O'Reilly v Conservator of Flora and Fauna (Administrative Review) - [2023] ACAT 25

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

O’REILLY v CONSERVATOR OF FLORA AND FAUNA (Administrative Review) [2023] ACAT 25

AT 1/2023
Catchwords: ADMINISTRATIVE REVIEW – tree protection – reconsidered decision by Conservator of Flora and Fauna to refuse approval to remove regulated tree – criteria for tree damaging activity – whether tree represents an unacceptable risk to public or private safety – whether tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service – whether location of tree is inappropriate given its potential size and growth habit – whether tree is substantially affecting solar access – consideration of each criterion – exceptional circumstances – shading of solar panels – obligations placed on neighbouring property owners – effect on market value of properties – reconsideration decision of Conservator confirmed
Legislation cited: Electricity Feed-in (Renewable Energy Premium) Act 2008
Tree Protection Act 2005 ss 3, 15, 16, 17, 18, 21, 22, 25, 107

Subordinate

Legislation cited: Tree Protection (Approval Criteria) Determination 2006 (No 2)

Cases cited:Ambrus v Conservator of Flora and Fauna [2018] ACAT 81
Commissioner for ACT Revenue v Butt [2016] ACAT 109
Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 179
Egan v Conservator of Flora and Fauna [2016] ACAT 27
Maciejewski and Conservator of Flora and Fauna [2013] ACAT 78
Maleganeas v Conservator of Flora and Fauna [2007] ACTAAT 24
Pinkas v Conservator of Flora and Fauna [2018] ACAT 92
Sharma v Conservator of Flora and Fauna [2014] ACAT 20
Shi v Migration Agents Registration Authority [2008] HCA 31

Tribunal:Senior Member P Sutherland
Date of Orders:  1 May 2023
Date of Reasons for Decision:      1 May 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 1/2023

BETWEEN:

MICHAEL O’REILLY
Applicant

AND:

CONSERVATOR OF FLORA AND FAUNA
Respondent

AND:

JOHN BUXTON
Party Joined

TRIBUNAL:Senior Member Peter Sutherland

DATE:1 May 2023

ORDER

The Tribunal orders that:

The reconsidered decision of the Conservator of Flora and Fauna is confirmed.
The application is dismissed.
………………………………..

Senior Member P Sutherland

REASONS FOR DECISION

The Application

This is an application made on 5 January 2023 by Michael O’Reilly (the Applicant) for review of a reconsidered decision made by the Conservator of Flora and Fauna (the Conservator) on 15 December 2022. The decision was to refuse approval for the removal of a regulated tree located on Block 8, Section 164 Kambah (the Block) under section 107 of the Tree Protection Act 2005 (the TP Act). The Applicant is the lessee of the Block, which is situated in Boddington Crescent, Kambah.
In this decision a reference to the ‘tribunal’ or ‘ACAT’ refers to the ACT Civil & Administrative Tribunal generally and a reference to the ‘Tribunal’ refers to the member who heard the matter.
On 18 January 2023, a differently constituted tribunal joined John Buxton (the Party Joined) as a party to the application as he had interests that are affected by the decision under review. Mr Buxton is the lessee of a block adjacent to the Applicant’s block and the regulated tree is located close to the boundary fence between the two blocks.
The decision of the Conservator was informed by a Tree Advisory Panel Report – Reconsideration (the Report) dated 12 December 2022, prepared by the Tree Advisory Panel (the Panel), which was based on a site inspection by a member of the Panel, Mr Neil Cooper, and discussion of his recommendations by the Panel. Because Mr Cooper was not available to give evidence at the hearing, Mr Richard Hart, the Chair of the Panel, undertook a personal inspection of the regulated tree on 8 March 2023 and prepared a Statement for use by the Conservator in the ACAT proceedings.
The Applicant noted that the reconsideration decision of the Conservator had been based on the Panel’s Report and that the subsequent inspection by Mr Hart did not factor in that decision. The Tribunal confirmed that, in conducting its review, it stood in the shoes of the decision-maker and was obliged to conduct a de novo[1] merits review to reach the correct or preferable decision.[2] The decision of the High Court in Shi v Migration Agents Registration Authority[3] makes it clear that, subject to any contrary provision in the relevant legislation, the tribunal is empowered to take account of circumstances up to the date of hearing. The Tribunal considers that there are no provisions in the TP Act which displace that general rule.
[1] De novo is a Latin term meaning “from the start”
[2] Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 179
[3] [2008] HCA 31
The ACAT conducted a Directions Hearing in the matter on 29 March 2023.

The View and Hearing

The hearing of the application on 4 April 2023 commenced with a view of the regulated tree conducted at the property of the Applicant and from the property of the Party Joined. The view was attended by the Tribunal, the Applicant, the Party Joined, Mr Alex Vontreifeldt, Counsel for the Conservator, Mr Mark Deehm, Assistant Director, Tree Protection Authority, and Mr Richard Hart, Chair of the Panel.
At the view, the Tribunal first entered the property of the Party Joined, which is to the East of, and adjoins the back of the Applicant's property, with a fence line running roughly North-South. The Tribunal observed that the regulated tree was in the backyard of the Applicant’s property and was approximately two metres from the fence. The Party Joined drew the Tribunal’s attention to shading of his backyard by the tree, shallow protruding roots from the tree in his backyard, the position of his vegetable patch, the location of a protected tree which had been removed with the approval of the Conservator several years earlier, and an amount of debris from the regulated tree which was stored in a garage awaiting removal. The regulated tree was 12.4 metres from the house on the property.
The Tribunal then entered the backyard of the Applicant’s property and observed the location of the regulated tree, which was 4.5 metres from a large garage, and 13.5 metres from the Applicant's house. The ground around the tree was clear of undergrowth, was maintained in a clean and tidy state, and showed some cracking in the soil close to the base of the tree. The tree appeared to be healthy and in good condition, without any noticeable dead limbs or branches. Near the foot of the tree there was a vertical scarring indentation in the trunk of the tree and the tree had a slight lean to the North. The tree canopy extended to the edge of the garage. There were solar panels covering the whole of the roof of the garage, and additional solar panels were situated on the roof of the house. The Applicant directed the attention of the Tribunal to trees in the vicinity of the property, including trees across the road in a nature strip extending through to the edge of the suburb.
The hearing resumed at the ACAT premises at 11:15am and continued until 4:15pm. The Applicant and the Party Joined each gave oral evidence in addition to their extensive written submissions. Mr Richard Hart, Chair of the Panel, gave evidence as an expert witness for the Conservator and was cross-examined by the Applicant and the Party Joined.
In the course of the hearing, two documents contained in the Hearing File were informally circulated to the parties and the Tribunal to help clarify discussion: two photographs of cracked soil at the base of the regulated tree; and a two-page extract from a report by ECG Electrical on solar panel performance at the Applicant’s property.
The Tribunal noted the extensive written submissions prepared by the Applicant, the Conservator, and the Party Joined, and took account of these documents in their entirety when reaching its decision and preparing these Reasons for Decision.

Applicable law

The objects of the Tree Protection Act 2005 are stated in section 3(1) of the Act:
(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.
Section 8 of the TP Act defines a ‘protected tree’ to include a regulated tree and section 10 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 25(3) of the TP Act sets out the matters which the Conservator, and therefore this Tribunal, 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)the advice (if any) of an entity to which the application was referred under section 24A; and
(d)anything else the conservator considers relevant.
Section 21 of the TP 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 2006 (No 2) (the TP Determination) for the purposes of section 21. The relevant criteria are:
(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.
…
(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 before the Tribunal are whether approval may be given to remove the tree by reference to the criteria in Schedule 1 to the TP Determination, in particular criteria 1(1)(b), (c), (d),and (e), whether all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective, and considering any exceptional circumstances under item 1(3)(a) in Schedule 1.

Agreed Facts

The tree is a Eucalyptus melliodora (common name: Yellow Box), which is a species listed on Schedule 3 of the TP Determination. It is a ‘regulated tree’ because it is a living tree that is on leased land within a tree management precinct and its height is approximately 18 metres. The tree is not a “remnant eucalypt”.
The tree is in good health and has grown from an earlier stump over a period of 30-40 years. The tree is not yet fully mature and can be expected to increase in height and canopy spread over the next 20-30 years.

Contentions of the Applicant

The Applicant contended that the Conservator should approve removal of the regulated tree because four criteria in item 1 of the TP Determination were satisfied:
(a)(1)(b): the tree represented an unacceptable risk to the safety of persons in his backyard and his neighbour's backyard because of the threat of falling limbs, and to the public through the fire risk presented by the tree.
(b)(1)(c): the tree is threatening to cause substantial damage to his garage, the solar panels on the garage, an underground power line near the garage, and his house, through the loss of limbs during high wind events. The tree may also cause root damage to the garage and the power line.
(c)(1)(d): the location of the tree is inappropriate given its potential size and growth habit. The tree is likely eventually to reach a height of 20-25 metres, with a canopy width of 20 metres, increasing the likelihood and extent of damage, particularly to the garage. The original Panel Report suggested that “E melliodora is not a good tree in a small urban backyard” and reference material prepared by the ACT Government and other agencies suggested that it was not a suitable species for planting in small private leases in Canberra.
(d)(1)(e): the criterion in respect of solar access to the lessee’s lease is very narrow and fails to take account of the increasing importance of rooftop solar generation in meeting Canberra’s energy needs in a sustainable manner. This criterion is outdated and does not reflect current community expectations or current ACT Government policy. This shortcoming could be addressed as an exceptional circumstance under item 1(3)(a).
The Applicant also contended that his privacy had been breached by the service of notification letters on persons apparently unconnected with the matter, and that the decision reached by the Conservator may not have been achieved in a fair and unbiased way. There was insufficient time to address these concerns at the hearing, however the Tribunal expressed the preliminary opinion that these concerns were outside the scope of the review and might better be addressed to the ACT Ombudsman or other authority.

Contentions of the Party Joined

The Party Joined supported each of the contentions of the Applicant, and pointed to some further bases in the criteria for the Conservator to approve removal of the tree:
(a)(1)(d): the regulated tree is sending out large shallow roots into his backyard and sheds a large amount of leaf and branch litter. This significantly increases his maintenance responsibilities and interferes with his enjoyment of his backyard. He has no control over the tree because it is not on his property, and he is being subjected to a legal ‘nuisance’ which he would like to be addressed by the removal of the tree.
(b)(1)(e): the protected tree casts significant afternoon shadows over the whole of his backyard, reducing the productivity of his large vegetable garden, shading his clothesline, and affecting the output of his solar panels.
The Party Joined also raised two further issues which he contended should be ‘exceptional circumstances’ for the purposes of item 1(3)(a):
(a)He is an ‘expert’ on his property, having lived there since the house was built in 1975 – originally as a tenant of the Commissioner for Housing and subsequently as a homeowner. He and his wife are now facing the possibility of having to sell the property to move into aged care. He has been advised in writing by a real estate firm, My Morris, that the presence of the gum tree in his neighbour's property is likely to reduce his property's value on sale by at least 5-10% (“possibly $40,00-$90,000 worse off”), particularly because it is in a RZ2 zone and the tree will make his block unattractive to builders/developers.
(b)He gained approval from the Conservator for the removal of a similar Yellow Box gum tree from his property several years ago. That tree and his neighbour's tree were very similar in most aspects and there should be consistency in decision-making in such a case. The Tribunal responded to this contention by expressing a strong view that the Conservator's decision in relation to a protected tree on a different property was not, and could not be, within the scope of the Tribunal's review of the current decision.

Contentions of the Respondent Conservator

The Conservator set out contentions and supporting case law in detail in its Respondent’s Written Submissions. Mr Vontreifeldt spoke briefly to those Submissions at the hearing but, at the request of the Tribunal, limited his oral submissions because of time pressures. In brief, the Conservator contended that:
(a)The Panel concluded that the tree did not meet any of the criteria in the TP Determination for approval of its removal. The Panel recommended that the tree be assessed regularly by a qualified arborist to undertake a hazard and risk assessment every two to three years, or when deterioration is noticed.
(b)(1)(b): There is no evidence that the tree poses an unacceptable risk to public or private safety. The Conservator found that the ground around the base of the tree was sound and showed no sign of movement or surface roots, and that the tree was exceptionally sturdy. Mr Hart assessed the fire risk as extremely low and that the risk of branch or total failure also was extremely low. Criterion (b) requires that the unacceptability of the risk must be considered, and that apprehension on its own is not sufficient to satisfy the criterion.[4] While the risk of falling branches cannot be eliminated, they can be reduced if the tree is monitored and pruned as necessary.[5]
(c)(1)(c): Previous tribunal decisions on this criterion have interpreted ‘substantial’ as meaning “large, weighty, considerable, solid or big and not trivial, minimal or nominal”.[6] The risk of falling branches/limbs causing damage to buildings is very low, as is the risk of damage from fire. There is no evidence that tree roots are causing, or threatening to cause, damage to the underground powerline. The tree does not currently have any substantial branches overhanging the solar panels on the roof of the garage, nor does the tree currently have any dead branches. Reasonable remedial treatments, including regular inspection and tree maintenance, are sufficient to mitigate the risk of substantial damage to a building, structure, or service.
(d)(1)(d): While TP Panel member Neil Cooper acknowledged that the tree will continue to grow and that Eucalyptus melliodora is “not a good tree in a small urban backyard”, this in itself does not make the location of the tree inappropriate. Mr Hart considered the tree to be “well placed”, located more than 13 metres from the Applicant’s house and over 12 metres from the house of the Party Joined. The garage is outside the tree’s estimated structural root zone.
(e)1(e): This criterion requires the tree to be substantially affecting the “lessee’s lease”, which has been interpreted by the ACAT as consideration of the whole area of the property, not just the house or other living area.[7] Shading from the tree will affect the Applicant’s property during winter only, in part, and only for a few hours. If the shading of the solar panels on the garage is a relevant consideration, it would be quite reasonable for the panels to be placed in a location that mitigated against any alleged shading risks. The Respondent also drew the Tribunal’s attention to the fact that the solar panels on the garage had been located there in full knowledge of the adverse decision of the Conservator and while the ACAT review process was underway.
[4] Egan v Conservator of Flora and Fauna [2016] ACAT 27
[5] Pinkas v Conservator of Flora and Fauna [2018] ACAT 92
[6] See, initially, Maleganeas v Conservator of Flora and Fauna [2007] ACTAAT 24
[7] Maciejewski and Conservator of Flora and Fauna [2013] ACAT 78; Sharma v Conservator of Flora and Fauna [2014] ACAT 20

In relation to “exceptional circumstances” under item 1(3)(a), the Conservator contended that the term is not defined under the Criteria or under the Act and pointed to the decision in Commissioner for ACT Revenue v Butt [2016] ACAT 109 where the ACAT referred to the ordinary meaning of ‘exceptional’, and stated that:
40. ‘Exceptional’ means ‘forming an exception or unusual instance; unusual; extraordinary’. ‘Exception’ means relevantly ‘something excepted; an instance or case not conforming to the general rule’.
41. The phrase ‘exceptional circumstances’ is used in many legislative contexts, but must be construed and understood according to the context. …
The Conservator contended that the burden and cost of maintenance caused by leaf litter was part of the general home maintenance that all homeowners take on when buying a house. This is the case even when this is a challenge for certain homeowners.[8] In relation to the issue of the effect of the tree on market value, the Conservator contended:
Rather than a “financial penalty”, the potential resale of the property can at best be characterised as a speculative absence of additional profit from the sale should the tree remain. This is not a circumstance so unusual to be considered “exceptional” for the purpose of this criterion.

Consideration of the Criteria by the Tribunal

[8] Ambrus v Conservator of Flora and Fauna [2018] ACAT 81

The parties agreed that criteria (1)(a), (f) and (g) are not relevant in this matter, and the Tribunal so finds.
In respect of criterion (1)(b), the Tribunal accepts the Report of the Panel and the evidence of Mr Hart that the tree is in good health and presents a low risk of limb or total failure. The Tribunal also accepts that the cracking in the soil at the base of the tree, the scarring indentation in its lower trunk, and the surface roots in the Party Joined’s backyard are not causes for concern. The low risk presented by the tree can be further mitigated by appropriate pruning and monitoring, and inspection by an arborist every 5-10 years.
The description of fire risk as ‘absolute zero’ by Mr Cooper in his Field Findings is obviously incorrect and unhelpful, however the evidence of Mr Hart persuades the Tribunal that the fire risk is relatively low and certainly is not an unacceptable risk. The tree stands alone in the Applicant’s backyard, is well separated from other, possibly flammable, trees in the neighbourhood, and any residual risk is mitigated by the obviously close attention to maintenance and debris clean-up given by the Applicant and the Party Joined.
The Tribunal finds that the regulated tree does not represent an unacceptable risk to public or private safety.
In respect of criterion (1)(c), the Tribunal accepts the interpretation of ‘substantial’ put forward by the Conservator, namely that the threatened damage must be “large, weighty, considerable, solid or big and not trivial, minimal or nominal”. The Tribunal notes that the tree is a considerable distance from the dwelling houses of both the Applicant and the Party Joined, a distance which suggests that it does not threaten substantial damage to those houses even in high wind conditions from the East or the West.
The Tribunal notes that the regulated tree is approximately 4 metres from a substantial structure, the garage in the backyard of the Applicant’s property, and the tree’s canopy currently extends to cover part of the garage. The tree could cause damage to the garage, and solar panels on the garage roof, if it were to shed a major branch or fail in high wind conditions. It may shed smaller branches over the passage of years, however these would tend to fall short of the garage roof or cause only minor damage. Regular inspections and pruning are a desirable risk mitigation measure in respect of this possibility. On balance, the tree cannot be said to be causing or threatening to cause substantial damage to the garage.
The Applicant raises the possibility of root damage to the garage footings and/or the underground powerline located close to the garage. There is no evidence of any such damage currently occurring and no probability of a substantial threat emerging in the medium term.
The Tribunal finds that the regulated tree has not been shown to be causing, or threatening to cause, substantial damage to a substantial building, structure or service. The possibility of damage can be reduced by reasonable remedial treatments and risk mitigation measures.
In respect of criterion (1)(d), the Tribunal notes the comment by Mr Cooper that the species Eucalyptus melliodora is “not a good tree in a small urban backyard”. This comment is made about the suitability of the species for planting as an urban tree, and is not a concluded opinion about the suitability of this particular regulated tree, which has been growing in the Applicant's backyard for more than 30 years. The tree is rather close to the garage (at 4 metres) but currently its structural root zone does not extend to the garage. The tree is a considerable distance from the dwelling houses of the Applicant and the Party Joined and could not be said to be inappropriately located in respect of those dwellings.
This criterion requires the Tribunal to have regard to the potential size and growth habit of the regulated tree, and there is uncontradicted evidence that the tree will grow considerably over the next 20-30 years, eventually reaching a height of 20-25 metres, with a canopy expansion of approximately 30% on its current canopy. This potential growth must be balanced against the increasing ecological and amenity value of the tree as it matures. The Tribunal accepts Mr Hart’s opinion that the regulated tree has enough room to stay stable and expand.
While having regard to its potential growth and, in particular, its effect on the Applicant’s garage, the Tribunal finds, on balance, that the regulated tree is not inappropriately located.
In respect of criterion (1)(e), the Tribunal notes that the Applicant effectively did not press the applicability of this criterion, accepting that it related to solar access to his whole property in winter. The Applicant described how the regulated tree shaded much of his backyard during winter mornings, but the backyard was in full sun after about noon or 1:00pm. The Applicant’s principal concern related to the shading by the regulated tree of the solar panels installed on the roof of his garage, which is discussed below at [42]-[44].
The Party Joined made strong submissions that the regulated tree substantially affected solar access in his backyard. The Tribunal accepts that the tree reduces sunlight to his large vegetable garden in his backyard, but does not accept that this shading is sufficiently substantial to engage criterion (1)(e) for several reasons:
(a)The tree is to the West of his property and therefore the shading is confined to the afternoon hours, from about noon or 1pm onwards.
(b)The shading is mostly confined to the backyard, and the house would be affected only by limited dappled shading. This is less than a ‘substantial’ effect on the whole of the property.
(c)There could be very little effect on solar panels as their location was not obviously observable from the backyard.
The Tribunal finds that the tree does not substantially affect solar access to the Applicant’s lease or to the lease of the Party Joined, during winter between the hours of 9:00am to 3:00pm.

Ecological Value of the Tree

When deciding whether the criteria are met, item 1(3)(c) of the TP Determination provides that the Conservator may consider whether the tree has ecological importance to the local environment, provided the tree is a species listed on Schedule 3. It was agreed that the regulated tree was a tree listed on Schedule 3, however Mr Cooper in his comments in the Panel Report stated that the tree had no ecological importance. This was inconsistent with the Statement of Mr Hart who concluded that the tree had ecological importance. The Tribunal was not required to resolve this inconsistency in evidence as it concluded that none of the criteria had been satisfied and therefore item 1(3)(c) did not arise for consideration.

Shading of Solar Panels

Criterion (1)(c) is focussed on the extent of solar shading to the whole of the block during the hours of 9:00am to 3:00pm in winter. The Applicant correctly identified that it is not directed to shading of a solar panel array and strongly contended that the criterion is outdated and does not reflect current community expectations or current ACT Government policy. The current criteria were determined in 2006, which is earlier than the first significant community solar power initiative enacted by the ACT Legislative Assembly – the Electricity Feed‑in (Renewable Energy Premium) Act 2008.
The Tribunal cannot rewrite the statutory criteria determined in the TP Determination and is obliged to apply them in their existing form. The requirement in criterion (1)(c) that the shading by the protected tree substantially affects all of the property makes it unlikely that solar panels would ever fall into this criterion without legislative change. It is arguable that criterion (1)(d) might apply, that shading of solar panels makes the location of the tree inappropriate, however the Tribunal considers that this is probably stretching the scope of this criterion too far from its apparent purpose. The Tribunal does not consider that “exceptional circumstances” in item 1(3)(a) of the TP Determination can be called in aid by the Applicant, as the placement of solar panels on Canberra rooftops is commonplace and becoming the norm in our community.
The Applicant stressed the increasing importance of rooftop solar generation in meeting Canberra’s energy needs in a sustainable manner. This is a policy consideration which deserves consideration by the ACT Government, and might lead to a new or revised criterion in the TP Determination. The Tribunal notes that large trees, such as the regulated tree in this matter, make a significant contribution to energy conservation in their own right, through their cooling effect in summer and their warming effect in winter. If a solar panel shading criterion is developed by ACT Government, it would be important for the criterion to give guidance how to balance the evident, competing sustainability issues involved, while also taking into account the other substantial ecological and amenity values of trees in the urban environment.

Obligations Placed on Neighbouring Property Owners

The Party Joined gave evidence that the regulated tree was sending out large shallow roots into his backyard and continually shed a large amount of leaf and branch litter. This significantly increased his maintenance responsibilities and interfered with his enjoyment of his backyard. The Party Joined submitted that he had no control over the tree because it was not on his property, and that he was being subjected to a legal “nuisance” which he would like to be addressed by the removal of the tree.
The Tribunal acknowledges that property owners are obliged to accept obligations in respect of protected trees even though the trees are not on their own property and they have limited options, in law, to address situations raised by their neighbours’ actions in relation to those trees. The TP Act prohibits tree damaging actions by persons, whether they are the lessee of the property, a neighbour, or a member of the public (sections 15-18, TP Act). Section 22(1) of the TP Act allows any person to apply to the Conservator for approval for an activity that would or may damage a protected tree, however an application opposed by the owner of the block on which the protected tree stands could be very problematic. Some of the criteria for approval to damage a regulated tree in the TP Determination specifically acknowledge that approval may be required because of impacts on neighbouring properties; see for example criteria (1)(b), (e), (f). The other criteria do not exclude consideration of impacts on neighbouring properties.
As the Conservator contended, the maintenance obligations on a lessee caused by a regulated tree is part of the general home maintenance that all home owners take on when buying a property. This includes the obligations placed on the Party Joined to clear leaf litter from his property and keep surface roots under control. In some circumstances, a neighbour may have a right to compensation or remedial action by their neighbouring tree owner, but the exercise of these rights in the ACAT or the courts can be difficult.
The Tribunal considers that these circumstances apply to many homeowners in the Territory and cannot be considered ‘exceptional’ for the purposes of item 1(3)(a) of the TP Determination.

Effect on Market Value of the Property

The Party Joined submitted evidence by a real estate agent to the Tribunal of the potential that the regulated tree might reduce the market value of his property if he is required to sell it and move into aged care. The Tribunal notes that this is not one of the statutory criteria and considers that it is difficult to see how this circumstance could be linked to any of the criteria, except possibly criterion (1)(d).
This consideration would rarely be assisted by identification of “exceptional circumstances”, as permitted by item 1(3)(a) of the TP Determination, as the sale of properties in Canberra and variability in their market value is in no sense exceptional. In some particular cases, the personal circumstances of the owner of a property who seeks to remove a protected tree may be exceptional, but this is not such a case.
As the Respondent contended, the question of the effect of the regulated tree on a sale price is speculative. It is possible that the tree could be a positive feature for some potential buyers because of its amenity value.
The Tribunal considers that a possible effect on market value of property cannot be considered ‘exceptional’ for the purposes of item 1(3)(a) of the TP Determination.

Conclusion

The Tribunal finds that none of the criteria for removal of the tree have been met by the Applicant or by the Party Joined.
As required by section 25 of the TP Act, the Tribunal has considered all of the evidence in relation to the approved criteria, the Panel advice and the parties’ contentions. Taking all these matters into account, the Tribunal concludes that the Conservator’s reconsidered decision should be confirmed.
………………………………..
Senior Member P Sutherland

Date of hearing:	4 April 2023
Applicant:	In person
Solicitors for the Respondent:	Alex Vontreifeldt, ACT Government Solicitor Sonja Gasser, ACT Government Solicitor
Party Joined	In person