Moss v Conservator Of Flora And Fauna; (Administrative Review)
[2016] ACAT 1
•11 January 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MOSS v CONSERVATOR OF FLORA AND FAUNA
(Administrative Review) [2016] ACAT 1
AT 15/61
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 – whether the tree should be removed to allow others to develop – consideration of each criterion: no criterion met – whether block is of small size and there are grounds for exercise of discretion to remove a problematic tree: retention preferable
Legislation cited: Tree Protection Act 2005, ss 21, 25, 107, 107B
Subordinate
legislation: Tree Protection (Approval Criteria) Determination 2006 (No 2) (DI 2006-60), Schedule 1, criterion 1, paragraphs 1 & 2
Australian Standard 4373
Cases cited: Maciejewski v Conservator of Flora and Fauna [2013] ACAT 78
Sharma v Conservator of Flora and Fauna [2014] ACAT 20
Tribunal: Senior Member A Davey
Date of Orders: 11 January 2016
Date of Reasons for Decision: 11 January 2016
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL AT 15/61
BETWEEN: ADRIAN MOSS
Applicant
AND:CONSERVATOR OF FLORA AND FAUNA
Respondent
TRIBUNAL: Senior Member A Davey
DATE:11 January 2016
ORDER
The Tribunal orders that:
1. The decision under review is confirmed.
………………………………..
General President L Crebbin
for and on behalf of
Senior Member A Davey
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 6 August 2015 to refuse approval for the removal of a regulated tree located on blocks 2 and 3 section 16, Reid 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 2 section 16 Reid, also known as 20 Allambee Street. On 30 May 2015, the applicant applied to the respondent for approval to damage the tree by removing it. The tree is a large Eucalyptus globulus, commonly known as Tasmanian Blue Gum (‘the tree’), located near the street frontage of the blocks, across the boundary between blocks 2 and 3. The reasons cited in the application were that the tree represents an unacceptable risk to public and private safety, could cause damage to buildings, was in an inappropriate location given the size and growth habit of the species, and that the tree is a schedule 2 species located on a block smaller in area than 1200m2.[1]
[1] T documents pages 61-64
On 12 June 2015, a tree assessment report was prepared after inspection of the site. The report found the tree is in excellent health, with good structure and recorded that no evidence of structural house damage could be seen. The report concluded that the tree 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.[2]
[2] T documents pages 65-70
Blocks 2 & 3 section 16 Reid and therefore the tree, are within the Reid Housing Precinct entered in the ACT Heritage Register. The application for removal of the tree was referred to the ACT Heritage Council. On 1 July 2015 the Council advised that the removal of the tree would impact on the landscape significance of the precinct and that removal of the tree was opposed by the Council.[3]
[3] T documents page 71
On 2 July 2015, a delegate of the respondent refused the initial application under section 25 of the Tree Protection Act on the grounds that it was not 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) were satisfied.
On 13 July 2015, the applicant submitted an application for reconsideration of the decision, on the same grounds as before, adding that it was necessary to remove the tree to allow others to develop. This application attached a report from an engineer dated April 2015.[4]
[4] T documents pages 75-98
Dr Peter Coyne conducted an inspection of the tree and prepared a report dated 29 July 2015 for the Tree Advisory Panel (‘TAP’).[5] This report confirmed the view that the tree does not meet any of the criteria for approval to remove it. The report noted that the ‘April 2015 Engineer’s report concerning redevelopment does not attribute problems to the tree’.
[5] T documents page 99
At a TAP meeting on 30 July 2015 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 minutes of the meeting recorded that the panel noted that “this tree does not have the tight branch unions and bark inclusion which is common in the species and is believed to be the reason the species is on schedule 2”[6].
[6] T documents page 107-108
The respondent then made a reconsidered decision, dated 6 August 2015, to uphold the original refusal.[7]
[7] T documents page 111
On 2 September 2015, the applicant applied to the Tribunal for review of the respondent’s reconsidered decision. Directions were made to prepare the matter for hearing, including a direction that required the respondent to send a copy of the application to any person who was an ‘interested entity’ for the matter and a direction that required that any person who wished to be joined as a party, make an application for that purpose within a particular time frame. No one sought to be joined as a party.
The hearing
Mr Adrian Moss represented himself. He gave evidence but did not provide a statement from any other witness, or call any other witness to give oral evidence. Mr Peter Woulfe, of counsel, represented the respondent, instructed by Mr James Kwan from the ACT Government Solicitor. Mr Richard Hart gave evidence for the respondent. No one applied to be joined as a party.
