Kelly v Conservator of Flora and Fauna (Administrative Review)
[2009] ACAT 24
•31 July 2009
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
| KELLY V CONSERVATOR OF FLORA AND FAUNA (Administrative Review) [2009] ACAT 24 |
AT 30 of 2009
| Catchwords | ADMINISTRATIVE REVIEW – Tree protection – review of reconsidered decision by Conservator of Flora and Fauna to refuse approval to remove regulated tree – Quercus palustris (Pin Oak) – whether application for approval to a tree-damaging activity meets criteria in Tree Protection (Approval Criteria) Determination No 2 – whether tree is in decline or its life expectancy is short – whether tree represents and 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 or service – whether a driveway is a substantial structure – whether causing blockage of an outside toilet and a gully trap constitutes substantial damage to a substantial structure or service – whether location of the tree is inappropriate given its potential size and growth habit – whether tree is substantially affecting solar access – whether all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective – whether any exceptional circumstances raised by the applicant have been met – importance of the tree in the surrounding landscape. Tree Protection Act 2005, ss3, 7, 8, 10, 15, 19, 21, 25, 106, 107, 107B Francis and Conservator of Flora and Fauna [2005] ACTAAT 33 (2 December 2005) |
| Tribunal: | Mr C. G. Chenoweth | Presiding Member |
| Mr J. F. Ashe | Senior Member |
| Date of hearing: | 20 July 2009 |
| Date of decision: | 31 July 2009 |
| AUSTRALIAN CAPITAL TERRITORY | ) | |
| CIVIL & ADMINISTRATIVE TRIIBUNAL | ) | NO: AT 30 of 2009 |
| RE: | CARMEN MARIA KELLY | |
| Applicant | ||
| AND: | CONSERVATOR OF FLORA AND FAUNA | |
| Respondent |
ORDER
| Tribunal: | Mr C. G. Chenoweth | Presiding Member |
| Mr J. F. Ashe | Senior Member | |
| Date: | 31 July 2009 | |
| ORDER | ||
The decision under review is confirmed.
| …………………….. Presiding Member |
| AUSTRALIAN CAPITAL TERRITORY | ) | |
| CIVIL & ADMINISTRATIVE TRIIBUNAL | ) | NO: AT 30 of 2009 |
| RE: | CARMEN MARIA KELLY | |
| Applicant | ||
| AND: | CONSERVATOR OF FLORA AND FAUNA | |
| Respondent |
REASONS FOR DECISION
The application
- This is an application to the Tribunal for review of a reconsidered decision by the Conservator of Flora and Fauna (‘the Conservator’ and ‘the respondent’) made on 10 March 2009 to refuse approval for the removal of a regulated tree under section 107 of the Tree Protection Act 2005 (‘the Tree Act’).
- The tree is a Quercus palustris, commonly known as Pin Oak (‘the tree’ or ‘subject tree’). It is located on a residential block at Block 6, Section 6, Deakin, with the street address of 71 Dominion Circuit, Deakin (‘the subject property’). Mrs Carmen Maria Kelly (‘the applicant’) is the lessee of the block and has applied, under section 107B of the Tree Act, for review of the reconsidered decision made by the respondent.
- The applicant first applied to remove the tree on 11 January 2009. A Tree Inspection Officer inspected the tree on 28 January 2009 and recommended that the application be rejected. A delegate of the Conservator refused the initial application on 30 January 2009, under section 25 of the Tree Act, on the grounds that it had not been established that any of the criteria for removal set out in Schedule 1 of the Tree Protection (Approval Criteria) Determination 2006 (No 2) (Disallowable Instrument DI 2006-60) (‘the Criteria Determination’), made under section 21 of the Tree Act, had been satisfied.
- Section 106 of the Tree Act provides that a person may seek reconsideration of a decision by the Conservator to refuse to approve an activity under section 25; the applicant sought such reconsideration on 11 February 2009. In accordance with section 107(1) the application was referred to a Tree Advisory Panel. A member of the Panel inspected the tree on 19 February 2009 and recommended that the application for reconsideration be rejected. At its meeting on 27 February 2009 the Tree Advisory Panel endorsed that advice and recommended refusal of the application on the basis that none of the criteria for approval had been satisfied. On 11 March 2009 the Conservator confirmed the original decision.
