MALEGANEAS AND CONSERVATOR OF FLORA & FAUNA
[2007] ACTAAT 24
•15 November 2007
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:MALEGANEAS AND CONSERVATOR OF FLORA & FAUNA [2007] ACTAAT 24 (15 NOVEMBER 2007)
AT07/37
Catchwords: Tree protection – review of reconsidered decision to refuse approval to remove a regulated tree – tree roots causing damage to driveway – whether relevant approval criteria in Determination has been met.
Administrative Appeals Tribunal Act 1989, s 24
Districts Act 2002
Tree Protection Act 2005, ss 3, 7, 8, 10, 12, 15, 19, 21, 25, 68, 105, 106, 107, 119
Commissioner for Superannuation v Scott (1987) 71 ALR 408
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union and Others (1980) 27 ALR 367
Tribunal:Ms S Tongue, Senior Member
Dr D McMichael, Senior Member
Mr J Ashe, Member
Date:15 November 2007
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/37
LAND AND PLANNING DIVISION )
RE: STEVEN MALEGANEAS
ApplicantAND: CONSERVATOR OF FLORA
AND FAUNA
Respondent
DECISION
Tribunal : Ms S Tongue, Senior Member
Dr D McMichael, Senior Member
Mr J Ashe, Member
Date : 15 November 2007
Decision : The decision under review is affirmed.
………………………….
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/37
LAND AND PLANNING DIVISION )
RE: STEVEN MALEGANEAS
ApplicantAND: CONSERVATOR OF FLORA
AND FAUNA
Respondent
REASONS FOR DECISION
15 November 2007 Ms S Tongue, Senior Member
Dr D McMichael, Senior Member
Mr J Ashe, Member
The application
This is an application to the Tribunal for review of a reconsidered decision by the Conservator of Flora and Fauna (“the Conservator” and “the respondent”) made on 18 July 2007 to refuse approval for the removal of a regulated tree under section 106 of the Tree Protection Act 2005 (“the Tree Act”).
2. The tree is a Fraxinus oxycarpa, commonly known as a Desert Ash (“the subject tree”). It is located on a residential block at Block 2, Section 89, Narrabundah with a street address of 31 Jerrabomberra Avenue, Narrabundah (“the land”). Mr Steven Maleganeas (“the applicant”) is the lessee of that block and has applied for review under section 107(1)(f) of the Tree Act, of the reconsidered decision made by the respondent.
3. The respondent initially refused the application on the grounds that the tree was a “regulated tree” within the meaning of that term in section 10 of the Tree Act and that none of the Criteria for removal of a regulated tree (“the Criteria”) set out in the Tree Protection (Approval Criteria) Determination 2006 (No 2), Disallowable Instrument DI 2006-60, made under section 12 of the Tree Act, had been satisfied.
4. Section 105 of the Tree Act provides that the applicant may seek reconsideration of the decision and the applicant sought such reconsideration on 5 July 2007. On 18 July 2007, a Tree Advisory Panel convened pursuant to Part 13 of the Act recommended that the application for reconsideration should be rejected and on 18 July 2007 the respondent decided to confirm the original decision.
Tribunal’s jurisdiction
5. The Administrative Appeals Tribunal Act 1989 (“the AAT Act”) at section 24 gives the Tribunal power to review decisions made in the exercise of powers given by an enactment. Section 107 of the Tree Act provides for review by the Tribunal of a decision of the Conservator which is a decision made under section 106 of the Tree Act following reconsideration of a decision originally made under section 25 of the Tree Act.
Applicable law
6. The object of the Tree Act is, among other things: 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 (section 3(1)(a)); to promote the incorporation of the value of trees and their protection requirements into the design and planning of development (section 3(1)(e)); and 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 (section 3(1)(f)).
7. The Tree Act applies to trees on built-up urban areas as declared by the Minister (section 7). Schedule 1 Part 1 of the Tree Protection (Built-Up Urban Areas) Declaration 2006 (No.1) Notifiable Instrument 12007-246, declares that Narrabundah is a built-up urban area.
