Maciejewski v Conservator of Flora and Fauna - [2013] ACAT 78

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MACIEJEWSKI v CONSERVATOR OF FLORA AND FAUNA (Administrative Review) [2013] ACAT 78

Case Number AT 13/60
Catchwords: ADMINISTRATIVE REVIEW - reconsidered decision by Conservator of Flora and Fauna to refuse approval to remove a regulated tree - criteria in Tree Protection (Approval Criteria) Determination 2006 (No 2) whether tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service; whether the tree is substantially affecting solar access; whether tree represents unacceptable risk to public or private safety; and whether all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective
Legislation:Tree Protection Act 2005), ss 8, 15, 19, 21, 25, 106 and 107B; and Schedules 1 and 3
RegulationTree Protection (Approval Criteria) Determination 2006 (No. 2) Disallowable Instrument D12006-60, Schedule 1
Cases:Commissioner for Superannuation v Scott (1987) 71 ALR 408
Maleganeas v Conservator of Flora and Fauna
[2007] ACTAAT 24

Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees Union and Other (1979) 27 ALR 367

Tribunal: Ms E. Symons - Presidential Member

Date of Orders: 29 November 2013
Date of Reasons for Decision: 29 November 2013

ACT CIVIL AND ADMINISTRATIVE TRIBUNAL AT 13/60
BETWEEN: DARIUS MACIEJEWSKI

Applicant

AND: CONSERVATOR OF FLORA AND FAUNA

Respondent

TRIBUNAL: Ms E. Symons - Presidential Member

DATE:29 November 2013
ORDER

The Tribunal Orders that:
1. The Conservator’s decision is confirmed.
………………………………..
Ms E. Symons - Presidential Member

REASONS FOR DECISION
The Application

This is an application to the Tribunal for review of a reconsidered decision by the Conservator of Flora and Fauna (“the Conservator”) dated 5 July 2013 to not grant Mr Darius Maciejewski’s (“the applicant”) request for the felling/removal of a regulated tree protected under the Tree Protection Act 2005 (“the Tree Act”).
The tree is an Ulmus parvifolia commonly known as a Chinese elm (“the tree”). The tree is located at the rear of a residential block being Block 1 Section 55 and known as 229 Osburn Drive, Macgregor (“the property”). The applicant is the lessee of the block and has applied for the review.
Mr Steve Griffiths of Treeworks first applied on behalf of the applicant to remove the tree on 31 May 2013. The application stated that – “The tree is too close to neighbours foundation – has possible weak unions.” The tree was described in the application as an English elm.
On 11 June 2013, Chris Corsini, a tree inspection officer, inspected the tree. He prepared a written Tree Assessment Report for the Conservator and recommended that the application be rejected.
On 13 June 2013, approval for the removal of the tree was refused (“the first decision”) by a delegate of the Conservator pursuant to section 25 of the Tree Act as it had not been established that any of the criteria for removal in Clauses 1(1) and (2) of Schedule 1 of Disallowable Instrument D12006-60, Tree Protection (Approval Criteria) Determination 2006 (No. 2) (“the Determination”), were satisfied.
In the Conservator’s letter dated 13 June 2013 notifying the Applicant of the Conservator’s decision, the Conservator’s delegate stated:
Your request for Felling/Removal of Tree 1 (Ulmus parvifolia) has not been granted, however it is recommended that:
· Deadwood is removed and selective pruning is undertaken in accordance with Australian Standard 4373, ‘Pruning of Amenity Trees’. Pruning carried out in accordance with this standard does not require approval.
On 25 June 2013, pursuant to section 106 of the Tree Act, the Conservator received the applicant’s request for reconsideration of the first decision. It raised the following concerns:
i.the criteria for tree removal has been satisfied, specifically sections 1(c) and 1(e) of the Determination.
ii.the tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service, and
iii.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).
To the reconsideration request, the applicant had attached correspondence,

a photograph and site evaluation for the supply and installation of a 3.00 kW Solar PV System from Harvey Norman Solar showing the tree’s impact on the placement of solar panels, a photograph showing the tree’s proximity to the neighbour’s house and a copy of a roof repair quote from Johns Roofing dated 31 May 2013 to fix damage which the applicant alleged was caused by the tree’s fallen branches.
The matter was referred to the Tree Advisory Panel (“TAP”) for advice. On 24 June 2013, Dr Peter Coyne, Chair of TAP, inspected the tree and on

26 June 2013, prepared a report which stated as follows:
·Shading would prevent effective installation of solar panels but a desire to install solar panels is not a criterion for approval under the Tree Protection Act 2005.
·Shading between 9 am and 3 pm in winter would cover the applicant’s house and almost all the block for at least a substantial part of the period, but only at an intensity of 25% which does not appear to satisfy the criterion of substantially affecting solar access in winter.
·As the tree and house behind have coexisted for a long time without apparent damage to the house (from the tree’s roots), potential substantial damage from this source appears unlikely. (words within brackets added)
·A branch could fall on that house but also would be unlikely to cause substantial damage.
·The applicant attributed damage to the roof of the house to the tree, but the quote...does not provide any link between the tree and the proposed (roof repair) work. (words within brackets added)
·The tree appears to be healthy...[d]ead branches should be removed.
·The tree does not meet the criteria under the Tree Protection Act 2005 for approval to remove it.
On 27 June 2013, the TAP recommended refusal of the application on the basis that none of the criteria for approval in Clauses 1(1) and (2) of Schedule 1 of the Determination had been satisfied. The TAP also recommended that dead wood is removed and selective pruning is undertaken in accordance with Australian Standard 4373, ‘Pruning of Amenity Trees’.
On 5 July 2013 the Conservator confirmed the first decision not to grant the request for felling/removal of the tree (“the reconsideration decision”).
On 2 August 2013, the applicant applied to the Tribunal for administrative review of the Conservator’s reconsideration decision pursuant to section 107B of the Tree Act on the grounds that:
·the tree represents an unacceptable risk to public or private safety;
·the tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service [(1)(c)];
·the location of the tree is inappropriate given its potential size and growth habit; and
·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 [(1)(e)].

