Krnc and Conservator Of Flora and Fauna; (Administrative Review)

[2012] ACAT 3

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

KRNC & CONSERVATOR OF FLORA & FAUNA

(Administrative Review) [2012] ACAT 3

AT 11/66

Catchwords:  ADMINISTRATIVE REVIEW

–Tree protection–review of

reconsidered decision  by Conservator of Flora of Fauna to refuse approval to remove a regulated tree–Eucalyptus blakelyi (Blakely’s red gum)–whether application meets criteria in Tree Protection (Approval Criteria) Determination No 2–whether the tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service–whether the tree is causing an allergic reaction to an occupant of a lease, or neighbouring lease, and the claim can be supported by certification from a relevant medical specialist–whether all reasonable remedial treatments or risk mitigation strategies have been determined to be ineffective.

Legislation:Tree Protection Act 2005 (ACT) ss 15, 19, 21, 25, 107, 107B

Subordinate Law:     Tree Protection (Approval Criteria) Determination 2006 (No 2) (ACT) (Disallowable Instrument DI2006–60)

List of Texts/Papers: CSIRO, Guide to homeowners on foundation maintenance and footing performance (updated for AS 2870–1996) (Revised August 1996)

Standards Australia, AS 2870-2011

Tribunal:                  Mr J. Ashe, Senior Member

Date of Orders:  27 January 2012
Date of Reasons for Decision:         27 January 2012

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          AA 11/66

BETWEEN:

MARY-ANNE KRNC

Applicant

AND:

CONSERVATOR OF FLORA AND FAUNA

Respondent

TRIBUNAL:            Mr J. Ashe, Senior Member

DATE:  27 January 2012

ORDER

1. The Conservator’s decision is set aside and in its place is substituted a decision that the application for approval to remove a regulated tree is approved.

2.This decision takes effect on 27 February 2012.

………………………………..

Mr J. Ashe

Senior Member

REASONS FOR DECISION

1.This is an application by Mrs. Mary-Anne Krnc (‘the applicant’)  for review of a reconsidered decision by the Conservator of Flora and Fauna (‘the Conservator’ or ‘the respondent’) made on 30 June 2011 to refuse approval for the removal of a regulated tree (‘the tree’) protected under the Tree Protection Act 2005 (ACT) (‘the Act’).

2.The tree has been identified as a Eucalyptus blakelyi (Blakely’s red gum). It is located at the front of residential Block 1, Section 19, Red Hill (street address:
1 Penrhyn Street) (‘the property’), close to the front steps and the front entry to the house and in front of a railed terrace (referred to by some witnesses as a verandah or deck).

3.Mrs. Krnc and her husband purchased the property in September 2010 but did not move in until June or July 2011. They had lived in the adjoining house at
3 Penrhyn Street from September 2001 to February 2008 and at 10 Charlotte Street, Red Hill, from February 2008 to February 2011.

4.The applicant first applied to remove the tree on 23 November 2010, i.e. after they had purchased the property but before they moved in. The stated grounds were:

Tree is unsafe.
Has a “new” crack at the base of the tree
Tree over main house.

5.A Tree Inspection Officer inspected the tree on 23 November 2011. He recommended that the application to remove the tree be rejected on the basis the criterion for removal relating to risk to public or private safety had not been met. The report stated that it was not evident that the tree was causing drain blockages. The tree was assessed as being a mature, prominent, remnant tree in good health, with a landscape value of 8 out of 10.  

6.On 26 November 2011 a delegate of the Conservator refused the application to remove the tree. The decision not to approve removal of the subject tree, made under section 25 of the Act, was 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), made under section 21 of the Act, had been satisfied.

7.Although the Act makes provision for an applicant to seek reconsideration of a decision by the Conservator to refuse to approve removal of a tree, Mrs. Krnc did not do so because of her medical condition at the time. However, on
28 April 2011 Mrs. Krnc made a fresh application to remove the tree. The stated reasons were:

1.Two major branches have fallen since we bought the house, one narrowly missing my children who were playing nearby.

2.The tree appears to have rot where a lower limb has broken off, in lower part of trunk, thus weakening tree.

3.Tree has damaged foundations as can be seen on left hand side of front porch;

4.Tree is inappropriate species for its position and potential size and proximity to the house.

5.Tree may be infected with termites.

8.The Tree Inspection Officer who made the assessment in November 2010 revisited the tree on 10 May 2011. He again recommended that the application be rejected. His report stated:

The tree dropped a branch & epicormic since the last visit. Some lerp in the tree. The patio rock work is cracked, but no evidence that the tree is the cause.

9.On 13 May 2011 a delegate of the Conservator refused the application on the same basis as before, namely, that none of the statutory criteria for removal had been satisfied.

10.The Act provides that a person may seek reconsideration of a decision by the Conservator to refuse to approve an activity under section 25 of the Act. The applicant sought such reconsideration on 30 May 2011. Included with the application was a tree report, dated 26 May 2011, prepared by Mr. Colin Schaefer of Sapphire Coast Tree Service & Tower Hire, which identified various alleged weaknesses in the tree and potential risks to personal safety. The report concluded that ‘it would be advisable to remove the tree before further problems arise and do cause injury to people and or property’.

11.Also included was a report by Mr. Don McInnes of Sellick Consultants Pty Ltd, which also recommended that the tree be removed because, in his opinion, it was causing cracking to the load bearing stonework below the verandah.
Mr. McInnes’s report is discussed further below.

