Herron v Conservator of Flora and Fauna (Administrative Review)
[2022] ACAT 28
•30 March 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
HERRON v CONSERVATOR OF FLORA AND FAUNA (Administrative Review) [2022] ACAT 28
AT 92/2021
Catchwords: ADMINISTRATIVE REVIEW – tree protection – review of a decision by the Conservator of Flora and Fauna to refuse approval to remove regulated trees – criteria for approval of a tree damaging activity – whether the location of the tree is inappropriate given its potential size and growth habit
Legislation cited: Tree Protection Act 2005 ss 8, 10, 21, 24, 25, 68, 69, 107
Subordinate
Legislation cited: Tree Protection (Approval Criteria) Determination 2006 (No 2) sch 1, s 1
Cases cited:Bozin v Conservator of Flora and Fauna [2010] ACAT 91
Egan v Conservator of Flora and Fauna [2016] ACAT 27
Grafton v Conservator of Flora and Fauna [2021] ACAT 124
Herron v Conservator of Flora & Fauna [2021] ACAT 120
Tribunal:Senior Member D Mulligan
Date of Orders: 30 March 2022
Date of Reasons for Decision: 30 March 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 92/2021
BETWEEN:
BENJAMIN GRAY HERRON
Applicant
AND:
CONSERVATOR OF FLORA AND FAUNA
Respondent
TRIBUNAL:Senior Member D Mulligan
DATE:30 March 2022
ORDER
The Tribunal orders that:
The Conservator’s decision is confirmed.
………………………………..
Senior Member D Mulligan
REASONS FOR DECISION
On 15 June 2021, the applicant Benjamin Gray Herron and his wife completed the purchase of a 99-year lease on a property located at 37 MacArthur Avenue in O’Conner (the house).
The property is a large corner block of approximately 943 square metres.
The property was purchased with the intention that the house on it would be demolished and a new house more suited to the owner’s tastes would be built in its place.
A large Chinese Elm (Ulmus Parvifolia) (the tree) which is approximately 16 metres in height is located in the south-east corner of the block.
The fact that the tree is taller than 12 metres makes it a regulated tree under the Tree Protection Act 2005 (the Act). Section 10(1)(a) of the Act provides:
(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;…
A regulated tree is a protected tree under section 8 of the Act. As a consequence, the applicant requires the approval of the Conservator of Flora and Fauna (the Conservator) before it can be removed.
The applicant was aware of the existence of the tree and of the fact that it was a regulated and protected tree before he and his wife purchased the property.
On 7 July 2021, the applicant applied to the Conservator for permission to have the tree removed.
That application was rejected on 20 July 2021.
On 26 July 2021, the applicant made an application for reconsideration of the Conservator’s decision. The applicant raised five reasons as to why the tree should be removed:
1)The tree represents an unacceptable risk to public safety.
2)The tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service.
3)The location of the tree is inappropriate given its potential size and growth habit (excluding remnant eucalypts).
4)The tree is substantially affecting solar access to the lessee’s lease, or neighbouring lease, during winter between the hours of 9am to 3pm and pruning is not sufficient to remedy this (excluding remnant eucalypts).
5)Where the tree is a part of a close planting of a number of trees, the removal of the tree will allow the other trees to develop.
The matter was referred to the Tree Advisory Panel (the Panel) for their advice. It delegated its function of inspecting the tree to one of its members.
On 9 August, the Panel met and considered the issues raised by the applicant and after considering the information before it, recommended refusal for removal of the tree as none of the criteria for approval had been satisfied.
The Panel made a number of comments about the tree and how it fitted into the wider streetscape[1]:
At the time of inspection the tree displayed good health, good structure, it has multiple leaders some of which appear to have grafted together, this is not a concern of this species. I assessed this tree as a high quality tree.
The tree has room to grow and is well located within the landscape. The canopy is low hanging over the path and dwelling both of which can easily be remedied with minor pruning.[2]
The tree in my opinion is prominent within the landscape of Macarthur avenue. This is a commonly planted street tree both and within private gardens. This species is very well suited to the Canberra environment.
[1] T Documents page 26
[2] Errors in original
The Conservator consequently refused the application.
On 28 September 2021, the applicant applied to ACAT for review of the Conservator’s decision pursuant to section 107B of the Act.
How does ACAT conduct a review?