8. Section 8 of the Tree Act defines a “protected tree” to include a “regulated tree” and section 10 defines a “regulated tree” as a living tree on leased land within a “tree management precinct” which is not a registered tree or palm tree, 12 metres or more high, or with a trunk with a circumference of 1.5m or more, 1 m above natural ground level, or has 2 or more trunks 1m above natural ground level with a total circumference 1.5 m or more or has a canopy 12m or more wide. Pursuant to section 119 of the Tree Act the built-up urban area in each district under the Districts Act2002 is taken to be a "tree management precinct" on the commencement of the Act (29 March 2006) pending areas being declared under Part 5 of the Act. Sections 15 and 19 of the Tree Act make it an offence to damage a protected tree without approval.
9. Removing a regulated tree obviously involves tree damage and an application must be made to undertake such work. Section 25(3) of the Tree Act sets out the matters to which the Conservator must have regard when making a decision on an application, including:
(a) the approval criteria; and
(b) the advice (if any) of the advisory panel; and
(c) anything else the Conservator considers relevant.
10. Section 21 of the Tree Act provides for the Minister to determine Criteria to be applied for approving activity. On 4 April 2006 the Minister for the Environment determined Tree Protection (Approval Criteria) Determination (No.2) for the purposes of section 21. The relevant Criteria in this case are in criterion 1(1):
(1)The Conservator of Flora and Fauna (the Conservator) may give an approval under section 25 (which may be subject to conditions) 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 would allow other trees to develop; and
all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective.
11. The Criteria also provide that:
(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.
12. The Tribunal notes that the Desert Ash is not listed in Schedule 3 of the Criteria Determination.
Agreed facts
13. In support of his application, the applicant provided written reports, including photographs, from two experts who also gave oral evidence. They were Mr John Dossetor of Lewis and Associates, Engineers and Mr Alan Mann from Canopy Tree Experts. Mr Dossetor is a Member of the Institution of Engineers Australia and a Certified Practising Engineer. Mr Mann has a Bachelor of Agricultural Science degree, Certificates in Horticulture and Arboriculture and 1 year’s experience as a consulting arborist. The respondent provided a written report from Mr Anthony Fearnside who holds Bachelors degree in Forestry and a Masters degree in Forest Management and has had an extensive career in forestry. He has been a consultant forester since 1989 and is a member of the Tree Advisory Panel established under section 68 of the Tree Act. Mr Fearnside also gave oral evidence.
14. The photographs provided to the Tribunal were of the subject tree, of damage to the driveway of the land, and of cracks in the brickwork of the house on the adjacent block (Block 2 Section 89 Narrabundah) belonging to Mr and Mrs R Mayo. The Tribunal also conducted a site inspection.
15. Several facts were agreed. The tree was planted approximately 47 years ago. It was provided to the lessees of the property at the time as part of the free plant issue scheme from the government nursery at Yarralumla. It is now 12.9 metres high with a girth of 2.9 metres and a spread of 15 metres. It is a mature tree and is expected to have minimum growth in coming years. It is a significant tree in the area and appears to be in good condition. Mr Fearnside describes it a “very good example” of a Desert Ash.
16. It was agreed that severe damage has been done to two concrete driveway strips on the applicant’s property by the subject tree’s roots. The driveway strips cannot now be used by an ordinary vehicle. It was agreed that unless action is taken further damage could be expected.
17. It was agreed that there is damage to the corner of the Mayo’s house. It was agreed that the foundations of the Mayo’s house sit in reactive clay soils that have been subjected to variations in moisture content, which can cause differential settlement of the footings. This can cause cracking in brickwork, as is evident in the brickwork of the extension constructed at the front of the Mayo’s house. There was no agreement among the experts about the extent to which the settlement of the soils caused by moisture loss leading to the brick cracking, was caused by the subject tree. This is discussed further below.
18. It was agreed that a wisteria vine grows on the boundary fence between the subject tree and the Mayo’s house and that it could also contribute to the cracking in the Mayo’s house.
19. It was agreed that the tree, which is located on the northeast corner of the block, could have been more appropriately located further into the block.
20. It was agreed that the insertion of properly installed root barriers, while not guaranteed to prevent further root penetration, was a remedial measure that could be undertaken. Both Mr Fearnside and Mr Mann said that while the success of this measure could not be guaranteed, it had at least a 50 percent chance of success in isolating the impact of the tree. Root pruning is another available remedial measure.