Applicable law

Section 107B of the Tree Act provides for review by the Tribunal of a decision of the Conservator following reconsideration of a decision originally made under section 25 of the Tree Act. The applicant is an entity mentioned in Schedule 1, part 1.2 of column 4 of the Tree Act.
The objects of the Tree Act are set out in subsection 3(1), namely:
(1) The objects of this Act are—
(a) to protect individual trees in the urban area that have
exceptional qualities because of their natural and cultural
heritage values or their contribution to the urban landscape;
and
(b) to protect urban forest values that may be at risk because of
unnecessary loss or degradation; and
(c) to protect urban forest values that contribute to the heritage
significance of an area; and
(d) to ensure that trees of value are protected during periods of
           construction activity; and
      (e) to promote the incorporation of the value of trees and their
           protection requirements into the design and planning of
          development; and
      (f) to promote a broad appreciation of the role of trees in the urban
          environment and the benefits of good tree management and
sound arboricultural practices.
Pursuant to subsection 8(b) of the Tree Act, a protected tree includes a regulated tree. Subsection 10(1) of the Tree Act defines a regulated tree as:
(1) A regulated tree is a living tree (other than a registered tree or a
palm tree) that is on leased land within a tree management precinct
and—
(a) is 12m or more high; or
(b) has a trunk with a circumference of 1.5m or more, 1m above
           natural ground level; or
      (c) has 2 or more trunks and the total circumference of all the
           trunks, 1m above natural ground level, is 1.5m or more; or
(d) has a canopy 12m or more wide.
Section 15 of the Tree Act provides that it is an offence to damage a protected tree unless, pursuant to section 19, approval has been granted by the Conservator under section 25 of the Tree Act.
Subsection 25(3) of the Tree Act sets out the following matters to which the Conservator must have regard when making a decision on an application to remove a protected tree -
(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) anything else the conservator considers relevant.
Subsection 21(1) of the Tree Act provides that the Minister may determine criteria for approving an activity that would or may damage a tree which are known as the approval criteria. On 4 April 2006, the Minister for the Environment made the Tree Protection (Approval Criteria) Determination 2006 (No. 2). The Determination provides that the Conservator may give approval to damage a protected tree under section 25 when, as is relevant to the present matter,
(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)...
(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) ...
and
all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective.
In reviewing the Conservator’s reconsidered decision, the Tribunal is sitting in the place of the Conservator. The Tribunal is therefore required to have regard to the approval criteria, the advice if any of the advisory panel, and anything else the Tribunal considers relevant.

Site inspection

The Tribunal conducted a site inspection of the subject tree and the block on the morning of the hearing in the presence of the parties, their representatives and Dr Peter Coyne. The Tribunal’s attention was drawn to the orientation of the applicant’s house on the block, to the slope from street level towards the rear of the applicant’s block and to the location of the tree in relation to the applicant’s house and in relation to the rear neighbour’s house. The tree is in close proximity to the living room wall (‘the wall’) of the rear neighbour’s house which was built to the boundary with the applicant’s block. The Tribunal’s attention was drawn to the wall itself, some cracking in the wall, the tree’s roots near that wall, and the location of the kitchen in that property.
In relation to the tree the Tribunal’s attention was drawn to the dead wood in the tree, to where branches had been lopped, to stubs where branches had dropped off, and to a dead branch on the ground.
The Tribunal’s attention was also drawn to an English elm and three Cypress trees which were located to the north east of the applicant’s property on government land and to a liquid amber located on the rear neighbour’s property.
The Tribunal also noted the broken ridge capping at the north-west corner of the applicant’s roof.

Agreed facts

It is agreed that the tree is a regulated tree and that its removal requires approval. It has been identified as an Ulmus parvifolia commonly known as a Chinese elm. The tree is estimated to be approximately 13 metres high with a canopy of approximately 18 metres and a trunk circumference of approximately 1.5 metres. The tree is at the rear of the applicant’s block.

The hearing

Ms Kerrie Purcell represented the applicant pursuant to a Power of Attorney lodged with the Tribunal on 17 September 2013. The applicant gave evidence and called evidence from Mr Peter Palmer, a licensed plumber; Mr Scott Mason, Director of Australian Solar Designs; and Mr Andrew Pickard, a mechanical engineer and licensed energy assessor, all of whom had filed witness statements.
Ms Kristy Katavic of Counsel represented the respondent instructed by

Mr James Kwan from ACT Government Solicitor. Dr Peter Coyne gave evidence. He and Mr Mark Diehm filed witness statements.

The applicant’s evidence and contentions

The applicant said he has lived at his property in Macgregor since the late 1970’s/early 1980’s. He described himself as the guardian of the tree during this time. He is in receipt of the disability pension. His son offered, earlier this year, to fund the installation of solar panels on his premises in order to reduce the running costs of his home. He engaged Harvey Norman Solar to provide him with a quotation to install the solar panels. He said the installer advised him that he needed to remove the tree so that the panels could be installed on the best roof space of his house. The applicant provided a copy of the email from Harvey Norman’s Solar Customer Service Manager to him dated 24 June 2013 (T56) which stated:
For you to proceed with the installation of a Solar PV System the tree must be removed or cut back considerably. We would not proceed with installing Solar at your home currently as the tree suffocates the idea(l) roof space with shade.[The letter within brackets added.]

The applicant said after he was notified that the application had been refused, he checked the legislation and then realized that solar installation did not come under the criteria for tree damaging activity. Notwithstanding this knowledge, he said that he decided to seek reconsideration of the decision as he wanted to have solar access to his roof space in order to reduce the amount he spends on heating his home in winter.
He also said that he has limited funds with which to meet the rising cost of living. He has taken all steps to minimize his costs and gave as an example his installing LED lighting. He budgets to meet his outgoings each fortnight and said that he is barely managing. He described his running costs for providing heating in winter as ‘substantial’ saying that he had had a $1,600 gas bill, which was for his ducted heating as all his other appliances are electric. He had tried to manage this expense by not using his ducted heating, and only using and heating the north facing part of his house last winter. His electricity costs increased but were still less than half of his previous gas bill.
The applicant said, as the tree has grown, that he and then his children had undertaken quite routine maintenance three to four times a year cutting off twigs and branches within reach, raking the leaves and branches from the tree and emptying the gutters. He estimated that this involved about seven or eight deep trailer loads a year. He arranged for his son to lop some of the tree’s branches near the north-west corner of his house and over his neighbour’s roof area towards the north. While his son is employed by the Queanbeyan City Council in charge of a gang using big machinery to trim trees and to look after parks, the applicant said that he was not sure if his son had tree management qualifications.

