criterion 3 states:
(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; and
(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.
The applicant did not raise any exceptional circumstances and the tree is a listed tree under schedule 3. Accordingly, it is open to me, when deciding whether any of the relevant criteria in 1(1) are met, to consider the matters referred to at criteria 1(3)(b) and (c).

Issues

The issues for determination are whether approval may be given to remove the tree by reference to the Approval Criteria, in particular criteria 1(1)(a), (b), (c) and if so whether all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective.

Background

The following facts are undisputed. I have adapted and incorporated the respondent’s chronology as appropriate.[12]
[12] Respondent’s written submissions dated 24 September 2021 at paragraphs 7-15
(a)The tree is a ‘regulated tree’ within the meaning of section 10 of the Act for the following reasons:
(i)      It is approximately 15.8m high;
(ii)     Has canopy spread of approximately 25m high; and
(iii)   The circumference of the trunk at 1m high, is approximately 6.9m (three co- dominant leaders).
(b)The tree is a remnant Eucalypt.
(c)On 23 January 2021 a large leader fell from the tree and crashed through the fence on the boundary with Mr and Mrs Pearcy’s property. It destroyed a section of the fence and damaged a clothesline in Mr and Mrs Pearcy’s backyard before coming to rest spanning the two properties.
(d)On 25 January 2021 Professor Grafton lodged an application to undertake a tree damaging activity under section 22 of the Act (the Tree Damaging Application). Specifically he sought approval to remove the tree.
(e)On 29 January 2021 an officer of the Conservator assessed the tree.
(f)On 5 February 2021 Mr Pearcy lodged an application to undertake a tree damaging activity in relation to the Tree. He sought approval for either felling or removal, major pruning or lopping.
(g)On 18 February 2021 Professor Grafton received a quote from Mr Ryan Winefiled of ACT Tree Felling in relation to proposed works to be carried out on the tree (the ACT Tree Felling Quote).
(h)On 26 February 2021 the Conservator made a decision under section 25 of the Act not to grant the tree damaging application (the First Decision) and sent a notice of the decision to Professor Grafton.
(i)On 4 March 2021 the Conservator refused to approve Mr Pearcy’s application to remove the tree but granted approval for major pruning and canopy reduction to occur as proposed by the ACT Tree Felling quote.
(j)On 4 March 2021 Professor Grafton applied for a reconsideration of the original decision on his application under section 106 of the Act. In accordance with section 107 of the Act, The TAP was asked for advice on the application for reconsideration.
(k)On 27 April 2021 Dr Coyne, a qualified arborist and member of the TAP inspected the tree and prepared the TAP Reconsideration Report, which was endorsed by the TAP on 5 May 2021.
(l)On 28 May 2021, the Conservator made a decision (the Reviewable Decision) under subsection 107(3)(b) of the Act to confirm the First Decision. A Notice of the Reconsidered Decision was sent to Professor Grafton on 28 May 2021.
(m)On 8 June 2021 the Conservator provided a statement of reasons for the Reviewable Decision (the Statement of Reasons).
(n)On 20 July 2021 Professor Grafton applied to the Tribunal for review of the Reviewable Decision.