The applicant’s evidence and contentions
21. The applicant, who was unrepresented before the Tribunal, presented evidence and submissions in support of his argument that the tree should be removed because, he claimed, it had caused the damage to the driveway strips on the land and to the neighbouring house. He also contended that it could pose a risk to users of the back garden of the land or to passing pedestrians and that it affects solar access to the land.
22. The respondent submitted as part of his statement of facts and contentions copies of sketch plans for a dual occupancy proposal for the block for which the applicant had gained approval on 29 September 2006. The applicant explained that he had had this plan prepared on advice that it might be one way of obtaining approval for the removal of the tree. However, the approval required him to submit a landscape plan retaining the subject tree. At present, it was not his intention to proceed with the dual occupancy proposal but rather to renovate and possibly extend the existing house, and to make use of the existing garage. To do this, he required a usable driveway.
23. In support of his contentions he provided two reports, including photographs and called three witnesses, Mr Mann, Mr Dossetor and Mr Mayo, who gave oral evidence about the impact of the tree.
24. Mr Dossetor said that, in his opinion, the differential settlement of the footings of the Mayo’s house which resulted in the cracking of the brickwork was mainly due to the roots of the tree and that further movement and damage could be expected, as the tree’s roots will continue to seek moisture. Remedial actions would include removing the tree or isolating its effects by severe pruning to reduce the canopy cutting the roots which traverse to the eastern side.
25. Mr Mann provided two reports. The first concerned the condition of the tree. He said while the tree was structurally stable at present, because of two fairly acute-angled forks it might develop weakness in the future and become dangerous. If the tree is retained, he considered that the soil in the fork should be removed, that pruning should occur and the tree should be examined periodically. The second concerned the relationship between the tree and the driveway. He said that, in his opinion, the driveway should be moved at least 7 metres to the west of the tree, but that constructing a driveway there would still require a permit as it would involve excavation within 2 metres of the canopy. To make the driveway usable in its present location, some sort of bridging over the root flare would be needed, possibly by the gradual building up of layers of suitably designed structured soil. Cutting the roots of the tree near to the trunk would probably kill the tree. Any major root pruning should not be closer to the trunk than 4-5 metres.
26. Mr Mayo gave evidence of his concern about the cracking of brickwork in his house which he attributed to the spreading roots of the tree and said that he was not confident that a root barrier would resolve the problem. He added that the water supply pipes to his house had been broken on more than one occasion and he had been told by ACTEW workers that this was caused by the tree’s roots.
27. The applicant drew attention to the shade created by the tree when it flowers in mid-winter, as evidenced by a photograph, and noted that this species is described as retaining its flowers longer than other species of Fraxinus, thus contributing to the loss of winter sunlight. He also noted the shade cast by the tree during the site inspection which occurred at midday in October.
The respondent’s evidence and contentions
28. Mr G McCarthy, of counsel, appearing before the Tribunal on behalf of the respondent, provided evidence and submissions in support of the respondent’s argument that none of the Criteria for removal of a significant tree had been met and the application should be refused. Two witnesses gave oral evidence: Mr Fearnside, whose written report was also before the Tribunal; and Mr Marc Edwards from the Department of Territory and Municipal Services who is an expert in driveway standards and construction.
29. The respondent provided the initial tree assessment report dated 24 May 2007 in which, on a rising scale of one to ten, the tree was rated at nine in value to the landscape. Mr Fearnside inspected the tree on 10 July 2007 and submitted to the Tree Advisory Panel his reasons why he thought the panel should agree with the first decision not to approve removal of the tree. The Panel unanimously agreed with Mr Fearnside’s recommendation.
30. In his written report Mr Fearnside set out in detail his assessment of the tree against the Criteria and in oral evidence reiterated his view that the tree was not causing substantial damage to a substantial structure. In his opinion, the damage to the Mayo’s house was the result of soil water loss, which could be caused by a range of factors, including the tree’s roots. However, he considered these could be controlled by the placement of a root barrier near the property boundary, which he estimated had a more than 50% likelihood of success. He agreed that it would have been better planted some 10m further into the lease, but did not concede that the degree of shadowing represented substantial interference with solar access (Criterion (e)) which, in his opinion, referred to solar access to dwelling houses.