12.The reconsideration application was referred to the Tree Advisory Panel, in accordance with section 107(1) of the Act. A member of the Panel, Mr. Anthony Fearnside, inspected the tree on 20 June 2011 and recommended that the application be refused. Mr. Fearnside found that, in light of its condition, the tree was unlikely to be a threat to public or private safety and that any threat to persons walking under or near the tree could be avoided by the construction of a fence around the tree.

13.In relation to the cracking in the stone wall, Mr. Fearnside noted that the cracks do not extend to the house itself, nor are there cracks visible inside the house.  He noted that, although Mr. McInnes had claimed that the cracks are due to the tree, there had been no attempt to excavate the tree roots and his report did not specifically describe the foundations under the deck. Mr. Fearnside was not satisfied that the CSIRO guidance was correctly applied, given Mr. McInnes’s categorisation of the soil on the block as ‘class S (slightly reactive)’. The experience of the Tree Protection Unit, he said, did not confirm Mr. McInnes’s findings on Class S soils.

14.At its meeting on 23 June 2011, the Tree Advisory Panel decided to recommend refusal of the application on the basis that none of the criteria for approval had been satisfied. On 30 June 2011, the Conservator confirmed the decision not to approve removal of the tree.

15.On 28 July 2011 the solicitors acting for the applicant applied to this tribunal for review of the Conservator’s reconsidered decision. The application contends that:

·The tree represents an unacceptable risk to public and private safety

·The tree is causing or threatening to cause substantial damage to a building

·The location of the tree is inappropriate  given its size

·The tree is causing an allergic reaction to an occupant of the lease.

Applicable law
 

16.It is an offence under the 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.

17.Section 25(3) sets out the matters to which the Conservator, and therefore this tribunal, must have regard when making a decision on an application to remove a protected tree. They are:

(a) the approval criteria; and

(b) the advice (if any) of the advisory panel; and

(c) anything else the conservator considers relevant.

18.Section 21 of the 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 the Tree Protection (Approval Criteria) Determination (No.2) (Disallowable Instrument DI2006–60) (‘the Criteria Determination’), for the purposes of section 21. As relevant to this case, it includes the following:

(1)The Conservator of Flora and Fauna (the Conservator) may give an approval to damage a regulated tree under section 25 when:

…

(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 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;

… and

all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective.

19.Section 107B of the Act provides for review by this tribunal of a decision of the Conservator under section 107 of the Act following reconsideration of a decision originally made under section 25 of the Act.

Agreed facts

20.It is agreed that the tree is a regulated tree and that its removal requires approval. It is not disputed that the tree is a remnant Eucalyptus blakelyi, commonly known as Red gum. The tree is estimated to be approximately 17 metres high with a canopy spread of approximately 17 metres and a trunk with a circumference of approximately 2.3 metres. There is general agreement that the tree is at least 100 and probably 150–200 years old.

The hearing

21.The hearing took place on 7–8 December 2011. Mr. Robert Clynes represented the applicant and Mr. Phillip Walker represented the respondent. Mr. Col Schafer, Mr. Don McInnes and Dr Carolyn Hawkins provided evidence for the applicant, and Dr Peter Coyne, Mr. Linden Coot and Mr. Andreas Sneyers provided evidence for the respondent.

Site inspection

22.The tribunal conducted a site inspection of the subject tree and the property on the first day of the hearing on 7 December 2011. The inspection was conducted in the presence of the parties and some of the people who later gave evidence at the hearing. The tribunal noted the location of the tree and its proximity to the house; the general appearance of the house and land, indicating neglect and lack of maintenance over a period of years, including gutters filled with leaves and twigs.  The tribunal noted the presence of small twigs and other debris on the terrace/verandah, which had apparently fallen from the tree.

23.The tribunal noted the general appearance of the tree, including some dead branches and evidence of previous pruning. The tribunal’s attention was drawn to various parts of the tree said to be evidence of weakness, which were later discussed in evidence during the hearing. The tribunal noted that the tree overhung the house to some degree.

24.The tribunal noted the position of the tree on the block and its relationship to the grammar school across the road. Parts of the block said to be the paths taken by schoolchildren to and from the grammar school, were pointed out.

25.Measurements taken during the inspection show that the tree is 3.8 metres from the stone wall under the terrace; approximately 3 metres from the front steps; and approximately 6 metres from the north west wall of the house.

26.The tribunal noted the cracks in the stone wall, and their location, direction, size and appearance. It was not apparent whether the wall is a solid stone wall or a combination of stone and masonry. The base of the wall and its connection to the footings were not exposed.

27.A specific focus of the site inspection was the recent excavation between the tree and the stone wall, close to the wall and approximately 1 metre deep. The ends of severed roots could be seen some 700 millimetres below the surface on both sides of the trench heading in the direction of the stone wall. The excavated soil next to the trench had a yellow, clay type appearance. Sitting on top of the excavated material were a number of pieces of wood that could possibly have been the severed roots from the tree.

28.Mr Linden Coot, a witness for the respondent pointed out the presence of blocked downpipes, including one next to the front steps, possibly not even connected into the stormwater drainage system.

29.As part of the inspection, the tribunal was asked to view a large Eucalyptus melliodora (Yellow box) just over the back fence at the adjacent house. Limbs from this tree had fallen during a recent storm, causing damage to the roof of that house and to the fence between the two houses. The tribunal noted that the backyard of 1 Penrhyn Street had an appearance of neglect, including the presence of long grass.

30.As part of the site inspection, the tribunal and the parties also viewed the house at 3 Penrhyn Street, where the applicant and her family lived from 2001 to 2008. Mrs Krnc described the garden renovations that were put in place while she lived in the house. The inspection included a view of the vacant land next to 3 Penrhyn Street, on which several eucalyptus trees of different species are growing.