Tribunal’s jurisdiction
Applicable law
- Section 107B of the Tree Act provides for review by the Tribunal of a decision of the Conservator under section 107 of the Tree Act following reconsideration of a decision originally made under section 25 of the Tree Act.
The objects of the Tree Act (section 3) include the following:
(1) (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
…
(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.
(2)In this section:
urban forest means the trees located in the built-up urban area.
urban forest values means the amenity and economic and environmental benefits derived from the urban forest and the associated tree canopy cover.
The Tree Act applies to trees in built-up urban areas as declared by the Minister (section 7). Tree Protection (Built-Up Urban Areas) Declaration 2009 (No.1) (Notifiable Instrument NI2009–62), declares Deakin to be a built-up urban area.
Section 8 of the Tree Act defines a ‘protected tree’ to include a ‘regulated tree’ and section 10 defines a ‘regulated tree’ as:
…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.
Tree Protection (Tree Management Precincts) Declaration 2009 (No 1) (Notifiable Instrument NI2009–213) declares that leased land within the built-up urban areas as declared from time to time under section 7(2) of the Tree Act to be a Tree Management Precinct. As noted in paragraph 7, Deakin has been declared to be a built-up urban area.
10.It is an offence under the Tree Act to damage a protected tree (section 15) unless, pursuant to section 19, approval has been granted by the Conservator under section 25. Removal of a regulated tree therefore requires approval.
11.Section 25(3) of the Tree Act sets out the matters to which the Conservator must have regard when making a decision on an application. They are:
(a) the approval criteria; and
(b) the advice (if any) of the advisory panel; and
(c) anything else the conservator considers relevant.
Section 21 of the Tree Act provides for the Minister to determine the criteria to be applied when considering an application for approval to a tree-damaging activity. On 4 April 2006 the Minister for the Environment made Tree Protection (Approval Criteria) Determination (No.2) (Disallowable Instrument DI2006–60), for the purposes of section 21. The relevant criteria for consideration in this case are in paragraph 1(1):
(1) The Conservator of Flora and Fauna (the Conservator) may give an approval to damage a regulated tree under section 25 when:
(a) the tree is in decline and its life expectancy is short; or
(b) the tree represents an unacceptable risk to public or private safety; or
(c) the tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service; or
(d) the location of the tree is inappropriate given its potential size and growth habit (excluding remnant eucalypts); or
(e) the tree is substantially affecting solar access to the lessee’s lease, or neighbouring lease, during winter between the hours of 9 a.m. to 3.p.m. and pruning is not sufficient to remedy this (excluding remnant eucalypts)
... and
all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective.
The criteria also provide that:
(3) When deciding whether the criteria in paragraph 1 are met, the Conservator may consider:
(a) any exceptional circumstances that have been raised by the applicant, taking into account advice from the Tree Advisory Panel;
(b) the importance of the tree in the surrounding landscape; and
(c) if the tree is a species listed on schedule 3, whether the tree has ecological importance to the local environment.
Agreed facts
- It is agreed that the tree is a regulated tree and that its removal requires approval. The tree is on the western side of the house, 3.5 metres from the house, between the house and the driveway and close to the garage. The tree is estimated to have an approximate height of 21 metres with a canopy spread of 23 metres and a trunk some 2.7 metres in circumference. The branches on the eastern side of the tree overhang the roof of the house. It is not disputed that the tree is in excellent health. The tree has been assessed as being a mature tree. The tree is not a species listed in Schedule 3 of the Criteria Determination.
Site inspection
- On the morning of the hearing the Tribunal conducted a site inspection of the tree, the driveway and other parts of the property. Our attention was drawn to two cracked and raised sections of the asphalt driveway and to a damaged section, some 8–10 cm or so in height, in the carport. Our attention was also drawn to a large tree on the adjoining property close to the fence on the western side of the driveway of the subject property. The Tribunal viewed the backyard, including the condition of garden beds and paths, and noted the set of concrete steps that provide access to the house on the western side. The Tribunal also viewed the condition of the natural light in the kitchen and living room on the western side of the house.