The view

I conducted a site inspection of the subject tree and property on the morning of the hearing. Professor Grafton gave me access to the backyard where the tree was located but I conducted the inspection alone.
From ground level in the backyard I noted the general appearance and location of the tree and its proximity to structures. I also viewed the spread of the canopy over the Pearcy’s property from the street. I did not take measurements or photographs.
The tree had three main branches. Some small dead branches were visible. I observed evidence of healed scars consistent with prior pruning.
Above head height was what appeared to be the stub from a fallen branch. The fallen branch had been removed. A new section of fence was visible.
The canopy extended over the boundary fence and the Pearcy’s carport and a low internal fence joining the carport to the boundary fence. From my vantage point it did not appear to extend over their house.
The canopy also extended over a large proportion of Professor Grafton’s backyard. This area contained lawn, garden beds and one small tree. A branch extended over one side of Professor Grafton’s roof.
Criterion 1(1)(a) - the tree is in decline and its life expectancy is short
Professor Grafton submitted that a reasonable person would conclude that the tree is in decline for two reasons:[13]
(1) The tree has dropped three branches in five years, including a very large branch the size of a medium-sized tree on 23 January 2021 and where, at the base of this fallen branch, there was evidence of fungal damage
(2) Notwithstanding contradictory statements in relation to the health of the tree, Peter Coyne observed and photographed multiple cases of decay in the tree, including decay at the heart of the bases of the very large branch that fell on 23 January 2021
[13] Application for review of a decision filed 20 July 2021, page 2
I will consider each reason in turn.
The tree has dropped three branches in five years, including a very large branch the size of a medium sized tree on 23 January 2021 and where, at the base of this fallen branch, there was evidence of fungal damage
At the hearing Professor Grafton gave sworn evidence, which I accept, that prior to the branch drop on 23 January 2021 the tree had dropped two other smaller branches. In 2015 a branch fell across the fence between the neighbouring properties. It damaged an extension attached to the top of the fence to increase its height. The damage was repaired.
In 2017 the smallest branch dropped into Professor Grafton’s backyard. No damage was caused.
On 25 May 2015 Professor Grafton obtained a report from Kieran Wallace, an arborist from ACT Tree Felling.[14] In his report Mr Wallace described his brief as follows:
ACT Tree Felling were contacted and requested to send a consulting Arborist to the site to inspect a protected tree that had ‘a growth on it’; to provide advice and a brief report on the stability of that part.
[14] Application for review of a decision filed 20 July 2021, attachment 9
Mr Wallace identified a defect with wood loss on the southern leader. He did not recommend any remedial action and instead recommended re-inspection in two years. He estimated the age of the tree at 300 years but did not observe that the tree was in ill health or in decline.
In his report of 24 September 2021 prepared for these proceedings Dr Coyne estimated that the tree was approximately 120 to 150 years old and no more than half-way through its natural life.[15] He considered the tree to be mature but not in decline and observed, “Mature trees are not in decline, but some individual branches die and eventually fall”.[16]
Notwithstanding contradictory statements in relation to the health of the tree, Peter Coyne observed and photographed multiple cases of decay in the tree, including decay at the heart of the bases of the very large branch that fell on 23 January 2021
[15] Report by Dr Peter Coyne dated 24 September 2021 at paragraph 10
[16] Report by Dr Peter Coyne dated 24 September 2021 at paragraph 11
Professor Grafton is apparently referring to the observations made by Dr Coyne in his report for the TAP and referenced in the Conservator’s Reviewable Decision at paragraphs 10(d) and 17.[17]
[17] Conservator’s Statement of Reasons in T-documents page 30-33 at paragraphs 10(d) and 17
I did not find Dr Coyne’s statements contradictory. In his report of 24 September 2021 Dr Coyne summed up his earlier observations and conclusions in relation to decay as follows:
… No other sites of decay [apart from in the stub from the fallen branch] were observed, but my April report identified some sites which could, potentially, become sources of decay, and which would be targets for monitoring. …[18]
[18] Report by Dr Peter Coyne dated 24 September 2021 at paragraph 16
Professor Kompas is a Professor of Environmental Economics and Biosecurity and Chief Investigator, at the Centre of Excellence for Biosecurity Risk Analysis, School of Biosciences and School of Ecosystem and Forest Sciences at the University of Melbourne. He described his field of expertise as probability and risk assessment.
Professor Grafton adduced in evidence email correspondence from Professor Kompas in which Professor Kompas opined that the tree was in decline. Professor Kompas told the Tribunal he reached that conclusion on the basis of information provided by Professor Grafton, including Dr Coyne’s reports. During cross examination Professor Kompas conceded that he is not an expert in trees and did not inspect the tree in question.[19]
Finding
[19] Transcript of proceedings 14 October 2021, page 45
Professor Grafton failed to establish that the tree is in decline and that its life expectancy is short. The only report from a qualified arborist which Professor Grafton adduced was that of Mr Wallace. Mr Wallace’s report was in response to a limited brief and based on an inspection conducted some six years ago. Mr Wallace did not find either that the tree was in decline or at the end of its natural life. His opinion was only inconsistent with that of Dr Coyne’s on the issue of the age of the tree.