31.The tribunal was also asked to view 10 Charlotte Street, where the applicant and her family lived from 2008 to 2011. The tribunal noted the presence of two large eucalyptus trees on the verge in front of the house. The tribunal’s attention was drawn to the presence of other eucalyptus trees in the general vicinity of the house but not on the block at 10 Charlotte Street.

Consideration of evidence against the criteria

32.During the course of this case, the applicant has sought approval to remove the tree on the grounds that four of the approval criteria in the Criteria Determination are met. The tribunal now turns to a consideration of the evidence in relation to each of these criteria.

Criterion (1)(a): the tree represents an unacceptable risk to public or private safety.

33.The applicant and the respondent both presented evidence in relation to this criterion. However, Mr Clynes for the applicant conceded, in light of the evidence from Mr Schaefer and Dr Coyne, that this criterion was not met. This accords with the position to which the tribunal itself had come. The tribunal finds that criterion (b) is not met.

Criterion (1)(d): the location of the tree is inappropriate given its potential size and growth habit (excluding remnant eucalypts)

34.In the application for review to this tribunal the applicant contended that ‘the location of the tree is inappropriate given its size’. However, the criterion specifically excludes remnant eucalypts. It is not disputed that the tree is a remnant eucalypt and no evidence was put forward in support of the applicant’s contention. The tribunal finds that criterion (d) is not met.

Criterion (1)(c): the tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service.

The applicant’s evidence

Mr. Don McInnes

35.Mr. Don McInnes gave evidence for the applicant in relation to this criterion.
Mr. McInnes is a Director of Sellick Consultants Pty Ltd, a firm of consultant structural, civil and hydraulic engineers. He has a Bachelor of Engineering (Hons) and is a Chartered Professional Engineer. His degree is in civil engineering, majoring in soil mechanics and structures. His work for Sellicks is primarily structural engineering work, but includes some hydraulic work. He has knowledge of soil mechanics. Mr. McInnes prepared a report for the applicant dated 30 May 2011 (exhibit A4).

36.The report states that significant cracks have developed to the load bearing stonework below the verandah, which are regarded as ‘severe to moderate’ when referenced to Australian Standard AS 2870–2011: Residential Slabs and Footings–Construction. In Mr. McInnes’s view, given the localised nature of the cracks to the stonework, and the adjoining location of the tree, it is reasonable to conclude that this damage is ‘directly related’ to the tree.  Mr. McInnes found support for his views in CSIRO guidance concerning the planting of trees on reactive soils. This guidance is to be found in CSIRO publication, Guide to homeowners on foundation maintenance and footing performance (updated for AS 2870–1996) (Revised August 1996). This publication includes a classification of soils according to the degree to which they swell and shrink with moisture content, including:

Class S: Clays that have not given trouble in the past.
Class M: Moderatively reactive clays that may cause minor damage to brick houses on old-style light strip footings. Moderatively reactive clays are common.
Class H: Highly reactive clays that often damage houses, paths and fences.

37.Mr. McInnes initially assessed the soil as Class S (slightly reactive), having regard to his local knowledge of the area and the structural performance of the residence. In light of this classification, he thought that the site would be less influenced by the subject tree. Nonetheless, it was clear, the report said, that the structure (i.e. the wall) had been affected, resulting in the cracking.

38.The CSIRO publication recommends that to minimise the risk of damage, trees should not be planted near houses on reactive clay soils and recommends limits according to the reactivity of the soil. For Class M soils, it recommends that a tree should not be planted any closer than 0.75 times the height of the tree.

39.The report found it difficult  to say whether the cracking was the result of the tree affecting moisture conditions within the founding clays or alternatively, breaching into the footing zone itself, unless further geotechnical work were carried out.

40.Mr. McInnes’s report also raised concerns that tree roots may infiltrate the drainage system, causing maintenance problems for the drainage system itself, as well as structural problems.

41.Mr McInnes gave evidence at the hearing. He thought it was difficult to say, but thought the cracking had been there for ‘in excess of 10 years’. Having regard to the soil profile as revealed by the excavation and 25 years experience, his view was that the soil should be classified as class M rather than Class S. The clay he observed would have a certain degree of reactivity. For Class M soils, the CSIRO recommends a minimum safe distance of 0.75 times the height of the tree.

42.The cracking, he thought, could be due to a combination of things, including drainage, but his view was that the tree ‘would have an effect in that area’. He had noted the blocked drainpipe to the right of the front steps and would have expected to see more cracking. He thought that if blocked drains were the cause of the cracking to the stone wall, there would also be cracking of the main wall of the house and he did not see any. Nor was there any cracking to the stone wall near the stairs.

43.Mr McInnes agreed that the CSIRO document does not specifically make a recommendation in relation to Class S soils, i.e. does not say that the minimum distance should be 0.5 times the height of the tree, as suggested in his report.  This was his own extrapolation and recommendation.

44.In response to cross examination by Mr Walker, Mr McInnes said that he would not call the damage significant.

45.Responding to Mr Clynes, Mr McInnes thought that the tree certainly has potential to cause substantial damage to a substantial building, structure or service. If he was asked by someone who wished to purchase the place to provide a warranty that the tree would not cause structural damage, he said that there was “no way in the world” he would sign it off and he did not think there was any structural engineer worth his salt who would sign it off. His opinion applied to the stone wall but he would extend it to the main residence. This is because the roots are heading in the direction of the house.

The respondent’s evidence

Mr Linden Coot

46.Mr Coot is a structural engineer employed by John Skurr Consulting Engineers Pty Ltd. He has a Bachelor of Engineering degree and has undertaken postgraduate studies in structural engineering. His work experience includes a wide range of work in the field of structural engineering.

