Hamilton v Sutherland Shire Council
[2012] NSWLEC 1015
•20 January 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Hamilton v Sutherland Shire Council [2012] NSWLEC 1015 Hearing dates: 22 December 2011; 13 January 2012 Decision date: 20 January 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Appeal dismissed; council orders amended
Catchwords: Section 124 Order - emergency order to prune branches but retain trunk as habitat; what is habitat; precautionary principle Legislation Cited: Local Government Act 1993
Sutherland Shire Local Environmental Plan 2006
Threatened Species Conservation Act 1995
Interpretation Act 1987
Environmental Planning and Assessment Act 1979
Protection of the Environment Administration Act 1991Cases Cited: Southern Cross community Housing Ltd v Shoalhaven City Council [2010] NSWLEC 1306
Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133Category: Principal judgment Parties: Colin & Penney Hamilton (Applicants)
Sutherland Shire Council (Respondent)Representation: Applicant: Mr S Kondilios (Solicitor)
Respondent: Ms J Amy (Solicitor)
Applicant: Maddocks Lawyers
Respondent: Sutherland Shire Council
File Number(s): 21130 of 2011
Judgment
COMMISSIONER: On 3 November 2011, Sutherland Shire Council issued an Emergency Order to selectively prune a large Angophora costata (Sydney Red Gum) located on the Hamilton's property in Gymea Bay. A marked up photograph attached to the order shows the limbs to be removed and the section of the bifurcated trunk to remain.
The order was issued after council received a complaint about the tree. A council officer inspected the tree on 3 November 2011 and found that the tree was dead or dying, that the tree is habitat for native wildlife, and that falling branches may pose a risk to the health and safety of neighbouring residents.
The Emergency Order No. 21 was made pursuant to s 129 and s 124 of the Local Government Act 1993 (LG Act). The order is as follows:
A. Carry out the following works in order to make the above-described tree safe:
1. To selectively prune the tree to remove six (6) branches at the points described by the white lines on the photograph of the tree attached.
2. To retain the remaining tree subsequent to pruning, as it is a habitat for native wildlife.
The Hamiltons have appealed to the Court under s 180 of the LG Act. They seek that orders 1 and 2 be deleted and replaced with the following:
A Carry out the following works in order to make the above-described tree safe:
1. To safely remove and dispose of the tree and such removal to be undertaken by a suitably qualified person.
Issues
The council's Statement of Facts and Contentions (SF&C) raises two issues:
(1) HABITAT VALUE - The tree is a large mature Angophora Costata [sic] with a DBH of over 1000mm and a height of approximately 30m. The tree is dead but contains a hollow on its eastern side. The tree can provide suitable habitat and breeding sites for small native fauna.
(2) STABILITY OF THE TREE - The tree should not be removed as it contains habitat and the concerns regarding its stability can be satisfied by appropriate pruning of the extended branches.
While the applicants agree that the order was made on safety grounds, they dispute the council's contentions that the tree provides habitat. The applicants' position is that the tree is not habitat and there is no evidence to prove it is habitat. They contend that as the tree is dead, council permission under the Tree Preservation Order is not required in order to remove the tree.
The tree and the site
The tree is a mature Angophora costata (Sydney Red Gum) growing on the eastern side of the Hamilton's property (the site) on a moderately steep slope and in reasonably close proximity to the dwelling on the property to the east. The tree has a diameter at breast height of more than 110 cm and is in excess of 20m high.
The property is quite heavily vegetated and is located on the south-eastern end of the Gymea Bay peninsular bounded by Gymea Bay, the Hacking River and the North West Arm.
The site is within Zone 1 - Environmental Housing (Environmentally Sensitive Land) under the Sutherland Shire Local Environmental Plan 2006 (SSLEP). It is located within council's Core Greenweb area as defined in the Sutherland Shire Development Control Plan 2006 (SSDCP). The particular Greenweb area includes all waterfront properties on the Gymea Bay peninsular.
