Pinkas v Conservator of Flora and Fauna (Administrative Review)
[2018] ACAT 92
•20 September 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
PINKAS v CONSERVATOR OF FLORA AND FAUNA (Administrative Review) [2018] ACAT 92
AT 38/2018
Catchwords: ADMINISTRATIVE REVIEW – tree protection – reviewable 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 the location of the tree is inappropriate given its potential size and growth habit – whether the tree is substantially affecting solar access – consideration of each criterion – no criteria met
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 8, 26
Tree Protection Act 2005, ss 21, 25, 107, 107B
Subordinate
Legislation cited: Tree Protection (Approval Criteria) Determination 2006 (No 2) (DI 2006-60), Schedule 1, criterion 1, paragraphs 1 & 3
Utility Networks (Public Safety) Regulation 2001 s 25
Cases cited: Bozin v Conservator of Flora and Fauna [2010] ACAT 91
Maatouk v Conservator of Flora and Fauna [2015] ACAT 10
Maciejewski vConservator of Flora and Fauna [2013] ACAT 78Legal Practitioner “M” v Council of Law Society [2015] ACTSC 312
Tribunal: Member E Trickett
Date of Orders: 20 September 2018
Date of Reasons for Decision: 20 September 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 38/2018
BETWEEN:
GEORGINA MAY PINKAS
Applicant
AND:
CONSERVATOR OF FLORA AND FAUNA
Respondent
TRIBUNAL: Member E Trickett
DATE:20 September 2018
ORDER
The Tribunal orders that:
1.The decision under review is confirmed.
………………………………..
Member E Trickett
REASONS FOR DECISION
1.This is an application to the Tribunal for review of a reviewable decision made by the Conservator of Flora and Fauna (the respondent) on 9 April 2018 to refuse approval for the removal of a regulated tree located on block 1 section 19 Chifley ACT, under section 107 of the Tree Protection Act 2005 (Tree Protection Act). The reviewable decision upheld a previous decision on 2 March 2018 under section 25 of the Tree Protection Act to refuse a tree damaging activity.
2.The applicant is the lessee of block 1 section 19 Chifley. On 18 January 2018, the applicant applied to the respondent for approval to damage a regulated tree by removing it.[1] The tree is a Eucalyptus melliodora, otherwise known as a Yellow Box, located in the backyard of the applicant’s property, towards the rear fence line. Low Voltage (LV) powerlines pass alongside the trunk and some limbs/boughs extend over the powerlines and above the rear neighbour’s property. The applicant applied to the respondent to remove the tree following a branch dropping into the adjacent backyard. The reason cited in the original application was that the tree “has grown too large for its location adjacent to the property’s southern boundary and over the electricity easement”.[2]
[1] T documents pages 22-38
[2] T documents page 24
3.On 1 March 2018, a tree assessment report was prepared after inspection of the site. The report[3] found the tree was healthy and did not meet any of the criteria set out in schedule 1 of the Tree Protection (Approval Criteria) Determination 2006 (No 2) to support its removal. It was recommended that the application be rejected.[4]
[3] T documents page 39-51
[4] T documents page 40
4.On 2 March 2018, a delegate of the respondent refused the 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.[5]
[5] T documents page 52
5.On 19 March 2018, the applicant lodged an application for reconsideration of the decision[6] under section 107 of the Tree Protection Act, on the ground that some criteria in schedule 1 were satisfied.[7]
[6] T documents pages 55-58
[7] T documents page 57
6.Ms Christine Rampling of the Tree Advisory Panel (TAP) conducted an inspection of the tree and prepared a report dated 23 March 2018 for the panel.[8] This report concluded that the tree does not meet any of the criteria for approval to remove it, and recommended that the original decision be confirmed.
[8] T documents pages 25-29
7.At a TAP meeting on 27 March 2018 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.[9]
[9] T documents pages 90
8.The respondent then made a reviewable decision, dated 9 April 2018, to uphold the original decision.[10]
[10] T documents pages 75-78
9.On 7 May 2018, the applicant applied to the Tribunal under section 107B of the Tree Protection Act for review of the respondent’s reviewable decision.[11]
The hearing
[11] T documents page 5-58
10.The applicant, Ms Georgina Pinkas represented herself. She gave evidence and was assisted by her expert witness, Mr Jim Laity who provided a report and gave evidence. Dr Spurling, the applicant’s rear neighbour, who owns block 9, provided a statement. Dr D Jarvis, of counsel, represented the respondent, instructed by Ms Emma Buckland from the ACT Government Solicitor. Dr Peter Coyne provided a report and gave evidence for the respondent.