31. Mr Edwards gave oral evidence about the type of driveway that could be constructed while maintaining the subject tree. He proposed a driveway with a minor deviation or skew around the tree and into the garage. While it would not be straight it would not be excessively difficult to negotiate and in his opinion would not cause additional safety concerns. Mr Edwards also proposed raising the driveway from its present position by the addition of 50 to 300 mm of fill to accommodate the tree roots, and surfacing the driveway with asphaltic concrete or pavers. In his written report he had recommended a reinforced concrete driveway, but on further consideration he felt that flexible materials were better, as they could more readily be removed and replaced to allow remedial work should the roots continue to grow.
32. The respondent contended, among other things, that any difficulty the tree may present to the applicant regarding his approved proposal to build two new dwellings is not a reason for determining that the location of the tree is inappropriate. He submitted that the tree is not in decline, its branches appear to be sound and there is no evidence of risk to safety from the tree.
33. The respondent argues that the crack in the wall of the Mayo’s house is not likely to have been caused by the tree. The respondent further argued that even if Criteria (c) and (d) were satisfied the Tribunal should not exercise the discretion in favour of removal.
34. Mr McCarthy provided assistance to the Tribunal in interpreting the words “substantial” used in the Criterion. He provided dictionary definitions and cited decisions of the Full Federal Court including Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union and Others (1980) 27 ALR 367 and Commissioner for Superannuation v Scott (1987) 71 ALR 408 in which the Court considered the meaning of the word “substantial” and concluded that it meant large, weighty, considerable, solid or big and not trivial, minimal or nominal.
Consideration of issues
35. The Tribunal is bound to deal with this application in the same manner as was the Conservator, that is, under section 106 of the Tree Act it may approve an activity to which an application for reconsideration relates only if satisfied, after receiving the advice of the Tree Advisory Panel established under Part 9 of the Tree Act, and after reconsidering the original or first decision in the light of that advice. The first decision, made under section 25 (3) of the Tree Act, required the Conservator to have regard to the criteria for approval determined under section 12 and only after having regard to any advice from the advisory panel in relation to the application. Our consideration of the evidence in relation to each of the relevant criteria follows.
Criterion 1(a): The tree is in decline and its life expectancy is short.
36. There was agreement among the experts who gave evidence that this Criterion was not met. While there is some evidence of soil in one fork of the tree in which there has been some plant growth, it was agreed that this could be removed with the application of air or water. There was no evidence to suggest that the tree is in decline or that its life expectancy is short. Consequently we find that Criterion 1(a) has not been met.
Criterion 1(b): The tree represents an unacceptable risk to public or private safety.
37. The applicant argued that there is some risk of the tree affecting public safety because it has caused lifting of the driveway and school children pass by on their way to adjacent schools. However, there was no evidence that passers-by walked near the broken concrete nor that the tree was likely to drop limbs overhanging the verge. The concrete driveway strips are not substantial structures and could easily be removed to minimise any risk, either to the lessees of the land or to passers-by. We therefore find that, although there may be some element of risk to public or private safety arising from the present condition of the path, there are reasonable remedial treatments or measures available to the applicant to eliminate that risk or to reduce it to an acceptable level. We also note that it is open to the applicant to prune the tree should signs of weakness develop in the future, indicating a risk of branch failure. The Tribunal finds that the tree does not represent an unacceptable risk to public or private safety from falling branches. We therefore conclude that Criterion 1(b) has not been met.
Criterion 1(c): the tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service.
38. For this Criterion to be met it is necessary to demonstrate that the tree is causing, or threatening to cause substantial damage to a substantial building, structure or service and that all other reasonable remedial treatments and measures have been determined to be ineffective. The Tribunal has considered these requirements in relation to the driveway and the Mayo’s house next door.
39. It is incontrovertible that the Mayo’s house is a substantial building. The damage to the house consists of cracks in the brickwork at the front of the house. The evidence in relation to the cause of the cracking is equivocal. Experts for both the applicant and the respondent said that the cracking is caused by the foundations resting on clay soils and that the shrinkage of the soils causing the cracks could be due to the tree’s roots. However, there are other possible causes.