The applicant’s evidence and contentions
15. The applicant provided evidence at the hearing, and Mr Graham Blank, of counsel, appeared before the Tribunal on behalf of the applicant. In support of her initial application, the applicant stated that her reasons for removing the tree include:
(1)The tree roots are causing significant damage to a gravelled area, the driveway and a carport. This damage is becoming severe. I am 76 years with reduced flexibility and mobility and I find the uneven surface a hazard; the area is also a hazard for my young grandchildren, who frequently visit.
(2)The maintenance associated with the tree (leaf removal, gutter cleaning and pruning of dead wood) has become a major burden that causes me significant anxiety. While I pay a gardener to do much of the work, the financial cost is large and supervising and organising the work is also becoming more difficult for me.
(3)The tree roots regularly cause blockage of the plumbing for an outside toilet.
- A significant consideration this case is the state of the applicant’s health and the implications for her personal safety when walking on the driveway and in the carport. The applicant has osteoporosis and broke her ankle some 2–3 years ago while walking on uneven ground. As a consequence of that injury she now walks with the aid of a walking stick, and is less mobile than before the injury. In a letter dated 14 May 2009, her doctor, Dr Michael Madden, stated that he has emphasised to the applicant that ‘her home environment needs to be totally free of any obstacles, obstructions or unevenness of the ground that may cause her to fall’. He added that, if she does fall, she is likely to sustain a major fracture which could place her in a life threatening situation.
- Although the applicant is less mobile than before her injury, she still lives alone and still drives a car. However, she is concerned that the raised sections in the asphalt floor of the carport, which she contends are caused by tree roots, are a serious hazard for her when moving to and from her car, when it is parked in the carport.
- The applicant’s normal route between the house and the carport is via a set of concrete steps on the western side of the house close to the carport. It appeared to the Tribunal during the site inspection that these steps could be a significant hazard to the applicant. The applicant informed the Tribunal that a rail is to be installed on the steps to reduce the risk of injury.
- The applicant said that the driveway had been laid in 1971 and had been repaired more than once before because of damage from the tree roots. She said that she had sought advice about possible further repairs to the driveway and had been informed that this would require substantial work, including substantial excavations. She was also informed that it would be necessary to replace the asphalt with concrete as otherwise the problems would only recur in a few years time. In light of that advice she had not pursued the option of repairing the driveway.
- The applicant said that the branches overhanging the roof cause serious problems by dropping leaves, twigs and pollen onto and into the gutters and that it has been necessary to get someone to clean the gutters on the western side every two months. She said that even though she has installed gutter guard, this has been ineffective in preventing the entry of pollen into the gutters, leading to problems with overflow of water into the house from the gutters. From time to time dead branches have been removed from the tree.
- One of the grounds of the application is that the roots from the tree are blocking the sewer for the outside toilet and also the gully trap outside the kitchen. The applicant said that from time it has been necessary to get someone to unblock the pipes with an electric eel.
- At the hearing Mr Blank put forward an additional matter in support of the application––it is contended that in winter the tree reduces the penetration of sunlight into the kitchen and a living room, which are located on the western side of the house. However, no evidence was provided in support of this contention and Mr Blank conceded that this was a minor point and that there may not be sufficient evidence to demonstrate that the tree is substantially affecting solar access.
- Mr Blank argued that there is clear evidence of a connection between the tree and the cracking in the driveway and the carport. He noted that neither the initial tree assessment report of 28 January 2009 nor the subsequent reconsideration report of 19 February 2009 had considered the possibility that the damage to the driveway and the carport floor surface was caused by the tree on the adjoining property. In response to a question from the Tribunal, he submitted that the Tribunal could not draw any inference from the proximity of the damaged section of the driveway on the western side to the tree on the adjoining property that the damage was caused by that tree rather than the subject tree.
- Mr Blank submitted that, in relation to the issue of private safety, there is a clear connection between the subject tree and the cracking and changes in the level of the asphalt. He argued that, as demonstrated by the applicant’s fall and resultant broken ankle, she is at particular risk from uneven ground that. The applicant also contends that her several grandchildren and great grandchildren, who are regular visitors to the house, are also at risk from the damaged asphalt surfaces.
