Maatouk v Conservator of Flora and Fauna
[2015] ACAT 10
•3 February 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MAATOUK v CONSERVATOR OF FLORA AND FAUNA
(Administrative Review) [2015] ACAT 10
AT 14/86
Catchwords: ADMINISTRATIVE REVIEW – tree protection — reconsidered decision by Conservator of Flora and Fauna to refuse approval to remove a regulated tree — criteria for tree damaging activity: whether tree represents an acceptable risk to public or private safety; whether tree is shown to be causing or threatening to cause substantial damage to substantial building, structure or service; whether location of tree is inappropriate given its potential size and growth habitat — consideration of each criterion: no criterion met
Legislation cited: Tree Protection Act 2005, ss 21, 25, 107 and 107B
Subordinate
Legislation cited: Tree Protection (Approval Criteria) Determination 2006 (No 2) (DI 2006-60), Schedule 1, paragraph 1; Utility Networks (Public Safety) Regulation 2001 (SL2001-28), Section 25
Cases cited:Bozin v Conservator of Flora and Fauna [2010] ACAT 91
Kelly v Conservator of Flora & Fauna [2009] ACAT 24
Maciejewski v Conservator of Flora and Fauna [2013]
ACAT 78
Sharma v Conservator of Flora & Fauna [2014] ACAT 20
Tribunal: Mr A. Davey – Senior Member
Date of Orders: 3 February 2015
Date of Reasons for Decision: 3 February 2015
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 14/86
BETWEEN:
FRANK MAATOUK
Applicant
AND:
CONSERVATOR OF FLORA AND FAUNA
Respondent
TRIBUNAL: Mr A. Davey – Senior Member
DATE:3 February 2015
ORDER
The decision of the respondent is confirmed.
………………………………..
Mr A. Davey
Senior Member
REASONS FOR DECISION
The application
This is an application to the Tribunal for review of a reconsidered decision made by the Conservator of Flora and Fauna (“the respondent”) on 22 September 2014 to refuse approval for the removal of a regulated tree located at block 36 section 42 Gilmore under section 107 of the Tree Protection Act 2005 (“Tree Protection Act”). The respondent’s decision is referred to in these reasons as “the reconsidered decision”. The reconsidered decision upheld a previous decision under section 25 of the Tree Protection Act to refuse a tree damaging activity.
The applicant is the lessee of block 36 section 42 Gilmore, also known as 23 May Maxwell Crescent. On 23 May 2014, the applicant lodged an application to conduct a tree damaging activity, namely removal of the tree. The tree is a Schinus molle, commonly known as the Peruvian Peppertree (‘the tree’), located near the western corner of the block.
On 2 June 2014, a tree assessment report was prepared after inspection of the site. The report found the tree was mature, stable and in good health. It was assessed as structurally sound and did not meet any of the criteria set out in Schedule 1 of the Tree Protection (Approval Criteria) Determination 2006 (No 2) (DI 2006-60) to support its removal. It was recommended that the application be rejected. On 8 July 2014, a delegate of the respondent refused the initial application, under section 25 of the Tree Protection Act, on the grounds that it had not been established that any of the criteria for removal set out in Schedule 1 of the Tree Protection (Approval Criteria) Determination 2006 (No 2) (DI 2006-60) had been satisfied. In a notice of the decision sent to the applicant on 8 July 2014, the applicant was advised to remove dead wood and undertake selective pruning in accordance with Australian Standard 4373 “Pruning of amenity trees”.
On 22 July 2014, the applicant submitted an application for reconsideration of the decision.
Dr Peter Coyne, chair of the Tree Advisory Panel (“TAP”), conducted an inspection of the tree and prepared a report dated 26 August 2014 for the TAP.
At a TAP meeting on 28 August 2014 the panel considered the application for reconsideration of the decision and recommended refusal of the application on the basis that in the opinion of the panel none of the criteria for approval had been satisfied. The respondent then made a reconsidered decision, to uphold the original refusal, dated 22 September 2014.
On 28 September 2014, the applicant applied to the Tribunal for review of the respondent’s reconsidered decision.
The hearing
Mr Frank Maatouk represented himself. He gave evidence but did not call any other witness. Ms Kristy Katavic, of counsel, represented the respondent, instructed by Ms Aditi Mohindra from the ACT Government Solicitor. Dr Peter Coyne gave evidence for the respondent.
The hearing on 23 January 2015 commenced with a site inspection. The Tribunal’s attention was drawn to the tree’s location in relation to the power lines and to the adjacent residences. The hearing continued at the Tribunal’s premises later the same day. At the conclusion of the hearing the Tribunal reserved its decision.
Applicable law
Section 21 of the Tree Protection 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) for the purpose of section 21. The relevant criteria for consideration in this case are in paragraph 1(1) of Schedule 1:
1Approval 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.
Issue
The issue for determination is whether any of the criteria in paragraph 1(1) of Schedule 1 of the Determination are satisfied, and if so, whether the second condition of the paragraph (relating to whether all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective) has also been satisfied.
Agreed facts
It is not disputed that the tree is a regulated tree under the Tree Protection Act and its removal requires approval. It has been identified as a Schinus molle, commonly known as a Peruvian Pepper Tree. The tree is located in the western corner of the applicant’s property.
The applicant’s evidence and contentions
The applicant sought review of the decision mainly on criteria (b), (c) and (d) with respect to public safety and damage to services, but also claimed the tree was cause of allergic reactions relevant to criterion (f) and unacceptable winter shading relevant to criterion (e). By the time of the hearing, only criteria (b), (c) and (d) were pressed.