The hearing on 1 December 2015 commenced with a site inspection. The Tribunal’s attention was drawn to the tree’s location in relation to the buildings on blocks 2 and 3, and to building cracking and drainage issues. Among the participants at the site inspection, presumably at the invitation of the applicant, were the owners of block 3, also known as number 22 Allambee Street. Informally, it was reasonably evident that they supported the application. However, the application was submitted by the owner of block 2, without the owners of block 3 applying to become parties, so the issues considered by the Tribunal are confined to those relating to block 2. The hearing continued at the Tribunal’s premises later the same morning. At the conclusion of the hearing the Tribunal reserved the 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 for 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 paragraphs 1-3 of Criterion 1 of Schedule 1:
(1)The Conservator of Flora and Fauna (the Conservator) may give an approval to damage a regulated tree under section 25 when:
(a) the tree is in decline and its life expectancy is short; or
(b) the tree represents an unacceptable risk to public or private safety; or
(c) the tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service; or
(d) the location of the tree is inappropriate given its potential size and growth habit (excluding remnant eucalypts); or
(e) the tree is substantially affecting solar access to the lessees lease, or neighbouring lease, during winter between the hours of 9am to 3pm and pruning is not sufficient to remedy this (excluding remnant eucalypts); or
(f) the tree is causing an allergic reaction to an occupant of the lease, or neighbouring lease, and the claim can be supported by certification from a relevant medical specialist; or
(g) where the tree is part of a close planting of a number of trees, the removal of the tree will allow the other trees to develop; and
all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective.
(2)The Conservator may also give an approval under section 25 of the Tree Protection Act 2005 to remove a tree if the tree is located on a block of less than or equal to 1200m2 and is a species listed in Schedule 2.
(3)When deciding whether the criteria in paragraph 1 are met, the Conservator may consider:
(a) any exceptional circumstances that have been raised by the applicant, taking into account advice from the Tree Advisory Panel;
(b) the importance of the tree in the surrounding landscape; and
(c) if the tree is a species listed on schedule 3, whether the tree has ecological importance to the local environment.
Issues
The issues for determination are:
(a)whether any of the criteria in paragraph 1 of criterion 1, schedule 1, of the Determination are satisfied (taking into account paragraph 3, as applicable); and
(b)if so, whether the second condition of paragraph 1 (relating to whether all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective) has also been satisfied; or
(c)in the alternative to the two tests of paragraph 1 having been met, whether the conditions of paragraph 2 have been met and there are sufficient grounds for the Conservator to exercise discretion under paragraph 2 to give approval.
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 Eucalyptus globulus, commonly known as Tasmanian Blue Gum, which is listed as a problematic species in schedule 2 of Tree Protection (Approval Criteria) Determination (No.2) (the Determination). It is accepted that the house on block 2 and its ancillary services are substantial for the purposes of the criteria.
The applicant’s evidence and contentions
Mr Moss sought review of the decision on paragraph 1 criteria (b), (c), (d) and (g), with respect to public safety and damage to services, and claimed the tree was an inappropriate species given the growth attributes of the species, and that it affected other trees because of competition from the tree for water and nutrients, and chemical effects.
The applicant provided extensive general background material relating to the species, and a draft engineering report relating to foundation conditions of the house on block 2. He conceded that he was not himself qualified in forestry or arboriculture, and had not sought relevant professional advice, either about the tree or about possible measures that might be taken to mitigate any impacts from it.
In his original application for review of the decision, Mr Moss also sought an award of costs, though his statement of fact and contentions was silent on the issue. At the hearing he indicated he would not press this matter.
The respondent’s evidence and contentions
The respondent relied on the statement of, and oral evidence from, Mr Richard Hart, to the effect that the tree was structurally sound and in good health, that if properly maintained to normal standards it did not present an unacceptable risk to public or private safety, that it did not threaten or cause substantial damage to services or structures, and was appropriately located.
Mr Hart is a member of the Tree Advisory Panel, has professional qualifications in forestry and extensive industry experience in forestry and aboriculture. He tendered a detailed written statement and gave evidence in which he concluded the application did not meet any of the criteria, including under paragraph 1 (b), (c), (d) or (g), or 2.
Mr Hart expressed the opinion that only minor periodic work under Australian Standard 4373 “Pruning of amenity trees” to remove dead wood would be required to mitigate any significant safety hazard, and that such work was well within the normal maintenance a lessee should expect in Canberra.