Dr Coyne acknowledged the presence of decay in the stub of the recently fallen branch and the potential for decay in other areas. In his report of 24 September 2021 he observed:
Trees produce branches and they grow bigger and some of the branches they’ve produced in the past aren’t needed anymore and they die and it’s a perfectly normal more or less a cycle, I suppose, of material which is created and dies and falls to the ground and decays and the nutrients are reabsorbed and produced into new growth and that is a feature of all trees.[20]
[20] Transcript of proceedings 14 October 2021, page 58
I accept Dr Coyne’s opinion that the tree is no more than halfway through its natural life and is not in decline for the following reasons:
(a)He was tasked, on behalf of the TAP, to examine the tree and assess it against the relevant Approval Criteria, including whether it was in decline and near the end of its natural life.
(b)He is qualified by his training and experience to express an opinion on the age and condition of the tree.[21]
(c)His opinion was based on a recent inspection of the tree and the photographs he took during that inspection.
(d)Dr Coyne’s evidence was credible and well-reasoned and withstood being tested on cross examination.
Criterion 1(1)(b) – the tree represents an unacceptable risk to public or private safety
[21] Transcript of proceedings 14 October 2021, page 104
As Professor Grafton correctly observed:
The relevant probability of injury or death from a falling tree is a conditional probability, not an average probability over the entire Australian population. That is to say, the probability of suffering death or injury or death is conditional on the circumstances of each individual [emphasis in original].[22]
[22] Applicant’s written submissions dated 6 September 2021, page 3
He submitted that Dr Coyne had misunderstood, or failed to apply, this fundamental principle of risk assessment, and that, as a result his conclusions could not be relied upon.
Professor Grafton relied on the opinion of Professor Kompas expressed in a series of emails to Professor Grafton and adduced in evidence. Professor Kompas gave evidence at the hearing and was cross examined. He also engaged in a discussion with Dr Coyne at the hearing about the risk assessment methodology adopted by the TAP in this case.
Dr Kompas confirmed that he had not undertaken his own risk assessment of the tree. However, he challenged Dr Coyne’s risk assessment on the following grounds:[23]
(a)It was based on average rather than conditional probability of the relevant risk.
(b)In particular it did not take into account the relevant factual conditions that:
(i)      “the tree has consistently dropped limbs (3 in the past 5 years) and, in January 2021, the limb that dropped could easily have killed either Mr Grafton or his neighbours…”
(ii)     The type of tree.
(iii)   It’s age.
(c)It took into account the irrelevant consideration of Dr Coyne’s assessment of the general health of the tree.
(d)Dr Coyne used the wrong risk threshold; he should have used the principle of “As Low as Reasonably Practical (ALARP)” which Professor Kompas described as a fundamental principle of risk management which “states that risk is ‘tolerable’ when it cannot be further reduced without the costs or resources of risk mitigation being disproportionate to the benefits (avoided damages)”.
(e)The risk of Professor Grafton incurring legal liability as a result of future property damage or personal injury caused by branches falling from the tree should be taken into account.
[23] Email from Professor Kompas dated 22 August 2021 (updated from the email from 9 August 2021); applicant’s submissions filed 6 October 2021, attachment 2, expert statement of Professor Kompas dated 6 October 2021.
Dr Coyne concisely explained the methodology he used in his risk assessment for the TAP Reconsideration Report to the Tribunal as follows:
The tribunal will see what I have put in my report and I discussed this tree specifically with respect to the risk ratios of one in 10,000 and one in a million. The starting point certainly was that the average risk of fatalities from trees in private gardens in Australia is one in a hundred million. That’s established in carefully compiled statistics. I then considered how much more dangerous that this tree would be than a typical garden tree. I accept that it might be more dangerous than a typical garden tree but how much? I raised the hypothetical possibility that this tree is a hundred times as risky and that the risk might therefore be one in a million. It’s hypothetical because nobody can put a precise number on it.
If it was one in a million, if this tree was a hundred times the average risk, one in a million is still not considered an international risk management sufficiently dangerous to be worth intervening at all. The internationally accepted threshold for unacceptable risk I recognise that that’s not necessarily what the tribunal will see as the threshold, but that’s the one that I have been using. For this tree to meet the threshold of one in 10,000 would mean that it would have to be 10,000 times as dangerous as your typical Australian garden tree.
