MUTTUKUMARU & SKILLICORN AND CONSERVATOR OF FLORA AND FAUNA
[2008] ACTAAT 13
•9 May 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:MUTTUKUMARU & SKILLICORN AND CONSERVATOR OF FLORA AND FAUNA [2008] ACTAAT 13 (9 MAY 2008)
AT08/13
Catchwords: Tree protection – review of reconsidered decision to refuse approval to remove regulated tree – whether application for approval to a tree-damaging activity meets criteria in Tree Protection (Approval Criteria) Determination (No. 2) - whether tree represents an unacceptable risk to public and private safety – whether tree is causing substantial damage to a substantial structure – estoppel.
Administrative Appeals Tribunal Act 1989, s 24
Districts Act 2002
Tree Protection Act 2005, ss 3, 7, 8, 10, 21, 25, 41, 105, 106, 107, 119
Clarke and ACT Planning and Land Authority [2005] ACTAAT 11 (1 July 2005)
Peter Kohlsdorf Golf Distributors Pty Ltd & Liangis Investments Pty Ltd and Minister for Planning [2003] ACTAAT 29 (3 June 2003)
Wickham and Minister for Planning [2003] ACTAAT 40 (20 August 2003)
Tribunal:Dr D McMichael, Senior Member
Mr J Ashe, Member
Date:9 May 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/13
LAND AND PLANNING DIVISION )
RE:MARINA MUTTUKUMARU & LUKE SKILLICORN
Applicants
AND: CONSERVATOR OF FLORA
AND FAUNA
Respondent
DECISION
Tribunal : Dr D McMichael, Senior Member
Mr J Ashe, Member
Date : 9 May 2008
Decision : The decision under review is affirmed
………………………
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/13
LAND AND PLANNING DIVISION )
RE:MARINA MUTTUKUMARU & LUKE SKILLICORN
Applicants
AND: CONSERVATOR OF FLORA
AND FAUNA
Respondent
REASONS FOR DECISION
9 May 2008 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 14 December 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 remnant eucalypt of the species Eucalyptus polyanthemos, commonly known as Red Box (“the tree”). It is located on a residential block at Block 19, Section 21, Chifley, with the street address of 1 Boyce Street, Chifley. Mrs Marina Muttukumaru and Mr Luke Skillicorn (“the applicants”) are the lessees of that block and have applied for review under section 107(1)(f) of the Tree Act of the reconsidered decision made by the respondent.
3. The applicants applied to remove the tree on 19 September 2007. The Conservator initially refused the application on 11 October 2007 under section 25 of the Tree Act on the grounds that it had not been established that any of the criteria for removal set out in the Tree Protection (Approval Criteria) Determination 2006 (No 2) (Disallowable Instrument DI 2006-60) made under section 21 of the Tree Act, had been satisfied. The letter informing the applicants of the Conservator’s decision recommended that deadwood be removed in accordance with Australian Standard 4373: Pruning of Amenity Trees (“AS 4373”). Pruning in accordance with AS 4373 does not require approval.
4. Section 105(1)(a) of the Tree Act provides that a person may seek reconsideration of the decision by the Conservator to refuse to approve an activity under section 25 and the applicants sought such reconsideration on 29 October 2007. In accordance with section 106(1) the application was referred to a Tree Advisory Panel, convened pursuant to Part 13 of the Tree Act. After initial consideration of the application the Panel decided that it needed a structural engineer’s report on the cause of cracking in external and internal walls of the applicants’ house before it could conclude its assessment. Two such reports were provided––a report by Taylor Thompson Whiting (ACT) Pty Ltd Consulting Engineers obtained by the applicants and one by John Skurr Consulting Engineers Pty Ltd obtained by the respondent. On 6 December 2007, after considering the structural engineers’ reports, the Panel recommended that the original decision not to approve removal of the tree be confirmed. On 14 December 2007 the Conservator confirmed the original decision.