47.At the request of the Tree Protection Unit, Mr Coot prepared a report on the cracking of the stone wall under the verandah at the property and a number of associated issues (exhibit R7). Mr Coot’s report concluded that the tree is not the primary cause of the cracks in the stone wall and that the wall has cracked due to settlement of its underlying foundation due to excessive water from blocked stormwater pipes.

48.

During his inspection of the property on 27 September 2011, Mr Coot observed the cracks in the stone work on the northwest and northwest faces of the stone wall. He assessed these as 10 mm in width. Being within the range 5 mm to

15 mm, such cracks are classified as Moderate by Australian Standard AS 2870–2011. The standard describes them as cracks that ‘can be repaired and possibly a small amount of wall will need to be replaced’.

49.Mr Coot also identified two cracks approximately 1 mm in width on the north east and northwest walls of the house. AS 2870 classifies such cracks as Very Slight and describes them as ‘fine cracks that do not need repair’.

50.The report states that ‘all of the cracks observed in the residence are not considered to be compromising the structural integrity of the building’.

51.At the hearing Mr Coot affirmed his opinion that the tree is not the cause of the cracking and that the damage to the wall is caused by blocked gutters and pipes. He agreed that the position of the tree was in conflict with the CSIRO guidelines and was happy with the classification of the soil as Class M. He affirmed his view that the cracking is cosmetic and not structural.

Dr Peter Coyne

52.Dr Peter Coyne has a BSc (Forestry) (Hons) and a PhD in plant ecology. He is the Chair of the Tree Advisory Panel but was not present when the panel considered the reconsideration application on 23 June 2011.

53.Dr Coyne inspected the tree on 1 September 2011 and prepared a report submitted in evidence (exhibit R5). He noted that the paving of the front terrace is intact apart from a hairline crack near the front door. The paving did not show any evidence of movement or damage which might have been attributed to the tree. He also noted the cracking of the stone wall under the front terrace. The cracking appeared to be due to subsidence of the wall but neither the timing, nor the cause, were apparent. He did not see any evidence to connect the tree to the damage. The report proposes that other possible causes could be inadequate footings or a blocked downpipe at the corner of the house near the stone wall.

54.

At the hearing Dr Coyne agreed that the roots from the tree were running towards the stone wall, but thought that there was only a remote connection between the roots and the damage to the wall. He had not seen the footings or seen any drawings and did not know what footings were there.

Consideration of evidence

55.

For criterion (c) to be met, it is necessary for the tribunal to be satisfied that

 

(i) the tree is shown to be causing or threatening to cause substantial damage; (ii) the damage is to a substantial building, structure or service; and (iii) all other reasonable remedial treatments and risk measurement measures have been demonstrated to be ineffective. If the tribunal is not satisfied as to any of these elements, it cannot find that the criterion is met and agree to removal of the tree.

56.It is not disputed that the stone wall is a substantial structure, so the second element is met.

57.The tribunal notes that both Mr McInnes and Mr Coot agree that the soil should be classified as Class M–Moderately Reactive. The tribunal has also noted that the tree is well within the distance where, according to the CSIRO guidance, one might expect damage to occur. The excavation shows the presence of roots from the tree close to and heading in the direction of the wall. The tribunal accepts, in light of the evidence from Mr Coot, that blocked gutters and downpipes are causing or contributing to the movement of the clay soils in the vicinity of the stone wall. Although there is no evidence before the tribunal as to how long the gutters and downpipes have been blocked, the general appearance of the house as seen during the inspection suggests that the house has not been well maintained for many years. There is therefore no inconsistency between Mr Coot’s evidence on this point and Mr McInnes’s evidence that the cracking in the stone wall is in excess of ten years. Taking the evidence as a whole, the tribunal believes that the tree has probably contributed to the cracking of the wall, even if the primary cause is movement in the soil caused by shrinking and expansion of the clay soil in the vicinity of the wall. It is necessary, however, to consider whether the damage, actual or threatened, is substantial.

58.The evidence by Mr Coot,  was that  the damage to the stone wall is appropriately classified as Moderate in terms of AS2870–2011, so the cracks are capable of being repaired and do not threaten the structural integrity of the wall or the house proper. Mr McInnes conceded in cross examination that the damage to the wall is not significant, although he thought there was potential for the tree to cause such damage. This opinion was, however, not supported by evidence other than his professional opinion.  Moreover, having the potential to cause substantial damage does not in the tribunal’s view meet the test of showing that the tree is actually threatening to cause substantial damage. The tribunal has therefore concluded that the damage is not substantial and therefore the first element in the criterion is not met.

59.AS 2870–2011 describes cracks in walls categorised as Moderate as damage that ‘can be repaired and possibly a small amount of wall will need to be replaced’. Mr Coot has proposed that the wall be repaired and has given detailed instructions as to how this could be done. He has estimated that such repairs would cost in the vicinity of $2000–$3000. Such repairs would be necessary even if the tree were to be removed. He has also recommended that the gutters and downpipes be repaired. For its part, the applicant has not provided any evidence that would demonstrate that reasonable remedial treatments and risk mitigation measures have been determined to be ineffective. The tribunal has therefore concluded that the third element in the criterion has not been met.

Conclusion

60.The tribunal has concluded that criterion (c) has not been met.

Criterion (1)(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.