The applicant said that he had not engaged a qualified tree manager or professional company to remove the dead wood from the tree, and in the last 10 years he had not done anything to remove that wood. He agreed that clearing gutters was usual home maintenance but thought having to clear his gutters three to four times a year was excessive. He found that the cockatoos break off a lot of the twigs and leaves at the top of the tree which end up stuck in his gutters. He had tried a lot of different gutter guards but found it quicker to use a blower. He conceded that he had not looked for different gutter guard products in the last five years and that there might be better products available now but the cost was as high as getting someone to clean the gutter.
He has called in plumbers on average every three or four months to clear blocked drains. They have removed tree roots from the pipes and told him that the roots are the cause of his plumbing blockages. He had not seen the plumbers apply preventive chemicals to the drains after they had been cleaned as he was often at work and not present. He, himself, had obtained and used products from Bunnings and Masters recommended by the plumber to maintain the drains.
The applicant said that, when the plumber told him the Chinese elm tree’s roots were causing the blockage, he asked the plumber how he had worked that out, and the plumber said that he had determined this from the length of the eel used and the fact that the closest tree to that place was the Chinese elm.
The applicant agreed that there was a liquid amber tree on his rear neighbour’s block. He said it was 60 metres from the applicant’s sewer. He said he was unable to comment when asked in cross examination if the plumber had considered whether the liquid amber or the Chinese elm had caused problems with blockages on his neighbour’s property; when the plumber was on the applicant’s property he had verbally said the cause was the applicant’s tree.
While the applicant agreed that an English elm and three Cypress trees were located to the north east of his block on government land, he said that the plumber had not given him an opinion about the possible impact of these trees’ roots on the sewerage pipes. When the sewerage had overflown previously ACTEW had given him a letter which stated that their pipes were under the cypresses and did not show any evidence of blockages or roots.
The applicant said that he was concerned about the tree, which has branches hanging right over the roof structure of his rear neighbour’s house, damaging the roof. He was also concerned that the concrete slab which provided the only access to his rear neighbour’s property would be damaged by the tree’s roots. His neighbour was also concerned about the closeness of the tree to his property. He had not shown his neighbour the cracks in the living room wall as he was afraid of litigation from his neighbour. The neighbour’s property has been rented for the last two years and he has not seen the neighbour during that time.
He also acknowledged that there was a lot of dead wood in the tree and was concerned for the safety of his grandchildren who frequently visit and play in his backyard.
He said when the solar company representative inspected his roof he learned that he had found large branches on the roof. The applicant obtained a quote for roofing repairs and was advised that the damage to the roof pointing was probably caused by falling branches and strong winds. He told the Tribunal that he had not seen the roof tiles at the north-west corner of his house being damaged. He thought that this damage may have been caused by a branch falling from the tree, but conceded he did not know how the damage occurred.

He had looked at but not been able to get a clear idea from the Australian Standards for Pruning of Amenity Trees (Exhibit A4) of what was an acceptable level of cutting back or pruning the tree. He had obtained an approximate cost for a consultant to prune the tree, which was the same as the cost to remove it. As he had concerns that pruning would not solve the problem long term, he had asked the consultant how the pruning would assist with him using solar and he was told that it would not greatly assist.

Evidence of Andrew Pickard

Mr Pickard has a Bachelor of Mechanical Engineering (Hons), a Bachelor of Human Geography and for the last six months has been a licensed ACT Building Assessor (Class A – Energy Efficiency). Prior to that, he worked as an energy assessor with Jenny Edwards of Jigsaw Housing and Scinergy. He is the Director of AJP Engineering, which specialises in engineering energy efficiency.
He inspected the applicant’s property about six weeks prior to the hearing and provided a report (Exhibit A1). In that report he stated “The tree .....casts significant shade to around half the north face of the house during winter … my estimate would be a 50%-70% reduction in direct sunlight during the course of a winter day”. In his evidence at the hearing, he said that pruning the tree to Australian Standards would not really improve solar access to the applicant’s house. He had formed this opinion when standing at the north facing windows and looking through the trees, and from looking at photos and his experience of shading.
In cross examination Mr Pickard said that he did not have any formal forestry or arboriculture qualifications. He agreed that a house could be located on a block with structures on the perimeter that do not optimise its solar gain. Orientation of the house and the number of windows in a north facing wall also affect solar gain.
He had noted and considered that the impact on solar access of the four trees to the north east of the applicant’s house would have a minimal effect until 9 am to 10 am as the shading would fall primarily on the eastern windows. He agreed that a number of factors, not just the subject tree, affected the solar access to the applicant’s property.
When asked about the impact of thinning the subject tree, Mr Pickard said he would need to look at the tree after it had been pruned; however, he expressed the opinion that a large section of the tree’s canopy would need to be really thinned to have a substantial effect on solar potential. He also said that if the dead wood comprised 20% of the canopy and was removed, that, in his opinion, will only have a small effect on the solar potential of the property.