Relevant background - the actions of the parties
In November 2010, the former owner of the Hamiltons' property applied to council for removal of tree on the basis of it showing signs of decline and the dropping of several limbs onto the adjoining dwelling, which resulted in damage to that property. An arborist report prepared by Jacksons [sic] Nature Works and submitted in support of that application, recommends removal of the tree. Amongst other things, the council's Tree Assessment Report indicates that the tree was in fair condition, a remnant endemic and a habitat tree. On 10 December 2010, the application for removal was refused but non-specific approval for pruning for public safety was permitted.
According to a report by Jacksons Nature Works dated 24 October 2011, the approved pruning works were carried out on 26 July 2011. At the request of the current owners, the applicants, Mr Jackson further inspected the tree in September 2011; a minor discolouration of the leaves was observed. An inspection on 11 October 2011 indicated that the outer leaves had dried out to a small extent. Following concerns raised by the Hamiltons' neighbour about the health and condition of the tree, Mr Jackson reinspected the tree on 24 October 2011 and found the canopy to be dry and brown with the conclusion that the tree had died from declining health and condition. Mr Jackson recommends removal of the tree for the safety of the neighbours. He opines that cl 56 of the SSLEP - Preservation of trees or vegetation would not apply as the tree is dying or dead, is not required as the habitat of native fauna, and is a risk to human life or property.
The council's statement of Facts and Contentions notes that during October 2011, council received several complaints from nearby residents that the tree was rapidly declining. Council CRMS (Customer Resource Management System) Number 771591275 dated 31 October records the actions taken by council leading to the issuing of the Emergency Order, the subject of this appeal, on 3 November 2011 - see [2] and [3] above. Photographs included in that document show the dead canopy.
On 26 October 2011, council received an application for a tree assessment apparently from Mr Jackson on behalf of the Hamiltons. The assessment by council's Tree Preservation Officer indicates that the tree is dead. The determination dated 22 November 2011 permits pruning of the tree in accordance with the Emergency Order and consistent with CRMS 771591275.
A letter from Jacksons Nature Works to council's Tree Preservation Officer dated 22 November 2011 seeks feedback from council on the progress of the application to remove the tree. The letter acknowledges the receipt of the Emergency Order. The letter also advises that the tree was observed and assessed by Mr Jackson to determine if there was any habitat for wildlife. The letter reports that on 22 November 2011 - no breeding sites or nests, or hollows in the trunks and branches were found. The conclusion was that, absent hollows and or nesting sites, there was nothing that would warrant the retention of the tree under the terms of Part 4 of Chapter 4 of the SSDCP. A further request for permission to remove the tree was made.
Following the issuing of the Emergency Order, Mr Hamilton engaged Fraser Ecological Consulting to undertake a fauna habitat assessment of the tree. Apart from desktop studies and a literature review, the ecologist, Mr Fraser, undertook a visual inspection of the tree from ground level on 25 November 2011 in order to ' identify and evaluate the fauna habitat values of the subject tree' . The second paragraph in s 3.4 of the report states:
It was not possible to determine with certainty all the fauna that utilise habitats in the subject site [the 'site' is not defined but is presumed to be the immediate vicinity of the tree/ the applicants' property]. This is because of the likely seasonal occurrences of some fauna species, the occasional occurrence of vagrant species, and because some species are difficult to detect because of their timid or cryptic behaviour. Therefore fauna investigations comprised an assessment of fauna habitats on the site and an indication of their potential to support native wildlife populations and, in particular, threatened species.
The ecologist's report notes Mr Jackson's conclusions that the tree died prematurely. On this basis Mr Fraser concludes that its fauna habitat potential (hollow formation) is limited. He also considers the tree to be 20-30 years old and concludes that as a result of its relatively young age, the further formation of hollows is unlikely. The report notes that no hollows, small crevices or fissures were observed in the tree during the site inspection.
The report concludes, in part and relevantly, that:
The subject tree does not provide significant fauna habitat features and would not be considered a significant 'habitat tree' for the variety of typical habitat characteristics considered in Section 4 [of the report - upper canopy habitat, feeding resources, decorticating bark, leaf litter and fallen timber, habitat hollows].
The tree is not considered an important element of a functioning habitat corridor essential for the movement of wildlife.