Mr Hart’s opinion was that cracking evident in the building on block 2 was not consistent with having been caused by roots from the tree, and was most likely a result of other factors. Even if the damage was actually caused by the tree, there were reasonable measures such as installation of a root barrier that in his opinion would mitigate any such damage without compromising the integrity of the tree.
Mr Hart also expressed the view that the tree was an unusually magnificent specimen, in very sound condition, lacking the undesirable attributes that were often associated with the species, and that in his view this specimen would be eligible for entry in the Tree Register [under the Tree Protection Act].
Consideration of issues
The Tribunal’s consideration of the evidence in relation to the relevant paragraph 1 criteria follows. Criteria (a), (e) and (f) are not relevant and were not relied upon by the applicant. The remaining criteria are (b), (c), (d) and (g).
The applicant raised a number of public and private safety issues in relation to the tree. He was concerned about the danger of branches falling onto people, cars and buildings. He was also concerned about the hazard of fallen litter from the tree. In relation to both criteria (b) and (d) he argued that the species was inappropriate because of its potential size and the consequently greater height from which matter would fall. The respondent submitted that all of the applicant’s safety concerns could be addressed by reasonable normal maintenance.
The applicant was also concerned about the proximity of the tree to his house, the extensive cracks in the external walls of his house that he attributed to roots from the tree, and damage to roof tiles from falling branches. There were also issues with tree roots in drains. The applicant did not think remedial treatment was feasible. The opinion of Mr Hart was that the type and distribution of cracking was not consistent with tree roots as a primary cause, but that in any case remedial treatment was available. Counsel for the respondent pointed out that a draft structural report included in the material submitted by the applicant did not attribute the structural cracking to the tree. Logically, cracking caused by a tree would be expected to be most evident in closer proximity to the tree, but the distribution of cracking seen during the onsite inspection was inconsistent with this.
The applicant considered the tree to be inappropriate in this location because it is a species originating from a high rainfall zone, with a tall growth habit and with undesirable attributes such that it had been listed as a problematic species in schedule 2 of the Determination. He also connected this issue back to the structural issues because of its high water consumption. Mr Hart submitted that this particular tree was a magnificent specimen in good health and of sound structure, and lacked the undesirable attributes commonly associated with the species. He rejected the assertion that in an urban environment it had potential to attain significantly greater size than it had already attained.
The applicant also relied on criterion (g) and argued that the tree suppressed the growth of others within a substantial radius, because of competition for water and nutrients, and because of secretion of growth-suppressing chemicals. Mr Hart pointed out that the tree did not qualify as being part of a close planting, in that its canopy did not intersect with any other. He thought the most likely beneficiary of removal under this criterion would be a liquidambar planted more recently beneath the tree, and argued that it was not reasonable to remove a regulated tree in favour of a non-regulated tree that had been planted relatively recently in a position where it is subject to competition from the more mature regulated tree.
The applicant addressed not only the paragraph 1 criteria, but argued, for the purposes of paragraphs 2 and 3(b) of the criteria, that the tree was not important in the surrounding landscape, and that the Reid Housing Precinct guidelines in his contention, while promoting the retention and diversity of “mature exotic and endemic trees on public and private land” do not require retention of a species which is not a locally indigenous tree. Counsel for the respondent pointed out that the objectives of section 2.2 of the guidelines relating to trees on private land required retention of trees on private land “to complement tree management on public land within the precinct” and that section 2.2a operated to bring any proposed removal of trees such as this straight back to consideration under the Tree Protection Act. Mr Hart gave the opinion that this eucalypt, along with others similarly positioned on leased land set back from the street, was a valuable complement to the formal plantings of exotic street trees. The ACT Heritage Council had also expressed the opinion that removal of this tree would impact on the landscape significance of the precinct.
The applicant did not seek to argue there were exceptional circumstances for the purposes of paragraph 3(a) of the criteria.
As well as addressing the two tests in relation to the criteria of paragraph 1 and whether remedial treatment is available, the applicant sought to rely on paragraph 2, which provides that “The Conservator may also give an approval under section 25 of the Tree Protection Act 2005 to remove a tree if the tree is located on a block of less than or equal to 1200m2 and is a species listed in Schedule 2.”
Block 2 qualifies for consideration under paragraph 2, but blocks 2 and 3 taken together do not. It is noted that the original application had been annotated at the point where the applicant is asked whether they are also the lessee with the words “jointly with the neighbour”, but that nowhere in the material available to the Tribunal is there clear evidence of the attitude or concurrence of the owner(s) of the other block. While in this case it does not appear to be an issue, in similar cases where a proposed tree-damaging activity is located on several adjacent leases, it might be more satisfactory if there is objective evidence on record that other interested lessees have been notified and have made a conscious election not to be an applicant or joined as a party.