Evidence of Peter Palmer

Mr Palmer has been working as a licensed plumber for 28 years, initially with ACTEW and since 1996 in his own business. He specialises in cleaning drains. He provided a report dated 9 September 2013 (Exhibit A2). In that report he said:
“... have had to regularly service these premises, [of the applicant and the rear neighbour] usually at least once every six months to remove tree roots from the sewerage and storm water pipes. The sewerage and storm water issues arising from the elm tree in Mr Maciejewski’s back yard have resulted in several significant problems. For example, in repairing the sewerage and storm water pipes at 227 Osburn Dr … I have had to remove the kitchen floor to reach the pipes as there was no access under the house.[words within square brackets added]
In his evidence, he said that he had been clearing blocked pipes at both properties for about 10 years. His visits were every six to nine months in the beginning, and as the roots became more aggressive his visits became more frequent, to every four to six months. He has had to use a digger to access the pipes. However, in cross examination, he said it was hard to remember when he had last been to the applicant’s property saying “it was a fair few months ago; it might have been in 2013.”
When asked why he had attributed the sewerage and storm water problems to the tree in the applicant’s backyard, he said that he had a very vague memory of being up against the applicant’s house, about half way along the north facing wall, when he put the electric eel into the drain. He said that he had to fight to get it through the first metre due to a blockage which was nearest the subject tree and then, five to ten metres further out, he had to fight to get it through a further blockage.
He was aware of the four trees to the north east of the applicant’s property which included conifers (cypresses). He said that he could rule out the conifers as causing the problems as he had washed the roots which he had removed from the pipes, broken them and smelt them, and he could not detect the distinctive conifer smell; the roots also did not have the distinctive red colour of conifer roots. He also said, in re-examination, that if the conifers were causing issues for the applicant they would also be causing issues for the ACT Government as they were on government land. He volunteered that he did not smell anything in the roots which would enable him to identify which tree or trees the roots had come from.
In cross examination, he said that he was aware of the large liquid amber in the rear neighbour’s property and that he could not rule out that it was contributing to the problems with the drains. He opined that the subject tree was the prime suspect but said that he could not rule the others out.
He also conceded that it was possible that roots from a number of trees were causing the blockages, saying “It could be all or one of them.” In re-examination, he said “It is very hard to condemn one tree. I can’t be 100% sure. Just look at the healthiest tree.”
Mr Palmer said that he was licensed to put chemicals into the drains; he did not do that at the applicant’s property. His practice was to recommend to clients that they obtain the chemicals online or from a local hardware store and put them in the drains. He estimated a 50:50 success rate using chemicals. He said, given the size of the subject tree’s roots, the only chemical which would work was an American one but he also said that if chemicals were introduced into the drains the frequency of his visits to the applicant’s property would not decrease.
In both his report and in his evidence, he opined that the tree roots have caused such significant damage to the stormwater and sewerage pipes that they will need to be replaced at some stage, sooner rather than later and that this will require excavating the soil around the pipes from the applicant’s house and the neighbour’s house which will cause substantial damage to the roots of the subject tree and incur significant cost. He suggested that as the pipes in the rear property run under their driveway the work would include removing that driveway.
In cross examination, although he was unable to recall precisely when he had last visited the applicant’s property, he reiterated that digging up and replacing the pipes was imminent. He said the roots were wrapped around the pipes and, in some places, the pipes had moved into a step formation so it was not really possible to minimize tree root damage when removing the pipes. Even if hydro excavation was used to remove the soil, apart from it taking too long, it would, in his opinion, be inevitable that the roots would have to be cut.

Evidence of Scott Mason

Mr Mason is Director of Australian Solar Designs and is an Accredited Solar Installer. He is an electrical engineer by trade and has been installing solar systems for six years. His company installs solar systems for Harvey Norman. His report was marked Exhibit A3. In his report he stated –
“......In my findings and the aerial pictures that I believe Mr Maciejewski has presented to you, the northern aspect roof is 80% shaded due to some large trees over hanging his premises.
….
The tree that resides to the rear of Mr Maciejewski’s property produces shading to the majority of his roof, to place a system under this shaded area would be against my Accreditation and also the rules set by Australian Standard 5033 and the Clean Energy Council.
… upon Site Inspection I found a number of large branches on the roof space that had fallen from the tree. This is a safety concern in itself.
The applicant had approached Harvey Norman about placing a solar system on his house. Before inspecting the property Mr Mason had accessed a web map which he had scrolled through to detect the amount of shading on the applicant’s roof throughout a whole day. At inspection, he said that he found about three quarters of the roof was shaded which included the whole northern side of the roof. He said that he could not install a solar system there because if one panel is shaded the whole system would not work properly. In his opinion, the northern roof was not a viable option for the installation of solar.
When it was put to him in cross examination that micro-inverter technology, which is associated with a single panel as opposed to a number of panels, could overcome the problem of shading of one panel, he said that this would depend on the type of panel used. In his opinion, it was not a viable option as it was only good in partial shade and not where there was bulk shade as in the applicant’s case. He was, however, unable to recall if the tree was in leaf or bare when he saw it. In cross examination, he said that he would expect to see a light shadow if there were no leaves on the tree and, as he recollected that the roof had a dark shadow when he inspected it, the tree was possibly in leaf.
In cross examination he said he had provided a quote for a 20 panel five kW system which would completely cover the whole northern roof. There was no other suitable location because he could not ‘put a few panels here and a few panels there; all panels had to be facing the same way and therefore only be on the northern roof….the tip of the shading goes all the way to the top of the roof. That is the problem.’ In his opinion less than 20 panels would not achieve close to the result the applicant wanted.
When asked about Harvey Norman’s quote (T58) which was to supply and install a 3.00 kW Solar PV System using 12 x 250W Trina Solar Panels connected to an SMA 3000TL Inverter he told the Tribunal that Harvey Norman takes a number of factors into consideration such as the electricity bill and how much the customer wants to spend when determining the type of solar system to be installed. While he had probably given his quotation later than Harvey Norman he opined that they would both cost the same.
In re-examination he said that shading was still an issue whether 12 or 20 panels were installed as the panels only needed the slightest bit of shade to decrease performance.
He did not think pruning was sufficient to improve solar access. He said he would not install a solar system on the applicant’s roof while the tree was there. He emphasised that he believed in solar generation and opined that the tree needs to come down.

The Respondent’s evidence and contentions

The respondent contends that, in respect of the tree in question, none of the criteria for removal in the Determination have been met, and that the decision under review should be confirmed.

Evidence of Mr Mark Diehm

Mr Diehm, from Territory and Municipal Services, provided a statement (Exhibit R1) dated 21 October 2013 in which he set out the history of this matter.