I can’t say exactly how this tree compares with all garden trees in Australia, obviously, but I have looked at a lot of trees in a lot of gardens in Canberra over the last 16 years and on the basis of the existing evidence I didn’t see anything that suggested that this tree was more dangerous than the average garden tree. And, in fact, I would say it was less dangerous because it’s had prudent competent pruning in the past which would have removed the dead wood that we were talking about before and might have removed things which were seen to be potentially problematic.
So I really think this tree is less dangerous than the common ordinary garden tree which frequently has no maintenance. And that’s excluding the branch which fell, which has gone and there’s – I haven’t seen any evidence of decay anywhere else to suggest the repetition of that is likely.[24]
[24] Transcript of proceedings 14 October 2021, page 61
Although Dr Coyne conducted his risk assessment by reference to an average probability he clearly takes into account individual characteristics of the subject tree including size, condition, growth habit, location and age in determining whether it is an ‘unacceptable risk’. He provides a reasoned explanation of the meaning of ‘unacceptable risk’ in the context of the objects and scheme of the legislation.
Although Professor Grafton informed the Conservator in his application for reconsideration that, “The tree has dropped three branches (by far the largest in January 2021) in the past 5 years”,[25] no further particulars are provided to suggest that private or public safety was endangered by the previous smaller branch drops. As I understand it, Professor Grafton raised these incidents to demonstrate the tree’s tendency to drop branches.
[25] T-documents page 207, TAP Report- Reconsideration
Dr Coyne took into account the branch fall on 23 January 2021, but did not specifically address the earlier incidents reported by Professor Grafton. Dr Coyne observed in his report of 24 September at paragraph 18:
Branches fall from all trees. While regular, competent, maintenance pruning reduces the frequency of branches falling, it will not eliminate falling branches. Most branches which fall unexpectedly are small and do not threaten personal safety or property damage.
Dr Coyne inspected the branch which fell on 23 January 2021, the location it fell from, the damage it caused and used that information in his risk assessment.
Professor Grafton also argued that the risk assessment should have taken into account evidence of the general characteristics of trees of the same species, size or age such as:
(a)the growing prevalence in the ACT of dieback amongst trees of the same species as the subject tree, although he stressed at the hearing that he was not asserting this particular tree was afflicted;[26]
(b)the known risks associated with planting large/mature trees close to house.
[26] Transcript of proceedings 14 October 2021, page 104
Professor Grafton asked the Tribunal to consider various academic, media and government publications not directly relevant to the subject tree or the tree Approval Criteria. These publications dealt with risk assessment, tree management, particularly in an urban environment, characteristics of Eucalyptus blakelyi, and the prevalence of dieback in the ACT. Although that material provided context it did not assist the Tribunal to decide whether the Approval Criteria were satisfied in respect of this particular tree.
Overall, I agree with Ms Gasser’s submission made at the hearing regarding Dr Coynes’ risk assessment that:
His analysis was an assessment and has been quite reasonable, particularly given as he indicated the time constraints, the number of sites he needs to visit, the limited data that’s available in relation to trees. Because only very few of them drop branches that actually kills someone. And the records are of limited depth.[27]
Finding
[27] Transcript of proceedings 14 October 2021, page 107
Professor Grafton did not present the Tribunal with an alternative risk assessment, instead he sought to call into doubt the TAP Reconsideration Report the Conservator had relied on in reaching its decision on reconsideration. Even if he had succeeded in this purpose, it would not lead to a finding that the criterion is met. Professor Grafton has the onus of establishing by evidence and argument that the continued existence of the tree represents an unacceptable risk to public or private safety within the meaning of the Act. In my view he has failed to discharge that onus and therefore the criteria is not established.
Criterion 1 - all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective
In exercising the power of the Conservator I may only approve damage to a regulated tree if both: 1) one of the specific criteria listed in subsection 1(1) is satisfied, and 2) all other risk mitigation measures have been determined to be ineffective.
I have already determined that Criterion 1(b) is not satisfied therefore I cannot approve removal of the tree on that ground. Although it is not necessary for me to do so I will also consider whether, had the criterion been established, all other reasonable remedial treatments and risk mitigation measures have been determined ineffective to address the unacceptable risk identified to public or private safety.
The following facts were agreed or established to my satisfaction on the documentary evidence:
(a)The tree has been pruned in the past.