The potential removal of the subject tree is unlikely to result in the loss of biodiversity at a local, regional, state or national level. This is because of the small area of bushland to be possibly removed from the site, the highly degraded or modified habitat area to be developed, the unlikelihood of the status of threatened or regionally significant species being significantly placed at risk, and the broader distribution of other fauna and flora species.
Relevant controls
The Sutherland Shire Local Environmental Plan 2006 (SSLEP) applies. Clause 3 gives the overall aims of the plan; amongst others, the aims include:
(b) to describe the intended environmental outcomes that will result from the effective implementation of this plan,
(g) to preserve and enhance the quality of native vegetation and fauna,
(h) to protect environmentally sensitive areas,
Clause 51 considers ecologically sustainable development (ESD).
The consent authority must not consent to development unless it has considered the following matters that are of relevance to the development:
(a) The principles of ecologically sustainable development.
Clause 56 - Preservation of trees or vegetation is the key clause contested by the parties. The relevant subclauses are:
(1) The objective of this clause is to ensure the protection of trees and bushland vegetation that are fundamental to the conservation of biodiversity in Sutherland Hire.
(2) This clause applies to species or kinds of trees or other vegetation that are prescribed for the purposes of this clause by a development control plan made by the Council,
Note. A development control plan may prescribe trees or other vegetation to which this clause applies by reference to species, size, location or other manner.
(3) A person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation to which such development control plan applies without the authority conferred by:
(a) A development consent, or
(b) A permit granted by the Council.
(4) The refusal by the Council to grant a permit to a person who has duly applied for the grant of the permit is taken for the purposes of the Act to be a refusal by the council to grant consent for the carrying out of the activity for which the permit was sought.
(5) This clause does not apply to a tree or other vegetation that the Council is satisfied is dying or dead and is not required as the habitat of native fauna.
(6) This clause does not apply to a tree or other vegetation that the Council is satisfied is a risk to human life or property.
Chapter 4 - Natural Resource Management - of Sutherland Shire Council Development Control Plan 2006 (SSDCP) is relevant. Part 4 of Chapter 4 considers - Tree and Bushland Vegetation. Clause 4.b.1 specifies the trees and bushland vegetation to which the controls for the preservation of trees and bushland vegetation contained in SSLEP apply [i.e. cl 56].
Clause 4.e - Special Considerations for Trees Jeopardising Public Safety.
4.e.1 Objective
1 The objective of this section is:
a. To ensure trees in urban areas are managed in a way that reduces known risk to human life and property.
Assessment principle 4.e.2.3 states:
3. Despite 2., where risk can be adequately reduced by pruning or maintenance and the tree is significant against other assessment criteria, consent will be given to pruning, or other maintenance suggested, rather than permitting the tree to be removed.
Clause 4.i refers to - Special Considerations for Trees in Greenweb Areas.
4.i.1 Objectives
b. To prevent fragmentation of bushland by requiring the retention or restoration of vegetation that contributes to the functioning of that area as a wildlife corridor, linking proximate areas of habitat.
Clause 4.k - Special Considerations for Dead Trees which Contain Habitat.
4.k.1 Objectives
1. The objectives of this section are:
a. to preserve habitat and breeding sites of native fauna.
4.k.2 Assessment Principles
1. This clause must be read in conjunction with the other assessment criteria specified in this Section. Considerations of public safety, bush fire risk and hardship will override considerations of habitat in dead trees.
2. Dead trees are generally exempt from protection except where they contain hollows or nesting sites for native fauna.
3. Existing hollows and/or nesting sites in trees will be required to be retained. However, in such cases, Council will consent to works to the tree to ensure public safety.
The council's contentions refer to Schedule 3 of the Threatened Species Conservation Act 1995 (TSC), in particular, the Key Threatening Processes of 'Loss of hollow-bearing trees' and 'Removal of dead wood and dead trees'.
The site view
The hearing commenced on site with an inspection of the tree. The applicants' ecologist and arborist were present as were council's tree management officer and ecologist. The tree was viewed from the rear of the dwelling on the adjoining property to the east.
The main issues raised by the council in their S F&C are habitat and stability. It was agreed on site that the stability of the tree, in itself, is no longer an issue, however the habitat component of that contention remains an issue. The main concern is whether the tree provides habitat.
