Le v Conservator of Flora & Fauna (Administrative Review)
[2022] ACAT 18
•3 March 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
LE v CONSERVATOR OF FLORA & FAUNA (Administrative Review) [2022] ACAT 18
AT 69/2021
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 trees represent an unacceptable risk to public or private safety – whether tree causing or threatening to cause significant risk to a substantial building, structure or service – whether all other reasonable remedial or mitigation measures are determined to be ineffective – where trees concern residential land – where property is adjacent to public land within a asset protection zone for the purpose of bushfire risk management – interface between residential land and adjacent reserve land – where compliance with ACT bushfire management scheme determinative of whether risk is unacceptable – expert evidence – approval criteria not satisfied on the evidence – reviewable decision confirmed
Legislation cited: ACT Civil and Administrative Tribunal Act2008 ss 26, 69
TreeProtectionAct2005 ss 8, 10, 15, 21 22, 24, 25, 106, 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
Maatouk v Conservator of Flora and Fauna [2015] ACAT 10
List of
Texts/Papers cited: ACT Strategic Bushfire Management Plan 2019-2024
ACT Bushfire Management Standards 2014
Tribunal:Senior Member A Davey
Date of Orders: 3 March 2022
Date of Reasons for Decision: 3 March 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 69/2021
BETWEEN:
VIET LE
Applicant
AND:
CONSERVATOR OF FLORA & FAUNA
Respondent
TRIBUNAL:Senior Member A Davey
DATE:3 March 2022
ORDER
The Tribunal orders that:
The decision of the respondent to refuse permission for removal of the trees 1, 2, 3 and 5 is confirmed.
………………………………..
Senior Member A Davey
REASONS FOR DECISION
This is an application pursuant to section 107 of the TreeProtectionAct2005 (the Act). Mr Viet Le (the applicant), has sought review of a decision[1] made by the Conservator of Flora & Fauna (the respondent or the Conservator) refusing to approve removal of four trees on Block 13 Section 121 Nicholls ACT (the property).
[1] Made pursuant to the Tree Protection Act 2005 section 25
On 28 March 2021, the applicant lodged an application to undertake a tree damaging activity (the tree damaging application) with the Conservator under section 22 of the Act.[2] The tree damaging application sought the felling/removal of eight eucalyptus trees on the property (trees 1-8).
[2] Exhibit R1 (T documents), pages 18-25
The Conservator may give approval to damage a regulated tree if at least one of the criteria listed in the Tree Protection (Approval Criteria) Determination 2006 (No 2)[3] schedule 1, section 1 (the approval criteria) is satisfied, and all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective to address the issue.
[3] TreeProtectionAct2005, Disallowable Instrument DI2006—60
On 30 March 2021, an officer of the Conservator attended the property and assessed the eight trees. The officer completed a tree assessment report and a fire risk analysis form for each tree.[4]
[4] T-documents pages 26-59
On 28 April 2021, a delegate of the Conservator made a decision on the tree damaging application (the first decision)[5] under section 25 of the Act:
(a)to grant approval for felling/removal of trees 7 and 8, on the basis that these trees were shown to be causing or threatening to cause substantial damage to a substantial building, structure or service, satisfying criterion 1(1)(c) of the approval criteria;
(b)to not grant approval for felling/removal of trees 1, 2, 3, 4 or 5, on the basis the delegate was not satisfied any of the approval criteria were met; and
(c)that tree 6 was not a regulated tree for the purposes of the Act, and felling/removal of that tree did not require approval from the Conservator.
[5] T-documents pages 60-69
A notice of decision was sent to the applicant.[6]
[6] T-documents pages 64-69
On 13 May 2021, the applicant lodged an application with the Conservator for reconsideration of the first decision, under section 106 of the Act.[7] The applicant requested approval for the felling/removal of trees 1, 2, 3, 4 and 5.
[7] T-documents pages 72-74
In accordance with section 107 of the Act, the Tree Advisory Panel (the panel) was asked for advice on the application for reconsideration.