(b)On 25 May 2015 Kieran Wallace from ACT Tree Felling, after identifying a fault in the tree, recommended it be re-inspected in two years time.
(c)On the following occasions tree lopping or major pruning, both of which are tree damaging activities,[28] has been approved by the Conservator:
(i) On 20 December 2004 the Conservator refused Professor Grafton approval to remove tree but granted approval for lopping subject to conditions.
(ii) On 4 March 2021 the Conservator granted Mr Pearcy approval in identical terms to the recommendation they made to Professor Grafton in February 2021 – the approval remains current until 24 March 2026.
(d)On 26 February 2021 the Conservator notified Professor Grafton of its decision to refuse approval to remove the tree but recommended “major pruning and canopy reduction be undertaken as proposed by ACT Tree Felling, in a report by Ryan Winefield, Date 18 February 2021”.
(e)As at the date of the hearing Professor Grafton had not undertaken the major pruning and canopy reduction approved by the Conservator, preferring to await the Tribunal’s decision on his preferred outcome, that is removal of the tree.[29]
[28] Section 12 (g) and (e)
[29] Transcript of proceedings 14 October 2021, page 32
The risk of injury from falling branches cannot be completely eliminated unless the tree is removed. However, the balance of evidence supports the view that regular pruning will reduce whatever level of risk exists.
This tree has been pruned in the past and as Dr Coyne observes:
In this tree, pruning has reduced the incidence of unexpected branch fall, so the tree presents less risk than a tree of similar age which has not been pruned.[30]
[30] Report by Dr Peter Coyne dated 24 September 2021 at paragraph 53
I am satisfied that past pruning has reduced the current risk of unexpected branch fall. However, Professor Grafton did not follow the recommendation made by ACT Tree Felling on 25 May 2015 to have the tree re-inspected in two years’ time. He conceded during cross examination that apart from a brief inspection by ACT Tree Felling in 2019, no further action was taken to monitor or maintain the tree, before the large branch fell on 23 January 2021. Most significantly Professor Grafton had not availed himself of the opportunity to undertake he major pruning and canopy reduction approved in March 2021. Both pruning and annual inspections by a qualified arborist are examples of reasonable remedial treatments or measures for a regulated tree.[31]
[31] Tree Protection (Approval Criteria) Determination 2006 (No 2) schedule 1, section 6
Since Professor Grafton has not availed himself of all reasonable measures to reduce risk, I could not determine that such measures would be ineffective.
Criterion 1(1)(c) - the tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure, or service
This criterion, unlike 1(1)(a), does not refer to unacceptable risk but rather to the threat of substantial damage.
‘Substantial’ has been interpreted previously by the tribunal as meaning, “large weighty, considerable, solid or big and not trivial, minimal or nominal”.[32]
[32] First considered by the former ACT Administrative Appeals Tribunal in Maleganeas and Conservator of Flora & Fauna[2007] ACTAAT 24 at [34] (Maleganeas), citing decisions of the Full Federal Court in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Unions (1979) 27 ALR 367 and Commissioner for Superannuation v Scott [1987] FCA 98, applied in Maciejewski v Conservator of Flora and Fauna [2013] ACAT 78 at [93].
Although the tree damaged the fence in January 2021, it is not alleged that the tree is currently causing damage to any building, structure or service.
Professor Grafton’s concern is that it threatens to cause substantial damage both to his roof and to Mr and Mrs Pearcy’s home and carport, each of which are substantial structures.
Professor Grafton’s roof
A large branch overhangs Professor Grafton’s’ house by approximately five metres.
It is directly above the living and dining room. He is concerned that should it fall it would cause substantial damage to his roof and potentially injure or kill those inside.
It is not disputed that Professor Grafton’s roof is, or forms part of, a substantial building. The question is whether the tree has been shown to be threatening to cause it substantial damage.
Dr Coyne in his report of 24 September 2021 stated:
Based on my experience, I am firmly of the opinion that if the branch in my Figure 2 fell, it would not penetrate the roof structure. The part of the branch over the house is mainly small diameter, flexible, branches and foliage. The branch is only 4-5 m above the roof, so it would not have far to fall. A few tiles could be broken and perhaps the gutter bent at the point of impact. The extent of damage would not be considered substantial and anyone in the room would be at no greater risk than “Fright”. I did not identify significant risk in April.[33]
[33] Report by Dr Peter Coyne dated 24 September 2021 at paragraph 60
He went on to say:
I did not claim to be an engineer or a builder but I have some training in engineering. Roof trusses can absorb a great deal of energy. I have enough experience with trees to be confident my statement was correct and I stand by it.[34]
[34] Report by Dr Peter Coyne dated 24 September 2021 at paragraph 62