I used binoculars to view the upper parts of the tree. I focussed on a part of the branch closest to the neighbouring dwelling identified by council officers as being a hollow. This section of the tree shows several old branch stubs from previous pruning events. I formed the opinion that there is a cavity in the tree at that point.
The parties' ecologists and advocates were invited to view the area of the tree.
Mr Fraser agreed that there is in fact a cavity and stated that he had been unable to view the tree from that angle [I note that he did not mention this limitation in his report]; he also clarified his position on the age of the tree and agreed it is much older than stated in his report. It was acknowledged by all of the experts on site that, for one reason and another, no aerial inspection of the tree had been undertaken to investigate the existence and or occupancy of cavities.
The range of likely fauna that may use the cavity were discussed. Mr Kondilios, for the applicants, stated that his clients were prepared to install several nesting boxes in nearby trees once the tree was removed.
Given the change in the applicants' ecologist's level of understanding, and the discussions on site, the parties agreed that their respective ecologists prepare a biodiversity survey strategy and timetable. This was done and the agreed 'Fauna Survey Requirements' include the following elements:
- Stag watching - four events over two consecutive days; two in summer 2011/2012 and two in spring 2012 - a minimum of a week apart; on clear nights before and after sunset.
- Microchiropteran Bat detection - four ultrasonic call recording events and spotlighting - timing of events as above;
- Diurnal surveys - four hollow watching events - as above but including before and after sunrise.
- The survey work to be carried out by a suitably qualified and experienced ecologist.
The applicants' position
Essentially the applicants contend that the removal of the entire tree is exempt from the provisions of cl 56(3) of the SSLEP as permission is not required to remove as the tree is dead and there is no evidence that the tree is required as the habitat of native fauna as per cl 56(5).
Mr Kondilios takes issue with a number of elements of council's contentions and particulars. He submits that the potential for the tree to provide habitat, as suggested by the wording of contentions 1 and 2c is not a relevant consideration as he considers the wording of cl 56(5) implies that the habitat is existing . He contends that his interpretation is supported by the wording in cl 4.k.1 of the SSDCP in that the word preserve in that clause connotes that there is existing habitat or breeding sites, of which he says there is no proof. In his view, this approach is further supported by cl 4.k.2 where they contain (as opposed to can provide as contended by council) hollows or nesting sites.
With respect to the particulars of contention 2 and the potential of the trunk to form hollows, he contends that as the tree died prematurely, and there is a high degree of sound wood in the trunk, it cannot be guaranteed that the stability of the tree would be compromised before the eventual formation of other hollows. To that end, he argues that the tree should be removed in its entirety.
Mr Kondilios asserts that it was wrong of the council to conclude that the tree "is a habitat for native wildlife" in the emergency order as no aerial inspection was undertaken. He contends that council should have established whether the tree provided habitat or not before issuing the emergency order. He says that the 12 month survey schedule prepared by the ecologists further supports the council's lack of evidence.
Mr Kondilios cites material, in the council's bundle and tendered in Court, from the neighbour recording incidental sightings of fauna made after the issue of the emergency order. The first was a bird, possibly an Eastern Rosella, in the tree near and in the hollow; the second was an overheard conversation from a "tree lopper" who climbed the tree and reportedly saw a possum in the hollow. Photographs of the bird are included in the bundle; there are no photographs of the possum and Mr Kondilios urged the Court to give little weight to that evidence.
Even if the Court were to find that the tree is habitat, Mr Kondilios reaffirmed his clients' willingness to provide nesting boxes as appropriate offsets. He contends that such measures would have an immediate and more effective impact on preserving and enhancing native habitat in the area. He cited Southern Cross community Housing Ltd v Shoalhaven City Council [2010] NSWLEC 1306 where this Court imposed conditions of consent requiring licensed wildlife handlers to be on site during tree clearing operations as well as methods for dismantling of hollow-bearing trees. Mr Kondilios tendered amended conditions to reflect that approach, which he says will assist in meeting objective 4.k.1.a in Chapter 4 SSDCP - that is, "to preserve habitat and breeding sites of native fauna".