Tribunal’s jurisdiction
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 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 objects of the Tree Act are, 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 in built-up urban areas as declared by the Minister (section 7). Tree Protection (Built-Up Urban Areas) Declaration 2007 (No.1) (Notifiable Instrument 12007-246), declares Chifley to be 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 m or more high, or with a trunk with a circumference of 1.5 m or more, 1 m above natural ground level, or has 2 or more trunks 1 m above natural ground level with a total circumference 1.5 m or more or has a canopy 12 m 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 when considering an application for approval to a tree-damaging activity. On 4 April 2006 the Minister for the Environment determined Tree Protection (Approval Criteria) Determination (No.2) (“the Criteria Determination”), for the purposes of section 21. The relevant Criteria in this case are in paragraph 1(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
…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 Eucalyptus polyanthemos (Red Box) is listed in Schedule 3 of the Criteria Determination.
Agreed facts
13. It is agreed that: the tree is a remnant Eucalyptus polyanthemos; that it is a regulated tree; that it is some 16 m high with a canopy 16 m or greater in diameter and a trunk circumference of approximately 2.8 m; and it is located on the eastern side of the house some 4 m from the eastern wall. It is not disputed that a significant part of the canopy of the tree overhangs the house on the eastern side and that there is substantial cracking to the internal and external walls of the house. The respondent does not dispute that the house is a substantial building and that the cracks to the walls are substantial.
The applicant’s evidence and contentions
The applicants were unrepresented before the Tribunal. Mrs Muttukumaru presented evidence and made submissions in support of the applicants’ contention that the tree should be removed because it represents an unacceptable risk to public and private safety and is causing substantial damage to a substantial structure, that is, the applicants’ house at 1 Boyce Place, Chifley.
15. The applicants state that the tree overhangs two of the bedrooms in the house, including the bedroom occupied by their 3-year old daughter. They contend that the tree canopy overhanging the house includes a number of large branches and that if the tree were to drop any of the larger branches on the house this would severely damage the eastern side of the house and any person in either of the two bedrooms on that side of the house would suffer serious injury or death. They state that the tree has shed several large branches in the past.
16. In support of their contentions the applicants provided a brief tree assessment report by Mr Steve Griffiths, a consulting arborist with Skyline Tree Surgery, a building inspection report by Mr Angus Reid of Homebuyers Inspections and an engineering report by Mr Jan Ruckschloss of Sellick Consultants Pty Ltd. The Tribunal also had available to it the structural engineer’s report by Mr Ross McDougall of Taylor Thompson Whiting (ACT) Pty Ltd Consulting Engineers dated 12 November 2007 and referred to in paragraph 4 above. The authors of these reports were not called as witnesses before the Tribunal and were therefore not available for examination by the Tribunal or counsel for the respondent. The applicants also provided photographs showing the size and location of the tree. Photographs previously provided to the respondent showing cracking to the internal and external walls of the house and to a garden wall were also available to the Tribunal.
17. The Skyline Tree Surgery Report (undated) is a brief one-page handwritten document. It states:
Tree is structurally unstable due to loss of root mass, i.e. retainer wall. Root anchorage is the problem. Lots of deadwood and mistletoe evident. Weak basal deep hollow in trunk.
18. The building report by Homebuyers Inspections was prepared in May 2007 before the applicants purchased the house. It identifies cracks in the walls caused, it asserts, by “a variation in the moisture content in the reactive clay foundation material, which causes expansion and contraction and subsequent movement of the footings”. It further states “High clay content in the ground is common in this area. The problem is increased by the large eucalypt tree which is too close to the house”.
19. The engineering report by Mr Jan Ruckschloss, NPER, CPEng of Sellick Consultants Pty Ltd was prepared in February 2008 following an inspection of the property on 7 February 2008. It includes photographs of gutter blockage, branches overhanging the house, cracks in garden retaining walls and cracks in internal and external walls of the house. Mr Ruckschloss’s report attributes the cracking in the walls to a combination of causes, including spillage of water onto the ground from blocked gutters; and saturation of the soil in the vicinity of the footings causing uneven ground movement that is transferred directly into brittle brickwork and causing cracks in weak areas. The report states that: “The wall movement and cracking is most likely related to moisture variation of the foundation material under the wall footings and the corresponding soil changes”. It states further that: “There is a possibility that the movement mentioned above can also be affected by the tree roots growing under or in the vicinity of the wall footings”.