The applicant’s evidence

Mrs. Mary-Anne Krnc

61.Mrs. Krnc did not provide a witness statement but did provide evidence at the hearing. Mrs. Krnc suffers from multiple allergies, including to certain foods, grasses and drugs, including aspirin. She had a severe reaction to aspirin following surgery 5 years ago and can’t take drugs containing aspirin. She is now anaphylactic, i.e. she is hypersensitive to a range of allergens. The symptoms include nervousness; restlessness; itching; headaches; head-spinning due to blood pressure dropping; angiodema (face swelling and welts on the scalp); swelling around the lips; and  problems with swallowing.

62.Mrs. Krnc has been under the care of Dr Carolyn Hawkins for 5 years, who began treating her in 2006 following a severe anaphylactic reaction to tomato and aspirin. She has six- monthly appointments with Dr Hawkins. Dr Hawkins has prescribed a regime of drugs and other treatments, including those to be applied when she is having a severe allergic reaction.

63.Mrs. Krnc said that at the site inspection earlier in the day she had had a reaction to the tree. She started itching, so she took Telfast, one of the drugs prescribed by Dr Hawkins.

64.Mrs. Kroc’s symptoms were ‘pretty good’ she when she lived at 10 Charlotte Street and before she moved into 1 Penrhyn Street. But the symptoms got progressively worse after she moved in—itching of face and scalp; swelling of the face; a feeling that her face is sunburnt; tightness around the lips; asthmatic symptoms; tightness in the chest and a dull cough. She had not experienced these allergy symptoms to the same extent before June 2011.

65.Mrs. Krnc described how material from the tree falls onto the verandah and front steps, including leaves and ‘nut’ type material. This had been worse in the previous two months. She sweeps or hoses this material over the edge of the verandah. She and her husband and two sons take off their shoes in the house and they keep the front door closed. She uses a special vacuum cleaner to keep the house free of material from the tree. This has a high filtration system and is designed for managing allergies.  She uses a clothes dryer rather than an outside clothes line to avoid pollen in the air.

66.Responding to Mr. Clynes, Mrs. Krnc’s opinion is that the tree is causing the allergic symptoms that she has been experiencing since she moved into the house.

67.Mrs. Krnc thought that the tree had been flowering for the 6-8 weeks prior to the hearing, i.e. since late October. She agreed that she had been experiencing heightened symptoms before that.

68.Mrs. Krnc agreed that she had allergic reactions in the past which had been as severe as they have been since June 2011, but her understanding of the causes was not as good then, as it is now.

69.Mrs. Krnc enlarged on her evidence in response to cross examination from
Mr. Walker. She has had allergies most of her life but did not have an anaphylactic reaction until 5 years ago. She has allergies to various food additives and also to some flowers, shrubs and to pollen. Her symptoms are getting worse as she gets older. She did not experience allergic symptoms from trees when she lived in 3 Penrhyn Street or 10 Charlotte Street.

70.Mrs. Krnc had undertaken substantial garden renovations when she lived at
3 Penrhyn Street, including removal of grass and planting of allergy friendly plants. She acknowledged that she does suffer an allergy to grasses and has reactions to many different grasses. But she does not know if she suffers an allergy to the grasses at 3 Penrhyn Street. In her view she was being prudent when she removed the grass at 3 Penrhyn Street. She had no explanation for why she did not have any allergic reactions to trees when she lived at that address.

71.Mrs. Krnc has reactions to dust when there is a dust storm, and tries to keep her house dust free. She has no problems with fungi or spores, and keeps a clean home to avoid mould.

72.She said that she often has an instant reaction to something which enables her to identify the cause. She believes that the tree is causing her grief  because of the leaves, the ‘nuts’ and the pollen that fall on the house,  and does not agree that there may be other causes.

Dr Carolyn Hawkins

73.Dr Carolyn Hawkins has been practising as a doctor since 1992 and as a specialist immunologist since 2001. She is a Fellow in the Royal Australasian College of Physicians in Immunology and Allergy, and is also a Fellow in the Royal Australasian College of Pathologists of Australasia in Immunopathology.
Dr Hawkins works as a clinical immunologist at the Canberra Hospital.

74.Dr Hawkins prepared three letters, on 27 July, 18 October and 24 November 2011, which describe Mrs. Krnc’s medical condition and history and set down
Dr Hawkins’s views as to the connection between Mrs. Krnc’s current medical condition and the tree at 1 Penrhyn Street (exhibits A1, A2 and R2).

75.Dr Hawkins has been treating Mrs. Krnc since 2006 for management of severe allergic disease manifested by anaphylaxis (i.e. extreme allergic reaction) secondary to salycilates, asthma, allergic rhinitis and recurrent angiodema (i.e. swelling) of the face with symptoms suggestive of bronchial hyperactivity. In the past, her symptoms have related to ingestion of particular foods and use of aspirin and NSAIDS (non-steroidal anti-inflammatory drugs).

76.Dr Hawkins first met Mrs. Krnc in August 2006 when she presented with a severe allergic reaction requiring administration of adrenaline. This reaction occurred in the context of eating a meal containing high levels of salycilates and the use of prophylactic aspirin. Subsequent testing has confirmed reactions to high level salycilates and aspirin. Since the testing, Mrs. Krnc has not had any significant allergic reactions related either to dietary sources of high level salycilates or aspirin, with good control over the last 4 years. Mrs. Krnc also has a history of seasonal allergic rhinitis and asthma.  Mrs. Krnc has other medical conditions, but these are unlikely to be contributing to the episodes of facial swelling.

77.Dr Hawkins reviewed Mrs. Krnc’s medical condition in July 2011. At that stage, Mrs. Krnc had recently moved house and reported daily episodes of facial and rhinitis. She required daily antihistamine, but control of the symptoms was suboptimal. Mrs. Krnc had reported that when she travelled away from home these symptoms would resolve but recur on return to the house. There had been no change to Mrs. Krnc’s diet or medications. She had not been taking either aspirin or NSAIDs, to which she had previously experienced allergic reactions.