During submissions, the council pressed for the inclusion of a condition requiring the applicants to plant and maintain two replacement trees of the same species. Whilst he initially objected, as this was not a matter raised in council's SF&C or in the emergency order, Mr Kondilios agreed that if the tree were to be removed, his clients would agree to replace it in accordance with council's new condition.
The council's position
The council argues that the emergency order was issued on the basis that limbs falling from the tree posed a safety risk to the adjoining property. The stability of the remaining trunk was not considered to pose a risk of damage or injury. As a hollow was seen on the eastern side of the tree, and hollows are known to provide habitat, the council took the view that the safety issues would be satisfied by pruning branches rather than removing the entire tree. Ms Amy, for the council, contends that this approach is entirely consistent with the assessment principles in cl 4.e.2.3 of the SSDCP, particularly as the tree is located in a designated Core Greenweb area.
Ms Amy contends that the council has been denied access to carry out an aerial inspection, but notwithstanding that, given this is an appeal against an order, the onus is now on the applicants to prove that the hollow is not habitat. Further, she submits that the continued push by the applicants to have the tree removed seems contrary to their own ecologist's position.
Ms Amy pressed the applicability of the SSLEP in that: the tree is situated on land zoned to be environmentally sensitive; the overall aims of the SSLEP include preservation and enhancement of native vegetation and fauna; consideration of the principles of ecologically sustainable development (ESD) is required - including the precautionary principle; and the provisions of cl 56(5) concerning habitat of native fauna.
Similarly, she contends that the SSDCP provides detailed assessment principles for trees such as the one subject to this appeal. In particular, she notes cl 4.k.2.2 and 3, which require the retention of hollows but enable pruning for safety reasons. A note to cl 4.k.2.3 states that ' Hollows are critical habitat elements for native fauna. Hollows are essential for breeding of a large number of species. Yet very few trees produce hollows and they are particularly rare in urban areas.' This, she says, supports the council's requirement that the trunk with the hollow be retained.
As the applicants' argument is based on interpreting s 56(5) as requiring the tree to be currently used as habitat, and that this has not been established, Ms Amy contends that just because there is an absence of evidence that animals are using the hollow does not mean that the hollow is not habitat. She states that the provisions of the SSDCP are supported by definitions in the TSC Act, which includes a definition of habitat :
Habitat means an area or areas occupied, or periodically or occasionally occupied, by a species, population or ecological community and includes any biotic or abiotic component.
In the light of this definition, Ms Amy contends that the Court should consider the temporal nature of habitat, and that even if a hollow may be empty at one time, that is not to say that it isn't used at other times and therefore it does not mean that it should not be classified as habitat. She also cites Schedule 3 of the TSC Act and the relevant key threatening processes as reasons for caution. In this regard she refers to the decision by Preston CJ in Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 in which he discusses ESD principles generally [107]-[124] and the precautionary principle in detail [125]-[183]. She argues that a precautionary approach should be adhered to when there is a lack of scientific evidence; this is also consistent with cl 51 of SSLEP.
As an appeal under s 180 of the LG Act enables the Court make any orders it sees fit, including modifying the order, Ms Amy submits that is appropriate for the Court to order replacement plantings of the same species regardless of whether the trunk is to be removed or retained. This she says is appropriate in the circumstances of the premature death of an old tree and in accordance with cl 4.o.1 and .3 of the SSDCP - Replacement trees.
In the event of the Court ordering the removal of the tree, she proposes a condition requiring five breeding boxes to be installed in existing trees; the applicants agree to this.
Findings
The parties agree that the principal reason for the imposition of the emergency order is to remove the risk posed by limbs falling from the tree onto the adjoining property.
There are effectively two elements of the applicants' appeal: the interpretation of the wording of Emergency Order A.2 - To retain the remaining tree subsequent to pruning, as it is a habitat for native wildlife and therefore the validity of that order; and whether cl 56(5) of SSLEP applies.
In summary, the applicants' position is that the wording of the order implies the tree is currently used by wildlife and, as there is no proof that it is, it is exempt from the provisions of cl 56 of the SSLEP and can be removed. The council's position is, in essence, that a hollow is habitat and the definition of habitat is broad enough to include the transient nature of the use of hollows and a cautious approach is required in order to protect the environmental outcomes of Part 4, Chapter 4 of the SSDCP.