- Mr Blank noted that the issue of risk to public and private safety had been considered in a number of tree removal cases dealt with by the former Administrative Appeals Tribunal, e.g. Francis and Conservator of Flora and Fauna [2005] ACTAAT 33 (2 December 2005); Maleganeas and Conservator of Flora and Fauna [2007] ACTAAT 24 (15 November 2007); and Muttukumaru & Skillicorn and Conservator of Flora and Fauna [2008] ACTAAT 13 (9 May 2008). He submitted, however, that these cases had not dealt with the particular level of risk to personal safety that is a feature of the present case. He argued that the particular health issues faced by the applicant, and the importance of making her environment as smooth and even as possible so as to avoid serious injury, constitute ‘exceptional circumstances’, which the Tribunal may consider under clause 3 of the Criteria Determination.
- Mr Blank told the Tribunal that the applicant is taking steps to reduce the risk to her from other hazards on the property apart from the damaged driveway. They include the installation of a railing on the concrete steps up to the door on the western side of the house and the levelling of other uneven surfaces on the block. The applicant now does little gardening apart from pruning roses.
- Mr Blank submitted that in Francis the Administrative Appeals Tribunal had accepted that a driveway was a substantial structure. He invited the Tribunal to accept that the tree was causing damage to the sewer pipes associated with the outside toilet and that the tree was therefore causing or threatening to cause damage to a substantial service.
- In view of the size of the tree and its close proximity to the house, Mr Blank submitted that the location of the tree is inappropriate. He suggested that it is surprising that there has been no direct damage to the house itself so far as can be seen. He argued that continuing problems with blocked gutters from pollen, twigs and leaves, and the consequential need for high levels of maintenance is further evidence of the inappropriate location of the tree. He argued that, although the applicant had taken a range of measures to deal with these problems, such as the installation of gutter guard, these had not been effective.
- Mr Blank submitted that the tree is isolated and is not significant in the landscape. He argued that the tree does not contribute sufficiently to the landscape so as to justify its retention.
- Mr Blank argued that if the asphalt surfaces are repaired without removing the tree, the problems will recur in a few years time and will require further repairs. But, he submitted, if the tree is removed, the driveway surface should remain intact for the foreseeable future.
The respondent’s evidence and contentions
- Mr Philip Walker, of counsel, appeared before the Tribunal for the respondent. The respondent did not call any expert witnesses, although Mr Phillip Unger, a member of the Tree Advisory Panel, assisted the Tribunal by responding to questions from the Tribunal concerning the provisions in the Tree Act for remedial action where lessees experience problems with regulated trees.
- The initial tree assessment report prepared on 28 January 2009 assessed the tree as being a ‘splendid specimen’. It was assessed as having a high landscape value, with a score of 8 out of 10. It was also assessed as having the landscape values of: ‘prominent due to age (regardless of stature)’ and ‘prominent due to location/stature/height’. The report identified the tree as a possible nomination to the Tree Register. The report said that the tree is most likely lifting the asphalt driveway and that its roots are likely to be in the drains. But the report commented that the tree is fully mature and it is doubtful that it will put out many more roots.
- The subsequent tree assessment report prepared on 19 February 2009 assessed the tree as a ‘large, well-formed’ tree and ‘a very good specimen’. It said that the tree appears to be ‘responsible for slight lifting of the asphalt driveway’.
- The respondent contends that the tree has not been shown to be causing or threatening to cause substantial damage to a substantial building, structure or service. It contends also that the tree is a good specimen and is significant to the landscape surrounding the applicant’s home.
- The respondent further contends that other reasonable remedial treatments and risk mitigation measures in relation to the tree have not been attempted by the applicant and/or determined to be ineffective.
- The respondent contends that the applicant is permitted under the Tree Act to undertake a range of remedial measures, including excavation and raising of the soil level in within the tree protection zone. The applicant may also cut any of the tree’s roots in the protection zone that that have a diameter less than 50 mm.
- The respondent further contends that excavation and resurfacing of the affected areas of the applicant’s driveway and/or raising the soil level of the driveway, and/or cutting any obstructive tree roots, within the limits provided by section 14(a) of the Tree Act, is a reasonable remedial treatment available to the applicant and would mitigate any risk to the applicant’s private safety from the present condition of the driveway, or reduce it to an acceptable level. The respondent contends also that the cost of excavating, resurfacing and/or cutting the tree roots would be less than the cost of removing the tree.