On 7 June 2021, the applicant sent to an officer of the Conservator a tree report, dated 16 May 2021, completed by Mr Steve Thomas of BMS Forestry (the BMS assessment)[8], together with an asset protection zone (APZ) assessment dated 1 June 2021 undertaken by Mr Matthew Jones of Bushfire Protection Planning & Assessment Services Pty Ltd (BPPASS) (the bushfire assessment).[9]
[8] T-documents (exhibit R1) pages 77-81, but because at the hearing the author was not being called as a witness, these pages of the T-documents were not admitted into evidence
[9] T-documents pages 82-91
On 7 June 2021, a member of the panel (Ms Christine Rampling) conducted a site visit and prepared a tree advisory panel report (TAP report) in relation to trees 1-3,[10] tree 4,[11] and tree 5.[12] Each TAP report included a completed risk assessment and fire risk analysis form.
[10] T-documents pages 161-177
[11] T-documents pages 178-192
[12] T-documents pages 192-207
On 28 June 2021, the panel endorsed the TAP report for:
(a)trees 1-3 which found that these did not satisfy any of the approval criteria;
(b)tree 4 which found the tree satisfied criterion 1(1)(g) of the approval criteria in that the tree was part of a close planting of trees and removal would allow other trees to develop.
On 28 June 2021, the panel, after considering Ms Rampling’s recommendation regarding tree 5, which was based on a finding that criterion 1(1)(g)[13] was met, concluded that there was not sufficient evidence that tree 5 satisfied any of the approval criteria and decided against that recommendation.[14]
[13] 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.
[14] T-documents page 196
On 8 July 2021, the Conservator made a decision (the reviewable decision) under subsection 107(3)(b) of the Act to confirm the first decision with respect to trees 1-3, and tree 5, and to vary the decision with respect to tree 4 to approve felling/removal of tree 4.[15]
[15] T-documents pages 217-222
On 6 August 2021, the Conservator provided a statement of reasons for the reviewable decision.[16]
[16]T-documents pages 239-248
On 3 August 2021, the applicant applied to the tribunal for review of the reviewable decision.[17]
Applicable legislation
[17] T-documents pages 239-248
Section 8 of the Act defines a protected tree to include a ‘regulated tree’. Section 10(1) includes the threshold criteria for a regulated tree as a living tree that:
(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 two or more trunks and the total circumference of all the trunks, 1m above natural ground level, is 1.5m or more; or
(d)has a canopy 12m or more wide.
Section 15 of the Act renders it an offence to damage a protected tree without first obtaining approval from the Conservator.
Section 21 provides that the Minister may determine approval criteria to be applied by the Conservator in considering an application to damage a regulated tree.
In making a decision on an application, the Conservator must have regard under section 25(3) to:
(a)the approval criteria;
(b)the advice (if any) of the advisory panel;
(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 107B of the Act further provides for review of a decision by the Conservator by the tribunal following reconsideration of a decision originally made under section 25.
The approval criteria made under section 21 of the Act,[18] in schedule 1, section 1, sets out the criteria to be applied in determining whether to give approval for damage to a regulated tree. The Conservator of Flora and Fauna 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.
[18] TreeProtectionAct2005, Tree Protection (Approval Criteria) Determination 2006 (No 2), (Disallowable Instrument DI2006—60), in schedule 1, section 1
Section 69 of the ACT Civil and Administrative Tribunal Act2008 (the ACAT Act) provides that in reviewing administrative decisions the tribunal “stands in the shoes” of the original decision maker. That is to say, the tribunal exercises the same powers and discretion as those available to the original decision maker and its determination is taken to be the decision of the original decision maker.
Section 26 of the ACAT Act provides that in considering each case the tribunal may inform itself in any way it considers appropriate in the circumstances.
The application
The applicant contends in relation to trees 1-3 and tree 5 that the correct and preferable decision is for the Tribunal to set aside the respondent’s decision and find that the approval criteria for removing these disputed trees are met, in that the trees (in the applicant’s view) represent an unacceptable risk to public and/or private safety under criterion 1(1)(b);[19] and all other remedial treatments and risk mitigation measures have been determined to be ineffective.[20]
[19] Relating to schedule 1, paragraph 1(1)(b) in the approval criteria, in this case with respect to bushfire risk.