The meaning of 'habitat'
Section11 of the Interpretation Act 1987 states:
11 Words etc in instruments under an Act have the same meaning as in the Act
Words and expressions that occur in an instrument have the same meanings as they have in the Act, or in the relevant provisions of the Act, under which the instrument is made.
SSLEP is made under Part 3 of the Environmental Planning and Assessment Act 1979 (EP&A Act). 'Habitat' is defined in the EP&A Act as having the same meaning under the TSC Act - that definition, as stated above, is:
Habitat means an area or areas occupied, or periodically or occasionally occupied, by a species, population or ecological community and includes any biotic or abiotic component.
Put simply, habitat is a space that can be occupied by an organism or a group or organisms.
The transient nature of the use of habitat is reinforced by a statement in Mr Fraser's report quoted at [15], specifically:
It was not possible to determine with certainty all the fauna that utilise habitats in the subject site. This is because of the likely seasonal occurrences of some fauna species, the occasional occurrence of vagrant species, and because some species are difficult to detect because of their timid or cryptic behaviour.
Therefore, while it is agreed that the SSLEP does not define habitat in its dictionary, the Interpretation Act gives it the same meaning as the other Acts. ESD is given the same meaning as in the EP&A Act and in s 6(2) of the Protection of the Environment Administration Act 1991.
It is a fact that there is at least one hollow on the eastern side of the tree. It is widely accepted that hollows in trees provide habitat for a wide range of fauna. The importance of hollows is recognised by the listing in Schedule 3 of the TSC Act of 'Loss of hollow-bearing trees' as a Key Threatening Process. The decay of dead wood and standing dead trees is a process that may lead to the formation of hollows; the removal of dead trees and dead wood is similarly recognised in Schedule 3 as a Key Threatening Process. Hollows, dead wood and dead trees are components of ecosystems that contribute to biodiversity.
On the basis of this reasoning alone, I am satisfied that the tree provides habitat.
Does cl 56(5) apply?
Several of the aims of the SSLEP are to preserve and enhance the quality of native vegetation and fauna (cl 3(g)) and to protect environmentally sensitive areas (cl 3(h)). The objective of clause 56 - preservation of trees and vegetation in SSLEP is ' to ensure the protection of trees and bushland vegetation that are fundamental to the conservation of biodiversity in Sutherland Shire ' (cl 56(1)). The Macquarie Dictionary defines biodiversity as ' the variety of types of organisms living within an area' .
Clause 56(5) of the SSLEP states: This clause does not apply to a tree or other vegetation that the Council is satisfied is dying or dead and is not required as the habitat of native fauna . The question could be posed...who or what requires the tree as the habitat of native fauna? While a range of fauna may require it, in the context of an environmental planning instrument, it could readily be construed that the consent/ plan making authority is the entity that requires the tree as habitat in order to achieve the aims of the instrument. The objectives and controls set out in Chapter 4 of the SSDCP make more detailed provisions as to how the aims and objectives of the SSLEP relating to biodiversity and ecologically sustainable development will be achieved (p1-1 Chapter 4 -SSDCP).
The tree is located in an area designated as Core Greenweb. According to Part 1 of Chapter 4 of the SSDCP:
Greenweb is a strategy to conserve and enhance Sutherland Shire's bushland and biodiversity by identifying and appropriately managing key areas of bushland habitat and establishing and maintaining interconnecting linkages and corridors.
The Greenweb comprises:
Core areas of high significance to the sustainability of the Greenweb as they contain key habitat areas, key linkages and threatened species or endangered ecological communities. These key habitats are of a size that maintains their viability and are generally larger than 3.5 hectares.
It could be argued that a hollow-bearing tree in a Core Greenweb area is an important component of such an area and, as such could be said to be required as the habitat of native fauna . Therefore, on this basis, I am satisfied that cl 56(5) of SSLEP does not apply to this tree and permission is required for its removal.
Is order A2 valid?
Order A2 states: The tree should not be removed as it contains habitat and the concerns regarding its stability can be satisfied by appropriate pruning of the extended branches. It is agreed that the trunk is stable. The wording in contention is as it contains habitat .