Evidence of Dr Peter Coyne

Dr Coyne has a BSc (Forestry) (Hons), a PhD in plant ecology and extensive professional experience relevant to this matter. His Curriculum Vitae dated 5 November 2013 was Exhibit R2. He has been an inaugural member of TAP since March 2006, Chair of TAP since August 2007 and was reappointed a member of TAP for two years on 5 July 2012 (Exhibit R3). He provided a statement dated 21 October 2013(Exhibit R4) in relation to the criteria relied on by the applicant.
In relation to criterion 1(1)(c), Dr Coyne repeated the statement[1] in his earlier report to the Conservator dated 26 June 2013 that “a desire to install solar panels is not a criterion for approval under the Act….The ACT Government does not consider an intention to install solar panels justifies removing a tree (Attachment 11).”
[1] Dr Peter Coyne, Witness Statement, at paragraph 12
This attachment states –
“While the ACT Government is actively promoting the use of passive solar energy in new developments and new development areas, issues relating to solar access in established areas will continue to be subject to assessment of individual circumstances. There is no intention to remove sound healthy trees solely to improve access to solar energy in established suburbs. However, where trees require pruning, this can, at times, improve solar capture capacity.”[2]
[2] _asked_questions_about_urban_trees
In his report, Dr Coyne stated[3] that he did not consider that winter shading by this tree meets criterion 1(1)(e) as the tree casts winter shade of about 25% intensity, meaning that about 75% of solar radiation still gets through.[4] At no time (in winter) is any particular area of the house shaded by more than about 25% intensity, or constantly for more than perhaps 10 minutes. Part of the house is free from any shading for part of the day. [5]
[3] Dr Peter Coyne, Witness Statement, at paragraph 15
[4] Dr Peter Coyne, Witness Statement, at paragraph 13
[5] Dr Peter Coyne, Witness Statement, at paragraph 14
Dr Coyne stated[6], in relation to Criterion1(1)(c) – structural damage/damage to services, that using his extensive experience of damage caused by trees and damage from other sources he had looked for, and not observed, any evidence that the tree is causing damage to the house behind, despite its proximity. The evidence suggests that the house was built before the tree became established and the roots of the tree have developed around the house footings rather than penetrating under them.
[6] Dr Peter Coyne, Witness Statement, at paragraph 21
He described the cracks, present in the house wall[7] ranging from less than 1mm wide to a maximum of about 4 mm, as not being wide enough to justify concern for the structural integrity of the wall and as typical of cracks which are normal in many Canberra houses, being almost certainly due to expansion and contraction of reactive clay in the soil as its water content changes.
[7] Dr Peter Coyne, Witness Statement, at paragraph 22
He also stated[8] that in relation to roof damage, the quote provided (T60) describes roof repairs, mainly re-bedding and pointing which are typical for roofs of this age with or without trees. He said the quote did not attribute any of the damage to the tree. In relation to Mr Mason’s statement that a number of large branches had fallen from the tree to the roof, he said that branches cannot fall without leaving evidence on the tree and there was none. No broken stubs of large branches were visible anywhere near the roof.
[8] Dr Peter Coyne, Witness Statement, at paragraph 23,24
Dr Coyne stated[9] that the applicant had not provided any supporting evidence of a link between the tree and the damage to the sewerage and stormwater pipes on his or the neighbour’s property. He also stated that clearing sewerage pipes of invading roots every six months, or annually or at similar periods is unnecessary. Once pipes have been cleared of roots they can be kept clear cheaply, easily and effectively. A dessert-spoon of copper sulphate, costing about twenty cents, put in the highest inspection opening monthly will prevent reinvasion of the pipes by roots without harming the source of the roots.
[9] Dr Coyne’s Witness Statement at paragraphs 27, 28
In his statement, Dr Coyne stated[10], in relation to Criterion 1(1)(b) – safety, that the tree has not been maintained and the canopy contains a very large amount of dead wood and that leaving dead material in the tree means it will inevitably fall at some time. The risk of a falling branch hitting anyone is extremely low. Only the dead material presents any risk of falling. The structure of the tree is sound and no substantial branch failures can be anticipated. The safety risk presented by this tree is low, provided dead material is removed as it should be.
[10] Dr Coyne’s Witness Statement, at paragraph 32
In his oral evidence, Dr Coyne said that the tree was fairly conspicuous but not outstanding in the particular landscape. It was not an ecologically beneficial tree, as identified in Schedule 3 of the Tree Act. He described it as a mature tree with a current root span at maximum reach. Further, he said that some roots will continue to grow and some will die; the structural roots will not change but the feeder roots will. Dr Coyne also said that it was possible that damage could still be caused by the roots and gave as an example that when roots are cleared they could regenerate around the drain.
He told the Tribunal that the tree was healthy and structurally sound and it had a lot of accumulated dead wood comprising about 20% of the tree and that it was not the norm to have 20% dead wood in a tree. If the tree had been maintained, the dead wood would have progressively been removed instead of being left to accumulate. The presence of dead branches is not a reflection on the tree’s health.
While the presence of dead branches affects safety, he described this accumulated dead wood as small branches and opined that it would not cause injury and that it was unlikely to have an impact on the neighbour’s house the tree overhangs as he observed mostly leafy material over that house. He said branches mostly fall back at the attachment to the tree and the leafy branches fall leaf first. He said that roof trusses are very strong and able to support shock.
At the inspection, he drew the Tribunal’s attention to where a number of branches towards the applicant’s house had been lopped and now had a proliferation of small, weak shoots. If these shoots are allowed to grow to about three metres, they will remain weak and be likely to break off.
He opined if the tree is properly pruned, it would be cut back to where a branch joined a branch of bigger diameter and the bigger branch would keep growing. He observed that the tree’s live branches looked sound.
He described signs of root damage to structures as uplift in walls and substantial and very conspicuous movement in structures. He had not seen any damage caused by the tree to the neighbouring house or to the applicant’s house. He reiterated that most often the cracking in ACT houses is generally due to expanding clay soils.
In cross examination, he said that if the foundations of a house were raised, then it would be likely caused by tree roots and the damage would be localised. He had seen the root proceeding parallel to the wall of the rear neighbour’s house and the nearby root proceeding towards the corner of that wall. He said that, given the size of each of those roots, if they were causing displacement he would expect to see displacement far greater than evidenced by the cracks in that wall. He had measured those cracks and they ranged in width from .07 millimetres to 4.5 millimetres.[11] He opined that this did not amount to ‘substantial’ damage.
[11] Dr Coyne’s Witness Statement, at Attachment 10
He had observed the damage to the roof of the applicant’s house at its north western corner and had looked for and not found stub evidence on the tree of a size that was adequate to cause that damage. He said that if a branch drops it leaves a stub or scar on the tree. He added that he did not know what had caused the roof damage.
Dr Coyne expressed the opinion that it was likely the tree had caused the blocked drain which Mr Palmer said he had experienced with one metre of the electric eel. However, he said that the blockage Mr Palmer experienced at five to ten metres from where he inserted the electric eel was more likely caused by the four trees to the north east of the applicant’s property, as these trees were closer to the rear neighbour’s kitchen.