78.The only change to Mrs. Krnc’s environment, Dr Hawkins said, was a move to a house with a large Eucalyptus blakelyi in the front garden and overhanging the house. Dr Hawkins thought it was of note that, although Mrs. Krnc had lived in the area over the time she had been under the care of Dr Hawkins, it was only since she had moved to the property that she had had difficulty with these symptoms, with travel away for any period of time being associated with resolution of the facial swelling. She could not identify any other potential triggers over this period.

79.Dr Hawkins does not have skin prick testing reagents for Eucalyptus blakeyi but performed a skin prick test using a commercial extract for Eucalyptus globulus (Blue gum), which was negative. Previous testing had shown results consistent with sensitisation to grass, weed and tree pollens. Other testing had shown allergic reactions to salycilates. Dr Hawkins understood that Mrs. Krnc was adhering to a diet that places her at low risk of reaction and had not presented with symptoms suggesting that diet was the likely cause. Mrs. Krnc was also avoiding aspirin and NSAIDs, previously shown to have caused allergic reactions.

80.Mrs. Krnc’s medical history showed good control of her allergic disease with minor modifications either to her medications or diet. Dr Hawkins thought that it was unlikely that her symptoms could be explained by other eucalyptus trees in the area, or by exposure to other tree, grass or weed pollens, given that she did not experience these symptoms when living in an adjacent property and, more recently, the adjacent street.

81.Dr Hawkins said that although she could not directly prove that the tree is the cause for Mrs. Krnc’s recent symptoms, in the context of her significant allergic disease and the temporal association between her move and the development of daily symptoms requiring treatment, it was likely that living directly under this tree was contributing to the ongoing flare in her symptoms. It was Dr Hawkins’s view that the tree should be removed in accordance with criterion (f).

82.Dr Hawkins elaborated on her written evidence at the hearing. She probably saw Mrs. Krnc in the week before writing her letter of 27 July 2011, probably on the preceding Wednesday.  She had seen her frequently over the 3–4 months before the hearing. Prior to July 2011, Dr Hawkins had been seeing Mrs. Krnc for a number of years and she had been very well during that time. But when
Dr Hawkins saw her just before writing the letter of 27 July 2011 there had been a significant change—she had had significant episodes of facial angiodema, which had not been present for quite a long time. 

83.Dr Hawkins had taken a history of the changing events surrounding Mrs Krnc’s life. The only thing that had really changed was that Mrs. Krnc had moved house, there was a lot of debris from the tree coming into the house and she was constantly cleaning the house to get rid of this material. Dr Hawkins confirmed that Mrs. Krnc had not spoken of flowers or pollen in July. She said pollen is not a problem in Canberra in July.

84.Dr Hawkins confirmed that Mrs. Krnc had had facial angiodema when she first started treating her but that this had been brought under control over the last
5 years, until it reappeared after moving into the new house.

85.Mrs. Krnc has had evidence of sensitisation, with either positive skin tests or blood tests, to a range of pollens for 5–6 years, but they had managed to control it over that period. Dr Hawkins acknowledged that the test results attached to exhibit A1 were for 23 March 2010 but she knew that she had requested further allergen specific testing in July 2011. The test results do not identify the specific grasses that Mrs. Krnc is allergic to; the test is for a mix of grasses. In Canberra perennial rye grass is the predominant grass problem. Plantain is the weed that causes the most problems. There are two test panels for trees—one for exotics and one for native trees. As with grasses and weeds, the test results do not identify the specific species of tree that may be causing a reaction.

86.Dr Hawkins confirmed that she had made enquiries of Mrs. Krnc concerning other plants at the house. She understood that there are not many other plants at the house. Dr Hawkins said that she had made enquiries about grass, but then clarified that she drives past the house every day and knows that the grass is not high and is well mown. Therefore grass pollens can’t be an issue in the direct environment of the house. Responding to a question from the tribunal concerning the presence of high grass in the backyard (seen during the inspection),
Dr Hawkins said she was not aware of what is in the backyard.

87.Dr Hawkins said that potentially any tree can cause allergy but eucalypts and acacias are the main ones she comes across in her practice. In her clinic, the only skin test reagents are for acacias and eucalypts. She said that ivy only causes a reaction if you touch it and is not a plant that she sees in her clinic as causing allergic reaction associated with a positive skin test. She has not come across Chinese Privet, Common Privet, Honeysuckle, Black Locust as a problem.

88.Responding to Mr. Walker concerning the cause of the allergy to eucalypts,
Dr Hawkins said that Mrs. Krnc has very severe salycilate intolerance. Dr Hawkins thought that the problem may be that a large amount of salycilate may be being liberated from the tree and causing the reaction. A protein in the tree may be causing the trouble. She said that eucalypts produce a large amount of residue on the surface of the tree, which potentially is a risk. Dr Hawkins confirmed that salycilates are present in all types of gum trees. But she could not explain why, if there are salycilates in all gum trees, Mrs. Krnc did not experience any adverse reaction to the gum tree in the backyard of  3 Penrhyn Street.

89.Having been asked whether, if pollen was absent in July, could one rule out inhalation as the cause, Dr Hawkins  thought that there would still be enough residual material, e.g. oils and dust present even if the tree was not flowering. One cannot argue that it is just the pollen. Mrs. Krnc’s problems may be caused by either inhalation or contact or a combination even in July. Reaction to pollen is seasonal and when someone presents with symptoms in July, she would not normally think of pollen as the primary explanation. One might think of mould allergy but not pollen. The only other possibility is dust mite and she knows that this does not apply in Mrs. Krnc’s case.