- Mr Walker began his submissions by drawing the Tribunal’s attention to various qualifying words in the Criteria Determination, such as ‘unacceptable’, ‘substantial’ and ‘substantially’, which he submitted, require findings of fact and value judgments, and should be interpreted within the context of the Tree Act. He traversed some of the key provisions of the Act, including its objects, and emphasised the importance of the legislation by reference to these provisions. He proposed that the qualifying words in the Criteria Determination should ‘not be too easily watered down’ otherwise this would undermine the serious intent of the legislation.
- Mr Walker submitted that it was not open to the Tribunal on the evidence before it to conclude that the damage to the driveway close to the neighbour’s fence was caused either by the subject tree or the neighbour’s tree. He submitted that none of the damaged sections of asphalt had sharp edges and were therefore not ‘classic’ tripping edges. He argued that the damaged area in the carport could be negotiated by walking along the length of the uplifted area rather than across it, and that it would be possible to use the car as a support while moving along the uplifted area.
40.Mr Walker drew the Tribunal’s attention to the third paragraph of the letter of 14 May by the applicant’s doctor, Doctor Madden, which reads:
I have emphasised to her that her home environment needs to be totally free of any obstacles, obstructions or unevenness of the ground that may cause her to fall.
- Mr Walker argued that in interpreting this paragraph the final words ‘that may cause her to fall’ are not to be omitted, and that Dr Madden is not arguing that the surface of the applicant’s home environment does not have to be completely flat but rather it should be free of obstacles that may cause her to fall. Mr Walker commented that, although Dr Madden has visited the applicant’s house, his letter does not identify the uplifted areas of the driveway as examples of the sorts of things he has in mind. On that basis, Mr Walker argued, that apart from confirming that the applicant has osteoporosis, which is not disputed, Dr Madden’s letter does not take the matter very far.
- Mr Walker commented that, although the applicant broke her ankle some three years ago, she has not taken any remedial action since then to remove various hazards around the house. He added that, the applicant is not profoundly disabled, and still drives with some frequency, which he suggested no doubt entails walking and encountering the sorts of obstacles that one does in the ordinary course of events. He noted that there is no evidence of any previous accidents involving the applicant caused by the uplifted asphalt.
- Mr Walker submitted that if the tree were removed it would still be necessary to fix the asphalt and remove the roots that are causing the damage, and that that should be tried before the tree is cut down. He submitted that if this were not done the Tribunal could not conclude that all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective because they have not been tried. He commented that if the problem is being caused by tree roots then removal of the roots is a reasonable and effective remediation measure.
- Mr Walker noted that the initial tree assessment report commented that the tree is fully mature and that it is doubtful that it will put out many more roots. He acknowledged, however, the presence of the word ‘many’ in this statement and conceded that that this assessment does not exclude the possibility that the tree may still put out some roots even if those that are there now are removed.
- Mr Walker submitted that having leaves and other material in the gutters is a common occurrence and cannot be accepted as evidence of ‘substantial damage’. Similarly with the problem of roots in the drains. In both cases, he submitted, it is reasonably easy to fix the problems. He added that there seems to be a problem with the way the gutters are constructed that causes water to overflow into the roof rather than onto the ground as normally happens with properly constructed gutters.
- On the issue of the tree affecting solar access, Mr Walker submitted that there is no evidence of any effect during the relevant period (9.00 a.m. to 3.00 p.m.) He commented that some of the shadowing is caused by the walls of the house itself, and there are large shrubs outside the windows of the rooms on the western side of the house that may also be interfering with solar access.
Consideration of issues
47.The Tribunal’s consideration of the evidence in relation to each of the relevant approval criteria and our conclusions are as follows.
48.Criterion 1(a): The tree is in decline and its life expectancy is short.
The applicant does not argue that the tree is in decline or that its life expectancy is short, and the parties agree that the tree is in good health. The initial tree assessment report assessed the health of the tree as ‘excellent’ and the reconsideration report described the tree as ‘a very good specimen’. We find therefore that criterion 1(a) has not been met.49.Criterion 1(b): The tree represents an unacceptable risk to public or private safety.