He had looked at the drainage plans provided by the applicant and said that the liquid amber on the rear neighbour’s property looked close to the drains. In his opinion it was the likely cause of root invasion and blockage on that property. While he had not tried the smell test Mr Palmer described, he agreed with
Mr Palmer that the cypress roots would be red in colour. Dr Coyne said that otherwise it would be very difficult to determine by looking at the roots which tree’s roots had caused the blockage.
He also told the Tribunal that in relation to Mr Palmer’s evidence that he would need to dig up and replace drains encircled by roots, which would require cutting the roots, although he had not seen it done, it might be possible to install a new drain in the vicinity without cutting major roots. While cutting major roots might affect parts of the tree fed by those roots, it would not affect the structural stability of the tree as the roots are far away from the tree.
He told the Tribunal that he had successfully maintained his drains by using the maintenance regime referred to in his statement, namely, applying the mineral, copper sulphate, at a cost of about 20 cents a month into the highest inspection opening. He refuted Mr Palmer’s evidence that some tree’s roots were too big to use copper sulphate, adding that if an electric eel can get through those roots they are not too big for a copper sulphate application. He had not observed any remedial work having been carried out at the applicant’s property.
In relation to solar access, Dr Coyne referred to the attachments to his statement. He said the seven diagrams (attachment 1) showing various degrees of shading by percentages (namely 20%, 30%, 40%, 50%, 60%, 70% and 80%) of randomly distributed black squares in a grid. He then referred to the attached photographs and his calculations of the shadow direction and horizontal shadow length for a tree 13 metres tall in winter on 21 June (the winter solstice), 15 July and 31 August, at hourly intervals between 9 am and 3 pm. Dr Coyne stated that the photographs show about half the house clear of shadow at 9am on 21 June and by midday 25% shadow (or 75% sunshine) will fall on all of the house and that by 9am on 31 August, most of the house is clear of shadow.
He expressed the opinion that if the dead wood was removed, the shading effect would reduce from 25% to 20% (or 80% sunshine). He disagreed with
Mr Pickard’s evidence that removal of the dead wood from the tree would have no effect, suggesting that Mr Pickard may have been talking about something different, namely, removal from the perimeter of the tree.
When asked about the impact on the applicant’s solar access of pruning the tree, Dr Coyne said that the Australian Standard would allow pruning for sunlight which would allow another 4% to 5% of sunlight getting through, making about 84% sunlight getting through to the applicant’s house. He further opined that the photographs show about 84% already getting through to this house.
When asked the cost of removing the tree, the cost of removing the dead branches and the frequency of ongoing maintenance if the dead branches were removed, he said that he could only provide an informed guess of between $3,000 and $4,000 to remove the tree. His educated guess to remove the dead branches was about $1,000 and once the dead branches were removed, he said that the desirable time to remove further dead branches would be every five years, however, it would not be necessary to remove them that frequently. He also said that, if the current deadwood was removed, although subject to many variables, it could be another 30 years before an equivalent amount of deadwood accumulated in the tree.
Dr Coyne told the Tribunal that the applicant’s issue with leaves and twigs collecting in his gutter and the unsatisfactory leaf guards he had previously tried could be overcome by gluing aluminium fly gauze from the roof tiles to the overhang, even if the applicant installs solar panels on his roof. His experience of this installation was that the debris mostly blows off the gauze.
Dr Coyne concluded by stating that, in terms of tree protection, he could not see that removal of the tree was justified.

Consideration

This review has arisen from the applicant’s desire to install solar panels. The applicant acknowledged that the criteria for approval of tree damaging activity in the Determination do not include the installation of solar panels. The Determination provides that the Conservator may give approval to damage a protected tree if one or more of six nominated criteria is established and the Conservator is satisfied that all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective.
The applicant primarily relied on both criterion 1.1(c) – the tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service - and criterion 1.1(e) - the tree is substantially affecting solar access to the lessee’s lease, or neighbouring lease, during winter between the hours of 9 am to 3 pm - and pruning is not sufficient to remedy this; and, to a lesser extent, on criterion 1.1(b) – the tree represents an unacceptable risk to public or private safety.