90.Dr Hawkins confirmed that she did not have a commercial skin test for Eucalyptus blakelyi. She does not like to prepare such tests herself because of the risk of harm to the patient, i.e. through infection. This is not an issue with commercial tests, which use sterile material. But even if she were to develop a test using a sample from the tree, the results would not necessarily be conclusive, unless there was a Type 1 reaction (i.e. hypersensitive reaction). If the reaction was a contact type reaction or intolerance, the results would be negative.
A Type 1 reaction is more likely to occur due to inhalation, as in the case of asthma. 

91.Dr Hawkins confirmed that Mrs. Krnc does not have an allergy to mould. She had tested Mrs. Krnc for mould between July and November, and the results were negative. She had been looking for other possible explanations for the symptoms apart from the tree to see whether mould might be the cause of the problem.

92.Medication can ameliorate allergic symptoms but will not cure the underlying cause. In Mrs. Krnc’s case the medication has failed to ameliorate the facial swelling completely, although it is better controlled. The hay fever is also better controlled. Her asthma is a reasonably well controlled.

93.Dr Hawkins did not accept the hypothesis suggested by Mr. Walker that
Mrs. Krnc’s problems were caused by grasses or weeds present at 1 Penrhyn Street. When Mrs. Krnc presented with her symptoms in July it did not occur to her that the problems could be due to grasses or weeds as, at that time of the year, because of the cold, you do not see lots of pollen being liberated. She sees patients every year and watches the rise and fall of their allergic reactions as a regular pattern. Mrs. Krnc’s symptoms were unusual and did not fit the pattern.

94.Dr Hawkins does not believe that Mrs. Krnc has had an anaphylactic reaction to the tree but does believe she has had an allergic reaction to the tree. There is a difference between an anaphylactic reaction and other allergic reactions but they are all on a spectrum, an anaphylactic reaction being more severe and involving at least three different body systems.

95.Dr Hawkins agreed with Mr. Walker that her position was that, although she agreed there could be other causes, e.g. grasses or weeds; nonetheless she believed that the Eucalyptus blakelyi was the cause of Mrs. K’s allergic reactions.

The respondent’s evidence

Dr Peter Coyne

96.Dr Coyne saw no evidence of buds or fruits on the tree when he inspected the tree on 1 September. He thought then that the tree had not flowered during 2011. He agreed that flowers are necessary for there to be pollen.

97.There are several other sources of pollen in the area. Looking out from the house, eucalypts are common in every direction from close by the house to the flanks of Red Hill and beyond. There is quite a range of species and a huge number of trees. Wind-blown pollen from these trees could be among the sources of pollen.

98.The eucalypts include Eucalyptus melliodora (Yellow box), including one over the back fence, part of which ‘blew down’ recently. There is a large one about
50 metres away towards Mugga Way. There are also several Eucalyptus mannifera (Brittle gum/Red spotted gum) and  Eucalyptus  sideroxylon (Red ironbark). There are quite a few Eucalyptus blakelyi on Red Hill and several across the road at the grammar school.

99.Exhibit R6, prepared by Dr Coyne, shows the location of other Eucalyptus blakelyi in the area, including three on the vacant land next to 3 Penrhyn Street. There are also several Eucalyptus sideroxylon and Eucalyptus mannifera on this vacant land. There is a large Eucalyptus mannifera in the backyard of 3 Penrhyn Street.

100.Most of the other species are introduced, northern hemisphere species, which produce pollen. The pollen from such trees is more of a problem than the pollen from eucalypts. There are also a lot of shrubs and conifer hedges that are a source of pollen. Just about every plant produces pollen.

101.Dr Coyne did not agree that eucalypts generally produce a residue. But they can produce a residue as a result of insect attack. This is exuded by the insects rather than by the tree. Otherwise the leaves generally remain pretty clean. The leaves on eucalypts do not normally produce dust.

102.Dr Coyne agreed that, as seen at the site inspection, eucalypts produce a type of nut-like detritus known as ‘operculae’. They are the conical caps from the flower buds which protect the flower buds when they are growing. They appear only a few days before the tree begins to flower, and are cast off when the buds begin to open when the operculae are still green. The operculae seen on site were dried operculae rather than fresh green ones. They dry out very quickly as they are very thin.

103.Dr Coyne saw no evidence of flowers when he visited the house on 1 September and thought he would have noticed any operculae if there were any there, e.g. from last year, either in the tree or on the ground. The flower buds develop over 2–3 months and flower over a period of up to 6 weeks.

104.Dr Coyne thought that winds would be more likely to bring down whole twigs rather than individual buds. He agreed he saw twigs on the steps of the house.

105.He agreed that Eucalyptus blakelyi produces oil, in the leaves but has never heard that it is used for eucalyptus oil.  Oil does not normally exude from the leaves of eucalypts but could possibly escape as a gas if there were exposure to heat.

106.Dr Coyne generally agreed with Mr. Schaefer’s estimate that the tree is 150-200 years old and thought it was a minimum of 100 years of age. He did not agree that the tree was getting close to the end of its life; it is in its mature phase and is not over-mature.  In his view it has many years of life ahead of it.

Andreas Sneyers

107.Mr. Sneyers is an Environment Protection Officer with the Tree Protection Unit, and has qualifications and work experience in arboriculture. He provided a witness statement with attached aerial photographs as evidence that the tree is a remnant eucalypt (exhibit R3). Mr. Sneyers also provided a list of trees and plants in and around 1 and 3 Penrhyn Street which Mr. Walker had drawn on in his examination of Dr Hawkins in relation to identification of possible causes for Mrs. Krnc’s allergic condition (exhibit R4).