By applying the reasoning on 'the meaning of habitat' covered in [51] -[56] I find that the tree 'contains habitat'. I do not accept Mr Kondilios' submission that the absence of proof of current use is sufficient to establish that the tree does not contain habitat, as habitat is the area that fauna may occupy.
I accept Ms Amy's submissions that, in any event, the cautious approach engendered by the precautionary principle should be taken.
Application of the precautionary principle
Preston CJ in Telstra Corporation considers in detail, one of the key tenants of ESD - the precautionary principle. The application of the principle and therefore the need to take precautionary measures requires two conditions to be satisfied: a threat of serious or irreversible environmental damage, and scientific uncertainty of the damage [128].
At [130], threats to be considered may be direct, indirect, incremental, cumulative, and or the result of other actions. At [131] factors to be considered in assessing the seriousness of a threat are listed; at [132]-[135] the assessment process requires appropriate scientific input. At [138] Preston CJ states: The precautionary principle does not apply, and precautionary measures cannot be taken, to regulate a threat of negligible environmental damage...
In regards to the applicability of the first test to the matter before me, while it may be argued by some that the removal of one dead tree with perhaps only one hollow is negligible or at least not serious or irreversible environmental damage, it could also be argued that it is a serious threat when the cumulative impacts are considered. The impact of urban development on remnant bushland is often described as 'death by a thousand cuts'. Often, most at risk are large old trees that may be perceived as posing a risk to safety. As hollow formation takes many years, it is often only in these older trees that hollows are found. The listing of 'loss of hollow-bearing trees' and 'removal of dead wood and dead trees' as key threatening processes under the TSC Act, significantly elevates the importance of retaining dead trees with hollows wherever possible. The many references in SSDCP to the need to retain hollow-bearing trees indicate to me that council considers the removal of such trees to be a serious threat to local biodiversity and to the success of its Greenweb strategy.
Therefore, I find that there is a threat of serious environmental harm and thus the second test of 'full scientific certainty' must be considered.
Returning to Telstra, "a lack of full scientific certainty" is considered at [140] - [149]. Questions to be considered include: the sufficiency of any evidence; the level of uncertainty - perhaps due to methodology; the potential to reduce the uncertainty within a reasonable time frame; and the level of certainty required in the context of the magnitude of the environmental damage.
In the matter before me, it has to be said that neither party has established, with any modicum of certainty, that the hollow is used by native fauna, or indeed if it is capable of being used, as no aerial inspections have been undertaken nor have any targeted surveys been carried out. Similarly, it has not been adequately established if there are any other hollows present that cannot be observed from the ground. The applicant assumes that the trunk has a high proportion of sound wood that would limit the formation of future hollows, but there is no evidence of this.
While there are reports of incidental sightings of birds and a perhaps a possum, this evidence cannot be verified and therefore cannot be relied on. The applicant proposes the installation of nest boxes in other trees. As each species that nests in hollows has very specific spatial requirements, the appropriate selection and positioning of nest boxes requires some specialist knowledge as to the species likely to be displaced from the tree to be removed. While some assumptions may be made from desktop searches of wildlife databases, the spatial scale of those resources may be less applicable to local areas of bushland and may be limited to listed species and not the broader range of fauna that may require protection now to avoid eventual listing.
On this basis, there is clearly insufficient evidence to determine whether the removal of the tree will result in the loss of current habitat for an unknown number of species. In this regard I find Mr Fraser's conclusions (given at [17]) to be focussed on 'significant' habitat and 'significant' species rather than the broader consideration of 'habitat'. Because of the methodology, that is, a limited ground level inspection, the level of uncertainty is high. I consider that the potential to reduce the level of uncertainty within a reasonable time frame exists if the dangerous limbs are removed and the targeted survey recommended by the parties' ecologists is implemented. The results of the survey would not only inform a decision to keep or remove the trunk but, anticipating that it may eventually be removed on safety grounds, it would also inform the appropriate choice and location of nest boxes.
As I find that the two conditions or threshold tests are satisfied, the precautionary principle is activated.