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

For this criterion to be met, it is necessary for the Tribunal to be satisfied that:
(i)the tree is shown to be causing or threatening to cause substantial damage;
(ii)the damage is to a substantial building , structure or service; and
(iii)all other reasonable remedial treatments and risk measurements have been demonstrated to be ineffective.
If the Tribunal is not satisfied as to any of these elements, it cannot find that the criterion is met.
In Maleganeas v Conservator of Flora and Fauna[12] the former Administrative Appeals Tribunal of the ACT considered the interpretation of ‘substantial’, citing decisions of the Full Federal Court in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees Union and Others[13] and Commissioner for Superannuation v Scott[14], in which the Court considered the meaning of “substantial” and concluded that it meant large, weighty, considerable, solid or big and not trivial, minimal or nominal. This interpretation is helpful.
[12] [2007] ACTAAT 24, paragraph 34
[13] (1979) 27 ALR 367
[14] (1987) 71 ALR 408
The applicant submitted that the tree was causing or threatening to cause substantial damage to his neighbour’s house and his own house and to the stormwater and sewerage pipes on his block and on the neighbour’s block. It is not in dispute that the applicant’s house and the neighbouring house at the rear of the applicant’s block are substantial buildings and the Tribunal is satisfied that the drainage and sewerage system is a substantial service.
The applicant relied on:
(a) the tree overhanging the rear neighbour’s house as evidence that the tree was threatening to cause substantial damage to that house, and to a lesser extent, to the damage to his own roof tiles at the north western corner of his roof; and
(b)the tree’s roots near to the corner of the neighbouring house and running parallel with the wall of the neighbouring house and the cracks in that wall as evidence that the tree was threatening to cause substantial damage to that house; and
(c)the evidence he and his plumber, Mr Palmer, had given in relation to the drains being blocked by tree roots on many occasions and that the drainage pipes would need to be dug up and replaced sooner rather than later.
In relation to (a) in the previous paragraph, the Tribunal observed, at the inspection, that a substantial portion of the tree overhangs the rear neighbour’s house. The rear neighbour is not a party to this application. The applicant said that the property is tenanted and he had not seen the owner for about two years. The applicant expressed his concern that branches from the tree could fall onto the neighbour’s roof and damage that property.
Dr Coyne’s evidence was that this was unlikely as roof trusses are very strong and able to support shock; the lower branches were very healthy and located close to that roof; if a branch broke, it would mostly fall from where it was attached to the tree and the leafy branches would fall on the roof before the solid part of the branch. Dr Coyne’s evidence was that a falling branch or branches would not cause substantial damage to that property. His evidence was not challenged. The Tribunal accepts his evidence in relation to this issue.
The applicant told the Tribunal that he was not present when the roof tiles on the north western corner of his house had been damaged, and he did not know how the damage occurred. He had been told by Mr Mason that a number of large branches had fallen from the tree and were on his roof. The applicant believed that a branch from the tree may have caused this damage.
According to Dr Coyne, branches cannot fall without leaving evidence on the tree and one would expect to see broken stubs of large branches on the tree from where branches had fallen. He could not see any tree stubs in the location of the roof damage. The applicant did not identify, at the inspection, such a stub which could have supported his belief. The Tribunal noted that the applicant’s son had lopped several moderately sized branches which Dr Coyne said would have overhung the roof. It is possible that those branches may have caused the damage when they fell. The Tribunal is satisfied, considering all of the evidence, that it is inconclusive that the roof damage was attributable to the tree.
In relation to (b) in paragraph 94 above, the Tribunal also observed at the inspection, the tree root growing to the corner of the neighbouring house (as shown in the photographs in the applicant’s statement of facts and contentions); the tree root described by Dr Coyne as moderately large[15], growing parallel to the living room wall of that house (as shown in the two photographs at T91) and the cracks in the living room wall.
[15] Witness Statement, paragraph 21
In his Witness Statement, Dr Coyne provided two photographs of these cracks, on which he had recorded his measurements of the width of the cracks. The largest of the cracks measured 4.5 millimetres and the bulk of the cracks measured 2.6 millimetres or less. Dr Coyne’s unchallenged evidence was that the cracks were not wide enough to justify concern for the structural integrity of the wall. He described them as typical cracks normal in many Canberra houses almost certainly due to expansion and contraction of reactive clay in the soil as its water content changes.
Dr Coyne drew the Tribunal’s attention to the slope of the applicant’s block, the fact that the rear house was built across the slope of the land apparently without drainage being installed on the uphill side against the wall and that this would encourage water to accumulate against the wall above or below the ground surface. He opined[16], that this, together with runoff during and after rain, would almost certainly cause changes in the soil water content near the wall initially increasing water content followed by drying, and, consequently, causing the existing cracking.
[16] Witness Statement, paragraph 22
He gave evidence that the rear house had been built before the tree had become established and the tree’s roots have developed around the house footings rather than penetrating under them. He had looked for damage to the house which, if caused by tree roots, would be demonstrated by raising the area of the wall above the causative root and said no such lifting was apparent. As he believed that the rear house and the tree had co-existed for about 40 years, he opined that there would already be considerable damage if the roots had penetrated under the footings. He had not seen evidence of such damage and said he believed that the roots must not underlie the footings.
The Tribunal noted Dr Coyne’s extensive and relevant experience as set out in his Curriculum Vitae and accepted his evidence. It was not challenged. It follows that the Tribunal is not satisfied that the tree’s roots are causing or threatening to cause substantial damage to the rear house.
In relation to (c) in paragraph 94 above, the Tribunal noted Mr Palmer’s evidence of the frequency and causes for his visits to the applicant’s property, and the adjoining rear property. While he had clearly stated in his Witness Statement that the blockages had been caused by the subject tree’s roots, he conceded, even using the smell test, he could not identify the particular tree or roots causing the blockages. He readily acknowledged the presence of an English elm and three Conifer (or Cypress) trees on the north east boundary, a liquid amber on the rear neighbour’s block as well as the Chinese elm the subject of this application, and admitted that he could not conclusively identify one single tree as causing the damage. Considering his evidence at its highest, it appeared that he thought the Chinese elm might be the primary suspect but agreed that any of the other trees could have caused the damage.
Mr Palmer also told the Tribunal that the rear neighbour’s kitchen floor had had to be pulled up to enable him to clear a blocked drain; however, he also conceded that, given the length of the electric eel used to unblock that drain, the location of the English elm and the cypress trees and of the kitchen, the English elm and the cypress trees might be equally responsible for that blockage. Dr Coyne had noted at the inspection that the kitchen was located between the canopies of both the English elm and the subject tree.
Having considered all of the available evidence, the Tribunal cannot be satisfied that the subject tree’s roots were the cause of the blockages.
Mr Palmer said that, sooner rather than later, the drains would need to be dug up and replaced due to tree roots encircling and dislocating the pipes. However, evidence was also given by Mr Palmer and Dr Coyne that chemicals could be applied to the drains for ongoing maintenance. Mr Palmer did not apply the chemicals himself; rather he recommended to his clients that they do that. Dr Coyne had, for the last 10 years, successfully and cheaply prevented root reinvasion of the sewerage pipes on his own property by applying a small amount of copper sulphate monthly. It was not until the final submissions that Ms Purcell told the Tribunal that the applicant had used copper sulphate. No further information was provided. The Tribunal had no reason not to accept Dr Coyne’s evidence in relation to the beneficial effect of using copper sulphate monthly.
It follows that the Tribunal cannot be satisfied from the evidence that the future threat of damage to the sewerage structure cannot be ameliorated by implementing Dr Coyne’s root reinvasion treatment and applying it monthly.
The Tribunal concluded that criterion 1.1(c) has not been met.