Whilst not professing expertise, Mr Coyne told the hearing that as part of his degree he took a course in civil engineering which included the design of various structures including buildings.
Professor Grafton produced an online article about a large branch falling from a tree and causing significant damage to the roof of a house. As Dr Coyne’s observed the accompanying photograph showed that the roof timbers had penetrated the ceiling of a bedroom but the branch remained above the room and supported by the roof. However, it was also clear that substantial damage had been caused to the roof and ceiling and a great deal of debris entered the room.
The article dramatically illustrated that large trees can cause substantial damage to rooves in certain circumstances. However, it did not help me determine whether the tree in this case was threatening to do so. I preferred the evidence of Dr Coyne as the best evidence available to the Tribunal on this issue.
Structures on the neighbouring property
Professor Grafton submitted that a branch extended over and threatened to damage the corner of the Mr and Mrs Pearcy’s house and carport. When I conducted the view I could see that the canopy of the tree extended over Mr and Mrs Pearcy’s carport and part of their garden and came close to the roof of their house but it did not appear from my vantage point at the front of the property to extend over the roof, however I accept that an incursion over the rear of the roof might have been visible from another angle. The photographs in evidence did not clearly show the branch extending over the house. In any event I was satisfied that the carport is a substantial structure.
Dr Coyne’s evidence did not address the risk of damage to structures on the Pearcy’s property.
Finding
Professor Grafton established the following facts which he relies on to support a finding that Criterion 1(1)(c) is satisfied:
(a)Large branches extended over substantial structures on both properties.
(b)On at least one occasion a large branch has fallen onto a house in Canberra and caused substantial damage to it.
(c)The tree has dropped three branches in the last six years, most significantly a large leader which damaged the fence between the properties.
I accept the respondent’s submission that, unlike Professor Grafton’s roof, the fence which was damaged in January is not a ‘substantial structure’.
Mature trees drop branches, the risk and frequency and consequences of this occurrence can be mitigated by maintenance including appropriate pruning. When a branch drops it may fall on a structure located below it. Whether it causes substantial damage or not depends on a range of factors including the size and weight of the branch at the point of impact, the distance it falls, and the strength of the structure.
There was insufficient evidence before me to support a finding that any of the tree branches currently threaten to fall on any of the substantial structures identified, or that if such a fall occurred it would cause substantial damage to that structure. The threat of substantial damage must be assessed as at the date of hearing. As the tribunal in Maleganeas observed, “whether it might, in the future, develop into substantial damage or threaten to cause such damage is not the question”.[35]
[35] Maleganeas, at [40]
Importantly the major pruning and canopy reduction approved by the Conservator in March 2021 was designed to reduce the risk of tree parts falling on either property. That approval is current. Even if criterion 1(c) had been established there is no logical basis for finding that all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective when Professor Grafton has not availed himself of the most obvious remedial action available.
Criterion 1(3)(b) and (c)
(3) When deciding whether the criteria in paragraph 1 are met, the Conservator may consider:
(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.

The species of tree is listed in schedule 3 as a locally ecologically beneficial species. I accept Dr Coyne’s opinion that, although the tree is not part of a woodland and thus protected under the Nature Conservation Act 2014, it has habitat value as an individual tree.[36]
[36] Report by Dr Peter Coyne dated 24 September 2021 at paragraph 13
The Conservator submitted that, on the basis of the tree’s importance in the surrounding landscape, and its ecological importance:
To the extent that any tree damaging activity were to be approved, the type of activity that would cause the least impact on the tree is to be preferred. For instance, appropriate pruning is to be preferred over removal of the entire Tree.[37]

Conclusion

[37] Respondent’s written submissions dated 24 September 2021 at paragraph 75

I have not approved any tree damaging activity because on the balance of evidence before me, the relevant Approval Criteria were not satisfied. I note however that the Conservator has already approved a less drastic tree damaging activity in relation to this tree on the application of Professor Grafton’s neighbour, Mr Pearcy. The current approval provides an opportunity to mitigate the risk the tree poses whilst preserving its ecological value.
………………………………..

Senior Member E Ferguson

Date(s) of hearing	14 October 2021
Applicant:	In person
Solicitor for the Respondent:	Ms S Gasser and Ms G Junakovic, ACT Government Solicitor