Consideration of evidence

108.It is not disputed that Mrs. Krnc has been experiencing allergic reactions since she moved into the house at 1 Penrhyn Street and that the cause is environmental rather than a reaction to her diet or medication. The symptoms are not present when she is away from the house but the return when she comes back to the house.

109.Mrs. Krnc has been experiencing these symptoms since the middle of 2011, well before the onset of spring weather in Canberra and, therefore, well before pollens, whether from trees or grasses or weeds, are likely to be the cause.

110.Dr Hawkins has given evidence that Mrs. Krnc has very severe salycilate intolerance and is very allergic to foods and drugs that contain salycilates.
Dr Hawkins also said that salycilates are present in all gum trees and that the problem may be that a large amount of salycilate is being liberated from the tree via leaves, bark, twigs, operculae, dust and other particles even when the tree is not flowering. This evidence was not challenged.

111.The respondent has not presented any medical evidence that contradicts the evidence of Dr Hawkins. It has sought to undermine Dr Hawkins’s evidence by arguing that there may be other causes, such as exposure to grass, weed and tree pollens and also to fragrant plants. There is, however, no firm evidence backed by medical or other opinion that any of these possible alternatives is the actual cause. There is of course the medical evidence that Mrs. Krnc is allergic to grass, weed and tree pollens. But this does not explain how or why Mrs. Krnc was experiencing allergic reactions before the onset of spring and the presence of pollens in the air. Nor is there any evidence that other potential causes such as mould or dust mites are the cause.

112.Dr Hawkins has conceded that she cannot directly prove that the tree is the cause of Mrs. Krnc’s symptoms and she agrees that there may be other causes. But she was firm in her opinion that the tree is the cause of the symptoms. The tribunal considers that this evidence must be given considerable weight, especially as there was no countervailing medical evidence in support of an alternative explanation.

113.The respondent has sought to cast doubt on Dr Hawkins’s evidence on the basis that it is allegedly based on a process of elimination, and does not take account of other possible causes for Mrs. Krnc’s condition.  The tribunal does not find this argument persuasive. Dr Hawkins has considered the positive evidence that points to the tree as the cause, including the evidence from her patient’s own experience since she moved into the house in the middle of the year. Mrs. Krnc’s known severe intolerance of salycilates and the fact that, according to
Dr Hawkins, salycilates are present in all eucalypts constitute positive, direct evidence in support of the conclusion that the tree is the cause. Nor has
Dr Hawkins failed to consider alternative possibilities. It is clear from
Dr Hawkins’s evidence that she has considered all the relevant alternatives to the tree, including grass, weed and tree pollens, dust mites and mould.

114.The respondent has asked why if Mrs. Krnc is allergic to the tree at 1 Penrhyn Street, she has not shown symptoms before now, especially when she lived next door, given that there is a large gum tree in the backyard, there are several Eucalyptus blakelyi and other gum trees on the adjoining vacant land and there are gum trees all over the neighbourhood. But it is the fact that she has not previously shown such symptoms in the past that has led Dr Hawkins to rule out other gum trees as the cause. The respondent’s argument might have more force if it was being argued that Mrs. Krnc’s condition is being caused by eucalyptus pollen. But this is unlikely to be the case given that the flare up in Mrs. Krnc’s allergic condition occurred before the time of the year when gum trees are flowering and pollen is being released. The evidence from Dr Hawkins suggests that there are factors or circumstances specific to 1 Penrhyn Street that are the cause of Mrs. Krnc’s condition. They appear to include the presence of a wide range of debris from the tree containing salycilates and the close proximity of the tree to the main entry and exit point for the house.

115.The respondent has sought to attach significance to the fact that Dr Hawkins was not aware of the trees and plants at 3 Penrhyn Street or in the backyard of
1 Penrhyn Street. The tribunal does not, however, see this as fatal to Dr Hawkin’s conclusion. Her diagnosis did take into account the possibility that other gum trees and grasses and weeds might be the cause and she ruled it out. Nor when cross examined on this point did she resile from her considered opinion that the tree is the cause.

116.The tribunal has concluded therefore that on the balance of probabilities the tree is the cause of Mrs. Krnc’s allergic condition.

117.The respondent accepts that, for the purpose of this criterion, Dr Hawkins’s evidence constitutes support by certification from a relevant medical specialist. The respondent also accepts that, if the tree is held to be that cause, there are no reasonable risk remedial treatments or risk mitigation measures available to the applicant.

Conclusion

118.The tribunal finds that criterion (f) is met.

Overall conclusion

119.The tribunal has found that one of the criteria for approval to damage a regulated tree has been met, and therefore it is appropriate to approve the application to remove the tree.

………………………………..

Mr J. Ashe

Senior Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      AT 11/66

APPLICANT:                Mary-Anne Krnc
RESPONDENT:            Conservator of Flora and Fauna

COUNSEL APPEARING:       APPLICANT:          Mr Tebbey

RESPONDENT:      Ms P. Mathie

SOLICITORS:  APPLICANT:          Snedden Hall & Gallop

RESPONDENT:  ACT Government Solicitor

OTHER:  APPLICANT:          

RESPONDENT:      

TRIBUNAL MEMBER/S:        Mr J. Ashe, Senior Member

DATE/S OF HEARING:          7 & 8 December 2011 PLACE: CANBERRA

DATE/S OF DECISION:          27 January 2012         PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )        CASE NOTE ( )        UNREPORTED DECISION ( )

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