[20] Addressing the final clause in schedule 1, paragraph 1(1), of the approval criteria, which must be met in all cases.
The applicant had relied on criterion 1(1)(c)[21] in seeking and successfully obtaining approval for removal of trees 7 and 8.[22] He also raised criterion 1(1)(c) in final and closing submissions relating to the appeal, but did not specifically address that criterion in evidence. The Tribunal accepts that criterion 1(1)(c) could apply as a consequence of the unacceptable risks he was seeking to establish as present, but notes that establishing that criterion 1(1)(b) applies would be sufficient. The applicant did not seek to argue that any of the other approval criteria[23] were applicable to the trees under review by the Tribunal.
The hearing
[21] Relating to causing or threatening to cause substantial damage to a substantial building, structure or service.
[22] Trees 7 & 8 were included in the original tree damaging application and were approved for removal in the first decision, so were not under consideration in this appeal.
[23] TreeProtectionAct2005, approval criteria, schedule 1, paragraph 1(1)
The applicant represented himself. He called Mr Matthew Jones as a witness. Ms Anca Costin, of counsel, represented the respondent, and called as witnesses Mr Guy Cassis and Ms Christine Rampling.
On the morning of the hearing on 24 November 2021, the Tribunal conducted an onsite inspection of the property, and the asset protection zone on adjacent public land, in the presence of the applicant, the witness for the applicant, the respondent’s legal representatives, officers of the respondent, and the respondent’s witnesses.
After conclusion of the site inspection, the hearing adjourned and resumed later that morning by video link. When all evidence had been heard, it was agreed among the parties that they would make their final submissions in writing, on a timetable that would commence after distribution of the transcript of the hearing. The applicant was to be given an opportunity to make final submissions in reply to the closing submissions of the respondent, and did so. The decision was reserved until after all submissions were filed.
Issues to be determined
The issues for determination are:
(a)whether any of the approval criteria are satisfied, in this case relating to approval criterion 1(1)(b), as to whether any one or more of the trees 1, 2, 3 or 5 present an unacceptable risk (from their position, or their spatial arrangement, or from the fuels they may provide, or from the fire behaviour they may promote, or in other ways, in the event of a bushfire); and
(b)if this criterion is satisfied, whether it is also demonstrated that all other reasonable remedial and mitigation measures have been determined to be ineffective.
Consideration of issues
It was not disputed by either party that all trees pose some level of risk. The issue to be decided — as set out in the approval criteria — is whether these particular trees pose an unacceptable degree of risk.
The Tribunal accepts that the applicant has an apprehension that the trees present on his property represent an unacceptable bushfire risk. In his submissions prior to the hearing,[24] in his answers to questions, and in his closing submissions,[25] he outlined his concern as being based on his property being within an identified bushfire-prone area, and that some other jurisdictions (e.g. NSW & Victoria) had regimes which permit removal of vegetation within 10m of assets under certain circumstances without necessarily requiring approval.
[24] Applicant’s submissions dated 25 October 2021, admitted into evidence as exhibit A1, and submissions in reply dated 15 November 2021, exhibit A2
[25] Applicant’s final submissions dated 15 December 2021, and final submissions in reply dated 14 January 2022
The applicant recognised that at landscape scale the operative ACT bushfire management instruments were the ACT Strategic Bushfire Management Plan 2019-2024[26] and the ACT Bushfire Management Standards 2014,[27] but noted that these mainly applied to areas managed by ACT Government agencies and that there were no specific standards applying to leased urban land. He argued that in the absence of specific ACT standards for leased land, the relevant NSW and Victorian ones could be adopted, particularly where these do not contradict ACT bushfire management practice.[28]
[26] TreeProtectionAct2005, Disallowable Instrument DI2019—2006
[27] Made under the ACT Strategic Bushfire Management Plan, Version 3, 2014
[28] Applicant’s final submissions dated 16 December 2021 at [4]
The applicant called Mr Matthew Jones as a witness on bushfire risk. Mr Jones provided a witness statement dated 12 November 2021.[29] Mr Jones is the Director and Senior Consultant of Bushfire Protection Planning & Assessment Services Pty Ltd, based in Queanbeyan NSW. As well as relevant qualifications, Mr Jones has been practising as an accredited bushfire risk planner and assessor for many years. He also has significant experience as a firefighter.