11.The hearing commenced on 30 August 2018 with a site inspection. The Tribunal’s attention was drawn to the location of the tree in the rear of the yard near the fence, the size of the tree – approximately 20 metres high with a canopy of approximately 20 metres and trunk circumference at one metre above ground level of 2.7 metres; the location of the LV powerlines running along the rear boundary; the understory planting around the tree; the tree boughs hanging over the fence towards the back neighbour; the location of the rear neighbour’s outdoor living area and those on Ms Pinkas’ block; the location of the rear neighbour’s house from the tree (approximately 10 metres) and the applicant’s house from the tree (approximately 11 metres); the location of the rear neighbour’s solar panels several metres from the wall of the house closest to the tree. It was noted that the original house on the rear neighbour’s block had been replaced and the new house was now approximately six metres closer to the tree and that a flat had been built at the back of the applicant’s house and the building was now several metres closer to the tree than the original house had been. The hearing continued at the Tribunal’s premises later the same morning. At the conclusion of the hearing on 31 August 2018 the Tribunal reserved the decision.
Applicable law
12.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) (the determination) 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
13.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 any one or more of the criteria at (a) are satisfied, 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.
14.It is the applicant who is required to demonstrate that at least one of the criteria has been met, and if a criterion is met that all other remedial and risk mitigation measures are ineffective.[12] The Conservator has determined on two occasions that none of the criteria has been met and the applicant has the opportunity afresh to demonstrate to the Tribunal that one or more have been met and that risk mitigation measures are ineffective.
The applicant’s evidence and contentions
[12] Bozin v Conservator of Flora and Fauna [2010] ACAT 91; Maatouk v Conservator of Flora and Fauna [2015] ACAT 10; Legal Practitioner “M” v Council of Law Society of the Australian Capital Territory [2015] ACTSC 312
15.The applicant was well prepared and presented her case clearly and succinctly in written form and verbally. She presented evidence in support of her application for removal of the tree under four of the criteria in schedule 1 of the determination: criteria 1 (b), (c), (d) and (e)
(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)
16.One of the main issues for the applicant was to demonstrate that the tree was not a remnant tree, that is, that it was not a tree already present and established in the landscape before the suburb was developed. This is relevant because criteria (d) and (e) do not apply to remnant trees. The applicant provided aerial photographs of Chifley from 1968 and 1972 supplied by the government archives. She contended that this showed that the tree was not noticeable in the 1968 view but is clearly visible in the 1972 view. She also contended that her house was first occupied in 1966 and one of the applicant’s neighbours told her that the garden was started in 1966 and that this tree was planted then.
17.The applicant relied on the evidence of Mr Laity, who holds a Bachelor of Science in Forestry. He stated that the tree is a similar shape and size, perhaps a little taller, to the Yellow Box street trees and those planted in the adjacent reserve when the suburb was developed. He also stated that trees planted at the same time can grow at different rates depending on the soil and care provided.
18.The applicant sought review of the decision on paragraph 1 criteria (b), (c), (d) and (e) with respect to public and private safety in the form of the falling branches particularly but not only during storms; damage to the LV power lines which she contended was a significant structure; inappropriate location near the rear neighbour’s property and applicant’s house and the overshadowing of her rear neighbour’s block limiting solar access.
19.Under criterion (b), the tree represents an unacceptable risk to public or private safety, much of the applicant’s argument was based on a branch that fell into the rear neighbour’s yard in March 2017 together with smaller branches and leaf litter that have fallen and the contention that there are branches that hang over the neighbour’s yard and the applicant’s block which could drop without warning, posing a risk of injury to the occupants of the backyards. The house and flat on the applicant’s block are tenanted and the applicant is mindful of her obligation and insurance liability to provide a safe environment for her tenants. During the site visit the outdoor living areas of the applicant’s block and that of the rear neighbour were pointed out, neither of which were substantially under the tree. The applicant stated there was a plan to erect a trampoline in the back yard which may be near/under the tree.
20.Mr Laity gave evidence that like all eucalypts, this tree will continue to drop branches from time to time, the frequency of dropping increasing once the tree is aged and in decline, which he stated will be when it is about 100 years old. He stated that the tree is close to its maximum size and from now on the canopy and trunk will thicken, the whole tree becoming heavier.
21.Another issue raised by Mr Laity was the poor branch structure of the tree with the potential for the co-dominant limb dividing at about five metres above ground level to break at some stage in the next 100-150 years, due to the angle of attachment of the main limbs with the trunk. Mr Laity stated that there is a risk of insect damage at the limb junction area and a risk of water pooling in any depression that may be present where limbs branch off. The water can cause rot, weakness and increase the likelihood of limb drop. Mr Laity could not confirm that any insect damage or water pooling were currently apparent in the tree. The risk of branch drop or limb breakage was not quantified. The applicant stated that she has not established a regular maintenance schedule for the tree: she has not had any monitoring checks conducted on the tree, nor pruning since 2009 when she bought the property. Ms Pinkas also stated that regular 2-3 yearly maintenance, as the Conservator recommended, would be expensive as it would most likely require turning off the power, which alone costs about $470.