Mr Hart submitted that the status of this tree as belonging to a species on schedule 2 of the Determination was not relevant, since this particular specimen did not exhibit the undesirable characteristics that caused the species to have been listed on the schedule.
In submissions, counsel for the respondent also argued that in any case, even if paragraph 2 applied on both the area and the species grounds, this merely enlivened a discretion, and that the objects of the Tree Protection Act had to be taken into account, along with consideration of the outcomes sought by the applicant. The respondent submitted that in the circumstances it was therefore reasonable to exercise the discretion not to grant the approval, even if paragraph 2 was available, because of the heritage, landscape and amenity aspects.
On many of the technical issues, the Tribunal was faced with the differing opinions of the applicant, who did not claim relevant technical expertise, and an appropriately qualified expert witness for the respondent. It is noted that Mr Hart has extensive and relevant qualifications and experience, and had also agreed to be bound by the code of conduct for expert witnesses, even if there was some lack of independence because of his association with the prior decision processes. It would be desirable for the applicant to have brought his own expert witness, both to have a stronger appreciation of the technical issues, and to probe the assertions of the expert witness for the respondent. As in Maciejewski[8], where appropriately qualified evidence is not successfully challenged, the Tribunal is obliged to give it considerable weight.
Conclusion
[8] Maciejewski v Conservator of Flora and Fauna [2013] ACAT 78 at [104]
Criteria (a), (e) and (f) are not relevant to this case and were not relied upon by the applicant.
The Tribunal is satisfied that any safety issues associated with the tree are capable of mitigation by normal maintenance. The Tribunal therefore finds criterion (b) is not met.
The evidence of structural damage is inconclusive as to its cause. As in Sharma[9], “In the absence of any evidence, (as opposed to speculation), regarding damage to the foundations the Tribunal cannot be satisfied that such damage has occurred or is threatened and that any such damage is substantial.” The Tribunal finds that it has not been shown that the cause of the damage to the applicant’s house is the tree, and so criterion (c) is not met. Even if the damage were shown to be due to the tree, the Tribunal is satisfied on the evidence available to it that reasonable remedial treatment is available.
[9] Sharma v Conservator of Flora & Fauna [2014] ACAT 20 at [61]
While the potential of the species to be problematic is recognised by its listing in schedule 2 of the Determination, the Tribunal is not persuaded that this particular specimen is inappropriate in this location, given its actual form and structure. The Tribunal finds the tree does not meet criterion (d).
In relation to criterion (g) it was not clear from the material submitted how this tree is eligible for consideration as “part of a close planting of a number of trees”, or which other trees are intended to be advantaged by its removal, and why doing so would be preferable to retaining it. The Tribunal agrees with the argument from the expert witness for the respondent that it is generally not appropriate to remove a regulated tree in favour of a non-regulated one planted in competition with the regulated tree. The Tribunal is satisfied criterion (g) is not met.
None of the conditions of paragraph 1 of criterion 1 are met.
The tree is eligible for consideration under paragraph 2 of criterion 1 as a consequence of the somewhat artificial situation in which just one of the two lessees on whose land the tree is located is formally an applicant. However, the Tribunal agrees that the attributes of this particular specimen are such that it would be inappropriate to approve its removal solely because it is of a species listed in schedule 2 of the Determination. Moreover, the Tribunal considers that no persuasive evidence has been provided to show that removal of the tree is preferable to maintaining its contribution to the heritage, landscape and aesthetic values of the precinct, especially given the advice from the ACT Heritage Council and the objects of the Tree Protection Act. It is therefore reasonable to decline to exercise the discretion to approve removal under this criterion.
The Tribunal has concluded that none of the conditions for removal have been satisfied and the Conservator’s decision should be confirmed.
………………………………..
General President L Crebbin
for and on behalf of
Senior Member A Davey
HEARING DETAILS
FILE NUMBER: | AT 61/2015 |
PARTIES, APPLICANT: | Adrian Moss |
PARTIES, RESPONDENT: | Conservator of Flora and Fauna |
COUNSEL APPEARING, APPLICANT | Self-Represented |
COUNSEL APPEARING, RESPONDENT | Mr P Woulfe |
SOLICITORS FOR APPLICANT | Self-Represented |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
TRIBUNAL MEMBERS: | Mr A. Davey |
DATES OF HEARING: | 1 December 2015 |