[29] Exhibit A3, witness statement of Mr Matthew Jones, dated 15 November 2021
The witness statement tendered by Mr Jones included the bushfire assessment report dated 1 June 2021,[30] in which he had applied both the ACT Bushfire Management Standards, and the NSW Planning for Bush Fire Protection Guidelines 2019, to the property. His witness statement also included what he described as a more detailed spatial analysis of the potential forest hazard and contiguous canopy extent within the Percival Hill Reserve in relation to the property.[31] This had not been included in the original report of 1 June 2021.
[30] Included as attachment 1 to exhibit A3; the same bushfire assessment report as referred to in [9].
[31] Exhibit A3, annexure C
Mr Jones claimed that the level of connection between the trees under consideration and the adjacent reserve to the south-east of the property constituted a risk. He conceded there might be different opinions about the level of that risk, but did not elaborate on how he would determine its acceptability or unacceptability.
Mr Jones argued that during an extreme or greater (catastrophic) bushfire event, there was a potential and contiguous run of fuel from the reserve towards the property.[32] He did not address the likely probability of such events.
[32] Exhibit A3 at [5] & annexure C
In his original report, Mr Jones had identified trees 1-8 as a bushfire hazard, and recommended that the canopy separation standard of 3-5m in the ACT Fuel management standards[33] for asset protection zones should apply. He also used the NSW standards to suggest that canopy cover within the property should be reduced to 15% of the total area. He recommended that 75% of the current canopy cover should be removed, and that this be done by eliminating all trees and retaining only occasional taller shrubs.[34]
[33] ACT Bushfire Management Standards 2014, Table 4, Fuel management standards
[34] Exhibit A3, attachment 1, page 4 (of 10), recommendations 1-3
In his answers to questions Mr Jones was reluctant to engage in discussion about relative risk and consequence, and the need to demonstrate in this case that the nature and level of risk was unacceptable. His view appeared to be that because the property was in an identified bushfire-prone area, such status virtually determined the outcome with respect to an application of this kind. The report attached to his witness statement did not address the issue of acceptable or unacceptable risk, but used the words “...a reasonably significant risk...”.[35] In response to questioning, he said he would now use the word “unacceptable”. But in doing so he did not offer the Tribunal any explanation as to how he might distinguish between an acceptable and an unacceptable one.
[35] Exhibit A3, attachment 1, page 2 (of 10), 6th dot point
Mr Jones appeared to be more comfortable applying the NSW standards than the relevant ACT standards. For example, he generally preferred reduced canopy cover (<15%)[36] together with increased canopy separation (2-5m) as the main risk mitigation measure, but under questioning he conceded that increasing fuel gap to crown (>3m)[37] was an alternative under the ACT standards.[38] It appeared that his recommendation that all of the trees should be removed was based on his application of the NSW standard only, and he had not applied the ACT standards with respect to gap to crown. He conceded that if the gap to crown was maintained at >3m, the property would comply with the ACT Standards.[39] He also accepted that the NSW Standards had no legal force in the ACT, even if they were referred to for guidance in some situations.[40] Mr Jones did not adequately explain why he had not applied the fuel gap to crown in the ACT standards.
[36] In the NSW Planning for Bushfire Protection Guidelines 2019, section A4, 1.1 for Inner Protection Areas
[37] Whereas the NSW Guidelines only require >2m
[38] ACT Bushfire Management Standards 2014, Table 4, Fuel management standards: Asset protection zones ... 3-5m canopy separation or fuel gap to crown >3m ...
[39] Transcript of proceedings 24 November 2021, page 37, lines 23-29
[40] Transcript of proceedings 24 November 2021, page 36, lines 27-33T
The respondent called Mr Guy Cassis as a witness on bushfire risk. Mr Cassis provided a witness statement dated 5 November 2021.[41] Mr Cassis is Commander Risk & Planning with ACT Fire & Rescue, Emergency Service Agency. As well as relevant qualifications, he has significant experience as a firefighter.