We have accepted for the purposes of criteria 1(b) and 1(c), in view of the evidence in the initial tree assessment report and in the reconsideration report, and in the absence of any contrary evidence, that it is highly likely that the subject tree is causing the uplifting to the driveway and the carport floor. We do not rule out the possibility that the tree on the adjoining property may also be causing damage, e.g. on the western side of the driveway, but note that neither the initial tree assessment report nor the reconsideration report identified the neighbour’s tree as a possible cause of the damage to the subject property.
50.The applicant is concerned that there is risk to public and private safety from the uplifted sections of the driveway and the floor of the carport. Having regard to the statement by Dr Madden, the Tribunal is satisfied that there is significant risk to the safety of the applicant in view of her particular medical condition and her history of injury from falling on an uneven surface. We accept that there is also, to a lesser extent, some risk to visitors to the house, such as young children. However, if the Tribunal is to accept that this criterion has been met, it must be satisfied that the risk is unacceptable and that all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective.
51.Although it appears that some repairs to the driveway have been carried out since the driveway was installed in 1971, the evidence is that the applicant has not undertaken repairs to the driveway or the floor of the carport to reduce the risk to her from the uplifted surfaces. We note that she did seek advice about possible repairs to the driveway at some time in the recent past but did not pursue the matter.
52.We accept the submission of the respondent that a number of remedial measures are available to the respondent, including excavation and resurfacing of the affected areas of the driveway and the carport; raising the soil level of the driveway; and removal of the roots that are causing uplifting of the asphalt surface. Installation of root barrier as a part of a suite of such remedial measures is also an option. It is possible that such remedial work may require approval under the Tree Act, depending on the size of the roots that would need to be removed, but we would expect that such approval would be readily given. The evidence from Mr Unger is that such remedial action is likely to be effective for a considerable number of years. In view of the age of the tree it is quite possible that such remedial measures may provide a permanent solution to the problem of uplifting of the driveway and the carport floor.
53.Although no evidence has been provided to the Tribunal as to the cost of such remedial measures, we note the respondent’s submission that even if the tree were removed, it would still be necessary to repair the asphalt and remove the damaging roots. Removal of a large tree would of course be an expensive undertaking, and it seems likely that the combined cost of removing the tree and repairing the damaged surfaces would be considerably greater than the cost of the remedial measures alone.
54.In view of the fact that a range of reasonable remedial and risk mitigation measures are available to the applicant and have not been determined to be ineffective, we have concluded that criterion 1(b) has not been met.
55.Criterion 1(c): the tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service.
For this criterion to be met it is necessary to demonstrate that the tree is causing, or threatening to cause substantial damage to a substantial building, structure or service and that all other reasonable remedial treatments and measures have been determined to be ineffective.
56.In Francis the Administrative Appeals Tribunal accepted that the driveway in that particular case was a substantial structure. This does not, however, constitute a precedent that binds this Tribunal in this case, and it is necessary to consider the matter on the facts of the present case.
57.In Maleganeas the attention of the Administrative Appeals Tribunal was drawn to cases in the Full Federal Court which had considered the meaning of the word ‘substantial’. The Court concluded that it meant large, weighty, considerable, solid or big, and not trivial, minimal or nominal. This interpretation is helpful in the present case. We find that the driveway and associated carport floor, which may be considered to be a single structure, fall within the Court’s definition and that they therefore constitute a substantial structure. We note that, although the respondent has argued that this criterion has not been met, it has not argued that the driveway is not a substantial structure.
58.As discussed above, we have accepted that it is highly likely that the subject tree is causing the uplifting to the driveway and the carport floor, while not ruling out the possibility that the tree on the adjoining property may also be causing damage. There are three areas of uplifting––two on the driveway and a third in the carport. The uplift in the carport is some 8–10 cm in height and a metre or so in length. Although the reconsideration report of 19 February 2009 referred to ‘slight lifting of the asphalt driveway’, we consider that this understates the extent of the damage especially in the carport. Taking the three areas of damage together, we are of the view that there is substantial damage to the driveway and the carport.
59.The applicant has also argued that the tree is blocking the sewer for the outside toilet and also the gully trap outside the kitchen. We accept that this problem is readily overcome and should be regarded more as a matter of household maintenance rather than as evidence of substantial damage to a substantial service.
60.As discussed under criterion 1(b), we accept that there are a number of reasonable remedial treatments and risk mitigation measures that are available to the applicant and which have not been determined to be ineffective. We find therefore that criterion 1(c) has not been met.