In the Grafton v Conservator of Flora and Fauna [2021] ACAT 124, Senior Member E Ferguson summarised ACAT’s role. She said that in conducting a review the tribunal exercises the functions the Conservator had under the Act to reconsider its original decision.[3] It must make an order to either confirm, vary or set aside the Conservator’s decision.[4] 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.[5]
[3] Tree Protection Act 2005 section 68(2)
[4] Tree Protection Act 2005 section 68(3)
[5] Tree Protection Act 2005 section 69(2)(a)
In Bozin v Conservator of Flora and Fauna[6] 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.
[6] [2010] ACAT 91 at [27]
In Egan v Conservator of Flora and Fauna[7] the tribunal adopted the respondent’s contentions that:
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.
[7] [2016] ACAT 27 at [25]
In this case I’ve had the advantage of all the documents available to the Conservator as well as the documents filed at ACAT. On 16 December 2021, I conducted a site inspection and saw not only the tree and how it was located on the property, but also its context in the wider streetscape on MacArthur Avenue.
On 16 December 2021, I also heard evidence and submissions from both sides.
The objects of the Act
ACAT is required to have regard to the objects of the Act 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.
The objects of the Act speak to the protection of trees like the tree in issue and it can be viewed as an Act that seeks to protect protected trees and limits what an owner can do to that tree without the Conservator’s permission. This legislative arrangement contrasts with the normal rights of an owner to deal with an unprotected tree as he sees fit.
Section 25(3) of the Act sets out the matters to which the Conservator, and therefore I, 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 allows the Minister to determine the criteria to be applied when considering an application for approval for a tree-damaging activity.
The relevant approval criteria for consideration under section 21 are found in the Tree Protection (Approval Criteria) Determination 2006 (No 2) (the Determination) which provides:
(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 lessee’s 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.
The basis of the application to ACAT
After some reconsideration following an earlier decision by Presidential Member G McCarthy[8], the applicant refined the basis of his application to three points:
1)Equity: the way the Act is written may not match its intent.
2)Human Rights: the applicant and his family’s human rights would be adversely affected if the tree were not to be removed.
3)The size of the tree was inappropriate for the block on which it was located.
[8] Herron v Conservator of Flora & Fauna [2021] ACAT 120
The first two points are not matters raised in the Determination, the advice from the Panel, or any other relevant entity under section 25(3)(c) of the Act and are not matters the Conservator was asked to consider.
I do not consider them to be relevant criteria pursuant to section 25(3)(d) and accordingly do not have regard to them.
The size of the tree was inappropriate for the block on which it was located
The applicant’s submission that the size of the tree was inappropriate for the block on which it was located falls within criteria 1(d) of the Determination which allows for the removal of the tree if its location is inappropriate given its potential size and growth habit (excluding remnant eucalypts).
Having conducted the site inspection and having seen the tree myself, I accept the view of the Panel, set out in paragraph 13 above, in relation to the tree and its place in the streetscape.
I found it to be located approximately 2.5 to 3 metres from the south-east corner of the block. It takes up a relatively small portion of the 943 square metre block.
The tree is imposing and matches other trees of a similar scale on MacArthur Avenue. Its presence gives the other trees context and vice versa.
At the time of the inspection the house had not been demolished and in fact the applicant and his wife had yet to commit to either a design or a builder to build the new house.
Both during the site inspection and later at ACAT the applicant conceded that whilst it would not be his preferred result, he could make the design of his proposed house contingent upon the tree remaining.
Given:
(a)the size of the applicant’s block;
(b)the location of the tree in the extreme south-east corner of the block;
(c)the relatively small proportion of the block taken-up by the tree;
(d)the ability of the applicant to locate his proposed house on the block in a way to minimise the intrusion of the tree into his family’s life;
(e)its relatively small impingement into the block;
(f)the apparent good health of the tree;
(g)the age of the tree which suggests it is not going to grow much taller; and
(h)the way the tree matches other significant trees nearby on MacArthur Avenue,
I agree with the Conservator’s decision to refuse the applicant permission to remove the tree and I confirm that decision.
………………………………..
Senior Member D Mulligan
| Date of hearing: | 16 December 2022 |
| Applicant: Counsel for the Respondent | In Person Ms K Musgrove |
| Solicitors for the Respondent: | ACT Government Solicitor |
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