20. Mr Ruckschloss’s report considers possible remedial works to overcome cracking of the external walls. It proposes that the “cracking can be managed to a certain degree with constant roof and drainage maintenance or ultimately stopped by the footing underpinning that can be prohibitively expensive”. The report is also of the view that the tree branches overhanging the roof represent a continuous maintenance problem and a high injury risk for the occupants, for which tree pruning may not provide a satisfactory solution. The report proposes that tree removal appears to be the most appropriate course of action to prevent future wall movement and potential injury to the public or the occupants of the house.
21. The structural engineer’s report by Mr Ross McDougall of Taylor Thompson Whiting (ACT) Pty Ltd Consulting Engineers expresses the view that the large cracks on the eastern and north-eastern external walls do not appear to be the result of normal moisture variations in the natural soil. It states that: “The cracks appear to be the result of large moisture variations in the soil from the large tree located on the eastern side of the house”. The report recommends that consideration be given to removal of the tree in order to reduce the risk of further damage to the foundations and walls of the house.
The respondent’s evidence and contentions
22. Mr G McCarthy, of counsel, appeared before the Tribunal on behalf of the respondent. He tendered evidence and made 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 for the respondent, Dr Peter Coyne and Mr Linden Coot, provided witness statements and gave oral evidence.
23. Dr Coyne has a BSc (Forestry) (Hons) and a PhD in plant ecology and has extensive professional experience relevant to the matter before the Tribunal. He is the Chair of the Tree Advisory Panel and inspected the tree on 8 October 2007. Dr Coyne considers that the tree is “an outstanding specimen of its species” and is healthy, with fairly dense foliage moderate deadwood, eight mistletoe plants and only minor epicormic growth. Although there is a deep fire scar at the base of the tree, Dr Coyne considers the tree to be structurally sound. Dr Coyne states that the tree is not in decline, nor is its life expectancy short. His opinion is that the tree is over 100 years old and was a mature tree at the time the house was built.
24. Dr Coyne states that the tree makes a significant ecological contribution to the local environment because it is a large, mature tree representative of a native species which is valuable to native wildlife for food and habitat. He states further that the tree is important to the surrounding landscape because it is a large and attractive tree with excellent, symmetrical form in a prominent location on a street corner, and is the dominant feature in the local area. He considers the tree to have special landscape value as an impressive remnant of the natural vegetation of the area before settlement.
25. Dr Coyne states that he saw no evidence that the tree was causing, or threatening to cause, substantial damage to a substantial building, structure or service. Although the canopy of the tree partially overhangs the house, in Dr Coyne’s view the overhanging canopy is mainly fine, leafy branches and there was no evidence that the branches were causing or threatening to cause damage to the house.
26. In Dr Coyne’s view the cracking observed in the walls of the house appeared to be due to subsidence of the corner nearest the tree and not due to physical damage by roots. At the time of his inspection of the tree he saw no signs of lifting of the house by the tree and he considered that any roots would have been excavated when the house was built. He was not able to say whether there are any roots there now.
27. In addition to the inspections of the tree by Dr Coyne and the tree inspector at the tine of the initial application, two other members of the Tree Advisory Panel inspected the tree following the application for reconsideration of the Conservator’s original decision. Mr Anthony Fearnside inspected the tree on 30 October 2007 and formed the view that it was not possible to show that the tree was causing or threatening to cause substantial damage. He considered the tree to be suitable for nomination to the Tree Register to be established under section 41 of the Tree Act. Mr Phillip Unger inspected the tree on 20 November 2007 and agreed with the assessments by the tree inspector and Dr Coyne.