Taking the Telstra decision further, at [150] - [155], Preston CJ considers "shifting of the burden of proof". At [150] he states in part,
...A decision-maker must assume that the threat of serious or irreversible damage is no longer uncertain but is a reality. The burden of showing that this threat does not in fact exist or is negligible effectively reverts to the proponent of the economic or other development plan, programme or project.
The basis for this, at [151] is to prevent environmental damage rather than treat it and therefore to err on the side of caution.
In this matter I find that the council made the order requiring the retention of the trunk and the hollow on the basis that hollows provide habitat and that the removal of the trunk was not necessary on safety grounds. In doing so, it could argued that the council considered the removal of the hollow-bearing portion of the tree to be a serious threat to the local environment. In the making of the order, council applied cl 56(5) of SSLEP and the assessment principles in cl 4.k - Special Considerations for Dead Trees which Contain Habitat in SSDCP. In the circumstances of this appeal against the emergency order, the burden of proof that the threat of environmental harm is negligible falls to the applicants. In my view, the applicants have not established the level of threat, and the precautionary measure they propose (the installation of nest boxes) is not based on any specific knowledge. However, as the threat has been established, the applicants will be required to organise and pay for the ecological surveys recommended by the parties' ecologists.
At [162] in Telstra Preston CJ states in part: Prudence would also suggest that some margin of error should be retained until all of the consequences of the decision to proceed with the development...are known. At [167], In applying the precautionary principle, measures should be adopted that are proportionate to the potential threats. A reasonable balance must be struck between the stringency of the precautionary measures, which may have associated costs, such as financial...., and the seriousness and irreversibility of the potential threat..
In this matter, the applicants argue that the survey period of 12 months is too long in the circumstances of an emergency order. The primary reason for the order is to remove the risk of damage or injury to an adjoining property posed by falling branches. Regardless of whether the trunk is removed at the same time, the branches have to be removed. The applicants made no submissions concerning economic hardship or the practicality or otherwise of undertaking the order; it is agreed that the trunk is stable. Therefore it seems to me that there is no reason to shorten the survey period. Given the possible transient use of the hollow, and the widely accepted fact that most fauna are more active in spring and summer, in my view, the 12 month survey period is the minimum period required to determine the future of the trunk and to inform any decisions on the installation of alternative habitat. I consider it to be proportionate to the potential threat and consistent with the objective in cl 4.e.1 of SSDCP in ensuring the tree is managed in a way that reduces risk to life and property.
With respect to council's submission that a condition should be imposed requiring the planting and maintenance of two replacement Angophora costata , there is no evidence before me, such as the composition of remnant bushland on the site, to convince me that this is necessary at this stage. This may be a condition that council imposes when the tree is eventually removed.
Conclusions
After considering the evidence and submissions in the light of the relevant controls, I find that the emergency order issued on 3 November 2011 is appropriate. The removal of the designated branches will make the tree safe and the retention of the trunk will retain the hollow deemed to be habitat. I find that the council acted in accordance with cl 56(5) of the SSLEP and with the objectives and assessment principles in clauses 4.e, 4.k and 4.k of Chapter 4, SSDCP.
Under the powers enabled by s 180(4)(b) of the LG Act, the order will be modified to require the applicants to engage an appropriately qualified and experienced ecologist to carry out the biodiversity assessments agreed by the parties' ecologists. I consider this to be consistent with the precautionary principle. The report of the findings of the targeted surveys, with recommendations for the future management of the tree and any alternative habitat measures, is to be forwarded to council's ecologist for consideration.
Therefore, in accordance with s 180(4) of the Local Government Act 1993 , the appeal is dismissed and the s 124 (No. 21) emergency order issued by Suherland Shire council is upheld. However, given the lapsing of the nominated time frame, and the issue of the biodiversity survey raised in [81] above, the council is to prepare a modified s 124 order within 7 days of the date of this judgment to be filed and served on the applicant and the Court within that time frame. If necessary, the matter can be listed for a mention where submissions may be made by each party as to the timing of the implementation of the orders. Once determined, final orders will be made in chambers. All exhibits except exhibit 3 are returned.
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J Fakes
Commissioner of the Court
Decision last updated: 30 January 2012
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