22.In relation to criterion (c), the tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service, the applicant contended that it was again the risk of branches falling that threatened substantial damage to a substantial structure/service, the buildings or the LV powerlines. The applicant was concerned about the possibility that branches could drop onto the lines and cause damage such as a fire or a branch/limb of the tree could fall into the neighbour’s yard or onto her neighbour’s house particularly during storms. The risk of falling branches is the same risk described under criterion (b).
23.Under criterion (d), the location of the tree is inappropriate given its potential size and growth habit, the applicant contended that the tree is unsuitable to residential blocks due to its’ size, Yellow Box being more suited to parkland than backyards by reference to the ACT Design standards for urban infrastructure. She also stated that the location overhanging the powerlines and the neighbour’s yard means it is inappropriate. She stated that the tree is also only about 10-11 metres from the applicant’s and the rear neighbour’s house and contended that it will continue to thicken and become heavier making it even less appropriate to this location.
24.Under criterion (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, the applicant stated that her rear neighbour’s block was overshadowed for the afternoon hours in winter. She provided photographs of her rear neighbour’s block showing overshadowing of parts of the block in mid-August. The applicant relied on Dr Spurling’s statement which states that her solar hot water panels are shaded by this tree at various times and she believes the panels are in danger of being smashed by a falling limb. The applicant stated that her block was not affected.
25.Counsel for the respondent pointed out that a number of the opinions expressed by the applicant were not based on her possessing expert qualifications. Consistent with sections 8 and 26 of the ACT Civil and Administrative Tribunal Act2008, the Tribunal chose to consider such material and give it weight appropriate to the circumstances.
The respondent’s evidence and contentions
26.The respondent relied on the detailed report and evidence of Dr Robert Coyne, who holds a Bachelor of Science in Forestry, has been the chair of the TAP for 11 years and completed a Ph.D in statistical analysis using computer programs. He confirmed the assessment of the tree provided to the TAP to the effect that the application did not meet any of the criteria, including under paragraph 1(b), (c), (d) or (e) and provided his personal opinion to the same effect.
27.As chair of the TAP Dr Coyne advises the Conservator, who takes the advice of the TAP into account in making a determination. As the expert witness for the government in this case, Dr Coyne provided his personal opinion and has an obligation to the Tribunal to provide truthful information.
28.The respondent addressed the objects of the Tree Protection Act stating that the Act imposes restrictions on what owners can do regarding trees on their land, there being several criteria to be considered in assessing whether a tree can be removed. Dr Coyne stated that the objects of the Act include promoting an appreciation of the value and benefits of large trees on suburban blocks which include providing shade, lowering the ambient temperature and contributing to the landscape.
29.The respondent addressed the issue of whether the tree was a remnant and noted the evidence presented by the applicant in the government’s aerial photographs and the lack of clarity in the Conservator’s documentation. The respondent withdrew their statement that this was a remnant tree stating that the “evidence is insufficient for the Respondent to make the submission that the tree is a remnant.”
30.Under criterion (b), the tree represents an unacceptable risk to public or private safety, the respondent contended that safety is a prime consideration and is always an important issue. The respondent contends the risk of injury from falling branches is very low and not unacceptable.[13] Dr Coyne referred to statistics showing around a 1 in 100 million risk of death per year from falling branches in a private garden, a risk of 1 in 10,000 per year being seen as possibly unacceptable and worthwhile trying to reduce. With regard to the angle of the limbs, Dr Coyne noted the wood bulge near the junction of the limbs has no evidence of bark inclusion, which means that this is a strong junction as the interlocking grain of the Yellow Box is tight. The tree is at the back of the applicant’s block and there is planting around it which reduces the likelihood that people would be near the tree. Dr Coyne also stated that this tree will shed branches from time to time and that the frequency of shedding will increase when the tree is about 100 years old and continue as it ages.
[13] Bozin v Conservator of Flora and Fauna [2010] ACAT 91 at [34]
31.The Conservator recommended a regular maintenance schedule to monitor and prune the tree which would limit but not eliminate the risk of falling branches.
32.Under criterion (c), the tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service, the respondent contended that no damage has been caused and that the risk of damage to the rear neighbour’s house or the applicant’s house is minimal as only leafy canopy is near the buildings. The risk of a limb falling on a house is extremely low as noted under criterion (b) above. Dr Coyne stated that the risk of a branch falling and damaging the LV powerlines is also extremely low as branches usually fall and slide away when they contact the lines.[14] The Utility Networks (Public Safety) Regulation 2001 section 25 does not prohibit vegetation from overhanging powerlines as long as the relevant clearance of 1.5 metres is maintained as it is in this case.