28. The assessments by Dr Coyne and Mr Unger included risk assessments in accordance with Australia/New Zealand Standard 4360: Risk Management in relation to personal safety and structural damage. Both Dr Coyne and Mr Unger assessed the risk to personal safety as ‘Low’ on the basis that they thought it was ‘Unlikely’ that a branch would fall within 5 years and the consequence would be ‘Fright’ rather than ‘Injury’ or ‘Fatality’. In Dr Coyne’s opinion if a branch were to break away from the tree it would break away from the trunk and, being heavier nearer the trunk, would tend to fall towards the ground and not towards the house. Moreover, in his view, the roof itself would provide substantial protection against any injury to the occupants of the house.
29. Dr Coyne assessed the risk of structural damage as ‘Low’ on the basis that the risk of damage within 5 years was ‘Very Unlikely’ and any damage would fall within the category ‘Substantial Damage’, encompassing any damage from minimal to an upper cost limit of $30,000. In Dr Coyne’s opinion it is almost inconceivable that any damage would be greater than $30,000. Dr Coyne’s risk assessment states that the risk of structural damage was assessed on the basis that the cracks in the wall of the house seem to be due to subsidence caused by soil contraction during the drought, and that there is no evidence of roots causing lifting. Mr Unger assessed the risk of structural damage as ‘Medium’ on the basis that the likelihood of damage was ‘Unlikely’ and that any damage would fall within the ‘Substantial Damage’ category, that is, ranging from minimal up to a maximum of $30,000.
30. Dr Coyne’s view is that the tree appears to be structurally sound with no visible signs of weakness and consequently does not present an unusual risk to public or private safety. In his opinion the tree is no more of a risk to public or private safety than all other similarly healthy mature eucalypt trees in Canberra. He recommends, however, that deadwood be removed and that the tree be inspected by an arborist every three years or so to check for deterioration in the condition of the tree or individual branches. He adds that these recommendations apply to most large mature trees in Canberra. Dr Coyne advised that the problem of blocked gutters caused by leaf litter can be overcome by glueing insect gauze over the gutters to prevent the entry of leaf litter.
31. In response to questions from Mrs Muttukumaru, Dr Coyne said that the roots of the tree could extend to the ‘drip line’ of the tree, that is, the edge of the canopy; and that the Red Box is drought resistant and adapts to available resources. He agreed that the canopy would be of significant weight; that the tree is a greater risk in its present location than if it were at the back of the block; that there is a possibility of a tree dropping branches when it is under stress; and that there is a greater possibility of tree damage in a storm.
Mr Linden Coot is a professional structural engineer with a BEng (Honours) degree, currently undertaking a Master of Engineering by Research at the ANU. He is employed by John Skurr Consulting Engineers Pty Ltd and is the author of the report dated 4 December 2007 provided to the Tree Advisory Panel when it considered the applicants’ application for reconsideration in December 2007. Mr Coot has significant experience in tasks concerning the evaluation of cracked brickwork and foundation settlement in domestic and other situations. Mr Coot’s witness statement expands on the matters dealt with in that report. On 20 November 2007 Mr Coot inspected the cracked brickwork on the eastern side and north-eastern corner of the house at 1 Boyce Place. He concluded that the cracks were “significant to AS2870” (Australian Standard 2870: Residential slabs and footings–Construction) one being maximum 7mm wide and the other being maximum 5 mm wide. He concluded further that the cracks are due to foundation settlement caused by cyclic wetting and drying of the underlying soil.
33. During his inspection Mr Coot saw evidence that the downpipes and associated underground clay pipes on the south-eastern and north-eastern corners were blocked by leaves and tree roots. In light of closer examination of the underground pipes he found evidence of root entry and that the pipes were broken. Although unable to say conclusively whether the roots came from the tree or from a nearby shrub that had recently been removed by the owner, his opinion was that the shrub was the more likely source as it was much closer to the blocked drainpipes. Mr Coot states that, by causing water to flow onto the surrounding surface and to soak into the ground thus contributing to the cyclic wetting and drying of the soil, the blocked pipes are the likely cause of the foundation settlement and the cracks in the brickwork. The tree was not, in his opinion, the cause of the cracked brickwork.