61.Criterion 1(d): the location of the tree is inappropriate given its potential size and growth habit (excluding remnant eucalypts)
The applicant has argued that this criterion is met because the tree is very large and close to the house (3. 5 metres) and as a result there is a continuing problem with leaves and other material entering and blocking the gutters and causing inflow of water into the house. The evidence is that the tree is fully mature, so it is unlikely to grow any larger or experience any growth habit beyond that already present. Apart from the problems with the gutter, however, there appears to be no damage to the house itself arising from the close proximity of the tree to the house. The question for the Tribunal therefore is whether the problems with the gutters justify removal of the tree. The need to clear gutters of debris from trees close to houses is common in the ACT and is usually accepted as a normal part of house and garden maintenance. We recognise that by installing gutter guard, the applicant has attempted to apply a reasonable remedial treatment, and that has not been completely successful. We also note the respondent’s suggestion that the design of the gutters may be contributing to the problem of inflow of water into the house when the gutters fill up with water. However, we consider that it would be unreasonable to remove a very high quality tree in order to overcome problems with keeping the gutters clean. We find therefore that criterion 1(d) has not been met.
62.Criterion 1(e): the tree is substantially affecting solar access to the lessee’s lease, or neighbouring lease, during winter hours of 9 a.m. to 3 p.m. and pruning is not sufficient to remedy this (excluding remnant eucalypts)
Although the applicant has argued that this criterion is met, no shadow diagrams or other evidence has been provided to the Tribunal in support of the argument and to demonstrate that any shadowing is caused by the subject tree. Counsel for the applicant has conceded it is a minor point and that supporting evidence may be lacking. We note the respondent’s submission that some of the shadowing of the rooms on the western side of the house may be caused by the walls of the house itself and also that there are large shrubs outside the windows of the rooms on the western side. The tree on the adjoining property may also cast a shadow at certain times of the day. We find therefore that criterion 1(e) has not been met.
63. Criterion 3: When deciding whether the criteria in paragraph 1 are met, the Conservator may consider:
(a) any exceptional circumstances that have been raised by the applicant, taking into account advice from the Tree Advisory Panel;
(b)the importance of the tree in the surrounding landscape.
64.Exceptional circumstances
Counsel for the applicant has argued that the particular health issues faced by the applicant and the importance of making her environment as smooth as possible so as to avoid serious injury constitute ‘exceptional circumstances’ for the purpose of criterion 3. The Tribunal has, however, fully considered the issues relating to the applicant’s health under criterion 1(b) and finds that there are no additional circumstances that would justify an alternative conclusion.
- Surrounding landscape
The evidence in the initial tree assessment report is that the tree has very high landscape values. Mr Blank argued, however, that the tree is isolated and is therefore not significant in the landscape. A contrary point of view is that its isolation, together with its size, increases the importance of the tree in the landscape. The Tribunal has concluded, in light of the expert evidence and its own observations during the site inspection, that the tree is important in the surrounding landscape, reinforcing the assessment that the tree should not be removed.
Conclusion
66.The tree is a fine specimen, which is important in the surrounding landscape. Such trees may not be removed unless strict conditions are met. We have considered the application for review against all the relevant approval criteria and find that the application does not meet any of them. In particular it has not been shown that all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective. We have concluded therefore that none of the conditions for removal have been satisfied and that the Conservator’s decision should be confirmed.
| …………………….. Presiding Member 31 July 2009 |
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NOS: AT 09/30
APPLICANT: CARMEN KELLY
RESPONDENT: CONSERVATOR OF FLORA AND FAUNA
COUNSEL APPEARING: APPLICANT: MR G BLANK
RESPONDENT: MR P WALKER
SOLICITORS: APPLICANT:
RESPONDENT: ACT GOVERNMENT SOLICITOR
OTHER: APPLICANT: SELF
RESPONDENT: MR P UNGER
TRIBUNAL MEMBERS: MR C CHENOWETH, PRESIDING MEMBER
MR J ASHE, SENIOR MEMBER
DATE OF HEARING: 20 JULY 2009 PLACE: CANBERRA
DATE OF DECISION: 31 JULY 2009 PLACE: CANBERRA
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PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
3
2
0