[41] Exhibit R2, witness statement of Mr Guy Cassis, dated 5 November 2021
Mr Cassis explained that the measures in place to protect the ACT in the event of bushfires were a suite of planning and management measures, including in this case management of an asset protection zone in the reserve adjacent to the property. While the property was within the area defined as a bushfire prone area, its interface with the adjacent public land (to the south-east of the property) was considered to be a lee asset interface classification[42]. Mr Cassis said in relation to bush fire risk the lee situation is assessed as lower risk than a primary interface classification, taking into account historical fire weather and fire behaviour patterns.[43] In this case, the property was also down slope of the public land, which also contributed to a lower fire risk.
[42] i.e. an asset boundary which faces potential bushfires in a lee direction — see the ACT Bushfire Management Standards 2014, Table 1 and accompanying text (Annexure C in Exhibit R2)
[43] Transcript of proceedings 24 November 2021, page 55, lines 8-16
Mr Cassis said the nature of the property’s interface, when assessed under the Bushfire Management Standards, indicated that an inner asset protection zone of 10m was sufficient to mitigate bush fire risk, maintained at low fuel loading with canopy separation of 3-5m or fuel gap to crown >3m, and grass kept at <200mm when at 70% cure. This was in place, and the reserve managers were implementing the relevant fuel management standard. In his view management of the inner asset protection zone adjacent to the property was currently compliant with the low fuel loading.[44]
[44] Transcript of proceedings 24 November 2021, page 52, lines 15-20
Mr Cassis confirmed that canopy separation of 3-5m is not the only means of assessing compliance with the ACT standards, and that maintaining a fuel gap to crown of >3m, on its own, would demonstrate compliance with the standards.[45]
[45] Transcript of proceedings 24 November 2021, page 56, lines 22-24
Mr Cassis disputed the opinion of Mr Jones that there was a potential run of fuel adjacent to the property of 150m, in that there is a gap between the canopy of the trees on the property and that on the inner asset protection zone, and there are also gaps between the canopies on the wider asset protection zone.[46]
[46] Transcript of proceedings 24 November 2021, page 61 lines 3-15
Mr Cassis acknowledged that there was a risk from the trees on the property, but he was of the opinion that the risk in this case was not unacceptable.[47] Removal of the trees is not necessarily the only means by which risk of propagating a bushfire attack on the property could be reduced, and of the various measures it is the more radical.[48]
[47] Transcript of proceedings 24 November 2021, page 62 lines, 40-45
[48]Exhibit R2, paragraph 29
Mr Cassis did not support the recommendation to remove the trees on the property, and outlined a range of alternative measures that he considered would reduce the risk of bushfire attack spreading to an existing structure.[49]
[49] Exhibit R2, paragraph 39
The respondent also called Ms Christine Rampling as a witness. She provided a witness statement dated 4 November 2021.[50] Ms Rampling has relevant technical qualifications in arboriculture and horticulture. She is a consulting arborist of significant experience, and an accredited user of one of the industry-standard risk assessment methods, the Quantified Tree Risk Assessment (QTRA) tool. She is a member of the Tree Advisory Panel.
[50] Exhibit R3, including her arboricultural report as attachment 1
In evidence, Ms Rampling explained that she assessed all the trees subject to the review as healthy and of sound structure, and that in applying the QTRA tool she had assessed the bushfire risk from these trees, both individually and in aggregate, as low.
Ms Rampling outlined a range of mitigation measures, including continued arboricultural maintenance and review of the trees, that would be effective in meeting the ACT Bushfire Management Standards, but which would not require any of the subject trees to be removed.
Conclusions
Under the Act, for removal of a protected tree to be approved, it is incumbent on the applicant to demonstrate that at least one of the approval criteria has been met, and if so also to demonstrate (with evidence) that all other reasonable remedial and mitigation measures have been determined to be ineffective.[51]
[51] Bozin v Conservator of Flora and Fauna [2010] ACAT 91; Maatouk v Conservator of Flora and Fauna [2015] ACAT 10
The Tribunal does not accept that the legislative regimes of other jurisdictions should be given weight in considering the requirements for leased properties in the ACT. As pointed out by Mr Cassis, there is a different suite of mechanisms applied in the ACT than other jurisdictions, and the delineation of bushfire-prone areas is one of many inter-related planning and management mechanisms which need to be considered and applied together. In any case, there is still an obligation in the ACT under the Tree Protection Act to provide persuasive evidence to establish first, that a proposed tree removal meets the approval criteria, second, to demonstrate how in relation to the particular circumstances the risk is unacceptable, and third, that the applicant has demonstrated that all other reasonable remedial and mitigation measures have been determined to be ineffective.
While there is always a level of risk associated with the presence of flammable material such as trees in the Australian environment, this particular case requires persuasive evidence and argument that these trees in this position in the landscape pose an unacceptable risk to private or public safety. The applicant needs to provide evidence about the probability and scale of hazards and their consequences, and evidence to demonstrate that the risk arising from such hazards is unacceptable. Discussion of chance and plausibility may be relevant and necessary, but is not sufficient.
The applicant’s reference to the legislation of other jurisdictions appeared to reflect a view on his part that the mere existence of such regimes elsewhere demonstrated that since his property was in a defined bushfire-prone area this alone confirmed there was significant and unacceptable risk from bushfire at his property. The Tribunal does not accept this as evidence of the significance or unacceptability of risk. The ACT Strategic Bushfire Management Plan 2019-2024[52] acknowledges there is always some risk. The task here is to provide evidence about its level and unacceptability.
[52] TreeProtectionAct2005, Disallowable Instrument DI2019—206
There was dispute between the expert evidence relating to fire risk provided by Mr Jones as witness for the applicant, and that provided by Mr Cassis for the respondent. Mr Cassis was much more persuasive in explaining and justifying his reasoning, and in linking the many elements of ACT planning and management together, than Mr Jones. Mr Jones had also inexplicably not fully applied the ACT standards to the subject property in reaching his conclusions.
In its assessment of the evidence relating to the approval criterion 1(1)(b)[53] on which the applicant sought to establish that the trees should be approved for removal, the Tribunal concludes that it cannot be satisfied the criterion has been met. The same applies for criterion 1(1)(c).[54]
[53] That the tree represents an unacceptable risk to public or private safety.
[54] Causing or threatening to cause substantial damage to a substantial building, structure or service.
The second part of the test under the approval criteria requires persuasive evidence to establish the ineffectiveness or unreasonableness of remedial measures other than removal. Because the first part of the test in the approval criteria has not been met, the second part of the test under the approval criteria does not arise. However, the Tribunal notes for completeness that it was not satisfied that alternative treatments have been demonstrated to be ineffective or unreasonable. While it is understandable that the applicant might not have commenced available treatments until they knew the outcome of the appeal, this does not remove the obligation during the appeal to address the likely effects on risk and consequences of relevant mitigating measures other than removal, and their reasonableness. The applicant made clear that some other measures were planned, but did not provide persuasive evidence that if undertaken they would be ineffective or unreasonable.
The Tribunal therefore confirms the decision of the respondent to refuse permission for removal of the trees 1, 2, 3 and 5.
In submissions in reply dated 15 November 2021, the applicant sought orders including that costs of this appeal should be borne by the respondent.[55] Under the ACAT Act, the default position is that parties to proceedings bear their own costs. The ACAT Act defines limited circumstances under which an order may be made for an applicant to recover certain costs, but these only apply where the applicant is successful or where the other party has caused unreasonable delay. None of the conditions are met, so no such order can be made.
[55] Submissions in reply dated 15 November 2021, exhibit A2, page 13, orders, [2]
………………………………..
Senior Member A Davey
| Date of hearing: | 24 November 2021 |
| Applicant: | In person |
| Counsel for Respondent: | Ms A Costin |
| Solicitors for the Respondent: | Ms G Junakovic, ACT Government Solicitor |
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