34. Mr Coot states that his experience is that brickwork cracking caused by tree roots is evidenced by local uplifting of the footings and local cracking of the brickwork originating from the point where the tree roots underlie the footing. He states that he did not see any evidence of uplifting and the nature of the cracked brickwork at the property is not consistent with local uplift cracking due to tree roots underlying the footings.
35. Mr Coot recommends replacing the broken clay pipes with new UPVC stormwater pipes to overcome the problem of water entering the soil from the broken pipes and to minimise further foundation settlement in the future caused by the cyclic wetting/drying of the underlying soil. He also recommends a procedure for repairing the cracked brickwork by means of repairs to, and strengthening of, the footings. In response to questioning from the Tribunal, Mr Coot agreed that the total cost of such remedial works would be less than $10,000.
Consideration of issues
36. The Tribunal must deal with this application in the same manner as 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 in the Criteria Determination 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 is as follows.
Criterion 1(a): The tree is in decline and its life expectancy is short.
37. The applicants do not argue that the tree is in decline or that its life expectancy is short. The evidence from Dr Coyne and other members of the Tree Advisory Panel is that the tree is in good health, is not in decline and does not have a short life expectancy. 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.
38. The applicants are concerned that there is risk to public and private safety from falling branches, especially as the canopy of the tree overhangs the house. The evidence, however, from Dr Coyne is that the tree is structurally sound, with no visible signs of weakness, and that the risk of a branch falling is low. We note Dr Coyne’s view that the tree is no more of a risk to public or private safety than all other similarly healthy, mature eucalypt trees in Canberra. We also note Dr Coyne’s comments that if a branch were to break away from the tree it would tend to fall away from the house and that the roof itself would provide protection to the occupants. Although there is some deadwood, this can be removed, and it is also open to the applicants to prune the overhanging branches in accordance with AS 4373. It is also open to the applicants to arrange for the tree to be inspected by an arborist from time to time to check for any deterioration in the tree with consequential increased risk to safety. The Tribunal finds that the tree does not represent an unacceptable risk to public or private safety and that Criterion 1(b) has therefore 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.
39. 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 applied these requirements in relation to the applicants’ contention that the tree is causing substantial cracking to the internal and external walls of the house. It is not disputed that the house is a substantial building and that the cracks to the walls are substantial, so the issue for the Tribunal is whether it has been shown that the tree is causing the cracking in the walls. On this point the Tribunal has received a range of conflicting opinions and evidence of varying degrees of persuasiveness.
40. It seems to be generally agreed in the reports and evidence before the Tribunal that the cracking in the walls is the result of periodic wetting and drying of the soil in the vicinity of the external walls with consequential expansion and contraction of those soils and movement of the footings. Mr Coot provided evidence that the principal cause of the moisture is blockages in the gutters, downpipes and underground pipes and did not think the tree was the cause of the cracked brickwork. Mr Coot also stated that he did not see any evidence of uplifting of the footings by tree roots underlying the footings. Mr Ruckschloss also thought that the cracking is caused by moisture from blocked gutters, although he speculated that tree roots might be contributing to movement of the footings. Members of the Tree Advisory Panel argue that the cause of the cracking is subsidence and that it has not been shown that the tree is the cause of the cracking. The Tribunal has also noted Mr McCarthy’s submission that it has not been demonstrated that there are tree roots adjacent to the walls.
41. The Tribunal does not rule out the possibility that the tree is causing or contributing to the cracking of the walls but is of the view that the evidence provided by Mr Coot is persuasive and should be given greater weight than untested opinion evidence by persons not available for examination by the Tribunal. We find therefore that it has not been shown that the tree is causing the cracking. We add that, even if it had been shown that the tree had been causing the cracking, it has not been shown that all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective. As water from blocked downpipes and underground pipes appears to be a major cause of the problem, it would seem necessary that the pipes be unblocked and fixed before undertaking the drastic and expensive step of removing a large, high quality tree. There is also the possibility that an appropriate root barrier could be effective in preventing access by the roots to the walls and footings if excavation were to demonstrate that roots are in fact present. We find therefore 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)
42. It is not disputed that the tree is a remnant eucalypt. It is therefore not necessary to consider the tree against this criterion.