[14] Maatouk v Conservator of Flora and Fauna [2015] ACAT 10
33.Under criterion (d), the location of the tree is inappropriate given its potential size and growth habit, the respondent contended that the tree is close to its maximum size, with the canopy and trunk filling out from now on. There is relatively little growth potential left so the risk will increase only a little which can be managed with regular monitoring and pruning. The position at the back of the block away from both houses is not “inappropriate”.
34.Under criterion (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, the respondent contended that solar access must be determined by reference to the whole of the lease.[15] Dr Coyne provided diagrams showing the shadow cast by the tree from mid-June to mid- August. These showed that from 9am-12 midday there is little or no effect on solar access to any of the three blocks, the applicant’s, Dr Spurling’s or block 10 next to Dr Spurling closer to the reserve. He stated that between 1-3pm there was minimal or no impact on the outdoor areas of blocks 1 and 9, the outdoor areas rather than the roof being the important part to consider. His evidence was that there is no ‘substantial’ effect on any lease at any period, ‘substantial’ meaning that at least 50% of the block is affected for 50% of the time between 9am and 3 pm in winter, 1 June to 31 August. He also stated that the shadow is dappled rather than solid.
Consideration of issues
[15] Maciejewski v Conservator of Flora and Fauna [2013] ACAT 78
35.The Tribunal is satisfied on the evidence provided, that the tree is not a remnant tree and therefore, that criteria (d) and (e) are relevant to this application. The applicant asserts that the tree satisfies criteria (b), (c), (d) and (e).
36.The Tribunal’s consideration of the evidence in relation to the relevant paragraph 1 criteria is as follows.
37.Under criterion (b), the tree represents an unacceptable risk to public or private safety, the applicant outlined an argument that there was risk of falling branches that may cause injury to those using the garden near the tree. The Tribunal understands the applicant’s concerns but prefers the statistical analysis of the risk as explained by Dr Coyne with reference to data to quantify the risk. The risk of falling branches/limbs causing injury is extremely low and can be minimised further with normal maintenance as recommended by the Conservator. The Tribunal acknowledges that there is a cost associated with having the tree assessed and pruned as necessary, however, this is a cost like painting or removal of debris from gutters, that is a part of general home maintenance that all home owners take on when buying a home. The Tribunal is not satisfied that the tree represents an unacceptable risk.
38.Regarding criterion (c), the tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service, the same risk of falling branches as explained by Dr Coyne under criterion (b) is relevant here. The Tribunal accepts Dr Coyne’s evidence that the risk of falling branches/limbs is very low and the risks of damage to buildings or powerlines or of fire being caused are also very low. The risk of falling branches cannot be eliminated but can be reduced if the tree is monitored and pruned as necessary.
39.Under criterion (d) the location of the tree is inappropriate given its potential size and growth habit, the applicant relied on a published guideline, and the context for this tree, which was planted by the original owners of the house and has poor branch structure. The respondent agreed with the applicant that this tree is already near full height and that the canopy and trunk will fill out from now on. The respondent also contended that it is located away from buildings with adequate clearance from powerlines. The Tribunal considers that the evidence shows that the tree is not located in an inappropriate location and that regular monitoring would mitigate any issues related to growth habit.
40.Under criterion (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, the applicant provided photographs and her neighbour’s statement in support of her contention. The Tribunal prefers the methodology and reasoning of Dr Coyne for determining the affect of solar access on the two rear neighbours’ leases during the relevant period. The analysis showed that the tree is not ‘substantially’ affecting the leases at any time in the six hour period.
Conclusion
41.The Tribunal finds that none of the criteria for removal of the tree has been met.
42.Even if one or more of the criteria (b), (c), (d) or (e) had been met, the Tribunal is also satisfied that it has not been demonstrated that “all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective”, as is required by the second part of paragraph 1 of the criteria.
43.As required by section 25 of the Tree Protection Act, the Tribunal has considered all of the evidence in relation to the approved criteria, the TAP advice and the parties’ contentions. Taking all these matters into account the Tribunal concluded that the Conservator’s decision should be confirmed.
………………………………..
Member E Trickett
HEARING DETAILS
FILE NUMBER:
AT 38/2018
PARTIES, APPLICANT:
Ms Georgina Pinkas
PARTIES, RESPONDENT:
Conservator of Flora and Fauna
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
Dr D Jarvis
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
TRIBUNAL MEMBERS:
Member E Trickett
DATES OF HEARING:
30 and 31 August 2018
1
4
0