Criterion 1(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.

In order for the applicant to satisfy this criterion the Tribunal needs to be able to find from the evidence that the tree is substantially affecting the solar access to the applicant’s lease, not just to the applicant’s house or part of his house. This requires the Tribunal to consider the evidence of solar access to the whole of the perimeter of that lease during winter between the hours of 9 am and 3 pm as well as considering whether pruning could remedy any substantial lack of solar access. The Tribunal is also required to consider whether all other reasonable remedial treatments and risk measurements have been demonstrated to be ineffective.
If the Tribunal is not satisfied as to any of these elements, it cannot find that the criterion is met and that it is appropriate to remove the tree.
The applicant relied on the evidence of Mr Pickard and Mr Mason in relation to this criterion. Neither witness had expertise in tree management. Mr Pickard’s experience appeared to be limited to the energy efficiency of premises. He conceded that other factors pertinent to the applicant’s house, including its siting and orientation on the block and the four trees to the north east of the block have an impact on energy efficiency and solar access to the property.
Mr Pickard said he made his observations by standing at a north window. He estimated 50% to 70 % reduction in sunlight during winter. He did not provide a credible basis or his reasoning for his estimate. He unreasonably refuted the proposition that the removal of the dead branches, which the Tribunal is satisfied amounted to 20% of the tree’s crown, would increase light penetration. He did, however, concede that there were periods between 9am and 3pm in winter when there was no shading at all, and when there was shade it was not a constant impervious state of shade.
Mr Mason said in his statement that the northern aspect of the roof is 80% shaded due to some large trees overhanging the applicant’s premises. However, while the Tribunal was satisfied that Mr Mason was doing his best to assist the applicant, his inability to recall when he had seen the tree and his estimate of 80% shade coverage for a deciduous tree did not assist the Tribunal determine, as the criterion requires, the effect of solar access during winter.
Dr Coyne’s qualifications and experience in tree management are set out in paragraph 63 above. He had calculated[17] the shadow direction and horizontal shadow length for a tree 13 metres tall in winter and, based on this, had estimated the winter shading to the house at 25%. He also said if the dead wood was removed from the tree the shading in winter would be less than 25% and if the tree was pruned in accordance with the Australian Standard, this would further decrease the amount of shade during the relevant period.
[17] Witness Statement, Attachment 6
Where the evidence of the applicant’s witnesses and the respondent’s witnesses differed, the Tribunal preferred Dr Coyne’s evidence given his qualifications and his methodology and reasoning for determining the affect of solar access on the applicant’s lease during the relevant period. The Tribunal accepts his evidence. The Tribunal is not satisfied that 25% shade is substantial, as required by this criterion. The Tribunal notes that this 25% figure will be less when the dead wood has been removed and pruning has been attended to.
The applicant said, while he saw himself as the guardian of the tree for the last 30 or so years, apart from his son previously undertaking some minor lopping of some of the tree’s branches near to the house, the tree has not been pruned and the dead wood has not been removed. Dr Coyne’s evidence, which the Tribunal accepted, was that if the tree was pruned it would enhance solar access in winter and if the dead wood was removed, while also enhancing the winter solar access, it would remove the risk of potential damage from falling branches.
In this regard, the Tribunal noted that in the letters to the applicant accompanying the first decision and accompanying the reconsidered decision the respondent recommended selective pruning, which if carried out in accordance with the Australian Standard does not require approval and the removal of deadwood.
The Tribunal is not satisfied that any of the elements of this criterion have been; therefore criterion 1.1(e) has not been met.

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

For this criterion to be met it is necessary to demonstrate that there is a risk to public or private safety, that the risk is unacceptable and that all reasonable remedial treatments have been determined to be ineffective.

The applicant expressed his concern that his grandchildren’s safety may be at risk from falling branches. Mr Mason said he had found a number of large branches on the roof space which had fallen from the tree and he described this as a safety concern. Dr Coyne’s evidence, based on his experience, was that the living structure of the tree was sound and does not present a safety risk. He also said that the risk of a falling branch hitting anyone is extremely low.
The Tribunal observed the amount of deadwood in the tree’s canopy and accepted Dr Coyne’s estimate that it amounted to 20% of the canopy and had accumulated over the lifetime of the tree. The applicant said he had not maintained the tree for about 10 years. The Tribunal is satisfied that to the extent that there is any risk, the risk has arisen from the fact that the deadwood has been allowed to accumulate rather than being removed as it should have been as part of normal tree management.
No remedial action has been undertaken. The applicant said he had not done this as he was not confident it will address the issues. However, this leaves the Tribunal with only the evidence from Dr Coyne that reasonable pruning and the removal of dead wood would be effective.
The Tribunal is not satisfied that any of the elements of this criterion have been; therefore criterion 1.1(b) has not been met.

Conclusion

As required by section 25 of the Tree Act, the Tribunal has considered all of the evidence in relation to the approval criteria, the TAP advice and the parties’ contentions. Taking all these matters into account the Tribunal concluded that the Conservator’s decision should be confirmed.

………………………………..
Ms E. Symons - Presidential Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A

FILE NUMBER:

PARTIES, APPLICANT:

PARTIES, RESPONDENT:

COUNSEL APPEARING, APPLICANT

COUNSEL APPEARING, RESPONDENT

SOLICITORS FOR APPLICANT

SOLICITORS FOR RESPONDENT

TRIBUNAL MEMBERS:

DATES OF HEARING:

PLACE OF HEARING:

PART B

RECOMMENDATION:

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

COMMENTS: