Liangis Investments Pty Ltd v Conservator of Flora and Fauna (Administrative Review)
[2017] ACAT 13
•30 January 2017
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
LIANGIS INVESTMENTS PTY LTD v CONSERVATOR OF FLORA AND FAUNA (Administrative Review) [2017] ACAT 13
AT 61/2016
Catchwords: ADMINISTRATIVE REVIEW – decision not to approve removal of a registered tree – approval may not be given before cancellation of registration
Legislation cited: Tree Protection Act 2005 ss 3, 8, 9, 10, 11, 19, 21, 22, 25, 56, 57, 58
Planning and Development Act 2007 s 120
Subordinate
Legislation: Determination of Criteria for Approval to Undertake a Tree Damaging Activity, 2 April 2001, Instrument 60 of 2001
Tree Protection (Approval Criteria) Determination 2006 (No 2)
Tree Protection (Criteria for Registration and Cancellation of Registration) Determination 2006Cases cited: Anderson v Wilson [2000] FCA 394
Baptist Community Services v ACTPLA and Ors [2015] ACTCA 3
Brayson Motors Pty Ltd (in liq) v FCT (1985) 156 CLR 651
Commissioner for ACT Revenue v Dataflex Pty Ltd and ACT Civil Administrative Tribunal [2011] ACTCA 14
Deputy Federal Commissioner of Taxation (SA) v Ellis & Clark Ltd [1934] HCA 54; (1934) 52 CLR 85
Elazac Pty Ltd v Commissioner of Patents & Anor [1994] FCA 1315; (1994) 53 FCR 86
Empire Waste Pty Ltd v District Court of New South Wales [2013] NSWCA 394
Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101
Mine Subsidence Board v Wambo Coal Pty Ltd (2007) 154 LGERA 60
Minister for Aboriginal Affairs and Anor v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248
PIPE Networks Pty Ltd v Commonwealth Superannuation Corporation [2013] FCA 444
R v Andrews; Ex parte Diprose (1937) 58 CLR 299
Re Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322
Trajkovski v Department of Transport and Regional Transport [2000] AATA 1073
List of
Texts/Papers cited Pearce and Geddes, Statutory Interpretation in Australia
(7th edition)
Tribunal: Presidential Member G McCarthy
Senior Member A DaveyDate of Orders: 30 January 2017
Date of Reasons for Decision: 22 February 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 61/2016
BETWEEN:
LIANGIS INVESTMENTS PTY LTD
Applicant
AND:
CONSERVATOR OF FLORA AND FAUNA
Respondent
TRIBUNAL: Presidential Member G McCarthy
Senior Member A Davey
DATE:30 January 2017
ORDER
The Tribunal orders that:
1.The application for review dated 4 October 2016 is adjourned to 24 February 2017 at 9:30am.
…………Signed…………..
Presidential Member G McCarthy
REASONS FOR DECISION
1.Liangis Investments Pty Ltd (the applicant) is the Crown lessee of Block 3 Section 96 Griffith (the subject block).
2.On 16 June 2016, the applicant applied to the Conservator of Flora and Fauna (the Conservator) for approval to remove a tree growing on the subject block. The tree is entered on the Register of Significant Trees, maintained under the Tree Protection Act 2005 (the Act), as tree PTR093. It is, for that reason, a ‘registered tree’ under section 9 of the Act.
3.On 5 August 2016, the Conservator refused the application.
4.On 22 August 2016, the applicant applied to the Conservator for reconsideration of the Conservator’s decision.
5.On 13 September 2016, a delegate of the Conservator confirmed the Conservator’s refusal of the application.
6.On 6 October 2016, the applicant applied to the Tribunal for review of the Conservator’s reconsidered decision.
7.At the suggestion of the parties, the Tribunal considered as a preliminary question whether the Conservator (and now the Tribunal on review) has power to approve removal of a registered tree without (or prior to) cancellation of its registration. After hearing from the parties, the Tribunal found that the Conservator (and the Tribunal on review) does not have that power.
8.The Tribunal said it would publish reasons for its conclusion and, at the request of the parties, the matter was adjourned to 24 February 2017 at which time the Tribunal will hear from the parties as to appropriate orders to be made in light of the Tribunal’s reasons regarding lack of power. The Tribunal now provides those reasons.
The legislative scheme
9.Section 22 of the Act provides:
22 Application for approval of tree damaging etc activity
A person may apply, in writing, to the conservator for approval for an activity that would or may—
(a) damage a protected tree; or
(b) be prohibited groundwork in—
(i) the protection zone for a protected tree; or
(ii) a declared site.
10.A ‘protected tree’ is defined in section 8 of the Act as follows:
8 Protected trees
For this Act, each of the following is a protected tree:
(a) a registered tree;
(b) a regulated tree.
11.A ‘registered tree’ is defined under section 9 of the Act as follows:
9 Registered trees
A registered tree is a tree that is registered (or provisionally registered) under part 7 (Registration of trees).
12.A ‘regulated tree’ is defined under section 10 of the Act according to whether it has stated natural features concerning its height, trunk circumference or canopy and whether it is within the tree management precinct. It is not relevant for present purposes whether tree PTR093 is (also) a regulated tree or would be if its registration as a registered tree were cancelled. The applicant accepted that for the purpose of the present application the Tribunal does not have jurisdiction to cancel the tree’s registration.
13.Under sections 15 and 16 of the Act, a person commits an offence if the person does something that damages a protected tree in a manner described in those sections. There is no suggestion that the applicant has done anything to damage tree PTR093.
14.Section 19(1) of the Act provides for different circumstances in which sections 15 and 16 (among others) do not apply. Section 19(1)(a), (b), (d) and (e) are relevant for present purposes:
19 Exceptions—tree damaging and prohibited groundwork offences
(1) Sections 15 to 18 do not apply to—
(a) an activity approved under section 25 or section 29 that is done in accordance with the conditions (if any) of the approval (whether or not done by the person who applied for the approval); or
(b) the removal of a tree if the registration of the tree is cancelled under division 7.3 for safety reasons; or
(c)...; or
(d)anything done in relation to a regulated tree under—
(i)any of the following provisions of the Utilities Act 2000:
·section 105 (Installation of network facilities);
·section 106 (Maintenance of network facilities);
·section 231 (Installation of territory network facilities);
·section 232 (Maintenance of territory network facilities); or
(ii)a territory network protection notice given under that Act, section 249; or
(iii)a network protection notice given under the Utilities (Technical Regulation) Act 2014, section 32; or
(iv)a plant pruning direction under the Public Unleased Land Act 2013, section 31 (Direction to prune tree etc overhanging public unleased land); or
(v)a plant removal direction under the Public Unleased Land Act 2013, section 34 (Direction to remove tree etc endangering public on public unleased land); or
(e)anything done in relation to a registered tree under any of the following provisions of the Utilities Act 2000 for the purpose of protecting life or property if it is not practicable because of the urgency of the situation to obtain an approval under section 29:
(i)section 106 (Maintenance of network facilities); or
(ii)section 232 (Maintenance of territory network facilities); or
(f)...
15.In order to avail itself of the statutory protection under section 19(1)(a) from committing an offence under section 15 or 16, the applicant applied for approval under section 25 of the Act to remove tree PTR093. Section 25 provides:
25 Decision on approval application
(1) Within 30 days after the day the conservator receives the application, the conservator must decide whether to approve the activity to which it relates.
(2) In working out the 30-day period, any period when a requirement under section 23 (1) was not complied with is disregarded.
(3) In making a decision on the application, the conservator must have regard to—
(a) the approval criteria; and
(b) the advice (if any) of the advisory panel; and
(c) the advice (if any) of an entity to which the application was referred under section 24A; and
(d) anything else the conservator considers relevant.
(4) An approval may be given subject to conditions stated in the approval.
16.The approval criteria referred to in section 25(3)(a) are the criteria issued under section 21 of the Act, which provides:
21 Criteria for approval
(1) The Minister may determine criteria (the approval criteria) for approving an activity that would or may—
(a) damage a protected tree; or
(b) be prohibited groundwork in—
(i) the protection zone for a protected tree; or
(ii) a declared site.
(2) A determination is a disallowable instrument.
17.The Minister for the Environment has determined criteria for the purposes of section 21 as set out in Schedule 1 to the Tree Protection (Approval Criteria) Determination (No 2) (the Approval Determination),[1] a copy of which is at Annexure “A” to these reasons.
[1] Disallowable Instrument DI 2006-60 dated 4 April 2006
18.Schedule 1 is divided into four sections entitled Regulated Trees (comprised of criteria 1 and 2), Registered Trees (comprised of criteria 3 and 4), Declared Sites (comprised of criterion 5) and Examples (comprised of criteria 6, 7 and 8).
19.Criterion 1(1) sets out the circumstances in which the Conservator may give an approval under section 25 of the Act “to damage a regulated tree”. They include the declining health of the tree; its risk to public or private safety; it causing or threatening to cause substantial damage to a building, structure or service; its inappropriate location; its denial of solar access to lessees; it causing allergic reactions to lessees; and where its removal will allow other trees to develop. Criterion 1(1) states that the Conservator:
may give an approval to damage a regulated tree under section 25 when [one of the circumstances exist] and all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective. (emphasis added)
20.Criterion 1(5) sets out separate circumstances in which the Conservator may give an approval under section 25 of the Act “to undertake major pruning on a regulated tree”. When criteria 1(1) and 1(5) are read together, it is clear that criterion 1(1) contemplates circumstances in which approval may be given for removal of a regulated tree, and less stringent circumstances for approval of major pruning but not removal of a regulated tree.
21.Section 2 of the Approval Determination sets out the circumstances in which approval may be given under section 25 “to undertake prohibited groundwork within the tree protection zone of a regulated tree ... where the ground work will have minimal impact on the tree if the activity complies with the conditions stated in the approval.”
22.Section 3 sets out the circumstances in which approval may be given for “major pruning of a registered tree”. Criterion 3(1) provides three circumstances in which pruning may be approved: to maintain the health and safety of the tree, to maintain clearance from services or as a remedial treatment. Criterion 3(2) states that the Conservator:
may only give an approval for major pruning of a Registered Tree under criterion 3(1) if the work is considered necessary and will not:
(a) substantially alter the tree’s shape and form; or
(b) cause the tree to become unsafe; or
(c) result in the decline and death or necessitate the removal or destruction of the tree. (emphasis added)
23.Section 4 sets out the circumstances in which approval may be given “to undertake prohibited groundwork within the tree protection zone of a registered tree”.