Conclusion
43. The tree is a fine example of a remnant Red Box, which we find is important in the surrounding landscape and has ecological importance in the local environment. Such trees may not be removed unless strict conditions are met. We have considered the application for review against all the relevant approval criteria and find that the application does not meet any of them. Nor has it been shown that all other remedial treatments and risk mitigation measures have been determined to be ineffective. We conclude therefore that none of the conditions for removal have been satisfied. Nevertheless, we remind the applicants in this case that they are not precluded from again seeking permission to remove the tree should they undertake the suggested remedial treatments and risk mitigation measures and find that those treatments and measures have been ineffective, or find evidence that the roots of the tree are causally related to the cracking.
Estoppel
44. The applicants submitted to the Tribunal that they had been given misleading advice in June 2007 by an officer of the Tree Protection Unit when they first made inquiries about the possibility of removal of the tree, having mentioned that the report from Homebuyers Inspections stated that the large tree was too close to the house and was increasing the movement of the footings. They contended that they had been advised that as they had “an expert’s testimony” there should not be an issue with permission being granted to have the tree removed. They submitted that, if they had been aware that this advice was incorrect, they would not have purchased the house. This raised the question of whether the respondent should be estopped from resiling from that advice, on which they had relied to their disadvantage.
45. The Tribunal has considered the applicability of the doctrine of promissory estoppel on previous occasions and the legal position was set out by President Peedom in Peter Kohlsdorf Golf Distributors Pty Ltd & Liangis Investments Pty Ltd and Minister for Planning [2003] ACTAAT 29 (3 June 2003) as follows:
The decision of the High Court in the Verwayen Case related to a decision, the making of which was unencumbered by the provisions of legislation. The decision under review, on the other hand, involves the exercise of a statutory discretion and is required to be made by reference to the subject matter, scope and purpose of the relevant legislation (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24). In such a case the decision-maker cannot disable him or herself in exercising the statutory discretion in the public interest, by binding him or herself not to exercise the discretion in a particular way in advance of the actual exercise of the power involved (see Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 17). As Gummow J observed in Minister for Immigration v Kurtovic (1990) 92 ALR 93 at 111:
in a case of a discretion, there is a duty under the statute to exercise a free and unhindered discretion and an estoppel cannot be raised (any more than a contract might be relied upon) to prevent or hinder the exercise of the discretion; the point is that the legislature intends the discretion to be exercised on the basis of a proper understanding of what is required by the statute, and that the repository of the discretion is not to be held to a decision which mistakes or forecloses that understanding.
This principle has been applied in a planning context where the Land and Valuation Court of New South Wales ruled inadmissible evidence of conversations with council officers and otherwise that the development applicant had decided to buy land on the basis that the council would consent to a particular type of building on the faith or oral assurances by council officers to this effect (see J.M. Watson & Associates v Auburn Municipal Council [1972] 1 NSWLR 84 at 87).
46. The position set out in that case has been adopted subsequently by the Tribunal (see Wickham and Minister for Planning [2003] ACTAAT 40 (20 August 2003) and Clarke and ACT Planning and Land Authority [2005] ACTAAT 11 (1 July 2005)). It is equally applicable to the present case and no question of estoppel arises.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT08/13
APPLICANTS: MARINA MUTTUKUMARU & LUKE SKILLICORN
RESPONDENT: CONSERVATOR OF FLORA & FAUNA
PARTY JOINED: N/A
COUNSEL APPEARING: APPLICANTS:
RESPONDENT: MR G MCCARTHY
PARTY JOINED:
SOLICITORS: APPLICANTS:
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTY JOINED:
OTHER: APPLICANTS: SELVES
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: DR D MCMICHAEL, SENIOR MEMBER
MR J ASHE, MEMBER
DATE/S OF HEARING: 22 APRIL 2008 PLACE: CANBERRA
DATE OF DECISION: 9 MAY 2008 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
0
0