The applicant relied upon published information from other jurisdictions to contend the species was an inappropriate planting in this situation, and would represent a safety hazard unless removed. He interpreted the general advice of several electricity authorities in other jurisdictions to mean that a powerline clearance of several metres was required, without overhang.
The respondent’s evidence and contentions
The respondent relied on the statement and evidence from Dr Peter Coyne, that the tree was structurally sound and in good health, that there was no significant evidence of disease or prior branch failure, that it did not present unacceptable risk to public or private safety, that it did not threaten or cause substantial damage to services or structures if properly maintained to normal standards, and was appropriately located.
Dr Peter Coyne is chair of the Tree Advisory Panel, and has qualifications in Forestry. He tendered a detailed written statement and gave evidence (together with tendering a series of photographs relating to powerline overhang that had not been included with his written analysis) in which he concluded the application did not meet any of the criteria (b), (c), (d), (e) or (f). In particular, Dr Coyne expressed the opinion that only minor pruning of a few percent of canopy under Australian Standard 4373 “Pruning of amenity trees” would be needed to achieve the requirements for powerline clearance, rather than the very large canopy percentage contended by the applicant.
Consideration of issues
The Tribunal’s consideration of the evidence in relation to the relevant criteria follows. Criteria (a) and (g) are not relevant, and in the hearing the issues of criteria (e) and (f) were not pressed. The only remaining criteria are: (b), (c) or (d):
Criterion (b): The tree represents an unacceptable risk to public or private safety; or
Criterion (c): the tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service; or
Criterion (d): the location of the tree is inappropriate given its potential size and growth habit (excluding remnant eucalypts)
The applicant raised a number of safety issues in relation to the tree which relate to the above three criteria. He was concerned particularly in relation to the proximity of the branches to the overhead ACTEW power lines, and also concerned about the tree dropping branches. The applicant made reference to parts of the tree he said showed signs of disease. He said he had received some advice from an arborist on this, but he did not share any report on the subject with the Tribunal, nor call any witness. In the hearing, and in final submissions, it was clear that the main ground under which the applicant thought the tree met the criteria under the determination related to interaction with the powerlines.
The applicant told the Tribunal he had only become the lessee a little over six months prior to the hearing, and had not pruned the tree’s branches to keep them clear of the power lines while he awaited the result of the present proceedings. The applicant, as lessee, has a duty to ensure that the tree remains clear of the power lines. It appears the applicant was relying on an interpretation of powerline clearance requirements from other jurisdictions, and said he had only become aware of the ACTEW guidelines a few days before the hearing. It also appears the applicant was assuming the requirements include that no branches be permitted to overhang powerlines. It was because of this interpretation, particularly when applied to the insulated supply line to the residence, that he thought a very large percentage of the tree would need to be removed to achieve compliance with powerline clearance requirements.
Counsel for the respondent, in submissions, pointed out that the basis in law for ACTEW’s clearance requirements is section 25 of the Utility Networks (Public Safety) Regulation 2001. Table 25 in section 25 outlines clearances of specified distances “in any direction” from powerlines of various voltage and insulation attributes. The regulation thus provides no basis to require that vegetation not be permitted to overhang the powerline, if the relevant specified clearance has been achieved. Dr Coyne provided photographic examples of trees with large branches clearly overhanging powerline conductors, and concluded that ACTEW accepted many instances where substantial trees overhung powerlines. It would be unsurprising that ACTEW might prefer that trees generally did not overhang powerlines, but the Tribunal agrees that achievement of the requirements of the Utility Networks (Public Safety) Regulation 2001 does not of itself require there to be no overhang.
While the Tribunal is satisfied that the power lines are a substantial service and that the applicant’s house is a substantial structure, there was no compelling evidence before the Tribunal that would persuade it that the location of this tree was inappropriate; or that it represents an unacceptable risk to public or private safety, or that it was threatening to cause substantial damage to the power lines and/or to any substantial structure.
Having considered all of the evidence, the Tribunal is satisfied and finds that none of the criteria, including (b), (c) or (d), have been met.
Conclusion
The tree is a mature tree in good condition. Such regulated trees may not be removed unless strict conditions are met. As required by section 25 of the Tree Protection Act, the Tribunal has considered all of the evidence in relation to the relevant approval criteria and is satisfied that the application does not meet any of the criteria. As in Bozin[1], Kelly[2], Maciejewski[3] and Sharma[4], this Tribunal has not been shown that all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective.
[1] Bozin v Conservator of Flora & Fauna [2010] ACAT 91
[2] Kelly v Conservator of Flora & Fauna [2009] ACAT 24
[3] Maciejewski v Conservator of Flora & Fauna [2013] ACAT78
[4] Sharma v Conservator of Flora &B Fauna [2014] ACAT 20
The Tribunal has concluded that none of the conditions for removal have been satisfied and the Conservator’s decision should be confirmed.
………………………………..
Mr A Davey – Senior Member
HEARING DETAILS
FILE NUMBER: | AT 14/86 |
PARTIES, APPLICANT: | Frank Maatouk |
PARTIES, RESPONDENT: | Conservator of Flora and Fauna |
COUNSEL APPEARING, RESPONDENT | Ms K. Katavic |
SOLICITORS FOR RESPONDENT | Ms A. Mohindra |
TRIBUNAL MEMBERS: | Mr A. Davey |
DATES OF HEARING: | 23 January 2015 |
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