24.Section 5 sets out the circumstances in which approval may be given “to undertake prohibited groundwork within a declared site”.
25.Section 6 gives “examples of reasonable remedial treatments or measures for a regulated tree”. Section 7 gives examples of reasonable risk mitigation measures”. Section 8 gives “examples of damaging activities that may be approved for a regulated tree.”
The applicant’s contentions
26.The applicant contends that there is nothing in section 25 or anywhere else in the Act which prohibits the Conservator (and in turn the Tribunal on review) from granting approval under section 25 to remove a registered tree or, to put it another way, requires the registration of a registered tree to be cancelled before removal of the tree can be approved.
27.The applicant commences by referring to section 22(a) of the Act, which enables the applicant to apply for approval (under section 25) of an activity that would “damage a protected tree”. The applicant then refers to section 12 of the Act, which defines ‘damage’ as follows:
12 Meaning of damage
In this Act:
damage a protected tree includes the following:
(a) kill or destroy the tree;
(b) poison the tree;
(c) ringbark the tree (whether partially or completely);
(d) fell or remove the tree;
(e) cut branches or stems of the tree between branch unions (lopping);
(f) remove branches of the tree to a previously pruned or lopped point (pollarding);
(g) major pruning of the tree;
(h) anything else done to or in relation to the tree that—
(i) causes it to die; or
(ii) significantly reduces its expected life; or
(iii) significantly and adversely affects its health, stability or general appearance.
28.The applicant contends that where section 22 facilitates an application to damage a protected tree, which includes a registered tree, and where ‘damage’ includes fell or remove the tree, section 25 must be read in a manner that permits the grant of an application to fell or remove a registered tree.
29.The applicant acknowledged that when deciding an application made under section 22 of the Act the Conservator “must have regard to” the matters set out in section 25(3) of the Act, which includes the approval criteria made under section 21. The applicant also acknowledged that Schedule 1 to the Approval Determination sets out criteria for approving “damage to a regulated tree”, criteria for the “major pruning of a registered tree” and that there are no criteria for or relating to the removal of a registered tree.
30.The applicant contended, however, that being satisfied of any of the matters in section 25(3) is not mandatory. They are merely matters to which the Conservator “must have regard”. In particular, the Conservator must have regard to the approval criteria, in the sense of consider them, but was not required to treat them as fundamental elements in the decision-making process. The applicant contended section 25(3) is directory, but not restrictive, and that the Conservator may consider other issues.[2]
[2] R v Andrews; Ex parte Diprose (1937) 58 CLR 299 at 306 and 308
31.The applicant relied on the decision of a Full Court of the Federal Court in Minister for Immigration and Citizenship v Khadgi[3] to contend that section 25(3) sets out matters which the Conservator “must have regard to” as matters for her to consider but not as fundamental elements in the decision-making process. The applicant relied on paragraphs 57-59 in Khadgi to submit that the Conservator must give genuine consideration to the factors in section 25(3) but may then dismiss them as having no application or significance in the circumstances of a particular case.
[3] Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (21010) 190 FCR 248
32.The applicant also relied on the ACT Court of Appeal’s decision in Baptist Community Services v ACTPLA[4] in which the Court found that where a section (in that case section 120 of the Planning and Development Act 2007) provides that a decision maker “must consider” items listed in the section (or by analogy “must have regard to” those items) the decision maker retains a discretion about the manner in which it considers them (or has regard to them) when making the decision. In particular, the decision maker can approve an application notwithstanding its inconsistency with items to be considered or to which regard must be given.
[4] Baptist Community Services v ACTPLA and Ors [2015] ACTCA 3 at [58], [59] and [62]
33.The applicant also contended that it would be contrary to settled rules of statutory interpretation to consider the approval criteria for the purpose of determining the ambit of the Conservator’s power under section 25(1). The applicant relied on the settled principle that courts and tribunals must give effect to the words used in legislation, and in this case section 25(1), and that extrinsic material cannot displace clear words in the enacted law.[5]
[5] Commissioner for ACT Revenue v Dataflex Pty Ltd and ACT Civil Administrative Tribunal [2011] ACTCA 14 at [31] – [34]
34.With reliance on these principles, the applicant contended that the absence of criteria for the removal of a registered tree cannot be relied on to construe section 25(1) as not permitting approval of the removal of a registered tree. All that can be concluded is that when having regard to the matters set out in section 25(3), section 25(3)(a) is not relevant because there are no approval criteria for the purpose of approving removal of a registered tree.
35.The applicant contended that the absence of any criteria regarding removal of a registered tree did not deprive registration of its purpose. The applicant referred to important protections given to registered trees that are not given to regulated trees. For example, the offence exemptions for work described in section 19(1)(d) in relation to a regulated tree are wider than those under section 19(1)(e) for a registered tree. The applicant contended:
The fact that registered trees are given greater protection does nothing to assist the construction of section 25. Rather, it is simply indicative of the greater protection provided to registered trees. That greater protection will continue while the tree remains registered.
36.The applicant noted by way of further example that when considering a development application that would affect protected trees, the ACT Planning Authority can choose not to follow the Conservator’s advice regarding a regulated tree but may not give planning approval which permits the removal of a registered tree.
37.The applicant referred also to the additional protections for registered trees under sections 61 and 87 of the Act.
The Conservator’s contentions
38.The Conservator contended that the absence of any criterion in the approval criteria for removal of a registered tree evidences that removal cannot be approved under section 25 of the Act. The Conservator referred to the explanatory statement to the Approval Determination, which stated:
The criteria are similar to the criteria in place under the Tree Protection (Interim Scheme) Act 2001. Some changes are required to reflect the more stringent protection afforded to registered trees and to improve to (sic) administration of assessing tree damaging activities for regulated trees.
39.The Conservator also referred to Schedule 1 to the Tree Protection (Criteria for Registration and Cancellation of Registration) Determination 2006 (the Registration and Cancellation Determination),[6] section 4 of which sets out the three criteria for cancellation of registration of a registered tree, namely that the tree does not meet any of the values for registration; the tree represents an unacceptable risk to public or private safety; or the tree is shown to be causing substantial damage to a substantial building, structure or service that will require ongoing and extensive remediation measures. A copy of the Registration and Cancellation Determination is at Annexure “B” to these reasons.
[6] Disallowable Instrument DI 2006-56 dated 27 March 2006
40.The Conservator contended that where Schedule 1 to the Registration and Cancellation Determination contains criteria for cancellation of registration, the second and third of which go directly to whether the tree should be removed, it becomes clear that cancellation of registration needs to occur prior to the Conservator approving removal of the tree.
41.The Conservator referred also to section 19(1)(b) of the Act, which permits removal of a registered tree in the limited circumstance where its registration has been cancelled for safety reasons. The Conservator contended by inference that a registered tree cannot otherwise be removed. The applicant, in reply, contended that no such inference should be drawn. Rather, section 19(1)(b) simply provides another pathway, in addition to an approval under section 25 per section 19(1)(a), for lawful removal of a registered tree.
Consideration
42.It is trite but important to observe that the main object of the Act as stated in section 3 is to protect actual living trees, so far as they are protected trees, by reference to the statutory scheme for doing so. The scheme entails not just the sections of the Act, but also the approval criteria made under section 21 of the Act and the registration and cancellation of registration criteria made under section 45 of the Act.
43.The applicant contended that the Tribunal cannot consider the approval criteria for the purpose of construing the ambit of section 25(1) of the Act, drawing on a principle of statutory interpretation that delegated legislation (or in this case subordinate determinations) made under an Act should not be taken into account for the purpose of interpreting the Act itself.[7]
[7] Mine Subsidence Board v Wambo Coal Pty Ltd (2007) 154 LGERA 60, 69-70, cited in Pearce and Geddes, Statutory Interpretation in Australia (seventh edition) at [3.41]
44.The Tribunal does not quarrel with the principle, but that is not the purpose of considering the approval criteria or the registration and cancellation of registration criteria.
45.In Brayson Motors Pty Ltd (in liq) v FCT[8] the High Court per Mason J (as he then was) observed in the course of hearing that in some cases:
One looks at regulations, not to construe an overall scheme or to throw light on ambiguity in a statutory provision, but to ascertain what the scheme is.
[8] (1985) 156 CLR 651, 652 cited in Pearce and Geddes Statutory Interpretation in Australia (seventh edition) at [3.41]
46.In Deputy Federal Commissioner of Taxation (SA) v Ellis & Clark Ltd[9] the High Court per Dixon J (as he then was) made a similar observation:
Moreover the legislation depends in a remarkable degree upon the regulations made under the power which it confers on the Executive. Without the regulations, not only is it unworkable, but the expression of legislative policy is so inadequate as almost to be unintelligible.
[9] [1934] HCA 54; (1934) 52 CLR 85, 89
47.These principles have been repeatedly recognised.[10]
[10] PIPE Networks Pty Ltd v Commonwealth Superannuation Corporation [2013] FCA 444 at [94]; Anderson v Wilson [2000] FCA 394 at [208]; Empire Waste Pty Ltd v District Court of New South Wales [2013] NSWCA 394 at [70]
48.In Master Education Services Pty Ltd v Ketchell[11] the High Court said:
In the absence of an express prohibition in the Act, any such prohibition against the making of an agreement, unless there has been compliance with an industry code, must be found by a process of implication, as Mason J observed in Yango Pastoral Company v First Chicago. The Court of Appeal relied upon the terms of cl 11(1) of the Code in concluding that entry into a contract was prohibited by the Act. It may be useful to read together regulations and the Act with which they were made, in order to identify the nature of a legislative scheme which they comprise.
[11] [2008] HCA 38; (2008) 236 CLR 101 at [19]
49.In PIPE Networks Pty Ltd v Commonwealth Superannuation Corporation, the Federal Court, per Tracey J, observed that it is also permissible to have regard to subordinate legislation to assist in properly construing any ambiguity in an Act when subordinate legislation has been promulgated at the same time as the Act and forms part of a statutory scheme.[12]
[12] PIPE Networks Pty Ltd v Commonwealth Superannuation Corporation [2013] FCA 444 at [93], citing Elazac Pty Ltd v Commissioner of Patents [1994] FCA 1315; (1994) 53 FCR 86,90
50.So it is in this case. Sections 21, 22, 25 and 55 - 58 of the Act establish the skeletal structure for applying for and approving damage of a protected tree, and for cancelling registration of a registered tree, but the structure is by itself “almost ... unintelligible”. The statutory scheme for determining such applications is set out in the approval criteria and the registration and cancellation of registration criteria.
51.The Act, save for sections 1 and 2, commenced on 29 March 2006. The Approval Determination dated 4 April 2006 was notified on 6 April and so commenced on 7 April 2006.[13] The Registration and Cancellation Determination dated 27 March 2006 was notified on 28 March 2006 and so commenced on 29 March 2006, [14] the same day as the Act.
[13] ACT Legislation Register
[14] ACT Legislation Register
52.The Tribunal concludes that the approval criteria and the registration and cancellation of registration criteria can and should be considered when determining the ambit of the Conservator’s power under section 25.
53.To accept the applicant’s contention to the contrary only displays the error. Assume, as the applicant contends, that the Conservator could approve removal of a registered tree under section 25 notwithstanding the absence of any criterion that addresses the question whether approval can or should be given: on what basis would the Conservator decide whether to approve (or not) removal of such a tree?
54.Section 25(3)(a) directs the Conservator to have regard to the approval criteria, but there is none. Section 25(3)(b) directs the Conservator to have regard to the advice (if any) of the advisory panel,[15] but the advisory panel does not have any frame of reference within which to advise whether a registered tree can or should be removed. Anyone asked by the applicant to give an opinion about whether the tree should be removed would face the same difficulty. It is illogical that the Conservator is expected to decide, or the panel asked to advise, upon whether to approve removal of a registered tree without any indicators as to whether a tree should be removed leaving it entirely to the subjective opinion of the Conservator and the advisory panel as constituted by its members from time to time. Such an approach would invariably lead to idiosyncratic and inconsistent decision-making.
[15] The Tree Advisory Panel is established under section 68 of the Act with a function, among others, to give any advice requested by the Conservator including advice on an application for approval of an activity under division 3.3 which includes section 25
55.The applicant contended that whether to approve removal of a registered tree does not need to be decided in a void, and that section 25(3)(d) of the Act requires the Conservator to have regard to “anything else” the Conservator considers relevant.[16] The applicant then “acknowledged” - or more accurately contended for - the rather startling proposition that the criteria made under Part 7, section 45, for the purpose of deciding whether registration of a registered tree should be cancelled under section 58 “would be relevant” for the purpose of deciding whether to approve removal of a registered tree under Part 3, section 25. The Tribunal rejects the submission.
[16] Re Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322, 329
56.The Tribunal considers the better view to be that the absence of any indicators as to whether or when the Conservator could approve removal of a registered tree under section 25 makes plain that such a power is not contemplated under the scheme. There are many indicators consistent with that conclusion.
57.First, the Conservator referred to the explanatory statement to the Approval Determination, which stated that changes were required to reflect the more stringent protection afforded to registered trees. The prior determination[17] set out the circumstances in which the Conservator could approve a tree damaging activity. That determination did not distinguish between registered trees and regulated trees. It is nonsensical that the subsequent Approved Determination, with changes “to reflect more stringent protection afforded to registered trees”, would provide circumstances “when” the Conservator may approve damage to a regulated tree and yet leave at large a power to approve removal of a registered tree.
[17] Determination of Criteria for Approval to Undertake a Tree Damaging Activity, Instrument 60 of 2001
58.Second, section 3 of the approval criteria states precise circumstances in which major pruning of a registered tree may be approved, one of which is that the pruning “will not” cause the tree to become unsafe or result in its decline or death or necessitate its removal or destruction. It is nonsensical that the Conservator can approve pruning only if it will not cause the demise of the tree and yet have an unconditional power to approve removal of the tree.
59.Third, Division 7.3 of the Act states many conditions to be met in order to cancel registration of a registered tree. The Conservator must give written notice of the proposed cancellation to several stated persons;[18] must give public notice of the proposed cancellation;[19] must ask the advisory panel, the Heritage Council (if relevant) and each representative Aboriginal organisation (if relevant) for advice about the proposed cancellation;[20] must have regard to any comments received in response to the notices and to any advice given;[21] and may cancel the registration “only if the Conservator considers the cancellation satisfies the cancellation criteria”.[22] Division 7.3 establishes a scheme to ensure that a registered tree’s registration cannot be cancelled without consultation and only in limited circumstances. The fundamental purpose of registration is to protect a registered tree from damage unless those conditions are met, save for major pruning that can be approved if the circumstances in section 4 of the approval criteria are met. All of these statutory protections would be defeated if the Conservator exercised an unconditional power under section 25 of the Act to approve removal of a registered tree.
[18] section 56(1)(a) – (d)
[19] section 56(4)
[20] section 57
[21] section 58
[22] section 58(3)
60.Fourth, the applicant contended that registration still has “important work to do” because it provides “greater protection” from tree-damaging activity and ground work for registered trees under section 19(1)(e) than is given to regulated trees under section 19(1)(d). That protection, with respect, would become illusory if the Conservator has an unfettered power to approve removal of registered trees altogether. Referring to the applicant’s submission at paragraph 35, little purpose would be served by the tree remaining registered if it no longer exists.
61.Even if section 25 were to be construed as permitting the Conservator to approve removal of a registered tree without first cancelling its registration, there is no proper basis for the Conservator to do so. Faced with an application to approve removal of a registered tree, and the absence of any criteria for deciding the application, the Conservator would be required to have regard to the “subject-matter, scope and purpose of the Act”.[23] That obligation would require the Conservator to consider Part 7 of the Act. Approval would defeat the entire statutory scheme under Division 7.3 for cancellation of registration. The Tribunal rejects the proposition that the Conservator’s (alleged) power under section 25 should be exercised where it would produce that result. Whether the Conservator may not or should not approve removal of a registered tree is a difference without a distinction: the reason for refusing such an application is the same. The Tribunal refers to and relies upon the High Court’s observations in Master Education Services quoted above.
[23] Minister for Aboriginal Affairs and Anor v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40
62.In Trajkovski v Department of Transport and Regional Transport[24] the Administrative Appeals Tribunal (Cth) said:
There is no question that the decision to be made now by the Tribunal is not to be arbitrary but is to be one consistent with the policy sought to be achieved by the legislation, taking into consideration the matters relied upon by the Applicant. Thus the matter is to be judged by weighing up the particular circumstances of the case in the light of the part which the policy plays in the overall context of the decision to be made. (Skoljarev v Australian Fisheries Management Authority (1995) 22 AAR 331 at 337). This application is to then be considered having in mind the facts and circumstances before the Tribunal but in the context of a regime having been established for the importation of vehicles and the same not being allowed onto roads in Australia without safety being ensured. The exceptions as provided for in the regulations where variation from the scheme may be enabled apart from the circumstances therein specified must of necessity be exceptional. The Tribunal in making its decision is to give primary weight to the scheme and the intent of Parliament in enacting the legislation
[24] [2000] AATA 1073 at [35]
63.In this case, the statutory scheme for protection of registered trees contemplates that lawful removal of a registered tree not occur unless its registration is cancelled.
64.The applicant relied on the decision of a Full Court of the Federal Court in Minister for Immigration and Citizenship v Khadgi[25] to contend that the matters which the Conservator “must have regard to” under section 25(3) are matters for her to consider but are not fundamental elements in the decision-making process. However, further in that decision, at paragraph 61, the Court said:
We respectfully agree with Sackville J in [Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152] where his Honour pointed out that the expression “have regard to” is capable of different meanings depending on its context. As his Honour said at [54] (p 163):
.... a statutory obligation to have regard to specified matters when making an administrative decision may require the decision-maker to take the matters into account and “give weight to them as a fundamental element in making his [or her] determination”: R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329 per Mason J. Indeed, this is the meaning that was given to the predecessor of s 501(6)(c) of the Migration Act (relating to the character test): Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194. But the phrase “have regard to” can simply mean to give consideration to something (Shorter Oxford English Dictionary). In this sense a direction to a decision-maker to have regard to certain factors may require him or her merely to consider them, rather than treat them as fundamental elements in the decision-making process
[25] Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248
65.The Tribunal (of course) accepts the statements of the Court in Khadgi and Singh, but is of the view that upon considering the statutory scheme governing protected trees it becomes apparent that the Conservator is required to consider the matters in section 25(3), particularly the approval criteria, as “fundamental elements” in the decision-making process. When the scheme is considered as a whole, it becomes clear that it does not contemplate the Conservator approving removal of a registered tree otherwise than via the pathway of first cancelling its registration. At that point it will be a regulated tree if it displays one or more of the features set out in section 10, and removal can be considered. Of course, if the tree following cancellation of its registration lacks any of the features that make it (or would make it) a regulated tree, it will no longer be a protected tree in which case it could be removed without committing an offence under any of sections 15-18. Also, if registration was cancelled for safety reasons, approval to remove it would be unnecessary.[26]
[26] Tree Protection Act, section 19(1)(b)
66.Lastly, the parties raised the question whether the Conservator (and the Tribunal on review) could or should approve removal of a registered tree subject to a condition that its registration first be cancelled. The Tribunal cannot see any practical purpose in pursuing such an option where cancellation of registration entails significant procedural and qualitative considerations under Division 7.3; where the reasons for cancellation may have a significant bearing on whether removal should be approved; and where the Tribunal does not have jurisdiction to consider whether registration should be cancelled.
………………………………..
Presidential Member G McCarthy
for and on behalf of the Tribunal
ANNEXURE A
Australian Capital Territory
Tree Protection (Approval Criteria) Determination 2006 (No 2)
Disallowable instrument DI2006—60
made under the
Tree Protection Act 2005 s21 (Approval Criteria)
1 Name of instrument
Arial 12pt, bold
This instrument is the Tree Protection (Approval Criteria) Determination 2006 (No 2).
2Commencement
This instrument commences on the day after notification.
3Determination
I determine that the criteria for approving an activity that would or may damage a protected tree or be prohibited groundwork in the protection zone for a protected tree or a declared site are as set out in Schedule 1.
4Instrument repealed
The disallowable instrument Tree Protection (Approval Criteria) Determination 2006 (No 1) DI – 2006 55 is repealed.
Jon Stanhope MLA
Minister for the Environment4 April 2006
Schedule 1
Determination of criteria for the purposes of section 21 of the Tree Protection Act 2005.
Regulated Trees
1 Approval to damage a regulated tree
(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 lessees 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.
(2)The Conservator may also give an approval under section 25 of the Tree Protection Act 2005 to remove a tree if the tree is located on a block of less than or equal to 1200m2 and is a species listed in Schedule 2.
(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.
(4)In considering whether criteria 1(1)(b) and (c) are met the Conservator must assess whether the removal of the tree is urgently required in accordance with section 29 of the Act.
(5)The Conservator may give an approval under section 25 of the Act to undertake major pruning on a regulated tree when:
(a)the work is required:
(i) as a remedial treatment; or
(ii) in the general interests of the health of the tree; or
(iii) to reduce an unacceptable risk to public or private safety; or
(iv) to reduce the risk of damage or prevent further damage to a substantial building, structure or service.
(b)the tree is substantially affecting solar access to the lessees lease, or neighbouring lease, during winter between the hours of 9am to 3pm and minor pruning is not sufficient to remedy this (excluding remnant eucalypts).
(6)The approval of lopping should only be considered when the criteria in clause 1 are met and the retention of the tree is considered necessary.
Example: Where the retention of the tree is necessary to maintain habitat or heritage values.
2 Approval to undertake prohibited groundwork within the tree protection zone of a regulated tree
The Conservator may give an approval under section 25 of the Act to carry out groundwork within the tree protection zone of a regulated tree where the groundwork will have minimal impact on the tree if the activity complies with the conditions stated in the approval.
Registered Trees
3 Major pruning of registered tree
(1)The Conservator may give an approval for major pruning of a Registered Tree under section 25 of the Act if the work is required:
(a)to maintain the health and safety of the tree; or
(b)to maintain clearance from services; or
(c)as a remedial treatment.
(2)The Conservator may only give an approval for major pruning of a Registered Tree under criterion 3(1) if the work is considered necessary and will not:
(a)substantially alter the tree’s shape and form; or
(b)cause the tree to become unsafe; or
(c)result in the decline and death or necessitate the removal or destruction of the tree.
(d)
4 Approval to undertake prohibited groundwork within the tree protection zone of a registered tree
The Conservator may give an approval under section 25 of the Act to carry out groundwork within the tree protection zone of a registered tree where the groundwork will have minimal impact on the tree if the activity complies with the conditions stated in the approval.
Declared Sites
5 Approval to undertake prohibited groundwork within a declared site
(1)The Conservator may give approval under section 25 of the Act to carry out prohibited groundwork within a declared site if satisfied that the area of the site affected by the prohibited groundwork, and any other prohibited groundwork done with or without approval in the past 12 months, would be less than 10%.
(2)The Conservator may approve prohibited groundwork within a declared site if, on advice from the ACT Planning and Land Authority, the groundwork is necessary to achieve broader strategic planning objectives of the Territory Plan.
Examples
6 Examples of reasonable remedial treatments or measures for a regulated tree
Examples of reasonable remedial treatments or measures for a regulated tree are:
(1)crown thinning, selective pruning or reduction pruning of trees to lessen wind resistance, to reduce weight of limbs, to reduce competition, to increase light penetration and air circulation through the crown, undertaken every three years.
(2)general pruning to remove dead, diseased, dying, or defective and conflicting branches deemed to be dangerous or detrimental to the tree, undertaken every two years.
(3)selective or formative pruning, to remove identified branches that encroaching on utilities or buildings, undertaken every two years.
(4)crown lifting for pedestrian or vehicular access undertaken every two years.
(5)thinning, selective pruning or reduction pruning on trees to provide solar access and property alignment to private dwellings undertaken every two years.
(6)annual inspection by a qualified arboriculturist to undertake risk and hazard assessment.
7 Examples of reasonable risk mitigation measures
Examples of reasonable risk mitigation measures are:
(1)the erection of fences to prevent access under the tree or an area of risk;
(2)landscaping to discourage access under the tree or an area of risk; or
(3)the erection of signage warning of possible risk.
8 Examples of damaging activities that may be approved for a regulated tree
Examples of the kinds of activities for which an approval for damaging activity on a regulated tree may be granted are:
(1)removal of unsuitable or hazardous trees subject to replacement plantings being undertaken where necessary; or
(2)pollarding on deciduous trees grown for horticultural amenity or on native trees to retain habitat values; or
(3)remedial pruning to prolong the useful life expectancy of damaged trees; or
(4)root pruning to ameliorate damage to built or natural structures.
The list of examples set out in paragraphs 7, 8 and 9 do not limit the matters that the Conservator may consider.
ANNEXURE B
Australian Capital Territory
Tree Protection (Criteria for Registration and Cancellation of Registration) Determination 2006
Disallowable instrument DI2006—56
made under the
Tree Protection Act 2005 s45 (Criteria for Registration and Cancellation of Registration)
1 Name of instrument
Arial 12pt, bold
This instrument is the Tree Protection (Criteria for Registration and Cancellation of Registration) Determination 2006.
2Commencement
This instrument commences on the day after notification.
3Determination
I determine that the criteria for tree registration and cancellation of registration are as set out in Schedule 1.
Jon Stanhope MLA
Minister for the Environment27 March 2006
Schedule 1
Criteria for registration and cancellation of registration for the purposes of the Tree Protection Bill 2005.
Tree registration
1 Criteria for registration
The Conservator of Flora and Fauna (the Conservator) may include a tree on the register under section 52 of the Act if it is located on built-up urban area and it can be demonstrated that it significantly contributes to one or more of the following values:
(1)Natural or cultural heritage value
Object:The object of this value is to identify trees that are of particular importance to the community due to their intrinsic heritage values.
A tree may be considered to be of natural or cultural heritage value when it is:
(a) associated with a significant public figure or important historical event; or
(b) of high cultural heritage value to the community or cultural group, including trees associated with aboriginal heritage and culture; or
(c) associated with a heritage nominated place and representative of that same historic period.
(2)Landscape and aesthetic value
Object: The object of this value is to identify trees that are of particular importance to the community due to their substantial contribution to the surrounding landscape.
A tree may be considered to be of landscape and aesthetic value if it is situated in a prominent location when viewed from a public place and it:
(a) contributes significantly to the surrounding landscape based on its overall form, structure, vigour and aesthetic values; or
(b) represents an outstanding example of the species, including age, size or habit; or
(c) is an exceptional example of a locally native species that reached maturity prior to urban development in its immediate vicinity.
(3)Scientific value
Object:The object of this value is to identify trees that are of particular importance to the community due to values associated with their ecological, genetic or botanical significance or ability to substantially contribute to the scientific body of knowledge and understanding.
A tree may be considered to be of scientific value when it:
(a) is evidence of the former range limits or extent of the species or an ecological community; or
(b) is endangered or vulnerable species that is endemic to the Territory or local region now reduced in range or abundance; or
(c) demonstrates a likelihood of providing information which will contribute significantly to a wider understanding of natural history by virtue of its use as a research site, teaching site, type locality or benchmark site; or
(d) is of botanical or genetic value and is not well represented elsewhere in the Territory; or
(e) is a significant habitat element for a threatened native species.
2 Value of an individual tree as part of a group
The Conservator may include a tree on the register under section 52 of the Act if it is located on built-up urban area and it can be demonstrated that it contributes to one or more of the values above when considered in the context of, and included with, other trees in its immediate vicinity.
3 Consideration of criteria for cancellation
The Conservator may not consider a tree for registration if it meets the criteria for cancellation.
Cancellation of tree registration
4 Criteria for cancellation of registration
(1)The Conservator may cancel the registration of a tree if:
(a) the tree does not meet any of the values in paragraph 1; or
(b) the tree represents an unacceptable risk to public or private safety; or
(c) the tree is shown to be causing substantial damage to a substantial building, structure or service that will require ongoing and extensive remediation measures.
(2)The Conservator may only cancel the registration of a tree under clause 4(1)(a) if all reasonable remedial treatments and risk mitigation measures to avoid or minimise the risk presented or damage caused by the tree have been determined to be ineffective.
5 Consideration of broader planning objectives
The Conservator may cancel the registration of a tree if, on advice from the ACT Planning and Land Authority; the registration of the tree will significantly compromise the broader strategic planning objectives of the Territory Plan.
6 Consideration of the value of the tree
When deciding whether the criterion in paragraph 5 is met, the Conservator may consider the value of the tree as assessed against the criteria in paragraphs 1 and 2.
7 Examples of reasonable remedial treatments
Examples of reasonable remedial treatments are:
(1)Thinning, selective pruning or reduction pruning of trees to lessen wind resistance, to reduce weight of limbs every three years.
(2)General pruning to remove dead, diseased, dying, defective and conflicting branches or foreign matter deemed to be dangerous or detrimental to the tree every two years.
(3)Selective pruning to remove identified branches that are causing a problem or to reduce encroachment on utilities or buildings every two years.
(4)Crown lifting for pedestrian or vehicular access every two years.
(5)Annual inspection by a qualified arboriculturist to undertake risk and hazard assessment.
8 Reasonable risk mitigation measures
Examples of reasonable risk mitigation measures are:
(1)The erection of fences to prevent access under the tree or an area of risk;
(2)Landscaping to discourage access under the tree or an area of risk;
(3)Placement of signage warning of possible risk; or
(4)Undertaking appropriate arboricultural techniques such as cable bracing or pruning.
The list of examples set out in paragraphs 7 and 8 do not limit the matters that the Conservator may consider.
HEARING DETAILS
FILE NUMBER:
AT 61/2016
PARTIES, APPLICANT:
Liangis Investments Pty Limited
PARTIES, CONSERVATOR:
Conservator of Flora and Fauna
COUNSEL APPEARING, APPLICANT
Mr P Walker SC, Ms K Katavic
COUNSEL APPEARING, CONSERVATOR
Mr M Hassall
SOLICITORS FOR APPLICANT
Macphillamy’s Lawyers
SOLICITORS FOR CONSERVATOR
ACT Government Solicitor
TRIBUNAL MEMBERS:
Presidential Member G McCarthy
Senior Member A Davey
DATE OF HEARING:
30 January 2017
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