40. The Tribunal must apply the words of the Criterion “causing or threatening to cause substantial damage”. The Tribunal applies the civil standard of proof, that is, the balance of probabilities and cannot conclude that it is more probable than not that the tree caused the damage. In any event, if the tree did cause the damage, the Tribunal also finds that the damage is not “substantial”. It consists of minor cracks that a reasonable person would not characterise as “substantial”. The Tribunal also finds that it is not threatening to cause substantial damage. Whether it might, in the future, develop into substantial damage or threaten to cause such damage is not the question. Furthermore, the insertion of properly designed and located root barriers is a reasonable remedial treatment that would need to be tried before it could be concluded that it was ineffective. Consequently, we conclude that Criterion 1(c) has not been met.
Criterion 1(d): the location of the tree is inappropriate given its potential size and growth habit (excluding remnant eucalypts)
41. The fact that the tree in its present position shades the back yard of the land does not constitute evidence that the location of the tree is inappropriate. On the contrary, many lessees would welcome the shade provided by the tree during the warmer months. Nor is the tree’s location adjacent to the driveway necessarily inappropriate, given the evidence of the potential to construct a slightly repositioned driveway at a reasonable cost allowing reasonable access. Consequently the Tribunal finds that that Criterion 1(d) has not been met.
Criterion 1(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)
42. There is clearly some effect on solar access to the lease from the tree, but we would not describe it as substantial. In any case pruning of the tree is possible and this could alleviate its impact. Consequently we do not find that Criterion 1(e) has been met.
Criterion 1(f): the tree is causing an allergic reaction to an occupant of the lease, or neighbouring lease, and the claim can be supported by certification from a relevant medical specialist
43. There was no evidence of the tree causing an allergic reaction. We find therefore that Criterion 1(e) has not been met.
Criterion 1(g): where the tree is part of a close planting of a number of trees, the removal of the tree would allow other trees to develop
44. The tree is not part of a close planting. We find therefore that Criterion 1(g) has not been met.
45. Since none of the Criteria are met it is unnecessary to consider whether other remedial work is necessary. We also note that the Tree Advisory Panel unanimously advised that the application for reconsideration should not be approved.
Conclusion
46. The subject tree is a fine example of a Desert Ash and the legislature, on behalf of the people of the ACT, has made clear its intention that such trees are to be protected unless certain conditions apply. We have considered the application for review against all the relevant Criteria set down in the Minister's Determination and find that the application does not meet any of them. We are obliged therefore to conclude that none of the conditions for removal have been satisfied. Even if they had been met, it is necessary to show that all other remedial treatments and measures have been determined to be ineffective and that is not the case here.
47. The Tribunal’s jurisdiction only extends to reviewing the decision on the application to remove the tree. It is not empowered to make any order in relation to any other work (such as groundwork) in relation to the subject tree. The legislation requires the applicant to make a fresh application if he wishes to undertake the groundwork necessary for construction of a relocated driveway and the installation of root barriers, both of which would involve damage to some of the roots of the tree. The Tribunal notes the advice of the respondent’s witness Mr Edwards about the means by which a new driveway could be constructed and urges the primary decision-maker to look favourably upon any application to undertake such work, to allow the applicant to utilise his lease efficiently.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT07/37
APPLICANT: STEVEN MALEGANEAS
RESPONDENT: CONSERVATOR OF FLORA & FAUNA
PARTIES JOINED: N/A
COUNSEL APPEARING: APPLICANT: N/A
RESPONDENT: MR G MCCARTHY
PARTIES JOINED:
SOLICITORS: APPLICANT:
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTIES JOINED:
OTHER:APPLICANT: SELF
RESPONDENT:
PARTIES JOINED:
TRIBUNAL MEMBER/S: MS S TONGUE, SENIOR MEMBER
DR D MCMICHAEL, SENIOR MEMBER
MR J ASHE, MEMBER
DATE/S OF HEARING: 17-18 OCTOBER 2007 PLACE: CANBERRA
DATE OF DECISION: 15 NOVEMBER 2007 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
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2
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